Date: 20090421
Docket: IMM-897-08
Citation: 2009 FC 394
Ottawa, Ontario, April 21, 2009
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
SEBASTIAMPILLAI
KANAKU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA or the Act) for judicial
review of a decision by a pre-removal risk assessment (PRRA) officer (the officer),
dated December 14, 2007 rejecting the applicant’s PRRA application.
[2]
The
applicant requests that the decision be set aside pursuant to subsection 18(1)
of the Federal Courts Act, R.S.C. 1985, c. F-7 and the matter referred
back to a newly constituted panel of the Board for redetermination.
Background
[3]
Kanaku
Sebastiampillai (the applicant) is a citizen of Sri Lanka born January
20, 1938 in Kopay, Sri Lanka.
He is a part of the Tamil minority and is Catholic.
[4]
On
April 24, 2002, the applicant arrived in Canada and claimed
refugee status. On June 17, 2003 the application for protection was rejected by
the Immigration and Refugee Board.
[5]
On
June 7, 2005, the applicant applied for an exemption from permanent resident
visa requirements based on humanitarian and compassionate (H&C) grounds. On
September 27, 2005, an evaluation in light of the December 26, 2004 tsunami
affecting Sri
Lanka
was conducted and found not to apply to the applicant. Humanitarian and
compassionate grounds for a visa exemption for the applicant were rejected on
December 14, 2007. On March 11, 2008, the Court stayed the applicant’s removal
to Sri
Lanka
pending the judicial review of the PRRA decision dated December 14, 2007.
[6]
The
applicant is married with three daughters; one of the daughters and his wife
live in the Vanni region of Sri Lanka, another daughter is in
Germany and the
third daughter has been a Canadian citizen since 2005. The applicant alleges
that his wife has been displaced in and around Jaffna, Sri Lanka.
The applicant farmed in this region before coming to Canada.
[7]
The
applicant’s initial claim for refugee protection was based on his need for
protection as a Tamil male. He alleged that his daughters were targeted by the
Liberation Tigers of Tamil Eelam (LTTE) and his family’s involvement resisting
the LTTE ultimately put them in danger with the Sri Lankan government and its
security forces. The allegations made by the applicant were not found to be
credible by the Immigration and Refugee Board (IRB).
PRRA
Officer’s Decision
[8]
The
officer received the PRRA application on November 14, 2006 and further
submissions from applicant’s counsel up to June 2007. After considering the
documentation, the officer gave the following reasons for refusal of the
application.
[9]
First,
the officer stated the risks identified by the applicant: the applicant’s fear
that his stay in Canada makes him even more vulnerable to extortion by the LTTE
and the applicant’s fear of facing detention, torture, sexual harassment and
death at the hands of the Singhalese army because they suspect him of
supporting the LTTE.
[10]
The
officer also acknowledges that the applicant recognizes as a risk the
“emergency situation” in Sri Lanka that has led to abuses
on the part of authorities who will not protect him because he belongs to the
Tamil minority but is Christian. Finally, the applicant alleges that given his
age and physical condition he cannot live in security in any part of the
country.
[11]
The
officer then articulated the background information of the applicant as she
understood the facts. It was stated that when the Indian Peace Keeping Force
(IPKF) left the country, the Tamil Tigers began to harass the applicant’s
daughters after 1990 to finance the LTTE group. In 1995, the family left for
Mankulam in the Vanni region because the Singhalese army was advancing on Jaffna. The Tamil
Tigers harassed his daughters to enlist, but the applicant and his wife
resisted and returned to Kopay in 2000.
[12]
The
officer went on to state that the army suspected one of the applicant’s
daughters of having ties to the Tamil Tigers and periodically detained her. The
soldiers allegedly arrested the applicant from time to time for questioning and
then would subsequently release him. In February 2002, the applicant was
released at the village chief’s and priest’s behest after the army allegedly
discovered weapons on the farm of the applicant. Subsequently, it was alleged
that his wife was hit by members of the military who were looking for him.
Immediately afterwards, the applicant went to Colombo and left the
country with the help of a smuggler.
[13]
The
officer also mentions that the applicant’s family was not affected by the
December 26, 2004 tsunami that devastated the coast of Sri Lanka, including
the Jaffna region, in
north Kopay where the applicant is from.
[14]
The
officer found that the applicant submitted new evidence with his PRRA
application and HC-1 application. The new evidence consisted of documents from
the US Department of State Human Rights Practices, Human Rights Watch,
WebAmnesty, and UNHCR, and articles from the Sri Lankan press, Journal de
Montreal, The Gazette and the tamilnet.com website. The officer evaluated these
documents as well as other more up-to-date documents that were not detailed in
order to understand the current risks in Sri Lanka.
