Date: 20101104
Docket: IMM-4855-09
Citation: 2010 FC 1088
Ottawa, Ontario, November
4, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
JOLENE
NILDRED JOHN
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[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
the decision of a pre-removal risk assessment officer (the officer), dated July
14, 2009, which determined that the applicant 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 St. Vincent and the Grenadines.
[2]
The
applicant originally left St. Vincent and the Grenadines and came to Canada on July 27,
2002. She did not know that she could make a refugee claim on the basis of
domestic violence and did not make a refugee claim until February 7, 2007. Her
claim, however, was declared abandoned because she failed to submit a Personal Information
Form (PIF) on time. An appeal to reopen her claim was rejected and an
application to judicially review that decision was dismissed by this Court. The
applicant now seeks judicial review of the negative pre-removal risk assessment
(PRRA) decision.
[3]
The
applicant requests an order setting aside the officer’s decision and referring the
matter back to a different PRRA officer for redetermination.
Background
[4]
The
applicant’s claim is based on the years of abuse she suffered at the hands of
her mother, who she claims continues to look for her. The applicant is the
second eldest of five siblings. Two of her siblings were given up for adoption.
The remaining siblings suffered very severe abuse. Eventually, all of the
remaining siblings, with the exception of the applicant, left or were taken
away due to the abuse.
[5]
In
her PRRA submissions, the applicant alleges that her mother beat her on many
occasions and that she feared her greatly. Some of the incidents highlighted as
examples of the abuse include being beaten and stabbed with a broken bottle,
being burned by her mother and being beaten with a cricket bat while tied to a
tree.
[6]
The
applicant alleges that state protection was not available because her mother
was on good terms with the local members of the police. She alleges that her
mother would cook meals and serve alcohol from her illegal bar to the police
who would turn a blind eye when her mother beat her. The applicant also alleges
that a similarly situated girl in her neighbourhood reported her abuse to the
police but to no avail.
[7]
A
package of documentary evidence was also submitted attesting to the conditions
in St.
Vincent and the Grenadines for domestic abuse victims.
The Officer’s Decision
[8]
The
officer considered the evidence on the problems facing victims of domestic
violence in St.
Vincent and the Grenadines. In particular, information from the St. Vincent
and the Grenadines Human Rights Association illuminated the difficulties
police face in dealing with incidences of domestic violence and the various
reasons why a high percentage of its victims do not receive adequate protection
while their perpetrators go unpunished. The officer conceded that conditions
for women who face the threat of violence are not ideal, but noted that there
are mechanisms available for those who seek protection.
[9]
The
officer noted that a significant amount of time had passed since the applicant
was last in St.
Vincent and the Grenadines and that while the police may not have helped
her before, the evidence shows that there are now a number of sensitive
officers willing to assist domestic violence victims. Although her mother was
friendly with the police, there is little evidence to show that her mother had
sought the attention of higher authorities. Furthermore, there is little
evidence to show that police corruption is so rampant that an individual such
as the applicant’s mother would have impunity from state authorities.
[10]
The
officer did not find the applicant’s friend to be a similarly situated person
and noted the insufficient evidence of the efforts made by that friend to seek
protection. On the totality of the evidence, the officer was not satisfied that
the applicant would face more than a mere possibility of persecution and was
not satisfied that she is likely to face a danger of torture or a risk to her
life or a risk of cruel and unusual treatment or punishment if returned to St.
Vincent and the Grenadines. Protection on the basis of both sections 96 and 97
of the Act was denied.
Issues
[11]
The
applicant raises the following issues:
1. Did the officer
misapprehend or ignore the evidence before her?
2. Did the officer err
in her state protection analysis?
3. Did the officer err
in not disclosing the extrinsic evidence?
4. Did the officer err
in not conducting a compelling reasons analysis?
Applicant’s Written Submissions
[12]
The
applicant submits that the officer omitted evidence of serious corruption and
the state’s inability to provide accused persons with attorneys. The officer
also omitted evidence concerning the problems police face addressing domestic
abuse, evidence indicating that abuse of children is increasing and direct
evidence of police refusing to protect the applicant. The officer’s failure to
consider this important and contradictory evidence is a reviewable error.
[13]
Overall,
the officer’s assessment of state protection was deeply flawed as she assessed
only legislation and procedural fairness, but not the adequacy or effectiveness
of protection. The officer also erred in her handling of the evidence regarding
the applicant’s similarly situated friend, as the evidence was that the friend
was clearly in the same situation and was denied protection from the state. The
officer’s conclusion regarding state protection was unreasonable.
