Ottawa, Ontario, December 5, 2005
PRESENT: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
NOЁL J.
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of a Pre-Removal Risk Assessment (PRRA) Officer who, on October 27, 2004, found that the applicant would not be subject to a risk of persecution, torture, a risk to his life, cruel and unusual treatment or punishment or sanctions if he had to return to Burkina Faso.
ISSUES
[2] Did the PRRA Officer err in law in evaluating the evidence submitted by the applicant and in dismissing his application?
CONCLUSION
[3] For the reasons that follow, the answer to this question is negative, and the application for judicial review is dismissed.
FACTUAL BACKGROUND
[4] The applicant is a citizen of Burkina Faso. He arrived in Canada as a soccer player with the Burkina Faso team for the Games of La Francophonie, which took place in the Ottawa–Hull area in 2001.
[5] The applicant claimed refugee status while in Canada. His claim was based on his imputed or actual political opinions and the political activities he had engaged in. His claim was heard on October 21, 2003, by the Refugee Protection Division of the Immigration and Refugee Board (the Board) and was dismissed in a decision dated March 10, 2004. The applicant did not apply for judicial review.
[6] The applicant then submitted a PRRA application, which was dismissed on October 27, 2004. That decision is the subject of this application for judicial review.
IMPUGNED DECISION
[7] In support of his PRRA application, the applicant submitted three pieces of documentary evidence: two newspaper articles and a report entitled “Rapport sur l’état des droits humains au Burkina Faso” (Report on the state of human rights in Burkina Faso), prepared by the Mouvement Burkinabe des Droits de l’Homme et des Peuples (Burkina Faso Human Rights Movement), covering the period 1996–2002.
[8] Two of these documents were dated before the date of the decision regarding the applicant’s refugee claim. The documents had therefore been available when the applicant claimed refugee status. The PRRA Officer did not take them into account as new evidence, judging that the applicant had not provided a satisfactory explanation for failing to submit them at the time of his refugee claim hearing. Of the three documents submitted by the applicant, the PRRA Officer took into account only the article from L’Observateur Paalga, which was published after the decision dismissing the applicant’s refugee claim was handed down.
[9] In the article, entitled “Reviendront? Reviendront pas?” (Will they come back? Won’t they come back?), journalist Cyrille Zoma writes that athletes such as the applicant who claimed refugee status during official trips abroad are considered deserters and traitors. He adds that [TRANSLATION] “regardless of whether they succeed in their adopted country, these people will have no choice but to stay there, as it is likely that the state won’t roll out the red carpet to welcome them back. They will certainly be called upon to answer for their actions, and will surely not be congratulated on betraying the motherland. They will be punished to set an example and to discourage any people who might have similar ideas. What’s more, if they fail, they will not want to face the mockery of those who stayed put.”
[10] The applicant stated in his PRRA application that having claimed refugee status while officially representing Burkina Faso as a soccer player puts him in a particularly risky position. The PRRA Officer noted that the Immigration and Refugee Board (the Board) studied this question in the reasons for its decision dismissing the applicant’s claim, and that the L’Observateur Paalga article was an opinion piece that did not refer to the government’s actual intentions toward persons in a situation similar to that of the applicant. She also noted that, although the article mentions the possibility of the imposition of an exemplary punishment, this evidence was insufficient to convince her that the applicant was facing more than the mere possibility of persecution, or that it was probable that he would be subject to torture, a risk to his life or cruel and unusual treatment or punishment.
[11] In addition to the article from L’Observateur Paalga, the PRRA Officer also based her decision on the Board’s decision, an Amnesty International report and a report from the US Department of State. Based on all this evidence, she concluded that the application did not meet the criteria set out in sections 96 or 97 of the IRPA.
