Docket: IMM-4207-11
Citation: 2012 FC 299
Ottawa, Ontario, March 8, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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PROSPER NIYONZIMA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision
of a Pre-Removal Risk Assessment Officer (Officer) dated 28 April 2011
(Decision), which refused the Applicant’s Pre-Removal Risk Assessmen (PRRA) application.
BACKROUND
[2]
The
Applicant is a 29-year-old Tutsi citizen of Burundi. He came to Canada with his aunt
and her husband in 1995 and has been a permanent resident in Canada since
October 1995. He believes that he will be targeted for death by Hutu rebels if
he is returned to Burundi.
[3]
In
1994, several of the Applicant’s extended family members were killed by Hutu
militias in Burundi. His mother escaped
the violence with him and his siblings and sent the Applicant to his aunt’s
home where he would be safe. The Applicant’s mother eventually came to see him
at this aunt’s home; she left, but intended to return again later. This return
became impossible when the Applicant’s mother, his younger brother, and sister
were killed. The Applicant says that the trauma of his experiences in Burundi still haunts
him.
[4]
After
living in Canada for
approximately six years, the Applicant got involved in criminal activities
here. In 2001, he was convicted of breaking and entering under paragraph
348(1)(b) of the Criminal Code of Canada, RSC 1985, c C-46
(Criminal Code). On 30 March 2005, he was convicted of robbery under section
344 of the Criminal Code; this conviction prompted the Immigration and Refugee
Board (IRB) to provide a report against the Applicant under subsection 44(1) of
the Act. On 16 November 2005, the IRB found the Applicant was inadmissible to Canada under
paragraph 36(1)(a) of the Act and issued a deportation order against
him.
[5]
The
Applicant asked the Immigration Appeal Division (IAD) for a stay of the
deportation order under subsection 63(3) of the Act. The IAD held a hearing on
14 December 2007. In its decision, dated 3 January 2008, the IAD stayed the
deportation order with conditions; under those conditions, the Applicant was
forbidden from possessing an offensive weapon and from committing further
criminal offences.
[6]
In
September 2010, the Applicant was convicted of possession of a firearm. This
was a breach of the conditions of the stay of deportation, so the deportation
order came into force. The CBSA informed the Applicant on 16 December 2010 that
he was entitled to apply for a PRRA; he applied 30 December 2010. The Officer
considered the PRRA application and, on 28 April 2011, concluded that there was
less than a mere possibility the Applicant faces persecution in Burundi. She also
concluded that there were no substantial grounds to believe that the Applicant
faces a risk of torture in Burundi. Finally, the Officer
concluded that there were no reasonable grounds to believe that the Applicant
faces a risk to life or a risk of cruel and unusual treatment or punishment, so
she refused the PRRA application. The Officer notified the Applicant of the Decision
by letter dated 28 April 2011.
DECISION
UNDER REVIEW
[7]
The
Decision in this case consists of the letter sent to the Applicant on 28 April
2011 (Result Letter) and the Pre-Removal Risk Assessment Form (PRRA Form) the
Officer completed.
[8]
The
Result Letter indicates that the Applicant’s PRRA was refused because
It
has been determined that you would not be at risk of persecution, subject to a
danger of torture, or face a risk to your life or a risk of cruel and unusual
treatment or punishment if returned to your country of nationality or habitual
residence.
[9]
The
PRRA Form indicates that the Officer determined that the Applicant is not a
person described under subsection 112(3) of the Act, which would preclude him
from being granted protection. The Applicant also did not fall within section
113, so the Officer evaluated the risk the he faced in Burundi under
sections 96 and 97 of the Act.
Risk the
Applicant Identified
[10]
The
Officer reviewed the circumstances surrounding the deaths of the Applicant’s
family members. She referred to his submissions in which he said that the
events he experienced in Burundi still affected him and
that he feared he would be targeted if he were returned. She also noted his
submissions that he was at risk in Burundi because he is a
survivor of war crimes without any family or other ties to that country.
