Date: 201000628
Docket: IMM-5356-08
Citation: 2010 FC 703
Ottawa, Ontario, June 28,
2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
RAHELA HAQUE
SHAHIDUL HAQUE
RAFIA HAQUE
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
a decision of a Canadian Border Services Agency (CBSA) officer (the officer),
dated October 1, 2008, which determined that the applicants would not be
subject to risk of persecution, danger of torture, risk to life or risk of
cruel and unusual treatment or punishment if returned to Bangladesh.
[2]
The
applicants request an order setting aside the officer’s decision and referring
the matter back to a different pre-removal risk assessment (PRRA) officer for
redetermination with such directions as the Court considers appropriate.
Background
[3]
The
applicants are Rahela Haque (the principal applicant), her husband, Shahidul
Haque and their daughter, Rafia Haque (the minor applicant). They are citizens
of Bangladesh. The minor
applicant was born in the United States and is a U.S. citizen. The
principal applicant originally left Bangladesh in 2002 to live in the United
States.
In 2003, she returned to Bangladesh to marry and in 2004,
brought her husband back with her to the U.S. where they lived until coming to Canada in 2005.
[4]
The
applicants claimed refugee protection in Canada on an
alleged fear of persecution as a result of an imputed political opinion and
membership in a particular social group, namely, the principal applicant’s
family.
[5]
In
2001, the principal applicant’s father was appointed to a high position within
the Bangladesh Awami League (AL). After the Bangladesh National Party (BNP) won
the 2001 elections, the government started to take revenge against its
opponents. In December, the principal applicant’s father was abducted by
activists. He returned home the following day and told the family that he had
promised to pay his captors a large sum of money in exchange for his release.
He then obtained visitor visas to the U.S. for his family and they
left Bangladesh in March of
2002.
[6]
On
December 5, 2007, the applicants’ claim was rejected by the Refugee Protection
Division of the Immigration and Refugee Board (the Board). Based on the
evidence before it, the Board found that the central elements of the principal
applicant’s story were not credible. The Board also found that the re-availment
of the principal applicant in 2003 and her long sojourn in the U.S. combined
with an absence of an asylum claim showed a lack of subjective fear. The Board
also found that the principal applicant’s fear was not well-founded given the
new government in Bangladesh and the absence of any political affiliation on
the part of the principal applicant. The Board finally found that the male
applicant was not a forthright witness and was not credible.
[7]
On
March 31, 2008, the applicants’ leave application (Court file IMM-5404-07)
challenging the negative Board decision was dismissed by this Court. Next, the
applicants sought a PRRA.
The Officer’s Decision
[8]
The
officer did not consider all of the evidence submitted in support of the PRRA,
excluding documents that predated the Board decision because the applicants did
not provide any explanation as to why the documents could not have been
presented there.
[9]
The
officer used the Board decision as a starting point. The Board had thoroughly
impugned the applicants’ credibility, yet the applicants had simply restated
their case. The officer noted that the purpose of a PRRA is not to reargue the
facts that were before the Board, but only to consider new evidence not
contemplated by the Board.
[10]
As
one piece of new evidence, the applicants had submitted a letter from their
lawyer in Bangladesh which
indicated that the applicants’ immediate family had been visited by
plain-clothed police officers looking for the applicants. The lawyer stated
that he checked records at the police station and found no case against the
applicants. The lawyer also mentioned that the male applicant was a childhood
friend of a now-imprisoned politician and speculated that the visit could have
been in that regard. The officer afforded little probative value to the letter
due to its speculative nature and the lack of corroboration by objective
evidence.
[11]
Another
piece of new evidence was a copy of a letter from an AL official, indicating
that both the principal and male applicants were active members of the AL and that the
applicants would very likely face persecution if they returned. The officer
similarly afforded this letter little probative value. The letter did not
indicate who the potential agents of persecution were, nor were the allegations
supported by any objective evidence. Finally, it was noted by the officer that
while the letter came from an AL official, he did not indicate experiencing
any incidents of harassment or threats of harm as a result of his political
opinions.
[12]
The
officer also considered the applicants’ submissions on country conditions, but
noted that they had not linked this evidence to their personalized risks. In
other words, they had not provided sufficient evidence to support that their
profile in Bangladesh was similar
to those persons currently described as at risk in the country documents. The
evidence did not support that the applicants had ever been involved in
political activities. At the Board hearing, it had been established that
several of the principal applicant’s other siblings were living in Bangladesh without
problems.
