Date:
20120810
Dockets: IMM-8252-11
IMM-535-12
IMM-536-12
Citation:
2012 FC 981
Ottawa, Ontario, August 10, 2012
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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Docket: IMM-8252-11
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DOUDOU SANE
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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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AND BETWEEN:
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Docket: IMM-535-12
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DOUDOU SANE
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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AND BETWEEN:
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Docket: IMM-536-12
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DOUDOU SANE
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
The
applicant seeks judicial review of a decision of Senior Immigration Officer Spigelski
(PRRA Officer), dated August 22, 2011, refusing the applicant’s Pre-Removal
Risk Assessment (PRRA) application (IMM-8252-11) pursuant to section 112 of the
Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA).
[2]
The
applicant also seeks judicial review of the decisions of Canada Border Services
Agency (CBSA) Enforcement Officer Desmarais (Enforcement Officer), dated
January 11, 2012 (IMM-535-12) and January 16, 2012 (IMM-536-12), refusing the
applicant’s two requests to defer his removal to Senegal scheduled for January
28, 2012 pending the Court’s disposition of his judicial review applications.
[3]
For
the reasons that follow the application is dismissed.
Facts
[4]
The
applicant, Doudou Sane, is a citizen of Senegal.
[5]
The
applicant lived in the United States for eight years but returned to Dakar, Senegal in February 2005. In 2006 the applicant and his friend traveled to Casamance, Senegal to settle the applicant’s inheritance of a property left by his father. The
applicant and his friend were allegedly targeted by both rebel and government
forces. They were abducted by the military, brought to a camp and detained for
two days. The applicant states that he escaped the camp with the help of a
soldier. Upon returning to Dakar the applicant and his friend received
threatening telephone calls. The applicant contends that his friend is now
missing.
[6]
The
applicant fled Senegal and arrived in Canada on March 24, 2007 on a visitor’s
visa. He filed a refugee claim on May 31, 2007. The Refugee Protection
Division [RPD] rejected his claim on June 1, 2010, finding the applicant lacked
credibility as he hesitated and his testimony contained many contradictions. The
applicant did not seek judicial review of the denial of his refugee claim.
[7]
The
applicant’s mother received a convocation notice, or what appears to be a
summons for the applicant to appear, from the Senegalese police on October 6,
2010.
[8]
On
March 9, 2011, the applicant applied for a PRRA which automatically stayed his
removal (Immigration and Refugee Protection Regulations, SOR-2001-227,
section 232). A negative decision was rendered on his PRRA application on
August 22, 2011 and delivered to him on November 9, 2011. Accordingly, the
statutory stay of removal lapsed and the applicant’s removal to Senegal was scheduled for January 28, 2012.
[9]
The
applicant made requests for a deferral of his removal to Senegal pending the outcome of his judicial review applications on January 10, 2012 and on January
13, 2012. The deferral requests were refused by the Enforcement Officer on January
11, 2012 and January 16, 2012 respectively.
[10]
On
January 18, 2012, the applicant sought judicial review of the rejection of his
PRRA application and the denial of the deferrals. The applicant then filed a
motion with this Court for a stay of removal pending the Court’s determination
of his application for leave and judicial review. On January 24, 2012, the
Court granted the motion to stay the applicant’s removal to Senegal scheduled for January 28, 2012.
[11]
The
application to review the decision to defer removal is now moot insofar as the
applicant received what he sought in his request for deferral, as his stay
motions were granted by this Court. Determining the reasonableness of the Enforcement
Officer’s decision would have no practical effect on the applicant’s rights. A
stay of removal was granted, the applicant remains in Canada, and is no longer scheduled to be removed to Senegal. The applications in respect of the
refusal to defer (IMM-535-12 and IMM-536-12) are therefore dismissed.
Decision Under
Review
[12]
The
PRRA Officer reviewed the applicant’s allegation and RPD’s decision. He noted
that the allegations put forward in the PRRA application were the same as those
presented before the RPD. The PRRA Officer noted that the applicant submitted
new objective evidence; the police convocation notice and several articles on
the treatment of prisoners in Senegal, in support of these allegations. The PRRA
Officer noted that the police convocation notice neither stated the reason for
the convocation nor made mention of the alleged risk the applicant invoked. The
document did not provide, in the Officer’s view, proof of the risk alleged by
the applicant and was thus not considered in the PRRA application. As for the
other nine documents on general country conditions, the PRRA Officer was of the
view that they failed to provide proof of the applicant’s alleged risks and
concluded that the applicant had failed to provide sufficient evidence to
demonstrate a personalized risk if removed to Senegal.
