Date: 20250225

Docket: IMM-16378-23

Citation: 2025 FC 362

Ottawa, Ontario, February 25, 2025

PRESENT: Madam Justice Azmudeh

JUDGMENT AND REASONS

I. Overview

[1] The Applicant, Consolater Atieno Odongo, is a 66-year-old citizen of Kenya. She is seeking judicial review of a Pre-Removal Risk Application [PRRA] decision made by a Senior Immigration Officer [the PRRA Officer] on July 31, 2023. The PRRA Officer found that the Applicant would not face a serious possibility of persecution, be subject to a risk of torture, or face a risk to life or risk of cruel and unusual treatment or punishment if returned to Kenya. The PRRA Officer therefore rejected the PRRA application under section 96 and subsection 97(1) of IRPA.

[2] Prior to the PRRA decision under review, the Applicant made a refugee claim that was heard by the Refugee Protection Division [RPD] and Refugee Appeal Division [RAD]. In brief, the Applicant claimed that she had purchased property with her late husband during their marriage and that, after her husband passed away in 2009, his family pressured her to give that land to them. Both divisions of the IRB refused her claim, and, on February 2, 2022, the Federal Court subsequently dismissed her application for leave to judicially review the RAD’s decision.

[3] In their independent assessment of the Applicant’s evidence, the RAD found that the RPD erred in assessing the Applicant’s claim solely under subsection 97(1) of the IRPA. The RAD found that the RPD should have also considered section 96 because the deprivation of the Applicant’s property was due to her membership in a particular social group, namely her gender as a widowed woman. Nevertheless, the RAD applied the IRB’s Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board [Gender Guideline] and upheld the RPD’s negative decision that the Applicant faced no prospective risk of persecution or personal risk of harm in Kenya.

[4] In applying for the PRRA, the Applicant submitted new evidence, namely an updated National Documentation Package [NDP] on country conditions in Kenya. The parties at the hearing agreed that the new evidence suggested, among other things, that the legal system had improved as the Kenyan authorities had changed the law that previously deprived widows of their property rights and taken positive steps towards gender equality. It appears that the PRRA officer accepted the new evidence.

[5] For the reasons that follow, I find that the Applicants have not demonstrated any reviewable error in the PRRA Officer’s decision. Accordingly, this application is dismissed.

II. Issues and Standard of Review

[6] The parties submit, and I agree, that the only issue in this case is whether the PRRA Officer’s decision was reasonable.

[7] The standard of review applicable to PRRA decisions is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 23 [Vavilov]; Singh v Canada (Citizenship and Immigration), 2022 FC 1645 at para 13; Shah v Canada (Citizenship and Immigration), 2022 FC 1741 at para 15). A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov at para 85). The reviewing court must ensure that the decision is justifiable, intelligible, and transparent (Vavilov at para 95), including by accounting for central issues and concerns raised in the parties’ submissions to the decision maker (Vavilov at para 127).

III. Legal Framework

[8] The following sections of the IRPA are particularly relevant to the matter at hand:

IV. Analysis

[9] In this case, the RAD accepted the Applicant’s argument that her loss of property was due to her gender and status as a widowed woman and applied the Gender Guideline in its analysis. The RAD agreed with the RPD that, in relinquishing her property rights, the Applicant can reasonably avoid risk of persecution or harm. It also found that the alleged harassment at the hands of her late husband’s family lacked credibility and did not amount to persecution.

[10] The Applicant sought to judicially review the RAD decision in Federal Court. On February 3, 2022, the Court decided not to grant leave to her judicial review application.

[11] In her PRRA application, filed on June 20, 2023, the Applicant largely relied on the same arguments and evidence as before the RAD. She included updated objective evidence on country conditions in Kenya relating to gender-based violence and, in particular, how Kenya’s constitutional protection of women’s rights to own or access inherited land are not always realized in practice for widowed women. The only other new evidence the Applicant included in support of her PRRA application was a work permit and a letter from her Canadian employer.

