Date:
20121030
Docket:
IMM-1562-12
Citation:
2012 FC 1261
Ottawa, Ontario,
October 30, 2012
PRESENT: The
Honourable Madam Justice Mactavish
BETWEEN:
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NAGILA FIRDOUS
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Applicant
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and
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MINISTER OF CITIZENSHIP AND
IMMIGRATION and
MINISTER OF PUBLIC SAFETY
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
Nagila
Firdous seeks judicial review of a Pre-removal Risk Assessment that determined
that she would not be at risk in Pakistan. Ms. Firdous asserts that she was
treated unfairly as the PRRA Officer made negative credibility findings without
first affording her an interview. She further claims that the PRRA Officer
erred in assessing her claim under section 96 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, by requiring that she demonstrate that
she faced a personalized risk of persecution in Pakistan.
[2]
For
the reasons that follow, Ms. Firdous has not persuaded me that the PRRA Officer
erred as alleged. As a consequence, her application for judicial review will be
dismissed.
Was an Interview Required?
[3]
Ms.
Firdous and her family sought refugee protection in Canada, alleging that they
were at risk in Pakistan because of the family’s membership in the Pakistan
Peoples’ Party. Their refugee claims were rejected by the Immigration and
Refugee Board. The Board found that there was no credible or trustworthy
evidence to support the family’s claims. This Court subsequently denied the
family’s application for leave to judicially review that decision.
[4]
In
support of her PRRA application, Ms. Firdous provided evidence of what she says
is a new risk development – namely an attack on her grandfather allegedly
carried out by members of the Pakistan Muslim League that occurred in November
of 2010 - after the Immigration and Refugee Board had rejected the family’s
refugee claims.
[5]
Ms.
Firdous provided the PRRA Officer with affidavit evidence from eyewitnesses to
the attack, along with her grandfather’s medical record documenting injuries
that he purportedly sustained in the attack and photographs of what was alleged
to be her grandfather’s injured leg. The PRRA Officer chose to assign little
probative value to this evidence, because, amongst other things, the attack was
never reported to the police and there was nothing to indicate whose leg was
actually depicted in the photographs. There was nothing unreasonable about this.
[6]
The
Officer concluded that there was insufficient probative evidence of the attack
on the grandfather and insufficient evidence to overcome the negative credibility
findings made by the Immigration and Refugee Board with respect to the family’s
claim to face persecution in Pakistan because of their political beliefs.
[7]
Ms.
Firdous asserts that while the PRRA Officer’s findings were couched in language
as to the sufficiency of the evidence with respect to the attack on the
grandfather, the Officer’s findings were in fact negative credibility findings.
As a consequence, Ms. Firdous says that she should have been afforded an
interview in accordance with subsection 167(a) of the Immigration and
Refugee Protection Regulations, SOR/2002-227, which requires an interview
where “there
is evidence that raises a serious issue of the applicant’s credibility”. This
is not, however, such a case.
[8]
Had
Ms. Firdous asserted that she herself had witnessed the attack on her
grandfather, a finding that the attack had not occurred would necessarily have
required a negative credibility finding on the part of the PRRA Officer. An
interview with Ms. Firdous would thus have been required before such a finding
could have been made.
[9]
However,
Ms. Firdous was in Canada at the time of the alleged attack and she could not, therefore, have had any first-hand knowledge
of the
incident. Indeed, her affidavit does not identify any information that she
could have added with respect to the attack on her grandfather. Ms. Firdous’
own credibility was not in issue before the PRRA Officer. What was in issue was
the credibility of third parties. An interview with a PRRA applicant is not
required in such circumstances: see Borbon Marte v. Canada (Minister of Public
Safety and Emergency Preparedness), 2010 FC 930, [2010] F.C.J. No. 1128, at
para. 62.
[10]
What
the PRRA Officer had to do was to determine whether Ms. Firdous had adduced
sufficient evidenced to establish that the attack had actually taken place. An
interview is also not required when the issue is the sufficiency of the
evidence: see Ferguson v. Canada (Minister of Citizenship and
Immigration), 2008 FC 1067, [2008] F.C.J. No. 1308.
The
Section 96 Assessment
[11]
Ms.
Firdous also alleged that she was at risk in Pakistan at the hands of Islamic
fundamentalists because she is a moderate Muslim. This is a new risk assertion
that was not assessed by the Immigration and Refugee Board.
[12]
Ms.
Firdous submits that the PRRA Officer erred in assessing this aspect of her
claim under section 96 of IRPA by requiring that she demonstrate that
she faced a personalized risk of persecution in Pakistan. In support of this
assertion, she points to one sentence in the PRRA decision where, after
reviewing information with respect to conditions in Pakistan, the Officer
stated “[t]his information is indicative of a generalized risk to the applicant
and all individuals residing in Pakistan and does not support that she faces a personalized
risk or harm if returned to Pakistan with her immediate family members”.
[13]
This
sentence cannot, however, be read in a vacuum. It is evident from the paragraph
immediately following the sentence in question that the PRRA Officer understood
the distinction between a section 96 claim and one brought under section 97 of IRPA.
[14]
This
paragraph first addresses Ms. Firdous’ claim under section 96, stating that
“[t]he evidence before me does not support that the applicant faces more than a
mere possibility of persecution for any of the Convention grounds in Pakistan”. This is the correct test for a section 96 claim.
[15]
The
PRRA Officer then goes on to state that he or she was “not persuaded that the
applicant being removed from Canada subjects her personally to a danger,
believed on substantial grounds to exist … As a result, I must find that the
applicant’s fears of harm do not place her within the meaning of persons in
need of protection as is found in subparagraph 97(1)(a) of the Immigration
and Refugee Protection Act” [my emphasis].
[16]
It
is thus evident that the PRRA Officer understood that a personalized risk was
required to support a section 97 claim, but not a claim under section 96 of IRPA.
No error has been demonstrated by the applicant in this regard.
Conclusion
[17]
For these
reasons, the application for judicial review is dismissed.
[18]
Ms.
Firdous proposes that I certify the following question: “Is there a need to
assess particularized risk in a claim based on section 96 of the Immigration
and Refugee Protection Act?” This is not an appropriate question for
certification as it is premised on the understanding that the PRRA Officer
required that Ms. Firdous demonstrate that she faced ‘a particularized risk’ in
order to establish her claim under section 96 of the Act. This is clearly not what
happened here, and thus the answer to the question would not be dispositive of
this case.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed.
“Anne Mactavish”
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