Docket: IMM-532-16
Citation:
2016 FC 1026
Ottawa, Ontario, September 12, 2016
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
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BETWEEN:
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SAHLEMARIAN KEL
TEKLEWARIAT
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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 AND JUDGMENT
I.
Nature of the Matter
[1]
This is an application for judicial review
pursuant to paragraph 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act] of a decision by a Pre-Removal Risk Assessment Officer
[the Officer] wherein he concluded that the applicant was not subject to a risk
of persecution, danger of torture, risk to her life, or risk of cruel and
unusual punishment if she were returned to her country of origin.
II.
Facts
[2]
The applicant, Ms. Sahlemarian Kel Teklehawariat,
is a citizen of Ethiopia. She alleged the following facts in support of her
refugee claim:
•
Her parents, her brother and she were involved
with the Coalition for Unity and Democracy party in Ethiopia and became
involved in its successor party, the Unity for Democracy and Justice [UDJ]. Her
parents and her brother were imprisoned in relation to their political
activities and her father was severely tortured in 2000.
•
In 2005 and 2006, the applicant was also
questioned by the police.
•
In September 2009, she left Ethiopia for the
Netherlands to pursue a degree.
•
In May 2012, she returned to Ethiopia to attend
to her sick mother. She was then arrested, tortured and sexually assaulted
because of her membership in UDJ. She was released after seventeen days.
•
In June 2012, she returned to the Netherlands to
resume her studies and seek employment.
[3]
In October 2013, she obtained a visa to attend a
conference in Canada. She entered Canada on November 30, 2013 and filed an
inland refugee claim in Toronto.
[4]
On March 25, 2014, the Refugee Protection
Division [RPD] determined that there was no credible basis to the applicant’s
refugee claim. The application for leave and judicial review was refused by
this Court on July 23, 2014.
[5]
The applicant applied for a pre-removal risk
assessment on May 11, 2015.
III.
Decision
[6]
The Officer found that the applicant was
restating the same circumstances she had articulated in her refugee claim and
had not rebutted the issues raised by the RPD with respect to her credibility
and membership in the UDJ. He reviewed 11 sets of documents, but did not
mention a letter from UDJ confirming the applicant’s membership in the
organization.
[7]
The Officer concluded that the applicant had not
rebutted the RPD findings, so there was not sufficient evidence for him to
allow a different conclusion. He noted that the PRRA was not a review of the
RPD decision and that the applicant had not established that she had a
sufficient political profile to be of interest to the Ethiopian authorities, or
that these authorities were aware of her activities.
IV.
Issues
[8]
This matter raises the following issues:
1.
What is the applicable standard of review?
2.
Did the Officer err in assessing the new
evidence in the application of paragraph 113(a) of the Act?
3.
Did the Officer err in his assessment of the sur
place claim?
4.
Did the Officer err in ignoring the letter from
UDJ?
V.
Analysis
A.
What is the applicable standard of review?
[9]
The interpretation of the test under s 113(a) of
the Act [the Raza test] is reviewable under the standard of correctness, while
its application to the facts is a mixed question of facts and law reviewable
under the standard of reasonableness (Elezi v Canada (Citizenship &
Immigration), 2007 FC 240, at para 22 [Elezi]; Adeshina, para
15; Chen v Canada (Citizenship & Immigration), 2015 FC 565, at para
11).The assessment of risk by a PRRA officer is also reviewable under the
standard of reasonableness (Elezi, para 21).
B.
Did the Officer err in the application of
paragraph 113(a) of the Act?
[10]
Upon review of the decision, I find that the
Officer properly applied the test and showed an understanding of the
disjunctive nature of its three components. He also demonstrated a correct
understanding for the criteria for assessing new evidence for the purposes of s
113 (a) of the Act as summarized by the Federal Court of Appeal in Raza v
Canada (Citizenship & Immigration), 2007 FCA 385 [Raza].
[11]
On the issue of the letters, three of them
clearly contained information that could have reasonably been presented to the
RPD. I note that the letters from the Ethiopian Association of the Greater
Toronto Area and Surrounding Regions, the Ethiopian Satellite Television and
the Ethio-Canadian Relief & Cooperation Organization only attest to her
involvement since February 2014 (prior to the RPD decision) and to her
character, without giving any details as to the applicant’s participation in
their activities after the RPD decision. These letters could have been
submitted as they were to the RPD.
