Date: 20100903
Docket: IMM-6383-09
IMM-6384-09
Citation: 2010 FC 871
Ottawa, Ontario, September 3, 2010
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
PEDRO
DAVID VENTURA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
These are
two different applications for judicial review made by the same Applicant
against two decisions made by immigration officer J. Gullickson dated October
23, 2009. In the first decision, the officer rejected the Applicant’s
application for Pre-Removal Risk Assessment (“PRRA”). In the second decision,
the officer denied the Applicant’s request to have his application for
permanent residence processed from within Canada on humanitarian and compassionate
grounds (“H&C”).
[2]
Having
carefully reviewed the Applicant’s records and the Respondent’s written
submissions, and considered the oral arguments made by counsel at the hearing,
I have come to the conclusion that the Application for judicial review of the
PRRA decision must be dismissed, but that the Application for judicial review
of the H&C decision must be granted.
I. Facts
[3]
The
Applicant is a 22 year-old male and citizen of Angola. In January 2004, at the age of 15, he
came to Canada, where he claimed refugee
status.
[4]
Before the
Refugee Protection Division of the Immigration and Refugee Board (“RPD”), the
Applicant alleged that he fears persecution by reason of political opinion and
membership in a particular social group, namely family. Indeed, he testified
that his father was an active member of an opposition group, the Front for the
Liberation of the Enclave of Cabinda-Armed Forces of Cabinda (FLEC-FAC), and
that his father was murdered in 2000 by government agents because of his well-known
membership in this group. The Applicant also alleged that he participated in
the meetings of an anti-government group connected to his school.
[5]
On January
24, 2005, the RPD rejected the Applicant’s claim on the basis of lack of
credibility and because of the absence of any corroborative or documentary
evidence. The only piece of evidence before the RPD was a death certificate
for the Applicant’s father, dating his death to December 8, 1993, and not in
2000.
[6]
The
Applicant made his H&C application on November 2, 2006 and his PRRA request
on May 26, 2008. Subsequent submissions and evidence for the PRRA were
received on June 12, 2008, while subsequent submissions and evidence for the
H&C request were received on October 26, 2006, June 12, 2009 and September
29, 2009.
[7]
The
Applicant submitted to the Officer that he had been in Canada since 2004, that he is currently a college
student and an accomplished cadet, that he takes part in judo classes and that
he is well-integrated in Canada. The Applicant also
submitted various letters of support, including letters from his foster
parents, school officials, an Army Cadets instructor, a judo instructor and a
judo colleague.
[8]
In his
PRRA and H&C Applications, the Applicant submitted that he was forced to
leave Angola because of his political
beliefs and that, as a result, his life was in danger. The Applicant’s counsel
also stated in his written PRRA submissions to the Officer that there were new
developments following the RPD hearing. Mr. Ventura had apparently been
informed that he has been falsely accused of being a FLEC-FAC member by some
members of the community, as a result of which the Angolan police have been looking
to arrest him for anti-government activities. Mr. Ventura had also been
informed that members of the FLEC-FAC have been seeking his whereabouts so that
they can recruit him; his refusal to join the group would indicate that he
supports the government, in which case these members said they would kill him.
II. The impugned decisions
A. The PRRA decision
[9]
In regard
to the Applicant’s claim that he was at risk because of his activities in
Angola, the Officer determined that the Applicant had not produced new evidence
that would recuperate his lack of credibility on the claim already determined by
the RPD and that these allegations remained unsupported.
[10]
With
respect to the Applicant’s submissions that he had learnt that he had been
accused of being an FLEC-FAC member, that the government was looking for him
because of this accusation, and that the FLEC-FAC wanted him to either become a
member or to kill him if he would not, the Officer found a lack of sufficiently
probative evidence. Neither the Applicant nor his counsel said how they
received this information or from what source, and there was no other evidence
supporting the claim beyond the submission.
[11]
Finally,
the Officer acknowledged that there is political violence, corruption and
poverty in Angola, but found that there is no
probative evidence linking the Applicant to the threats of political violence
or mistreatment by authorities.