[14]
The
applicant also submits that the officer erred by not disclosing to the
applicant the primary country condition documents the officer relied on,
thereby preventing the applicant from responding. Failing to do so, especially
given the three years processing time of the PRRA, was a breach of natural
justice.
[15]
Finally,
the applicant submits that the officer erred by not conducting a compelling
reasons analysis, in light of counsel’s request that the applicant be
considered on those grounds. The officer’s failure to do such an analysis is
confounded by the officer’s admission that the applicant may not have had state
protection in the past and thus came within the ambit of subsection 108(4) of
the Act. The applicant meets the requirements for a compelling reasons
exception as she was subjected to years of extreme abuse including rape.
Respondents’ Written Submissions
[16]
The
officer’s decision was thorough, nuanced and entirely reasonable. Contrary to
the applicant’s claim, the officer did cite explicitly the evidence on the problems police face in
dealing with domestic abuse. The officer conducted a balanced review of the
documents and found that the situation for women facing domestic violence is
not ideal but that there are mechanisms in place for those who seek protection.
Contrary to the applicant’s assertion, the officer did consider all of the
evidence including the evidence of the applicant’s friend and the letters from
family members.
[17]
The respondents
submit that the findings on state protection were reasonable. The onus is not
on the officer to establish effective state protection but on the applicant to
establish through clear and convincing evidence that state protection is
inadequate. There was no evidence that the applicant ever went to the police.
The evidence regarding the applicant’s friend was sparse and uncorroborated.
[18]
There
was no requirement on the officer to provide the applicant with copies of the
documentary evidence relied upon. It is commonly consulted public information.
Nor was the officer required to do a compelling reasons analysis as there had
not been a prior conferral of refugee status.
Analysis and Decision
Standard of Review
[19]
Referring
to the content of the reasonableness standard in Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, 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.
[20]
Thus,
under Dunsmuir above, 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.
[21]
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, it has been long held that
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). As I stated in Haque
v. Canada (Minister of
Citizenship and Immigration) 2010 FC 703 at paragraph 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.
[22]
It
is not disputed that issues of procedural fairness arising from the
determination of a PRRA application will be determined on the correctness
standard (see Wang v. Canada (Minister of
Citizenship and Immigration) 2010 FC 799 at paragraph 11, Aleziri v.
Canada (Minister of Citizenship and Immigration) 2009 FC 38 and Canada
(Minister of Citizenship and Immigration) v. Patel 2008 FC 747). Failure to
disclose relevant documents is an issue of procedural fairness (see Allou v.
Canada (Minister of
Citizenship and Immigration) 2009 FC 1025 at paragraph 18).
[23]
I
now turn to the errors which the applicant asserts render the officer’s
decision unreasonable.
[24]
Issue
1
Did the officer misapprehend
or ignore the evidence before her?
The applicant submits that the
officer ignored or misapprehended the evidence contained in two documents, the
2008 U.S. Department of State report on St. Vincent and the November 18, 2008
Response to Information Request (RIR) (RIR #1). I have reviewed the officer’s
decision and I cannot agree with the applicant. The officer actually reproduced
in her decision, three of the four pieces of evidence from RIR #1 that
concerned the applicant. The officer also made reference to the U.S. Department
of State report and noted that violence against women remained a serious
problem and that in many instances, domestic violence went unpunished. The
officer clearly understood the situation relating to domestic violence for
women. The officer came to her conclusions after considering both the negative
and positive evidence with respect to domestic violence in St. Vincent. The
officer did not make a reviewable error in this respect as she did not
misapprehend or ignore the evidence before her. As well, I note from the
officer’s decision that the officer considered all the documents submitted
which would include the applicant’s sister’s statement.
[25]
Issue
2
Did the officer err in her
state protection analysis?
Refugee protection as sought by
the applicant, is meant to be a form of surrogate protection to be invoked only
in those situations where an applicant has demonstrated the inability of his or
her home state to protect. It was intended that persecuted individuals be
required to approach their home state for protection before the responsibility
of other states becomes engaged. Nations should be presumed capable of
protecting their citizens, as security of nationals is, after all, the essence
of sovereignty (see Canada (Attorney General) v.
Ward,
[1993] 2 S.C.R. 689, [1993] S.C.J. No. 74 (QL)). In common parlance, this is
referred to as the presumption of adequate state protection. To rebut the
presumption, the Supreme Court in Ward above, stated that “clear and
convincing confirmation of a state's inability to protect must be provided” (at
page 724).
