Date:
20130117
Docket:
IMM-5821-12
Citation:
2013 FC 43
Ottawa, Ontario,
January 17, 2013
PRESENT: The
Honourable Mr. Justice Near
BETWEEN:
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RAOUL NDAGIJIMANA
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Applicant seeks judicial review of a negative Pre-Removal Risk Assessment
(PRRA) rendered by a senior immigration officer (“the Officer”) on May 10,
2012.
[2]
For
the reasons that follow, the application for judicial review is dismissed.
I. Background
[3]
The
Applicant is a citizen of Burundi, who arrived in Canada in October 2006 and
made an unsuccessful claim for refugee protection. His PRRA application, based
on entirely new grounds from those claimed in his refugee proceeding, was
received on May 5, 2011.
[4]
In
his PRRA, the Applicant claimed a well-founded fear of persecution or of cruel
and unusual treatment or punishment were he to be returned to Burundi by virtue of his involvement with the Movement of Solidarity and Democracy (MSD), an
opposition political party in Burundi. The PRRA officer accepted as new
evidence all of the documents submitted by the Applicant, including a copy of
his MSD membership card, a letter from the diaspora section of the MSD party,
receipts documenting his financial contributions to the party between 2009 and
the date of application, and documents relating to country conditions in
Burundi.
[5]
The
Officer found that, while the documentary evidence established that MSD members
had been subject to persecution in Burundi in the past, the Applicant had not
sufficiently established that he was similarly situated to such individuals.
Specifically, the Officer found that the Applicant provided insufficient
evidence to demonstrate that he would be perceived to be an MSD member, or that
he would be of interest to the authorities in Burundi.
II. Issues
[6]
The
issues raised by the Applicant can be articulated as follows:
A. Whether
the Officer erred in failing to hold a hearing; and
B. Whether
the Officer properly applied section 96 of the Immigration and Refugee
Protection Act, SC 2001, c 27 (IRPA).
III. Standard of Review
[7]
An
officer’s decision with respect to whether to hold a hearing for a PRRA is a matter
of discretion for which considerable deference is owed (Matano v Canada
(Minister of Citizenship and Immigration), 2010 FC 1290, [2010] FCJ No 1659
at para 10; Andrade v Canada (Minister of Citizenship and Immigration),
2010 FC 1074, [2010] FCJ No 1348 at para 21). However, the fairness of the
process as a whole is to be assessed on the standard of correctness (Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009]
SCJ No 12 at para 43; Matano, above, at para 11).
[8]
Similarly,
whether the Officer applied the correct legal test is a question of law,
equally reviewable on the standard of correctness (Khosa, above, at para
44; Nagaratnam v Canada Minister of Citizenship and Immigration), 2010
FC 204, [2010] FCJ No 240 at para 17). The Officer’s application of the test,
however, is a mixed question of fact and law that is reviewable on the standard
of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] SCJ No 9;
Nagaratnam, above, at para 14). As the Supreme Court stated in Dunsmuir,
above, reasonableness is concerned both with the existence of justification,
transparency, and intelligibility in the decision-making process and with
whether the decision falls within the range of possible, acceptable outcomes
which are defensible in respect of the facts and law (para 47).
IV. Analysis
A. Procedural
Fairness
[9]
The
Applicant relies on paragraph 113(b) of IRPA to argue that he ought to have had
the opportunity to address the Officer’s concerns with respect to his
credibility at an oral hearing. He points to the following factors, listed in
section 167 of the Immigration and Refugee Protection Regulations,
SOR/2002-227, to determine whether a hearing should be held in PRRA matters:
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Hearing
— prescribed factors
167. For the purpose of
determining whether a hearing is required under paragraph 113(b) of the Act,
the factors are the following:
(a)
whether there is evidence that raises a serious issue of the applicant's
credibility and is related to the factors set out in sections 96 and 97 of
the Act;
(b)
whether the evidence is central to the decision with respect to the
application for protection; and
(c)
whether the evidence, if accepted, would justify allowing the application for
protection.
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Facteurs
pour la tenue d’une audience
167. Pour l’application
de l’alinéa 113b) de la Loi, les facteurs ci-après servent à décider si la
tenue d’une audience est requise :
a) l’existence
d’éléments de preuve relatifs aux éléments mentionnés aux articles 96 et 97
de la Loi qui soulèvent une question importante en ce qui concerne la
crédibilité du demandeur;
b) l’importance de
ces éléments de preuve pour la prise de la décision relative à la demande de
protection;
c) la question de
savoir si ces éléments de preuve, à supposer qu’ils soient admis,
justifieraient que soit accordée la protection.
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[10]
I
am unable to accept the Applicant’s characterization of the Officer’s
decision. While there is no evidence that the Officer directly considered
these criteria, I am not convinced that the Officer decided on the basis of
credibility. Rather, his determination was grounded in his observation that
there was insufficient evidence to support the claim. It is incumbent upon the
Applicant to submit evidence to support his claim, and the Officer was entitled
to accord little probative value to the evidence submitted. The letter from
the MSD, for example, was given little weight because it lacked specificity – a
justifiable and intelligible reason for so doing. The non-engagement of the
factors in section 167 of the Regulations leads me to determine that there was
no breach of procedural fairness on the facts of this case.
B. Section
96 Analysis
[11]
The
Applicant posits that the Officer improperly applied the test set out in
section 96 of IRPA by requiring him to demonstrate that he faced personalized
risk. I am unable to accept this argument. While the Applicant is correct in
pointing out that, under section 96, an Applicant need only demonstrate that he
is a member of a particular group and that, as a member of that group, there is
a serious possibility that he would face a risk of persecution, the Officer in
this case was not satisfied that all members of the MSD formed a particular
group that would face a serious possibility of risk of persecution. Rather, it
is clear that the Officer considered that only members of the MSD with some
raised profile might fall within a particular group that might face such a
risk. It is clear from the material that the Applicant provided no evidence in
this regard, and as such, the Officer reasonably concluded that the Applicant
would not face more than a mere possibility of persecution. Thus, the Officer
came to his conclusion on the basis of his assessment of the evidence, an
exercise that is well within his expertise, and that I find reasonable on the
facts of this case.
V. Conclusion
[12]
The
Officer reasonably exercised his discretion not to grant an oral hearing and
properly and reasonably applied section 96 of IRPA.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
dismissed.
“ D. G. Near ”
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