[11]
The
Officer said she considered all the evidence in the PRRA application, except
the evidence the Applicant submitted to show he is established in Canada. The Officer
found he had not shown how this evidence related to the risk he faced in Burundi. She also
found that, although the Applicant has indicated he has a wife and child living
in Canada, neither of
them was subject to a removal order, so they were not part of the PRRA
application.
Assessment of Risk
[12]
The
Officer reviewed the facts surrounding the Applicant’s PRRA application. She
said she had considered his submissions, as well as the reasons the IAD gave
when it granted the stay of deportation in 2008 (IAD Reasons). Those reasons
indicate that the Applicant was granted permanent resident status along with
his aunt and her four biological children. The IAD Reasons also indicate that
he was first convicted of a criminal offence in 2001 and that subsequent
convictions formed the basis for the deportation order against him. The Officer
took note of the five-year stay granted by the IAD and his conviction in
September 2010.
[13]
The
Officer then considered whether the Applicant faced a risk under either section
96 or 97 of the Act. She noted that the tension in Burundi between
Hutus and Tutsis is longstanding. She found that the incidents the Applicant
had described were part of the violence between these groups which erupted
after President Ndadaye of Burundi – a Hutu – was elected
and then assassinated. For the details of the ethnic conflict in Burundi during the
relevant time period, the Officer relied on a 2004 report from the United
Nations High Commission on Refugees, entitled Minorities at Risk Project:
Chronology for Tutsis in Burundi.
[14]
The
Officer also noted that a country profile of Burundi, produced by
BBC News and updated on 11 December 2010 showed that a ceasefire was in place
between Tutsis and Hutus. A report from the United States Department of State also
indicated that elections, which were generally considered free and fair, were
held in 2010. The Officer also noted that there were reports of extra-judicial
killings by Burundian security forces and that there are accountability issues
with respect to security forces. Although several Non-Governmental
Organizations operated in Burundi, criticism of the
government was not generally tolerated.
[15]
The
Officer found that the documentary evidence before her indicated that there
were transfer centers in Burundi where returning refugees could receive
assistance, including food, agricultural tools, and cash grants. She also
reviewed evidence which suggested that returnees faced land disputes and that
corruption was a problem. She noted that, in 2009, the Canadian Government had
lifted a temporary suspension of removals to Burundi.
[16]
In
the Applicant’s submissions, he provided the Officer with a travel advisory
from the United States Department of State, dated 4 November 2010. The Officer
found that this advisory was directed at citizens of the United
States
and personnel at the American Embassy with whom the Applicant was not similarly
situated.
[17]
The
Officer noted that the Applicant believes his family was killed, not because
they were Tutsi, but for some other reason. She found that he had not shown
what led him to this belief and had not provided any objective evidence to
support this belief. The Officer found that it was reasonable to believe that
his aunt would be aware his family’s political activities, if any, but that the
Applicant had not provided information on this issue.
[18]
Although
the Applicant asserted that the events he witnessed in Burundi still
affected him, the Officer found that he had not provided any objective evidence
to support this assertion. The Officer said that the Applicant had invited her
to infer that there were compelling reasons not to return him to Burundi, but she did
not do so.
[19]
The
Officer also reviewed a letter the Applicant had provided from the Canadian
Centre for Victims of Torture (CCVT), which was signed by Ezat Mossallanejad (Mossallanejad),
a settlement and trauma counsellor and policy analyst at the CCVT. This letter said
that Mossallanejad had accepted the Applicant as a client for counselling after
an assessment of his experiences in Burundi. The Officer assigned
this letter little probative value because the information in the letter only
reiterated what the Applicant had told Mossallanejad. There was also no indication
of the kind of treatment the Applicant was receiving, the types of diagnostic
tests which were administered, or that any medical or clinical diagnosis had
been made.
