Date: 20061116
Docket: IMM-7269-05
Citation: 2006 FC 1385
Ottawa, Ontario, November 16, 2006
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
SYED
MASOOD RAZA, PERVEEN MASOOD RAZA,
SYED SALMAN MASOOD RAZA and
SYED OMAIR RAZA by his litigation
guardian SYED MASOOD RAZA
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
and THE MINISTER OF PUBLIC SAFETY and
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT
INTRODUCTION
[1]
The
applicants challenge the October 24, 2005 decision of a Pre-Removal Risk
Assessment Officer (the “Officer”) that they would not be at risk in returning
to Pakistan because of
the availability of state protection. They contend that the Officer erred in assessing
the risk of persecution they face in that country and in applying the standards
for the reception of new evidence under s. 113 (a) of the Immigration and Refugee Protection Act, S.C. 2001 c.27 (IRPA).
[2]
The
applicants, citizens of Pakistan and members of the Shia
minority in that country, arrived in Canada on March 26, 2003 after nine years
in the United
States.
They made a claim for recognition in Canada as Convention refugees or persons in need of
protection based on the harms suffered by the primary applicant, Mr. Syed
Masood Raza, due to his active participation in the religious and business
affairs of their community.
[3]
On
November 26, 2004 the Refugee Protection Division of the Immigration and
Refugee Board (the Board) determined that state protection was available to the
applicants and dismissed their claim. The Board found that significant changes had
occurred in Pakistan since the applicants’
departure, including a change in regime, and that the Musharraf government had
taken action to control sectarian violence including the banning of the Sunni
organization Sipah-e-Sahaba, the principal instrument of persecution identified
by the applicants. Leave for judicial review of this decision was denied on May
5, 2005.
[4]
The Pre-Removal
Risk Assessment (“PRRA”)
request at issue in the present case was submitted on June 24, 2005. Evidence tendered by the applicants in support
included one letter and two affidavits which were created after the refugee
decision had been rendered, together with a package of internet news articles
from BBC News, CBC News and CNN which also post-dated the refugee decision. The
applicants also submitted educational documents in relation to the two sons of
the family however these were disregarded as the Officer found they were
irrelevant to the assessment of the risk the family would face should they
return to Pakistan.
DECISION UNDER REVIEW
[5]
The Officer found that the PRRA
application enumerated the same risks that were presented to the Board. The Officer
noted that the applicants had had the opportunity in their PRRA application to
present new evidence to address the Board’s findings, but that the evidence
presented was insufficient. The Officer concluded that there had been no significant
changes in country conditions since the applicants’ case was heard by the
Board.
[6]
With
respect to the letter and the two affidavits, the Officer did not find that
these documents constituted new evidence, describing them in his analysis as
“essentially a repetition of the same information” considered by the Board. The
Officer further noted that there were “no new risk developments” contained in
the documents, nor had the applicants explained why the documents could not
have been presented to the Board for its consideration. In addition, the Officer
concluded that the authors of these documents were not an objective source of
information, as they were respectively: the principal applicant’s sister; a
friend of the family; and the coordinator of the family’s local Imam Bargha.
[7]
With respect to the package of
news articles, the Officer observed that although “these publications post-date
the decision of the IRB this material is generalized and does not mention the
applicants or address the material elements of the present application”. The Officer
noted that although he had considered it in the context of assessing country
conditions, the package did not contain any “new evidence of new risk
developments which are personalized to the applicants and which have arisen since
the Board’s decision.” The Officer went on to write:
They are not named in any of the
documents and none of it rebuts the significant findings of the Board. The
documents recount random acts of criminal violence as well as sectarian and
terrorist violence. I find these to be circumstances which all citizens of Pakistan
face. I do not find this to be evidence that the applicant faces a personal
risk greater than any other citizen.
ISSUES
[8]
While
the overarching question in these proceedings is whether the Officer’s decision
was reasonable, the parties addressed their submissions to the following specific
issues:
1. Did the Officer
err in applying the standard for the reception of new evidence under s.113 (a)
of IRPA?
2. Did the Officer
err in failing to take into account evidence of harm to similarly situated
persons in Pakistan in
determining whether the applicants were at risk of persecution if repatriated?
STATUTORY FRAMEWORK
[9]
Subsections
112(1), 113(a) and (c), 96 and 97 of the Immigration and Refugee Protection
Act, S.C. 2001 c. 27 (IRPA) provide 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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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;
…
(c) in the
case of an applicant not described in subsection 112(3), consideration shall
be on the basis of sections 96 to 98;
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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;
…
c) s’agissant du demandeur non visé au
paragraphe 112(3), sur la base des articles 96 à 98;
|
|
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,
(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
(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.
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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) 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) 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.
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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
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is
unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(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,
(iii) the risk is
not inherent or incidental to lawful sanctions, unless imposed in disregard
of accepted international standards, and
(iv) the risk is not
caused by the inability of that country to provide adequate health or medical
care.
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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) 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) soit à une menace à sa vie ou au risque
de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle
ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(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) 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) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins
médicaux ou de santé adéquats.
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ANALYSIS
Standard
of Review
[10]
PRAA
officers have a specialized expertise in risk assessment, and their findings
are usually fact driven, and therefore warrant considerable deference: Selliah
v. Canada (Minister of Citizenship
and Immigration),
2004 FC 872, 256 F.T.R. 53 at para.16 [Selliah]. Considerable deference is
owed to the factual determinations of a PRAA officer including their
conclusions with respect to the proper weight to be accorded to the evidence
placed before them: Yousef v. Canada (Minister of Citizenship and Immigration),2006 FC 864, [2006]
F.C.J. No. 1101at para. 19 [Yousef]. In the absence of a failure to consider relevant factors or reliance upon
irrelevant ones, the weighing of the evidence lies within the purview of the
officer conducting the assessment and does not normally give rise to judicial
review:
Augusto v. Canada (Solicitor General), 2005 FC 673, [2005]
F.C.J. No. 850, at para. 9.
[11]
In Kim v. Canada (Minister of Citizenship and
Immigration), 2005 FC 437, 272 F.T.R. 62, after conducting a pragmatic and
functional analysis, I concluded that the appropriate standard of review for
questions of fact decided by a PRRA officer should generally be patent
unreasonableness, for questions of mixed law and fact, reasonableness, and for
questions of law, correctness.
[12]
When the decision is considered
"globally and as a whole" the appropriate standard of review for the
decision of a PRRA officer is reasonableness as determined by
Justice Luc Martineau in Figurado v.
Canada (Solicitor General), [2005] 4
F.C. 387, 2005 FC 374 at para. 51. See also: Nadarajah v. Canada
(Solicitor General), 2005 FC 713,
[2005] F.C.J. No. 895 at paragraph 13; Kandiah v. Canada
(Solicitor General) 2005 FC 1057, 48
Imm. L.R. (3d) 23 at para. 6; and Demirovic v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1284, [2005] F.C.J. No. 1560, at para. 23.
1. Standard
for New Evidence
[13]
The
applicants argue that the Officer applied the wrong standard for determining
what constituted new evidence under section 113 (a) of IRPA. With respect to
the letter and the two affidavits, the applicants’ counsel properly conceded
that it was open to the Officer to give them little weight. Nonetheless, it was
contended that as these documents were created after the refugee hearing had
been concluded and a decision rendered, they were new evidence within the
meaning of s.113 (a) and should have been considered as such.
[14]
Moreover,
the applicants submit that s.113 (a) of IRPA should be read disjunctively as
providing for the admissibility of new evidence on three grounds, and so long
as the evidence “…arose after the rejection…”of their refugee claim by the
Board there is no requirement in law for the applicants to explain why the
evidence was not reasonably available or why the applicants could not
reasonably have been expected to have put it before the Board before the claim
was determined. The applicants contend that the Officer thus erred in law in
determining that such an explanation was necessary.
[15]
In
support of these propositions, the applicants rely upon Mendez v. Canada (Minister of
Citizenship and Immigration), 2005 FC 111, [2005] F.C.J. No. 115 (Mendez).
[16]
In
addition, the applicants argue that the Internet news reports submitted refer
to events which were occurring as of May 2005, and thus were new evidence of
the objective circumstances existing in Pakistan as of the date of the PRRA application. The
applicants submit that the decision to reject this evidence was therefore
patently unreasonable.
[17]
The respondent
submits that the affidavit and letter evidence contain general statements
similar to those that formed the basis of the original refugee claim. The Mendez
case is distinguishable from that of the applicants, the respondent submits,
as in Mendez the PRRA officer’s finding that all of the applicant’s
evidence pre-dated the Board’s decision was erroneous as one piece of evidence
clearly “arose” after the Board’s decision. The Court concluded that the PRRA officer
had “failed to understand this fact by lumping it in” with the pre-dated
evidence in his assessment (at para.18).
[18]
I
would add that it is also clear from the Court’s reasons in Mendez, that
the new evidence in question was central to the applicant’s claim as it went to
the very heart of the Board’s conclusion that he would not be at risk as a
HIV-positive gay man in Mexico. In those circumstances
the Court found that the failure of the PRRA officer to consider this evidence
was patently unreasonable. I would note that the question of whether medical
grounds can be the basis of a successful protection claim in light of paragraph
97 (1) (b) (iv) of IRPA does not appear to have been raised.
[19]
Counsel
for the applicants candidly conceded that the only support he could find for
his argument that s.113(a) of IRPA must be read disjunctively is found in this
sentence which appears in paragraph 17 of Mendez:
Section 113 (a) requires a careful
determination on the admissibility of evidence on three available grounds.
[Emphasis added]
[20]
Counsel
submits that one must, on a plain reading, interpret the section as providing
for the admissibility of three distinct types of new evidence:
1. Evidence
that arose after the rejection by the Board;
2. Evidence
that was not reasonably available prior to the rejection; or
3. Evidence
that the applicant could not reasonably have been expected in the circumstances
to have presented, at the time of the rejection.
[21]
It
is only the second and third types of new evidence, counsel submits, that calls
for an explanation as to why it was not presented to the Board, as the PRRA officer
must determine whether the failure to submit it was reasonable. “Arose” as used
in relation to the first type of evidence must mean, in effect, evidence that
was created after the date of the Board’s decision. In that sense,
therefore, the affidavits and letter, however weak they may be, had to be
considered as new evidence under s.113 (a). It was open to the Officer to
discount their weight but not to disregard them.
[22]
It
must be recalled that the role of the
PRRA officer is not to revisit the Board's factual and credibility conclusions
but to consider the present situation. In assessing “new information” it is not
just the date of the document that is important, but whether the information is
significant or significantly different than the information previously
provided: Selliah, above at para. 38. Where “recent” information
(i.e. information that post-dates the original decision) merely echoes
information previously submitted, it is unlikely to result in a finding that
country conditions have changed. The question is whether there is anything of
“substance” that is new: Yousef, above at para.27.
[23]
In the present case, though the
evidence of the applicant post-dates the refugee determination in time with
respect to the date it was written, nothing in the letter, affidavits or
articles is substantially different than the information that was before the
Board. As noted by the Officer with respect to the letter and affidavits: they
“refer only to the applicants’ circumstances which were considered by the
Board”, “no new risk developments are contained”, and they contain “essentially
a repetition of the same information”. In those circumstances, it was not
patently unreasonable of the officer to question why they had not been present
before. With respect to the articles in particular, the Officer noted that they
were “generalized” and did not “address the material elements of the present
application”.
[24]
These
finding were open to the Officer on the evidence and fell specifically within
the Officer’s expertise with respect to risk assessment. As a result, there is
no basis on which the Court can interfere.
2.
Assessment of Country Condition Information
[25]
The
applicants allege that in assessing whether the country condition information
disclosed new risk developments, the Officer incorrectly required the
information to be “personalized to the applicants”, in that he found
evidence of risk to persons in a similar situation to be insufficient. The
applicants argue that to meet the requirements of section 113 of IRPA, an
applicant may prove risk upon return to their home country if they demonstrate
affiliation with a group which is the subject of persecution or cruel and
unusual treatment, i.e. the standard of the “similarly situated person”: Salibian
v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250,
[1990] F.C.J. No. 454 (C.A) at paras. 17 – 18 [Salibian].
[26]
In
addition, the applicants argued that the Officer erred in concluding that the
articles demonstrated risk “which all citizens of Pakistan face”. The applicants
submit that the documents deal expressly with the inability of the government
of Pakistan to protect the Shia community from acts of sectarian
violence, and that it is those of the Shia faith that are at risk. As such, the
applicants allege that the Officer erred in dismissing relevant evidence of the
applicants’ risk and in misunderstanding the meaning of sectarian violence.
[27]
The
respondent submits that the applicants were under an obligation to demonstrate
personalized risk and failed to do so. The Officer must assess the risk a
specific applicant faces upon his/her return to his/her country of nationality
or former habitual residence. The respondent argues that the applicants did not
provide any evidence of personalized risk within the intent of s.113 of IRPA.
[28]
The PRRA application process is
not a second refugee hearing. Its purpose is to assess new risk developments
between the refugee hearing and the removal date: Kaybaki v. Canada
(Solicitor General), 2004 FC 32, [2004]
F.C.J. No. 27, at para. 11.
[29]
The
assessment of new risk developments by a PRRA officer requires consideration of
sections 96-98 of IRPA. Sections 96 and 97 require the risk to be personalized
in that they require the risk to apply to the specific person making the claim.
This is particularly apparent in the context of section 97 which utilizes the
word “personally”. In the context of section 96, evidence of similarly situated
individuals can contribute to a finding that a claimant’s fear of persecution
is “well-founded”. That being said, the assessment of the risk is only made in
the case of a PRAA application on the basis of “new evidence” as described
above, where a negative refugee determination has already been made.
[30]
In
the present case, the Officer concluded on a totality of the evidence that the
applicants had enumerated “the same risks that were presented to the RPD”. When
the Officer stated that the articles did not mention the applicants by name,
this was in the context of assessing whether the evidence demonstrated the
existence of new risks. If for example the applicants had been personally
named, this might have qualified as “significant” new information. The Officer
therefore did not err in attempting to look for evidence in the documents that
indicated increased or “new” risk for the applicants personally, including
looking for personal references, as the Officer clearly assessed the overall
content of the documents in making his ultimate determination that they did not
contain new substantive information as compared to that which was before the
Board.
[31]
In
my view, the Officer’s comment that the articles “recount random acts of
criminal violence as well as sectarian and terrorist violence” and that these
are “circumstances which all citizens of Pakistan face”, were intended to merely
reinforce the Officer’s overall assessment of the information as being
“generalized” and not new. The fact that Shia individuals are continuing to be
targeted by Sunni militants is the underlying basis of the refugee claim that
was previously made. This was not questioned by the Officer and was clearly
understood by the Officer. Even if the Officer can be said to have erred in
conflating the term sectarian violence with a generalized risk to all citizens
of Pakistan in his reasons, the finding that the articles contain no “new
evidence” of personal risk to the applicants would supersede any error in this
regard, as the Officer was looking for evidence of “new” risks that went beyond
the findings of the Board in this context. In particular, the Officer was
looking for evidence that would support reexamination of the Board’s finding
that state protection was available and found none. Taken as a whole, the approach
of the Officer was not patently unreasonable.
[32]
The evidence presented by the
applicants confirms that there is risk in Pakistan, including the risk of Shias being subject to violent
acts at the hands of Sunni militants. That being said, there is also evidence
in the same materials that the State is taking steps to arrest and detain these
militants. There is nothing that clearly refutes the presumption of state
protection reached by the Board. The decision of the Officer was not, overall,
unreasonable.
Certified
Questions
[33]
As the parties requested time to consider
whether to propose questions of general importance, counsel are requested to
serve and file any submissions with respect to certification within seven days
of receipt of these Reasons for Judgment. Each Party will have a further period
of three days to serve and file any reply to the submissions of the opposite
party. Following that, Judgment will be issued.
“Richard G. Mosley”
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