[12]
I also find that the Officer’s conclusions on
the medical and psychological reports were reasonable. The applicant had had
the chance to submit a medical report before the RPD, which was not found
probative. The PRRA is not an opportunity to present better evidence following
a negative RPD decision. As to the psychological report, it attests to a
condition that is a result of the applicant’s traumatic experiences in her own
country. The applicant offered no explanation as to why she had not sought such
a report before the RPD hearing and the report did not attest to a new risk
development since the refugee decision.
[13]
While the letter from UHDR clearly outlined
which activities the applicant participated in after the RPD decision, the
Officer noted that the RPD had found that the applicant had joined UHDR in order
to bolster her claim. His conclusion that the letter was not sufficient to
overcome the RPD’s credibility finding falls within the range of possible,
acceptable outcomes with regard to the facts. The Officer did not commit any
reviewable error in his application of the test.
C.
Did the Officer err in his assessment of the sur
place claim?
[14]
On the sur place claim, the Officer
wrote:
Additionally, Counsel submits that the
applicant is a sur place refugee due to her political involvement in
Canada with the UHRD, the Ethio-Canadian Relief and Cooperation Organization,
Ethiopian Satellite Television and the Ethiopian Association in the GTA and
surrounding areas. Counsel submits that her political involvement with the
Ethiopian community in Canada place her at risk of returning to Ethiopia, a
government that is known for spying on its citizens overseas. While I
acknowledge that the applicant volunteers at several organizations in the
Ethiopian community, the evidence before me does not establish that the applicant
has a political profile that would be of interest to the Ethiopian government.
Furthermore, I do no find that the applicant has demonstrated that the
Ethiopian government is aware of her political activities in Canada.
[15]
The applicant’s arguments that the Officer did
not consider the sur place claim have therefore no merit. It was
reasonable for him to conclude that the applicant did not have the profile of
someone who would be of interest to the Ethiopian authorities, or that they
were aware of her activities in Canada. While the documentary evidence
indicates that the Ethiopian government may be spying on citizens living
abroad, it also indicates that the victims of such surveillance are generally
contacted by phone calls. The applicant has not provided any evidence that her
activities in Canada have made her a target and so, the Officer’s conclusions
on that point were reasonable.
D.
Did the Officer err in ignoring the letter from
UDJ?
[16]
The applicant argues that the Officer failed to
analyze the letter from UDJ submitted in support of her membership and that
this constitutes a reviewable error. The Officer does not mention the letter at
all in his analysis of the application. The respondent replies that, in any
event, the letter is evidence of an old risk and was not admissible under the
circumstances.
[17]
I am concerned that the Officer appears to have
ignored a piece of evidence that goes to the heart of the applicant’s
allegations of risk. Although a decision-maker is not required to mention all
pieces of evidence in his analysis because he is presumed to have reviewed all
of them, the absence of any mention of a key piece of evidence is suspicious,
especially in this context where the Officer thoroughly reviewed eleven sets of
documents and ignored only one.
[18]
The fundamental test for the admissibility of
new evidence for the PRRA is stated in Raza, at para 13: if the new
evidence is only capable of proving an event or circumstances that arose prior
to the RPD hearing, then the applicant has to explain why the evidence was not
available before, or why he or she could not have been expected to present it
at the RPD.
[19]
In this case, however, the letter from UDJ could
have been reasonably excluded on the basis that it was reasonably available at
the time of the hearing. On its own and given the other credibility issues
identified by the RPD, the letter is perhaps not sufficient to overcome the
findings on credibility. Had the Officer analyzed the letter, his decision may
not have been different. It is however impossible from the record to determine
whether the Officer deliberately chose not to analyze the letter because no
explanation had been given on its admissibility, or whether he simply did not
see it.
VI.
Conclusions
[20]
The letter from UDJ contradicted the RPD’s main credibility
finding and should have been analyzed (Cepeda-Gutierrez v Canada
(Citizenship and Immigration), [1998] FCJ No 1425). The record is not
sufficient to allow the Court to extrapolate what the Officer’s reasoning would
have been on the subject of the letter and the fact that only this document was
excluded from his analysis points to an error on his part, rather than to a
conscious choice on which piece of evidence to analyze in his reasons. For this
reason alone, the application for judicial review is granted and the matter is
remitted back for redetermination by a different immigration officer.
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