[20]
The
Officer found that the Applicant had not provided objective evidence to prove
that the current conditions in Burundi or his past experiences
there amounted to compelling reasons he should not be returned. She also noted
that the assessment of risk in a PRRA is forward-looking and found that,
although conditions in Burundi were not ideal, they
were improving. The documentary evidence the Applicant provided to show he was
at risk did not mention him or his family directly and he had not indicated how
this evidence related to his personalized risk.
Conclusion
[21]
On
all the evidence before her, the Officer found that the Applicant did not face
a risk of persecution within the meaning of section 96 or a risk to his life or
of cruel and unusual treatment or punishment under section 97. She therefore
rejected his PRRA application.
ISSUES
[22]
The
Applicant raises the following issues in this application:
a. Whether the Officer
failed to make a compelling reasons finding under subsection 108(4);
b. Whether the
Officer unreasonably expected him to provide objective evidence to support his
PRRA;
c. Whether the
Officer’s conclusion that there were no compelling reasons under subsection
108(4) was reasonable.
STANDARD
OF REVIEW
[23]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9,
held that a standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to a particular
question before the court is well-settled by past jurisprudence, the reviewing
court may adopt that standard of review. Only where this search proves
fruitless must the reviewing court undertake a consideration of the four
factors comprising the standard of review analysis.
[24]
The first issue in this case concerns the Officer’s failure to
make a finding on the evidence adduced; as I held in Lezama v Canada
(Minister of Citizenship and Immigration) 2011 FC 986, at paragraph 22,
this kind of issue touches on the adequacy of the reasons. Recently, the
Supreme Court of Canada held, in Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board) 2011 SCC 62 at paragraph 14,
that the adequacy of reasons is not a stand-alone basis for quashing a
decision. Rather, “the reasons must be read together with the outcome and serve
the purpose of showing whether the result falls within a range of possible
outcomes.”
[25]
Justice Paul Crampton, in Echeverri v Canada (Minister of Citizenship and
Immigration) 2011 FC 390, held at paragraph 24 that the standard of review on
the applicability of subsection 108(4) is reasonableness. Justice Crampton also
addressed this question in Alharazim v Canada (Minister of Citizenship and
Immigration) 2010 FC 1044 at paragraphs 16 to 25 and concluded that the
standard of review on this issue is reasonableness. Justice Richard Boivin also
held that the applicability of subsection 108(4) is evaluated on a standard of
reasonableness in S.A. v Canada (Minister of Citizenship and Immigration) 2010 FC 344
at paragraph 22. See also Kotorri v Canada (Minister of Citizenship and
Immigration) 2005 FC 1195 at paragraphs 14 to 23. The standard of review on
the first and third issues is reasonableness.
[26]
In the pre-Dunsmuir case of Figurado v Canada (Solicitor
General) 2005 FC 347, Justice Luc Martineau held at paragraph 51 that the
standard of review applicable to a PRRA decision was reasonableness simpliciter.
Justice Yves de Montigny followed Figurado in Lai v Canada (Minister
of Citizenship and Immigration) 2007 FC 361, but noted at paragraph
55 that the standard must be adjusted according to the question being decided.
Whether the Officer ought to have required objective evidence to support his
allegations is a question of mixed fact and law which, after Dunsmuir,
is to be evaluated on the reasonableness standard (see paragraph 51). The
standard of review on the second issue is reasonableness.
[27]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph
59. Put another way, the Court should intervene only if the Decision was
unreasonable in the sense that it falls outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law.”
STATUTORY
PROVISIONS
[28]
The
following provisions of the Act are applicable in this proceeding:
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108. (1) A claim for refugee protection
shall be rejected, and a person is not a Convention refugee or a person in
need of protection, in any of the following circumstances:
[…]
(e) the reasons for which the person sought refugee protection
have ceased to exist.
(4) Paragraph (1)(e) does not apply to a person who establishes that
there are compelling reasons arising out of previous persecution, torture,
treatment or punishment for refusing to avail themselves of the protection of
the country which they left, or outside of which they remained, due to such
previous persecution, torture, treatment or punishment.