[13]
The
officer concluded that there was less than a mere possibility that the
applicants would face persecution should they return to Bangladesh.
Issues
[14]
Since
the parties agree that the appropriate standard of review is reasonableness,
the only issue before the Court is whether the officer’s decision was
reasonable.
Applicants’ Written Submissions
[15]
The
applicants submit that the decision of the officer was unreasonable and in
support of this contention, point to four errors they allege the officer made.
[16]
First,
the applicants assert that the officer failed to consider that the principal
applicant’s father, who was held by the Board to be a refugee, was a similarly situated
individual such that his own experiences ought to have been enough to establish
the possibility of persecution.
[17]
Second,
the applicants submit that the officer erred in failing to address the applicants’
mental health and psychological reports. The applicants assert that they have
suffered and continue to suffer mental health consequences as a result of the
persecutory acts against the principal applicant’s father.
[18]
Third,
the applicants submit that the officer erred by engaging in a selective review
of the country documentation. The documentation demonstrated human rights
abuses, weak institutions and disregard for rule of law in Bangladesh, yet even
though the principal applicant was the daughter of an outspoken opposition
member, the officer failed to consider whether his enemies might attribute his
political views to her. The principal applicant notes that her father’s younger
children were accepted with his refugee claim, despite their lack of political
opinion.
[19]
Finally,
the officer erred by failing to consider the best interests of the minor
applicant. It is in the best interests of the minor applicant not to expose her
parents to a risk of harm.
Respondents’ Written Submissions
[20]
The
respondents submit that the officer’s decision was reasonable and that the
applicants’ essential complaints are against the weight given to the evidence.
[21]
Contrary
to the applicants’ assertions, the claim of persecution as a result of family
membership was squarely addressed and rejected by the Board. Similarly, the
applicants’ assertions regarding mental health consequences as a result of
persecutory acts against the principal applicant’s father are without merit.
The applicants’ credibility was impugned by the Board which rejected their
assertions that they faced risk based on their family connection. Despite this,
it was clear that the officer understood that the risk alleged was based on the
circumstances of the principal applicant’s father.
[22]
The
psychological report was properly rejected by the officer on the grounds that
it had been addressed by the Board and was not new evidence.
[23]
The
respondents finally submit that the officer made no error with respect to the
minor applicant’s interests. PRRA officers are not under an obligation to
consider the best interests of the child and in any case, the minor applicant’s
claim was based on the risk facing her parents and did not include any
individual evidence.
Analysis and Decision
The Applicants’ Burden
[24]
Referring
to the content of the reasonableness standard in Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9 (QL), the Supreme Court stated:
47 Reasonableness is a deferential
standard animated by the principle that underlies the development of the two
previous standards of reasonableness: certain questions that come before
administrative tribunals do not lend themselves to one specific, particular
result. Instead, they may give rise to a number of possible, reasonable conclusions.
Tribunals have a margin of appreciation within the range of acceptable and
rational solutions. A court conducting a review for reasonableness inquires
into the qualities that make a decision reasonable, referring both to the
process of articulating the reasons and to outcomes. In judicial review,
reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
[25]
Thus,
under Dunsmuir, the reasonableness of a decision denying a PRRA
application will only be interfered with by reviewing courts in two situations:
1. Where there
exists no reasonable line of analysis that could have lead to the officer’s
conclusion; or
2. Where the
conclusion does not fall within the range of possible, acceptable outcomes.
[26]
In
attempting to establish that one of the above tests has been met, an applicant
may, as a first step, point to a perceived error or misconstruction in the
written reasons provided by the officer. However, the written reasons of
immigration officers are not required to be perfect and need not withstand
microscopic legal scrutiny (see Boulis v. Canada (Minister of Manpower and
Immigration), [1974] S.C.R. 875). An error or omission in the drafting of
the written reasons is only indicative of a real error.
[27]
However,
even the existence of a real error, omission or misconstruction will not
discharge the burden before the applicants. In other words, an error alone
cannot be a reviewable error. Some errors may directly impugn the very merits
of a decision, while other errors may be of little consequence. The above
quoted paragraph from the decision in Dunsmuir requires courts to inquire
“into the qualities that make a decision reasonable, referring both to the
process of articulating the reasons and to outcomes.” The applicants must
ultimately establish that one of the above tests is met before the reviewing
court will interfere.
