Animodi v. Canada (Citizenship and Immigration)

Animodi v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2015-07-29
Neutral citation
2015 FC 929
File numbers
IMM-2545-14, IMM-2546-14
Decision Content
Date: 20150729
Dockets: IMM-2545-14
IMM-2546-14
Citation: 2015 FC 929
Ottawa, Ontario, July 29, 2015
PRESENT: The Honourable Mr. Justice Russell
Docket: IMM-2545-14
BETWEEN:
EMMANUEL ONESON ANIMODI
KEMMERY MARIA ANIMODI
LETICIA BAMISHE ANIMODI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-2546-14
AND BETWEEN:
EMMANUEL ONESON ANIMODI
KEMMERY MARIA ANIMODI
LETICIA BAMISHE ANIMODI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. INTRODUCTION [1] There are two applications for judicial review under s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act] before the Court. Both decisions are dated February 17, 2014 and were decided by the same senior immigration officer [Officer]. In IMM-2545-14, the Officer rejected the Applicants’ Pre-Removal Risk Assessment application [PRRA Decision]. In IMM-2546-14, the Officer rejected the Applicants’ application for permanent residence from within Canada on humanitarian and compassionate grounds [H&C Decision]. Due to the similarities in the factual background, the decisions, and the legal arguments, one set of reasons will be provided and filed in both IMM-2545-14 and IMM-2546-14.
II. BACKGROUND [2] The Applicants are citizens of Angola. They are a husband [Principal Applicant] and wife [Female Applicant], and their twenty-two-year-old daughter [Minor Applicant]. The Applicants also have two minor children who are Canadian citizens.
[3] The Applicants came to Canada in 1997 to seek refugee protection. They fear persecution at the hands of both the government and rebel groups. The female Applicants also fear a risk of harm due to their gender.
[4] The Principal Applicant says that he was kidnapped, detained and sentenced to death because the National Union for the Total Independence of Angola [UNITA] perceived him to be a political supporter of the government. While UNITA was transporting the Principal Applicant to the location where he says they planned to kill him, the military stopped the vehicle and arrested the UNITA members. The Principal Applicant was flown to a hospital to be treated for injuries that he sustained during the detention. The Applicants came to Canada after the Principal Applicant was released from the hospital.
[5] The Applicants’ claim for refugee protection was denied in February 1998. The Applicants were found not credible. The Convention Refugee Determination Division [CRDD] said that even if it had accepted that the Principal Applicant was at a risk of harm from UNITA, there was no reason the family could not live in the government-controlled areas of Angola. This was particularly true in light of the fact that the military had intervened to save his life and had provided him with medical treatment. The Applicants were denied leave to judicially review the decision.
[6] In support of their PRRA and H&C applications, the Applicants claim that they face new risks. The Principal Applicant says that he has been placed on the People’s Movement for the Liberation of Angola’s [MPLA] “wanted list.” He says that the MPLA believes he divulged secret government information to his UNITA captors. The Applicants also say that the female Applicants were tortured and sexually abused by UNITA members. They have been told not to return to Angola.
III. DECISIONS UNDER REVIEW A. PRRA Decision [7] In assessing the Applicants’ risk, the Officer first considered the documentary evidence. She found that the Applicants were not named in any of the general country condition articles and the articles did not enumerate the risks that the Applicants claimed to face upon return to Angola. The articles discussed risks that persons who are not similarly-situated to the Applicants face. The Officer said it is insufficient for a claimant to point to general country condition evidence without linking it to their personalized situation.
[8] The Officer considered a physician’s note which says that the Female Applicant has scars on her back which she indicates come from an old injury that occurred in Angola. The Officer noted that the physician’s note failed to indicate how long he had known the Female Applicant, how old the scars appeared to be, or how he thought the wounds were inflicted. The Officer said the note could not support the assertion that the Female Applicant and the Minor Applicant were tortured by UNITA.
