Date: 20071204
Docket: IMM-84-07
Citation: 2007 FC 1273
Ottawa, Ontario, December 4,
2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
NDRE
MALSHI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
“[I]t is
not the role of a PRRA officer to act as a court of appeal from a prior
refugee/protection decision.” (Yousef v. Canada (Minister of Citizenship
and Immigration), 2006 FC 864, [2006] F.C.J. No. 1101 (QL); Reference is
also made to Quiroga v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1306, [2006] F.C.J. No. 1640 (QL) and Kaybaki
v. Canada (Solicitor General of Canada), 2004 FC 32,
[2004] F.C.J. No. 27 (QL).)
JUDICIAL PROCEDURE
[2]
This
is an application for judicial review, pursuant to paragraph 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of a
Pre-Removal Risk Assessment (PRRA) Officer, dated, December 6, 2006, wherein,
the PRRA Officer determined that the Applicant would not be subject to danger
of torture, risk to life or risk of cruel and unusual treatment or punishment
if returned to his home country.
FACTS
[3]
The
Applicant, Mr. Ndre Malshi, is a citizen of Albania. He entered Canada in 2000 and
made a claim for refugee protection based on fear of bank robbers whose
commission of crime he had witnessed. (Reasons of the Refugee Protection
Division (RPD) of the Immigration and Refugee Board (Board), Applicant’s
Record, pp. 20-21.)
[4]
The
RPD of the Board denied Mr. Malshi’s claim as it found that he lacked a nexus
to a Convention ground, was not at risk and had not rebutted the presumption of
state protection. (Reasons of the Board, above, pp. 19-21.)
[5]
This
Court denied leave of Mr. Malshi’s application for leave to judicial review of the
Board’s decision.
[6]
On
March 28, 2006, Mr. Malshi submitted a PRRA application. The PRRA Officer found
that the evidence submitted by Mr. Malshi was not sufficient to overcome the
Board’s findings with respect to risk, state protection and nexus to a
Convention ground. The PRRA Officer further found that Mr. Malshi had failed to
rebut the presumption of state protection. The PRRA Officer accordingly denied
the application. (PRRA Reasons, Applicant’s Record, pp. 5-11 (Tabs 2 and 3).)
[7]
Mr.
Malshi brought a motion for a stay of his removal which was heard before
Justice Michael Phelan, on January 29, 2007. The motion was granted in an Order
dated, February 20, 2007.
ISSUE
[8]
Has
any error been demonstrated that would warrant judicial intervention of the
PRRA Officer’s decision?
ANALYSIS
Higher
threshold for Leave not met
[9]
The
stay of removal of Mr. Malshi’s removal was granted based on the relatively low
threshold for “serious issue” (i.e. not frivolous and vexatious) concerning the
adequacy of reasons provided by the PRRA Officer. In RJR-MacDonald Inc. v. Canada (Attorney
General),
[1994] 1 S.C.R. 311, the Supreme Court of Canada stated that courts should not
delve into the merits of an application on interlocutory motion:
[50] Once satisfied that
the application is neither vexatious nor frivolous, the motions judge should
proceed to consider the second and third tests, even if of the opinion that
the plaintiff is unlikely to succeed at trial. A prolonged examination of
the merits is generally neither necessary nor desirable. (Emphasis added.)
PRRA Officer
not entitled to revisit Board’s findings of risk
[10]
Mr.
Malshi’s submissions make confusing references to both the Board and the PRRA
Officer. It appears that Mr. Malshi is also attempting, in the present
application, to challenge the Board’s state protection findings.
[11]
As
this Court recently reaffirmed, the PRRA officer may not revisit the Board’s
factual finding, or act as an avenue of appeal in respect of the factual
findings made by the Board.
[20] Some of the evidence-based arguments made here on behalf of the
Applicant appear to misconstrue the role of the PRRA officer. It is not the
role of the PRRA officer to re-examine evidence assessed by the Board, and it
is not open to the officer to revisit the Board's factual and credibility
conclusions. It is also not the duty of the PRRA officer to consider evidence
that could have been put to the Board, but was not. The role of the PRRA
officer, as defined by section 113 of the Immigration and Refugee Protection
Act, S.C. 2001, c.27 (IRPA), is to examine "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". Here, the PRRA officer clearly and correctly defined her role
in conformity with the above section 113 limitations.
