Date: 20060711
Docket: IMM-6161-05
Citation: 2006 FC 866
Ottawa, Ontario, July 11, 2006
Present: THE HONOURABLE Mr. Justice Beaudry
BETWEEN:
SEWA AGBODJAN-PRINCE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 37 (the Act), of a decision of a Pre-Removal Risk Assessment (PRRA) officer, dated August 16, 2005, finding that the applicant would not risk persecution, torture, a threat to his life or cruel and unusual treatment or punishment if he were to return to Togo.
ISSUES
[2] The applicant raises the following issues:
1. Did the PRRA officer make his decision without considering evidence offered by the applicant?
2. Did the PRRA officer err in law in expecting that the applicant would offer some evidence prior to the hearing of his refugee claim?
[3] For the following reasons, the answer to both these questions is negative and this application for judicial review is dismissed.
FACTUAL CONTEXT
[4] The applicant is a citizen of Togo. He was born March 30, 1960. He arrived in Canada on November 1, 2001, and immediately filed a refugee claim.
[5] In the proceedings before the tribunal, the applicant alleged that he had a well-founded fear of persecution because of his political opinion as a result of his membership in the Ligue Togolaise des droits de l’homme (LTDH). He said he had been receiving death threats from government agents since 1993 and had been arrested and mistreated by the Togolese police in 2001.
[6] This claim was dismissed by the Refugee Protection Division of the Immigration and Refugee Board (the tribunal) on October 16, 2003. In its reasons, the tribunal stated that it did not find the applicant to be credible concerning his alleged presence in Togo between 1998 and 2001. The tribunal also found that the applicant’s activism had not “led the authorities to perceive him as a risk and a threat to those in power”.
[7] The applicant filed a PRRA application on July 15, 2004.
[8] The applicant stated that he risks persecution, torture, a threat to his life or cruel and unusual treatment or punishment if he were to return to Togo, due to his membership in the LTDH.
IMPUGNED DECISION
[9] The applicant’s allegations in his PRRA application were essentially the same as those in his refugee claim.
[10] In his PRRA application, the applicant offered the following evidence:
· a letter from his solicitor;
· his affidavit;
· a Togolese identification card;
· two letters from his cousin François Dewanu, dated March 2, 2002 and December 4, 2003;
· a letter dated July 12, 2004 from Ms. Olga Lambert, president of the Cultural Association of Togolese of Ontario (CATO);
· a report on Togo by Amnesty International, dated March 8, 2004;
· a 2003 report of the U.S. State Department on human rights in Togo;
· a 2004 report on Togo by the International Federation for Human Rights (FILDH);
· a news release by the Diastode association (Diaspora Togolaise pour la Démocratie), dated July 9, 2004;
· a news release by the International Federation for Human Rights (FIDH), dated June 16, 2004.
[11] The PRRA officer found that there had been no significant changes in the applicant’s personal situation, or in conditions in Togo since the dismissal of his refugee claim. Although Togo’s human rights record continues to be poor, the PRRA officer followed the tribunal’s finding that the applicant was not personally at risk since he was not a person of interest to the government.
[12] In his notes in the file, the PRRA officer referred to the letters from the applicant’s cousin. The first letter, he wrote, was in the applicant’s possession at the time of the hearing of his refugee claim. This letter was not accompanied by an envelope, and the sender’s address and telephone number are not provided. The content of the letter referred to the applicant’s detention in 2001, and the looting of his bakery. In its reasons, the tribunal expressed some doubts concerning the credibility of these two allegations. The PRRA officer noted that the applicant did not file this letter at his refugee hearing.
[13] The second letter alleged that soldiers were hanging around the applicant’s residence in Togo.
[14] The PRRA officer noted that the tribunal had considered this letter a “self-serving” document and had given no probative value to it. The PRRA officer stated he was of the same opinion concerning the two letters by the applicant’s cousin.
[15] The PRRA officer also found that the applicant had not filed any objective evidence establishing his presence in Togo between 1998 and 2001, or that he had been arrested on July 1, 2001.
[16] The PRRA officer found as well that the letter by the president of the CATO had little probative value since she relied on the applicant’s allegations. The letter stated that the members of the LTDH are [translation] “often the prey of the established authorities”, but the PRRA officer followed the tribunal’s finding that the level of risk depends on the activity of the person concerned, and that the applicant’s profile was not high enough to produce a reasonable fear of persecution.
ANALYSIS
[17] Sections 112 and 113 of the Act read as follows:
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112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1).
