Docket: IMM-3604-16
Citation:
2017 FC 300
Ottawa, Ontario, March 22, 2017
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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BENSON KUZEEKO HENGOMBE
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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
[1]
The Applicant, Benson Kuzeeko Hengombe, is a 45
year old citizen of Namibia who entered Canada on December 13, 2010, and two
days later made a claim for refugee protection. His refugee claim was rejected,
however, by the Refugee Protection Division [RPD] of the Immigration and
Refugee Board [IRB] in a decision dated January 15, 2013. After the RPD’s
decision, the Applicant applied for a pre-removal risk assessment [PRRA], but a
Senior Immigration Officer rejected the PRRA application in a decision dated
May 24, 2016. The Applicant has now applied under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c-27 [IRPA] for judicial review
of the Officer’s decision rejecting his PRRA application.
I.
The Applicant’s PRRA Submissions
[2]
The Applicant’s PRRA application included 13
documents which were not before the RPD: four online articles which pre-dated
the RPD decision; an IRB document which pre-dated the RPD decision; five online
articles which post-dated the RPD decision; two country report documents which
post-dated the RPD decision; and an email from the Applicant’s sister, dated
February 22, 2016. In his submissions to the PRRA Officer dated March 6, 2016,
the Applicant claimed he was a person in need of protection under subsection
97(1) of the IRPA, repeating the claim he had made before the RPD that
he was instrumental in the arrest and conviction of two drug traffickers, an
event which ultimately resulted in threats against him and the death of two
fellow police officers. The Applicant relied on his sister’s email to argue
that he faced new risks if returned to Namibia. According to his sister,
unknown individuals as well as the police were visiting her house looking for
the Applicant and these unknown individuals had threatened to murder the
Applicant upon his return to Namibia. The Applicant’s sister warned him not to
return to Namibia.
[3]
The Applicant pointed the PRRA Officer to the
Federal Court of Appeal’s decision in Raza v Canada (Citizenship and
Immigration), 2007 FCA 385, 289 DLR (4th) 675 [Raza], and also to
cases from this Court for the proposition that new evidence relating to old
risks should be considered (i.e., Kirindage De Silva v Canada (Citizenship
and Immigration), 2007 FC 841, 159 ACWS (3d) 562; and James v Canada (Citizenship
and Immigration), 2010 FC 318, [2010] FCJ No 368). Based on these
authorities, the Applicant submitted that the new evidence should be accepted
because it established the nature of the Applicant’s ongoing risk if he were to
return to Namibia. The Applicant further submitted that the email from his
sister provided an objective basis for his risk, and that he would not receive
state protection if returned to Namibia because of the corruption of Namibian
police as revealed in the various articles that were not before the RPD.
II.
The PRRA Officer’s Decision
[4]
The Officer reviewed the Applicant’s PRRA
application, the submitted documentary evidence, as well as some U.S.
Department of State human rights reports concerning Namibia, and concluded
that:
…I do not find that the applicant would face
more than a mere possibility of risk under any of the Convention grounds as set
out in Section 96 of the Immigration and Refugee Protection Act (IRPA).
Further, I do not find that the applicant would face, on a balance of
probabilities, a risk of torture, a risk to life or a risk of cruel and unusual
punishment as described in Section 97(1) (a) or (b) of IRPA if he were to
return to Namibia. I find that the applicant is neither a Convention Refugee
nor a person in need of protection.
[5]
The Officer noted that the risks identified by
the Applicant in his PRRA application and submissions were essentially the same
as those heard and assessed by the RPD. The Officer found that the Applicant
had “simply re-stated his case” without
addressing or rebutting the RPD’s determination that he lacked credibility. The
Officer referenced Escalona Perez v Canada (Minister of Citizenship and
Immigration), 2006 FC 1379, 153 ACWS (3d) 421, where this Court stated:
[5] …The purpose of the PRRA is not
to reargue the facts that were before the RPD. The decision of the RPD is to be
considered as final with respect to the issue of protection under s. 96 or s.
97, subject only to the possibility that new evidence demonstrates that the
applicant would be exposed to a new, different or additional risk that could
not have been contemplated at the time of the RPD decision…
[6]
The Officer then reviewed the documents
submitted by the Applicant. The Officer noted that five of the documents
pre-dated the RPD hearing. The Officer did not consider this evidence because
it would have been available to be presented to the RPD panel and the Applicant
provided no explanation as to why these documents were not presented.
[7]
With respect to the email from the Applicant’s
sister, the Officer stated:
I have read and considered this E mail
however I have afforded it little weight. I note, the contents of the E mail
including the incidents cited lack any details surrounding timelines and thus
any historical context. The applicant’s sister does not provide dates and
number of times she was bombarded with visits from unknown figures. She does
not provide a date of when they patrolled the applicant’s house and waited in
front of the house and the number of times they did this. She does not provide
a date when she was threatened with a gun and when she went to the police. She
does not indicate how she knows the people who visited were drug dealers or how
she knows that the police are looking for the applicant. I also find this piece
of evidence does not overcome the credibility issues the RPD member had.
[8]
The Officer also reviewed those articles which
post-dated the RPD hearing as well as country reports about conditions in
Namibia. The Officer found that this evidence did not overcome the credibility
issues the RPD had and, consequently, concluded that:
Upon review of all the evidence before me I
find that the applicant has not provided sufficient objective evidence to
address the material findings of the RPD.
The applicant has not provided material
evidence to overcome the RPD’s finding of fact, raised a new risk nor provided
evidence to support that there have been changes in country conditions in
Namibia since the panel’s finding which bring him within the meaning of Section
96 and/or 97.
