Docket:
IMM-9239-11
Citation:
2012 FC 997
Ottawa, Ontario,
August 15, 2012
PRESENT: The
Honourable Mr. Justice Scott
BETWEEN:
|
|
MOSAMMAT MONOWARA KHATUN
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
|
|
|
|
Respondents
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
This is an application by Mosammat Monowara Khatun (the Applicant)
for judicial review of a decision of the Pre-Removal Risk Assessment [PRRA] Officer,
C. Kratofil, dated October 27, 2011, in which she concluded that the Applicant
faces less than a mere possibility of persecution in Italy and or in Bangladesh
as described in Section 96 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA]. The PRRA
Officer also determined that the Applicant would
not likely be at risk of torture, or likely face a risk to life, or a risk of
cruel and unusual treatment or punishment as described in section 97 of IRPA.
[2]
For
the reasons that follow, this application for judicial review is dismissed.
II. Facts
[3]
The
Applicant is a 46 year old woman from Bangladesh. She was issued a visitor’s
visa in September 2000 by the Canadian Visa section in Rome. Upon her arrival
in Canada, she made a refugee claim on October 24, 2000. The Refugee Protection
Division [RPD] of the Immigration and Refugee Protection Board [the Board]
concluded, on June 10, 2004, that she was not a Convention Refugee or a person
in need of protection as contemplated by sections 96 and 97 of the IRPA.
[4]
Judicial
review of the Board’s decision was denied by this Court on July 29, 2005.
[5]
A
PRRA application was initiated on October 16, 2010. The PRRA Officer made a
negative determination on March 18, 2011. The Applicant sought leave for
judicial review of that negative PRRA. The Respondents agreed to have the
application reconsidered. The Applicant was subsequently granted until June 21,
2011 to present new and/or additional submissions in support the
re-determination of her PRRA application.
[6]
On
October 27, 2011, the officer rendered a decision on the Applicant’s PRRA
application. In denying the Applicant’s application, the Officer found that the
Applicant had essentially repeated the same allegations in her PRRA application
as those presented before the Board and assigned a low probative value to the
new evidence presented in support of her position.
[7]
On
January 5, 2012, Mr. Justice Shore ordered that a stay of execution of the
removal order of the Applicant be granted until the application for judicial
review be dealt with. In support of his conclusion, Justice Shore made the following remarks:
[3] Allegedly because the Applicant is unable to
bear children, she has brought shame on her husband and his family; therefore,
the Applicant fears for her life.
[4] Although the Court recognizes that the Applicant
may be at risk in Bangladesh (such as clearly described in the provided Country
references), she could have claimed asylum in Italy, or in Spain, where her brother was allegedly granted asylum. Yet, nevertheless, she allegedly feared (for
life and limb) being in too close proximity to her husband.
[5] In respect of the significant new evidence
gathered six years subsequent to the Refugee Protection Division decision, the
Court understands that certain details may not have been included in the
situation-report in respect of the Applicant by a lawyer in Bangladesh of whom
a report had been requested and even by the Applicant’s psychologist to
minimize the information given for the Applicant’s safety, as women have been
at risk in such situations where details have been divulged.
[6] For all the above reasons, the criteria of the
tripartite conjunctive test in Toth v Canada (Minister of Employment and
Immigration) (1988), 86 NR, 302 (FCA) have been met in favour of the
Applicant, recognizing that the matter should at least be heard in depth, and,
thus, analyzed in the context of judicial review.
[7] Therefore, the stay of execution of the removal
order is granted until the review in respect of the Pre-Removal Risk Assessment
[PRRA] is determined (see Applicant’s Application Record, at pages 5-8).
[8]
This
Court is now seized with the application for judicial review of the PRRA
Officer’s decision.