[21] In Kaybaki v. Canada (Solicitor General), [2004] F.C.J. No. 27, 2004 FC 32, Justice Michael Kelen very succinctly confirmed the
limited role of a PRRA officer at paragraph 11:
... For this reason, the PRRA officer should not
have considered these letters. The PRRA application cannot be allowed to become
a second refugee hearing. The PRRA process is to assess new risk developments
between the [IRB] hearing and the removal date.
I would also add to Justice Kelen's remarks that
it is not the role of a PRRA officer to act as a court of appeal from a prior
refugee/protection decision.
(Yousef, above; Reference is
also made to Quiroga, above and Kaybaki, above.)
State
protection findings reasonable
[12]
Mr.
Malshi’s submissions allege that the PRRA Officer erred in ignoring or
selectively reviewing the evidence that was before him and by failing to
correctly assess the adequacy of state protection in Albania.
[13]
In
the present case, the PRRA Officer did, as it was required to, consider the
Board’s findings with respect to state protection as well as post-Board hearing
evidence on country conditions. The PRRA Officer noted that the Board made
significant findings with respect to state protection. (PRRA Reasons, above, p.
9.)
[14]
The
Board found that, inter alia, the police acted “promptly and reasonably
effectively” in respect to Mr. Malshi’s alleged abduction and assault. (Reasons
of the Board, above, pp. 19 and 21.)
[15]
With
respect to the updated country documentation, the PRRA Officer noted that the
information was not relevant to the Applicant’s personal circumstances. For
example, Mr. Malshi submitted information on the witness protection program,
but did not submit any evidence that he was in that program. In any case, the
evidence with respect to the witness protection program related only to
witnesses in human trafficking and organized crime cases and, furthermore, does
not amount to a rebuttal of the presumption of state protection even with
respect to these witnesses, much less with respect to Mr. Malshi. (PRRA
Reasons, above, p. 9; United States Department of State report on Albania,
Applicant’s Record, p. 41; Canada (Attorney General) v. Ward, [1993] 2
S.C.R. 689, pp. 726.
[16]
Mr.
Malshi argues that the PRRA Officer required him to seek protection through his
brother. The PRRA Officer did not, in fact, hold Mr. Malshi to some strict
requirement that he seek state protection through “proxy”, but instead made a
reasonable finding when referred specifically to the undated letter from the
brother (this does not negate that there was also other correspondence). That,
in and of itself, was not probative of the issue of whether or not state
protection had, since the Board hearing, become unavailable. (PRRA Reasons,
above, p. 9; Letter from Applicant’s brother, Applicant’s Record, pp. 23 and
28.)
[17]
Essentially,
Mr. Malshi is taking issue with the manner in which the PRRA Officer weighed
the evidence before her. Weight of the documentary evidence is clearly within
the province and expertise of the PRRA Officer. (Kim v. Canada (Minister of
Citizenship and Immigration), 2005 FC 437, [2005] F.C.J. No. 540 (QL).)
[18]
Mr.
Malshi has not shown that the findings made by the PRRA Officer were perverse
or capricious, or made without regard to the material before her. The onus was
on Mr. Malshi to demonstrate that the PRRA Officer’s findings were not
supported by the evidence in the record. Mr. Malshi has not met his onus
and, therefore, this Court declines to interfere with the PRRA Decision. (Sinan
v. Canada (Minister of
Citizenship and Immigration), 2004 FC 87, [2004] F.C.J. No. 188 (QL); Canada
(Director of Investigation and Research, Competition Act) v. Southam Inc.,
[1997] 1 S.C.R. 748, para. 57; Kim, above; Figurado v. Canada (Solicitor
General),
2005 FC 347, [2005] F.C.J. No. 458 (QL); Cupid v. Canada (Minister of
Citizenship and Immigration), 2007 FC 176, [2007] F.C.J. No. 244 (QL),
paras. 18-19.)
CONCLUSION
[19]
For
all of the above reasons, the application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that
1.
The application
for judicial review be dismissed;
2. No serious question
of general importance be certified.
“Michel M.J. Shore”
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