Date:
20070108
Docket:
IMM-2801-06
Citation:
2007 FC 12
Ottawa, Ontario, January
8, 2007
PRESENT: The Honourable Mr.
Justice Blanchard
BETWEEN:
SHREE
KUMAR RAI
Applicant
and
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
Docket:
IMM-2802-06
AND BETWEEN:
SHREE
KUMAR RAI
Applicant
and
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR ORDER AND ORDER
1. Introduction
[1]
The Applicant seeks judicial review of his negative Pre-Removal Risk
Assessment (PRRA) decision dated April 25, 2006, (IMM-2801-06) and his negative
humanitarian and compassionate (H&C) decision dated May 15, 2006,
(IMM-2802-06). Both decisions were made by the same Immigration Officer.
2. Facts
[2]
The Applicant was born on June 4, 1963, in Nepal and is a Nepalese citizen.
[3]
He joined the All Nepal National Free Student Union in 1981. He alleges
that, due to his involvement with this group, he was arrested and detained for
three months in 1985.
[4]
In 1991, the Applicant claims he joined the United People’s Front and
was arrested during a demonstration in 1993. He was detained for 10 days during
which time he was beaten and tortured. He claims that his friend, who was
detained with him, died during the detention. He also claims that he was
released only after his family paid a bribe to the police.
[5]
The Applicant maintains that in 1995 he was again arrested by the police
and accused of smuggling weapons into Nepal. He was tortured during his
detention and upon his release was warned to cease all political activities. Again
his release was secured after payment of a bribe.
[6]
In February 1996, the Applicant claims that the police raided his house,
and when they did not find him at home, arrested and detained his father
instead, who subsequently died as a result of injuries sustained during his
detention.
[7]
The Applicant then moved to Katmandu in order to hide but his residence
there was also raided by the police.
[8]
After a two-day transit through Russia, the Applicant arrived in Canada
on June 24, 1996, and claimed refugee protection on July 23, 1996.
[9]
On March 29, 2000, an IRB decision excluded the Applicant from refugee
protection on the basis of his membership in the UPF, which was found to be a
political group involved in “terrorist activities”, in contravention of Article
1F(a) of the United Nations Convention Relating to the Status of
Refugees (the 2000 decision). The Applicant sought judicial review of this
decision.
[10]
On July 12, 2001, the Federal Court allowed the Applicant’s application
for judicial review of the 2000 decision and quashed the IRB’s decision after
finding that the Tribunal erred in determining that mere membership in the UPF
is sufficient to justify the application of Article 1F(a). The matter
was returned for reconsideration before a differently constituted panel of the
IRB with instructions to consider inclusion as well.
[11]
On November 9, 2004, the IRB, upon reconsideration of the Applicant’s
claim, decided the application on the basis of inclusion and rejected the
Applicant’s claim for refugee protection because it found the Applicant not credible
as to the incidents which would place him at risk, namely his membership in the
UPF (the 2004 decision).
[12]
On November 2, 2005, the Applicant submitted a Request for Exemption
from Immigrant Visa Requirements on humanitarian and compassionate grounds
(H&C). On March 24, 2006, the Applicant submitted a Pre-Removal Risk
Assessment application (PRRA) and filed written submissions in support thereof
on April 5, 2006. Both applications were rejected.
[13]
The Applicant’s PRRA application was rejected on April 25, 2006, and on May
16, 2006, during an interview with an immigration officer, he was informed that
his H&C application had been refused as well.
[14]
On May 26, 2006, the Applicant filed two applications for leave and for
judicial review seeking judicial review of both the PRRA and the H&C
decisions. These are the applications dealt with in these reasons.
[15]
On June 12, 2006, the Applicant was granted a stay of removal by the
Federal Court pending final disposition of the underlying application for
judicial review of the H&C decision.
3. Issues
[15]
The following issues are raised by the Applicant:
A. Did the PRRA Officer err in assessing the risks to be faced by
the Applicant should he be returned to Nepal?
B. Do the circumstances of this case give rise to a reasonable
apprehension of bias on behalf of the PRRA Officer?
