Docket: IMM-3698-15
Citation:
2016 FC 156
[ENGLISH TRANSLATION]
Toronto, Ontario, February 8, 2016
PRESENT: The Honourable Mr.
Justice Diner
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BETWEEN:
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FERDINAND
GATEGETSE
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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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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
The applicant, Ferdinand Gategetse, is applying
for judicial review, pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 [the Act], of a preremoval risk
assessment [PRRA] conducted by a Senior Immigration Officer. The officer
determined that the applicant would not be subject to a risk of persecution, a
danger of torture, a risk to his life or the risk that he may be subjected to
cruel and unusual punishment if he were returned to Burundi, his country of
origin. The decision is dated July 14, 2015.
II.
Facts
[2]
The applicant is 67 years old and a citizen of
Burundi. His wife is deceased, but he has two daughters in Europe, one daughter
in Canada and one daughter in Burundi. He says he is HIV positive and Tutsi.
[3]
On July 10, 2013, the applicant left Burundi to
attend an international conference in the United States on a visa. He arrived
in Canada on July 26, 2013, and applied for refugee protection that day. In
that application, he claimed that he feared persecution because he had disputed
a government decision forcing him to retire early. At that time, the applicant
did not claim to fear persecution because of his ethnicity or HIVpositive
status.
[4]
In a decision dated May 12, 2014, the Refugee
Protection Division [RPD] rejected his application, finding that it was not
credible. The application for leave to seek judicial review for that decision
was rejected on October 31, 2014.
[5]
The applicant also applied for permanent
residence on humanitarian and compassionate grounds on August 5, 2014, but has
not received a response to date.
[6]
After his application for leave to seek judicial
review was rejected, a removal date was set for January 20, 2015. The applicant
fled to the United States but was arrested, brought back to Canada, and placed
in custody on March 26, 2015.
[7]
A new removal date was set for May 2, 2015, but
the flight was cancelled following an application for administrative deferral.
On May 15, 2015, the applicant submitted a PRRA application. That application,
which is the subject of this decision, was rejected on July 13, 2015. The
applicant is still in custody.
III.
Decision
[8]
In his PRRA application, the applicant made
three allegations: (1) that he is HIV positive and would be the victim of
discrimination in Burundi as a result; (2) that he fears the Burundi
authorities, who are looking for him because of his legal runins with the
government, his political opinions and his Tutsi ethnicity; and (3) that these
risks are exacerbated by the recent deterioration of the political situation in
Burundi. To support those allegations, the applicant submitted documents
describing the overall situation in Burundi.
[9]
In the decision, the officer noted firstly that,
as part of a PRRA, under section 113(a) of the Act, an applicant may present
only new evidence that had not been submitted to the RPD for the application
for refugee protection. Noting that the applicant had already substantiated the
risk he would face as a result of the dispute of his forced retirement before
the RPD and had submitted neither new developments nor evidence on that risk,
the officer concluded that he could not consider the additional allegations.
[10]
Moreover, the officer found that the allegation
concerning the risk of persecution because of his HIVpositive status could not
be considered because (1) the applicant did not explain why he had not reported
that risk to the RPD; and (2) he had no proof of his medical condition.
[11]
The officer acknowledged that the current
conditions in Burundi had considerably deteriorated since the application for
refugee protection and constituted a new risk that should be taken into
consideration. However, the officer observed that the applicant had provided
little evidence demonstrating that the Burundi government had denied him
services or that he had participated in the political campaign against the
party in power. The applicant also provided little evidence describing his
origins or belonging to a particular ethnic group.
[12]
As a result, the officer determined that the
applicant had not established, pursuant to the requirements in section 96 of
the Act, that he would be targeted because of his ethnicity or political
opinions. Therefore, his application had to be examined under section 97 of the
Act, as a person in need of protection.
[13]
On that point, the officer noted that Burundi
has a long history of civil unrest and that, since April 26, 2015, the
political situation there had become very unstable: a failed coup on May 13,
2015; the flight of the vice president following death threats; a campaign of
fear and intimidation by the Imbonerakure, a youth chapter of armed militants,
against the opposition groups; and the tens of thousands of Burundi citizens
seeking safety who have been displaced to neighbouring countries.
