Date: 20091222
Docket: IMM-2558-09
Citation: 2009 FC 1301
Ottawa, Ontario,
December 22, 2009
PRESENT: The
Honourable Madam Justice Snider
BETWEEN:
SHARAN PAUL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Background
[1]
The Applicant, Mr. Sharan Paul, is a Hindu citizen of Bangladesh. He
arrived in Canada in August 2002, with a student visa. Prior to his departure
from Bangladesh, the Applicant allegedly began a relationship with the daughter
of a powerful Muslim man. He returned to Bangladesh in 2003 and 2004, and, he
submits, continued his relationship with this woman. The Applicant returned to Canada
and made a refugee claim on August 27, 2004 based on persecution from his
girlfriend’s Muslim family. In a decision dated August
18, 2005, the Refugee Protection Division (RPD) of the Immigration and Refugee
Board rejected the claim on the basis that the Applicant was not credible.
[2]
In December 2006, the Applicant submitted an application for a
pre-removal risk assessment (PRRA) and, in August 2007, he submitted an
application for permanent residence from within Canada, pursuant to s. 25 of
the Immigration and Refugee Protection Act , S.C. 2001,
c.27 (IRPA), on humanitarian and compassionate (H&C) grounds.
Both these applications were dismissed in two decisions made by the same
pre-removal risk assessment officer (the PRRA Officer). The Applicant has
sought judicial review of both decisions. The H&C decision has been considered
by this Court in Court File No. IMM-2556-09. The following constitutes my
reasons for dismissing the application for judicial review of the negative PRRA
decision.
II. Issues
[3]
In my view, this application raises the following issues:
1.
Did the PRRA Officer err by rejecting affidavits from the Applicant's
family members on the basis that they were not objective evidence?
2.
Did the PRRA Officer err by failing to take into account all of the
evidence; specifically, the memorandum from Ms. Rosaline Costa, the Human
Rights Advocate for Hotline Human Rights Bangladesh?
3.
Did the PRRA Officer make an erroneous finding of fact that certain parts
of the evidence were contradictory?
III. Analysis
[4]
The applicable standard of review for this decision is
reasonableness. As such, the Court should
not intervene if the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para.47).
[5]
A PRRA is not intended to be an appeal or reconsideration of a
failed refugee claim (see Raza v. Canada (Minister of Citizenship and
Immigration), 2007 FCA 385, [2007] F.C.J. No. 1632,
(Raza)). In making a PRRA application, a failed refugee claimant
may only present new evidence that arose after the rejection, that
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 (see IRPA, s. 113; Raza, above).
[6]
The RPD determined that the Applicant’s story
was not credible. In coming to this conclusion, the RPD relied on
inconsistencies in the Applicant’s testimony: his voluntary return to Bangladesh and his lack of corroborative
evidence. It follows, based on an understanding of the RPD decision and the
role of the PRRA process, that the Applicant's submissions were required to
either refute the RPD findings or present evidence of a new risk.
[7]
In this case, the Applicant attempted, through
evidence submitted with his PRRA application, to refute the findings of the
RPD. The Applicant submitted affidavits from a number of family members. These
affidavits were used to substantiate that the incidents referred to by the RPD
were credible. They also tried to prove that the alleged persecutors still wish
to harm the Applicant. The Applicant also submitted a memorandum from Ms.
Rosaline Costa, Human Rights Advocate, Hotline Human Rights Bangladesh and a
letter from a Member of Parliament, the Honourable David Kilgour. Both Ms.
Costa and Mr. Kilgour expressed the opinion that the Applicant would be in
danger if he returned to Bangladesh.
[8]
The PRRA Officer gave little weight to the letter from
the Hon. David Kilgour, who was obviously not in a position to opine on the
events in Bangladesh alleged by
the Applicant. In this application, the Applicant did not rely on this letter.
