Date: 20100602
Dockets: IMM-5437-09
IMM-5439-09
Citation: 2010
FC 604
Toronto, Ontario, June 2, 2010
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
USMAN ALI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The present Application
concerns, as a citizen of Pakistan, the Applicant’s claim for refugee
protection on arrival in Canada in December 2003. In February 2007, the
Refugee Protection Division (RPD) dismissed the claim. As a result, the
Applicant applied for Humanitarian and Compassionate (H & C) relief and
pre-removal risk assessment (PRRA) relief with respect to his return to Pakistan. Under review in the present Applications are a negative H
& C decision (IMM-5437-09) and a negative PRRA decision (IMM-5439-09).
[2]
I find that both
decisions under review are made in reviewable error. This result emanates from
the following statement at page 5 of the PRRA decision:
The credibility of the applicant was thoroughly
impugned by the RPD;
and for the purposes of this PRRA application, he has simply restated his
case. He has not addressed this issue. The risks identified by the applicant
in his PRRA application are, in substance, the same as those heard and assessed
by the RPD. A PRRA application is not an appeal of a negative RPD decision,
nor is it intended to be an appeal of the denial of leave to seek judicial
review. The decision of the RPD is final with respect to the issue of
protection under section 96 or 97 of the IRPA subject only to new, different or
additional risks that could not have been contemplated by the RPD.
[Emphasis added]
In my opinion, this statement is based on a fundamental
misunderstanding of the RPD decision (see Tribunal Record, Vol. 4, pp.
638-643).
[3]
In its
decision, the RPD acknowledged that the Applicant’s claim for protection was
based on the religious ground of fear of persecution and risk as an Ahmadi
Muslim in Pakistan, and on the political ground of fear of risk as a Western
sympathizer in Pakistan. However, the RPD rejected
the Applicant’s claim for the essential reason that “he did not establish, on a
balance of probabilities, the underlying facts of the central elements of his
claim” (RPD Decision, Tribunal Record, p. 639). The RPD did not make a clear
global negative credibility finding with respect to the Applicant’s evidence. As
a result, I find that the statement in the PRRA decision that “the credibility
of the applicant was thoroughly impugned by the RPD” is erroneous. Thus, the reviewable
error made in the delivery of the PRRA decision is the limiting of
consideration to only “new, different or additional risks”. In conducting the
PRRA, new evidence with respect to risks that existed at the time the RPD
decision was rendered should have been considered. In particular, by the
limiting, the current evidence with respect to the risk suffered by Western
sympathizers in Pakistan was not properly considered.
[4]
With
respect to the H & C decision, since the results of the PRRA decision are
an essential factor taken into consideration, and since the PRRA decision is made
in reviewable error, I find that the H & C decision is also made in
reviewable error.
ORDER
THIS COURT ORDERS that the decisions under review in
IMM-5437-09 and IMM-5439-09 are set aside, and the matters are referred back for
re-determination by a differently constituted panel.
There are no questions to
certify.
“Douglas
R. Campbell”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS
OF RECORD
DOCKET: IMM-5437-09
& IMM-5439-09
STYLE OF CAUSE: USMAN
ALI v. THE MINISTER OF CITIZENSHIP AND IMIMIGRATION
PLACE OF HEARING: TORONTO,
ONTARIO
DATE OF HEARING: JUNE 1, 2010
REASONS FOR ORDER
AND ORDER: CAMPBELL J.
DATED: JUNE 2, 2010
APPEARANCES:
|
Pamila Bhardwaj
|
FOR THE APPLICANT
|
|
Marcia Pritzker Schmitt
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Pamila Bhardwaj Law Office
Toronto, Ontario
|
FOR
THE APPLICANT
|
|
Myles
J. Kirvan
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
Email this Content