C. Did the PRRA Officer err by applying an inappropriate test in
the H&C decision?
D. Did the PRRA Officer breach the principles of procedural
fairness by consulting extrinsic sources of evidence on the country conditions
in Nepal in assessing both the H&C and PRRA claims without first providing
the Applicant an opportunity to respond?
4. Analysis
[16]
The reasons below will be applicable to both decisions under review
unless otherwise stated.
A. Did
the PRRA Officer err in assessing the risks to be faced by the Applicant should
he be returned to Nepal?
[17]
The standard of review applicable for different aspects of a PRRA
Officer was comprehensively examined in Kim v. Canada
(Minister of Citizenship and Immigration, 2005 FC 437, [2005] F.C.J. No.
540 (QL). After conducting a pragmatic and functional analysis as mandated by
the Supreme Court in Law Society of New Brunswick v. Ryan, [2003]
1 S.C.R. 247; Dr. Q v. College of Physicians and Surgeons of British
Columbia, [2003] 1 S.C.R. 226, Mr. Justice Richard Mosley concluded as
follows at paragraph 19:
…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, reasonableness simpliciter, and for questions of law,
correctness….
[18]
The jurisprudence of this Court has also established that credibility
findings made by a PRRA Officer are reviewable on a standard of patent
unreasonableness. See Tekie v. Canada (Minister of Citizenship
and Immigration) 2005 FC 27. Further, Mr. Justice Martineau in Figurado
v. Canada, 2005 FC 347, determined that the applicable standard of review
when a PRRA Officer’s decision is considered “globally and as a whole” is
reasonableness simpliciter.
[19]
I am in agreement with the analysis and reasoning of my colleagues in
the above-cited cases and, consequently, accept their conclusions in respect to
the applicable standard of review.
[20]
The first issue in this instance is more precisely framed as whether the
PRRA Officer failed to have regard to materials before it, namely the
credibility findings made by the IRB in its 2000 decision.
[21]
The Applicant argues that the Officer reached an unreasonable conclusion
on risk by accepting that the Applicant was not credible in respect to his
claim of involvement as a member of the UPF as determined by the IRB in the
2004 decision. The Applicant argues that the Officer failed to consider the
2000 decision of the IRB wherein the IRB held that the Applicant had
“intentionally, willingly, and knowingly participated in the UPF” an
organization that it found lent itself to terrorist activities. As a result, in
the 2000 decision, the IRB determined that the Applicant was excluded by
operation of Article 1F(a) of the United Nations Convention Relating to the
Status of Refugees.
[22]
The Applicant does not take issue with the Officer’s consideration of
the credibility findings of the IRB made in the 2004 decision. He alleges,
however, that the Officer erred in failing to consider the contrary findings
made by the IRB in the 2000 decision. I disagree. The Officer did not err in relying
on the credibility findings of the IRB made in its last decision. The 2000
decision had been quashed by this Court with direction that the matter be
returned to the IRB for reconsideration before a differently constituted panel.
The Court also suggested that the issue of inclusion be specifically dealt with
at the new hearing. As a result the Applicant’s claim was heard de novo.
Since the first decision was quashed, the subsequent decision of the IRB is
determinative of the Applicant’s refugee claim. In that decision, he was found
not to be credible in respect to his association with the UPF. It was open to
the Officer to consider the 2004 decision of the IRB regarding the Applicant’s
credibility in making its decision. The Officer committed no reviewable error
by failing to consider the IRB’s earlier credibility finding made in the 2000
decision, which had been quashed by this Court and is consequently a nullity.
B. Do
the circumstances of this case give rise to a reasonable apprehension of bias
on behalf of the PRRA Officer?
[23]
This issue is raised only in respect to the H&C application. The
first allegation regarding bias concerns the Minister. The Applicant argues
that the Minister has taken contrary positions concerning the Applicant’s
membership in the UPF. During the first hearing before the IRB the Minister
adopted the position that the Applicant was a member of the UPF and should
therefore be excluded from refugee protection. However, on April 25, 2006, the
PRRA Officer, the Minister’s delegate concluded that the Applicant was not a
member of the UPF. The Applicant argues that this finding was then “copied and
pasted” into the Minister’s delegate’s determination of the H&C decision.