[13]
Accordingly,
the application was refused.
Standard of
Review and Issues
[14]
The
first issue raised by this application is whether the PRRA Officer’s decision
was reasonable: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190;
Tindale v Canada (Minister of Citizenship and Immigration), 2012 FC 237
at para 5.
Analysis
[15]
The
applicant argues that the PRRA Officer erred in excluding the police
convocation notice and failed to acknowledge that technical rules of evidence
do not apply in the context of PRRA applications. In my opinion, however, the
applicant is essentially asking the Court to re-weigh the evidence on the issue
and to reach a conclusion that favours him. This is not the role of the Court
on judicial review: Duran v Canada (Minister of Citizenship and Immigration),
2010 FC 1271 at para 41.
[16]
The
PRRA Officer did not commit reviewable errors in analyzing and weighing the
relevant new evidence nor in reaching the general conclusion that the applicant
failed to demonstrate a personalized risk if removed to Senegal. The convocation notice requests that the applicant attend the Senegal “Direction générale
de la sureté nationale” without providing further detail. In support of his
PRRA application the applicant had the obligation of adducing new evidence
pursuant to paragraph 113(a) of the IRPA, but failed to do so. It
was open to the PRRA Officer to refuse to consider the convocation notice from
the police as it did not state the reason for the convocation nor the risk
invoked by the applicant.
[17]
Furthermore,
as the respondent argues, the articles before the PRRA Officer pertaining to
the treatment of prisoners in Senegal do not demonstrate that the risk alleged
by the applicant was materially different from the time of the RPD decision to
the time of the PRRA application. Finally, the PRRA Officer reasonably
determined, on the basis of objective documentary evidence, that there was no
reason to believe that a person with the applicant’s profile would face a risk
of persecution beyond a mere possibility in Senegal. These findings were open
to the Officer based on the evidence before him.
[18]
A
PRRA application by a failed refugee applicant is not an appeal or
reconsideration of the decision of the RPD. While it may require consideration
of some or all of the same factual and legal issues as a claim for refugee
protection, as I observed in Tindale v Canada (Minister of Citizenship and
Immigration), 2012 FC 237 at para 6, “[t]he principle that a PRRA
application is not a forum in which to re-litigate a failed refugee claim is
well-settled in the jurisprudence of this Court”.
[19]
I
am also persuaded by the respondent’s argument, namely that documentary
evidence demonstrating that the human rights situation in a country is
problematic does not necessarily mean there is a risk to a given individual: Jarada
v Canada (Minister of Citizenship and Immigration), 2005 CF 409 at para 28.
As the respondent indicates, the profile of those likely to be at risk is a
factual finding in respect of which a PRRA officer is entitled to significant
deference.
[20]
The
applicant further contends that the PRRA Officer applied the incorrect standard
of proof in his assessment of the evidence, and in particular, of the notice of
convocation. The Officer rejected the document as it “… did not give any
indication of the alleged risk invoked by the applicant” and did “not provide
proof of the risk allegation” and “[would] not be considered in the present
application.”
[21]
The
PRRA Officer had to be correct in his approach to the evidence and the standard
of proof. The applicant contends that in requiring “proof” the Officer set the
bar too high, in that, use of language of “requiring proof” is in error, as it
implies a degree of certainty or evidentiary value beyond that of being
probative on a balance of probabilities.
[22]
I
agree with the applicant that the language does not reflect the precision
associated with a studied discussion of the standard of proof in a court of
law. However, it was open to the Officer to conclude that the document was of
no probative value whatsoever, as he did. In my view, the reasons indicate
that the notice of convocation was rejected as being of no probative value, or
of having such little value that it could not be considered proof of any of the
facts or risks which the applicant sought to infer from the document. In sum,
reading the passage in context and in light of the deficiencies noted by the
PRRA Officer, I do not find this to be a misstatement of the standard of proof,
but rather it is a statement of the sufficiency or adequacy of the document to
establish material facts in issue.
[23]
The
application in respect of the refusal of the applicant’s Pre-Removal Risk
Assessment (PRRA) application (IMM-8252-11) is therefore dismissed.
[24]
These
reasons dispose of all three applications for judicial review in issue:
IMM-8252-11, IMM-535-12 and IMM-536-12.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
The
applications for judicial review in IMM-535-12 and IMM-536-12 are dismissed and
moot.
2.
The
application for judicial review in IMM-8252-11 is dismissed.
3.
There
is no question for certification.
"Donald J.
Rennie"
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