Date: 20090513
Docket: IMM-3802-08
Citation: 2009 FC 491
Ottawa, Ontario, May
13, 2009
PRESENT: The Honourable
Mr. Justice Orville Frenette
BETWEEN:
Maboso
MONONGO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review under subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), of a decision dated
August 21, 2008, by Julie Bernier, the pre-removal risk assessment officer (PRRA
officer) who denied the applicant’s refugee protection claim.
Facts
[2]
The
applicant, who is a citizen of the Democratic Republic of Congo (DRC), arrived
in Canada in May 1997,
at fifteen years of age. He became a permanent resident as an immigrant in the “member
of the family” class.
[3]
The
evidence shows that since he reached the age of majority in 2000, the applicant
has been convicted in Canada of more than 30 criminal offences, including:
assault, assaulting a peace officer, possession of prohibited weapons, assault with a weapon,
uttering death threats, and assault causing bodily harm. Furthermore, the applicant did not
respect conditions during seven probation periods between 2000 and 2007.
[4]
On
September 24, 2004, the Immigration Division issued a deportation order against
the applicant rendering him inadmissible to Canada on grounds
of serious criminality under paragraph 36(1)(a) of the Act:
|
36. (1) A permanent resident or
a foreign national is inadmissible on grounds of serious criminality for
(a) having been convicted in
Canada of an offence under an
Act of Parliament punishable by a maximum term of imprisonment of at least 10
years, or of an offence under an Act of Parliament for which a term of
imprisonment of more than six months has been imposed;
|
36. (1) Emportent interdiction
de territoire pour grande criminalité les faits suivants :
a)
être
déclaré coupable au Canada d’une infraction à une loi fédérale punissable
d’un emprisonnement maximal d’au moins dix ans ou d’une infraction à une loi
fédérale pour laquelle un emprisonnement de plus de six mois est infligé;
|
[5]
An
appeal filed against this measure was rejected by decision dated December 27,
2006.
[6]
On
September 23, 2004, the day preceding the date of the inquiry, the applicant
presented a refugee claim to the Refugee Protection Division (RPD). Because
he failed to appear at the RPD hearings, the RPD then pronounced that it was abandoning
his refugee claim by decision dated February 14, 2007.
[7]
On
July 23, 2008, the applicant completed a PRRA application form but did not submit
it. The officer André Pelletier, from the Canada Border Services Agency, explained
to him at that time that he had to complete the form and submit it at the
latest 15 days afterwards, i.e. August 7, 2008. It was not until August 14,
2008, seven days too late, that he allegedly submitted his application via a
facsimile sent by Robert Naylor.
[8]
The
failure to submit the PRRA application in a timely manner had two consequences.
First, the applicant lost the statutory stay until the PRRA decision was
delivered pursuant to subsection 232(b) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations). Second, after
the 15 days had expired according to section 162 of the Regulations, the
PRRA officer could deliver her decision as early as August 8, 2008.
[9]
Having
not received the form, the officer delivered her reasoned decision rejecting
the PRRA application and, on August 21, 2008, Nadine Grégoire from the Canada
Border Services Agency went to the applicant’s detention facility to inform him
of the negative decision.
[10] The following
day, on August 22, 2008, the applicant’s counsel submitted her written
memorandum to the Registry. Subsequently, the PRRA officer submitted an
addendum to her decision, taking into account the above submissions, but
rejecting the PRRA application.
The impugned decision
[11] The PRRA
officer found that there was not any sufficient or new evidence allowing her to
find that if the applicant was returned to the DRC, he would be subject to a
general and specific risk.
[12] In the addendum
of August 29, 2008, the PRRA officer further explained her decision, taking
into account the applicant’s submissions. She found that despite his ethnic
origin of Tutsi or half Hutu, he would not automatically be subject to risks of
persecution, death threats or torture in the DRC.
[13] The PRRA
officer attributed very little probative value to the “pseudo” psychological report
of David L. B. Woodbury that the applicant suffered from
psychological problems (Mr. Woodbury not being a psychologist or a member of
the Ordre des psychologues du Québec). She also considered that despite the poor
quality of medical care or institutions for people with psychological problems,
they were present in the DRC; an argument she did not comment on in the
decision of August 21, 2008.