[9] The Officer also considered a translated photocopy of a document issued by the Ministry of Justice. It indicates that the government has “blacklisted” the Principal Applicant because he divulged information to UNITA during his 1996 detention. It provides that the Principal Applicant should be stopped for questioning upon entering Angola. The Officer said that the Applicants had not explained why the original document was not submitted. She noted that while the document was signed, its author was not named. The Principal Applicant did not say who the document came from or how he came to have it. In counsel’s submissions, it was described as an arrest warrant; however, it does not say that the Principal Applicant should be arrested. The Officer said it did not appear to be an official document because: it provides no detail, for example, it does not indicate why the government believes the Principal Applicant disclosed information to UNITA; it makes statements that cannot be verified; it uses language like “blacklisted”; and it is unclear who the document was prepared for.
[10] The Applicants also submitted a photocopy of a declaration which says that the Principal Applicant was blacklisted by the government in 2004 for the disclosure of information in 1996. The affiant does not say how he came to have this knowledge, nor does he say what information was disclosed. There is also no information regarding how the affiant knows the Principal Applicant. The Officer found that the “warrant” and declaration were vague and unsupported by the documentary evidence.
[11] The Applicants also submitted a translated copy of the Principal Applicant’s father’s obituary. It did not support any allegations of risk.
[12] The Officer also considered a translated copy of a church registration from May 1988. It lists the Principal Applicant as the lead pastor. The Officer said it supported that the Principal Applicant was a pastor in Angola; however, it did not support any of the claimed risks.
[13] The Officer concluded that the documentary evidence did not establish that the Applicants will be at risk in Angola. The statements that the Applicants will be harmed upon return to Angola are speculative. The Officer said it was unreasonable that the Applicants would have remained persons of interest to either the Angolan government or UNITA members seventeen years after leaving Angola. The Applicants also failed to provide any objective documentary evidence to overcome the CRDD’s findings.
[14] The Officer also considered the issue of state protection. She could not find any risks that had not already been considered by the CRDD. Angola is a democracy with a functioning judiciary and police force.
[15] The Officer concluded that there was less than a mere possibility that the Applicants would face any risk upon return to Angola.
B. H&C Decision [16] The Officer said that her consideration of the Applicants’ H&C application would include the following factors: discrimination or adverse country conditions in Angola which directly impact the Applicants; the Applicants’ establishment in Canada including whether the severance of personal and familial ties would constitute hardship; and, the best interests of the children [BIOC].
[17] The Officer said that the Applicants had not provided any submissions on the hardships they may face in Angola due to adverse country conditions. As a result, she considered their PRRA submissions. She concluded that the documentary evidence was general and did not describe the experiences of persons who are similarly-situated to the Applicants. The Officer reached the same conclusions, with the same analysis, regarding the “warrant,” the affidavit, the obituary, the physician’s note, and the church registration. She found that the evidence did not support that the Applicants face any hardship due to adverse country conditions in Angola.
[18] Regarding establishment in Canada, the Officer noted that both the Principal Applicant and the Female Applicant were educated in Angola. They have both completed employment-related courses in Canada. The Officer reviewed the Applicants’ employment history, in addition to two charities and a business that they run. The Principal Applicant was charged with sexual assault in 2011, but the outcome of the charge was not indicated. The Female Applicant was convicted of fraud over $5000 in 1997. The Officer placed positive consideration on the Minor Applicant’s academic achievements, good character and contribution to the community. She submitted many certificates of recognition for her scholastic achievements and community involvement. She was accepted to college but it was unclear whether she attended. She had completed one year of university.
[19] The Applicants have no family in Canada but foster and maintain friendships in the community. They submitted letters of support from community members but there was no information about how their departure would cause any hardship. There was also no evidence relating to the establishment of the two Canadian children. As the children are Canadian citizens, the Officer noted that whether they are removed will be a familial decision.
