Date: 20100804
Docket: IMM-6326-09
Citation: 2010 FC 796
Ottawa, Ontario, August 4, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
QALABA
ABBAS SAYED
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant seeks judicial review, pursuant to section 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act), of a negative
pre-removal risk assessment (PRRA) decision. The officer determined that the
additional evidence provided by the applicant did not overcome the negative
credibility finding made by the Refugee Protection Division of the Immigration
and Refugee Board, and that the applicant was not at risk if returned to
Pakistan.
[2]
For
the reasons that follow, this application is dismissed.
Background
[3]
The applicant is a citizen of Pakistan and is a Shia Muslim. He
participated in religious activities in Pakistan and states that he is at risk
because of those activities and that if he is returned to Pakistan he will be
persecuted and/or harmed by Sunni Muslim extremists.
[4]
The applicant alleges that he was threatened by members of the
Sipah-e-Sahaba (SSP) in the late 1980s because of his involvement with the
local Shia community. He alleges that he was attacked and beaten by the SSP
while attending a religious ceremony. He states that he did not report this
incident to the police because the police were reluctant to address sectarian
violence perpetrated by the SSP.
[5]
The applicant states he continued to be actively involved with
the Shia community. He cites no incidents of threats or persecution for about
a ten-year period, despite this active involvement.
[6]
In the late 1990s sectarian violence resulted in the deaths of a
number of Shia Muslims. Mr. Sayed alleges that he was attacked by the SSP for
assisting the families of those killed. He says that the police refused to
register a report because he could not identify his attackers and because they
were reluctant to investigate the SSP. The applicant alleges that after this
attack he began receiving telephone threats.
[7]
Shortly thereafter Mr. Sayed left Pakistan and came to Canada
where he filed a claim for refugee status. On July 27, 2001, the Board
rejected the applicant’s claim. The determinative issue before the Board was
credibility. The Board made numerous negative credibility findings and found
that the applicant’s “testimony was not credible or trustworthy.” The Board
found that the applicant “would make up a story for self-serving purposes.”
Although the Board accepted that he was a Shia Muslim, it rejected his story
regarding the persecution he experienced in Pakistan. The applicant sought
leave to judicially review this decision but his leave request was denied.
[8]
In June 2003, the applicant made an application for permanent
residence in Canada on humanitarian and compassionate grounds. That
application was also denied. The officer determined that he would not face
undue, undeserved or disproportionate hardship if required to apply for
permanent residence in Canada from Pakistan.
[9]
In June 2009, the applicant made the underlying PRRA
application. The applicant provided various letters as new evidence of the
ongoing risk he faced if removed to Pakistan. On November 17, 2009, the
applicant’s PRRA application was rejected. It is from this decision that the
applicant seeks judicial review.
[10]
The officer began by noting that the applicant’s refugee claim
pre-dated the current Act and that this necessitated considering all of the
applicant’s evidence regardless of whether it was “new evidence.” She noted
the negative refugee decision of the Board and its extensive negative
credibility findings as well as its finding that “the applicant attempted to
mislead them.”
[11]
The officer then considered the supplementary evidence that the
applicant provided. The officer gave the letter written by the applicant’s
wife low probative value because it was “written by a person who has an
interest in the outcome of this application” and because it was vague and
lacked detail of the threats the applicant faced. The officer gave the letter
written by the applicant’s sister low probative value because it was also
vague, lacked details, and did not provide further objective evidence to support
its allegations. The officer gave little weight to a variety of other letters
written in support stating:
Submissions
also include letters and affidavits from other friends and family in Pakistan.
They are also vague and lacking in details as to the applicant’s past
activities in Pakistan. They have not indicated that they witnessed the events
described by the applicant or have personal knowledge of the threats to which
they have referred. The evidence fails to establish when, where or by whom the
threats were made and whether they reported this information to the
authorities. The allegations raised in these letters are unsupported by
objective evidence. I find the evidence of low probative value in this
assessment.
