Category: Pre Removal Risk Assessment

The Court set aside a decision of a pRRA officer. The applicant had filed an affidavit attesting to her sexual orientation. The officer rejected the affidavit saying it was insufficient evidence. The Court found that this was a credibility finding and that the officer was required to hold an oral hearing.

The Court set aside a decision when the PRRA officer applied the wrong risk standard The COurt also found that as credibuility was at issue an oral hearing ought to have been convened.

The Court set aside a PRRA refusal. The officer gave minimal weight to a letter that sentenced the applicant to death. The court took objection to this noting: [11] The second letter, the undated one, identifies the Hezbollah files and a judgment hearing number 236KM under which Mrs. Hamadi was condemned to death. The officer found this letter to have minimal probative value, notwithstanding the logo, because the translation was said to be unofficial and informal and because there was no statement as to who translated it, no attestation as to its accuracy, and no explanation as to how the document was obtained. [12] One cannot give minimal value to a death sentence. One must give it considerable value, or no value whatsoever. If one gives no value to it, it follows that the officer considered it a forgery, and therefore considered Mrs. Hamadi a liar.

The Court upheld a decision that evidence submitted to the PRRA officer was not new evidence noting: [25] In this case, the officer excluded the evidence not because it related to risk allegations made before the Board, but rather because it did not demonstrate any new developments in any risks identified before the Board, any new risks faced by the applicant, or any new facts that had come to the applicant’s attention subsequent to her hearing before the Board. In addition, the Board concluded that none of the evidence successfully rebutted the Board’s findings of fact.

The Court set aside a PRRA decision due to the failure of the officer to consider some of the evidence: [13] There is no question that the majority of the PRRA submissions dealt with the situation, at the time the PRRA application was written, of male Tamils from the north of Sri Lanka and the risk to the applicant as a member of that class if he were to return. All parties as well as the officer acknowledged that the country conditions changed for that group as a result of the end of the civil war. However, the issue the applicant raises is that the officer fails to deal with all of the allegations set out above, specifically, the allegation that the applicant faces risk as a result of “his extended stay in Canada with the resulting risk of abduction and extortion.” [14] It is not disputed that the officer did not address this concern at all. However, the respondent submits that there was no need for the officer to address this as the applicant had failed to provide evidence of personalized risk of this nature. [15] I cannot accept the respondent’s submission. It may well be that the officer could conclude, based on the material filed, that the applicant had failed to demonstrate any personalized risk of the sort alleged. However, that determination is one the officer must make; it is not for counsel or this Court to determine that fact. What the officer failed to do in this case was to turn her mind to some of the risks raised by the applicant, whether supported or not in the evidence filed in the submissions. It is noteworthy that the officer fails to state anywhere in her decision the basis on which the applicant made his PRRA submission. Perhaps if she had done so she would have addressed all of the risks identified. [16] On this basis the application must be allowed. It is unnecessary to address the other issues raised by the applicant.

The Court set aside a PRRA decision holding the officer failed to properly assess the new evidence: [7] In my view, the determinative issue in this case is whether the PRRA Officer had regard to the evidence put forward by the Applicant. The Applicant specifically references a change in his personal circumstance in Lebanon by adducing “new” evidence by way of a letter from his brother. However, as noted above, the Officer dismisses the brother’s letter in one sentence. There is no express finding by the PRRA Officer that the letter is not new evidence; nor is there an analysis of whether this letter should be admitted as “new evidence” under s. 113(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). With respect to the letter, the Officer does not consider its credibility, relevance, newness, materiality, or express statutory conditions. These factors were set out by the Federal Court of Appeal in Raza v. Canada, 2007 FCA 385, at paragraph 13, as a basis for assessing whether evidence can be omitted as “new” pursuant to s.113(a) of the IRPA.

The Court set aside a decision of the PRRA officer. The applicant had filed an affidavit setting out the basis for his fear. The officer rejected the case finding that the evidence was not credible. The Court found reviewable error holding that the officer erred in not holding an oral hearing: 13 The alleged insufficiencies in the affidavit together with the Officer's finding that the Applicant's failure to claim in the United States showed a lack of subjective fear appear to have animated his overall finding. I conclude that the Officer, in fact, made the decision on credibility grounds; quite simply, the Officer did not believe the Applicant's story and rejected the PRRA application on that basis. 14 A review of this Court's jurisprudence is not particularly helpful as each of these cases turns on its individual facts. However, speaking generally, the case at bar compares more closely with the decisions in L.Y.B. v. Canada (Minister of Citizenship and Immigration), 2009 FC 1167, [2009] F.C.J. No. 1470 (QL) and Prieto v. Canada (Minister of Citizenship and Immigration), 2010 FC 253, [2010] F.C.J. No. 307 (QL) where the Court allowed the judicial reviews on similar facts. 15 I wish to make it clear that I am not saying that an affidavit will automatically mean that an oral hearing is required. Each case will turn on its facts and what information may or may not be included in the affidavit. Nor should this decision be an invitation for applicants to expect an oral hearing where they can add details and further support. In general, an applicant bears the burden of presenting sufficient evidence to the Officer and an interview is an exception to the normal written review. However, it is obvious, from the inclusion in IRPA and the Regulations of the possibility of an oral hearing, that cases will arise where credibility can only be assessed after an oral hearing. In my view, this is one of those cases.