III. Legislation
[9]
Section 96, subsection 97(1) and paragraph 113(b)
of the IRPA and section 167 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [IRPR] provide as follows:
|
Convention refugee
|
Définition de « réfugié »
|
|
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,
|
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) 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
|
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) 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.
|
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.
|
|
Person in need of protection
|
Personne à protéger
|
|
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
|
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 :
|
|
113. (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. b) une audience peut être tenue si le
ministre l’estime requis compte tenu des facteurs réglementaires;
|
|
167. For the purpose of determining whether a hearing is
required under paragraph 113(b) of the Act, the factors are the
following:
|
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) 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;
|
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) whether the evidence is central to the
decision with respect to the application for protection; and
|
b) l’importance
de ces éléments de preuve pour la prise de la décision relative à la demande
de protection;
|
|
(c) whether the evidence, if accepted, would
justify allowing the application for protection.
|
c) la
question de savoir si ces éléments de preuve, à supposer qu’ils soient admis,
justifieraient que soit accordée la protection.
|
IV. Issues
and standard of review
A. Issues
1 Did the PRRA Officer err in making credibility findings
without considering whether or not to interview the Applicant?
2. Are the PRRA Officer's determinations reasonable?
B. Standard
of review
[10]
The
first issue is a question of procedural fairness and must be determined on a
standard of correctness (see Lai
v Canada (Minister of Citizenship and
Immigration), 2007 FC 361, [2008] 2 FCR 3 at para 55; and Sketchley
v Canada (Attorney General), 2005 FCA 404, [2006] 3 FCR 392).
[11]
As
for the second issue, it is well established by the jurisprudence of this Court
that PRRA
Officers' decisions are accorded significant deference and are reviewable on a
standard of reasonableness (see James
v Canada (Minister of Citizenship and
Immigration), 2010 FC 318, [2010] FCJ No 368 (QL) at para 16).
“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” (see Dunsmuir v New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]).
V. Parties’
submissions
A. Applicant’s
submissions
[12]
The
Applicant submits that the PRRA Officer ignored the issue of battered women in Bangladesh and evidence such as the report from Mr. Siddiquzzaman Tarafder, a lawyer from Bangladesh who stated that his investigation revealed that the Applicant will be at risk in Italy or Bangladesh. Mr. Tarafder suggested in his letter dated November 2010, that he contacted the
Applicant’s father-in-law who explained that she humiliated the family’s name.
He also suggested that her husband’s family was involved with Islamic militants
and the war in Afghanistan.
[13]
The
PRRA Officer did not seek further clarification as to the evidence adduced by
the Applicant in support of her position. The Applicant argues that an
interview was warranted because the Applicant’s credibility was being
questioned.
[14]
The
Applicant also claims that Mr. Tarafder’s report is corroborated by the
documentary evidence which shows that violence against women is endemic in Bangladesh and that there is hardly any recourse available to them despite the existing
legislation on domestic violence.
[15]
Furthermore,
the Applicant relies on Mr. Ahmed Hussein’s book entitled “A Thousand Suns”
that details situations of abuse against women in Bangladesh because of their
inability to bear children.
[16]
The
Applicant also claims that the PRRA Officer ignored a psychological report
establishing that she suffers from psychological trauma due to her past
experience at the hands of her husband and in-laws.
[17]
The
Applicant affirms that the Officer’s failure to conduct a hearing on the
credibility of the evidence adduced by an Applicant constitutes an error reviewable
on a standard of correctness (see Canada (Minister of Employment and
Immigration) v Jiminez-Perez, [1984] 2 S.C.R. 565).
B. The
Respondents’ submissions
[18]
The
Respondents allege that the Officer’s decision determining that the Applicant
raised the same risks that were before the Board in her PRRA application was
reasonable. The PRRA Officer did not ignore evidence of risk. The wording of
the decision, according to the Respondents, indicates that the Officer reviewed
and assessed all of the evidence. The Officer however came to the conclusion
that the Applicant failed to establish a significant change in country
conditions in Italy or Bangladesh (see Raza v Canada (Minister of
Citizenship and Immigration), 2007 FCA 385).