[20] The Officer said that the submissions regarding the minor children generally were minimal. She acknowledged that the children perform well at school and said that she assumed the children are involved in extra-curricular activities and friendships with their peers. However, the Applicants only submitted that the children would face hardship due to the adverse country conditions in Angola. The Officer said that while the children may enjoy better opportunities in Canada, there was no evidence to suggest that it would not be in the children’s best interests to return to Angola with their parents. She said there was no evidence that the children would not receive an education and have their parents’ love and support in Angola.
[21] The Officer said there were no impediments to the family’s return to Angola. They have family members who continue to reside in Angola who can assist them in resettling. The Officer concluded that the Applicants had not demonstrated that their removal to Angola would constitute unusual and undeserved or disproportionate hardship.
IV. ISSUES [22] The Applicants raise a plethora of issues in their submissions. In my view, the issues can be summarized as follows:
A. PRRA Decision 1. Whether the Officer’s credibility findings are reasonable;
2. Whether the Officer’s treatment of the evidence was reasonable;
3. Whether the Decision is reasonable;
Whether the Officer’s state protection analysis is reasonable; Whether the Officer erred in failing to consider whether the Applicants had established that they were at risk, notwithstanding her credibility findings; and,
4. Whether the Officer breached procedural fairness by failing to disclose her extrinsic research.
B. H&C Decision 1. Whether the Officer’s treatment of the evidence was reasonable;
2. Whether the reasons are adequate;
3. Whether the Decision is reasonable;
Whether the Officer’s assessment of the BIOC was adequate; and,
4. Whether the Officer breached procedural fairness by failing to disclose her extrinsic research.
V. STANDARD OF REVIEW [23] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48.
[24] Neither party addresses the standard of review. The issues of procedural fairness will be reviewable on a standard of correctness: Mission Institution v Khela, 2014 SCC 24 at para 79; Exeter v Canada (Attorney General), 2014 FCA 251 at para 31. The Officer’s credibility findings and her treatment of the evidence are reviewable on a standard of reasonableness: Aguebor v Minister of Employment and Immigration (1993), 160 NR 315 (FCA); Singh v Minister of Employment and Immigration (1994), 169 NR 107 (FCA); Malveda v Canada (Citizenship and Immigration), 2008 FC 447 at para 19. The Officer’s application of the law to a particular applicant’s circumstances is reviewable on a standard of reasonableness in both a PRRA application (Jainul Shaikh v Canada (Citizenship and Immigration), 2012 FC 1318 at para 16; Singh v Canada (Citizenship and Immigration), 2014 FC 11 at para 20) and an H&C application (Kanthasamy v Canada (Citizenship and Immigration), 2014 FCA 113 at para 37). The adequacy of the reasons will be reviewed as part of the reasonableness review: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 14-16.
[25] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: see Dunsmuir, above, at para 47; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59 [Khosa]. Put another way, the Court should intervene only if the Decisions were unreasonable in the sense that they fall outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
VI. STATUTORY PROVISIONS [26] The following provisions of the Act are applicable in these proceedings:
Humanitarian and compassionate considerations — request of foreign national
Séjour pour motif d’ordre humanitaire à la demande de l’étranger
25. (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35 or 37 — who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
25. (1) Sous réserve du paragraphe (1.2), le ministre doit, sur demande d’un étranger se trouvant au Canada qui demande le statut de résident permanent et qui soit est interdit de territoire — sauf si c’est en raison d’un cas visé aux articles 34, 35 ou 37 —, soit ne se conforme pas à la présente loi, et peut, sur demande d’un étranger se trouvant hors du Canada — sauf s’il est interdit de territoire au titre des articles 34, 35 ou 37 — qui demande un visa de résident permanent, étudier le cas de cet étranger; il peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des considérations d’ordre humanitaire relatives à l’étranger le justifient, compte tenu de l’intérêt supérieur de l’enfant directement touché.
[…]
[…]
Non-application of certain factors
Non-application de certains facteurs
(1.3) In examining the request of a foreign national in Canada, the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national.