[12]
The
officer considered letters written from several Islamic organizations in Canada attesting to
the risk the applicant faced. She found that their authors had “not indicated
that they base their beliefs on information other than that provided by the
applicant. They do not inform that they witnessed or have first hand knowledge
of any of the events.” The officer assigned these letters low probative value.
[13]
The
officer then considered the availability of state protection stating that
“[t]he determinative issue in this application are [sic] current country
conditions regarding religious freedom and state protection.” The officer
stated that her preference was of the “more recent objective evidence found in
current country reports.”
[14]
The
officer then reviewed the governmental structure of Pakistan and the
frequency of sectarian violence in Pakistan. The officer
determined that the applicant had failed to rebut the presumption of state
protection:
The applicant
has been out of Pakistan for 10 years. The evidence before me does not support
that the applicant’s profile is such that he is of interest to extremists in Pakistan.
The applicant has not provided clear and convincing evidence to rebut the
presumption of state protection. Documentary evidence informs that while
country conditions are less than ideal, adequate protection is available in Pakistan
and there are avenues of recourse should the applicant choose to seek them
[15]
The
officer found “that there is insufficient evidence to support that the
applicant faces a forwarding [sic] looking risk such that he is found
described in s.96 or s.97 of IRPA.” Consequently, the officer rejected the
applicant’s application
Issues
[16]
The applicant raises the following issues:
1. Did the PRRA officer err in law by
failing to properly consider and by rejecting all of the applicant’s personal
supporting documentation?
2. Did the PRRA officer err in law by
misunderstanding and ignoring the evidence before her?
3. Did
the PRRA officer err in law and breach the duty of fairness by failing to
convoke the Applicant for a hearing pursuant to s. 113(b) of the Act?
Analysis
1.
Did the PRRA
officer err in law by failing to properly consider and by rejecting
all of the applicant’s personal supporting documentation?
[17]
The
applicant submits that the officer erroneously rejected all his supporting
letters based on generalities that were not supported by the evidence. He says
that the letters provided from Islamic organizations establish his “profile”
and do not speak to his past allegations of persecution. The applicant cites Elezi
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 422, for the proposition “that it
was an error of law to discount evidence solely because it contradicts prior
conclusions.” The applicant also relies on Sanchez v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1336, for the proposition that it
was an error to discount his wife’s letter because she was an interested party.
[18]
The
respondent cites Iqbal v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 1793 at para. 8 (T.D.)
(QL), for the proposition that “[n]o utterance, no document, is proof of
anything unless it is found to be credible. An assertion is not made more
credible by being reduced to writing.” The respondent argues that the officer provided
numerous reasons for assigning low probative value to the evidence submitted by
the applicant. The respondent submits that this case is distinguishable from Elezi
because the officer in this case did not rely solely on the Board’s negative
credibility finding in discounting the evidence. The respondent further
submits that Sanchez is distinguishable because the officer in this case
explained why she was discounting the evidence and did not merely state that
she preferred some evidence over other evidence without explanation. The
respondent cites Ferguson v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1067, for the proposition that it
was open to the officer to assign little weight to the evidence submitted.
[19]
It
is trite law that a PRRA application is not to become a second refugee claim: Kaybaki
v. Canada (Minister of
Citizenship and Immigration), 2004 FC 32. A negative refugee claim
forms “a starting point from which an applicant may submit evidence of new
developments”: Mikhno v. Canada (Minister of
Citizenship and Immigration), 2010 FC 385 at para. 25. Where the
applicant fails to adequately address the determinative issues that formed the
basis for the negative refugee decision, a PRRA officer has “little choice but
to render a negative decision”: Mikhno, supra at para. 25.
[20]
In
this case, the applicant failed to provide sufficient evidence to address the
numerous and serious negative credibility findings made by the Board. Further
letters of support, sworn or otherwise, and regardless of the stature of the
authors, do not explain away the inconsistencies in the applicant’s testimony
noted by the Board.