[19]
The
Respondents refer to the Officer’s reasons where she determined that:
a)
the
Officer found the letter submitted by a lawyer in Bangladesh to be of low
probative value as it was vague and speculative and lacking multiple important
details;
b)
as
for the psychological report from Dr. Pilowski, the Officer found the letter
lacked important details regarding further diagnostic and treatment and also
that Dr. Pilowski lacked any details of potential treatment options in
Bangladesh;
c)
the
Officer further found that the documents on country conditions were general in
nature, were not related to the personal circumstances of the Applicant and
were not sufficient overcome the findings of the RPD in relation to state
protection.
[20]
According
to the Respondents, the Officer considered all of the evidence adduced before
her and came to the conclusion that the Applicant had not demonstrated the
existence of a new risk of persecution. The Officer’s decision consequently
“falls within [the] range of possible, acceptable outcomes which are defensible
in fact and law” (see Dunsmuir cited above at para 47).
VI. Analysis
1. Did
the PRRA Officer err in making credibility findings without considering whether
or not to interview the Applicant?
[21]
Section
167 of the IRPR provides that certain factors are to be considered by
PRRA Officers in determining whether to hold a hearing or not. The factors
reads as follows:
(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.
[22]
It
is trite law that, in
the context of a PRRA application, an oral hearing is the exception. Moreover,
serious credibility issues must be central to the PRRA application in order to
trigger the holding of an oral hearing. In reading the Officer's decision, it
is clear that no such serious issue of credibility was found to exist (Tekie
v Canada ((Minister of Citizenship and Immigration), [2005] FCJ No 39, 2005
FC 27; Yousef v Canada (Minister of Citizenship and Immigration), 2006
FC 864 at para 36 [Yousef]).
[23]
The
Officer did not breach her duty of procedural fairness. She determined that
“[t]he evidence before me does not support that the applicant is of interest to
her husband or his family after an absence of over 10 years. The evidence
before me does not overcome the [Board]’s finding of fact, nor does the evidence
before me support that there has been a change in country conditions in Italy
or Bangladesh since the finding of the [Board] that negatively impacts this
applicant such that she is now described in Section 96 and/or 97 of the IRPA”
(see the PRRA Officer’s decision at page 12 of the Certified Tribunal Record).
In light of the foregoing determination, it is clear that “the PRRA officer's
decision was based on the insufficiency of the evidence submitted by the Applicant
in support of his contention that he faced new or heightened risks if he
returned to [his country of nationality]” (see Yousef at para 36). In
addition, this Court finds that the criteria set out in section 167 of the IRPR
were not met by the Applicant. Assigning a low probative value to documentary
evidence does not signify that an Applicant’s credibility is being challenged.
In this case the Officer was clearly discharging her duty to weigh the evidence
adduced by the Applicant. Consequently, this Court rejects the Applicant’s
allegation that the Officer committed a reviewable error.
2. Are the PRRA Officer's determinations reasonable?
[24]
The role of a PRRA Officer is to examine, as
stated in section 113 of the IRPA, “only new evidence that arose after
the rejection [of the claim to refugee protection] 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”. Section 113 of
the IRPA strictly limits the scope of a PRRA Officer's intervention. In Kaybaki
v Canada (Solicitor General of Canada), 2004 FC 32, [2004] FCJ No 27
(QL), Justice Kelen writes, in paragraph 11 of his decision, that “[t]he PRRA
application cannot be allowed to become a second refugee hearing. The PRRA
process is to assess new risk developments between the [IRB] hearing and the
removal date”.