[9]
The Officer considered the Applicant’s request
that an oral hearing be conducted and noted the prescribed factors to hold a
hearing set out in section 167 of the Immigration and Refugee Protection
Regulations, SOR/2002-227, as amended. The Officer found though, that since
these factors were not met, an oral hearing was not warranted.
III.
Issues
[10]
The Applicant raises one issue: that is, whether
the PRRA Officer erred by determining that the evidence presented by the
Applicant was not new pursuant to paragraph 113(a) of the IRPA. In my
view, however, this issue can be addressed by assessing whether the PRRA
Officer’s decision was reasonable.
IV.
The Parties’ Submissions
[11]
The Applicant contends that the Officer erred in
holding that the documentary evidence submitted with the PRRA application was
not “new” pursuant to paragraph 113(a) of the IRPA.
According to the Applicant, the evidence submitted to the Officer meets the
requirements of paragraph 113(a) since it is new, credible, material, and
relevant. The Applicant says that these documents establish the ongoing risk to
his life if he returns to Namibia. The Applicant submits that the email from
his sister confirms that drug traffickers are targeting him, and emphasizes
that this email was sent after the RPD hearing and decision. The documentary
evidence about the corrupt Namibian police force post-dates the RPD hearing
and, in the Applicant’s view, rebuts the RPD’s finding on adequate state
protection and credibility.
[12]
The Respondent says a PRRA officer cannot depart
from the RPD’s findings unless there is new evidence which either rebuts the
RPD’s findings or establishes a significant change in country conditions.
According to the Respondent, materiality is relevant in this case because the
evidence submitted with the PRRA application would not have changed the outcome
of the RPD decision. The Respondent refers to Raza, where the Federal
Court of Appeal stated that a PRRA officer may properly reject the evidence
sought to be presented in support of a PRRA application “if it cannot prove that the relevant facts as of the date of
the PRRA application are materially different from the facts as found by the
RPD” (at para 17). The Respondent argues that the Officer was justified
in finding that the Applicant’s evidence was not new evidence in accordance
with Raza and paragraph 113(a) of the IRPA because it related to
previous determinations of risk made by the RPD.
[13]
In the Respondent’s view, the Officer reasonably
rejected the documents that pre-date the RPD hearing because they would have
been available at the time of the hearing, and it was reasonable for the
Officer to afford the email from the Applicant’s sister little weight because
it was vague, not materially different from the facts before the RPD, and did
not overcome the RPD’s credibility concerns. The Respondent says the Officer
reasonably rejected the other articles and country condition reports because
they did not establish a new risk or risk development and did not rebut the RPD’s
concerns about the credibility of the Applicant’s claim.
V.
Analysis
[14]
It is well established that, absent any question
of procedural fairness, the standard of review by which to assess a PRRA
officer’s decision is reasonableness (Jainul Shaikh v Canada (Citizenship
and Immigration), 2012 FC 1318 at para 16, [2012] FCJ No 1429; also see: Fadiga
v Canada (Citizenship and Immigration), 2016 FC 1157 at para 8, [2016] FCJ
No 1128; Shilongo v Canada (Citizenship and Immigration), 2015 FC 86 at
para 21, 474 FTR 121; Chen v Canada (Citizenship and Immigration), 2015
FC 565 at para 11, 480 FTR 62; Aboud v Canada (Citizenship and Immigration),
2014 FC 1019 at para 17, [2014] FCJ No 1059).
[15]
Since a PRRA officer’s assessment of any new
evidence under paragraph 113(a) of the IRPA is essentially a question of
mixed fact and law, the officer’s decision attracts deference (see: Dunsmuir
v New Brunswick, 2008 SCC 9 at para 53, [2008] 1 S.C.R. 190 [Dunsmuir]).
Accordingly, this Court may only intervene if a PRRA officer’s decision is not
justified, transparent and intelligible, or if the decision is not within the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law” (Dunsmuir at para 47).
[16]
The Applicant’s position is premised on an
assumption that the PRRA Officer did not accept any of the evidence because it
did not meet the requirements of paragraph 113(a) of the IRPA. This
assumption, however, is misplaced because it is clear upon review of the
Officer’s decision that only five of the 13 documents submitted were rejected
on the basis they pre-dated the RPD hearing and the Applicant failed to explain
why these five documents were not submitted to the RPD. The Officer accepted
the eight other documents, including the email from the Applicant’s sister, as
evidence and reviewed them accordingly. The Officer reviewed the remaining
documents which post-dated the RPD hearing and, in my view, reasonably
concluded that none of them rebutted the credibility concerns raised by the
RPD.
[17]
The RPD had dismissed the Applicant’s claim
because it did not believe that the Applicant was involved in a police drug
raid against two drug traffickers. The RPD based its decision on several
negative credibility findings, the lack of evidence that the two drug
traffickers were arrested and convicted, and the implausibility that the police
provided no assistance to the threats faced by the Applicant. The Applicant
simply did not provide any evidence that addressed the concerns of the RPD. The
evidence submitted by the Applicant with the PRRA application would not have
changed the outcome of the RPD decision because the risk was the same and
country conditions had not materially changed since the time of the RPD
hearing. The only evidence which might possibly have corroborated the Applicant’s
narrative was the email from his sister. However, the Officer afforded this
email little weight because it did not include any specific details and
determined that it did not overcome the RPD’s credibility findings. In my view,
this determination was transparent and not unreasonable.
VI.
Conclusion
[18]
The PRRA Officer’s decision in this case was
reasonable and defensible in respect of the facts and law, and within the range
of acceptable outcomes. This application for judicial review is, therefore,
dismissed.
[19]
No serious question of general importance is
certified.
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