[28]
I
now turn to the perceived errors which the applicants assert render the
officer’s decision unreasonable.
Was the principal
applicant’s father a similarly situated individual?
[29]
The
well-established refugee law principle of an applicant’s ability to rely on the
persecution of similarly situated individuals was well stated in Fi v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1125, [2007] 3 F.C.R. 400:
14 That being said, it is trite law
that persecution under section 96 of IRPA can be established by examining the
treatment of similarly situated individuals and that the claimant does not have
to show that he has himself been persecuted in the past or would himself be
persecuted in the future. In the context of claims derived from situations of
generalized oppression, the issue is not whether the claimant is more at risk
than anyone else in his country, but rather whether the broadly based
harassment or abuse is sufficiently serious to substantiate a claim to refugee
status. If persons like the applicant may face serious harm for which the
state is accountable, and if that risk is grounded in their civil or political
status, then he is properly considered to be a Convention refugee (Salibian
v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 at
259 (F.C.A.); Ali v. Canada (Minister of Citizenship and Immigration)
(1999), 235 N.R. 316.
(My emphasis)
[30]
The
applicants in the present case provided evidence that their claim for
protection was related to the principal applicant’s father and submit that he
was a similarly situated individual whose refugee claim was accepted by the Board.
[31]
While
it appears that the officer understood fully the extent of the principal applicant’s
reliance on the persecution of her father, the officer did not consider that
her father was a similarly situated individual. Indeed, the Board had confirmed
the significant difference between the respective situations. None of the
applicants alleged to have the same political opinions or affiliations as the
principal applicant’s father which was the basis of his refugee claim. The Board
affirmed:
Both claimants have had no political
affiliation or activities. Their fear is based on the fear held by the
principal claimant’s father, who had submitted a refugee claim in Canada that was accepted.
[32]
The
applicants did not submit any new evidence to refute this finding of the Board.
Therefore, the officer was bound to accept it (see Saadatkhani v. Canada (Minister of
Citizenship and Immigration), 2006 FC 614, [2006] F.C.J. No. 769 (QL)).
[33]
While
the applicants may disagree with the officer’s factual conclusion on this
issue, there was no necessary component of analysis missing in the officer’s
reasons. Nor have the applicants demonstrated that the conclusion was made in a
perverse or capricious way or without regard to the evidence. Consequently,
this Court cannot find an error with respect to this issue.
Did the officer err by
failing to address the applicants’ mental health and the psychological report?
[34]
In
submissions before the officer, the male applicant made reference to trauma and
the major psychological problem for the applicants and appended the report of a
psychologist as evidence. The officer did not make any reference to this
submission or the report in the officer’s decision letter.
[35]
In
the circumstances, I cannot accept that the omission amounted to a reviewable
error. It is trite that PRRA officers are assumed to have reviewed all of the
evidence and are not required to discuss every piece of evidence before them in
their written reasons (see Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), 157 F.T.R. 35, [1998] F.C.J. No.
1425 (F.C.T.D.) (QL)).
[36]
Moreover,
it appears that the omission was intentional and also quite justified. The
officer expressed that all of the evidence had been reviewed. In accordance
with subsection 113(a) of the Act, the officer correctly noted at the beginning
of the decision that evidence which pre-dated the Board decision would not be
considered in the absence of an explanation as to why it had not been brought
to the Board hearing.
[37]
The
psychological report dated April 18, 2007 did predate the Board decision. The
report had in fact been before the Board, which elected not to afford any
weight to it or the applicants’ testimony regarding mental health (certified
tribunal record page 218).
[38]
It
is well established that PRRA assessments are not appeals or reconsiderations
of Board decisions. They are only an assessment of the effect which new
evidence may have had on the Board decision in question. Factual and
credibility conclusions made by the Board are not to be revisited or reargued
(see Yousef v. Canada (Minister of
Citizenship and Immigration), 2006 FC 864, [2006] F.C.J. No. 1101 (QL)
at paragraphs 20 to 21, Kaybaki v. Canada (Solicitor General of Canada), 2004 FC 32,
[2004] F.C.J. No. 27 (QL) at paragraph 11 to 13, Mooketsi v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1401, [2008] F.C.J. No. 1814 (QL)
at paragraphs 10 and 11).
