Date: 20101026
Docket: IMM-818-09
Citation: 2010 FC 1050
Ottawa, Ontario, October 26,
2010
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
LAURENT
KAMEDA KADJO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application by Laurent Kameda Kadjo seeking to set aside an unfavourable
Pre-Removal Risk Assessment (PRRA) decision made on December 23, 2008.
I.
Background
[2]
Mr.
Kadjo arrived in Canada from Cote d’Ivoire in July 2004. He made
a claim for refugee protection based on allegations of politically motivated
persecution at the hands of both government and rebel forces.
[3]
The
Refugee Protection Division of the Immigration and Refugee Board (IRB) rejected
Mr. Kadjo’s refugee claim in a decision rendered on November 2, 2005. An
application for leave for judicial review of that decision was denied by this
Court on March 22, 2006.
[4]
The
IRB did not believe Mr. Kadjo and identified a number of problems with his
evidence. Specifically, it noted the following:
·
a
major discrepancy between Mr. Kadjo’s estimate of the numbers of persons killed
during political protests in Cote d’Ivoire in 2004 and the estimates contained in
documentary reports (Mr. Kadjo’s estimate of 11,000 killed as compared to a few
hundred hurt or killed according to the documentary evidence);
·
the
failure by Mr. Kadjo to adduce corroborative evidence of the alleged deaths of
his father and brother;
·
the
failure by Mr. Kadjo to corroborate his alleged radio critique of the
government or to make this allegation in his Personal Information Form (PIF) or
during his immigration interview;
·
the
different versions provided by Mr. Kadjo about being attacked and tortured by
rebel soldiers;
·
the
absence of any physical evidence of torture.
[5]
The
IRB concluded that Mr. Kadjo had invented his allegations of persecution and
rejected his claim on that basis.
[6]
In
support of the PRRA application, Mr. Kadjo relied upon the same allegations of
risk that had been rejected by the IRB. Much of what was submitted to the PRRA
Officer (Officer) involved the recitation in affidavit form of evidence that was
supposedly misinterpreted or “misremembered” by the IRB or which was, according
Mr. Kadjo, open to a different and more favourable interpretation.
[7]
The
only entirely new evidence put to the Officer came in the form of letters from
a friend and a niece in Cote d’Ivoire which stated that the
authorities continued to seek out Mr. Kadjo because of his opposition activities
in 2004. The Officer dealt with these submissions in the following way:
It is important to remember that the PRRA
process is not a level of review of RPD decisions. The applicant exercised his
right of appeal before the Federal Court, and the RPD panel’s decision was
upheld.
A letter allegedly written by his niece,
dated July 12, 2006, indicated that the police were looking for him (Mr Kadjo)
in order to arrest and torture him. It also describes the situation in Côte d’Ivoire. I lend little probative value
to this document. The fact that she says, [TRANSLATION] “I want to warn you
from a credible source that you are actively being sought here in the country
[...] to be put in prison and tortured” (sic) is insufficient to restore the
applicant’s credibility. She says that this credible source is Damas Oponou
from the economic police. The RPD did not believe that Mr Kadjo had testified
on the radio because he did not mention it in his initial refugee claim. This
self-serving evidence is insufficient to restore his credibility. Mr Kadjo said
that he left Côte
d’Ivoire in July
2004. This letter is dated September 12, 2006, over a year after the RPD’s
decision. The applicant did not explain why he was unable to obtain this type
of information earlier. He claimed that he had trouble contacting his family
members, but the writer of the letter does not mention how long ago the
credible source mentioned a warrant or a reason for his arrest. Although this
is new evidence within the meaning of paragraph 113(a), I am not
satisfied that the information the letter contains is enough to overturn the
RPD’s conclusions.
The same goes for a letter dated July 6,
2006. The writer, Kouadio Kouaho, also states that Mr Kadjo is wanted by
the police for denouncing the government in 2004. My conclusion regarding the
probative value of this letter is the same as for his niece’s letter. This is
self-serving evidence and is insufficient to overturn the RPD’s judgment that
his story was made up. I also note that the originals of these documents were
not filed.
Lastly, I considered the affidavits filed
with the application. These documents repeat the substance of the account
presented to the RPD, along with clarifications and criticisms of the panel.
This is not new evidence.
[footnotes removed]
II. Issues
[8]
Did
the Officer commit a reviewable error in assessing the “new evidence” tendered
on behalf of Mr. Kadjo under ss. 113(a) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA)?
[9]
Did
the Officer breach the duty of fairness by not acceding to Mr. Kadjo’s request
for an oral hearing under s. 167 of Immigration and Refugee Protection
Regulations, SOR/2002-227 (Regulations)?
III. Analysis
[10]
It
was argued on behalf of Mr. Kadjo that the Officer erred in law when she determined
that two tendered affidavits did not constitute “new evidence” under ss. 113(a)
of the IRPA. It was specifically contended that the Officer was obligated to
consider this evidence insofar as it addressed the credibility findings and
inconsistencies identified by the IRB or which otherwise clarified his evidence
to the IRB.
[11]
Mr.
Kadjo’s argument reflects a fundamental misunderstanding about the scope of ss.
113(a) of the IRPA. It is not correct that a PRRA officer is entitled to re-evaluate
the evidence that was or could have been presented to the IRB.