[21]
In
Augusto v. Canada (Solicitor General), 2005 FC 673
at para. 9, Justice Layden-Stevenson (as she then was) held that “[i]n the
absence of having failed to consider relevant factors or having relied upon
irrelevant ones, the weighing of the evidence lies within the purview of the
officer conducting the assessment and does not normally give rise to judicial
review.” Put another way, the weighing of the evidence is a question of fact,
entitled to a high level of deference, and reviewable on the reasonableness
standard.
[22]
It
was open to the officer to assign the letters of support little probative
value. I agree with the respondent that the officer provided reasons for the
weight she assigned, and that the discounting did not simply flow from the
negative Board decision. The officer cited lack of specific details, hearsay,
a lack of objective evidence, the interest of many of the authors in the
outcome of the case, and the authors’ lack of personal knowledge as reasons for
assigning the letters little probative value.
[23]
This
case is distinguishable from Elezi. In that case, the officer assigned
little weight to evidence that a previous decision of this Court had already
found to be highly probative. The officer based his decision on the fact that
the evidence was hearsay, was provided by an interested party, discussed facts
the Board had rejected for lacking credibility, and could have been provided to
the Board. In allowing the application for judicial review, Justice
Tremblay-Lamer held that:
…where new evidence is admitted that
contradicts the Board’s previous findings of fact, the evidence cannot be
discounted solely because it contradicts prior conclusions, rather the capacity
of the new evidence to temper those findings for the purposes of the present
PRRA analysis must be evaluated.
[24]
In
this case, the officer did not simply rely on the negative credibility finding
of the Board. The officer provided specific reasons, particularly a general
lack of detail in the letters, as to why she was assigning them low probative
value. I agree with the applicant that the “interest” of the applicant’s wife,
in and of itself, does not support assigning low probative value to her letter,
however, this was not the only reason the officer provided with respect to that
letter.
[25]
The
officer provided transparent, intelligible and justified reasons for assigning
the weight that she did to the evidence provided by the applicant. The
applicant has not shown that the officer’s assessment of the evidence was
unreasonable.
2.
Did the PRRA
officer err in law by misunderstanding and ignoring the evidence
before her?
[26]
The
applicant submits that the officer was selective in her assessment of the
documentary evidence, that she failed to apply the evidence to the applicant’s
specific profile, and that the officer included irrelevant items in her state
protection discussion without explanation.
[27]
The
respondent submits that the officer did properly appreciate the “profile” of
the applicant, but disputes that it was one of a religious activist as alleged
by counsel for the applicant at the hearing but reasonably concluded that he
would not be at risk if returned to Pakistan.
[28]
I agree with the applicant that the officer’s state protection
reasoning was deficient. The officer failed to cite any of the evidence before
her regarding sectarian violence. The officer cited irrelevant information
relating the use of false blasphemy charges as harassment and failed to explain
the relevance of citing information of the prevalence of fraudulent documents
in Pakistan.
[29]
However,
even if I were to agree with the applicant that the officer’s state protection
finding is unreasonable, the applicant would still be faced with a finding of
insufficient proof of risk that is determinative of the application.
Therefore, the officer’s poor state protection reasoning does not constitute a
reviewable error.
3.
Did
the PRRA officer err in law and breach the duty of fairness by failing to
convoke
the
Applicant for a hearing pursuant to s. 113(b) of the IRPA?
[30]
The
applicant submits that the officer should have held an oral interview given
that the applicant’s evidence addressed a serious issue of credibility that was
central to the officer’s decision and would have justified allowing the
application had it been accepted. He relies on Liban v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1252, for the proposition that negative
credibility findings should not be cloaked as insufficient objective evidence
findings.
[31]
The
respondent cites Ferguson v. Canada
(Minister of Citizenship and Immigration), 2008 FC 1067, submitting that an oral
interview was not required because the officer was simply making an assessment
as to weight and not as to credibility. The respondent says that “the
assessment of sufficiency of evidence and credibility are distinct and
separate.”
