Date:
20130506
Docket:
IMM-6082-12
Citation:
2013 FC 471
Ottawa, Ontario,
May 6, 2013
PRESENT: The
Honourable Mr. Justice Mosley
BETWEEN:
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OLUWAJUWON ROMEO MONDAY
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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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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
Mr.
Monday, a citizen of Nigeria, received a negative Pre-Removal Risk Assessment.
He seeks judicial review of that decision under s 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA]. He contends that the
PRRA officer unreasonably disregarded his documentary evidence, made a veiled
credibility finding and failed to conduct an interview.
[2]
For
the reasons that follow the application is denied.
BACKGROUND:
[3]
The
applicant was born in Nigeria in 1974. He arrived in Canada in August 24, 2007
with a false passport and claimed refugee protection on the ground of
persecution by reason of his Christian religion. This was denied on June 29,
2010 for lack of credibility. An application for leave for judicial review of
that decision was dismissed. As was an application for an exemption from the
visa requirements to allow him to apply for permanent residence from within Canada on humanitarian and compassionate grounds.
[4]
On
June 28, 2011, Mr. Monday applied for a Pre-removal Risk Assessment (PRRA). He
alleged that his sister and brother had been arrested by the Nigerian State
Security Service (SSS) in Lagos as suspected associates of the terrorist group Members
for the Emancipation of the Niger Delta (“MEND”), which had carried out a
bombing in Abuja on the day of the independence celebration, October 1, 2010.
[5]
Mr.
Monday states that he was informed on October 18, 2011 that both of his
siblings had been murdered by the state authorities on May 18, 2011. It was
alleged that they had been trying to escape while being transferred from SSS
custody to police custody. Death registration certificates from Lagos City Hall were submitted in support of Mr. Monday’s PRRA application. Mr. Monday
noted that he no longer knew the whereabouts of any of his family members. He
had been told that the SSS was trying to find them and capture them.
[6]
A
family friend, Mr. Jerry Olawale Martins, provided an affidavit saying that he
saw the two Monday siblings being arrested and beaten with gun butts, and that
the Monday family members have now all fled. A lawyer provided a letter and an
affidavit affirming Mr. Monday’s claims. In the letter the lawyer explains that
he has been retained on behalf of Mr. Monday by an uncle whose name he cannot
give due to security implications.
DECISION UNDER
REVIEW:
[7]
The
PRRA officer accepted that Mr. Monday had provided new evidence of risk arising
since the rejection of his asylum request. In analyzing the evidence, the
officer noted that photocopies of the death certificates had been submitted,
not originals. They gave the date of death as May 18, 2011 and the date of
registration of the two deaths as July2011. The cause of death and the person
providing the information are not recorded. The address of both deceased is
given as that of Mr. Monday’s younger brother in Lagos, although Mr. Monday had
stated that they were only visiting that address.
[8]
The
officer concluded that the documents did not permit him to determine that the
Monday siblings were tortured or murdered. He gave them no weight as evidence
that the Monday family was targeted due to suspected MEND links.
[9]
In
considering the letter and affidavit from the lawyer, the officer noted that
they were also photocopies with illegible seals and lacked details and dates. The
information in the affidavit is similar but not identical to that which is in
the letter. The officer concluded that the documents were unreliable and gave
them no weight. A letter from a neighbour which stated that the two siblings
were living at the Lagos address was also discounted.
[10]
The
officer found that the documentation provided did not establish that the
deceased Monday siblings were members of suspected members of MEND, nor that
they were murdered. No personalized risk to the applicant was established due
to targeting for membership or perceived membership in MEND. Additional
documentation about the difficult situation and violence in Nigeria did not demonstrate a link to his particular situation. No interview was conducted.
ISSUES:
[11]
The
issues raised by the parties are as follows:
- Was the rejection of the
documents provided by the applicant unreasonable?
- Did the PRRA officer make a
veiled credibility finding which should have required him to conduct an interview?