[39]
Since
the applicants presented no new evidence to call into question the conclusions
made by the Board, there was no duty to mention the matter.
[40]
It
also bears noting that many of the submissions made to the officer appear to
have been made in contemplation of a humanitarian and compassionate grounds
application.
Did the officer err by engaging in a selective
review of the country documentation?
[41]
The
applicants assert that the officer misapprehended the country documentation and
failed to consider that the political violence discussed therein meant that
there might be a serious risk to the principal applicant as the daughter of an
outspoken critic of government.
[42]
Upon
a review of the decision, I find no merit to the applicants’ assertion. The
officer clearly understood that the applicants’ claim revolved around the
principal applicant’s father’s experiences and political activities. That being
the case, it was intelligible that the officer’s discussion of the country
conditions focused on politically-based violence in Bangladesh. This type
of selective review is required and is rational and denotes to the applicants
that the officer understood the relevance of the country documentation. Indeed,
the review of the tumultuous political situation in Bangladesh took up the
bulk of the officer’s written reasons. The applicants make no allegation that
the officer omitted any significant chunk of information or any aspect of the
country documentation highly relevant to the applicants’ claim. There is no
reason then to interfere in the officer’s informed conclusion, which reads as
follows:
The submissions do not recount any new
material evidence of a significant change in country conditions since the
applicants were before the RPD. I find that the documents relate to conditions
faced by the general population, or describe specific events or conditions
faced by persons not similarly situated to the applicants. The principal and
male applicants have not been in Bangladesh
since January 2004 and March 2004 respectively. The evidence before me does not
support that the applicants have been involved in political activities in Bangladesh. I find it objectively
unreasonable that, after the passage of over four years, combined with the
political changes that have occurred in Bangladesh, political opponents of the principal
applicant’s father are seeking the applicants. I recognize that the applicants
fear for their safety, however the current political situation in Bangladesh is
a condition faced by the general population, and the evidence before me does
not support that the applicants face a personalized risk in their home country
as a result.
The applicants thus have not demonstrated
any error in this portion of the decision.
Did the officer err by failing to consider the
best interests of the minor applicant?
[43]
Outside
of the sections where consideration of the best interest of the child is
specifically mandated, there is no general duty for immigration officers to
undertake any such analysis (see generally Maskini v. Canada (Minister of
Citizenship and Immigration), 2008 FC 826, [2008] F.C.J. No. 1039).
[44]
In
Varga v. Canada (Minister of Citizenship and Immigration), 2006 FCA 394,
[2007] 4 F.C.R. 3, 277 D.L.R. (4th) 762, Mr. Justice Evans, writing for the Court,
determined that PRRA officers in particular, are not required as a matter of
law, to consider interests of a Canadian born child. He made the following
points in his reasons:
1. A broad ranging
consideration of children’s interests is not contemplated by ss. 96, 97, 112
and 113 of the Act (The refugee and PRRA provisions). That exercise is properly
conducted under s. 25(1) applications to remain in Canada on H&C
grounds (paragraphs 7 to 10).
2. Although the
same officer may sometimes make a PRAA and determine an H&C application,
the two decision-making processes should be neither confused, nor duplicated
(paragraph 12).
3. Neither the
Charter nor the Convention on the Rights of the Child
requires that the interests of affected children be considered under every
provision of IRPA (paragraph
13).
[45]
The
jurisprudence therefore establishes that there is no duty at law for PRRA
officers to consider the best interests of a child affected by the departure.
However, the present case differs in the sense that the child in question is
one of the applicants. She was not born in Canada and would be
just as subject to a removal order as her parents. Risks of persecution
specific to her cannot then be left unconsidered.
[46]
If
the applicants had raised any risks specific to the minor applicant which
constituted new evidence under subsection 113(a) of the Act, the officer would
have been under a duty to consider such evidence. The applicants did not. The
risk to the minor applicant was based entirely on the alleged risk to the
principal and male applicants. Without any evidence of any new and different
risk facing the minor applicant, there cannot be any error in failing to
consider the best interests of the child.
[47]
The
applicants have the burden of demonstrating that the decision was unreasonable.