[…]
112. (1) A person in Canada, other than a
person referred to in subsection 115(1), may, in
accordance with the regulations, apply to the Minister
for protection if they are subject to a removal order that is in force or are
named in a certificate described in subsection 77(1).
[…]
(3) Refugee protection may not result from an application
for protection if the person
(a) is determined to be inadmissible on grounds of
security, violating human or international rights or organized criminality;
(b) is determined to be
inadmissible on grounds of serious criminality with respect toa conviction in
Canada punished by a term of imprisonment of at least two years or with
respect to a conviction outside Canada for an offence that, if committed in
Canada, would constitute an offence under an Act of Parliament punishable by
a maximum term of imprisonment of at least 10 years;
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108. (1) Est
rejetée la demande d’asile et le demandeur n’a pas qualité de réfugié ou de
personne à protéger dans tel des cas suivants :
[…]
e) les raisons qui lui ont fait demander l’asile
n’existent plus.
(4) L’alinéa (1)e) ne s’applique pas si le
demandeur prouve qu’il y a des raisons impérieuses, tenant à des
persécutions, à la torture ou à des traitements ou peines antérieurs, de
refuser de se réclamer de la protection du pays qu’il a quitté ou hors duquel
il est demeuré.
[…]
112. (1) La
personne se trouvant au Canada
et qui n’est pas
visée au paragraphe 115(1)
peut, conformément
aux règlements, demander
la protection au
ministre si elle est visée par une mesure de renvoi ayant pris effet ou
nommée
au certificat visé au paragraphe 77(1).
[…]
(3) L’asile ne peut
être conféré au demandeur dans les cas suivants:
a) il est
interdit de territoire pour raison de sécurité ou pour atteinte aux droits
humains ou internationaux ou criminalité organisée;
b) il est
interdit de territoire pour grande criminalité pour déclaration de
culpabilité au
Canada punie par un imprisonnement d’au moins deux ans
ou pour toute déclaration de culpabilité à l’extérieur du Canada pour une
infraction qui, commise au Canada, constituerait une infraction à une loi
fédérale punissable d’un emprisonnement maximal d’au moins dix ans;
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ARGUMENTS
The Applicant
The
Officer did not Make a Compelling Reasons Finding
[29]
In
the Decision, the Officer accepted that the events the Applicant said happened
to him were part of the violence between Hutus and Tutsis in Burundi. The Officer
also did not find that the Applicant was not credible with respect to his
account of what had happened to him. The Applicant argues that, once the
Officer accepted the truth of his account, she was bound to make a finding on
whether compelling reasons existed to grant him protection. The Officer failed
to make either a positive or negative finding on compelling reasons, which is
an error of law that requires the Decision be returned for reconsideration.
The
Officer Unreasonably Demanded Objective Evidence
[30]
The
Applicant notes that the events which caused him to suffer trauma and which give
rise to the compelling reasons he should be allowed to remain in Canada occurred
nearly twenty years ago. In the Decision, the Officer held that it was
reasonable to expect his aunt to provide information relevant to the PRRA,
which she did not. The Applicant says this holding was unreasonable because it
did not take into account evidence which showed that the Applicant’s
relationship with his aunt was difficult and communication had broken down
between them. This evidence was included in the IAD Reasons, which the Officer
had before her, so she should have considered it.
[31]
The
Applicant also says that Jimenez v Canada (Minister of
Citizenship and Immigration), [1999] FCJ No 87 and Kotorri,
above, establish
that there is no separate test for continuing psychological trauma suffered in
the past. It was therefore inappropriate for the Officer to expect objective
evidence going to the Applicant’s psychological state.
The Respondent
The Applicant
did not Provide Sufficient Evidence of Risk
[32]
To
support his PRRA, the only evidence the Applicant supplied the Officer was an
unsworn statement and a letter from the CCVT which simply recited what he had
told Mossallanejad. The Respondent says that this was an insufficient basis to
ground a positive PRRA determination and it was reasonable for the Officer to
expect more evidence of the risk the Applicant faced before she could grant him
protection.
