Date: 20071213
Docket: IMM-4292-06
Citation: 2007 FC 1312
Ottawa,
Ontario, December 13, 2007
PRESENT: The Honourable Justice Frenette
BETWEEN:
MUHAMMAD
AFZAL UL HAQUE, ZARRIN AFZAL, KIRIN AFZAL, MUHAMMAD SALMAN AFZAL, MOHAMMAD
NOMAN AFZAL, MOHAMMAD RAHEEL AFZAL, MUHAMMAD ADEEL AFZAL, and MOHAMMAD ANEEL
AFZAL
Applicants
and
THE MINISTER
OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of the
decision of a Pre-Removal Risk Assessment (PRRA) officer (the Officer) dated
June 27, 2006 and received July 27, 2006, dismissing the applicants’ PRRA
application under section 97 of IRPA. The Officer determined that the
applicants would not be subject to risk of torture, risk to life or risk of
cruel and unusual treatment if returned to Pakistan.
PRELIMINARY MOTION
[2]
The
Respondent’s counsel, at the outset of this hearing, raised a point of law
arguing that since the PRRA Officer’s decision dated June 27th 2006,
a subsequent PRRA decision was rendered on September 20th 2006
attaining the same conclusion, rendered the judicial review of the first
decision, moot. The applicant’s counsel replied that by mutual consent of the
parties, it was established that the two PRRA decisions were rendered by the
same Officer, based on the same facts, since no new evidence was adduced and reached
the same conclusion. The applicants allege that the Officer committed the same
errors. The present hearing is therefore necessary to settle the contested
issues.
[3]
In
my view, the judicial review of the first decision is not moot since the issues
raised have not yet been determined. Even if it could be considered moot, I would
allow this hearing to proceed, exercising the discretion to hear this matter as
authorized by Borowski v. Canada (Attorney General), [1989] S.C.J. No.
14, [1989] 1 S.C.R. 342. Therefore, the motion based on mootness is dismissed.
STATEMENT OF FACTS
[4]
The
facts of this case are as set out in the PRRA Officer’s decision. The
applicants are citizens of Pakistan. The principal
applicant is the father, Afzal, who is 49 years old. The remaining applicants
are the mother Zarrrin 45 years old and their 6 children; Raheel is 26, Aneel
is 24, Adeel is 23, Salman is 19, Kiran is 18 and Norman is 13 years
old. The parents and their three eldest children were all born in Pakistan. In 1985,
the family relocated for work to the United Arab Emirates (UAE), where the youngest
three children were born. As citizens of foreign workers, the children were not
eligible for citizenship in that country. In 1999, the eldest son, Raheel
reached the age of 18 and no longer qualified under UAE laws for a visa based
on his father’s employment. Raheel and his mother returned to Pakistan where they
allege that members of the Mohajir Qaumi Movement (MQM) approached Raheel and
tried to recruit him. The pair returned to the UAE. Unable to stay in the UAE
for longer than two months, Raheel went to the United States in 2000 on a
visa. That same year Aneel, who was 18 and Adeel who was 17, joined him.
[5]
Shortly
after arriving in US, Adeel was diagnosed with schizophrenia. Afzal, the
father, applied for visas for the family to join Adeel in the US in mid 2001.
The applicants allege that the visas were issued, but due to the 9-11 attacks
it was not safe for Pakistan nationals to travel to the USA.
[6]
In
August 2003, Aneel came to Canada and claimed refugee protection. His claim
was denied and this Court dismissed leave for judicial review. Also in August
2003, the parents and the three youngest children went to Pakistan to visit an
ailing relative. During that visit, the applicants’ alleged that Salman was
kidnapped by MQM and a ransom was demanded. The applicants did not inform the
police, but instead relied on a relative that negotiated Salman’s release. The
family then returned to the UAE before joining Raheel and Adeel who were still
residing in the US. In March 2004, the family came to Canada seeking
refugee protection based on their fear of the MQM. The applicants’ claim was
rejected and leave for judicial review was denied.
[7]
In
May 2006, the applicants (except Aneel) brought a motion to re-open their
refugee claim based on the decision in Thamotharem v. Canada (M.C.I),
2006 FC 16. The Refugee Protection Division will not deal with this motion
until after the Federal Court of Appeal has ruled on the Thamotharem appeal.
