Date: 20090409
Docket: IMM-4387-08
Citation: 2009 FC 361
Ottawa, Ontario, April 9, 2009
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
SELDUZ,
MUSTAFA
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by the Pre-Removal Risk
Assessment (PRRA) officer dated August 12, 2008, concluding that the applicant
would not be at risk of persecution if returned to Turkey, his country
of citizenship.
FACTS
[2]
The
applicant arrived in Canada on July 27, 2006, and made a claim for
refugee protection on the basis that he had been persecuted by the Turkish
police and security forces in Turkey because of his Kurdish ethnicity and Alevi
faith. His refugee claim was denied by the Refugee Protection Division of the
Immigration and Refugee Board (the Board) on October 30, 2007 on the basis that
the applicant was not credible. His application for judicial review to this
Court was denied leave on April 18, 2008. He filed a PRRA application which was
dismissed.
Decision under review
[3]
The
PRRA officer stated at page 2 of the PRRA decision, that some of the evidence
presented by the applicant pre-dated the Board’s decision in the applicant’s
refugee claim and therefore would not be considered, as no explanation had been
provided as to why it had not been presented to the Board. He did not
specifically identify the evidence excluded.
[4]
The
PRRA officer found that the applicant’s submissions did not evince any risk to
the applicant that had not already been considered by the Board in the
applicant’s refugee claim (PRRA decision, page 3):
The risks identified by the applicant in
his PRRA application are the same as those which were heard and assessed by the
RPD. The purpose of this assessment is not to reargue the facts that were
before the RPD. The decision of the RPD is to be considered as final with
respect to the issue of protection under sections 96 and 97, subject only to
the possibility that new evidence shows that the applicant would be exposed to
a new, different or additional risk that could not have been contemplated at
the time of the RPD decision.
[5]
The
PRRA officer found at page 3 of her decision that the new evidence that had
been presented by the applicant did not establish a personalized risk to the
applicant:
The applicant’s submissions consist of
news articles and reports printed from internet sources; these documents
describe the general country conditions in Turkey, and the applicant has not linked this
evidence to his personalized risk. The applicant has not provided objective
documentary evidence to support that his profile in Turkey is similar to those persons that would
currently be at risk of harm or persecution in that country.
[6]
The
PRRA officer concluded that there was “less than a mere possibility that the
applicant faces persecution should he return to Turkey” and denied
the applicant’s PRRA application.
[7]
The
applicant was scheduled to be deported to the United States of
America
on October 16, 2008. On October 15, 2008, Mr. Justice Phelan granted a stay
until the disposition of the present application because of the serious issues
listed below.
ISSUES
[8]
The
applicant raises the following issues in his application:
1.
The PRRA
officer failed to consider relevant new evidence; or
2.
If the
PRRA officer was aware of the evidence in question, but concluded it was not
new evidence, he erred in failing to explain why he did not consider it.
STANDARD OF REVIEW
[9]
The
Court has held that the appropriate standard of review for a PRRA officer’s
findings of fact and on issues of mixed fact and law is reasonableness: see Erdogu
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 407, [2008] F.C.J. No. 546 (QL); Elezi
v. Canada, 2007 FC 40, 310 F.T.R. 59. In Ramanathan v. Canada (Minister
of Citizenship and Immigration), 2008 FC 843, 170 A.C.W.S. (3d) 140 at
paragraph 18, I held that where an applicant raises issues as to whether a PRRA
officer had proper regard to all the evidence when reaching a decision, the
appropriate standard of review is reasonableness.
[10]
Accordingly,
the Court will review
the PRRA officer’s findings with an eye to "the existence of
justification, transparency and intelligibility within the decision-making
process” and “whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law.” (Dunsmuir v.
New
Brunswick, 2008 SCC 9,
372 N.R. 1
at
paragraph 47). However, where the PRRA officer fails to provide adequate
reasons to explain why relevant, important and probative new evidence was not
considered, then the court will consider that an error of law reviewed on the
correctness standard.
ANALYSIS
Issue No. 1: Did the
PRRA officer fail to consider relevant “new” evidence?
[11]
There
are three pieces of “new” evidence that the applicant submits supported his
claim of personalized risk and were not considered by the PRRA officer: an
arrest warrant issued against the applicant on October 16, 2007; an earlier
arrest warrant issued against the applicant on April 19, 1999; and a medical
report dated July 4, 2008. The PRRA officer’s reasons do not mention any of
these documents. The applicant submits that these documents support the
applicant’s claim that he faces a specific, personalized risk of persecution if
returned to Turkey.
