Docket: IMM-4197-11
Citation: 2012 FC 237
Ottawa, Ontario, February 21,
2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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ARLINE TINDALE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant seeks an order setting aside a May 16, 2011 decision of the
Pre-Removal Risk Assessment Office (PRRA) of Citizenship and Immigration
Canada (CIC), rejecting her PRRA application for protection under the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA). For the reasons that
follow the application for judicial review is granted.
Facts
[2]
The
applicant is originally from Jamaica. Her first husband abused her. She fled from him to Canada taking only her
youngest son with her but leaving behind several other children. She is
estranged from these children and claims she has no one to return to even
though her mother and seven siblings still live Jamaica. The applicant fears return to Jamaica where she claims she
suffers a heightened risk of sexual assault.
[3]
The
applicant has been in Canada for over twenty years (since
1990) without legal status. Her attempts at regularizing her status are set out
in Tindale v Canada (Minister of Citizenship
and Immigration),
2012 FC 236 (IMM-4194-11) at para 3, issued contemporaneously with this
decision.
Issue
[4]
The
issue in this case is whether the decision of the PRRA Officer to refuse the
applicant’s PRRA application is reasonable per Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190.
Analysis
[5]
It
is not the role of this Court to replace the findings and decision of the PRRA
officer with its own findings and decision but rather to review the decision
rendered by the PRRA Officer to ensure that it accords with the law under a
reasonableness standard of review. The Court must adhere to its jurisdiction
and cannot disturb decisions by administrative decision-makers provided these
are reasonable, even if they are decisions which the Court would not have come
to itself: Aguebor v Canada (Minister of Employment & Immigration),
[1993] FCJ No 732.
[6]
The
principle that a PRRA application is not a forum in which to re-litigate a
failed refugee claim is well-settled in the jurisprudence of this Court. As
Justice Richard G. Mosley held in Raza v Canada (Minister of
Citizenship & Immigration), 2006 FC 1385:
It
must be recalled that the role of the PRRA officer is not to revisit the
Board’s factual and credibility conclusions but to consider the present situation.
In assessing “new information” it is not just the date of the document that is
important, but whether the information is significant or significantly
different than the information previously provided ….Where “recent” information
(i.e. information that post-dates the original decision) merely echoes
information previously submitted, it is unlikely to result in a finding that
country conditions have changed. The question is whether there is anything of
“substance” that is new….
[7]
The
Federal Court of Appeal affirmed Justice Mosley’s decision in Raza v Canada (Minister of
Citizenship & Immigration), 2007 FCA 385 and held at para 12:
A
PRRA application by a failed refugee claimant is not an appeal or
reconsideration of the decision of the RPD to reject a claim for refugee
protection. Nevertheless, it may require consideration of some or all of the
same factual and legal issues as a claim for refugee protection. In such cases
there is an obvious risk of wasteful and potentially abusive relitigation. The
IRPA mitigates that risk by limiting the evidence that may be presented to the
PRRA officer. The limitation is found in paragraph 113(a) of the IRPA….
[8]
The
applicant had the onus of adducing new evidence in support of her PRRA
application. To be new evidence in this context, it had to be evidence that arose
after the refugee claim decision or evidence that was not reasonably available,
or that could not reasonably have been expected in the circumstances to have
presented, at the time of the rejection.
[9]
It
was not the task of the PRRA officer to consider evidence which has already
been presented to the Refugee Protection Division of the Immigration and
Refugee Board of Canada (the Board), rather only that evidence which is adduced
in accordance with IRPA section 113(a). As the evidence in question did
not meet the criteria of Raza, the PRRA Officer made no reviewable
error.
[10]
Turning
to the applicant’s second argument, counsel has also argued that the PRRA Officer
erred in dismissing the concerns of the applicant as being “generalized”
evidence and therefore of no relevance to her particular situation.
[11]
In
this context, the Court concludes that the decision of the PRRA officer does
not withstand scrutiny on the basis of a reasonableness standard of review. There
is no line or path of analysis within the reasons given which could reasonably
lead the decision-maker from the evidence to the conclusion reached, or, put
otherwise, it cannot be said that after a somewhat probing examination the
reasons and the evidence support the decision; Law Society of New Brunswick
v Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at para 55. There are four
findings, on material points, where the evidence in the record does not support
the conclusion reached.
[12]
The PRRA
Officer relies on a 2010 US Department of State country report (DOS Report).
After quoting extensively from the DOS Report the Officer concludes that state
protection is adequate for women. The DOS report, on its face, does not
support this conclusion.
[13]
Secondly,
the PRRA Officer noted the existence of a law against rape and observed that based
on her research that “the police do not appear to be ignoring” the violence
against women. Again, it is unclear how, in light of the DOS Report, that
conclusion was reached. The DOS Report, in a full and objective reading,
points to the opposite conclusion.
[14]
Third,
the PRRA Officer predicates her decision, in the main, on the existence of the
fact that rape is illegal in Jamaica, and hence the government and police “are not ignoring” the
violence. It is trite law that the mere existence of a law does not equate to
adequate state protection. It is a component of such but it is not a complete
answer.
[15]
Finally,
the PRRA Officer relies on “her research” in support of the conclusion as to
the adequacy of state protection. No such research is identified, other than
“news articles” and “other documentation”. The only evidence identified, the
DOS Report, does not support the conclusion reached.
[16]
The
application for judicial review is granted.
[17]
There
is no question for certification and none arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is granted. The
matter is referred back before a different PRRA Officer at Citizenship and Immigration
Canada.
No question for certification has been proposed and the Court finds that none
arises.
"Donald
J. Rennie"
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