[33]
The
Respondent says there was nothing unreasonable about the Officer’s treatment of
the evidence before her. As Justice Russel Zinn wrote in Ferguson v Canada (Minister of
Citizenship and Immigration) 2008 FC 1067 at paragraph 27,
Evidence tendered by a witness with a personal interest in the
matter may also be examined for its weight before considering its credibility
because typically this sort of evidence requires corroboration if it is to have
probative value. If there is no corroboration, then it may be unnecessary to
assess its credibility as its weight will not meet the legal burden of proving
the fact on the balance of probabilities. 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. That, in my view, is the assessment the officer made in this case.
[34]
The
Respondent also says that Ferguson teaches that a third party statement,
like the one that the Applicant provided from the CCVT, is to be given no more
weight than a statement by the Applicant (see paragraph 31). Since the
Officer’s treatment of the evidence in this case was reasonable, the Court
should not interfere with the Decision.
No
Obligation to Consider Compelling Circumstances
[35]
The
Respondent says that Nadjat v Canada (Minister of Citizenship and Immigration)
2006 FC 302, Cardenas v Canada (Minister of
Citizenship and Immigration) 2010 FC 537 and B.R. v Canada (Minister
of Citizenship and Immigration) 2006 FC 269 establish that, in order for
the compelling circumstances exception under subsection 108(4) to come into
play, there must be a determination that the Applicant was either a Convention refugee
or a person in need of protection. The Applicant in this case has never been
found to be a Convention refugee or a person in need of protection, so the
exception is not applicable in this case and it was not an error for the
Officer not to consider it.
[36]
The
Applicant’s arguments are based on a misunderstanding of the compelling reasons
exception. The Respondent notes that, in addition to a prior Convention refugee
or person in need of protection finding, the compelling circumstances exception
requires a “cessation finding;” the Officer must find that the reasons for
granting protection have ceased to exist. See Guzman v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1545 (FC) at paragraphs
6 and 7, and Brovina v Canada (Minister of
Citizenship and Immigration) 2004 FC 635. There was no such finding in
this case, so the compelling circumstances exception is not engaged.
The Officer Found There Were no Compelling
Circumstances
[37]
Even
if the conditions precedent to the application of subsection 108(4) of the Act
existed in this case, the Officer specifically found there were no compelling
circumstances here. The Officer found that
The [Applicant] has not provided
objective evidence to support that the conditions in Burundi or the [Applicant’s] “previous
persecution, torture, treatment or punishment” are such that they
constitute compelling reasons not to be returned to Burundi. [Italics in original]
[38]
Yamba
v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 457 (FCA)
establishes that an Applicant must meet the evidentiary burden of establishing
that compelling reasons exist. The Applicant did not provide objective evidence
which established that the compelling reasons he asserted actually existed.
This Court has held in the past that the lack of objective evidence is
sufficient to defeat a claim that compelling circumstances exist (see Oprysk
v Canada (Minister of
Citizenship and Immigration) 2008 FC 326 at paragraphs 30 and 31). The
Officer’s conclusion on compelling circumstances was reasonable, so the Court
should not interfere.
The
Applicant’s Reply
[39]
In
his reply, the Applicant conceded that the Officer did not need to refer to
compelling reasons but argues that, once he raised the issue of compelling
reasons, the Officer was bound to make a determination on this issue. By
raising this issue in the Decision, the Officer created a legitimate expectation
in the Applicant that she would deal with the issue. It was therefore a denial
of the Applicant’s right to procedural fairness for the Officer to act contrary
to the legitimate expectation she created. The Applicant abandoned this
argument at the oral hearing.
[40]
Although
the Respondent has cited case law showing that subsection 108(4) was not
applicable in this case, the Applicant says it was up to the Officer to point
out the law in the Decision. The Applicant also says that the Officer found
that conditions in Burundi had improved since he left, which means that
the requirement that the conditions which led to the refugee determination have
ceased was met in this case.