(1.3) Le ministre, dans l’étude de la demande faite au titre du paragraphe (1) d’un étranger se trouvant au Canada, ne tient compte d’aucun des facteurs servant à établir la qualité de réfugié — au sens de la Convention — aux termes de l’article 96 ou de personne à protéger au titre du paragraphe 97(1); il tient compte, toutefois, des difficultés auxquelles l’étranger fait face.
[…]
[…]
Public policy considerations
Séjour dans l’intérêt public
25.2 (1) The Minister may, in examining the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act, grant that person permanent resident status or an exemption from any applicable criteria or obligations of this Act if the foreign national complies with any conditions imposed by the Minister and the Minister is of the opinion that it is justified by public policy considerations.
25.2 (1) Le ministre peut étudier le cas de l’étranger qui est interdit de territoire ou qui ne se conforme pas à la présente loi et lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, si l’étranger remplit toute condition fixée par le ministre et que celui-ci estime que l’intérêt public le justifie.
[…]
[…]
Convention refugee
Définition de « réfugié »
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
Person in need of protection
Personne à protéger
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Person in need of protection
Personne à protéger
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.
(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.
[…]
[…]
Application for protection
Demande de protection
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).
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).
[…]
[…]
Consideration of application
Examen de la demande
113. Consideration of an application for protection shall be as follows:
113. Il est disposé de la demande comme il suit :
(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;
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;
[…]
[…]
(c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98;
c) s’agissant du demandeur non visé au paragraphe 112(3), sur la base des articles 96 à 98;
VII. ARGUMENT A. PRRA Decision (1) Applicants [27] The Applicants submit that the Officer erred in her treatment of the evidence. For example, the Officer erred by focusing on what the physician’s note did not say, rather than on what it does say: Mahmud v Canada (Minister of Citizenship and Immigration) (1999), 167 FTR 309; Bagri v Canada (Minister of Citizenship and Immigration) (1999), 168 FTR 283. She also erred by speculating about what should have been in the documentation: Kaur v Canada (Minister of Citizenship and Immigration), 2005 FC 873; Ukleina v Canada (Citizenship and Immigration), 2009 FC 1292 [Ukleina]. Evidence cannot be rejected simply because it is self-serving: BC v Canada (Minister of Citizenship and Immigration), 2003 FC 826.
[28] The Officer also erred in rejecting the warrant. Officers have no expertise in foreign documents: Ramalingam v Canada (Minister of Citizenship and Immigration), [1998] FCJ no 10 (QL)(TD). It is an error to reject foreign documents without any evidence of their invalidity: Halili v Canada (Minister of Citizenship and Immigration), 2002 FCT 999; Rasheed v Canada (Minister of Citizenship and Immigration), 2004 FC 587; Rojas v Canada (Citizenship and Immigration), 2011 FC 849. Before rejecting the document, the Officer should have asked the Royal Canadian Mounted Police [RCMP] to verify its authenticity.
[29] The Officer also failed to consider the evidence which contradicted her findings of state protection: Simpson v Canada (Minister of Citizenship and Immigration), 2006 FC 970. The Officer is entitled to prefer certain evidence but must provide reasons for doing so in clear and unmistakable terms: Karayel v Canada (Citizenship and Immigration), 2010 FC 1305; Castro v Canada (Minister of Citizenship and Immigration), 2005 FC 1165 at para 34; Okyere-Akosah v Minister of Employment and Immigration (1992), 157 NR 387 (CA). The Officer referred to only one source which not only was never disclosed to the Applicants but its publication date also post-dates her decision: Ali v Minister of Employment and Citizenship (1994), 80 FTR 115.
