Date: 20051205
Docket: IMM-6267-04
Citation: 2005 FC 1647
Ottawa, Ontario, December 5, 2005
PRESENT:
THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
SA
BRAHIMA TRAORÉ
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
NOЁL J.
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of a
Pre-Removal Risk Assessment (PRRA) Officer who, on October 27, 2004, found that
the applicant would not be subject to a risk of persecution, torture, a risk to
his life, cruel and unusual treatment or punishment or sanctions if he had to
return to Burkina Faso.
ISSUES
[2]
Did the
PRRA Officer err in law in evaluating the evidence submitted by the applicant
and in dismissing his application?
CONCLUSION
[3]
For the
reasons that follow, the answer to this question is negative, and the
application for judicial review is dismissed.
FACTUAL BACKGROUND
[4]
The
applicant is a citizen of Burkina Faso. He arrived in Canada as a soccer player
with the Burkina Faso team for the Games of La Francophonie, which took place
in the Ottawa–Hull area in 2001.
[5]
The
applicant claimed refugee status while in Canada. His claim was based on his
imputed or actual political opinions and the political activities he had
engaged in. His claim was heard on October 21, 2003, by the Refugee Protection
Division of the Immigration and Refugee Board (the Board) and was dismissed in
a decision dated March 10, 2004. The applicant did not apply for judicial
review.
[6]
The
applicant then submitted a PRRA application, which was dismissed on October 27,
2004. That decision is the subject of this application for judicial review.
IMPUGNED DECISION
[7]
In support
of his PRRA application, the applicant submitted three pieces of documentary
evidence: two newspaper articles and a report entitled “Rapport sur l’état des
droits humains au Burkina Faso” (Report on the state of human rights in Burkina
Faso), prepared by the Mouvement Burkinabe des Droits de l’Homme et des Peuples
(Burkina Faso Human Rights Movement), covering the period 1996–2002.
[8]
Two of
these documents were dated before the date of the decision regarding the
applicant’s refugee claim. The documents had therefore been available when the
applicant claimed refugee status. The PRRA Officer did not take them into
account as new evidence, judging that the applicant had not provided a
satisfactory explanation for failing to submit them at the time of his refugee
claim hearing. Of the three documents submitted by the applicant, the PRRA
Officer took into account only the article from L’Observateur Paalga,
which was published after the decision dismissing the applicant’s refugee claim
was handed down.
[9]
In the
article, entitled “Reviendront? Reviendront pas?” (Will they come back? Won’t
they come back?), journalist Cyrille Zoma writes that athletes such as the
applicant who claimed refugee status during official trips abroad are
considered deserters and traitors. He adds that [TRANSLATION] “regardless of
whether they succeed in their adopted country, these people will have no choice
but to stay there, as it is likely that the state won’t roll out the red carpet
to welcome them back. They will certainly be called upon to answer for their
actions, and will surely not be congratulated on betraying the motherland. They
will be punished to set an example and to discourage any people who might have
similar ideas. What’s more, if they fail, they will not want to face the
mockery of those who stayed put.”
[10]
The
applicant stated in his PRRA application that having claimed refugee status
while officially representing Burkina Faso as a soccer player puts him in a
particularly risky position. The PRRA Officer noted that the Immigration and
Refugee Board (the Board) studied this question in the reasons for its decision
dismissing the applicant’s claim, and that the L’Observateur Paalga
article was an opinion piece that did not refer to the government’s actual
intentions toward persons in a situation similar to that of the applicant. She
also noted that, although the article mentions the possibility of the
imposition of an exemplary punishment, this evidence was insufficient to
convince her that the applicant was facing more than the mere possibility of
persecution, or that it was probable that he would be subject to torture, a
risk to his life or cruel and unusual treatment or punishment.
[11]
In
addition to the article from L’Observateur Paalga, the PRRA Officer also
based her decision on the Board’s decision, an Amnesty International report and
a report from the US Department of State. Based on all this evidence, she
concluded that the application did not meet the criteria set out in sections 96
or 97 of the IRPA.