B. The H & C decision
[12]
The
Officer first considered the political violence to which the Applicant claimed
he would be subjected, and repeated word for word the analysis found in his
PRRA decision. He then considered, under the heading “Other Personal Risks”,
the fact that the Applicant had been in Canada for one quarter of his life, and
that he would face difficulties returning to Angola as a young person having lived in Canada for so many years. Nevertheless,
the Officer found the Applicant had not presented sufficiently probative
evidence to show that he would suffer a disproportionate hardship if he were
required to return to Angola, once the alleged and
insufficiently substantiated personal risks of arrest or abuse by authorities
of forced recruitment or attack by armed political opposition groups are set
aside.
[13]
Under the
headings “Family Relations”, “Community Involvement” and “Establishment-Work
and Studies”, the Officer recognized that information submitted by the
Applicant from his foster parents and the Children’s Aid Society illustrate
their great appreciation and support for him. He also found that various
letters of support from school and church staff, a Major in the Army Cadets, and
his judo instructor all recommend, support and emphasize the Applicant’s positive
qualities. Finally, he accepted that evidence of past studies and past
employment demonstrates that he is a serious and respectful student and
probably capable of supporting himself financially. Yet in the Officer’s view,
none of this shows that the departure of the Applicant from Canada would cause
a disproportionate hardship for him or other persons in Canada.
III. Issues
[14]
Counsel
for the Applicant raised a number of issues in his written submissions, which
can be subsumed under the following questions as a result of his oral
representations:
·
Did the
officer err in law by not granting the Applicant an oral interview with respect
to his PRRA application?
·
Did the
officer fail to consider important evidence that favours the Applicant’s claim,
thereby misapplying the proper test in assessing risk for the purpose of an H&C
application?
·
Did the
officer fail to provide adequate reasons for his H&C decision?
IV. Analysis
[15]
The
appropriateness of not conducting an oral hearing in the context of a PRRA
application and the adequacy of the officer’s reasons are clearly issues of
procedural fairness. As such, they are reviewable under the correctness
standard: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at
para. 34; Bavili v. Canada (Minister of Citizenship and Immigration), 2009 FC 945, [2009] F.C.J.
No. 1259 at paras. 22 and 26; Yousef v. Canada (Minister of Citizenship and Immigration), 2006 FC 864, [2006] F.C.J.
No. 1101 at para. 18; Sketchley v. Canada (Attorney Genera), 2005 FCA 404, [2005] F.C.J.
No. 2056 at paras. 53-54.
[16]
As for the
factual issue regarding the assessment of the evidence in order to make a
determination with respect to the H&C or the PRRA application,
jurisprudence has recognized the expertise of officers and established that
their decisions deserve deference. These issues are therefore reviewable under
the reasonableness standard: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J.
No. 9 at para. 53; Jong v. Canada (Minister of Citizenship and
Immigration),
2009 FC 678, [2009] F.C.J. No. 845 at para. 19; Da Mota v. Canada (Minister of Citizenship and
Immigration),
2008 FC 386, [2008] F.C.J. No. 509 at para. 15.
A. Did the officer err in law by not granting the
Applicant an oral interview with respect to his PRRA application?
[17]
The
Applicant submitted that issues of credibility were central to his claim for
protection, and that the officer erred in not convoking him to an interview as
required by section 167 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (the “Regulations”). The officer gave little
weight to or rejected the new risks submitted by counsel for the purpose of the
PRRA application because he believed they were not corroborated by other
evidence. According to the Applicant, this rejection of the evidence was
nothing more than the officer’s disbelief of the Applicant’s story.
Furthermore, the Applicant submitted that the rejection of the new evidence was
the result of the unexplained importation of the negative credibility findings
of the RPD regarding the rest of the evidence. In the Applicant’s view, the
officer could not dismiss the new risks that he had put forward without
conducting an oral hearing and giving him the opportunity to explain why they
were not corroborated.
[18]
This Court
has held that the language of subsection 113(b) of the Immigration and
Refugee Protection Act (“IRPA”) makes it clear that the availability
of an oral hearing in the PRRA context lies solely in the discretion of the
Officer, having regard to the “prescribed factors” that are identified in
section 167 of the Immigration and Refugee Protection Regulations. The
conditions set out in section 167 are cumulative and the applicant must satisfy
all factors: Tran v. Canada (Minister of Public Safety
and Emergency Preparedness),
2010 FC 175, [2010] F.C.J. No. 207 at para. 29.
[19]
An
essential component of the Applicant’s claim to the PRRA officer is that he
would be targeted based on his father’s political activities in Angola, just as, according to the
Applicant, his father was murdered as a result of these political activities.