The appropriate standard
of review
[14] The standard
of review for decisions relating to questions of fact or questions of mixed
fact and law is that of reasonableness (Dunsmuir v. New Brunswick, [2008] 1 S.C.R.
190). In Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12, we recall that decisions by
administrative tribunals, because they are specialized tribunals, command deference.
For questions of pure law, the standard is that of correctness (Housen v.
Nikolaisen, [2002] 2 S.C.R. 235, and Dunsmuir, above). Finally, when
it is a case of natural justice or procedural fairness, the standard is also
that of correctness (Suresh v. Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 3; Cartier v. Canada (Attorney
General),
[2003] 2 F.C. 317 (C.A.), at paragraphs 30 to 36; Thaneswaran v. Minister of
Citizenship and Immigration, 2007 FC 189).
Legislation
[15]
The relevant sections of the IRPA are the following:
|
112. (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.
115. (1) A
protected person or a person who is recognized as a Convention refugee by
another country to which the person may be returned shall not be removed from
Canada to a country where they would be at risk of persecution for reasons of
race, religion, nationality, membership in a particular social group or political
opinion or at risk of torture or cruel and unusual treatment or punishment.
(2) Subsection
(1) does not apply in the case of a person
(a) who is
inadmissible on grounds of serious criminality and who constitutes, in the
opinion of the Minister, a danger to the public in Canada; or
(b) who is
inadmissible on grounds of security, violating human or international rights
or organized criminality if, in the opinion of the Minister, the person
should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of
danger to the security of Canada.
(3) A person, after a
determination under paragraph 101(1)(e) that the
person’s claim is ineligible, is to be sent to the country from which the
person came to Canada, but may be sent to another country if that country is
designated under subsection 102(1) or if the country from which the person
came to Canada has rejected their claim for refugee protection.
|
112. (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.
115. (1) Ne peut être renvoyée dans un pays où elle
risque la persécution du fait de sa race, de sa religion, de sa nationalité,
de son appartenance à un groupe social ou de ses opinions politiques, la
torture ou des traitements ou peines cruels et inusités, la personne protégée
ou la personne dont il est statué que la qualité de réfugié lui a été
reconnue par un autre pays vers lequel elle peut être renvoyée.
(2) Le paragraphe (1) ne
s’applique pas à l’interdit de territoire :
a) pour grande criminalité qui, selon le ministre, constitue un
danger pour le public au Canada;
b) pour raison de sécurité ou pour atteinte aux droits humains ou
internationaux ou criminalité organisée si, selon le ministre, il ne devrait
pas être présent au Canada en raison soit de la nature et de la gravité de
ses actes passés, soit du danger qu’il constitue pour la sécurité du Canada.
(3) Une personne
ne peut, après prononcé d’irrecevabilité au titre de l’alinéa 101(1)e), être renvoyée que vers le pays d’où elle est arrivée
au Canada sauf si le pays vers lequel elle sera renvoyée a été désigné au
titre du paragraphe 102(1) ou que sa demande d’asile a été rejetée dans le
pays d’où elle est arrivée au Canada.
|
Functus officio
[16] The
respondent raises a procedural argument of functus officio on the addendum
of the PRRA officer dated August 29, 2008, even if it did not alter the substance
of the decision dated
August 21, 2008.
[17] Counsel for
the applicant argues that the PRRA officer had the administrative power to act
as she did. She also maintains that despite the expiry of the 15-day deadline,
she had the right to file her memorandum because the authorities knew that the
applicant would be applying or would want to apply for a PRRA.
[18] According to
the functus officio principle, a decision-maker no longer has
jurisdiction over a matter once he or she has delivered the decision. Consequently,
the PRRA officer became functus officio on August 21, 2008, after having
delivered and signed her decision and having disclosed it to the applicant. This
point is made in Chandler v. Alberta Association of Architects, [1989] 2
S.C.R. 848. This Court’s decisions have applied this classic rule of functus
officio to administrative decisions, i.e. that the decision is final after
it is signed and has been disclosed to the parties: Chudal v. Minister of
Citizenship and Immigration, 2005 FC 1073; Pur v. Minister of
Citizenship and Immigration, 2008 FC 1109; Dumbrava v. Minister of
Citizenship and Immigration (1995), 101 F.T.R. 230.