[12]
Of
the three documents, only the medical report post-dates the RPD’s October 30,
2007 negative decision on the applicant’s refugee claim. In the PRRA
submissions, the applicant submitted that the 2007 arrest warrant was new
evidence because it post-dated the applicant’s refugee hearing. The
respondent submits that as the arrest warranted pre-dates the date of the decision,
it is not new evidence. The PRRA officer stated in his reasons (p. 5 of the
Application Record):
I do not give consideration to documents
that pre-date the RPD decision; these documents would have been available to be
provided to the panel and no explanation was provided as to why they could not
have been presented.
The respondent submits that this statement
provides sufficient explanation as to why the PRRA officer did not consider the
2007 warrant.
[13]
Section
113(a) of the Immigration and Refugee Protection Act, S.C. 2001, c.27
provides:
|
113. Consideration of an
application for protection shall be as follows:
(a) an
applicant whose claim to refugee protection has been rejected may present
only new evidence that arose after the rejection or was not reasonably
available, or that the applicant could not reasonably have been expected
in the circumstances to have presented, at the time of the rejection
(underlining added)
|
113. Il est disposé de la demande comme il suit :
a) le demandeur d’asile débouté ne
peut présenter que des éléments de preuve survenus depuis le rejet ou qui
n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il
n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les
ait présentés au moment du rejet
|
|
|
|
[14]
It
is clear to the Court that the October 2007 document from Turkey could not
reasonably have been received by the applicant before the Board decision dated
October 30, 2007. Therefore, it was not reasonably open to the PRRA officer to
conclude that the 2007 arrest warrant could have been submitted to the Board
before it rendered its decision. The applicant submits in this application that
he did not actually receive the warrant till December 2007, but this
explanation was not before the PRRA officer.
[15]
However,
the so-called “new” evidence also included a 1999 arrest warrant, essentially
identical in content to the 2007 warrant that was not provided to the RPD.
With respect to this document, the applicant did provide an explanation as to
why it was not submitted to the Board. The applicant stated in his PRRA
submissions (p. 30 of the Application Record):
With respect to the 1999 arrest warrant,
the Applicant obviously acknowledges that this is not new evidence, in the
sense that it existed prior to the RPD hearing. However, the applicant submits
that it should be taken into account in determining the PRRA, as it is highly
relevant to the risk that he faces. It was not before the Refugee Protection
Division, and therefore, the PRRA provides the only opportunity for Canadian
authorities to consider the risk factors that it raises. Furthermore, the
document was not before the RPD through no fault of his own. He obtained the
document as soon as he could, but when it arrived in Canada, he was advised by his former counsel
and his relatives that he should not use the documents. Deferring to their
judgment, the document was not submitted to the Board. In these
circumstances, it would be unfair to not consider this highly probative piece
of evidence. (Emphasis added).
[16]
The
1992 arrest warrant runs counter to the PRRA officer’s conclusion that “the
applicant is not recognizable as a member of these targeted groups” and that
the applicant had adduced no evidence to support his claim “that his profile in
Turkey is similar to those persons that would currently be at risk of harm or
persecution in that country.” (p. 6, Application Record)
[17]
If
the PRRA officer found the applicant’s explanation as to why the 1999 warrant
was not provided to the Board inadequate, he did not say so. His statement
that the applicant had offered no explanation as to why evidence pre-dating
Board’s decision was not provided suggests that he was not aware that the
applicant had offered an explanation for this document. As I will discuss
under the second issue, below, if the officer was aware that an explanation had
been provided and found the explanation inadequate, his reasons should have
reflected this finding, particularly in light of the probative nature of the
document.
The Medical Report
[18]
The
medical report was alleged “new” evidence that corroborates the applicant’s
story about torture wounds, and post-dated the Board’s decision. The report
details the applicant’s injuries and concludes that these injuries were
compatible with the applicant’s claims that he was previously tortured in Turkey. No medical
report had been provided to the RPD, which found the applicant’s allegations
regarding his treatment in Turkey were not credible.
[19]
The
applicant provided an explanation as to why no medical report had been made
available to the Board. The applicant stated in his PRRA submissions:
With respect to the medical report, the
applicant submits that he has no medical reports from Turkey because he was always afraid of being
asked how the injuries had occurred. He was terrified of suffering further
repercussions if a report about the cause of his injuries, and his allegations
of torture, reached the police. In view of this explanation, it is submitted
that no negative inference should be drawn from the fact that the applicant is
unable to produce contemporaneous medical reports corroborating his injuries.
Not being familiar with the Canadian refugee process, Mustafa was unaware that
he could obtain a medical report in Canada
documenting his injuries.