[12]
I
accept Ms. Jones-Prus’ point that Justice Karen Sharlow left the door open in Raza
v. Canada (MCI), 2007 FCA 385, [2007] F.C.A. No. 1632, for the
consideration by a PRRA officer of new, credible and relevant evidence which
contradicts a material finding of fact made by the IRB. I do not, however,
read Raza as saying that this opens up the PRRA process to a
re-examination of evidence that was already before the IRB or that could have
been put to the IRB but was not. A PRRA is not an appeal from the IRB and it
does not afford an opportunity to argue that the IRB misinterpreted the
evidence before it. Justice Sharlow made it clear in Raza that the
issue before her was whether a PRRA applicant “may present evidence to the
Officer that was not before the Refugee Protection Division.” She also held
that a PRRA application is not a reconsideration of a negative refugee
determination (see para. 12). After-the-fact rationalizations about the
evidence tendered to the IRB cannot be considered by a PRRA officer: see Latifi
v. Canada (MCI), 2006 FC 1388, [2006] F.C. No. 1738.
[13]
Much
of Mr. Kadjo’s submissions to the Officer involved the re-argument of his
refugee case. For instance, he argued that the IRB decision was patently
unreasonable and that his explanations to the IRB should not have been
rejected. He also told the Officer that the IRB had made a number of errors in
the assessment of the evidence. One example of this complaint is found in the
following passage from Mr. Kadjo’s counsel’s submission to the Officer:
Similarly, as noted, the panel objected
to the applicant’s testimony that “11,000 people” had been killed in this
massacre. The applicant’s testimony was not consistent with the documentary
evidence: the U.S. DOS Report notes that “over 100” people were killed; Amnesty
International cites sources estimating “between 350 and 500.” From this
discrepancy, the panel concludes that the applicant’s testimony is a “grotesque
exaggeration which calls his credibility into question” (“une exaggeration
grotesque mettant en doute la crédibilité du demandeur”).
The very fact that his numbers are so far
off, it is submitted, suggests an error rather than an intention to mislead the
Board. The panel might well have asked itself what the applicant could possibly
have hoped to gain by a “grotesque exaggeration” so easily disproved. The only
reasonable interpretation of his evidence, it is submitted, is that Mr Kadjo, a
man of little formal education, was mistaken in his figures. It is submitted
that this does not reasonably lead to a negative credibility inference, and
that the Board’s conclusion to the contrary is patently unreasonable.
[14]
It
will be a rare case when a PRRA officer can be expected to sit in review of factual
findings made by the IRB, and it will be rarer still where the IRB’s decision
has been upheld on judicial review : see Quiroga v. Canada (MCI), 2006
FC 1306, 153 A.C.W.S. (3d) 192 at paras. 12 and 13. There may be a few
situations were a material factual finding made by the IRB can later be proven
wrong with incontrovertible, new and previously unavailable evidence but that
is not the situation here. I can identify no reviewable error in the Officer’s
treatment of this evidence and, indeed, the decision accurately recites her
limited authority to look behind the factual and credibility findings made by
the IRB.
Fairness
[15]
Mr.
Kadjo also complains that the Officer’s failure to accede to his request for an
oral hearing breached the duty of fairness. He contends that his credibility
was squarely in issue on the PRRA application and therefore he ought to have
been given the opportunity to redeem himself and to address the new evidence he
had produced.
[16]
I
do not agree that an oral hearing is required in a situation like this one
where a PRRA applicant’s credibility has been found lacking by the IRB and
where the PRRA officer is only recognizing that finding in the context of the
same risk narrative. The PRRA officer is not making an independent assessment
of credibility and, indeed, in the absence of new evidence, the PRRA officer is
not entitled to do so.
[17]
It
was argued on behalf of Mr. Kadjo that because the letters from his friend and
niece were accepted by the Officer as new evidence he was therefore entitled to
a hearing to dispel the Officer’s reservations about the reliability of this
evidence. I do not agree.
[18]
The
Officer considered these letters and found them both to have little probative
value. The Officer gave reasons for why she discounted this evidence. The
affidavit from Ms. Shen which was submitted to the Officer as new evidence is
nothing more than a hearsay recitation of Mr. Kadjo’s supposed testimony to the
IRB including one matter which the IRB had allegedly failed to ask him about.
Mr. Kadjo’s affidavit is a similar critique of the IRB’s decision, different
only to the extent that it exhibits a letter from his niece and a letter from a
friend. His excuse for not obtaining these letters earlier is that “it was very
difficult for me to contact anyone in the south”.
[19]
Apart
from restating some of Mr. Kadjo’s history in Cote d’Ivoire, the only
new information contained in these letters indicated that since his departure
from the country, the authorities continued to seek out Mr. Kadjo for the
stated purpose of arrest and torture. . Mr. Kadjo was in no position to speak
to the reliability of this evidence because he was not privy to the information
it contained. In the context of a PRRA application, an oral hearing is only
required where the conditions of s. 167 are met and only where “there is
evidence that raises a serious issue of the applicant’s credibility”.
This must be evidence that the applicant is in a meaningful position to address,
which will rarely be the case where the new information comes from a third
party and involves matters that cannot be directly attested to by the
applicant. In this context, the failure to conduct an oral hearing did not
breach a duty of fairness nor was the Officer required to explain why an oral
hearing was not convened.
IV. Conclusion
[20]
For
the foregoing reasons, this application for judicial review is dismissed.
[21]
Neither
party proposed a certified question and no issue of general importance arises
on this record.
JUDGMENT
THIS COURT ADJUDGES that application for judicial review is dismissed.
“ R. L. Barnes ”
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