[15]
The
officer then reviewed the elements necessary for finding that a risk existed
for the applicant under the Act and from the 1951 Convention related to the
Status of Refugees and Article 1 of the Convention Against Torture.
[16]
The
officer stated that she attached importance to the IRB’s reasons for denying
protection in rendering her own decision and pointed to contradictions the
panel found in the applicant’s statements and how these inconsistencies were
found to undermine his credibility.
[17]
The
officer found that the applicant reiterated the same risks in his PRRA
application as were alleged before the IRB but added that there was new
evidence that the current situation in his country was unstable and dangerous
and this was evaluated to find whether this would put the applicant’s life and
safety at risk if he returned.
[18]
The
officer stated that the salient issue before her was the applicant’s personal
profile and the situation of the country, and not the evidence already judged
by the IRB. It was stated that the applicant was an elderly man who could no
longer work on his farm because of internal politics in Sri Lanka. Although
the officer acknowledged that the applicant belonged to the minority group in Sri Lanka, she did not
feel that he would be of interest to either the LTTE or the Singhalese
authorities because of his age and lack of involvement in political parties or
groups.
[19]
Further,
the officer rejected the idea that the applicant would be targeted because he
had been in Canada as a refugee
claimant and because he was Tamil. The officer stated that “[t]he Canadian
government does not disclose information on refugee claimants” and given the
fact that the applicant does not have any money, “he is not likely to be
targeted by the Tamil Tigers”.
[20]
The
officer then reviewed the situation in Sri Lanka including
its multi-ethnic make-up. It was stated that the LTTE believe that Tamils are
discriminated against by the Singhalese majority and goes on to summarize the
violent conflict between the two groups particularly since 1983. The officer
writes that the general situation deteriorated in the past two years from when
the RPD decision was written.
[21]
The
officer specifically addressed the Report of the High Commissioner for Refugees
dated December 2006. According to the reading of the report by the officer, individuals
targeted for extortion by the LTTE are business people and those with large
incomes. The officer states that the report also confirms that the conflict is
located in the north and east of the country which the applicant does not have
to go to upon returning to Sri Lanka.
[22]
The
officer states, however, that she consulted more up-to-date sources than the
report. Specifically, the officer mentions a September 2007 report by the Norwegian
Refugee Council – (IDMC) (Internal Displacement Monitoring Centre) which
locates displaced civilians in the east and north of the country. The officer
goes on to state that in the Colombo region, there are no
displaced persons and there is an office of the High Commissioner for Refugees.
The officer concludes that the applicant could live in security in Colombo or in the
regions under the control of the Singhalese authorities. The officer goes on to
state that, the same report states that several Tamils who were arrested in
Colombo and returned by bus to the north of the country were returned following
a decision of the Supreme Court.
[23]
The
officer also looks at the process upon returning to Sri Lanka and states that
there is a process in place for Tamils returning to Sri Lanka: foreign
nationals are questioned upon their return and once their identity is
confirmed, and they are found not to have a criminal record, they are released.
[24]
In
conclusion, the officer finds that the applicant “has not presented sufficient
evidence to prove that he would be personally targeted on his return, that he
would be unable to avail himself of protection or that there is no internal
flight alternative in Sri Lanka”. As a result, the officer said “there exists no
more than a mere possibility that the applicant would be persecuted on his
return to his country” and “no serious grounds to believe that the applicant
would be subject to torture, a threat to his life or a risk of cruel and
unusual treatment of punishment on his return to Sri Lanka.”
Issues
[25]
The
applicants submitted the following issues for consideration:
1. What
is the standard of review?
2. Did
the officer correctly understand the law as to the consideration of PRRA with
new evidence?
3. Did
the officer correctly understand and address her mind to the fear that was
identified by the applicant and considered the documentary evidence in relation
to that fear?
4. Did
the PRRA officer fail to consider and to give due significance of the
Department of Foreign Affairs and International Trade (DFAIT) to the applicant?
5. Did
the officer apply the wrong standard of proof in the context of the section 96
analysis?
6. Did
the officer fail to consider the applicant’s membership in a social group in
accordance with sections 10.1 and 10.2 of the PRRA Manual?
[26]
I
would rephrase the issues as follows:
1. What
is the appropriate standard of review?
2. Did
the officer err in the evaluation of the documentary evidence?