The RPD had already rejected that aspect of the Applicant’s claim. The
Applicant did not put forward any new evidence that would overcome the
credibility finding of the RPD. The Applicant reiterated that which had
already been determined to be lacking in credibility without further
corroborating evidence or explanation.
[20]
Given the
Applicant’s submission, in order for the Applicant to receive a positive PRRA
decision, he would have to respond to the totality of the RPD’s findings. The
granting of an oral hearing in these circumstances without further evidence
being presented would amount to a re-determination of the RPD’s findings. That
is not the proper role of a PRRA officer: see Selduz v. Canada (Minister of Citizenship and
Immigration),
2010 FC 583, [2010] F.C.J. No. 689 at para. 31.
[21]
With
respect to the recent submissions made by the Applicant regarding the alleged false
accusations against him and its ensuing risks of harm by police or FLEC-FAC
members, the officer rejected them as they were not supported by sufficiently
probative evidence to be reasonable. The officer was certainly entitled to
ascribe a low probative value and place little weight on the Applicant’s
statement, in light of its vagueness and lack of particulars. The Applicant’s
“new risks”, it must be recalled, were not supported by an affidavit or sworn
evidence; the rumours were not corroborated, they were lacking in specifics and
their sources were not identified. In those circumstances, the officer was
entitled to give little probative weight to the Applicant’s allegations.
[22]
As the
Officer found that the evidence provided was not sufficient probative evidence
of a risk, the Applicant was not entitled to an interview. The new evidence
was not rejected because of a lack of credibility, as would have been the case
if the officer had relied on inconsistencies or implausibilities in the
Applicant’s story. It was rejected because of a lack of sufficient probative
value. This Court has made a distinction between a PRRA officer weighing the
evidence and making a determination of credibility:
When the trier of fact assesses the
evidence in this manner he or she is not making a determination based on the
credibility of the person providing the evidence; rather, the trier of fact is
simply saying the evidence that has been tendered does not have sufficient
probative value, either on its own or coupled with the other tendered evidence,
to establish on the balance of probability, the fact for which it has been
tendered.
Ferguson v. Canada (M.C.I.), 2008 FC 1067, at para. 27. See also: Clarke
v. Canada (M.C.I.), 2009 FC 357, at para. 10.
[23]
The Officer
did not make a credibility finding. The officer weighed the evidence presented
to him and found that the Applicant’s statement was not sufficient to overcome
the RPD’s credibility finding nor to establish, on a balance of probabilities, that
the Applicant was at risk. In other words, he found that an uncorroborated
statement with no supporting affidavit was incapable of substantiating a
rumour. Such a decision fell within the range of “possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, para. 47). In those circumstances, the Applicant was not entitled to an
interview.
B. Did
the officer fail to consider important evidence that favours the Applicant’s
claim, thereby misapplying the proper test in assessing risk for the purpose of
an H&C application?
[24]
Counsel
for the Applicant submitted that the PRRA officer completely ignored the
corroborative evidence before him in the form of country reports that speak to
the government’s poor human rights record, as well as to prevalent extra
judicial killings and impunity on the part of government security forces.
[25]
Contrary
to the Applicant’s argument that the officer ignored country conditions, the
officer did in fact note the presence of political violence, corruption and armed
fighting between political factions in Angola. However, the Applicant cannot rely on
country conditions alone to support his claim of risk. This Court determined,
in a number of cases, that the evidence of risk requires independent and
credible objective evidence that provides a link between the claimant’s
personal circumstances and the country conditions. In the absence of evidence
showing personalized risk, country conditions alone are not sufficient for a
positive PRRA determination: see, for ex., Alakozai v. Canada (Minister of Citizenship and
Immigration),
2009 FC 266, at paras. 35-37; Prophète
v. Minister of Citizenship and Immigration, 2008 FC 331, [2009] F.C.J. No. 374 at paras. 16-17; Jarada
v. Canada (Minster of Citizenship and
Immigration), 2005 FC
409, [2005] F.C.J. No. 506, at para. 28.