[9]
It is obvious from reading the PRRA decision that the Officer rejected
most of the affidavits as not “new evidence”. Given the facts of this case and
the reasons of the RPD for rejecting his refugee claim, I can see no reviewable
error in the PRRA Officer's decision. The Officer found that these affidavits contained
evidence that could have been available, and was not provided, at the time of the
RPD hearing, to corroborate the Applicant's allegations. The PRRA Officer --
reasonably, in my view -- did not accept these affidavits as "new
evidence", as contemplated by s. 113 of IRPA. Even if one were to acknowledge
that these documents referred to events that occurred subsequent to the RPD
decision, they were all premised on the underlying truth of the Applicant's
story of his involvement with a Muslim woman and subsequent persecution by her
family. This story was rejected by the RPD. Thus, the information in the
affidavits did not relate to a new risk. Rather, all of the post-RPD alleged
events were based on a story that was simply not believed by the RPD or the PRRA
Officer. Further, on the facts of this case, it was not unreasonable for the PRRA
Officer to reject the family affidavits as not objective evidence.
[10]
However, the situation with respect to the memorandum of Ms. Rosaline
Costa is different. Unlike the affidavits of the Applicant's family members,
this memorandum was from an independent source and, on its face, refers
directly to the Applicant's situation. As stated by Ms. Costa, she personally
knew the Applicant’s family. According to her memorandum, she visited the
Applicant in Canada and, after returning to Bangladesh, investigated his case.
It appears that she accepted the truth of the Applicant’s story that the RPD had
rejected. Further, she stated her understanding that the family of the
Applicant's Muslim girlfriend are "waiting for [the Applicant] to come
back [to] take revenge for bringing shame to their family".
[11]
Contrary to the initial assertions of the Applicant, Ms. Costa’s
memorandum was considered by the PRRA Officer. Although all of the materials
were submitted in English, the decision was originally written in French. At page
4 of the decision (p. 14 of the Certified Tribunal Record), the Officer stated:
Des lettres d’une
avocate et d’un membre du parlement canadien indiquent également qu’à leur avis,
[the Applicant] devait etre reconnu réfugié. Je suis sensible au témoinage de
ces personnes, mais l’information présente dans les soumissions, incluant la
récente mise à jour en 2009, ne permet pas d’établir que les problèmes allégués
sont actuels. De plus, ces personnes ne sont pas des témoins directs de
l’affaire en cause. [Emphasis added.]
[12]
It appears the translator translated the word “avocate” – the feminine
form of “avocat” – to “lawyer”. I observe that Ms. Costa signed her memorandum
as “Human Rights Advocate”. Further, there are no other lawyer’s letters
included in the PRRA submissions. In my view, it is evident that the “lettre
d’une avocate” was a reference to the memorandum of Ms. Costa. The reasons
given by the PRRA Officer for discounting the memorandum are clear. Most
importantly – and reasonably – the Officer pointed out that Ms. Costa was not a
direct witness of the events to which she referred (témoin direct de l’affaire
en cause). Furthermore, it was not unreasonable for the Officer to weigh the
contents of the memorandum (which is not current, and not by an eye-witness) against
the facts that there was no news of the alleged girlfriend at this point, no reliable
information that the Applicant was still being pursued and a negative
credibility finding at the RPD. Again, as stated by the Respondent during oral
submissions, the Court must take into account the entire context of the case:
the failed RPD determination based on credibility and the fact that the
Applicant has returned to Bangladesh in 2003 and 2004.
[13]
In sum, it was not unreasonable for the PRRA Officer to conclude that Ms.
Costa’s opinions did not “establish that the problems alleged are current”.
[14]
The final alleged error is a factual one. In the decision, the PRRA Officer
stated:
I also noted that contradictory
evidence even in these documents, as one of the two states that Mr. Paul was
beaten by fundamentalists on August 12, 2004, while the other states that he
was beaten on two occasions, on August 1 and August 12, 2004.
[15]
It is accepted by the Respondent that this statement was erroneous. No
such contradiction exists. In and of itself, this error is not determinative.
Even with this error, the decision, read as a whole, falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.
IV. Conclusion
[16]
For these reasons, the application for judicial review will be
dismissed. In reaching this conclusion, I have taken into consideration the
written comments of the parties submitted after the close of the hearing.
[17]
Neither party proposes a question for certification.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
the application for leave and judicial review is dismissed; and
2.
no question of general importance is certified.
“Judith A. Snider”
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