In attempting to establish unreasonableness, they have pointed to four errors
in the decision. I have reviewed each and found that none of the alleged errors
are made out. It is unnecessary to continue to the second stage and determine
whether the decision on the whole is unreasonable. As a result, the applicants
have failed to discharge their burden and I must dismiss their application.
[48]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[49]
IT
IS ORDERED that the application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The Immigration
and Refugee Protection Act, S.C. 2001, c. 27
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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).
(2) Despite
subsection (1), a person may not apply for protection if
(a) they are
the subject of an authority to proceed issued under section 15 of the
Extradition Act;
(b) they have
made a claim to refugee protection that has been determined under paragraph
101(1)(e) to be ineligible;
(c) in the
case of a person who has not left Canada since the application for protection
was rejected, the prescribed period has not expired; or
(d) in the
case of a person who has left Canada since the removal order came into
force, less than six months have passed since they left Canada after their claim to refugee protection was determined to
be ineligible, abandoned, withdrawn or rejected, or their application for
protection was rejected.
(3) Refugee
protection may not result from an application for protection if the person
(a) is
determined to be inadmissible on grounds of security, violating human or
international rights or organized criminality;
(b) is
determined to be inadmissible on grounds of serious criminality with respect
to a conviction in Canada punished by a term of imprisonment of at least two
years or with respect to a conviction outside Canada for an offence that, if
committed in Canada, would constitute an offence under an Act of Parliament
punishable by a maximum term of imprisonment of at least 10 years;
(c) made a
claim to refugee protection that was rejected on the basis of section F of
Article 1 of the Refugee Convention; or
(d) is named
in a certificate referred to 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;
(b) a hearing
may be held if the Minister, on the basis of prescribed factors, is of the
opinion that a hearing is required;
(c) in the
case of an applicant not described in subsection 112(3), consideration shall
be on the basis of sections 96 to 98;
(d) in the
case of an applicant described in subsection 112(3), consideration shall be
on the basis of the factors set out in section 97 and
(i) in the
case of an applicant for protection who is inadmissible on grounds of serious
criminality, whether they are a danger to the public in Canada, or
(ii) in the
case of any other applicant, whether the application should be refused
because of the nature and severity of acts committed by the applicant or
because of the danger that the applicant constitutes to the security of Canada.
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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).
(2)
Elle n’est pas admise à demander la protection dans les cas suivants :
a) elle est
visée par un arrêté introductif d’instance pris au titre de l’article 15 de
la Loi sur l’extradition;
b)
sa demande d’asile a été jugée irrecevable au titre de l’alinéa 101(1)e);
c)
si elle n’a pas quitté le Canada après le rejet de sa demande de protection,
le délai prévu par règlement n’a pas expiré;
d)
dans le cas contraire, six mois ne se sont pas écoulés depuis son départ
consécutif soit au rejet de sa demande d’asile ou de protection, soit à un
prononcé d’irrecevabilité, de désistement ou de retrait de sa demande
d’asile.
(3)
L’asile ne peut être conféré au demandeur dans les cas suivants :
a) il est
interdit de territoire pour raison de sécurité ou pour atteinte aux droits
humains ou internationaux ou criminalité organisée;
b) il
est interdit de territoire pour grande criminalité pour déclaration de
culpabilité au Canada punie par un emprisonnement d’au moins deux ans ou pour
toute déclaration de culpabilité à l’extérieur du Canada pour une infraction
qui, commise au Canada, constituerait une infraction à une loi fédérale
punissable d’un emprisonnement maximal d’au moins dix ans;
c) il a été
débouté de sa demande d’asile au titre de la section F de l’article premier
de la Convention sur les réfugiés;
d) il est
nommé 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;
b) une
audience peut être tenue si le ministre l’estime requis compte tenu des
facteurs réglementaires;
c)
s’agissant du demandeur non visé au paragraphe 112(3), sur la base des
articles 96 à 98;
d) s’agissant
du demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à
l’article 97 et, d’autre part :
(i)
soit du fait que le demandeur interdit de territoire pour grande criminalité
constitue un danger pour le public au Canada,
(ii)
soit, dans le cas de tout autre demandeur, du fait que la demande devrait
être rejetée en raison de la nature et de la gravité de ses actes passés ou
du danger qu’il constitue pour la sécurité du Canada.
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