[30] The Applicants also submit that the state protection analysis was wrong. The Officer erred in relying on the general finding that Angola is a democracy: Kadenko v Canada (Solicitor General) (1996), 143 DLR (4th) 532 (FCA); Katwaru v Canada (Citizenship and Immigration), 2007 FC 612 [Katwaru]; Diaz De Leon v Canada (Citizenship and Immigration), 2007 FC 1307. The Applicants say that Angola is not truly a democracy or a functioning state. The Officer was also required to analyze the effectiveness of the state protection available: Elcock v Canada (Minister of Citizenship and Immigration) (1999), 175 FTR 116 at para 15; Vigueras Avila v Canada (Minister of Citizenship and Immigration), 2006 FC 359. The Officer also failed to consider the Applicants’ personal circumstances: Cejudo Lopez v Canada (Citizenship and Immigration), 2007 FC 1341; Tufino v Canada (Minister of Citizenship and Immigration), 2005 FC 1690. She also ignored the fact that one of the sources of persecution is the Angolan government: Chaves v Canada (Minister of Citizenship and Immigration), 2005 FC 193 at para 15; Gallo Farias v Canada (Citizenship and Immigration), 2008 FC 1035.
[31] The Officer also erred in finding microscopic defects in the Applicants’ credibility. She erred by focusing on the negative credibility determination and failed to consider whether the Applicants face risk notwithstanding her credibility finding: Attakora v Minister of Employment and Immigration (1989), 99 NR 168 (FCA); Alexandre-Dubois v Canada (Citizenship and Immigration), 2011 FC 189.
(2) Respondent [32] The Respondent submits that the bulk of the Applicants’ submissions are vague references to errors but the Applicants fail to point to where these errors occur in the Decisions. For example, the Applicants fail to show where the Officer speculated about what should have been in the physician’s note, where its bona fides was questioned, or where the Officer rejected it for being self-serving. The Officer reasonably found that the physician’s note did not corroborate the Female Applicant’s torture allegation. A physician’s statement that a scar exists cannot prove who put it there or under which circumstances: Sanaj v Canada (Citizenship and Immigration), 2012 FC 744 at para 17.
[33] The Officer also does not require any expertise to note the warrant’s limitations and oddities. The jurisprudence simply says that an officer must have valid grounds to doubt official documents. The Officer provided a number of reasonable explanations for not accepting the letter as evidence of its contents. Officers have no duty to send government letters to the RCMP to judge their authenticity: Culinescu v Canada (Minister of Citizenship and Immigration) (1997), 136 FTR 241; Mohanarajan v Canada (Minister of Citizenship and Immigration), [2000] FCJ no 1846 (QL) at para 32 (TD).
[34] The Officer reasonably did not mention all of the articles she considered because they are unrelated to the Applicants’ claim that the Principal Applicant will be targeted because the government suspects him of revealing secrets. It is irrelevant that one article post-dates the PRRA Decision given its low relevance.
[35] Finally, the Officer did not reject the Applicants’ application due to a credibility assessment but rather because the Applicants failed to substantiate their claim of risk. The Officer reasonably relied upon the CRDD decision. The Officer did not ignore their particular profile or personalized evidence. The Officer did not consider the Applicants’ claim that the Angolan government will persecute the Principal Applicant because she rejected this claim. The Applicants have also failed to provide evidence to show that the Officer erred in finding that Angola is a democratic country.
(3) Applicants’ Reply [36] In reply, the Applicants reiterate their earlier submissions. They assert that their claim was rejected on a credibility determination because the Officer did not accept the bona fides of the arrest warrant or the physician’s note.
(4) Respondent’s Further Submissions [37] The Respondent says there is no overt nor veiled credibility finding in the PRRA Decision: see Liban v Canada (Citizenship and Immigration), 2008 FC 1252 at para 13; Haji v Canada (Citizenship and Immigration), 2009 FC 889 at para 14. The Officer clearly laid out her reasons for rejecting the documentary evidence; she did not reject them because of the Principal Applicant’s credibility problems before the CRDD. It is not the Court’s role to reweigh the evidence: Saadatkhani v Canada (Minister of Citizenship and Immigration), 2006 FC 614 at para 5.
B. H&C Decision (1) Applicants [38] The Applicants submit that the Officer was unreasonably harsh and hypercritical in finding defects with their application: Katwaru, above; Southam Inc v Canada (Minister of Employment and Immigration), [1987] 3 FC 329 (TD). She made improper speculations that were not rooted in the evidence: Ukleina, above; Alvarado De Alvarez v Canada (Citizenship and Immigration), 2011 FC 1287 at para 53.
[39] The Officer breached procedural fairness in failing to disclose her extrinsic research and in denying the Applicants an opportunity to respond: Kahin v Canada (Citizenship and Immigration), 2011 FC 1064; Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817; Yassine v Minister of Employment and Immigration (1994), 172 NR 308 (FCA).
[40] The reasons for the H&C Decision are inadequate: Javed v Canada (Minister of Citizenship and Immigration), 2004 FC 1458; Adu v Canada (Minister of Citizenship and Immigration), 2005 FC 565 at paras 13-14; Joseph v Canada (Citizenship and Immigration), 2013 FC 993 at para 29. Despite detailing the Applicants’ positive establishment over seventeen years in Canada, she did not explain why she was not satisfied that removal would constitute hardship. The Officer failed to consider the Applicants’ personal circumstances: Mohacsi v Canada (Minister of Citizenship and Immigration), 2003 FCT 429. She did not assess the hardship that the Applicants will experience in trying to reintegrate in Angola after being away for more than seventeen years.
[41] The Officer also performed an inadequate analysis of the BIOC: Arulraj v Canada (Minister of Citizenship and Immigration), 2006 FC 529 at para 16; Canada (Minister of Citizenship and Immigration) v Hawthorne, 2002 FCA 475. She imported an erroneous “adverse impact” requirement into her analysis. She also failed to consider the BIOC from the perspective of the children: Alie v Canada (Citizenship and Immigration), 2008 FC 925; Sylvester v Canada (Citizenship and Immigration), 2012 FC 17.
(2) Respondent [42] The Respondent submits that the Applicants have failed to show how the H&C Decision is unreasonable. It is irrelevant that the Applicants can point to a list of factors that could have led to a favourable decision; the issue is whether the Decision is reasonable: Dunsmuir, above, at para 47.
[43] The Officer did not err in failing to disclose her independent country condition evidence because it did not affect the disposition of the case: Mancia v Canada (Minister of Citizenship and Immigration), [1998] 3 FC 461 (CA) [Mancia]. The H&C application was denied because the Applicants provided insufficient evidence of their hardship, not because of anything the Officer relied upon in her own country condition research.
[44] The Applicants have failed to show how the reasons for the Decision are inadequate: Dunsmuir, above. They have also failed to show what personalized evidence the Officer failed to consider.
[45] Similarly, the Applicants have failed to identify any case law which would support their argument that the Officer applied the wrong test in assessing the BIOC.
(3) Applicants’ Reply [46] In reply, the Applicants submit that it is clear that the Officer considered extrinsic evidence because she listed it in her list of cited resources.
(4) Respondent’s Further Submissions [47] In further submissions, the Respondent submits that the Officer’s affidavit shows that her independent research did not affect the disposition of this case and did not need to be disclosed.
VIII. ANALYSIS A. PRRA Decision – IMM-2545-14 [48] The Applicants have mounted a vigorous attack on the PRRA Decision and raised many grounds of review. However, much of what the Applicants have to say is wide of the mark because they neglect to address the true basis of the Decision. Also, much of what the Applicants have to say is bald, unsupported assertion that inaccurately describes the Decision. They also raise principles and cite extensive jurisprudence that is simply not relevant to this case. The claims were rejected on the simple ground that the Applicants had failed to provide sufficient evidence to support the forward-looking risks which they said they feared.
[49] The Officer found that the Applicants did not provide sufficient evidence to substantiate their alleged forward-looking risks if they return to Angola and so did not bring themselves within the meaning of either Convention refugees or persons in need of protection.
[50] The Applicants alleged that they were at risk of persecution or harm in Angola as a result of their political opinion and their membership in a particular social group. Specifically they said that members of UNITA regarded the Principal Applicant as a supporter of the government of Angola, but he had also been placed on a “wanted list” by the government of Angola who believe that, during the time the Principal Applicant was kidnapped and unlawfully imprisoned by UNITA, he had divulged secret government information to UNITA. So the Applicants claimed that they faced persecution and risk from both government forces and from rebel forces if they return to Angola.
[51] In addition, the Female Applicant and the Minor Applicant claimed they faced persecution and risk because of gender. They claimed to have been subjected to sexual abuse and torture at the hands of UNITA members in the past.
[52] The CRDD had earlier found that the Principal Applicant had not established that he faced persecution or risk from government forces (Certified Tribunal Record [CTR] at 10-11):
Credibility and well-foundedness of fear of persecution were the central issues in these claims. With respect to credibility, the claimant provided an account of his trip to Canada which was so manifestly implausible that the panel could only believe the claimant was misleading them.
Although the documentary evidence is clear regarding the lengthy civil war in Angola and the human rights abuses which have been committed regularly on both sides, there was no reason to believe that the claimant, despite his subjective fears, would be persecuted by the government should he return to Angola. By his own admission, he did not have political views which could be suspect since he claimed to be ‘neutral regarding the struggle between UNITA and government forces’. Although he allegedly suffered at the hands of UNITA forces for perceived pro government opinions, he had never personally been targeted by the government, although he feared the general violence which characterized the civil war in Angola.
Even if the panel were to accept the claimant's account of torture and imprisonment by UNITA forces, there does not appear to be any valid basis for the claimant fearing persecution in the government-controlled areas of Angola, particularly the capital, Luanda, where he and his family lived for many years.
In fact, far from being targeted by the government, the claimant's life was allegedly saved by government intervention after his capture by UNITA forces. He was flown to Luanda in a military helicopter; he was provided with free medical care at a government military hospital and was allowed to move about freely after his release. In view of this, the panel concludes that there is no serious possibility that the claimant would be persecuted in Luanda and other government-controlled areas of Angola.
[53] To support new assertions of risk, the Applicants produced both general and specific documentation that was examined by this Officer.
[54] The Officer examined the general country condition documents but found that they did not refer to the Applicants and did not deal with the risks which the Applicants claim to face. The human rights situation in Angola might be problematic, but this does not mean that the Applicants are at risk from either UNITA or government forces and it does not mean that the Female Applicant and the Minor Applicant are at risk because of their gender. The Officer found that the general country documentation described “specific events and conditions faced by persons not similarly situated to the applicants.” The Applicants have pointed to nothing that suggests this finding was unreasonable. The finding has nothing to do with the credibility of the Applicants whose subjective fears were not questioned. The general documents simply do not support that their subjective fears are well founded.
[55] The Applicants have been away from Angola since 1997 and were found not to be at risk by the CRDD, so they needed to produce evidence to show that circumstances have changed and that they are now at risk. Some of the documents they produced – the obituary of the Principal Applicant’s father and the 1988 church registration – did not support any forward-looking risk or substantiate anything of relevance that may have happened in the past.
[56] The Officer specifically addresses the two-line letter from Dr. Akeem Anifowoshe which related to the Female Applicant. The Officer dealt with this letter as follows (CTR at 11):
Submitted as evidence is a two line letter dated 20 July 2011 from Dr. Akeem Anifowoshe. Dr. Anifowoshe states that he examined the FA on 20 July 2011. He states, “Kemmery Animodi was examined today several scars was noted on her back. This is the result of an old injury from an incident that occurred when she lived in Angola.” It is noted that Dr. Anifowoshe does not indicate how long he has been the FA’s physician. He does not indicate how old the scars appear to be or how he believes they were inflicted on the FA. While not indicated it is reasonable to assume that this letter has been provided to support that the FA was “tortured” while in Angola by members of the UNITA. I do not find that this letter supports the FA or her daughter was tortured in UNITA. The doctor does not indicate that the scars were the result of torture by the UNITA. Further, the doctor’s l