[8]
In
March 2006, the applicants submitted their PRRA applications, asking that all
eight family members’ applications be considered together. The basis for the
PRRA applications was the following: (i) fear of MQM recruitment, (ii) medical
conditions of Raheel and Aneel and the availability of treatment in Pakistan, and (iii)
the difficulties experienced by the family. By decision dated June 27, 2006 and
communicated to the applicants on July 27, 2006, the Officer refused the
applications. This is the judicial review of the Officer’s decision.
[9]
This
Court has already dismissed the applicants’ motion to stay the execution of the
removal order. In fact, the applicants with the exception of Afzal and Aneel,
left Canada on September 12, 2006 and returned to Pakistan. Prior to
their departure, a second PRRA application was submitted, and was refused on September
20, 2006. Afzal and Aneel are scheduled to be removed at a later date as Aneel
must remain in Canada due to outstanding charges of sexual assault
and criminal harassment.
DECISION UNDER REVIEW
[10]
The
Officer began their analysis by stating that state protection was the
determinative issue in the assessment. The Officer perused the documentary
evidence and gave particular consideration to the political, judicial, and
legal systems in place in Pakistan. The Officer also
considered the documentary evidence on the MQM and its actions in Pakistan. The Officer
gave the applicants’ documentary evidence, such as letters from relatives,
little weight as they were from a party that was not disinterested. Moreover,
the Officer stated that the descriptions of country conditions in the
applicants’ documentary evidence were not supported by the objective data found
in the research. In the end, the Officer gave more weight to the information
found in the objective country reports. The Officer found the objective
documentary evidence did not support the applicants’ alleged fear of risk from
the MQM. Moreover, the Officer found that adequate state protection was
available to the applicants’ as they would have access to the due process of
the law.
[11]
As
to the question of adequate medical attention for two of the sons, Aneel who
was diagnosed as Bipolar and Adeel who was diagnosed as paranoid Schizophrenia,
the Officer reviewed the letters from their doctors and articles provided by
the applicants on psychological disorders in Pakistan. The Officer
noted that some of the articles provided by the applicants referenced the
diagnosis and treatment of patients in remote areas of the country, while the
applicants live in a large city, Karachi. The Officer stated
that the documentary evidence when read in its entirety showed that Pakistan had
extensive public and private health facilities available. The Officer also
noted that in any event pursuant to section 97(1)(b)(iv) of IRPA, “the risk is
not caused by the inability of that country to provide adequate health or
medical care.”
[12]
In
conclusion, the Officer found that there was no more than a mere possibility
that the applicants would be subjected to persecution should they return to Pakistan.
ISSUES
[13]
(a) What
is the appropriate standard of review?
(b) Did the officer err
in failing to consider the best interests of the children?
(c) Did
the officer err in finding that adequate state protection existed in Pakistan?
(d) Did
the officer err in their consideration of the evidence regarding Aneel’s PRRA
application?
ANALYSIS
(a) What
is the appropriate standard of review?
[14]
In
Kim v. Canada (M.C.I.), 2005 FC 437 at paragraphs 8 to 22,
Justice Mosley did a comprehensive application of the pragmatic and functional
approach to the decisions of PRRA officers. At paragraph 19, Justice Mosley
found:
Combining and balancing all of
these factors, I conclude that in the judicial review of PRRA decisions the
appropriate standard of review for questions of fact should generally be patent
unreasonableness, for questions of mixed law and fact, reasonable simpliciter,
and for questions of law, correctness.
As such, the overall decision of the
Officer, being one of mixed law and fact, is reviewable on the standard of
reasonableness simpliciter. The PRRA Officer’s finding with regards to
state protection is fact specific and is reviewable on a standard of patent
unreasonableness.
(b) Did
the officer err in failing to consider the best interests of the children?
[15]
The
applicants submitted that the Officer committed a reviewable error by failing
to consider the best interest of the children involved. In making this
submission, the applicants relied on Seguel v. Canada (Solicitor
General),
[2004] F.C.J. No. 1182, Gonzalez v. Canada (M.C.I.), [2002]
F.C.J. No. 671, and Wu v. Canada (M.C.I.), [2002] F.C.J. No. 721
for the proposition that during a PRRA decision the best interest of the child
has to be assessed.