The Applicant faults the Minister for failing to explain his change of position
arguing that when the Minister adopts one position as a party before an
independent tribunal and then through his delegate the PRRA Officer, concludes
differently without explanation, as here, gives rise to a reasonable
apprehension of bias.
[24]
I am essentially in agreement with the Respondent’s argument on this
point. The role of the Minister’s representative before the IRB and the PRRA
Officer are distinct with different powers and obligations under the IRPA. In
one case, the Minister’s representative acts as a party before the IRB whereas,
in the other case, the PRRA Officer is a decision-maker whose role is to assess
evidence and decide whether to grant or not grant protection to an applicant.
The proceedings are different and it should come as no surprise that an
independent decision-maker may come to a different conclusion than the position
adopted by the Minister’s representative on any given point. The roles are
simply not related, nor should they be. It follows that there is no obligation
requiring the Minister to explain why his representative before the IRB adopted
a different position on a question in issue, than the conclusion ultimately
arrived at by a PRRA Officer in a pre-removal risk assessment. There is no
merit to the Applicant’s argument. I am of the opinion that the above described
circumstances do not raise a reasonable apprehension of bias.
[25]
The Applicant also contends that a reasonable apprehension of bias is
raised by reason of the following circumstances:
(1) the
same PRRA Officer refused both the PRRA and H&C applications; and
(2) a substantially similar set of reasons was issued for both the
PRRA and H&C decisions.
[26]
In my view both arguments must fail. The issue of the same officer
deciding both applications was dealt with by Justice Johanne Gauthier in Monemi
v. Canada (Solicitor General), 2004 FC 1648. In her reasons
for decision she wrote at paragraph 36:
The Court cannot agree that
Parliament clearly intended that these applications would be decided by
different decision-makers. In fact, sections 25(1) and 112 of IRPA state
clearly that these applications would both be decided by the Minister. Thus,
strictly speaking, IRPA provides that a decision will be made by the same
decision-maker. Obviously, the Minister is entitled to delegate his authority
to make such decisions and it was not disputed that the PRRA officer had the
appropriate delegated authority to review both applications.
[27]
For such a claim to succeed there must be proof of bias. See Haddad
v. Canada (Minister of Citizenship and Immigration), 2003 FCT
405, [2003] F.C.J. No. 579 (QL), where Justice Paul Rouleau wrote at paragraphs
7 and 8:
The applicant argues that there
is an apprehension of bias because the same officer processed the request for a
visa exemption for humanitarian considerations and the PRRA application.
This argument cannot be advanced
without proof. Moreover, this Court has held that a decision-maker who assesses
risks twice in a particular case does not by this fact alone demonstrate bias….
I agree with the learned judge’s
analysis. There is no proof of bias in respect of the PRRA Officer in the
instant case.
[28]
The Applicant advances as a further allegation of bias that a
substantially similar set of reasons was issued for the refusal of the PRRA as
for the refusal of the H&C application. On this question I agree with the
position expressed by Justice Gauther in Monemi. At paragraphs 40 and 41
she wrote:
Obviously, there will be cases
where the two applications will involve a similar if not identical factual or
evidentiary basis….
In the absence of specific
evidence of bias or conflict of interest, this single evaluation of the factual
issues and the evidence does not raise a reasonable apprehension of bias.
[29]
I agree that both the PRRA and the H&C decisions read similarly
insofar as the analysis of the risk to the Applicant is concerned. However, the
H&C decision also includes consideration of further evidence, such as
letters, a clinical report and evidence in respect to the Applicant’s
connection to Canada. These factors were not examined in the PRRA decision. From
this perspective, the decisions are different.
[30]
I find that the Applicant has not established that there is a reasonable
apprehension of bias either because the same officer refused both decisions or
because the reasons read similarly in respect of risks faced by the Applicant.
