Date: 20050920
Docket: IMM-9016-04
Citation: 2005 FC 1284
Ottawa, Ontario, September 20, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
DEJAN DEMIROVIC
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION and
THE SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
DAWSONJ.
[1] Dejan Demirovic is a 30-year-old citizen of Bosnia and Herzegovina who entered Canada on August 7, 2001 and immediately claimed status as a Convention refugee. He stated that he fears persecution if returned to Bosnia and Herzegovina because he is a child of a mixed marriage in that his father is Muslim and his mother is Serbian. On January 14, 2003, Mr. Demirovic was arrested by Canadian officials on the basis of an arrest warrant issued by Serbia and Montenegro. The warrant alleges that in 1999 Mr. Demirovic was involved in the killing of Albanian civilians in the former Yugoslavia. Subsequently, Mr. Demirovic was found to be inadmissible to Canada pursuant to paragraph 35(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("Act") because he committed or, at a minimum, was complicit in the commission of crimes against humanity. A deportation order issued, as required by paragraph 45(1)(d) of the Act and paragraph 229(1)(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227 ("Regulations"). Mr. Demirovic's claim to status as a Convention refugee was, as a result, summarily dismissed.
[2] Mr. Demirovic was then afforded the opportunity to apply for a Pre-Removal Risk Assessment ("PRRA") and he did so, requesting that he be given an oral interview. The request for an oral interview was denied, and on October 21, 2004 a PRRA officer ("officer") issued her decision that Mr. Demirovic was unlikely to face a danger of torture, or a risk to life, or the risk of cruel and unusual treatment (together the "section 97 risks") in either Bosnia and Herzegovina or Serbia and Montenegro. This application for judicial review is brought in respect of that decision.
THE ISSUES
[3] While a number of issues were raised in Mr. Demirovic's written memorandum of argument, in oral argument only the following issues were pursued:
1. The officer erred in law by failing to conduct an oral interview.
2. The officer breached the duty of fairness by failing to provide adequate reasons for her conclusion that Mr. Demirovic would not likely face the section 97 risks if returned to Bosnia and Herzegovina.
3. The officer's decision with respect to the section 97 risks in Bosnia and Herzegovina was unreasonable.
4. In reaching her decision with respect to the section 97 risks in Bosnia and Herzegovina, the officer failed to apply the correct standard when assessing the existence of a change in country conditions.
5. In reaching her decision with respect to the section 97 risks in Bosnia and Herzegovina, the officer erred in law by failing to provide notice to Mr. Demirovic prior to rendering her decision that the existence of an internal flight alternative ("IFA") was in issue.
6. In reaching her decision with respect to the section 97 risks in Serbia and Montenegro, the officer ignored relevant evidence.
1. Did the officer err in law by failing to conduct an oral interview?
[4] Two arguments are advanced on behalf of Mr. Demirovic. First, it is said that in circumstances where Mr. Demirovic professed fears of risk to his life, or torture, or cruel and unusual treatment, and where he did not receive an oral hearing before the Refugee Protection Division of the Immigration and Refugee Board in respect of his claim to be a Convention refugee, principles of natural justice and procedural fairness required that he be given an oral hearing. Second, it is said that the officer erred in law by failing to consider all of the factors listed in section 167 of the Regulations in order to determine whether an oral interview was required.
[5] With respect to these arguments, the content of the duty of fairness is a matter for this Court to decide. No standard of review determined by a pragmatic and functional analysis is applicable. See: Ha v. Canada(Minister of Citizenship and Immigration, [2004] 3 F.C.R. 195 (F.C.A.) at paragraphs 42 through 44. The proper interpretation and application of section 167 of the Regulations is a question of law, reviewable on the standard of correctness.
[6] What the duty of fairness requires under the Act must be determined in the context of the five factors outlined by the Supreme Court of Canada in Baker v. Canada(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraphs 23 through 27. In Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, the Supreme Court applied those factors, at paragraphs 113 through 123, and determined that even where a refugee faced deportation to torture, the Minister was not obliged to conduct a full oral hearing. It was sufficient that the person facing deportation be informed of the case to be met, be provided with an opportunity to respond in writing to the case presented to the Minister, and be afforded the opportunity to challenge the Minister's information, including any assurances from a foreign government that the person would not be tortured. If these conditions were met, in that context a written process conformed to the duty of fairness.
[7] In the present case, in circumstances where the officer did not doubt the truth of Mr. Demirovic's statements about his prior experiences, and found no serious issues of credibility to be raised, I find that the officer did not breach the duty of fairness and correctly concluded that, in the circumstances, no oral hearing was required. This result is consistent with prior jurisprudence of this Court including: Younis v. Canada (Solicitor General), [2004] F.C.J. No. 339 and Sylla v. Canada(Minister of Citizenship and Immigration), [2004] F.C.J. No. 589.
[8] As to whether the officer failed to consider all of the factors listed in section 167 of the Regulations, and so erred in interpreting and applying the provision, that section provides that:
| 167. For the purpose of determining whether a hearing is required under paragraph 113(b) of the Act, the factors are the following:
(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;
(b) whether the evidence is central to the decision with respect to the application for protection; and
(c) whether the evidence, if accepted, would justify allowing the application for protection.
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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) 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) l'importance de ces éléments de preuve pour la prise de la décision relative à la demande de protection;
c) la question de savoir si ces éléments de preuve, à supposer qu'ils soient admis, justifieraient que soit accordée la protection.
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[9] This Court has treated the criteria contained in section 167 to be cumulative. See: Kim v. Canada(Minister of Citizenship and Immigration), [2003] F.C.J. No. 452 (T.D.) at paragraph 6 and Selliah v. Canada(Minister of Citizenship and Immigration), [2004] F.C.J. No. 1134 (T.D.) at paragraphs 25 through 27.
[10] In my opinion, this view is correct. This interpretation flows from the use of the word "and" in paragraph (b) and is supported by the use of the phrase "the evidence" in paragraphs (b) and (c). If paragraphs (b) and (c) were independent of paragraph (a) the words "the evidence" would be of vague and uncertain meaning. When read conjunctively, the section makes sense in that "the evidence" referred to in paragraphs (b) and (c) is the evidence which raises a serious issue of the applicant's credibility.
[11] In this case, the officer set out the requirements of section 167 of the Regulations and found that no serious issue of credibility was raised. Having failed to meet the first criterion, it was not necessary for the officer to consider the remaining criteria in section 167 and the officer did not err as alleged.
2. Did the officer breach the duty of fairness by failing to provide adequate reasons for her conclusion that Mr. Demirovic would not likely face section 97 risks if returned to Bosnia and Herzegovina?
[12] Again, because the content of the duty of fairness is raised, determining whether the reasons are adequate is a matter for this Court to decide; the pragmatic and functional analysis is not applied.
[13] In Via Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25 (C.A.), Mr. Justice Sexton, writing for the Court, considered what was required in order to comply with the duty to give reasons. At paragraphs 21 and 22 he wrote:
21 The duty to give reasons is only fulfilled if the reasons provided are adequate. What constitutes adequate reasons is a matter to be determined in light of the particular circumstances of each case. However, as a general rule, adequate reasons are those that serve the functions for which the duty to provide them was imposed. In the words of my learned colleague Evans J.A., "[a]ny attempt to formulate a standard of adequacy that must be met before a tribunal can be said to have discharged its duty to give reasons must ultimately reflect the purposes served by a duty to give reasons." [See Note 7 below]
22 The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. [See Note 8 below] Rather, the decision maker must set out its findings of fact and the principal evidence upon which those findings were based. [See Note 9 below] The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out [See Note 10 below] and must reflect consideration of the main relevant factors. [See Note 11 below] [footnotes omitted]
[14] On Mr. Demirovic's behalf it is argued that the officer's ultimate decision with respect to the risk he may face in Bosnia and Herzegovina was as follows:
I accept that he did experience difficulties while residing in and near Banja Luka from 1998 because he was perceived to be a Muslim. However, at the present time, having taken into consideration all of the evidence before me, while I acknowledge that the applicant might face some difficulties in the form of harassment and discrimination upon his return, I do not consider that these difficulties would constitute cruel and unusual treatment or punishment, a risk to life, or a danger of torture.
[15] Mr. Demirovic had submitted in his PRRA application that while in Bosnia and Herzegovina he had been subjected to threats, beatings and a kidnapping. He had a knife pulled on him and the barrel of a gun shoved down his throat. Having accepted that those incidents occurred, it is argued that the officer did not explain with clarity why Mr. Demirovic would not be at risk if returned to Bosnia and Herzegovina. On his behalf was asked, did the officer believe that the treatment Mr. Demirovic had previously suffered did not constitute cruel and unusual treatment or punishment, a risk to life, or a danger of torture? Alternatively, did the officer believe that the treatment would not recur?
[16] Looking at the reasons of the officer on this point as a whole, the officer found that the documentary evidence:
· confirmed that problems continue to exist in Bosnia and Herzegovina in the area of ethnic relations;
· stated (in the United States Department of State Report for 2003):
Isolated instances of political, ethnic, or religious violence continued. Severe discrimination against ethnic minorities continued in areas dominated by Serb and Croat ethnic groups, with some discrimination in Bosniak-majority areas, particularly regarding the treatment of refugees and displaced persons.
· disclosed that significant progress had been made to restructure and increase professionalism in the police force in 2000;
· disclosed that ethnic problems are on the decrease and are not pervasive countrywide;
· stated (in the United States Department of State Report for 2003):
Harassment and discrimination against minorities continued throughout the country, often centering on property disputes, despite improvements in some areas. These problems included desecration of graves, arson, damage to houses of worship, throwing explosive devices into residential areas, harassment, dismissal from work, threats, and assaults.
Discrimination in employment and education remained key obstacles to sustainable returns. Widespread firing of ethnic minorities during and after the war has not been reversed in most cases, and members of the ethnic majority in a region often were hired over minorities in places where they had been employees. Favoritism was also shown to veterans and families of those killed during the war.
· stated that the problems concerning ethnicity revolved in large part around the return of displaced persons to homes occupied by those of different ethnicity.
[17] The officer acknowledged that Mr. Demirovic had experienced difficulty in the past while residing in and near Banja Luka because he was perceived to be a Muslim. However, on the basis of the documents before her the officer concluded that if returned to Bosnia and Herzegovina Mr. Demirovic might face harassment and discrimination, but he would not face the risks articulated in section 97 of the Act.
[18] Read as a whole and fairly, I conclude that the officer properly directed her mind to the treatment Mr. Demirovic was likely to receive if returned to Bosnia and Herzegovina, and formed a tenable conclusion based on the evidence before her that Mr. Demirovic would not be subjected to treatment described in section 97 of the Act. The only relevant determination for the officer to make was whether she believed the treatment Mr. Demirovic was likely to receive would be treatment described in section 97 of the Act. It was not necessary for her to determine whether the conduct which had occurred in the past amounted to persecution.
[19] To the extent the officer referred to harassment and discrimination, her conclusion was based upon documentation that described the treatment faced by ethnic minorities throughout the country as "discrimination" and "harassment".
[20] The officer set out her findings of fact and the principal evidence upon which her findings were based. Ultimately, the officer's reasons allow Mr. Demirovic to know why he received a negative PRRA decision and are sufficient to enable the Court to review the decision. As such, I find that the reasons are adequate.
3. Was the officer's decision with respect to the section 97 risks in Bosnia and Herzegovinaunreasonable?
[21] On Mr. Demirovic's behalf it is argued that given what the officer accepted had previously happened to him, her conclusion that he would not face the risks set out in section 97 of the Act was unreasonable.
[22] Particular issue is taken with the officer's statement:
In fact, any harassment or discrimination that he might be exposed to by virtue of his surname ought to end once ethnic Serbs are made aware of the applicant's involvement in the Serb war cause via his membership in the Serb anti-terrorist unit, "Scorpions". One would be hard-pressed to doubt the applicant's Serb ethnicity when faced with this fact.
[23] 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), [2005] F.C.J. No. 540 (T.D.) at paragraph 19, 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), [2005] F.C.J. No. 458 (T.D.) at paragraph 51, 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 Madam Justice Layden-Stevenson in Nadarajah v. Canada(Solicitor General), [2005] F.C.J. No. 895 (T.D.) at paragraph 13. For the reasons given by my colleagues, I accept this to be an accurate statement of the applicable standard of review.
[24] When applying the standard of review of reasonableness simpliciter, a reviewing Court is to inquire into whether the decision is supported by reasons that are, in turn, supported by a proper evidentiary basis. An unreasonable decision is one that, in the main, is not supported by reasons that can stand up to a "somewhat probing examination"; the reviewing court must be satisfied that the conclusions drawn from the evidence are logically valid. (See: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 56). A decision will be unreasonable "only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived". (See: Law Society of New Brunswickv. Ryan, [2003] 1 S.C.R. 247 at paragraph 55). A decision may satisfy the standard of review if supported by a tenable explanation, even if the explanation is not one that the reviewing court finds compelling.