[14]
However, the officer observed that it has been
reported that the individuals targeted by the conflict were those participating
in political affairs and in opposition to the government in power, and that the
applicant had not submitted sufficient evidence to indicate that his
circumstances corresponded with one of those two categories.
[15]
In addition to that, one of the applicant’s
adult daughters currently lives in Burundi, and the applicant has not
demonstrated that his daughter or other family members had received threats
because of their ethnicity, their opposition to the government in power, or
their relationship to the applicant. Moreover, he did not submit sufficient
evidence to convince the officer that he had been forced to leave Burundi because
of the current conditions there.
[16]
Lastly, the officer examined two travel
advisories issued by the Government of Canada for Burundi:
I acknowledge the travel advisory currently
in effect for Burundi (www.travel.gc.ca). In addition to that, the Government
of Canada imposes a temporary suspension of removals (TSR) in countries where
catastrophic events are occurring causing significant collapse of the State.
Despite the advisory, the Government of Canada has not issued a temporary
suspension of removals for Burundi since the political crisis began in April
2015. I give more weight to that fact.
[17]
For all of these reasons, the officer concluded
that the applicant had not discharged his burden according to law, and rejected
the application.
IV.
Analysis
[18]
The applicant argues that there are three issues
in dispute:
- Did the officer err in his evaluation of the travel advisories
for Burundi?
- Did the officer breach his duty of procedural fairness by not
allowing the applicant to demonstrate that he is Tutsi?
- If the answer to the second question is no, did the officer err
by ignoring the RPD’s findings on this matter?
[19]
For the first and third questions, which involve
findings of fact and findings of mixed fact and law, the standard of review is
reasonableness (Martinez v. Canada (Minister of Citizenship and Immigration),
2010 FC 31; Selduz v. Canada (Minister of Citizenship and Immigration),
2009 FC 361, paragraphs 9 and 10). This Court should intervene only if it
concludes that the decision lacks justification, transparency and
intelligibility and does not fall within “a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir v. New Brunswick, 2008, SCC 9, paragraph 47 [Dunsmuir]).
[20]
For the second question, which involves the duty
of procedural fairness, the standard of review is correctness (Aboud v.
Canada (Citizenship and Immigration), 2014 FC 1019, paragraph 34). Under
that standard of review, this Court does “not show
deference to the decision maker’s reasoning process; it will rather undertake
its own analysis of the question. The analysis will bring the court to decide
whether it agrees with the determination of the decision maker...” (Dunsmuir,
paragraph 50).
A.
Did the officer err in his evaluation of the
travel advisories for Burundi?
[21]
The applicant argues that the officer committed
a significant error in his analysis of the two announcements published by the
Government of Canada and submitted as part of the documentary evidence the Advisory
against travel to Burundi dated May 14, 2015, and the Advisory against
travel to Burundi dated May 29, 2015. The first advisory recommended “avoiding all nonessential travel to Burundi” and the
second recommended “avoiding all travel to Burundi.”
Despite those advisories, the officer concluded that he gave more weight to the
fact that the Government of Canada had not imposed a temporary suspension of
removals for Burundi.
[22]
On that matter, the applicant argues that this
analysis is unreasonable because there is jurisprudence from this Court stating
that Government of Canada travel advisories also apply to citizens of other
countries (Sinnasamy v. Canada (Citizenship and Immigration), 2008 FC
67, paragraph 34; Narany v. Canada (Citizenship and Immigration), 2008
FC 155, paragraph 14). According to the applicant, it was an error to ignore
those advisories, which implied that they did not apply to him.
[23]
The problem with the applicant’s position on
this is that the officer did not exclude the advisories as evidence. He
considered the advisories and concluded that he would give more weight to the
fact that the government had not imposed a temporary suspension of removals.