12 However, in my view, a hearing was required by law. Under the Immigration and Refugee Protection Act, S.C. 2001, c. 27, a hearing should be held where certain factors, prescribed by regulation, are present (s. 113(b); see Annex; see also Tekie v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 39 (QL)). In essence, the factors are whether (a) there is evidence raising a serious issue of the applicant's credibility; (b) the evidence is central to the application for protection; and (c) the evidence, if accepted, would justify allowing the application (Immigration and Refugee Protection Regulations, SOR/2002-227, s. 167; see Annex). 13 The officer's reasons persuade me that a hearing was required here. First, the officer seemed to place considerable emphasis on the credibility findings of the Immigration Appeal Division. Second, the officer found that there was insufficient objective evidence to support Mr. Liban's claim that he had a relationship with Jimmy. Third, the officer found that there was insufficient objective evidence to support Mr. Liban's claim to be an alcoholic. Fourth, the officer seemed to accept that homosexuals and alcoholics would be subjected to mistreatment in Ethiopia. Therefore, if Mr. Liban's evidence relating to his sexuality and alcoholism had been accepted, the officer would likely have allowed the application. 14 In my view, when the officer stated that there was "insufficient objective evidence" supporting Mr. Liban's assertions, he was really saying that he disbelieved Mr. Liban and, only if Mr. Liban had presented objective evidence corroborating his assertions, would the officer have believed them. To my mind, these findings are conclusions about Mr. Liban's credibility. They were central to his application. If the officer had believed Mr. Liban, the officer, in light of the documentary evidence he accepted, would likely have found that Mr. Liban was at risk.

The Court set aside the decision holding that the officer erred in refusing to accept new evidence :21 While the fact that the evidence post-dates the hearing does not per se make it new evidence, likewise evidence that refers to an old risk should not be rejected as "not new" where it speaks to the development of the risk and is materially different evidence of that old risk. 22 The error in the Officer's approach to this evidence was the failure to address the five questions or factors outlined by the Court of Appeal. This analysis is not necessarily formulaic as long as it is clear the factors were considered. The Officer concluded that the letters from the three women did not show a change of circumstances and are not new evidence. The Officer did not first consider whether the evidence was new before considering what it showed. 23 The analytical step of considering first whether the evidence was new is important in this case because the Officer did not consider (i) relevance in terms of proving or disproving a fact that was relevant to the claim of protection, and (ii) newness in terms of contradicting a finding of fact by the RPD (including a credibility finding). Therefore, there was an error of law. 24 The Officer's conclusion as to the significance of the evidence (which is tied in with the "newness" analysis) is unreasonable. Firstly, the evidence shows that the old risk is continuing, present and real; secondly, the evidence differs from that which was before the Board. It was unreasonable to reject the evidence as not new. 25 The Officer's rejection of the new evidence is further undermined by her acceptance that the Applicant was in an abusive relationship but had state protection. This was not a finding where risk was presumed as an alternative position but discounted by the availability of state protection. 26 In finding that the Applicant was in an abusive relationship, the Officer made a finding that was contrary to the Immigration and Refugee Board (Board) which rejected that submission on the grounds of credibility. The Officer accepted the only evidence which could ground a finding of abusive relationship but rejected it as not "new" for purposes of admissibility. The Officer's finding that there was no substantially different risk is unreasonable given her finding which was contrary to the Board's decision.

The Court held that the tribunal erred in refusing to receive the fresh evidence because as it was clearly relevant the officer failed to explain why it was not fresh evidence that could be considered:18 The Officer's rejection of the Committee's letter as "new evidence" ignores the ratio in Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. The letter was relevant because it was "capable of proving or disproving a fact that is relevant to the claim of protection". The letter was new evidence in that it was "capable of ... contradicting a finding of fact by the RPD (including a credibility finding)". Therefore, the rejection of the letter was an error of law. There was no analysis of the "new evidence" criteria.