3. Did
the officer err in the evaluation of evidence that would be considered new in a
PRRA application?
4. Did
the officer apply the correct standard in her section 96 and section 97
analyses?
Applicant’s
Submissions
[27]
The
applicant first addresses the principle behind a PRRA analysis and the
principle of non-refoulment. The principle holds that persons should not be
removed from Canada to a country
where they face serious risks in accordance with Canadian laws and Canada’s commitment
under international law.
[28]
The
applicant submits that he is at risk of extortion by the LTTE and other
militant groups if he returns to Sri Lanka and this was “clearly established”
in the documentary sources consulted by the officer.
[29]
The
applicant also claims that the officer failed to consider and analyse the risk
of extortion faced by the applicant as a father of two expatriates and as a
person who has lived in Canada since April 2002. By omitting these facts
from her written decisions, the officer made an error in law.
[30]
The
applicant cites a number of other decisions where officer’s decisions are found
to be in error when they fail to adequately address the evidence on whether or
not Colombo is a safe haven from extortion from Tamils when returning from
abroad and particularly cases involving Sri Lankan
elderly Tamils with children living abroad (see Supiramaniam v.
Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1525, Supiramanian
v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No.
374, Kandiah
v. Canada (Solicitor General),
[2005] F.C.J. No. 1307, Anthonoimuthu v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 162).
[31]
The applicant also raises the issue of whether extortion is
considered within the purview of “persecution” with a “nexus to a Convention
refugee ground”. The applicant cites decisions to support that view including Vygthilingam
v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 970.
[32]
In
Narany
v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J. No. 194,
the applicant points out that Deputy Justice Frenette is critical of a
decision where the officer seems “alive to the fact” that membership in a group
can be considered a personal risk but then does not consider the membership of
the applicant in the group of Tamils returning to Sri Lanka considered to be
wealthy. In Narany above, the officer’s omission to do this was a
reviewable error.
[33]
The
applicant submits that the evidence regarding extortion of Tamils returning to Sri Lanka with
children living abroad was ultimately never considered as it was a central
issue to the application.
Further, the
applicant argues that the officer did accept the fears identified by the
applicant but found that they were not personal and not objectively
identifiable.
[34]
The
applicant argues that the officer dismissed the documentary evidence and
particularly the UNHCR December 2006 report in a “flimsy manner”. Further, the
more up-to-date sources that the officer consulted does not contradict the
position of the UNHCR December 2006 report as suggested by the officer.
[35]
The
applicant argues that the case Sinnasamy v. Canada (Minister of
Citizenship and Immigration), [2008] F.C.J. No. 77 dealt with similar errors
when interpreting the UNHCR Report December 2006 at paragraphs 32 and 33 and
found that the officer applied a very selective reading of the document.
Specifically, Sinnasamy above, took issue with the officer’s conclusion
that the applicant did not fit the profile of Tamils who are specifically
targeted. The officer’s finding came into criticism where the officer does not
address the part of the document which states that “[a]ll asylum claims of
Tamils from the North or East should be favourably considered” and “[w]here
individual acts of harassment do not in and of themselves constitute persecution,
taken together they may cumulatively amount to a serious violation of human
rights and therefore be persecutory”.
[36]
Further
in the document it also states that “[…] there is no realistic internal flight
alternative given the reach of the LTTE and the inability of the authorities to
provide assured protection” and in relation to Tamils from the north or east
such as the applicant, the report stated that “[n]o Tamils from the North or
East should be returned forcibly until there is significant improvement in the
security situation in Sri Lanka”. The applicant concurs with the Sinnasamy
above assessment that for the officer to proceed with a decision without
addressing the relevance of these statements in the report is an error of law.
As in Sinnasamy above, from Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration) (1998), 157
F.T.R. 35 at paragraph 17, the burden of an explanation increase with the relevance of
the documentary evidence towards the applicant’s claims.
[37]
The
applicant’s final submission is that the PRRA officer failed to consider the
official travel warning issued by DFAIT. The applicant submits that in Narany
above, a removal order was stayed based on this report. The applicant
states that the officer was in error in not considering this report at all.
Respondent’s
Submissions
[38]
The
respondent begins submissions by stating that both the Dunsmuir v. New
Brunswick,
[2008] S.C.J. No. 9 and Council of Canadians with Disabilities v. Via Rail
Canada Inc., [2007] 1 S.C.R. 650 decisions are important decisions that
establish a deferential regard by the courts in the process of reviewing
decisions on a reasonableness standard and that in this case, the decision
taken as a whole, is sustainable with this level of scrutiny. The respondent
argues that while the applicant may disagree with the decision made by the
officer, the method and regard in which it was made, was not in error.