[16]
The
respondent on the other hand submitted that it is well established that removal
officers are not required to consider Humanitarian and Compassionate (H&C)
grounds such as the best interest of the child as that responsibility is
reserved for H&C officers. The respondent relied on a number of cases
including Varga v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 394, [2006] F.C.J. No. 1828, Sherzazy
v. Canada (M.C.I.), [2005] F.C.J. No. 638, Alabadley v. MCI,
2006 FC 716, El Ouardi v. Canada (M.C.I.), 2005 FCA 42, and Kim
v. Canada (M.C.I.), 2005 FC 437. In Sherzady, Justice Shore wrote “[T]here
is simply no basis in the clear legislative language to suggest that a PRRA
officer, on an applicant’s request, is also meant to take on the role of an
H&C officer”.
[17]
Having
reviewed both parties’ submissions and the relevant jurisprudence, I agree with
the respondent; in the present case the Officer was not obliged to consider the
best interests of the applicant children as a determinative factor in
the present decision.
[18]
In
Sherzady v. Canada (M.C.I.) above, Justice Shore dealt with
the same issue. At paragraphs 14 to 16 the Court held:
[The applicant] argues that
the PRRA officer did not address any humanitarian and compassionate (H&C)
considerations and failed to consider the interests of [the applicant]’s
Canadian son. The Court agrees with the Respondent that the PRRA officer was
not obliged to consider the H&C factors raised by [the applicant].
[The applicant] made an
application for a PRRA assessment. The scheme for assessing a PRRA application
under IRPA and the related Regulations is clear. A PRRA assessment is designed
to assess risk, in this case the risk based on the factors set out in section
97 of IRPA (subparagraph 113(d) of IRPA). There is simply no basis in the clear
legislative language to suggest that a PRRA officer, on an applicant’s request,
is also meant to take on the role of an H&C officer.
There is a separate H&C
consideration process in place, for which [the applicant] would have been free
to apply. The H&C regime is provided for in paragraph 25(1) of IRPA as
follows: […].
In Varga, above, a Federal Court of
appeal decisions, dealt with an application for judicial review of a PRRA
decision, where the Court stated that the negative PRRA decision had to be
upheld even if the officer failed to consider the best interests of the
children.
[19]
In
my opinion, the principle articulated in Sherzady above, applies to the
case at bar. The cases relied on by the applicant can be distinguished from Sherzady
above in that they are not judicial reviews of a PRRA decision, but yet
applications and motions for stays of a removal order. Thus, although they
comment on the issue, the ultimate question to be determined in those cases was
not whether a PRRA officer had to consider the best interest of the child, but
whether a stay of the removal order was warranted.
[20]
The
applicants herein have not applied for an H&C application under section
25(1) of IRPA. There is no evidence on the record as to why they have chosen
not to do so. An H&C application conducted by an H&C officer is the
appropriate stage in the process for the assessment of the best interests of
the children involved.
[21]
In
light of my above findings, I conclude that there was no reviewable error on
this ground.
(c) Did
the officer err in finding that adequate state protection existed in Pakistan?
[22]
The
applicants submitted that the Officer’s finding that there existed adequate
state protection in Pakistan was patently unreasonable. In particular, the
applicants submitted that the 2005 US DOS report, upon which the Officer relied,
does not support the conclusion of adequate state protection.
[23]
The
respondent submitted that the Officer’s determination on state protection is
owed significant deference and that the Court’s intervention is not warranted
in this case.
[24]
The
Officer’s consideration of state protection occupies the better part of the
decision. The Officer began by noting the high burden required to rebut state
protection: “there is a presumption that the state is capable of protection its
citizens. State protection is presumed to exist in the absence of clear and
convincing evidence to the contrary.” After a thorough consideration of the
political situation in Pakistan, the Officer considered
the judicial system. The officer noted that while the Constitution provides for
freedom of religion, in practice there are restrictions. The Officer also
stated that the right of a person in the judicial system differ depending on
their religion. The Officer then considered the MQM and mentioned that the IRB
request for information to the Human Rights Commission of Pakistan which
indicated that Mohajirs could live in most cities and suffered only occasional
social discrimination. The Officer went on to consider the applicants’
submission that the police would not arrest members of the MQM because of their
power and stated that this submission was not supported in the documentation.
In closing, the Officer stated: “The documentary evidence indicates that there
have been incidences where the police have acted independently however these
actions have been investigated and prosecutions do occur. The applicant has
recourse to a police system that if not perfect is adequate.” Pakistan is
considered a functioning democracy. It could be argued that the efficiency of
the system is not perfect and gives rise to criticism. Police actions can be excessive
but state protection exists even if not perfect or adequate.