[19] Moreover, Justice
Barbara Reed in Nouranidoust v. Canada (Minister of Citizenship and Immigration),
[2000] 1 F.C. 123, is less categorical or formalistic; she wrote, referring to
remarks by Justice Sopinka in Chandler, above:
[13] . . . However, he noted that the doctrine should be applied flexibly to
administrative tribunals:
. . . I am of the
opinion that its application must be more flexible and less formalistic in
respect to the decisions of administrative tribunals which are subject to
appeal only on a point of law.
Justice Reed found that an immigration
officer could reopen a file “when the officer considers it in the interests of
justice to do so”.
[20] This judgment
appears significantly marginal when analyzing the weight of authority. I must
conclude that in the circumstances of this record, the principle of functus
officio must apply; therefore, the decision of August 21, 2008, must be the
only decision for consideration.
[21] The applicant
raises the following arguments: fear for his life and safety, his psychological condition and his removal to a high
risk country.
Fear
for his life and safety
[22] The applicant
submits that his ethnic origin of Tutsi or half Hutu means that he will be
persecuted in the Congo and that at the airport of entry, he will be
interrogated and incarcerated. He argues that Tutsis are perceived to be
responsible for the wars of 1990-1997 and 1998-2002. He relies on the Country
Reports on Human Rights Practices – 2007, which refer to the dangerous
situation in the DRC.
[23] The respondent
replies that this problem was considered by the PRRA officer and that,
according to the document of the British Home Office, Border & Immigration
Agency, Country of Origin Information Report, Democratic Republic of the
Congo, February 8, 2008, [translation]
“the situation for Tutsis appears to have improved”.
[24] An analysis
of the documentary evidence shows that persecution of Tutsis would apply particularly
to those who carry out political activities that are contrary to those of the
government (see also Kandolo v. Minister of Citizenship and Immigration,
2008 FC 1176; Maskini v. Minister of Citizenship and Immigration, 2008 FC
826).
[25] The applicant
did not prove that he was a part of this category so there is no personal risk that
differentiates his situation from that of other Tutsis. If there is no evidence
of personalized risk, this ground is not sufficient to prevent removal (Kaba
v. Minister of Citizenship and Immigration, 2007 FC 647). In Nkitabungi
v. Minister of Citizenship and Immigration, 2007 FC 331, Justice Luc Martineau
had to decide the situation of a citizen of the DRC of Tutsi origin, and
dismissed the application against the decision by the officer on this matter (see
also Lalane v. Minister of Citizenship and Immigration, 2009 FC 6). The
PRRA officer in this case also considered the extensive criminal record of the
applicant.
The
psychological condition of the applicant
[26]
The
applicant argues that the PRRA officer erred by not taking into account [translation] “his mental disability” and
the consequences if he was imprisoned. He raises the issue of quality of
psychiatric care in the DRC. The applicant alleges that he has suffered from a
mental disability since he was born and draws some support in a report by David
L.B. Woodbury with regard to his psychological condition. In three judgments,
it was determined that Mr. Woodbury is a psychoeducator and not a psychologist,
so he does not have the authority to issue psychological diagnoses (Singh v.
Minister of Citizenship and Immigration, 2001 FCT 1376, at paragraph 6; Kakonyi
v. Minister of Public Safety and Emergency Preparedness, 2008 FC 1410, at
paragraphs 49 and 50; Sokhi v. Minister of Citizenship and Immigration,
2009 FC 140, at paragraph 10).
[27] The evidence
shows that intellectually, the applicant is well below average and, according
to psychological reports, there is [translation]
“a diagnostic possibility of an unspecified psychological dysfunction” or [translation] “an individual with a
borderline psychotic organization of the personality”.
[28] Moreover, the
psychological and psychiatric reports by the Institut Pinel found that the
applicant was in a state to be held criminally responsible for the offences he
committed.