ANALYSIS:
Standard of Review;
[12]
With
respect to the first issue, rejection of the applicant’s documentary evidence,
as stated in Martinez Giron v
Canada (MCI),
2013 FC 7 at paras 11-13 the applicable standard of review is that of
reasonableness. The role of the court is therefore not to substitute any
decision it might have made on the evidence but rather to determine 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, [2008] 1 S.C.R. 190 at para 47.
[13]
Regarding
the second issue, questions of procedural fairness are typically determined on
the correctness standard. However, it has been held by the Court that the
question of whether an interview should have been conducted in the application
of ss 113(b) of the IRPA does not necessarily give rise to procedural
fairness considerations. As stated by Justice O'Keefe in Ullah v Canada (MCI),
2011 FC 221 at para 21, in deciding whether to hold a hearing, the PRRA officer
applies the facts to the factors outlined in s 167 of the Immigration and
Refugee Protection Regulations, SOR/2002-227.
This is a determination of mixed fact and law reviewable on the standard of
reasonableness. A failure on the part of the officer to turn his or her mind to
the issue of whether to hold an oral hearing would give rise to concerns of
procedural fairness calling for the correctness standard.
[14]
In
the present case, the officer specifically indicated that he had turned his
mind to the section 167 factors and the issue of whether an oral hearing was
required. I therefore conclude that the standard of review for both the first
issue and the second issue is reasonableness.
Was the
rejection of the documents provided by the applicant unreasonable?
[15]
The
applicant contends that the officer ought to have viewed each of the documents
as part of the whole and considered the story that they told when put
together. The officer was too critical of the documents and focused on information
which they did not contain rather than the information that was there. It was
unfair to criticize the applicant for submitting photocopies considering the
difficulty in obtaining originals and, indeed, originals were not requested.
[16]
The
respondent argues that the applicant had the burden of proof and did not establish
that he was at risk. The officer reasonably had a number of concerns with the
death certificates which were submitted, the lawyer’s letter and affidavit, and
the affidavit from the neighbour. It was reasonable for him to find that the
documentation did not establish that the applicant’s siblings were suspected of
being members of MEND nor that the family was being targeted by the authorities
on that basis.
[17]
In
my view, it is clear from the decision that the officer considered all of the
evidence. The weighing of it was within his domain and his assessment of its
probative value must be accorded deference. His concerns about the authenticity
of the documents were reasonable in the circumstances. The officer acknowledged
the problem of violence and corruption in Nigeria but there was no evidence
linking that generalized situation to the applicant’s personal situation.
Did the PRRA
officer make a veiled credibility finding which should have required him to
conduct an interview?
[18]
The
risks raised by the applicant in his PRRA application were unrelated to those
alleged in his refugee claim and had not been assessed in a hearing, the
applicant submits. While the officer framed his discussion in terms of
insufficient evidence to prove the applicant’s claims, the applicant asserts
that in reality he was making an adverse credibility finding on which the
outcome turned, and doing so without the benefit of an oral hearing. The court
must determine whether a credibility finding was made, explicitly or
implicitly, and if so, must determine if the issue of credibility was central
to the decision: Prieto
v Canada (MCI),
2010 FC 253 at para 30; Adeoye v Canada (MCI), 2012 FC 680 at paras 7-8.
[19]
However,
the officer did not reject the applicant’s story and the applicant’s
credibility was not in issue because he had no personal knowledge of the events
asserted in support of the claim. There was nothing to connect the applicant to
the reason given for the arrest of his siblings, the Abuja bombing. Assuming
that all of his statements were true did not support an inference that he
shared his siblings’ risk. There was no direct evidence against him, only vague
suggestions from the lawyer. The officer rejected the applicant’s documents and
found that this left insufficient evidence to prove the story. He also
specifically considered the criteria of s 167 before deciding that no oral
hearing was necessary.
[20]
Overall,
the decision satisfies the standard of reasonableness. No questions were
proposed for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is dismissed. No
question is certified.
“Richard G. Mosley”
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