[25] Dealing first with the specifically impugned portion of the officer's reasons, I agree that this statement appears to be an assumption made by the officer that is not supported by the evidence before her. Particularly, the officer appears to be making the assumption that all ethnic Serbs regard the Scorpions in the same positive light and all members of the Scorpions were in fact Serbian and were not Muslim. The evidence presented by Mr. Demirovic was that he was part of the Scorpions even though he was of mixed ethnic parentage, with a father who is Muslim. As such, there was evidence on the record, accepted by the officer to be true, that at least one person of mixed ethnicity was with the Scorpions. In addition, the officer failed to explain why, if Mr. Demirovic's activities with the Scorpions would identify him as a Serb and thus end harassment against him, this did not assist Mr. Demirovic when he was threatened in May of 2001 and pursued in June of 2001 by Serbian paramilitaries.
[26] However, the impugned statement was made following the officer's finding that any difficulty Mr. Demirovic would experience upon his return would not constitute cruel and unusual treatment or punishment, or risk to life, or a danger of torture. Therefore, the officer had already made her decision before indicating, almost as a sidenote, that any harassment he might experience would come to an end once his involvement with the Scorpions was revealed. While I believe that the officer's finding on this last issue was perverse, and not supported by the evidence, it does not appear to me that the statement was relied upon by the officer in order to reach her decision on risk. Accordingly, I am not prepared to find that the entire decision should be set aside for this reason alone.
[27] As for the reasonableness otherwise of the decision, having subjected the decision to a somewhat probing examination, the officer's findings of fact were supported by evidence and I find that there is a line of analysis within the officer's reasons that could reasonably lead the officer from the evidence to her conclusion about the section 97 risks. As such, the decision is not unreasonable.
4. In reaching her decision with respect to the section 97 risks in Bosnia and Herzegovina, did the officer fail to apply the correct standard when assessing the existence of a change in country conditions?
[28] Mr. Demirovic points to the officer's statement that "I have noted that, while acknowledging the existence of ethnicity problems, the documentation also discloses that these problems are on the decrease and that they are not pervasive countrywide". Mr. Demirovic submits that, to the extent the officer's decision is based on a change in country conditions, it is in error because the officer did not apply the correct standard developed by this Court in the refugee context for a correct assessment of the change in country conditions. The correct standard requires assessment of whether the change is effective and durable.
[29] Without deciding whether, as a matter of law, consideration of the criteria of durability, effectiveness and substantiality are necessary in this context, I am satisfied that the officer did not make any finding that there had been a change in country conditions as contemplated in jurisprudence such as Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79 (T.D.). Because Mr. Demirovic was inadmissible due to the commission of, or complicity with, crimes against humanity, the officer was not required to assess his risk pursuant to the factors set out in section 96 of the Act. The officer made no finding of prior persecutory treatment, nor should she have. In my view, the officer simply acknowledged that, while the documentary evidence noted the ethnicity problems asserted by Mr. Demirovic, the evidence also indicated that the problems were lessening. I am not convinced that finding evidence of particular problems lessening is tantamount to a finding of change in country conditions sufficient to warrant the change in conditions assessment required by Penate, supra.
[30] In any event, Mr. Demirovic has not pointed to evidence which suggests that the improvements noted by the officer are short lived, tentative or ineffective. Any error would not, therefore, be material.
5. In reaching her decision with respect to the section 97 risks in Bosnia and Herzegovina, did the officer err in law by failing to provide notice to Mr. Demirovic prior to rendering her decision that the existence of an IFA was in issue?
[31] Mr. Demirovic notes that, in her decision, the officer held that even if he was afraid of the Serbian extremists or paramilitary groups in Banja Luka, he could safely take up residence elsewhere within Bosnia. Mr. Demirovic submits that this is a finding that he had an IFA outside of Banja Luka. He further submits that, in order for a decision-maker to render a decision on the basis of an IFA, notice that this may be in issue must first be provided to an applicant, prior to the rendering of the decision thus affording an opportunity to adduce evidence to contradict the existence of an IFA. No evidence exists on the record in this case to suggest that such notice was provided to Mr. Demirovic. Therefore, the failure to provide such notice is said to be a breach of natural justice warranting intervention by this Court. Reliance is placed upon the decision of the Federal Court of Appeal in Rasaratnam v. Canada(Minister of Employment and Immigration), [1992] 1 F.C. 706.
[32] In the present case, it is sufficient for me to conclude that prior to mentioning that Mr. Demirovic might be safe elsewhere in Bosnia, the officer had already determined that, while Mr. Demirovic might face difficulties in the form of harassment or discrimination in Banja Luka, these difficulties would not constitute cruel and unusual treatment or punishment, a risk to life, or a danger of torture. Therefore, I find that the officer's finding regarding the possibility of Mr. Demirovic living safely elsewhere was an extraneous observation that does not affect the validity of the decision that Mr. Demirovic faced no section 97 risk in Bosnia and Herzegovina.
6. In reaching her decision with respect to the section 97 risks in Serbia and Montenegro, did the officer ignore relevant evidence?
[33] Two complaints are made with respect to the officer's assessment of the risks faced in Serbia and Montenegro. First, the officer repeated her observation that Serbs would not pose any difficulty to Mr. Demirovic once they learned of his membership in the Scorpions. Second, the officer is said to have erred in her assessment of the risk Mr. Demirovic faced of torture or death because he continues to pose a threat to the commander of the Scorpions unit through his potential testimony at a war crimes trial. In oral argument it was also argued that the officer erred in her assessment of whether Mr. Demirovic would be charged if returned to Serbia and Montenegro. However, in my view, this latter issue cannot be sustained because Mr. Demirovic in his submissions to the officer did not clearly raise the issue, stating in his PRRA submission that after the prosecution witnesses had finished testifying against him, at a trial held in absentia, the prosecution obtained a "halt of proceedings" against Mr. Demirovic because of insufficient evidence against him.
[34] With respect to the first asserted error, again the officer makes this remark after assessing, on the basis of the United States Department of State Report for 2003 and the 2004 United Kingdom Home Office report, that any difficulties arising out of Mr. Demirovic's ethnicity would not constitute a danger of torture, or a risk to life, or a risk of cruel and unusual treatment or punishment. The evidence the officer referred to included statements that:
- the European Community Stabilization and Association Report of 2003 noted that although sporadic discrimination against some ethnic groups persisted, the authorities continued to demonstrate a strong reform commitment and legislation prohibiting discrimination was introduced which gives legal protection to minorities equal to that found in other European countries.
- the 2003 Human Rights Watch Report noted that treatment of Hungarians, Croats, Bosniaks and Albanians in Serbia (outside of Kosovo) was satisfactory in 2002, although serious concerns remain regarding the treatment of Roma.
[35] I conclude that, ignoring the officer's unfortunate reference to the Scorpions, the officer's assessment of the general risks faced by Mr. Demirovic in Serbia and Montenegro was supported by reasons which, in turn, were supported by a proper evidentiary basis. The officer's decision was, therefore, one reasonably open to the officer. The decision was not thereafter rendered unreasonable as a result of the officer's reference to the Scorpions.
[36] With respect to the risk asserted to arise from his potential testimony at a war crimes trial, the officer observed that Mr. Demirovic's submissions about the risk posed by Mr. Demirovic's former unit commander and his brother were vague and not accompanied by any evidence. The officer noted other evidence before her that:
- the Organization for Security and Cooperation in Europe Mission to Serbia and Montenegro regarding the monitoring of war crimes proceedings reported some problems in procedure, but that the procedures followed to date were generally fair.
- the same Mission reported that the trial of Mr. Demirovic's co-accused was fair and that the Court "did not violate the principle of presumption of innocence during the procedure".
- a witness at the trial of Mr. Demirovic's co-accused was provided with court-ordered protection.
- the role of the police in such proceedings has been reduced to a minimum, in order to protect suspects' rights and reduce the risk of torture.
[37] I have reviewed carefully the information contained in the tribunal record that was before the officer. After having subjected the decision of the officer to a somewhat probing examination, I am satisfied that the conclusions the officer drew from the evidence were logically valid and that on the whole her conclusions are supported by tenable explanations. In the result, I am not persuaded that in reaching her decision with respect to the section 97 risks in Serbia and Montenegro that the officer ignored relevant evidence. Her decision was not unreasonable.
7. Conclusion
[38] For these reasons, the application for judicial review will be dismissed.
[39] Counsel for Mr. Demirovic suggested that a serious issue may arise out of the adequacy of the officer's reasons and whether the officer explained with adequate clarity why she did not believe that perceived persecutory treatment would recur. Counsel for the Minister opposed certification of a question, arguing that this decision turns on the facts and the semantic inferences sought to be drawn from the officer's reasons. I agree, and no question will be certified.
ORDER
[40] THIS COURT ORDERS THAT:
1. The application for judicial review is dismissed.
"Eleanor R. Dawson"
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