[26]
It
has been affirmed repeatedly that state protection is not required to be
perfect, only adequate, but that such adequacy is to be assessed at the
operational level (see Garcia v. Canada (Minister of Citizenship and
Immigration) 2007 FC 79, [2007] 4 F.C.R. 385). In other words, immigration
officers are required to take a bottom line approach and assess evidence of
state protection not on the intentions and initiatives of the state, but on its
implementation and effectiveness.
[27]
The
applicants must show that the state is not providing adequate protection. The
protection provided by the state does not have to be effective at all times in
order to be adequate (see Gomez Espinoza v. Canada (Minister of
Citizenship and Immigration) 2009 FC 806, paragraphs 23 to 25 and 30
and Cosgun v. Canada (Minister of Citizenship and Immigration) 2010 FC
400 at paragraph 52).
[28]
The
Board must consider the quality of the institutions providing protection (see Katwaru
v. Canada (Minister of
Citizenship and Immigration) 2007 FC 612 at paragraph 21).
[29]
The
Board is also required to review evidence of operational inadequacies of state
protection (see Zaatreh v. Canada (Minister of
Citizenship and Immigration) 2010 FC 211 at paragraph 55).
[30]
The
applicant’s further memorandum of fact and law states:
Thus, given the case law, it is submitted
that the Officer erred in concluding that serious efforts by the state amounted
to effective state protection. The Officer focused its analysis on the
government’s efforts but failed to address whether those efforts provide
adequate protection. As reviewed in the Applicant’s first memorandum, the
documentary evidence contained information on the failures of government
efforts with respect to violence against women.
That is of course not correct. Again, the
burden is on the applicant to establish a lack of state protection with clear
and convincing evidence. PRRA officers have a duty to consult recent
documentary evidence, but this does not diminish or reverse the onus on the applicant
to rebut the presumption. It is not an error for the officer to discuss state
initiatives, legislation or policies relevant to state protection, as long as
the officer’s analysis on the whole does not lose sight of the legal test and
use such evidence to defeat otherwise clear and convincing evidence of the
state’s inability to protect.
[31]
The
best evidence of inadequate state protection is evidence of unsuccessful
attempts by an applicant to approach the state for protection. However, there
is no requirement that the applicant exhaust all avenues of protection. Rather,
applicants must only demonstrate that they have taken all reasonable steps (see
D'Mello v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 72 (QL), G.D.C.P. v.
Canada (Minister of
Citizenship and Immigration), 2002 FCT 989). Importantly, in the present
case, while the applicant claimed that police officers did nothing when they
witnessed the abuse by her mother, the applicant never sought out the
assistance of the police by going to the police station or to other police
officers unbiased toward her mother. While the applicant was a young girl at
the time, it would not be unreasonable to expect the applicant, now 27 years of
age, to be able to seek out state protection.
[32]
Of
course, an applicant is not required to approach the state at all if the applicant
can demonstrate that it was unreasonable or futile to do so. To establish this,
applicants may submit and rely on the evidence of similarly situated
individuals let down by the state protection arrangement (see Ward
above, at pages 724to 725). To this end, the applicant gave evidence of another
girl in a similarly abusive situation who was not helped despite seeking
assistance from the police. The officer did not find this evidence clear and
convincing enough to rebut the presumption. In my opinion, this was a
reasonable conclusion.
[33]
The
words clear and convincing from Ward above, refer to the high quality of
evidence required from claimants to rebut the presumption not the standard of
proof (see Carillo v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 94, [2008] 4 F.C.R. 636 at
paragraphs 25 and 26). An uncorroborated and unverified allegation will rarely
surpass the evidentiary burden.
[34]
Moreover,
the forward-looking nature of refugee claims means that it would be hard to
find that the applicant, today, is in a similar situation to the friend who was
11 years old at the time.
[35]
On
the whole, I am satisfied that the decision on state protection was reasonable.
The decision was also buttressed by the officer’s observations that much time
had passed since the applicant was last abused by her mother and there was
little evidence that her mother would seek out the applicant for further abuse.
[36]
I
will now deal with two issues raised by the applicant that deal with fairness
of the process.
[37]
Issue
3
Did the
officer err in not disclosing the extrinsic evidence?
