Date: 20100504
Docket: IMM-159-09
Citation: 2010 FC 491
Montréal, Quebec, May 4, 2010
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
WORKINESH
BULLA MANDIDA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
In this
case, an application was submitted by Workinesh Bulla Mandida (the “Applicant”),
seeking judicial review of a decision dated December 12, 2008 by an Immigration
Officer (the “Officer”) who carried out a pre-removal risk assessment; he concluded
that the Applicant would not be subjected to a risk of persecution, danger of
torture, risk to life or risk of cruel or unusual punishment if she returned to
Ethiopia.
[2]
For the
reasons set out below, this application for judicial review is dismissed,
mainly on the ground that the Applicant did not submit any evidence to the
Officer supporting any finding of risk should she be returned to Ethiopia. The
Applicant has, rather unwisely, chosen to treat her pre-removal risk assessment
application as a form of request for relief on humanitarian and compassionate
grounds.
Background
[3]
The Applicant
is an elderly national from Ethiopia who is now over 70 years old
and who has had a long and convoluted history of claims with the Canadian
immigration authorities.
[4]
The
Applicant originally arrived in Canada
with her elderly husband on September 20, 2000, as a visitor. It is useful to
note that the Applicant’s son and daughter were residing in Canada at that time. A few months
later, on May 29, 2001, the Applicant and her husband claimed refugee status.
[5]
On March
1, 2002, the Convention Refugee Determination Division (“CRDD”) ruled that the
Applicant and her husband were not Convention refugees. The CRDD came to this determination
mainly on the ground that the Applicant’s husband, who was the principal
applicant in their joint refugee claim, was simply not credible and that his
entire story was implausible. The CRDD also noted that the Applicant had
herself returned to Ethiopia in March 1992; that was viewed by the CRDD as incompatible
with her claim of persecution in that country. The CRDD also took into account
the fact that the Applicant and her husband had waited over 7 months after
their arrival in Canada to apply for refugee status.
[6]
That
decision of the CRDD was not challenged by way of judicial review and is
therefore final.
[7]
Following
the rejection of this refugee claim, the Applicant’s husband returned to Ethiopia, but the Applicant has remained
in Canada.
[8]
The notes provided
by the Respondent show that, in June 2002, the Applicant submitted an
application for permanent residence based on her son’s sponsorship, with a
request that this application be processed from within Canada on humanitarian and compassionate
grounds. However that request was denied in 2005.
[9]
On
March 13, 2005, the Applicant’s son-in-law died. Some time thereafter, the
Applicant moved in with her widowed daughter in Oakville, Ontario, to assist
her with her three children. The Applicant’s daughter filed a new family class
sponsorship for the Applicant; and the Applicant herself filed a new concurrent
permanent residence application which is currently being processed as an
overseas application under the family class by the Canadian immigration authorities
in Nairobi, and a
decision on this matter is still pending.
[10]
The
Applicant has nevertheless remained in Canada on the basis
of a temporary work permit issued to her as a live-in caregiver for her
daughter. The Applicant’s current work permit expires on December 21, 2010.
[11]
For
unknown reasons, on May 12, 2008, the Applicant filed an application for a
pre-removal risk assessment. As already noted, that assessment resulted in
findings unfavourable to the Applicant on December 12, 2008. Following this
decision, the Applicant’s removal from Canada was
scheduled for February 6, 2009. That removal was subsequently stayed by Justice
O’Keefe on February 4, 2009 pending the results of this judicial review
proceeding.
[12]
In her
pre-removal risk assessment application, the Applicant raised the following as
significant incidents that caused her to seek protection outside of her country
of nationality:
1. My daughter, Hirut
Dano of Oakville,
ON submitted family class
sponsorship on my behalf and met the requirement for eligibility.
2. I also submitted
permanent residence applications which is currently pending decision
3. Meanwhile, my
daughter offered me employment as a foreign worker which was approved by
respective Canadian government and authorities
4. I also applied for
work permit and have obtained social insurance number (SIN)
5. Now, I believe my
status has changed and I am in Canada under a work permit
6. I have submitted
medical report and police certificate to the Canadian High Commission in Nairobi
(sic throughout)
[13]
The
Applicant also explained as follows why she did not seek any form of protection
from the authorities in Ethiopia:
The authorities of my country are not in
a position to grant me protection. The authorities of my country of origin are
engaged in violation of human rights. To seek protection from such authorities
is tantamount to exposing myself to danger and risk.
However,
the Applicant did not explain what specific “danger and risk” she was referring
to.
[14]
In
a letter accompanying the pre-removal risk assessment application, the
Applicant’s legal counsel essentially reiterated and expanded upon these
humanitarian and compassionate considerations, but raised no specific issue
related to any risk the Applicant would face if returned to Ethiopia.
The impugned decision
[15]
The
Officer notes that the facts raised by the Applicant in support of her
pre-removal risk assessment are rather arguments based, for the most part, on
humanitarian and compassionate considerations.
[16]
After
noting that the Applicant’s refugee claim had been rejected by the CRDD under the provisions of
the immigration legislation as it stood prior to the coming into force of the current
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”),
the Officer recognized the expanded ambit of the pre-removal risk assessment
that was to be carried out in the Applicant’s case:
In considering this PRAA (sic)
application, I was required under the Immigration and Refugee Protection Act
(IRPA) to accept all evidence tendered to establish a ground for protection
under section 97 because at the time of the applicant’s claim for refugee
status was decided, section 97 did not exist. I was also required to accept new
evidence on convention ground under section 96 that arose after the rejection
as per section (sic) 113(a) of the same Act. The burden of proof is on the
applicant.
[17]
The
Officer then went on to state that the Applicant and her counsel had simply put
forward arguments for the Applicant to remain in Canada without any
reference to risk factors. The Officer thus concluded that these arguments did not
fall under the purview of a pre-removal risk application, but rather pertained
to a humanitarian and companionate needs application.
[18]
The
Officer further noted that the Applicant had failed to offer any evidence
corroborating that she would be personally at risk if she returned to Ethiopia.
[19]
The
Officer thus concluded, on the basis of the record, that there was no more than
a mere possibility that the Applicant will be subjected to persecution if she
returned to Ethiopia, and that there were no substantial grounds to believe she
will face a risk of torture, or a risk to life or cruel and unusual treatment
or punishment.
Position of the Applicant
[20]
The Applicant’s
written submissions commence with a challenge of the 2002 decision of the CRDD,
even though she is long time-barred from challenging this decision.
[21]
The
Applicant then adds that, since the 2002 CRDD decision, she is now at risk in
that “she will be subjected to gender discrimination and ridicule by her
community in Ethiopia for her separation from her husband for eight years” (para.
18 of Applicant’s written submissions), and “has nowhere to go as her
relationship with her relatives has been severed” (para. 19 of the Applicant’s
written submissions). These issues were, however, never raised before the
Officer.
[22]
The
Applicant also raises a whole series of other humanitarian and compassionate
issues, some of which were not brought to the attention of the Officer, such as
the “best interest of the applicant’s Canadian-born grandchildren” (para. 23 of
the Applicant’s written submissions), “fatal consequences as a result of long
hours of flight between Canada and Ethiopia” (para. 24 of the Applicant’s
written submissions), “being torn apart from her grandchildren” (para. 25 of
the Applicant’s written submissions), etc.
[23]
In
his oral submissions, the Applicant’s counsel referred to a number of cases,
almost all of which concerned applications for consideration on humanitarian
and compassionate grounds.
Position of the
Respondent
[24]
The
Respondent notes that the submissions made in support of the pre-removal risk
assessment amount to a recitation of humanitarian and compassionate factors
which are beyond the purview of a pre-removal risk assessment. Since the
Applicant did not identify in her pre-removal risk assessment application any
risk she would be exposed to were she to return to Ethiopia, the
Respondent submits that this application for judicial review should be
dismissed.
[25]
The
Respondent further notes that the Applicant now raises new risk factors which
were never brought to the attention to the Officer. Therefore, they can have no
bearing on this judicial review application.
[26]
In
a nutshell, the Respondent argues that the Applicant has confused a pre-removal
risk assessment application with an application based on humanitarian and
compassionate considerations.
Relevant legislative
provisions
[27]
The
following provisions of the Act are relevant in this case:
|
25. (1) The Minister shall, upon request of a foreign national in Canada who
is inadmissible or who does not meet the requirements of this Act, and may,
on the Minister’s own initiative or on request of a foreign national outside Canada,
examine the circumstances concerning the foreign national and may grant the
foreign national permanent resident status or an exemption from any
applicable criteria or obligation of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
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.
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.
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).
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;
114. (1) A decision to allow the application
for protection has
(a) in the case of an applicant not described in
subsection 112(3), the effect of conferring refugee protection; and
(b) in the case of an applicant described in subsection 112(3),
the effect of staying the removal order with respect to a country or place in
respect of which the applicant was determined to be in need of protection.
115. (1) A protected person or a person who is recognized as a Convention
refugee by another country to which the person may be returned shall not be
removed from Canada to a country where they would be at risk of persecution for
reasons of race, religion, nationality, membership in a particular social
group or political opinion or at risk of torture or cruel and unusual
treatment or punishment.
|
25. (1) Le ministre doit, sur demande d’un étranger se
trouvant au Canada qui est interdit de territoire ou qui ne se conforme pas à
la présente loi, et peut, de sa propre initiative ou sur demande d’un
étranger se trouvant hors du Canada, étudier le cas de cet étranger et peut
lui octroyer le statut de résident permanent ou lever tout ou partie des
critères et obligations applicables, s’il estime que des circonstances d’ordre
humanitaire relatives à l’étranger — compte tenu de l’intérêt supérieur de
l’enfant directement touché — ou l’intérêt public le justifient.
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.
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.
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).
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;
114. (1) La décision accordant la demande de protection a pour
effet de conférer l’asile au demandeur; toutefois, elle a pour effet,
s’agissant de celui visé au paragraphe 112(3), de surseoir, pour le pays ou
le lieu en cause, à la mesure de renvoi le visant.
115. (1) Ne peut être renvoyée dans un pays où elle risque la
persécution du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques, la torture ou
des traitements ou peines cruels et inusités, la personne protégée ou la personne
dont il est statué que la qualité de réfugié lui a été reconnue par un autre
pays vers lequel elle peut être renvoyée.
|
Analysis
[28]
The pre-removal risk
assessment procedure is the logical consequence of Canada’s domestic and international commitments to the principle
of non-refoulement. Under that principle, a person should not be removed to a
country where he or she would be at risk of persecution, torture, risk to life
or risk of cruel and unusual treatment or punishment. Canada’s commitment to the principle of non-refoulement requires
that there be a review of risk prior to removal.
[29]
Under Canada’s current immigration and refugee protection legislation, risk
may be assessed by way of a determination by the Refugee Protection Division of
the Immigration and Refugee Board pursuant to sections 96 or 97 of the Act or by
way of a pre-removal risk assessment pursuant to section 112 thereof. There is
a close connection between these various legislative provisions. As noted by
the Federal Court of Appeal in Raza v. Canada
(Minister of Citizenship and Immigration), 2007 FCA 385, 289 D.L.R (4th) 675, [2007]
F.C.J. No. 1632 (QL) at para. 11:
Assuming there are no issues of criminality or national security,
an application under subsection 112(1) is allowed if, at the time of the
application, the applicant meets the definition of "Convention
refugee" in section 96 of the IRPA or the definition of "person in
need of protection" in section 97 of the IRPA (paragraph 113(c) of the IRPA). The result of a successful PRRA
application is to confer refugee protection on the applicant (subsection 114(1)
of the IRPA).
[30]
In a
pre-removal risk assessment, it is the applicant who bears the burden of proof.