[25]
Justice Mosley held, in Raza v Canada (Minister of Citizenship and Immigration), 2006 FC 1385 at para 10, that:
[10] PRAA officers
have a specialized expertise in risk assessment, and their findings are usually
fact driven, and therefore warrant considerable deference: Selliah v Canada (Minister of Citizenship and Immigration), 2004 FC 872,
256 FTR 53 at para 16 [Selliah]. Considerable deference is owed to the
factual determinations of a PRAA officer including their conclusions with
respect to the proper weight to be accorded to the evidence placed before them:
Yousef v Canada (Minister of Citizenship and Immigration), 2006 FC 864,
[2006] FCJ No 1101 at para 19 [Yousef]. In the absence of a failure to
consider relevant factors or reliance upon irrelevant ones, the weighing of the
evidence lies within the purview of the officer conducting the assessment and
does not normally give rise to judicial review: Augusto v Canada (Solicitor
General), 2005 FC 673, [2005] FCJ No 850,
at para 9.
[26]
The
Applicant alleges that the Officer failed to reasonably assess or completely
ignored the evidence adduced establishing her fear of persecution.
[27]
The
Applicant provided a letter from Mr. Tarafder, a psychological report from Dr.
Pilowsky and documentary evidence on country conditions in Bangladesh and Italy. The
Officer's conclusion rests on her finding that there was insufficient evidence
to show that the Applicant would face a risk of persecution at the hands of her
husband’s family upon her return to Bangladesh or Italy. In reading the Officer's
decision, it is clear that she reasonably weighed the evidence adduced by the
Applicant and explained her reasons for assigning a low probative value. She
determined that Mr. Tarafder’s letter omitted important details as to how he
obtained the information and found that his statements were speculative in
nature and “made by a person with an interest in the outcome of this
application” (see the PRRA Officer’s decision at page 9 of the Certified
Tribunal Record).
[28]
Moreover,
the Officer noted that “[w]hile Dr. Pilowski advises that the information in
the letter could contain information that was not forthcoming to the [Board] as
persons often disclose more to psychologists, neither the applicant, her
counsel, or Dr. Pilowski have indicated that the statements of the applicant
differ materially from evidence heard or considered by the [Board]” (see the
PRRA Officer’s decision at pages 9 and 10 of the Certified Tribunal Record). In
this regard, the Court must underline that PRRA Officers are solely limited to
considering new evidence presented before them.
[29]
In
her assessment of the documentary evidence on country conditions in Bangladesh and Italy, the Officer concluded that “while I find that there remain challenges in both
countries, the evidence informs that the government have taken steps to improve
conditions in many areas. There are avenues of recourse available to the
applicant in either country should she choose to seek them”. She also
underlined that “[t]he evidence before me does not overcome the [Board]’s
finding of fact, nor does the evidence before me support that there has been a
change in country conditions in Italy or Bangladesh since the finding of the
RPD…” (see the PRRA Officer’s decision at pages 11 and 12 of the Certified
Tribunal Record).
[30]
In
a PRRA application, the Officer is required to conduct an individualized
analysis. Such analysis was correctly performed in the present case (see Kovacs
v Canada (Minister of Citizenship and Immigration), 2010
FC 1003, [2010] FCJ No 1241 (QL)). The Court finds no valid reason to intervene,
even though it may have reached a different conclusion. The Court’s duty in
judicial review is not to reweigh the evidence adduced by an Applicant but to
ensure that the outcome falls “within a range of possible acceptable outcomes
which are defensible in light of the facts and the law”, as per Dunsmuir
cited above. Such is our finding in this instance.
VII. Conclusion
[31]
The
PRRA Officer did not breach her duty of procedural fairness since she
determined that the Applicant had failed to provide sufficient evidence to
demonstrate the existence of a new risk.
[32]
The PRRA Officer also concluded that the Applicant failed to
demonstrate that there is more than a mere possibility that she would
personally face persecution or risk to her life if returned to Bangladesh or Italy.
[33]
This application for judicial review is therefore dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
This
application for judicial review is dismissed; and
2.
There
is no question of general importance to certify.
"André F.J.
Scott"
Email this Content