The applicant submits that it
was a breach of procedural fairness that she was not given the opportunity to
see and respond to some of the key country condition documents cited by the
officer. I disagree. As noted by Mr. Justice Rogers Hughes in Lima v. Canada (Minister of
Citizenship and Immigration) 2008 FC 222:
13 A PRRA officer has a duty to
consult the most recent sources of information and is not limited to materials
furnished by the Applicant (Hassaballa v. Canada (MCI), [2007] F.C.J.
No. 658, 2007 FC 489 per Blais J. at paragraph 39). An officer is not obliged
to disclose, prior to making a decision, all the information consulted where
the information consists of commonly consulted public information as opposed to
novel and significant information which may affect the disposition of the
matter (Mancia v. Canada (MCI), [1998] 3 F.C. 461 (C.A.) per Decary JA.
at paragraph 22).
There is nothing which leads me to believe
that the United States Department of State report and the Immigration and Refugee
Board Response to Information Request were not public information.
[38]
Issue
4
Did the
officer err in not conducting a compelling reasons analysis?
A PRRA officer is not permitted,
much less required, to conduct a compelling reasons analysis under subsection
108(4) of the Act, unless the officer has made a finding that the applicant had
been, at some point in the past, a valid refugee. As Madam Justice Carolyn Layden-Stevenson
held in Brovina v. Canada (Minister of
Citizenship and Immigration), 2004 FC 635, 264 F.T.R. 244, at paragraph
5:
…For the board to embark on a compelling
reasons analysis, it must first find that there was a valid refugee (or
protected person) claim and that the reasons for the claim have ceased to exist
(due to changed country conditions). It is only then that the Board should
consider whether the nature of the claimant's experiences in the former country
were so appalling that he or she should not be expected to return and put
himself or herself under the protection of that state.
[39]
The
applicant mistakenly relies on Suleiman v. Canada (Minister of
Citizenship and Immigration) 2004 FC 1125, [2005] 2 F.C.R. 26, which
indicated that a variety of circumstances may trigger the compelling reasons
exception. However, in the paragraph below, it is made clear that Mr. Justice Luc
Martineau was referring to the variety of prior circumstances which may result
in a successful application under subsection 108(4), not the threshold
requirements:
16 It must not be forgotten that
subsection 108(4) of the Act refers only to "compelling reasons arising
out of previous persecution, torture, treatment or punishment". It does
not require a determination that such acts or situation be
"atrocious" and "appalling". Indeed, a variety of
circumstances may trigger the application of the "compelling reasons"
exception…. The issue is whether, considering the totality of the situation,
i.e. humanitarian grounds, unusual or exceptional circumstances, it would be
wrong to reject a claim or make a declaration that refugee protection has
ceased in the wake of a change of circumstances. "Compelling reasons"
are examined on a case-by-case basis….
[40]
This
difference was explained by Mr. Justice James Russell in Nadjat v. Canada (Minister of
Citizenship and Immigration), 2006 FC 302, 52 Imm. L.R. (3d) 279:
48 … the issues raised in the present
case were not before Justice Martineau in Suleiman. In Suleiman,
the Board actually considered the applicability of the “compelling reasons”
exception found in section 108(4). In other words, the Board in Suleiman
accepted past persecution against the applicants in that case but, as Justice
Martineau found, “the Board determined that, in light of the changed country
conditions, the applicants' fear of persecution is not objectively well-founded
... .” In Suleiman, the Board proceeded precisely in accordance with
established authority and embarked upon a compelling reasons analysis because
it had found “there was a valid refugee (or protected person) claim and that
the reasons for the claim have ceased to exist (due to changed country
conditions.”
[41]
Later,
Mr. Justice Russell confirmed the threshold which must be met before conducting
a compelling reasons analysis is “a finding that the claimant has at some point
qualified as a refugee, but the reasons for the claim have ceased to exist” (Nadjat
above, at paragraph 50). This requires a clear statement conferring the prior
existence of refugee status on the claimant, together with an acknowledgement
that the person is no longer a refugee because circumstances have changed.
[42]
There
was no such conference on the applicant in the present case. A mere statement
that the applicant may not have had state protection in the past clearly does
not suffice.
Oral Hearing
[43]
The
officer did not make an error by not convoking an oral hearing, as a review of
the officer’s decision appears to show that the officer accepted the
applicant’s evidence.
[44]
As
a result, the application for judicial review must be dismissed.
[45]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[46]
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
|
72.(1) Judicial review by the Federal Court with respect to
any matter — a decision, determination or order made, a measure taken or a
question raised — under this Act is commenced by making an application for
leave to the Court.
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,
(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
(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.
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
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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.
|
72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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)
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)
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.
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 :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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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