[26]
At the
hearing, counsel for the Applicant also argued that the officer erred in not
applying the proper test when assessing risk for the purposes of the H&C
application. It was argued that the officer imported his risk finding from the
PRRA decision without considering the broader context of an H&C
application. Moreover, counsel also contended that the officer only turned his
mind to the absence of risk for the Applicant if he were to go back to Angola, instead of focussing on the
hardship he would suffer were he forced to re-apply for a visa or for H&C
from abroad.
[27]
Having
carefully considered the impugned decision of the Officer, I am unable to agree
with the Applicant. The Officer correctly states the test, as being whether
the Applicant would suffer disproportionate hardship if returned to Angola, on a number of occasions in
his reasons. He was clearly aware and sensitive to the fact that the applicant
has been in Canada for five years, and that returning to Angola may present difficulties for
him. He was also mindful of the support the Applicant receives from his foster
parents in Canada. The Officer nevertheless
found that the Applicant would not suffer a disproportionate hardship if
required to return to Angola; such an assessment was open
to him, particularly in light of the fact that his counsel had only emphasized
the risks to the Applicant’s safety in connection to the hardship of living in Angola.
C. Did the officer fail to provide adequate reasons for
his H&C decision?
[28]
Finally,
counsel for the Applicant submitted that the officer did not provide adequate
reasons for finding that the departure of the Applicant from Canada would not
cause him or other persons in Canada a disproportionate hardship, despite
documentary evidence showing that his foster parents show appreciation and
support for him, that he is respected and capable of adapting to Canadian
society, and that he is a serious and respectful student and that he is probably
capable of supporting himself financially if allowed to work. This would leave
the Applicant in no better position if he were to submit a new H&C
application, not knowing the defects that he has to remedy in order to succeed.
[29]
I agree
with the Respondent that the onus is on the Applicant to satisfy the officer
that, in the Applicant’s personal circumstances, the requirement to obtain a
visa from outside Canada in the standard manner would
cause unusual and undeserved or disproportionate hardship. That being said,
once an applicant has put forward the positive factors militating in favour of
granting his H&C application, the officer must explain why he does not find
these factors sufficient to grant the application. An applicant is entitled to
know why he failed to convince the officer of the cogency of his case,
especially when there is so much at stake as his future in this country.
[30]
In the
case at bar, the officer did not meet this standard. He merely recited the
allegations of the Applicant, only to dismiss them without any kind of
explanation or analysis. Counsel for the Respondent countered that the
Applicant, through his counsel, had not elaborated as to how and why the
factors submitted would constitute undue hardship in the first place. I do not
find this argument convincing. The implications of severing the Applicant’s
establishment in Canada, as evidenced by his family relations, his community
involvement, his work and his studies are obvious without the necessity of
stating how and why, from his point of view, his return to Angola would constitute undue
hardship. On the basis of the record before him, the officer had more than sufficient
evidence not only to determine whether unusual and undeserved or
disproportionate hardship had been made out, but as importantly to give his
reasons as to why he came to his conclusion.
[31]
All things
considered, I am of the view that this case is very similar to the H&C
decision that was challenged in Adu v. Canada (Minister of
Citizenship and Immigration), 2005 FC 565, [2005] F.C.J. No. 693. Accordingly,
I would therefore adopt and make mine the following comments made by my
colleague Justice Anne MacTavish:
[14] In my view, these ‘reasons’ are not
really reasons at all, essentially consisting of a review of the facts and the
statement of a conclusion, without any analysis to back it up. That is, the
officer simply reviewed the positive factors militating in favour of granting
the application, concluding that, in her view, these factors were not
sufficient to justify the granting of an exemption, without any explanation as
to why that is. This is not sufficient, as it leaves the applicants in the
unenviable position of not knowing why their application was rejected.
[32]
For all
of the foregoing reasons, the application for judicial review of the PRRA
decision is dismissed, and the application for judicial review of the H&C
decision is allowed. Neither party has suggested a question for certification,
and none arises here.
ORDER
THIS COURT ORDERS that:
1. The
application for judicial review of the PRRA decision (IMM-6383-09) is
dismissed;
2. The
application for judicial review of the H&C decision (IMM-6384-09) is
allowed, and the matter is remitted to a different immigration officer for
redetermination;
3. No serious
question of general importance is certified.
"Yves
de Montigny"
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