The two rulings cited by the applicant simply state that travel advisories may
be submitted as evidence, not that they are determining. The officer is free to
evaluate these advisories as he wishes. His conclusion is reasonable. The
advisories are only what they claim to be: they advise people that the
Government of Canada does not recommend travelling to a given country, but they
do not prohibit doing so.
[24]
Lastly, with regard to the first question, it is
notable that following the date of the PRRA, the government added Burundi to
the list of countries with a temporary suspension of removals. Nevertheless,
although that affects the applicant’s current situation, it does not affect the
issue in dispute, because the government’s decision was made after the officer’s
decision on the PRRA application.
B.
Did the officer breach his duty of procedural
fairness by not allowing the applicant to demonstrate that he is Tutsi?
[25]
The applicant claims that the officer was
obligated to inform him that he had doubts about his ethnicity and that he
failed to fulfil that duty. However, it is well established that the applicant
always bears the burden of demonstrating each element of a PRRA application (Mbaraga
v. Canada (Citizenship and Immigration), 2015 FC 580, paragraph 31).
Furthermore, the applicant did not cite any ruling from this Court to support
the claim that the officer was obligated to contact the applicant when he
decided that he wanted evidence that the applicant is Tutsi. I see no
suggestion in the jurisprudence that an officer, when evaluating a PRRA, is
obligated to contact an applicant each time he finds that the applicant did not
provide sufficient evidence on a particular element. The officer did not breach
his duty of procedural fairness.
[26]
To conclude on this point, the applicant
submitted two affidavits before this Court to demonstrate that it was
impossible to prove objectively that a person is of Tutsi ethnicity. The
applicant requested that, in the event that this Court were to conclude that
the officer breached his duty for procedural fairness, these affidavits be
admitted even though they were not submitted before the officer. Because the
officer did not err on this point, I am not required to evaluate that request.
C.
If the answer to the second question is no, did
the officer err by ignoring the RPD’s findings on this?
[27]
The applicant argues that, even if this Court
does not find any procedural error in the decision at issue, the officer
nevertheless erred in ignoring the fact that the applicant had proven his Tutsi
identity to the RPD.
[28]
However, the respondent notes that the RPD
accepted the applicant’s identity, but the applicant did not report his
ethnicity to the RPD as a reason for persecution; his application for refugee
protection makes no mention of this. According to the respondent, the officer
did not err because the applicant did not prove that he is Tutsi.
[29]
I agree with the respondent. A review of the RPD’s
decision reveals no mention of ethnicity. The RPD accepted the applicant’s
identity based on copies of his passport and his national identity card, but
one of the affidavits the applicant wished to introduce before this Court states
the following:
Since the restoration of Burundi’s
independence in 1962, no government has chosen to identify Tutsi or Hutu
ethnicities on identity cards, birth certificates, Burundi passports or any
other official document.
(Applicant’s file, tab 5)
[30]
If the matter of ethnicity was not raised before
the RPD, it could not evaluate it. The applicant had the obligation to prove
his ethnicity before the officer if he wanted to use it as a reason for his
application, and it was reasonable for the officer to conclude that this fact
was not proven.
[31]
The applicant also claimed at the hearing that
he would be seen as a member of the FNL, the Forces nationales de libération
[National Liberation Forces], or otherwise persecuted if he returned to Burundi
because of his application for refugee protection in Canada. However, it is
well established in the jurisprudence that this Court is not obligated to reexamine
the evidence, and I have no indication that the officer erred on these points.
V.
Conclusions
[32]
For the above reasons, the application for
judicial review is dismissed. The applicant submitted two questions for
certification:
- How should PRRA officers consider travel advisories?
- When the RPD accepts the applicant’s identity, is the applicant
required to prove each element of his identify for the PRRA?
[33]
In my opinion, these questions are not of broad
significance or general importance, because this Court has already ruled on
these matters, which are nevertheless related to the specific facts of this
case. Therefore, they do not meet the criteria to be certified (Zhang v. Canada (Citizenship and Immigration),
2013 FCA 168, paragraph 9).
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