ANALYSIS
[12] The issue is a question of mixed law and fact, as we must decide whether the PRRA Officer correctly applied, on the whole, the law as it relates to the facts that she had to consider. The standard of review applicable to a PRRA Officer’s decision that involves questions of mixed law and fact is reasonableness simpliciter, where the PRRA Officer’s decision is considered globally and as a whole (Figurado v. Canada, [2005] F.C.J. No. 458, at paragraph 51). This standard of review was applied in several of the Court’s rulings (see Kandiah v. Canada (Solicitor General), [2005] FC 1057, [2005] F.C.J. No. 1307, at paragraph 6; Nadarajah v. Canada (Solicitor General), 2005 FC 713, [2005] F.C.J. No 895, at paragraph 13; Kim v. Canada (MCI), [2005] F.C.J. No. 540 (F.C.T.D.), at paragraph 22). An unreasonable decision is one that does not stand up to a somewhat probing analysis (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20, [2003] S.C.J. No. 17, at paragraph 25; Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748, [1996] S.C.J. No. 116).
[13] In the circumstances of this case, I do not believe that the PRRA Officer’s decision was one that does not stand up to a somewhat probing analysis.
[14] In the context of a PRRA application, the burden of proof is on the person wishing to be granted refugee status under subsection 114(1) of the IRPA (Hailu v. Canada (Solicitor General), 2005 FC 229, [2005] F.C.J. No. 268 at paragraphs 18 and 22). The onus is on this person to demonstrate that they should be granted refugee status.
[15] The applicant submitted two affidavits to which was appended additional evidence that did not figure in the file that was submitted to the PRRA Officer. This evidence was inadmissible before the PRRA Officer owing to paragraph 113(a) of the IRPA; the applicant did not contest this. It is also inadmissible before the Federal Court in the context of a judicial review. At this stage, only the evidence used to render the decision under review should be considered, saving any exceptions (see Smith v. Canada, 2001 FCA 86, [2001] F.C.J. No. 450 and Grundy v. Canada, 2005 FC 1312, [2005] F.C.J. No. 1593). Neither PRRA applications nor applications for judicial review can become hearings de novo of the applicant’s initial refugee claim, which was dismissed. In short, the only evidence the Federal Court may use to render its decision is the same evidence that was available to the PRRA Officer.
[16] In particular, I note that the applicant submitted only one newspaper article proving that he risked being subject to persecution if he were returned to Burkina Faso owing to the fact that he is a professional soccer player. No evidence of the importance, influence or daily print run of the newspaper was provided. The allegation that the excerpt from the paper constitutes a call to murder has not been substantiated in any way. I also note that no evidence was provided of the connection between the applicant’s political opinions or his status as a professional soccer player, on the one hand, and the repression to which he would personally be subject, on the other hand. Finally, the connection between the excerpt from the newspaper and the possibility of persecution at the hands of the state was not demonstrated.
[17] Accordingly, I conclude that the PRRA Officer’s conclusion was based on evidence available to her and is not so unreasonable as to warrant the intervention of this Court. There is no conclusive proof demonstrating that the applicant would be subject to a risk of persecution, torture, risk to his life, cruel or unusual treatment or punishment or sanctions if he had to return to Burkina Faso, within the meaning of subsection 115(1) of the IRPA. The application is therefore dismissed.
[18] The parties did not submit questions for certification. No questions will be certified.
ORDER
THE COURT ORDERS THAT:
- The application for judicial review be dismissed. There is no question to be certified.
Judge
Certified true translation
Magda Hentel
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6267-04
STYLE OF CAUSE: SA BRAHIMA TRAORÉ v.
THE MINISTER OF IMMIGRATION AND CITIZENSHIP
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: December 5, 2005
REASONS FOR ORDER BY: The Honourable Mr. Justice Simon Noël
APPEARANCES:
Séverin Ndema-Moussa FOR THE APPLICANT
Alexandre Kaufman FOR THE RESPONDENT
SOLICITORS OF RECORD:
SÉVERIN NDEMA-MOUSSA
Ndema-Moussa Law Office
Ottawa, Ontario FOR THE APPLICANT
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario