Date: 20100219
Docket: IMM-3222-09
Citation: 2010 FC 175
Ottawa, Ontario, February 19,
2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
HOA VAN TRAN, HUONG XUAN
NGUYEN
AND ANH DUC TRAN
Applicants
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
THE SOLICITOR GENERAL OF CANADA,
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a negative
decision rendered by a Pre‑Removal Risk Assessment Officer (the Officer)
concerning Hoa Van Tran, Huong Xuan Nguyen and Anh Duc Tran (the Applicants).
Factual Background
[2]
All
of the Applicants in this case are citizens of Vietnam. The principal
Applicant, Hoa Van Tran, made a claim for refugee status stemming from events
that took place subsequent to his employment in Russia. Included in
his application are his wife, Huong Xuan Nguyen, and his son, Anh Duc Tran, who
have based their claims on that of Mr. Tran.
[3]
Between
1992 and 1996, the principal Applicant claims to have been employed by a joint
venture company. During that time, he lived in Russia with his family and he
alleges that he was also part of a security group supported by the
government of Vietnam. As such, he
was responsible for identifying criminals in the Vietnamese community in Russia. He further
claims that he reported many individuals, nine of whom were deported from Russia to Vietnam.
[4]
While
he was on vacation in Vietnam in December 1998, he
was attacked and beaten. He also alleges that he received phone calls
threatening physical violence and an attempt was made to kidnap his daughter.
He believes that these incidents were carried out by persons he caused to be
deported from Russia as revenge
for his actions against them.
[5]
The
principal Applicant’s wife and son entered Canada on December
19, 2003. The principal Applicant entered on October 19, 2004. The claim for
refugee protection was made on November 16, 2004.
[6]
On
July 29, 2005, the Refugee Protection Division (RPD) rejected the claim for
protection on the grounds of credibility and state protection. On February 12,
2006, the Applicants submitted an application for permanent residence on humanitarian
and compassionate (H&C) grounds, which was denied on May 8, 2009. On
November 5, 2007, the Applicants submitted an application for a Pre-Removal
Risk Assessment (PRRA). This application was denied on May 7, 2009 and is now the
subject of this judicial review. Both the PRRA and H&C applications were
assessed by the same officer.
Questions at Issue
[7]
The
Applicants have raised many issues in the application for judicial review. I
will address the issues that I have restated as follows:
a. Is the PRRA
decision reasonable?
b. Was the
Officer required to consider the best interests of the child in the context of
the PRRA assessment?
c. Did the
Officer violate a principal of natural justice?
d. Does paragraph
113(a) of the Act infringe on section 7 of the Charter?
[8]
The
application for judicial review shall be dismissed for the following reasons.
Relevant Legislation
[9]
The
relevant legislation can be found in Annex A at the end of this document.
Analysis
Standard of review
[10]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 at paragraph 62 (Dunsmuir), the Supreme Court of Canada held
that jurisprudence should be examined in determining which standard of review
should be applied to a particular category of question. Before Dunsmuir,
it was well established that the appropriate standard of review for a question
of fact was patent unreasonableness, reasonableness simpliciter for
questions of mixed law and fact and correctness for questions of law (Abdollahzadeh
v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1310, 325 F.T.R. 226 at
paragraph 21 (Abdollahzadeh)). As the standards of patent
unreasonableness and reasonableness simpliciter have now been collapsed
into one, questions of facts and mixed law and fact will be subject to the standard
of reasonableness (Dunsmuir). I would add that a breach of procedural
fairness is held to a standard of correctness (Soares v. Canada (Minister of
Citizenship and Immigration), 2007 FC 190, 308 F.T.R. 280).
[11]
Accordingly,
the first question at issue will be addressed using the standard of
reasonableness. The second and third issues will be held to a standard of
correctness. The constitutional question will, of course, be answered in the
usual manner.
Is the PRRA decision
reasonable?
[12]
First
of all, it is important to clearly set out the goal of the PRRA application and
the limited decision making power given to an officer assessing an application.
The PRRA application is not meant to be an appeal of a negative refugee
decision. Rather, it is meant to be an assessment of risk based on new facts or
evidence. As stated in Raza v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 385, (2007) 370 N.R. 344 (Raza),
the limitations imposed on the presentation of evidence under paragraph 113(a)
of the Act must be respected by the PRRA officer.
[13]
In
Raza, above, the Federal Court of Appeal set out questions that a PRRA
officer can consider in evaluating the evidence and deciding if it should be
excluded under the Act. Those questions are as follows:
1. Credibility: Is the
evidence credible, considering its source and the circumstances in which it
came into existence? If not, the evidence need not be considered.
2. Relevance: Is the
evidence relevant to the PRRA application, in the sense that it is capable of
proving or disproving a fact that is relevant to the claim for protection? If
not, the evidence need not be considered.
3. Newness: Is the
evidence new in the sense that it is capable of:
(a) proving the current state
of affairs in the country of removal or an event that occurred or a
circumstance that arose after the hearing in the RPD, or
(b) proving a fact that was
unknown to the refugee claimant at the time of the RPD hearing, or
(c) contradicting a finding
of fact by the RPD (including a credibility finding)?
If not, the evidence need not
be considered.
4. Materiality: Is the
evidence material, in the sense that the refugee claim probably would have
succeeded if the evidence had been made available to the RPD? If not, the
evidence need not be considered.
5. Express statutory
conditions:
(a) If the evidence is
capable of proving only an event that occurred or circumstances that arose
prior to the RPD hearing, then has the applicant established either that the
evidence was not reasonably available to him or her for presentation at the RPD
hearing, or that he or she could not reasonably have been expected in the
circumstances to have presented the evidence at the RPD hearing? If not, the
evidence need not be considered.
(b)
If the
evidence is capable of proving an event that occurred or circumstances that
arose after the RPD hearing, then the evidence must be considered (unless it is
rejected because it is not credible, not relevant, not new or not material).
[14]
In
the case at bar, previous counsel for the Applicants prepared the submissions
for the PRRA application. Those submissions contained three documents – written
submissions in support of the PRRA application, a copy of the personal story as
submitted in the refugee application and an article, written by that counsel,
on H&C considerations. The written submissions simply restate the events
that led to the Applicants’ coming to Canada to seek protection.
They also include statements about H&C factors that they claim should be
part of the PRRA decision – all of those factors related to hardship and none
of them address the issue of risk.
[15]
Thus
I cannot accept the Applicants’ claim that both the personal and documentary
evidence are new in that they demonstrate that the situation in Vietnam has
deteriorated and that the Applicants would face a risk upon return. Moreover,
as the Respondent pointed out, the Applicants make this sweeping statement but
fail to refer to any of the specific evidence which they allege comprised new
evidence and how this evidence specifically related to new developments in
their personal situation or the more general country conditions.
[16]
Furthermore,
the Officer noted that all evidence, other than that which pre-dated the RPD
decision, was accepted as new evidence. The only evidence that was excluded was
the evidence for which no explanation was provided as to why it was not, or
could not have been, presented to the RPD. This is in complete conformity with
the statutory requirement and the approach set out in Raza. The Officer
did not err in her application of the test, nor did she err in her evaluation
of which elements were new evidence.
[17]
The
Applicants also argue that it is in the best interest of justice that the latest
and most relevant information on risk be assessed. As the Applicants did not
submit any information on a new risk, other than what they had already claimed
before the RPD, this argument has no foundation. Additionally, I note that the
case law referred to in the submissions is distinguishable as it pertains to
cases where new evidence of risk was submitted before the PRRA decision was
communicated to an applicant and where new evidence was introduced before the
Court in the context of a stay motion.
[18]
The
Officer made no error in relying on the RPD’s findings of fact and credibility.
It was the appropriate decision since the Applicants raised the same risk which
was identified and thoroughly assessed by the RPD and it is not the role of the
Officer to revisit credibility findings without new facts or evidence (Cupid
v. Canada (Minister of Citizenship and Immigration), 2007 FC 176, [2007] F.C.J.
No. 244 at paragraphs 4 and 21 (Cupid)). I am satisfied that the
Officer correctly assessed the risk in her decision.
Was the Officer required
to consider the best interests of the child in the context of a PRRA
assessment?
[19]
The
Applicants submit that the Officer erred as she did not consider the best
interests of the minor child in making her decision. The Respondent relies on
the decision in El Ouardi v. Canada (Solicitor General), 2005 FCA
42, 332 N.R. 76 where, in the context on an application for a stay of a removal
order pending appeal, it was stated that "there is no indication that the
best interests of her child were raised on her risk assessment and it is not
obvious to me that in the circumstances of this case, the risk assessment was
the appropriate forum to have done so" (at paragraph 10).
[20]
In
Varga v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 394, [2007] 4 F.C.R. 3
at paragraph 13 (Varga), the Federal Court of Appeal accepted that there
is no requirement that the interests of affected children be considered under
every provision of the Act. The Act sets out that consideration of a PRRA
application is to be conducted on the basis of sections 96 and 97, thus risk is
the only relevant consideration and the broad-ranging considerations of
children's interests should not be contemplated (Varga, above, at paragraphs
7 to 9). There is a very narrow scope in which the PRRA officer can act in
making an assessment. The Act provides an effective opportunity for the
consideration of the best interests of the child, and that is under section 25
through an H&C application. The Federal Court of Appeal also emphasized
that the PRRA and H&C processes should not be confused, nor duplicated (Varga,
above, at paragraph 12).
[21]
In
the present case, the Applicants made an H&C application in which they
included the interests of their minor child. That application was rejected and
the application for judicial review of that decision was rejected at the leave
stage (see Court file IMM-3223-09). This is not the appropriate forum in which
to revisit the decision on H&C considerations.
[22]
Therefore,
I find that the Officer was under no obligation to consider the best interests
of the minor child in the PRRA application and did not err on this ground.
Did the Officer commit a
breach of natural justice?
Reasons
[23]
The
Applicants allege that there has been a breach of procedural fairness as they
were provided with inadequate reasons with regard to state protection. I
disagree. I am satisfied that a review of the reasons in their totality shows
that they are adequate. Furthermore, I am of the opinion that it would be
inappropriate to expect reasons in the context of a PRRA application to be as
elaborate as those expected of the RPD and it would certainly be inappropriate
to hold them to the standard of judicial reasons as suggested by the Applicants
(see Ozdemir v. Canada (Minister of Citizenship and Immigration), 2001
FCA 331, [2001] F.C.J. No. 1646 (QL) at paragraph 11). In evaluating the
adequacy of the Officer’s reasons, one must take into account both the role of
the Officer and the submissions made by the Applicants (Cupid, above at
paragraph 12).
[24]
The
Officer was required to assess the information submitted by the Applicants in
order to determine whether they are now facing a risk that was not identified
by the RPD or has emerged since that time. I note that the Applicants did not
make any submissions on new risk developments due to a change in their personal
circumstances or changes in country conditions.
[25]
In
her reasons, the Officer explains that as the Applicants did not make any
allegations as to a new risk since the RPD hearing, the only source of risk
left to evaluate would be from a change in country conditions. She also mentions
that the RPD was satisfied that state protection is available to the Applicants
in Vietnam and that
they had not presented any evidence to the contrary.
[26]
The
RPD held that state protection is available in Vietnam as the documentary
evidence showed that there are police organizations, it established that it is
a state willing and able to protect its citizens and there is effective control
over the territory. Furthermore, the RPD did not find the Applicants’
explanation credible as to why they could not be protected (RPD decision,
Tribunal record at pages 91 and 92). The documentary evidence reviewed by the
Officer did not indicate that this was no longer the case and, once again, the
Applicants themselves did not allege that there had been any change, nor did
they provide any new evidence as to why they can not be protected.
[27]
The
Officer described the process of review, she made reference to the
documentation submitted by the Applicants and her treatment of it and she
stated that there had not been a material change in conditions in Vietnam since the
RPD decision.
Right to an oral hearing
[28]
It
is clear in the Act that the PRRA process is meant to be dealt with in writing
and oral hearings are held only in exceptional circumstances. This Court has
accepted that a hearing is not generally required where the RPD has heard a
claim and made a determination on credibility. Further, the Court has held that
a hearing is not required where the officer denies that application on the
basis of objective evidence as that finding is a matter distinct from
credibility (Al Mansuri v. Canada (Minister of Public Safety and Emergency
Preparedness), 2007 FC 22, 60 Admin. L.R. (4th) 228 at paragraph 43 (Al
Mansuri)). The Applicants submit that a determination was made as to their
credibility and they were entitled to an oral hearing. They alternatively
submit that they were entitled to a hearing under either paragraph 167(b)
or 167(c) of the Regulations.
[29]
Paragraph
113(b) of the Act states that oral hearings will only be granted in the
prescribed circumstances and those circumstances are set out in section 167 of
the Regulations. The conditions set out in the section are cumulative and the
Applicants must satisfy all factors, contrary to their submission. Through
their submissions, the Applicants acknowledge that they do no meet the factor
under paragraph 167(a). I am satisfied that there was no 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 in this case and an oral
hearing was not required under the Act and the Regulations. Here, the Officer
denied the application on the basis of objective evidence, as the determinative
issue was state protection. As in Al Mansuri, above, this finding is a
matter distinct from the Applicants’ credibility.