[12] In a PRRA analysis, an officer must determine whether an applicant would face the harms described in sections 96 and 97(1) of the IRPA upon removal from Canada. The Federal Court of Appeal held in Raza v Canada (Citizenship and Immigration), 2007 FCA 385 (“Raza”), at paras 12-15, that a PRRA application by a failed refugee claimant is not an appeal or reconsideration of an RPD decision. It is well-established that a PRRA officer must accept the determinations of prior decision makers to the extent that facts remain unchanged, or, in other words, unless there is new evidence of facts that might have affected the outcome of a refugee hearing had it been presented to the RPD or RAD (see e.g. St. Brice v Canada (Citizenship and Immigration), 2023 FC 1139 at para 45, citing Singh v Canada (Citizenship and Immigration), 2014 FC 1022 at paras 50 – 51). Subsection 113(a) of the IRPA also states that a PRRA applicant whose refugee claim has been rejected may present new evidence in their PRRA application only where the new evidence arose after the rejection, was not reasonably available, or if an applicant could not have been expected to present it at the time of the rejection.

[13] It is in this context that I assess the reasonableness of the PRRA decision. The Applicant agrees that, apart from the country conditions document on the formal improvement of the legal system in favour of widows in Kenya, the evidence before the PRRA Officer was largely what was before the RAD and already adjudicated by them. However, the Applicant’s counsel made extensive submissions about how, in his view, the PRRA Officer’s analysis of the Gender Guideline insufficiently engaged with the Applicant’s evidence. Counsel failed to explain how and why the PRRA officer was expected to go above and beyond the RAD’s application of the Gender Guideline to the same facts. The only new evidence presented, regarding the amelioration of the legal system in Kenya, did not support a conclusion that would contradict RAD’s analysis. Further, in her PRRA submissions, the Applicant had not explained how the new evidence demonstrated any potential risks not already adjudicated by the RAD.

[14] It bears repeating that a PRRA application is not an appeal of the RAD decision. When a PRRA is decided after the RPD and/or the RAD’s negative determination of a claim, it is also not a fresh assessment of all facts in a vacuum. Rather, a PRRA operates within the unique limitations and legal confines outlined in section 113(a) of the IRPA and in Raza. In this case, the RAD had already considered the Applicant’s gender, her profile as a widow and her circumstances in detail before rejecting the claim. The Federal Court did not share the Applicant’s disagreement with the RAD decision, as it rejected her judicial review at leave stage. Nothing presented to the PRRA Officer demonstrated that any risk factors had changed since the RAD decision. Therefore, it was reasonable for the PPRA officer to find that relitigating of the same relevant facts would not yield the opposite outcome.

[15] In their decision, and within the confines of a PRRA application as set out in sections 112 and 113 of the IRPA, the PRRA officer fully engaged with the facts of the case and applied them to sections 96 and 97 of the IRPA.

[16] The PRRA Officer did not err by not departing from the RAD’s decision and likewise finding that the Applicant insufficiently demonstrated a risk under section 96 and subsection 97(1) of the IRPA. Despite that the Gender Guideline is aimed at the IRB members, the PRRA officer referenced it and stated that: “As a PRRA officer, I remain alert and sensitive to the difficulty, vulnerability, and cultural disparity which women may undergo while defining their risks.” Their analysis was responsive to Applicant’s submissions and concerns, engaged with new evidence admissible under section 113(a) of the IRPA, and offered a coherent chain of reasoning that the updated NDP illustrated both positive and negative elements as relates to gender based violence in Kenya but did not support the Applicant’s allegations of personal risk. In short, the PRRA Officer engaged with the country conditions documents, including the new evidence, reasonably and logically. The PRRA Officer’s reasoning and analysis justified their rejection of the Applicant’s PRRA application, a decision in which Court has no grounds to intervene (Vavilov at para 85).

[17] I find that the PRRA Officer’s reasons and decision were justifiable, intelligible and transparent. I therefore dismiss the application for judicial review.

V. Conclusion

[18] I find that the decision of the PRRA officer was reasonable. I dismiss the judicial review.

[19] The parties did not propose a certified question, and I agree that none arises.

JUDGMENT in IMM-16378-23

THIS COURT’S JUDGMENT is that:

1. The judicial review is dismissed.

2. There are no questions to be certified.

"Negar Azmudeh"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: