Date: 20081008
Docket: IMM-549-08
Citation: 2008 FC 1137
OTTAWA, Ontario, October 8, 2008
PRESENT: The Honourable Louis S. Tannenbaum
BETWEEN:
TIGIST
DAMTE
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 the decision of a Pre-removal Risk
Assessment (PRRA) Officer, dated December 3, 2007, which found that there were
not substantial grounds to believe that the applicant would be subjected to
persecution if returned to Ethiopia.
[2]
Ms.
Damte left Ethiopia to study in Germany in 1990.
During a brief return to her home country to visit her ailing father in 1998,
she claims that she was accused of being involved with an opposition political
party and detained. After her release, she returned to Germany in October
1998.
[3]
After
completing her studies in January 2001, Ms. Damte claimed asylum in the United
States,
which was denied. She came to Canada on November 2, 2004 and claimed refugee
protection at the port of entry. On January 24, 2006, the Refugee Protection
Division (RPD) found that she was neither a Convention refugee nor a person in
need of protection. Leave for judicial review of that decision was denied.
[4]
The
PRRA Officer noted that applicants whose cases have been assessed by the RPD
are only entitled to an assessment of new evidence which arose after that
hearing or which was not reasonably available at the time of the hearing. It
was further stated that Ms. Damte relied on largely the same risks and
allegations she invoked in her refugee claim, namely that she faces persecution
as a member of the political opposition party EPRP.
[5]
The
PRRA Officer then surveyed recent political history in Ethiopia on the basis
of the country conditions documentation. The Officer noted that the government
had arrested political opposition leaders and held demonstrators without charge
after violent antigovernment protests in 2005. It was noted that, while
evidence provided by the applicant indicated that opposition members generally
were at risk in Ethiopia, the incidents put forward in support of these
claims were cases of prominent political figures and those with significant
links to them.
[6]
Accepting
that the applicant had attended demonstrations in Canada against the current
government of Ethiopia, the Officer
considered that they were well-attended and found that there was insufficient
evidence to show how she would personally have come to the attention of the
Ethiopian authorities and as a result be at risk on her return to that
country. The Officer also found that, given the applicant’s 17 year absence
from Ethiopia, there was
insufficient evidence that her support of a political opposition party would be
noticed by the Ethiopian authorities. On the totality of the evidence, the
Officer rejected the PRRA application.
[7]
The
applicant raises two issues for the Court’s review:
a. Did the PRRA
Officer err in the legal test for determining whether the applicant is a
Convention refugee?
b. Did the
Officer make and rely on errors of fact?
[8]
On
reviewing the Officer’s decision, the Court may rely on previous case law to
determine the standard of review, where the appropriate standard in the
circumstances is well established: Dunsmuir v. New
Brunswick,
2008 SCC 9. As such, the question of the appropriate legal test will be
reviewed against a correctness standard; factual findings will be set aside
only if unreasonable.
[9]
I
would begin by noting that the applicant’s first issue is poorly stated. It is
not for the PRRA Officer to determine whether the applicant is a Convention
refugee. Ms. Damte had a full hearing of her case before the RPD, which made a
negative determination on that question. The PRRA is not an appeal of that
decision.
[10]
That
said, however, the question remains open whether the language used by the
Officer, including questioning whether the applicant would be of ‘particular
interest’ or be somehow ‘distinguishable’, implies that an incorrect standard was
applied. The applicant asserts that she need only show that there would be
‘more than a mere possibility’ of risk of persecution on return.
[11]
The
respondent asserts that the use of words such as ‘would’ and ‘will’ in the
reasons of a PRRA Officer do not necessarily indicate that an incorrect test
was applied: Sivagurunathan v. Canada (Minister of Citizenship and
Immigration), 2005 FC 432. In stating that there was ‘less than a mere
possibility’ of persecution in concluding that the PRRA application should be
dismissed, the Officer showed that she was aware of and applied the correct
test.
[12]
In
assessing the reasons as a whole, it appears clear to me that the PRRA Officer
did not apply the wrong test. The Officer found from the documentary evidence
that only prominent opposition members faced persecution and that there was no
evidence that Ms. Damte fit that category. In assessing the level of risk to
her based on her political activities during her time outside Ethiopia, the Officer
was clearly looking to see if there was evidence to show that she would
personally be known to authorities there as a sufficiently notable opposition
party member to target. To prove personal risk, Ms. Damte needed to show that
she would personally come to the attention of authorities. This was not an
incorrect assessment, and the decision will not be vacated on this point.
[13]
Second,
the applicant submits that the Officer made errors of fact, which caused the
decision to be unreasonable. She points to the Officer’s conclusion from the
one large anti-government protest in Ethiopia that all demonstrations
she attended had many participants. She alleges that this error caused the
Officer to ignore the evidence that the Ethiopian embassy staff closely monitor
such demonstrations and that she would thereby be likely to come to their
attention.
[14]
The
respondent counters that the PRRA Officer’s reasons show that she carefully
considered all of the evidence and came to a reasonable conclusion thereon.
She notes that the documentary evidence does not include incidents of the
Ethiopian government monitoring anti-government demonstrations.
[15]
The
applicant’s reading of the sentence on which this contention is based is only
one of several. After noting that the applicant had provided evidence that she
had attended a number of demonstrations and vigils in Toronto and Ottawa, the Officer
concluded that the applicant had failed to show what “distinguished her from
the thousands of other supporters at these different demonstrations”. The
applicant appears to believe that the Officer thereby meant that thousands of
people were at each event. This finding is, however, reasonably susceptible to
the reading that thousands of supporters attended all demonstrations and vigils
combined. Given that it is noted that 1500 people attended the demonstration
in Ottawa, it is not
unreasonable for the Officer to conclude that 500 or so people might have
attended the other two events.
[16]
According
to the Supreme Court’s guidance in Dunsmuir, the Court is to consider
whether a decision under review falls within the spectrum of decisions to which
the tribunal could reasonably have come on the evidence. If it does, then the
Court should not intervene. On the evidence provided by the applicant and in
the country conditions documentation, I cannot see that the PRRA Officer’s
decision was unreasonable and it will stand.
[17]
Accordingly,
this application for judicial review is dismissed.
[18]
Counsel
for the applicant has requested that the following question be certified :
Does s. 113(a) of IRPA prevent an officer
deciding a Pre-Removal Risk Assessment application from considering documents
that contain only country conditions information, if these documents were
previously submitted to the Refugee Protection Division at the time of the
applicant’s refugee hearing?
[19]
While
counsel for the respondent did not agree that the question should be certified,
she nevertheless has agreed to the wording of same if I should decide to
certify. The argument against certification is that the answer to the question
has already been given by the Federal Court of Appeal in Raza v. M.C.I.,
2007 F.C.A. 385.
[20]
I
agree that the decision of the Federal Court of Appeal in Raza, above,
deals exhaustively with section 113(a) of IPRA and, accordingly, there is no
need to certify the proposed question.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that the application for
judicial review is dismissed. No questions are certified.
"Louis S. Tannenbaum"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-549-08
STYLE OF CAUSE: TIGIST
DAMTE v. M.C.I. ET AL
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: September
4, 2008
REASONS FOR JUDGMENT
AND JUDGMENT: TANNENBAUM D.J.
DATED: October
8, 2008
APPEARANCES:
|
Hilary Evans
Cameron
|
FOR THE APPLICANT
|
|
Ada Mok
|
FOR THE RESPONDENTS
|
SOLICITORS
OF RECORD:
|
Hilary Evans
Cameron
Downtown Legal
Services
|
FOR THE APPLICANT
|
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENTS
|
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