[39]
The
respondent argues that the officer did everything required under the Act in
assessing the PRRA. The respondent argues that every document submitted was
considered by the officer including the December 2006 UNHCR Report which was of
particular concern to the applicant. The respondent counters that each of the
potential risks brought up in the report were not found to apply to the
applicant. The officer found that the risk of extortion was indicated as
applying to wealthy people of which the applicant is not. The other risk was in
sending back individuals to the north and east of Sri Lanka and there was no
indication that the applicant would have to go back to these areas and could
remain in Colombo.
[40]
Further,
the officer indicated that she relied upon more up-to-date documentary evidence
than the evidence provided by the applicant supporting the finding that the
applicant would not be targeted for persecution or harm.
[41]
In
any case, the respondent submits that the documentary evidence does not
demonstrate that Tamil civilians in Colombo are extorted by the
LTTE “on either a small or large scale” and that extortion by the LTTE is “only
prevalent in areas controlled by the LTTE”.
[42]
The
respondent disagrees with the applicant that the officer was in error in how
she regarded the evidence and states that it is open to the officer to choose
to rely on some evidence and not others if it is conflicting (see Stelco
Inc. v. British Steel Canada Inc., [2000] 3 F.C. 282, Tawfik v. Canada,
[1993] F.C.J. No. 835 and Arunachalam v. Canada (Minister of Citizenship and
Immigration), [1996] F.C.J. No. 1091). As well, the respondent submits that
the inferences drawn by the officer were not “so completely unreasonable” that
they warrant judicial intervention in this case (see Aguebor v. Minister of
Employment and Immigration), [1993] F.C.J. No. 732).
[43]
The
respondent does not agree that the risks articulated in the DFAIT travel
document indicate a personalized risk of harm or persecution either as a member
of a particular social group under section 96 or as an individual under section
97 of the Act.
[44]
The
respondent submits that the applicant is engaging in a miniscule dissection of
the officer’s decision in order to argue that the officer applied the wrong
standard of proof for section 96 and contends that the officer’s statements
went to the sufficiency of evidence provided not to the legal test. It is the
objective evidence that the officer was concerned with, not whether the
applicant’s subjective fears were well-founded (see Hamid v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 1546). Insofar as the
officer’s application of section 97 of the Act, the respondent submits that
this section clearly requires a personalized risk. In the decision of Cetinkaya
v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1113, it was found that
while there may be a general situation in Turkey with respect to members of the
PKK, the applicant must show that as one of those members he is personally
facing persecution and that there must be a link between “the applicant’s
activities and the persecution feared”. The officer determined that there was
not a serious possibility that the applicant would be at personal risk which is
consistent with the jurisprudence and reasonable on review.
Analysis and
Decision
[45]
Issue
1
What is
the appropriate standard of review?
The
applicant has raised a number of issues with respect to the PRRA decision that
all warrant a reasonableness standard of review. Before the instructive
administrative law case of Dunsmuir above, found
that a PRRA office’s decision generally should be assessed on a standard of
reasonableness simpliciter (see Figurado v. Canada
(Solicitor General), [2005] F.C.J. No. 458). This standard was collapsed to
the standard of reasonableness by Dunsmuir above, and subsequent cases
have continued to adopt reasonableness as the correct standard (see Christopher
v. Canada (Minister of Citizenship and Immigration), [2008]
F.C.J. No. 1199). This is in accordance with Dunsmuir above, which
instructs that when a similar type of decision has been established to have a
particular standard of review, reliance can be paid on that standard in
subsequent reviews. As in Christopher above, this review of the PRRA
officer’s decision involves questions of fact and questions of law. The facts presented
are particular to the applicant’s situation and what has been presented in the
documentary evidence. Questions of law and fact arise when these facts are
applied to the governing statutory sections of the Act. This analysis must be
reasonable and in accordance with the immigration laws in our country. What is
a reasonable regard to all the evidence is discussed in many cases including Ramanathan v. Canada (Minister of
Citizenship and Immigration), [2008] F.C.J. No. 1064 and Erdogu v. Canada (Minister of
Citizenship and Immigration), [2008] F.C.J. No. 546.
[46]
At paragraph 47 of Dunsmuir above, reasonableness has been
articulated as:
[47] …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.
[47]
Issue
2
Did the
officer err in the evaluation of the documentary evidence?