[25]
In
my opinion, there is nothing patently unreasonable about the Officer’s decision
on state protection. The Officer on numerous occasions made mention of problems
in the system, but in the end found that overall the documentary evidence
supported the conclusion that adequate state protection existed. As stated in Ahmed
above at paragraph 5:
Decisions of PRRA officers are
to be given significant deference. Where there is nothing unreasonable in the
PRRA decisions, there will be no serious issue. In this case, the PRRA officer
clearly considered the applicants’ submissions as well as the recent
documentary evidence with respect of ongoing human rights abuses in Pakistan. What the applicants are
asking the Court to do is re-weigh the evidence that was before the PRRA
officer. While the Applicants may not agree with the PRRA decision, they have
not demonstrated that it was arguably perverse or patently unreasonable.
(d) Did
the officer err in their consideration of the evidence regarding Aneel’s PRRA
application?
[26]
The
applicants submitted that the Officer failed to consider all the evidence in
relation to Aneel’s PRRA application. Specifically, the applicants take issue
with the Officer’s consideration of the submissions and evidence put before
them by the applicants regarding treatment of persons with psychiatric
conditions in Pakistan.
[27]
The
respondent submitted that Aneel’s PRRA submissions, which were made by his
father, are in substance a repeat of the family’s PRRA submissions. As the
Officer dealt with all three of the issues raised by the family in their PRRA
application, no reviewable error was committed.
[28]
To
start, I would note that the grounds for Aneel’s PRRA application were essentially
the same as those upon which the rest of the family relied. In fact, the
written submissions portion of Aneel’s PRRA application was written by his
father. Aneel wrote at the start of his PRRA submissions:
I came to Canada separately from my family but
my refugee case is inextricably linked with that of my father’s. Our files have
also been merged by the PRRA officer who dealt with my father’s case earlier.
The ordeal we face applies to all members of our family. We stand and fall
together. I therefore grant my father this opportunity to make submission in my
behalf.
[29]
The
portion of the decision where the Officer addresses the documents provided by
the applicants’ regarding treatment for Aneel (and his brother Adeel) reads as
follows:
The applicant has submitted
that the boys would not be able to get medical attention in Pakistan. I have read the articles
submitted by the applicant’s on the case of psychological disorders in Pakistan. I note that some of this
material references the diagnosis and treatment of patients in remote areas of
the country. Documentary evidence when read in its entirety show that Pakistan does have an extensive health
facilities available. Wikipedia list major hospitals in the provinces of
Punjab, Sindh, NWFP and Balochistan as well as, in the capital region of Islamabad totalling over one hundred
institutions. Karachi (the applicant’s birth place)
lists over twenty institutions. There are public as well as private health care
institutions available. The documentary evidence when read in its entirety does
not support the principal applicant’s submission that health care would not be
available.
[30]
In
my opinion, there is no reviewable error in the Officer’s consideration of this
evidence. It is obvious by the above extract of the decision that the Officer
considered all the evidence before them. The fact that the Officer chose to note
certain facts from the documentary evidence provided and not others does not
amount to a reviewable error in this case. The Officer’s overall finding that
the documentary evidence in its entirety did not support the applicants
submission that health care was unavailable in Pakistan was
reasonable. The PRRA Officer had ample evidence from which she could reasonably
support her conclusions.
[31]
The
applicants reside in Karachi, a city which has over
twenty public medical institutions which includes mental medical facilities.
There are also private health care institutions available. The argument that
the level of health care in psychiatric hospitals in Pakistan is not
comparable to the level in Canada, is not a valid reason in itself to justify
a claim in a PRRA decision.
[32]
All
of these facts of the medical problems were thoroughly examined by the PRRA
Officer. Furthermore, at the PRRA level, the application of section
97(1)(b)(iv) of the IRPA which states “The risk is not caused by the
inability of that country to provide adequate health in medical care”
[33]
As
an overview of all of the issues raised, in my opinion, the applicants are
asking this Court to reweigh the evidence before the Officer. This is not the
role of this Court.
[34]
Therefore,
I find that that there is no reviewable error in the PRRA decision that would
justify a judicial review.
CONCLUSION
[35]
Therefore,
for all of the above reasons, the application for judicial review is dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
The
application for judicial review is dismissed and the style of cause is amended by
removing the Minister of Public Safety and Emergency Preparedness and adding
The Minister of Citizenship and Immigration.
“Orville
Frenette”
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