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112. (1) La personne se trouvant au Canada et qui n’est pas visée au paragraphe 115(1) peut, conformément aux règlements, demander la protection au ministre si elle est visée par une mesure de renvoi ayant pris effet ou nommée au certificat visé au paragraphe 77(1). |
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(2) Despite subsection (1), a person may not apply for protection if
(a) they are the subject of an authority to proceed issued under section 15 of the Extradition Act;
(b) they have made a claim to refugee protection that has been determined under paragraph 101(1)(e) to be ineligible;
(c) in the case of a person who has not left Canada since the application for protection was rejected, the prescribed period has not expired; or
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(2) Elle n’est pas admise à demander la protection dans les cas suivants :
a) elle est visée par un arrêté introductif d’instance pris au titre de l’article 15 de la Loi sur l’extradition;
b) sa demande d’asile a été jugée irrecevable au titre de l’alinéa 101(1)e);
c) si elle n’a pas quitté le Canada après le rejet de sa demande de protection, le délai prévu par règlement n’a pas expiré;
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(d) in the case of a person who has left Canada since the removal order came into force, less than six months have passed since they left Canada after their claim to refugee protection was determined to be ineligible, abandoned, withdrawn or rejected, or their application for protection was rejected.
(3) Refugee protection may not result from an application for protection if the person
(a) is determined to be inadmissible on grounds of security, violating human or international rights or organized criminality;
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d) dans le cas contraire, six mois ne se sont pas écoulés depuis son départ consécutif soit au rejet de sa demande d’asile ou de protection, soit à un prononcé d’irrecevabilité, de désistement ou de retrait de sa demande d’asile.
(3) L’asile ne peut être conféré au demandeur dans les cas suivants :
a) il est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux ou criminalité organisée;
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(b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years;
(c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; or
(d) is named in a certificate referred to in subsection 77(1).
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b) il est interdit de territoire pour grande criminalité pour déclaration de culpabilité au Canada punie par un emprisonnement d’au moins deux ans ou pour toute déclaration de culpabilité à l’extérieur du Canada pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans;
c) il a été débouté de sa demande d’asile au titre de la section F de l’article premier de la Convention sur les réfugiés;
d) il est nommé au certificat visé au paragraphe 77(1).
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113. Consideration of an application for protection shall be as follows:
(a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection;
(b) a hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required;
(c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98;
(d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and
(i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or
(ii) in the case of any other applicant, whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada.
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113. Il est disposé de la demande comme il suit :
a) le demandeur d’asile débouté ne peut présenter que des éléments de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les ait présentés au moment du rejet;
b) une audience peut être tenue si le ministre l’estime requis compte tenu des facteurs réglementaires;
c) s’agissant du demandeur non visé au paragraphe 112(3), sur la base des articles 96 à 98;
d) s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à l’article 97 et, d’autre part :
(i) soit du fait que le demandeur interdit de territoire pour grande criminalité constitue un danger pour le public au Canada,
(ii) soit, dans le cas de tout autre demandeur, du fait que la demande devrait être rejetée en raison de la nature et de la gravité de ses actes passés ou du danger qu’il constitue pour la sécurité du Canada. |
Standards of review
[18] The first issue involves questions of mixed fact and law, and the standard of review is that of reasonableness simpliciter (Figurado v. Canada (Solicitor General), 2005 FC 347, [2005] 4 F.C.R. 387, Nadarajah v. Canada (Solicitor General), 2005 FC 713, [2005] F.C.J. No. 895 (F.C.T.D.) (QL)).
[19] The second issue involves elements of pure law and natural justice. The applicable standard of review on a question of pure law is that of correctness (Kim v. Canada (Minister of Citizenship and Immigration), 2005 FC 437, [2005] F.C.J. No. 540 (F.C.T.D.) (QL)). Where there was a breach of a principle of natural justice such as procedural fairness, no standard of review is necessary and the impugned decision must be set aside (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817).
1. Did the PRRA officer make his decision without considering evidence offered by the applicant?
[20] The applicant argues that the PRRA officer made his decision without considering evidence that had been put before him, including the report on human rights in Togo prepared by the FILDH and the FIDH news release reporting treatment of LTDH members by the State of Togo.
[21] The applicant argues that this evidence was extremely important to his claim and that the officer had a duty to consider it and refer to it in the reasons for his decision.
[22] Although there is a presumption that the PRRA officer has considered all of the evidence put before him, the applicant submits that the importance of this evidence is such that he should have mentioned it in his reasons (Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C.T.D.) (QL), Mahanandan v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1228 (F.C.A.) (QL)).
[23] The respondent replies that the PRRA officer did consider this evidence, and he relies on the following passage from the reasons for the decision:
[translation] Since the dismissal, President Eyadema has died and been replaced by his son, Faure Gnassingbe. However, the human rights record remains poor. But the changes in Togo have not affected his personal risk, given the finding that he is not a person of interest to the government….
[24] The respondent argues that the PRRA officer did consider the human rights situation in Togo as described in the documentary evidence offered by the applicant, but that the latter failed to establish any correlation between the general situation and his personal case.
