Docket:
IMM-10834-12
Citation: 2013 FC 792
Ottawa, Ontario, July 16, 2013
PRESENT: the Honourable Mr. Justice Harrington
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BETWEEN:
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YOUNDOM SYLVESTER LUANJE
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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 ORDER AND ORDER
[1]
Were Mr. Luanje returned to Cameroon, would he be at serious risk of persecution because of:
a.
his religious belief;
b.
his political opinion; or
c.
his sexual orientation?
[2]
In his Personal Information Form, he only listed
the first, his religious belief.
[3]
At his refugee hearing, he added the second, his
political opinion. His application was dismissed.
[4]
He then applied for a pre-removal risk
assessment. This time, he submitted a new basis of risk of persecution, his
sexual orientation. He is gay. The assessment was negative. This is the
judicial review of that decision.
[5]
Counsel submitted that if one reads between the
lines, it is obvious that the PRRA officer did not believe a word of Mr.
Luanje’s story. If so, there should have been an oral hearing. One of the
prescribed factors under s. 167 of the Immigration and Refugee Protection
Regulations leading to a hearing is whether there is evidence that raises a
serious issue as to the applicant’s credibility. There was no such hearing and,
therefore, the decision should be set aside.
[6]
Furthermore, no analysis was made of the
material submitted, which should have been done in the circumstances, including
the fact that Mr. Luanje was self-represented.
[7]
One may speculate that the officer did not
believe a word of what Mr. Luanje wrote. He came to Canada on false papers and
was found at his refugee hearing not to be credible. However, credibility is
not at issue. The law relating to pre-removal risk assessments is very clear.
Section 113(a) of the Immigration and Refugee Protection Act, as it was,
before recent amendments, provides:
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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;
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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;
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[8]
Section 161(2) of the Regulations requires the
applicant to identify the new evidence and indicate how it relates to him.
[9]
In this case, we are not talking about new
evidence, but rather a new risk, at least new in the sense that it had not been
presented to the Canadian authorities before.
[10]
The pre-removal risk analysis is not a second
refugee determination process. It deals with changes that may have occurred
between the decision on the refugee claim and the removal, so that changed
conditions and circumstances may be assessed. As stated by Madam Justice Snider
in Cupid v Canada (Minister of Citizenship and Immigration), 2007 FC
176, [2007] FCJ No 244 (QL), at paragraph 4:
[…] Canada has taken steps to ensure that a claimant is provided with a process whereby changed
conditions and circumstances may be assessed. It follows that, if country
conditions or the personal situation of the claimant have not changed since the
date of the RPD decision, a finding of the RPD on the issue of state protection
– as a final, binding decision of a quasi-judicial process – should continue to
apply to the claimant. In other words, a claimant who has been rejected as a
refugee claimant bears the onus of demonstrating that country conditions or
personal circumstances have changed since the RPD decision such that the
claimant, who was held not to be at risk by the RPD, is now at risk. If the
applicant for a PRRA fails to meet that burden, the PRRA application will (and
should) fail.
See also Kaybaki
v Canada (Minister of Citizenship and Immigration), 2004 FC 32, [2004] FCJ
No 27 (QL), at paragraph 11.
[11]
In his submissions, Mr. Luanje claims that he
has been openly gay for some time. Accepting, as he says, that he was openly
gay at least a year before his refugee board hearing, he has offered no reason
whatsoever why he could not have advanced a claim based on sexual orientation
at that time. By his own statements, the situation in Cameroon has remained stable, albeit dismal. All that can be said is that he found out
after the refugee hearing that a friend of his had been attacked. However, as
he says: “My experience as a gay in Cameroon was totally recessive because of
fear for persecution and torture.”
[12]
Madam Justice Sharlow, speaking for the Federal
Court of Appeal, analyzed s. 113 of the Act in Raza v Canada (Minister of
Citizenship and Immigration), 2007 FCA 385, [2007] FCJ No 1632 (QL), 289
DLR (4th) 675. One issue is that of relevance. She asked at paragraph 13: “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.” The evidence presented is not
relevant to the claim for refugee protection.
[13]
She also asked if the evidence was new in the
sense of proving a state of affairs, or an event or a circumstance that arose
after the refugee hearing, or proving a fact that was unknown to the refugee
claimant at the time of the hearing. If not, the evidence need not be
considered. Again, the PPRA officer was correct in not considering the
evidence.
[14]
The Court is asked to show mercy, given that Mr.
Luanje was self-represented. However, there is not one law for those who are
represented by counsel and another for those who are not. As Lord Atkin stated
in Evans v Bartlam, [1937] AC 473, [1937] 2 All ER 646, at page 479:
The fact is that
there is not and never has been a presumption that every one knows the law.
There is the rule that ignorance of the law does not excuse, a maxim of very
different scope and application.
[15]
I referred to that quote in Agri v Canada (Citizenship and Immigration), 2007 FC 349, [2007] FCJ No 487 (QL), where I
stated at paragraph 13:
The documents issued
by the Board make it perfectly clear that a party is entitled to be represented
by counsel if he or she so chooses. One has no right to expect, by not
retaining counsel, that the Board will act both as a decision-maker and as
advocate for the applicant.
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