Date: 20061128
Docket: IMM-382-06
Citation: 2006 FC 1435
BETWEEN:
SANKAR
SEN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1]
These
reasons follow the hearing on the 15th of November, 2006, at
Toronto, of an application for judicial review of a decision of a Pre-Removal
Risk Assessment Officer (the “Officer”) wherein the Officer determined “…on the
totality of the evidence before [her]…that there is not more than a mere
possibility that the Applicant [Sankar Sen] would be persecuted if he were to
return to Bangladesh. Further, that there are no substantial grounds to
believe that the applicant would face torture nor are there reasonable grounds
to believe that the applicant would face a risk to life or to cruel or unusual
treatment or punishment.” The decision under review is dated the 3rd
of January, 2006.
BACKGROUND
[2]
The
Applicant is a forty-eight (48) year old citizen of Bangladesh. The
majority of the population of Bangladesh is Muslim. The
Applicant is a minority member of the Hindu faith.
[3]
In
January of 1997, the Applicant fled what he alleged to be persecution in Bangladesh, by reason
of his Hindu faith and his community activism. Upon arrival in Canada, he made a
claim to Convention refugee status. That claim was rejected by the Convention
Refugee Determination Division, the predecessor to the Refugee Protection
Division, of the Immigration and Refugee Board, on the 9th of
February, 1999.
[4]
In
August of 2002, the Applicant voluntarily left Canada and returned to Bangladesh in order to
avoid execution of a removal order issued against him. He attested:
…I decided to effect my
own removal because I did not want to be deported into the hands of the Bangladesh police, due
to my fear of persecution.
[5]
In
October of 2001, following national elections in Bangladesh, and
following further harassment or, what the Applicant alleged to be persecution,
the Applicant again fled Bangladesh. He travelled on false
documentation through Dubai, Belgium and the United
States.
He made no claim for protection in any of those countries. From the United
States, he arrived in Canada on the 4th of July, 2003 where
he attempted to make a further Convention refugee claim. His attempt was
rejected on the basis of his previous unsuccessful claim in this country.
[6]
The
Applicant was invited to make an application for a Pre-Removal Risk Assessment
(“PRRA”). He filed a PRRA application. On the 5th of November,
2003, that application was rejected.
[7]
On
the 15th of December, 2003, this Court stayed the removal of the
Applicant based on an application for leave and for judicial review of the
first PRRA Officer’s decision. On the 5th of January, 2005, this
Court allowed the Applicant’s application for judicial review of that PRRA
decision and ordered reconsideration of the Applicant’s PRRA application.
[8]
On
the 11th of February, 2005, in connection with the PRRA
reconsideration, the Applicant made further submissions and updated his file
providing up-to-date information concerning his family in Bangladesh and country
conditions there.
[9]
The
decision here under review followed. Based upon this application for judicial
review, this Court once again granted a stay of the Applicant’s removal.
THE ISSUES
[10]
On
this application for judicial review, the Applicant, in the Memorandum of
Argument filed on his behalf, identified the following issues: first, whether
the Officer erred in law or breached procedural fairness in basing her decision
on adverse credibility findings without affording the Applicant a hearing; and
secondly, whether the Officer, based her decision on erroneous findings of fact
made in a perverse or capricious manner or without regard to the material
before her.
[11]
Presumably
as a sub-issue of the second issue, the Applicant urged that the Officer erred
in a reviewable manner in failing to give reasons for preferring some evidence
over other evidence.
[12]
Counsel
for the Respondent, in a Further Memorandum of Argument filed the 25th
of August, 2006, urged that: first, no oral hearing was required on the
Applicant’s second PRRA application because the Applicant’s credibility was not
a “central” issue; secondly, that the Officer’s weighing of the evidence and
findings of fact were not patently unreasonable; thirdly, that the Officer was
presumed to have considered all of the evidence and there were no good grounds
for believing otherwise on the material that is before the Court; and finally,
that it was open to the Officer to exercise her judgment and prefer some
evidence, not only on behalf of the Applicant but in documentary form, in
making findings of fact that were reasonable.
[13]
As
on all applications for judicial review such as this, in addition to the foregoing,
the appropriate standard or standards of review was in issue, although no
significant difference between counsel for the parties was presented on this
issue.
THE DECISION UNDER
REVIEW
[14]
In
light of the issues presented on this application, I regard the Court as
obliged to set out in detail the substance of the decision under review. That
substance follows:
I have read and
considered the PRRA application dated July 25, 2003 and submissions in their
entirety. I have also read the Reasons for Decisions by the IRB dated January
7, 1999.
I have read the negative
PRRA decision dated November 5, 2003. I have also read the Federal Court
Decision dated January 5, 2005 which grants judicial review and sets aside the
negative PRRA decision of November 5, 2003 to be considered by another officer.
In their decision the
IRB cited a number of credibility problems. It wrote, “In view of the
confusion produced in [by] the claimant during his testimony by the term
“fundamentalist”, the panel seriously doubts that he wrote the original version
of the text translated in his PIF.” The panel further found that his
answers contradicted his story and wrote, “the panel concludes that the
claimant assuredly never suffered all the alleged attacks….nothing about the
claimant’s alleged position in his party justifies his being repeatedly
attacked with such violence.” (RPD Reasons for Decision, M97-00647 January
7, 1999)
I have read and
considered the original documentation package that was supplied with the
initial PRRA application as well as the additional submissions and
documentation that have been provided for my consideration.
The applicant states
that since his return to Canada, his wife has been attacked in their
home and robbed, and his oldest daughter has been forced to abandon her studies
due to harassment and threats. The applicant has provided a medical
certificate from Bangladesh which indicates that his wife had a head
injury. I give the medical certificate little weight in that the report does
not indicate what caused the injuries. The family situation does not support
the applicant’s claim of risk. Other members of his family remain in Bangladesh. The
applicant has listed on his PRRA application that he has a mother, 2 brothers
and 2 sisters still residing in Bangladesh. He does not indicate
in his application or submissions that these family members are being targeted
by the fundamentalists.
The applicant has
provided a letter from the President of the Hindu Buddhist Christian Council.
I give this letter little weight. The writer explains that the “goons
continue their search for him. His family was routinely harassed and
intimated,” however, the letter does not provide relevant information as to
why this particular member of their group is being targeted.
The actions of the
applicant are not those of a person who is in fear for his life. The applicant
made a refugee claim in Canada in 1997 which was refused. He left Canada and returned
to Bangladesh in August
2002. He states that he encountered further attacks and was once again forced
to flee his country. He left Bangladesh and passed through Dubai, Belgium and
the U.S. The
applicant does not indicate that he attempted to make a refugee claim in any of
those countries. Despite having been refused refugee status in Canada, the
applicant chose to return here rather than make a claim in any of the three
other countries through which he traveled. The applicant does not indicate
that he made any attempt to help his wife and daughters flee. Despite the fact
that it is now his wife and daughters who he states are being targeted.
Documentary evidence
does indicate that there have been some terrible attacks on Hindus throughout Bangladesh. There have
been reports of homes being burned as well as temples. There have also been
reports of women being raped. The reports cite some of these attacks as having
been because of the victim’s Hindu religion, other reports indicate that many
of the attacks occurred due to land disputes.
The applicant has been
out of Bangladesh since 1997,
except for the 10 months he spent there from August 2002 to June 2003. He
cites one incident of the goons going to his home to look for him in December
2004 and pushing his wife against a wall and robbing her of gold bangles and asking
for money. He states that the police refused to help her and suggested that
she move from her home. He states that his wife and daughters moved to his
brother’s home, still in Chittagong. The applicant does
not indicate that there have been further attacks.
It is not reasonable
that the fundamentalists who are actively searching for him and mistreating his
family would limit their search to his wife’s home and not attempt to find him
at the homes or [of] his other family members. I note that his wife and
children remain in Chittagong and have done so since the applicant left in
1997. This conduct is not consistent with receiving constant threats and
harassment.
I have read and
considered the numerous articles and documents provided by the applicant. I
note that these articles report on the inter-religious violence that occurs
throughout Bangladesh. Many of
the articles highlight the difficulties and attacks faced by Hindus as well as
other minority groups such as Christians and Ahmadiyya. Most indicate that
there was a rise in violence both before and after the October 2001 elections.
Other serious attacks
have occurred in more recent years, however the documentary evidence does not
indicate that the number of serious attacks has risen. Some documentary
evidence indicates that there continues to be isolated incidents, however, in
2004 there were no major Muslim-Hindu clashes reported in the media.
“As with the Ahmadiyya
mosques, the government also took steps to provide police protection for the
religious festivals of other minorities, most notably the Hindus. No major
incident of Hindu-Muslim communal violence was reported in the media in 2004.
However, over the past few decades, Hindus have faced continual
discrimination. For example, immediately following the 2001 elections, the
Hindus were subjected to various forms of violence including killing, assault,
rape, ransom-seeking, and loss of property.”
…
[15]
The
Officer then recited at length extracts from the documentary evidence before her
on which she chose to rely. Finally, she concluded:
Most of the documentary
evidence supports that there is discrimination against the Hindus and other
religious minorities. The documentary evidence does not support that Hindus
are being persecuted throughout Bangladesh. I acknowledge that
the applicant made several moves during the 10 months that he was back in Bangladesh. However, his
large extended family and his immediate family of a wife and 2 daughters have
remained in the same area of Bangladesh since the applicant
left in 1997. This fact contradicts the allegations that they are being
continuously harassed and targeted by the fundamentalists. The applicant
states he suffered numerous attacks by Muslim fundamentalists, the final one
being on June 20th at his friend’s house in a village far from his
home. The applicant does not indicate if the attackers were related to the
other Muslim fundamentalists, nor does he provide details about his attackers.
The applicant has provided letters from the BHBCUC however they do not provide
information regarding why the applicant would be targeted, as opposed to other
members of their council or other Hindus.
The text quoted in paragraph 1 of these
reasons follows.
ANALYSIS
Standards of
Review
[16]
Allegations
of procedural unfairness or denial of natural justice do not attract a
pragmatic and functional analysis. Such issues are reviewed on a standard of
review of correctness.
[17]
I
am satisfied that “correctness” is the appropriate standard of review on the
issue of failure to provide the Applicant with a hearing, before the Officer
reached the decision here under review.
[18]
In
Yousef v. Canada (Minister of Citizenship and Immigration), my
colleague Justice Barnes summarized the standard of review applicable to PRRA
decisions, on issues that are other than issues of natural justice or
procedural fairness. He wrote at paragraph 17 of his reasons:
In Demirovic v. Canada (Minister of
Citizenship and Immigration), …Justice Eleanor Dawson considered several
previous authorities which dealt with the standard of review applicable to PRRA
decisions. I adopt her statement at paragraph 23 in that decision and apply it
here:
As to the
appropriate standard of review to be applied to a decision of a PRRA officer,
in Kim v. Canada (Minister of Citizenship and Immigration),…Mr. Justice
Mosley, after conducting a pragmatic and functional analysis, concluded that
“the appropriate standard of review for questions of fact should generally be
patent unreasonableness, for questions of mixed law and fact, reasonableness simpliciter,
and for questions of law, “correctness”. Mr. Justice Mosley also endorsed the
finding of Mr. Justice Martineau in Figurado v. Canada (Solicitor
General),…that
the appropriate standard of review for the decision of a PRRA officer is
reasonableness simpliciter when the decision is considered “globally and
as a whole”. This jurisprudence was followed by Madame Justice
Layden-Stephenson in Nadarajah v. Canada (Solicitor
General),…
. For the reasons given by my colleagues, I accept this to be an accurate
statement of the applicable standard of review.
Like Justice Barnes, I adopt Justice
Dawson’s summary as my own. I find no basis on the decision under review and
the facts of this matter that would justify a variation from the foregoing
analysis.
Right to a Hearing
[19]
The
opening words of section 113 of the Immigration and Refugee Protection Act and
paragraph (b) of that section read as follows:
|
113.
Consideration of an application for protection shall be as follows:
|
113.
Il est disposé de la demande comme il suit :
|
|
…
|
…
|
|
(b) a hearing may be held if the Minister, on the basis
of prescribed factors, is of the opinion that a hearing is required;
|
b) une audience peut être
tenue si le ministre l’estime requis compte tenu des facteurs réglementaires;
|
|
…
|
…
|
[20]
Section
167 of the Immigration and Refugee Protection Regulations reads as
follows:
|
167. For the
purpose of determining whether a hearing is required under paragraph 113(b)
of the Act, the factors are the following:
|
167. Pour
l’application de l’alinéa 113b) de la Loi, les facteurs ci-après
servent à décider si la tenue d’une audience est requise :
|
|
(a) whether there is evidence that raises a serious issue
of the applicant's credibility and is related to the factors set out in
sections 96 and 97 of the Act;
|
a) l’existence d’éléments de
preuve relatifs aux éléments mentionnés aux articles 96 et 97 de la Loi qui
soulèvent une question importante en ce qui concerne la crédibilité du
demandeur;
|
|
(b) whether the evidence is central to the decision with
respect to the application for protection; and
|
b) l’importance de ces
éléments de preuve pour la prise de la décision relative à la demande de
protection;
|
|
(c) whether the evidence, if accepted, would justify
allowing the application for protection.
|
c) la question de savoir si
ces éléments de preuve, à supposer qu’ils soient admis, justifieraient que
soit accordée la protection.
|
[21]
Counsel
for the Applicant urges that the decision under review is, in fact, though not
explicitly, based upon a rejection of the credibility of the Applicant and that
therefore the requirements of paragraph 167(a) of the Regulations are
fulfilled. By contrast, counsel for the Respondent urges that the decision
under review involves no credibility determination but rather a determination
regarding the “adequacy”, both qualitatively and quantitatively, of the
evidence put forward by the Applicant in support of his claim as to the risks
that he would face if required to return to Bangladesh.
[22]
Against
paragraph 167(b) of the Regulations, I interpret submissions of counsel
before me as evidencing no disagreement that the Applicant’s evidence is
central to the decision with respect to the Applicant’s application for
protection and I find no reason to reach any other conclusion based upon the
analysis and reasoning of the Officer herself. Finally, I am satisfied that
the evidence presented by the Applicant, both oral and documentary, if
accepted, would justify allowing this application for protection. Thus, the
issue turns on paragraph 167(c) of the Regulations.
[23]
In
Selliah v. Canada (Minister of
Citizenship and Immigration), my
colleague Justice Blanchard wrote at paragraph 27 of his reasons:
Upon reviewing the above-noted
factors set out in section 167 of the Regulations I am satisfied that the
prescribed circumstances were not present in the instant case that would
warrant the holding of an oral hearing. The applicants’ credibility was not
the determining issue of the decision, rather the officer found that the risks
to the applicants had not been established on the objective evidence, such
as the advances made with the peace process and the existence of an internal
flight alternative…for the applicants. The Officer clearly indicated that even
if she had accepted all the evidence adduced by the applicants, it would have
been insufficient to warrant a positive finding. As the sufficiency of
evidence was the central issue, and no serious issue of credibility was raised,
there was no obligation on the part of the officer to hold an oral hearing:…
.
[citation
omitted, emphasis added]
[24]
I
am satisfied that, on a careful reading of the decision here under review, much
the same might here be said. The Applicant’s credibility was, I am satisfied,
not the determining issue on this decision, either explicitly or implicitly.
To paraphrase the foregoing quotation, …rather the Officer found that the risk
to the Applicant had not been established on the totality of the evidence
presented by him or on the basis of that evidence read together with the
objective documentary evidence. Further, the Officer determined that the
Applicant’s evidence, taken as a whole, was simply insufficient to warrant a
decision in his favour. I adopt the closing sentence of the above quotation as
my own, and I repeat: “As the sufficiency of evidence was the central issue and
no serious issue of credibility was raised, there was no obligation on the part
of the Officer to hold an oral hearing”.
[25]
To
the same effect, see Iboude v. Canada (Minister of
Citizenship and Immigration) where my
colleague Justice de Montigny wrote at paragraph 13 of his reasons:
Parliament stated, at
section 167 of the Immigration and Refugee Protection Regulations…the
circumstances under which a hearing must be held. It is only when
credibility is at the heart of the decision and could have a determinative
effect on the decision that a hearing is required. In this case, the
applicants had the opportunity to argue their point of view through written
submissions, and the PRRA officer properly determined that a hearing was not
required.