[25] Having reviewed the reasons of the PRRA agent, I find that the officer was under no obligation to refer explicitly to these two pieces of documentary evidence. The principle laid down in Cepeda-Gutierrez has no application in this case, since the officer’s findings concerning human rights in Togo are not in conflict with the situation described by these documents.
[26] The PRRA officer did not find that Togo was a country in which human rights were well respected or that the State of Togo was not attacking some members of the LTDH.
[27] The applicant’s claim was dismissed because he did not offer credible evidence establishing that he was actually in Togo between 1998 and 2001, or that he would be targeted by the Togolese authorities even though his participation in the LTDH was limited to educating the people about the need not to throw garbage into the street.
2. Did the PRRA officer err in law in expecting that the applicant would offer some evidence prior to the hearing of his refugee claim?
[28] The applicant submits that the PRRA officer failed to follow the procedure provided by section 113 of the Act when he drew a negative inference from the fact that the applicant had not filled a gap in the evidence offered at his refugee hearing. The applicant cites the following passage from the PRRA officer’s reasons:
[translation] The tribunal thought that if the applicant remained in Togo between 1998 and 2001, he must have some objective documentation showing his presence in that country at that time. The applicant has had ample time since the date of the hearing (October 31, 2003) [sic] to secure it. He has not done so.
[29] The applicant alleges that the object of the PRRA process is to determine whether a claimant would be in danger if he were returned to his country, and not to “retry the claim” that was heard by the tribunal.
[30] The applicant further notes that the PRRA application form does not contain any direction requiring the claimant to offer evidence prior to the refugee claim.
[31] The applicant submits that, in ruling as he did, the PRRA officer exceeded his jurisdiction and breached the principles of natural justice by expecting that he would adduce some evidence prior to the hearing of the refugee claim.
[32] The respondent argues that the PRRA officer did no such thing, and notes that he even commenced his reasons by setting out the principle of paragraph 113(a) of the Act.
[33] The respondent states that the PRRA officer simply found a significant gap in the applicant’s PRRA application that had already existed at the time of the hearing of his refugee claim: the lack of objective and credible evidence showing his presence in Togo between 1998 and 2001. The PRRA officer accordingly did not require any evidence prior to the refugee claim but rather noted that the applicant had been unable to secure any new evidence establishing his presence in Togo during the period in question, pursuant to paragraph 113(a) of the Act.
[34] Paragraph 113(a) of the Act requires that an applicant adduce “only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection”.
[35] The applicant’s allegations in his PRRA application were virtually identical to those he made in support of his refugee claim. One of these allegations involved his presence in Togo between 1998 and 2001. In the context of the refugee claim, the tribunal did not find this allegation credible, in the absence of objective evidence.
[36] In view of the language of paragraph 113(a), it does not seem to me that the PRRA officer erred in finding that the applicant had not presented credible evidence establishing his presence in Togo between 1998 and 2001 which was not available before the rejection of his refugee claim or that he could not have presented at the time of the rejection.
[37] The fact that a PRRA application is not an appeal of the rejected refugee claim does not exempt the applicant from the need to adduce objective evidence in support of his allegations.
[38] It is correct, as the applicant submits, that the object of the PRRA process is to determine whether the applicant would today be subject to a risk of persecution, torture, a threat to his life or the risk of cruel and unusual treatment or punishment if he were returned to his country.
[39] In this specific case, the applicant alleges he is exposed to such risk because of his membership in the LTDH and because of incidents that had occurred between 1998 and 2001.
[40] Although the PRRA process focuses on the future risks that an applicant might face, it is necessary, in order to assess the seriousness of the risk alleged by the applicant, to assess the credibility of the alleged facts at the origin of the risk.
[41] In view of the language of paragraph 113(a) of the Act, and the statement of the reasons of the PRRA officer, I find that the latter simply did his work when he found that the applicant had consistently been unable to offer credible evidence establishing his presence in Togo between 1998 and 2001, which might have proved that he would be in danger should he return to Togo.
[42] The parties have decided not to submit any question for certification. This case does not reveal any.
JUDGMENT
THIS COURT ORDERS that the application for judicial review be dismissed. No question shall be certified.
“Michel Beaudry”
Judge
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6161-05
STYLE OF CAUSE: SEWA AGBODJAN-PRINCE
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 21, 2006
REASONS FOR JUDGMENT
AND JUDGMENT BY: The Honourable Mr. Justice Beaudry
DATED: July 11, 2006
APPEARANCES:
Jacques C. Roy FOR THE APPLICANT
Ian Hicks FOR THE RESPONDENT
SOLICITORS OF RECORD:
Services d’aide juridique du FOR THE APPLICANT
Centre francophone de Toronto
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario