Date: 20030422
Docket: IMM-2727-03
Citation: 2003 FCT 467
BETWEEN:
QUAISAR BUKHARI, HUSNAIN BUKHARI,
HAIDER ABBAS BUKHARI, ROBINA QAISAR
Applicants
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] The applicants, citizens of Pakistan, filed a motion seeking a stay of the removal order against them to be executed April 23, 2003.
[2] They sought a stay until such time as their application for leave and judicial review of a negative Pre-Removal Risk Assessment (PRRA) decision dated March 24, 2003 is determined.
[3] The applicants are a husband and wife and their two minor children. In August of 1999, they obtained visas to enter the United States and travelled there in October. They spent some 8 to 10 days in the United States without claiming refugee status. They then arrived at a Canadian border where they claimed refugee status. Their applications were heard in March, 2002. A negative decision was rendered June 21, 2002, the CRDD having concluded lack of credibility. Leave to seek judicial review was denied in November, 2002.
[4] Submissions were filed by the applicants for the PRRA in November, 2002. The negative decision was rendered March 24, 2003. Attached to the submissions were recent newspaper clippings dealing with the conditions in Pakistan together with a copy of the arguments submitted to the Court when leave was sought of the negative CRDD decision, which arguments made reference to a series of documents that were filed during the CRDD hearing.
[5] Counsel for the applicants spent considerable time during this application reviewing and criticizing the CRDD decision. This matter was already determined in November, 2002, when leave and judicial review was denied and it is not within my purview to re-evaluate that decision.
[6] Counsel then turned to the submissions filed with the PRRA officer; the applicants' argument may be summarized in two paragraphs found in the submissions forwarded to the PRRA officer:
Mr. Bukhari invites the Minister of citizenship & Immigration to re-examine the information already filed at the IRB as it was never considered and to examine the existing situation in Pakistan today as it relates to him personally.
Considering that the IRB failed to consider the documentary evidence submitted before it, Mr. Bukhari deems that all evidence contained in his record to be "new" evidence. This in addition to the information being submitted.
[7] Counsel referred me to a decision of Gibson, J. in Olena Nikolayeva v. M.C.I., IMM-1335-02, February 26, 2003. She refers to section 113 of the Immigration and Refugee Protection Act which was considered by Gibson, J. in his decision.
[8] Paragraph 113(a) of the Immigration and Refugee Protection Act provides as follows:
113. Consideration of application - 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;
[9] At page 10 of Gibson, J.'s decision, more particularly paragraph 53, which is mentioned on what the judge refers to as "additional considerations", counsel quotes the following:
... While I am deeply cognizant of the fact that it is not my role to suggest to the Respondent that paragraph 113(a) of the Immigration and Refugee Protection Act should be ignored, I cannot help but comment that if it is applied in its strictest terms to the Applicant's pre-removal risk assessment, the result will be that the Applicant will in effect have received no valid and meaningful determination of whether she is a person in need of protection from a return to Ukraine.
[10] It is submitted that at the time this refugee claim was entertained by the CRDD, no risk assessment was considered and that the obiter written by Gibson, J. suggests that there may be some restrictions imposed on the PRRA officer since he or she would be bound only to consider evidence that arose after the rejection and was not reasonably available to the applicant when the refugee claim was entertained.
[11] I have not been persuaded that paragraph 113(a) imposes restrictions on the PRRA officer but, if it does, it is evident from her reasons that she carefully reviewed the CRDD file as well as the documents contained therein. I am also of the view that the newspaper clippings which could be considered new evidence, which refer to current conditions in Pakistan, did not in any way make any specific reference to these applicants.
[12] The PRRA officer made a thorough analysis of the new submissions, the new documents, as well as other documentary evidence that had been filed before the CRDD. She was satisfied that the objective evidence in which protection of the State was discussed did not support the interpretation of these claimants. She agrees that there are conflicts in Pakistan between extremist religious groups but she was satisfied that the Government of Pakistan has taken considerable remedial action to control extremists and their membership. Documentary evidence supports the efforts undertaken by the authorities and she relies on the objective test supported by the Federal Court of Appeal that protection offered by the State need not be perfect but simply adequate. The State cannot protect all of its citizens at all times.
[13] I have not been satisfied that a serious issue has been raised and a careful review of the PRRA officer's decision cannot be questioned. It does not lack objectivity, there was a thorough analysis of country conditions, there was a review not only of the new documentary evidence put forward but there is also an analysis of the arguments and documents which had been filed in support of the initial application for leave and judicial review of the CRDD decision.
[14] Since I have not been convinced that there is a serious issue, I need not consider the balance of convenience or irreparable harm. The application to stay the removal order is hereby denied.
JUDGE
OTTAWA, Ontario
April 22, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2727-03
STYLE OF CAUSE: Quaisar Bukhari, Husnain Bukhari,
Haider Abbas Bukhari, Robina Qaisar
v. Minister of Citizenship and Immigraiton
PLACE OF HEARING: Ottawa
DATE OF HEARING: April 17, 2003
REASONS FOR : THE HONOURABLE MR. JUSTICE ROULEAU
DATED: April 22, 2003
APPEARANCES:
Me Vonnie Rochester FOR THE APPLICANTS
Me Michèle Joubert FOR THE RESPONDENT
SOLICITORS OF RECORD:
Me Vonnie Rochester FOR THE APPLICANTS
504-634 St. Jacques
Montreal, Quebec
H3C 1C7
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
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