[41]
Finally,
the Applicant takes issue with the Respondent’s use of Ferguson, above. The
Applicant says that the passage the Respondent has pointed to speaks to the
necessity of assessing the credibility of an unsworn statement. The Officer
accepted the credibility of the letter from the CCVT, so Ferguson does not
apply in this case.
ANALYSIS
[42]
At
the oral hearing of this matter on 12 January 2012, the Applicant took a
significantly different approach to this application than he took in his
written submissions. Essentially, he dropped his “reasonable expectation” argument
and withdrew the concession contained in his Reply that the “Respondent is
correct that the PRRA officer did not need to refer to compelling reasons.”
Counsel’s explanation was that he had come to realize he had a better argument
as a result of reading the Respondent’s arguments and authorities. This causes
something of a problem because the Applicant was granted leave on the basis of
the arguments contained in his written submissions.
[43]
The
Respondent, however, did not object to this change of position, and provided a
response on the Applicant’s new points at the hearing. This being the case, I
am willing to consider the new issues raised by the Applicant.
[44]
The
Applicant now says that the Officer was obliged to consider compelling reasons,
considered them, and got it wrong.
[45]
As
the Federal Court of Appeal pointed out Yamba, above, at paragraph 6
In summary, in every case in which the Refugee Division concludes
that a claimant has suffered past persecution, but there has been a change of
country conditions under paragraph 2(2)(e), the Refugee Division is obligated
under subsection 2(3) to consider whether the evidence presented establishes
that there are “compelling reasons” as contemplated by that subsection. This
obligation arises whether or not the claimant expressly invokes subsection
2(3). That being said the evidentiary burden remains on the claimant to adduce
the evidence necessary to establish that he or she is entitled to the benefit
of that subsection.
[46]
In
the present case, the Applicant did not invoke compelling reasons but, as the Decision
makes clear, the Officer picked up what she thought was an “inference” in the
Applicant’s submissions because he had indicated “that he considers the trauma
that he witnessed in Burundi at such a young age, to
have had a lingering impact.”
[47]
The
Applicant also says that the record shows that he meets the two conditions set
out in subsection 108(4) in that the Officer found there has been previous
persecution, torture, treatment or punishment, and there has been a change of
conditions.
[48]
The
Applicant concedes there is no explicit findings of past persecution, but he
says it is implicit in words used by the Officer:
The incidents described by the [Applicant]
were part of the violence that erupted after the election of President Melchior
Ndadaye.
[49]
The
Applicant says that the incidents in question were so horrendous that they are
obviously persecution and the Officer accepts this because there are no adverse
credibility findings.
[50]
In
my view, the words referred to by the Applicant cannot be read as an implicit
finding of past persecution. They appear in a part of the Decision where the Officer
is acknowledging what the Applicant has said and its connection to the country
documentation. The officer is, in my view, simply explaining the allegations of
risk put forward by the Applicant as part of a discussion as to why he thinks
the Applicant is not at risk. Later in the analysis, the Officer makes it clear
that this information is considered as an aspect of future risk. No compelling
reasons analysis is undertaken because, as the Officer explains, “objective
evidence to support such a finding has not been submitted,” and
The [Applicant] has not provided
objective evidence to support that the conditions in Burundi, or the [Applicant’s]
“previous persecution, torture, treatment or punishment” are such that (sic)
they constitute compelling reasons not to be returned to Burundi.” (emphasis added)
[51]
In
my view, then, the Officer obviously considers whether a compelling reasons
analysis is required, but decides that there is insufficient objective evidence
to support a finding of “previous persecution, torture, treatment or
punishment” that would give rise to compelling reasons.