[29] At the Institut
Pinel, the applicant was subject to numerous tests and evaluations; according
to the reports by psychiatrists Durivage, Wolwartz and Talbot, he was to be
held criminally responsible for the offences with which he was charged under
section 16 of the Criminal Code. The psychiatrist Talbot, in his note of
April 1, 2008, indicated that the applicant’s schizophrenic episodes follow his
refusal to take medication to control his condition.
[30] It is
apparent in the evidence that the applicant suffers from certain mental
problems that are controlled with medication. The evidence shows that the DRC
has psychiatric institutions that can take care of persons with mental illness
(document of the British Home Office, February 2008, at paragraphs 28.55 and
28.56). Even if the quality of these services is not at the same level as it is
in Canada, this reason
does not justify a non-removal.
[31] The applicant’s
medical condition cannot constitute a risk according to sections 96 and 97 of
the Act. This part of the applicant’s argument would be further linked to an
application for relief filed in accordance with section 25 of the Act (Covarrubias
v. Minister of Citizenship and Immigration, [2007] 3 F.C. 169 (C.A.); Mekarbèche
v. Minister of Citizenship and Immigration, 2007 FC 566).
[32] It is
apparent from the evidence as a whole that the PRRA officer did not commit an
error in her analysis of the evidence. She found that the recent documentary
evidence shows that the conditions in the DRC have recently improved; however, she
noted that there is a risk of serious danger for all citizens. The applicant did
not establish that he would be subject to a particular and personal risk in the
DRC. In Nkitabungi, above, Justice Martineau dismissed the application
for judicial review of a national of the DRC because, inter alia, the
applicant, of Tutsi ethnicity, did not prove that he would be “personally at
risk”, if he returned to the Congo.
[33] In my
opinion, the applicant in this case did not discharge the burden of
demonstrating that he would be at risk in the DRC for this reason.
Removal
to a high risk country
[34] In 2002, the
Supreme Court of Canada in Suresh, above, recalled that exercising the
discretionary power of the Minister, under paragraph 53(1)(h) of the Act,
is subject to the principles of fundamental justice under section 7 of the Canadian
Charter of Rights and Freedoms. It reiterated that according to these
principles and Canada’s adherence to the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (GA 39/46,
annex, 39 U.N. GAOR supp. (No. 51), U.N. Doc. A/39/51 (1984)), a person must
not be removed to a country where there are serious grounds that a danger of
torture exists. The Federal Court of Appeal held in Li v. Canada (Minister of
Citizenship and Immigration), [2005] 3 F.C.R. 239, that the risk should
be established according to the standards of a certain probability. However,
the Supreme Court held that this principle did not entirely exclude the
possibility of deportation to such a country with serious danger in exceptional
cases when the security of Canada has been put at risk. The Supreme Court in
Suresh, above, also commented as follows, at paragraphs 90 and 91:
. . . The threat must be
“serious”, in the sense that it must be grounded on objectively reasonable
suspicion based on evidence and in the sense that the threatened harm must be
substantial rather than negligible.
[91] This definition of
“danger to the security of Canada” does not mean that Canada is unable to deport
those who pose a risk to individual Canadians, but not the country. . . .
[35] The British House of Lords recently rendered a decision in RB
(Algeria) v. Secretary of State for the Home Department, [2009] U.K.H.L.
10, that authorized the deportation of an Algerian national, categorized as a terrorist,
even when Algeria was suspected of practising torture. The
House of Lords relied on the Government of Algeria’s commitment not to allow
torture.
Conclusion
[36] It follows
that in a case such as this, it is not inappropriate to remove the applicant to
the DRC, a country where certain dangers exist; the decision by the PRRA
officer was not unreasonable according to the criteria established in Dunsmuir,
above.
[37] The
application for judicial review is therefore dismissed.
JUDGMENT
The
application for judicial review of the decision by Julie Bernier, the
pre-removal risk assessment officer, dated August 21, 2008, is dismissed.
No question is
certified.
“Orville
Frenette”
Certified
true translation
Janine
Anderson, Translator
Email this Content