The standard of proof is the balance of probabilities. Thus, the Applicant in
this case had the burden of proving, on a balance of probabilities, that she
would be at risk of persecution,
torture, to life or of cruel and unusual treatment or punishment if she returned
to Ethiopia: Bayavuge v. Canada (Minister of Citizenship and Immigration),
2007 FC 65, 308 F.T.R. 126, [2007] F.C.J. No. 111 (QL) at para. 3; Ferguson
v. Canada (Minister of Citizenship and
Immigration), 2008 FC
1067, [2008] F.C.J. No. 1308 (QL) at paras. 20-21; Guergour v. Canada (Minister of Citizenship and
Immigration), 2009 FC
1147, [2009] F.C.J. No. 1417 (QL) at para. 6.
[31]
In
this case, the Applicant has led no evidence whatsoever concerning the risk she
would be exposed to if she returned to Ethiopia, limiting her representations
before the Officer to issues related to humanitarian and compassionate
considerations should she be removed from Canada.
[32]
The
case law is clear: humanitarian or compassionate considerations need not to be
considered in a pre-removal risk assessment. In Kim v. Canada (Minister of
Citizenship and Immigration), 2005 FC 437, [2005] F.C.J. No. 540 (QL) at
para. 70, Justice Mosley noted the following:
By the same logic, I find that PRRA officers need not consider
humanitarian and compassionate factors in making their decisions. There is no
discretion afforded to a PRRA officer in making a risk assessment. Either the
officer is satisfied that the risk factors alleged exist and are sufficiently
serious to grant protection, or the officer is not satisfied. The PRRA inquiry
and decision-making process does not take into account factors other than risk.
In any case, there is a better forum for the consideration of humanitarian and
compassionate factors: the H&C determination mechanism. I do not find that the
officer erred in law by refusing to consider humanitarian and compassionate
factors in the context of the PRRA decision.
See also Sherzady v. Canada (Minister of
Citizenship and Immigration), 2005 FC 516, 273 F.T.R. 11, [2005] F.C.J. No.
638 (QL) at para. 15; Covarrubias v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1193, 279 F.T.R. 24, [2005] F.C.J. No.
1470 (QL) at paras. 34 to 38; Kakonyi v. Canada (Minister of Public
Safety and Emergency Preparedness), 2008 FC 1410, [2008] F.C.J. No. 1807 (QL) at
para. 37.
[33]
The
Federal Court of Appeal in Varga v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 394, [2007] 4 F.C.R. 3, 277 D.L.R. (4th)
762, [2006] F.C.J. No. 1828 (QL), at paras. 6 and 12, expressly indicated that
an application for a pre-removal risk assessment under section 112 of the Act should
not be confused with an application for consideration of humanitarian and
compassionate factors under section 25 of the Act, and then added that the best
interest of a child need not be considered in the context of a pre-removal risk
assessment:
PRRA officers' mandate is carefully defined by IRPA and should not be judicially expanded to include the
interests of any Canadian-born children who may be adversely affected by a
parent's removal. It is not necessary to read words into the relevant
provisions of IRPA in order for it to comply with
the Canadian Charter of Fundamental Rights and Freedoms,
and Canada's obligations in
international law.
[…]
Although the same officer may sometimes make a PRRA and determine
an H&C application, the two decision-making processes should be neither
confused, nor duplicated: Ranganathan v. Canada
(Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.) at paras. 16-17; Rasiah v. Canada (Minister
of Citizenship and Immigration), [2005] F.C.J. No. 711, 2005 FC 583 at para. 16.
[34]
Consequently,
I find that no reviewable error has been made by the Officer in refusing to
consider the evidence based on humanitarian and compassionate factors offered
by the Applicant.
[35]
The fundamental
problem in this case is that the Applicant has confused a pre-removal risk
assessment under section 112 of the Act and a request for exemption on
humanitarian and compassionate grounds under section 25 of the Act. This confusion
has resulted in the Applicant submitting an odd pre-removal risk assessment application.
The Officer in this case carried out a risk assessment on the basis of the
information which the Applicant provided. Any alleged failure to assess risk is
of the Applicant's own making.
[36]
At the hearing,
counsel for both parties indicated that they had no question to certify pursuant
to paragraph 74(d) of the Act, and no such question is raised by these
proceedings.
JUDGMENT
THE COURT JUDGES AND DECIDES that the application for judicial review is
dismissed.
“Robert M. Mainville”
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