[32]
Both Liban and Ferguson stand for the proposition
that negative credibility findings should not be cloaked as insufficient
objective evidence findings. In Ferguson at para. 16, I held “that the
Court must look beyond the express wording of the officer’s decision to
determine whether, in fact, the applicant’s credibility was in issue.”
[33]
In this case, the applicant’s credibility was not assessed by the
officer because the evidence provided was not sufficient to meet the legal
burden of proof placed on the applicant. “It is open to the trier of fact, in
considering the evidence, to move immediately to an assessment of weight or
probative value without considering whether it is credible”: Ferguson at
para. 26. As I have already discussed, the officer’s assessment of weight was
reasonable.
[34]
The
only issue remaining is whether an oral hearing ought to have been held because
of the applicant’s testimony. Section 167 of the Immigration and Refugee
Protection Regulations, SOR/2002-227, states that the following factors are
to be considered by PRRA officers in determining whether to hold an oral
interview:
|
167.
For the purpose of determining whether a hearing is required under paragraph
113(b) of the Act, the factors are the following:
(a)
whether there is evidence that raises a serious issue of the applicant's
credibility and is related to the factors set out in sections 96 and 97 of
the Act;
(b)
whether the evidence is central to the decision with respect to the
application for protection; and
(c)
whether the evidence, if accepted, would justify allowing the application for
protection.
|
167.
Pour l’application de l’alinéa 113b) de la Loi, les facteurs ci-après servent
à décider si la tenue d’une audience est requise :
a)
l’existence d’éléments de preuve relatifs aux éléments mentionnés aux
articles 96 et 97 de la Loi qui soulèvent une question importante en ce qui
concerne la crédibilité du demandeur;
b)
l’importance de ces éléments de preuve pour la prise de la décision relative
à la demande de protection;
c)
la question de savoir si ces éléments de preuve, à supposer qu’ils soient
admis, justifieraient que soit accordée la protection.
|
[35]
In the context of PRRA applications following negative refugee
determinations, given the regulatory guidance above, and the jurisprudence of
this Court that PRRA applications are not to turn into appeals of negative
refuge claims, the test of whether to hold an oral interview is that where the
testimony of the applicant, if believed, would adequately address the
determinative issues raised by the Board in rejecting the applicant’s refugee
claim, then procedural fairness requires a PRRA officer to convoke an oral
interview to determine the credibility of this evidence unless the officer is
prepared to accept this evidence on its face.
[36]
In this case, the officer clearly did not accept the affidavit of the
applicant on its face. The applicant’s affidavit simply does not address the
determinative issues found by the Board, which, in this case, related to his
lack of credibility and untrustworthiness. The applicant provides no
explanation for his inconsistent testimony regarding his travel documents and
how he arrived in Canada. The applicant provides no explanation for his lack
of knowledge regarding events for which he claimed to be present. The
applicant provides no explanation for discrepancies between his Personal
Information Form and his testimony before the Board. He provides no
explanation for why he, and not his family who live with him, was targeted by
Sunni Muslim extremists.
[37]
All the applicant does is reiterate his allegations - allegations that
were found to be not credible by the Board. If a PRRA officer is required to
hold an oral interview for every failed refugee claimant that makes a PRRA
application then the PRRA would effectively turn into a de novo refugee
appeal. This is not the purpose of the PRRA. The purpose of the PRRA is to
give applicants an opportunity to provide further evidence and testimony to
explain why the determinative issues before the Board ought to be decided
differently. Only where such testimony is proposed is the officer required to
hold an oral interview.
[38]
In this
case, procedural fairness did not require the officer to convoke an oral
hearing. The applicant’s testimony, as outlined in his affidavit, even if
fully accepted, did not overcome the determinative findings of the Board.
[39]
For
these reasons this application is dismissed. Neither party proposed a question
for certification; I share their view that none is evident given the facts
before the Court.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that this application for
judicial review is dismissed and no question is certified.
"Russel
W. Zinn"
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