[citation
omitted, emphasis added]
The same might be said here. Credibility
simply is not at the heart of the decision under review.
[26]
With
regard to the issue of denial of a hearing, an issue of natural justice or
procedural fairness, against a standard of review of correctness, I am
satisfied that the Applicant cannot succeed.
Erroneous
findings of fact made in a perverse or capricious manner or without regard to
the material before the Officer
[27]
It
is trite law that a decision-maker, such as the Officer here, is not required
to recite or to comment upon each and every element of the evidence before her
or him. It is sufficient that the decision under review reflect a fair and
reasonable analysis of the totality of that evidence. In Sinan v. Canada (Minister of
Citizenship and Immigration), my
colleague Justice Snyder wrote at paragraph 11:
The Applicants have put
forward alternative explanations for many of the Board’s findings. When the
standard of review is, as here, one of patent unreasonableness, it is not
sufficient to present an alternative line of reasoning – even where that may present
a reasonable explanation. What the Applicants must do is to point to a
conclusion of the Board that is not supportable in any way on the evidence.
The Applicants have failed to persuade me that any of the most significant
findings were patently unreasonable. I cannot conclude that the decision as a
whole is patently unreasonable.
[emphasis
added]
[28]
I
am satisfied that the same might be said here with regard to the findings of
fact of the Officer. That being said, as noted earlier in these reasons, the
appropriate standard of review of the decision of the Officer that is here
under review, when taken as a whole, is not patent unreasonableness but rather
reasonableness simpliciter. Given that I find the Officer’s findings of
fact not to be patently unreasonable, I find no basis whatsoever to conclude
that the Officer’s decision as a whole was not reasonably open to her. Put
another way, it is a decision that is capable of withstanding a somewhat
probing examination.
It is not necessary that it withstand in all of its details the minute
examination to which it was subjected by counsel for the Applicant at the
hearing before me.
[29]
Counsel
for the Applicant briefly urged that the Officer erred in failing to adequately
explain in her reasons why she preferred certain of the evidence before her,
particularly country conditions documentary evidence and the evidence
establishing that the Applicant’s principal family members remained in
Bangladesh, over the evidence of the Applicant as to why he feared a further
return to Bangladesh. Earlier in these reasons, I have quoted at some length
the analysis conducted by the Officer. In Castro v. Canada (Minister of
Citizenship and Immigration), my colleague
Justice O’Keefe wrote at paragraph 33 of his reasons:
A board need not refer to all documentary
evidence in summarizing their reasons; this is well established in law.
However, when expert affidavit evidence is before the Board as well as other
documentary evidence raising some doubt or contradicting the documentary
evidence put forth by the refugee claims officer, the Board should provide some
explanation in its reasons as to why they preferred the expertise upon which
they relied and should at least comment as to why they are discounting that
provided by the applicants' counsel, which they failed to do.
While the foregoing quotation is not
directly on point in relation to this matter, I am satisfied, extrapolating
from the quotation, that here the Officer did provide an adequate explanation
in her reasons as to why she preferred the evidence on which she chose to rely
over other evidence before her and, when the portion of her reasons is read as
a whole, reasonably explained why she was “discounting”, or preferring the
evidence on which she chose to rely, over that provided by and on behalf of the
Applicant.
CONCLUSION
[30]
Based
upon the foregoing analysis, this application for judicial review will be
dismissed.
CERTIFICATION OF A
QUESTION
[31]
At
the close of the hearing on this application for judicial review, counsel were
consulted on the issue of certification of a question. Both counsel were in
agreement that this matter turns almost entirely on its specific facts and
raises no serious issue of general importance that would warrant certification
of a question, regardless of what my decision might be, given the fact that, at
that time, I reserved my decision. I agree with counsel. This matter raises
no serious question of general importance that would be determinative on an
appeal of my decision herein. In the result, no question will be certified.
“Frederick
E. Gibson”
Ottawa,
Ontario
November 28, 2006
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