The officer found in part as
follows at page 9 of the applicant’s record:
The applicant is an elderly farmer who
could no longer work on his farm because of internal politics in Sri Lanka. He belongs to the Tamil
minority and is Catholic. I am of the opinion that he is of little interest to
the Singhalese authorities and the Tamil Tigers, given his age and his lack of
involvement in political parties or groups.
And at page 10 of the applicant’s record:
The applicant submitted in evidence a
December 2006 report on the position of the High Commissioner for Refugees on Sri Lanka. This one-year-old report
states that the individuals targeted by the Tigers for extortion are business
people and those with large incomes. Moreover, it confirms that the conflict is
located in the north and east of the country. Nothing indicates that the
applicant will have to go to these regions. In addition, I have consulted more
up-to-date sources.
[48]
I
have reviewed the documentation referred to by the officer which included the
response to information requests (LKA102038.E). The following is contained in
the request:
Persons returning from abroad
Person returning from abroad may also be
subject to extortion (Sri
Lanka 27 Nov.
2006; Hotham Mission Oct. 2006, 49). According to the Hotham Mission report, in
some instances, returnees have been pressured into paying immigration officials
to be able to pass through the airport without incident (ibid.). The report
also indicates that, across Sri
Lanka, wealthy
businessmen are being kidnapped for ransom and that “people returning from
overseas may be a target, as it will be assumed that they have money” (ibid.).
[49]
The
officer made no mention in the decision that people returning from overseas may
be a target as they are perceived to have money. While I agree that the officer
does not have to refer to every piece of evidence in the decision, the
jurisprudence also makes it clear that the officer must refer to and deal with
evidence that goes to the issue raised by the applicant. As the officer did not
reference this evidence, I am of the view that the decision is unreasonable.
[50]
Because
of my finding on this issue, I need not deal with the remaining issues.
[51]
The
application for judicial review is therefore allowed and the matter is referred
to another officer for redetermination.
[52]
The
applicant requested costs in her further memorandum of fact and law. I do not
believe that the facts of this case are such so as to justify an award of
costs.
[53]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[54]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different officer for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in these sections.
The Immigration and Refugee Protection
Act, S.C. 2001, c.27:
|
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.
98. A person referred to in section E or F
of Article 1 of the Refugee Convention is not a Convention refugee or 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.
114.(1)
A decision to allow the application for protection has
(a) in the
case of an applicant not described in subsection 112(3), the effect of
conferring refugee protection; and
(b) in the
case of an applicant described in subsection 112(3), the effect of staying
the removal order with respect to a country or place in respect of which the
applicant was determined to be in need of protection.
(2) If the
Minister is of the opinion that the circumstances surrounding a stay of the
enforcement of a removal order have changed, the Minister may re-examine, in
accordance with paragraph 113(d) and the regulations, the grounds on which
the application was allowed and may cancel the stay.
(3) If the
Minister is of the opinion that a decision to allow an application for
protection was obtained as a result of directly or indirectly misrepresenting
or withholding material facts on a relevant matter, the Minister may vacate
the decision.
(4) If a
decision is vacated under subsection (3), it is nullified and the application
for protection is deemed to have been rejected.
|
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.
98. La personne visée aux
sections E ou F de l’article premier de la Convention sur les réfugiés ne
peut avoir la qualité de réfugié ni de personne à protéger.
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.
114.(1)
La décision accordant la demande de protection a pour effet de conférer
l’asile au demandeur; toutefois, elle a pour effet, s’agissant de celui visé
au paragraphe 112(3), de surseoir, pour le pays ou le lieu en cause, à la
mesure de renvoi le visant.
(2)
Le ministre peut révoquer le sursis s’il estime, après examen, sur la base de
l’alinéa 113d) et conformément aux règlements, des motifs qui l’ont justifié,
que les circonstances l’ayant amené ont changé.
(3)
Le ministre peut annuler la décision ayant accordé la demande de protection
s’il estime qu’elle découle de présentations erronées sur un fait important
quant à un objet pertinent, ou de réticence sur ce fait.
(4)
La décision portant annulation emporte nullité de la décision initiale et la
demande de protection est réputée avoir été rejetée.
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The Immigration
and Refugee Protection Regulations, SOR/2002-227:
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161.(2) A
person who makes written submissions must identify the evidence presented
that meets the requirements of paragraph 113(a) of the Act and indicate how
that evidence relates to them.
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161.(2)
Il désigne, dans ses observations écrites, les éléments de preuve qui
satisfont aux exigences prévues à l’alinéa 113a) de la Loi et indique dans
quelle mesure ils s’appliquent dans son cas.
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