[20]
It
may have been reasonably open to the PRRA officer to conclude that the applicant
had sufficient time after arriving in Canada to obtain a medical
report before his RPD hearing, or that medical report was not probative, or
that considering it would amount to re-adjudicating the applicant’s refugee
claim, on which the RPD had already rendered a negative decision. However, the
PRRA officer did not make any such finding. Rather, he stated at p. 6:
…the applicant’s submissions consist of
news articles and reports printed from internet sources; these documents
describe the general country conditions in Turkey, and the applicant has not linked this
evidence to his personalized risk.
This statement suggests to show that the
PRRA officer was unaware that this medical report post-dating the RPD hearing
was part of the applicant’s PRRA submissions. The PRRA officer is certainly
not required to mention every piece of evidence in his reasons, but his
characterization of all the new evidence as generalized and his statement that
the applicant provided no link to personalized risk suggests he was not aware
of the medical report.
Issue
2: If the PRRA officer considered the evidence, but concluded it was not new
evidence, did he provide adequate reasons?
[21]
As
I have found above, if the PRRA officer considered the 1992 arrest warrant and
the medical report and concluded that they were not new evidence, he did not state
this in his reasons. The applicant explained why the 1992 warrant was not made
available to the Board. The medical report post-dated the decision. There was
no similar report before the Board and the applicant did provide an explanation
as to why no medical report had previously been provided. If the PRRA officer
found these explanations inadequate, he did not state so or explain why.
[22]
In
Raza v. MCI, 2007 FCA 385, 370 N.R. 344, the Federal Court of Appeal
stated at paragraph 13:
¶13 As I read paragraph 113(a), it is based on the premise of s. 113
of IRPA is that “a negative refugee determination by the RPD must be
respected by the PRRA officer, unless there is new evidence of facts that might
have affected the outcome of the RPD hearing if the evidence had been presented
to the RPD. Paragraph 113(a) asks a number of questions, some expressly
and some by necessary implication, about the proposed new evidence. I summarize
those questions as follows:
1. Credibility: Is the evidence credible,
considering its source and the circumstances in which it came into existence?
If not, the evidence need not be considered.
2. Relevance: Is the evidence relevant to the PRRA
application, in the sense that it is capable of proving or disproving a fact
that is relevant to the claim for protection? If not, the evidence need not be
considered.
3. Newness: Is the evidence new in the sense that it
is capable of:
(a) proving the current state of affairs in the country of
removal or an event that occurred or a circumstance that arose after the
hearing in the RPD, or
(b) proving a fact that was unknown to the refugee claimant
at the time of the RPD hearing, or
(c) contradicting a finding of fact by the RPD (including a
credibility finding)?
If not, the evidence need not be considered.
4. Materiality: Is the evidence material, in the
sense that the refugee claim probably would have succeeded if the evidence had
been made available to the RPD? If not, the evidence need not be considered.
5. Express statutory conditions:
(a) If the evidence is capable of proving only an
event that occurred or circumstances that arose prior to the RPD hearing, then
has the applicant established either that the evidence was not reasonably
available to him or her for presentation at the RPD hearing, or that he or she
could not reasonably have been expected in the circumstances to have presented
the evidence at the RPD hearing? If not, the evidence need not be considered.
(b) If the evidence is capable of proving an event
that occurred or circumstances that arose after the RPD hearing, then the
evidence must be considered (unless it is rejected because it is not credible,
not relevant, not new or not material).
¶14 The first four
questions, relating to credibility, relevance, newness and materiality, are
necessarily implied from the purpose of paragraph 113(a) within the
statutory scheme of the IRPA relating to refugee claims and pre removal risk
assessments. The remaining questions are asked expressly by paragraph 113(a).
[23]
The
arrest warrants and the medical report were not before the Board. There are no reasons
from the PRRA officer why these documents were not considered new evidence or
why the applicant could not reasonably have been expected to provide them at
the RPD hearing. There is also nothing in the decision to indicate that the
officer considered any other factors set out by the FCA in Raza, supra,
in assessing whether the 1992 arrest warrant and the medical report were
precluded by s. 113. Neither document was before the RPD, and both documents
potentially contradict the RPD’s findings of fact as to the applicant’s
credibility, and additionally, potentially substantiate the applicant’s
allegations of risk if returned to Turkey.
[24]
Given
the probative nature of the two arrest warrants in particular, if the PRRA
officer concluded that the applicant’s explanation for failing to produce them
before the Board was inadequate, she should have stated this in her reasons. Her
failure to make any mention of these documents is an error of law.
[25]
For
these reasons, this application is allowed and the matter is referred back to
another PRRA officer for redetermination in accordance with these Reasons.
[26]
Both
parties advised the Court that they do not consider that this case raises a
serious question which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This
application is allowed, the PPRA Officer’s decision dated August 12, 2008 is
set aside and the matter is referred to another PRRA Officer for
redetermination in accordance with these Reasons.
“Michael
A. Kelen”
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