[52]
It
seems to me, then, that the Officer does not make a finding, implicit or
otherwise, that there has been past persecution against the Applicant. The
Applicant’s new argument before me is that such a finding was made, so
that subsection 108(4) was triggered. However, the Officer did not accept the
Applicant’s claim of past persecution. Because the Applicant asserts that such
a finding was made, and because he has now abandoned much of his previous
approach as set out in his written materials, I do not really have full argument
from him that the Officer’s finding of no previous persecution was
unreasonable. He suggests in his written materials that the Officer accepted
his story of what his family had suffered, but this does not, in my view,
equate with an unreasonable finding of no past persecution of the Applicant. As
Yamba, above, makes clear, the burden remains with the Applicant to
adduce the evidence necessary to establish that he is entitled to the benefit
of the exemption now embodied in subsection 108(4). The Officer reasonably
concluded he had not done this.
[53]
I
have also considered this issue from another perspective. It may be that the
Officer is saying that whatever happened to him, there is no evidence of its
continuing affect on the Applicant such that he should not be returned to Burundi.
[54]
At
page 7 of the Decision, before the passage I have quoted above, the Officer
says that
The [Applicant] has indicated that he
considers the trauma that he witnessed in Burundi at such a young age, to have had a
lingering impact. The inference is that there are compelling reasons to
consider that he not be returned to Burundi.
I find that objective evidence to support such a finding has not been
submitted. [emphasis added]
When she talks about ‘objective evidence’
in this passage, the Officer is referring to objective evidence establishing
the continuing effect of the events in Burundi. This
passage leads into the next paragraph, where the Officer discusses the CCVT
letter (evidence of the continuing effect), and then leads to the conclusion
that these events do not constitute compelling reasons not to return the
Applicant to Burundi.
[55]
This
reveals that the Officer considers whether compelling reasons exist, but
concludes that there is not enough evidence to conclude that they do. If the
Applicant is correct and there can be an implicit finding that there was
persecution in the past which engages the duty to consider compelling reasons,
then it follows that there can be an implicit finding that compelling reasons
do not exist. I do not think he can reasonably say that one implicit finding is
acceptable, but the other is not.
[56]
That
said, I do not think the Applicant has dealt with the requirement in the
jurisprudence that there be a clear finding of refugee status. S.A.,
above, M.C.L.
v Canada (Minister of Citizenship and Immigration) 2010 FC 826, J.N.J.
v Canada (Minister of Public Safety and Emergency Preparedness) 2010 FC
1088, Kozyreva v Canada (Minister of Citizenship and Immigration) 2010
FC 1013, Cardenas, above, and Liu v Canada (Minister of Citizenship
and Immigration) 2010 FC 819, all show that an officer must make an
explicit finding that the claimant was a convention refugee to engage
subsection 108(4). The wording of Justice John O’Keefe at paragraph 41 of J.N.J.,
above, is typical:
This requires a clear statement conferring the prior existence
of refugee status on the claimant, together with an acknowledgement that
the person is no longer a refugee because circumstances have changed.
The Applicant
has not shown that even an implicit finding of persecution meets the threshold,
and I do not see any reason to depart from the existing jurisprudence.
[57]
What we are left with is a situation where either an implicit
finding of persecution is acceptable and engages the duty to consider
compelling reasons, and the Officer has also implicitly found that compelling
reasons do not exist or the Officer did not make a clear finding that the
Applicant was a refugee in the past, so she was not under a duty to consider
whether compelling circumstances exist. Either way, the application cannot
succeed.
[58]
Consequently,
I think that the Officer’s conclusion that a compelling reasons analysis did
not arise on the facts of this case has to stand, and I cannot find a
reviewable error for any of the other grounds alleged by the Applicant.
Certification
[59]
The
Applicant proposes the following question for certification:
Is signing a declaration in a PRRA
application that the information contained in a statement are truthful,
complete and correct equivalent to swearing to the truth of the contents of the
statement?
[60]
This
issue is not material to my reasons and hence would not be determinative of any
appeal (see Varela v Canada (Minister of
Citizenship and Immigration) 2009 FCA 145 at paragraph 28). The Officer
neither explicitly nor implicitly made any distinction between signing a
declaration in a PRRA application and swearing to the truth of the contents of
a statement. Also, there is no indication that the lack of signature or oath
affected the weighing of the evidence conducted by the Officer as part of his
Decision.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James
Russell”
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