ANALYSIS
[12]
The issue
is a question of mixed law and fact, as we must decide whether the PRRA Officer
correctly applied, on the whole, the law as it relates to the facts that she
had to consider. The standard of review applicable to a PRRA Officer’s decision
that involves questions of mixed law and fact is reasonableness simpliciter,
where the PRRA Officer’s decision is considered globally and as a whole (Figurado
v. Canada, [2005] F.C.J. No. 458, at paragraph 51). This standard of review
was applied in several of the Court’s rulings (see Kandiah v. Canada (Solicitor
General), [2005] FC 1057, [2005] F.C.J. No. 1307, at paragraph 6; Nadarajah
v. Canada (Solicitor General), 2005 FC 713, [2005] F.C.J. No 895, at
paragraph 13; Kim v. Canada (MCI), [2005] F.C.J. No. 540 (F.C.T.D.), at
paragraph 22). An unreasonable decision is one that does not stand up to a
somewhat probing analysis (Law Society of New Brunswick v. Ryan, [2003]
1 S.C.R. 247, 2003 SCC 20, [2003] S.C.J. No. 17, at paragraph 25; Canada
(Director of Investigation and Research, Competition Act) v. Southam Inc.,
[1997] 1 S.C.R. 748, [1996] S.C.J. No. 116).
[13]
In the
circumstances of this case, I do not believe that the PRRA Officer’s decision
was one that does not stand up to a somewhat probing analysis.
[14]
In the
context of a PRRA application, the burden of proof is on the person wishing to
be granted refugee status under subsection 114(1) of the IRPA (Hailu v.
Canada (Solicitor General), 2005 FC 229, [2005] F.C.J. No. 268 at
paragraphs 18 and 22). The onus is on this person to demonstrate that they
should be granted refugee status.
[15]
The
applicant submitted two affidavits to which was appended additional evidence
that did not figure in the file that was submitted to the PRRA Officer. This
evidence was inadmissible before the PRRA Officer owing to paragraph 113(a)
of the IRPA; the applicant did not contest this. It is also inadmissible before
the Federal Court in the context of a judicial review. At this stage, only the
evidence used to render the decision under review should be considered, saving
any exceptions (see Smith v. Canada, 2001 FCA 86, [2001] F.C.J. No. 450
and Grundy v. Canada, 2005 FC 1312, [2005] F.C.J. No. 1593). Neither
PRRA applications nor applications for judicial review can become hearings de
novo of the applicant’s initial refugee claim, which was dismissed. In
short, the only evidence the Federal Court may use to render its decision is
the same evidence that was available to the PRRA Officer.
[16]
In
particular, I note that the applicant submitted only one newspaper article proving
that he risked being subject to persecution if he were returned to Burkina Faso
owing to the fact that he is a professional soccer player. No evidence of the
importance, influence or daily print run of the newspaper was provided. The
allegation that the excerpt from the paper constitutes a call to murder has not
been substantiated in any way. I also note that no evidence was provided of the
connection between the applicant’s political opinions or his status as a
professional soccer player, on the one hand, and the repression to which he
would personally be subject, on the other hand. Finally, the connection between
the excerpt from the newspaper and the possibility of persecution at the hands
of the state was not demonstrated.
[17]
Accordingly,
I conclude that the PRRA Officer’s conclusion was based on evidence available
to her and is not so unreasonable as to warrant the intervention of this Court.
There is no conclusive proof demonstrating that the applicant would be subject
to a risk of persecution, torture, risk to his life, cruel or unusual treatment
or punishment or sanctions if he had to return to Burkina Faso, within the
meaning of subsection 115(1) of the IRPA. The application is therefore
dismissed.
[18]
The
parties did not submit questions for certification. No questions will be
certified.
ORDER
THE COURT ORDERS THAT:
- The application for judicial
review be dismissed. There is no question to be certified.
“Simon
Noël”
Certified true
translation
Magda Hentel
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