Right to a
fair hearing
[30]
The
Applicants contend that they were denied the right to a fair hearing because
the Officer did not contact counsel and allow him to respond to the reports and
cases relied on. They claim that this was a breach of natural justice since
they were entitled to be informed of the case to be met.
[31]
It
is well established that there is no breach of procedural fairness when the
officer does not inform the applicant of documentary evidence unless that
evidence in not publicly available or was not available at the time that
submissions were filed and it evidences novel and significant information with
regard to country conditions which may affect the disposition of the case (Mancia v.
Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 461 (C.A.);
Al Mansuri, above, at paragraph 52).
[32]
The
Officer relied on one decision from this Court and three pieces of documentary
evidence. It is not disputed that all of these documents were publicly
available and are documents that are commonly used in the PRRA process. The
Applicants have not argued that any of these documents revealed novel or
significant changes in the country conditions in Vietnam and after
reviewing them I conclude that none of them do. Accordingly, I find that the
documentary evidence was within the knowledge of the Applicants. The
requirements of procedural fairness were met.
Does paragraph
113(a) of the Act infringe on section 7 of the Charter?
[33]
The
Court has no judicial obligation to respond to constitutional questions (Abdollahzadeh,
above, at paragraph 31). I think that in this case, it is unnecessary for the
Court to answer this question for the following reasons.
[34]
This
question has already been answered in a satisfactory manner in the case law. In
Doumbouya v. Canada (Minister of Citizenship and Immigration), 2007 FC
1187, 325 F.T.R. 143, the Applicant had argued that the restrictions under paragraph
113(a) have a direct impact on the right of PRRA applicants to life, liberty
and security, which was not consistent with the principles of fundamental
justice guaranteed in section 7 of the Charter. In that case, it was
held that because the PRRA is not an appeal of the RPD decision and is limited
to new developments paragraph 113(a), it does not deny an applicant the
opportunity to present all evidence relevant to his PRRA, and therefore, is
consistent with section 7 of the Charter (at paragraphs 92 to 94). In Abdollahzadeh,
above, at paragraph 35, the Court held that:
It is evident that the application for
protection contemplates life, liberty and security of the applicant. Overall,
the procedure provided by the IRPA according to the steps (the refugee claim
and the RPD decision, the application for protection, the ultimate application
to the removal officer) is indicative of concern for the principles of natural
justice and fairness. Considering all of the IRPA procedure and the application
for protection step, limiting the PPRA applications to new information under
paragraph 113(a) of the IRPA does not breach the principles of justice and
fairness guaranteed by the Charter.
The Applicants have not demonstrated that
these decisions are wrong or raised an argument that suggests so.
[35]
Although
they have raised an argument that was not raised in previous jurisprudence, I
am still not convinced that the Court need answer the question for the following
reasons.
[36]
The
principles of administrative law are appropriate to answer the question raised
by the Applicants and it is not necessary to engage in an analysis under the
Charter. The Supreme Court has held that if it is possible to decide an issue
by applying the principles of administrative law, it is not necessary to
consider Charter issues (Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817; Chieu v. Canada (Minister of Citizenship and
Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84). I have conducted a review of the
decision and have found that there was no breach of natural justice or the
principals of procedural fairness in this case.
[37]
Also,
I also agree that the Applicants’ arguments lack a clear evidentiary foundation
and they have not submitted any evidence as to how the decision in this case
might have been different, but for paragraph 113(a) of the Act. As stated by
the Supreme Court of Canada, " [i]n general, any Charter challenge based
upon allegations of the unconstitutional effects of impugned legislation must
be accompanied by admissible evidence of the alleged effects. In the absence of
such evidence, the courts are left to proceed in a vacuum, which, in
constitutional cases as in nature, has always been abhorred" (Danson v.
Ontario (Attorney General), [1990] 2 S.C.R. 1086 at page 1101).
[38]
The
applicants submit the following questions for certification:
1. In a case where police protection has
been sought and refused and/or not provided, or where the claimant has refused
to seek that protection, based on past refusals of protection to the claimant
or those similarly situated:
(a) is the decision in Villafranca(FCA)
effectively overturned by the Supreme Court of Canada in Ward with
respect to state protection, particularly the issue of “perfect” protection not
required under Villafranca? Put another way:
(b) is there a middle ground between
“effective(adequate)” vs.” perfect” protection; or
(c) is there a middle ground between
“imperfect” vs. “ineffective(inadequate)” protection?
Or
are the two terms and concepts janusly incapable of co-existence and
applicability in any particular, individual claim to refugee status?
2. If the two terms and concepts are capable
of co-existing and capable of being applied, what are the parameters of that
middle ground? Put another way:
(a) how is a claimant who has been denied
“effective(adequate)” protection under Ward, have his claim denied on
the basis that “perfect” protection cannot be expected under Villafranca?
or
(b) how can a claimant who has met the
test underWard, then have his claim denied under the “test” in Villafranca?
3. Is the Federal Court’s decision in Garcia
correct with respect to this issue?
It
is respectfully submitted that this issue requires the attention and
clarification of the Court of Appeal in light of the fact that Villafranca was
decided before Ward and it Villafranca further relies on Zalzali
which was not followed in Ward.
It
is submitted that the discussion in Ward (at pages 20-22, particularly
paragraph 50), makes clear that, absent complete breakdown of the state
apparatus, a nation is presumed willing to protect its nationals. This
presumption is rebuttable. The level of rebuttal required is set out by the
Court, and the bar set is where “ineffective (inadequate)” protection is not
available or forthcoming, then state protection is unavailable.
The
Respondent holds that where protection is “ineffective (inadequate)”, either
through refusal or inability, then there is a basis of refusal possible on the
premise that although ineffective, since nobody can expect “perfect”
protection, therefore the claim is nonetheless defeated. This is an illogical
and impossible hurdle, which erases Ward in that it begs the question:
Absent
the instances of complete breakdown of the state apparatus (whereby the
presumption of state protection does not apply and therefore no evidence of
unavailability of effective state protection is even required by the claimant),
in
what possible scenario is anyone, ever, a refugee in instances where the
test to be met is that a claimant cannot expect “perfect” protection even
though the protection has been “ineffective”? So, a claimant can be tortured or
killed due to “ineffective” protection because nobody is to expect “perfect”?
It
is submitted that Ward equally dismisses this illogical premise by
stating that it would be illogical to send someone back to the risk of torture
or death once “ineffective” protection has been established, just to test
the degree of that ineffectiveness, wherein the Court in Ward,
at p.22, paragraph 48, states:
“…Moreover,
it would seem to defeat the purpose of international protection if a claimant
would be required to risk his or her life seeking ineffective protection of a
state, merely to demonstrate that ineffectiveness.”
And
further as ruled in Garcia:
“D.
The impact of Ward on Villafranca
[18]
In my opinion, Ward amends the decision in Villafranca in a particularly important respect. Ward makes a clear statement on the quantity and quality of the
evidence which a claimant must produce to rebut the presumption of state
protection; that is, a claimant is only required to provide some clear and
convincing evidence. Therefore, in my opinion, the statement in Villafranca that “it is not enough for a claimant
merely to show that his government has not always been effective at protecting
person in his particular situation” cannot any longer be applied as a point of
law.”
-De Araujo Garcia v. MCI 2007 FC 79
It
is lastly submitted that this issue arises both on the facts, as the PRRA
officer rules on this very crucial issue, of not every state being able to
provide “perfect protection”,
-
Decision of PRRA officer
while
relying on Villafranca:.
-
(Decision of PRRA officer)
And
which issue transcends the particular facts of this case, and is an issue of
general importance, in every refugee claim, as effective state protection is
always an issue.
4. Whether section 113(a), as interpreted
and applied, infringes section 7 of the Charter?
i.
Is a
hearing/interview required on a PRRA:
(a)
when credibility is
impugned on new evidence? and/or
(b)
when a PRRA officer
adopts negative credibility findings, of the RPD, with respect to, and applies
them to, new evidence?
[39]
I
have reviewed the respondent’s written objections to the proposed questions and
the applicant’s reply.
[40]
Although
very interesting, I am of the opinion that none of the above questions should
be certified because they are too hypothetical. I also agree with the
respondent that the questions do not raise serious issues of general importance
which are determinative of the issues as applied to the facts in the case at
bar.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be dismissed. No question is certified.
“Michel
Beaudry”
Annex A
Immigration and Refugee
Protection Act, S.C. 2001, c. 27.
|
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;
(b)
a hearing may be held if the Minister, on the basis of prescribed factors, is
of the opinion that a hearing is required;
|
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;
b) une
audience peut être tenue si le ministre l’estime requis compte tenu des
facteurs réglementaires;
|
Immigration and Refugee
Protection Regulations, SOR/2002-227 (the Regulations).
|
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.
|
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.
|
Email this Content