The Applicant produced no evidence of bias or conflict of interest in respect
of the PRRA Officer to support his arguments.
C. Did
the PRRA Officer err by applying an inappropriate test in the H&C decision?
[31]
The application of the proper legal test by a PRRA Officer is a question
of law, and the application of that test to a specific set of facts is a
question of mixed fact and law. The Supreme Court in Mugesera v. Canada
(Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, found that
under section 18.1 of the Federal Courts Act questions of law are
reviewable on a standard of correctness.
[32]
In respect to the discretionary H&C decision of an immigration
officer, Madam Justice Claire l’Heureux-Dubé in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 62,
after conducting a pragmatic and functional analysis, determined that the
standard of review for an H&C decision of a ministerial delegate is
reasonableness simpliciter:
I conclude that considerable
deference should be accorded to immigration officers exercising the powers
conferred by the legislation, given the fact-specific nature of the inquiry,
its role within the statutory scheme as an exception, the fact that the
decision-maker is the Minister, and the considerable discretion evidenced by
the statutory language. Yet the absence of a privative clause, the explicit
contemplation of judicial review by the Federal Court -- Trial Division and the
Federal Court of Appeal in certain circumstances, and the individual rather
than polycentric nature of the decision, also suggest that the standard should
not be as deferential as "patent unreasonableness". I conclude,
weighing all these factors, that the appropriate standard of review is
reasonableness simpliciter.
[33]
I adopt the reasoning and conclusions in the above-cited jurisprudence
in respect to the applicable standard of review and find that the applicable
standard here with respect to the choice of the appropriate legal test in an
H&C application is correctness, and the standard of review for the decision
of a ministerial delegate with respect to an H&C decision is reasonableness
simpliciter.
[34]
The applicant submits that the tests for the PRRA and the H&C
application are different. An officer determining a PRRA must ask whether the
applicant has established that he or she would face a personalized risk to his
or her life or physical well-being, while an officer assessing an H&C
application must determine whether the applicant would face an unusual,
undeserved or disproportionate hardship if removed to his or her country of
origin. The Applicant also submits that the threshold for an H&C
application is lower than that for the PRRA, and that more discretion is afforded
the officer in the former application. The Applicant argues that the Officer
was both unable to keep an open mind with respect to the H&C application,
because he also decided the PRRA application, and unable to appreciate the
distinction between the different tests to be applied. As a consequence, the
Applicant argues that the PRRA Officer applied the wrong legal test in deciding
the H&C application.
[35]
The PRRA Officer in his reasons, referred extensively to the 2004
decision, and accepted the evidentiary conclusions of that decision, namely
that the Applicant was not credible. It is generally accepted that the PRRA
Officer may be guided by the findings of the IRB because the IRB has the
benefit of an oral hearing, and is thus better placed than the Officer to
assess credibility. Here the Officer also considered, in his H&C analysis,
other evidence that was not considered in the PRRA. In particular, he found
that letters from the Applicant’s wife and a friend were insufficient to
support the Applicant’s allegations. The conclusion in the clinical report was
found by the Officer to be based on the Applicant’s declarations to the author.
The Officer therefore ascribed little weight thereto. The other documents were
found to be too general to support the personal risks the Applicant invokes. In
assessing the Applicant’s establishment in Canada and his personal situation
abroad, the PRRA Officer considered the following factors, namely: his age and
status, his employment history here and in Nepal, his familial connections in
Nepal, and letters from an employer and business partners.
[36]
The Applicant’s evidence of risk was not found credible by the IRB, and
this position was adopted by the PRRA Officer, which he was entitled to do.
Other evidence submitted was found not to corroborate the Applicant’s alleged
personal risks. The Officer concluded “…that the Applicant’s circumstances are
not of such a nature that he would face unusual, under served, or
disproportionate hardship if required to submit his permanent residence application
from outside Canada.” In so doing, the Officer articulated the proper test to
be applied in assessing the Applicant’s H&C application.
[37]
Considering the Officer’s H&C decision and the reasons in support
thereof, I find that the Officer applied the appropriate test and committed no
reviewable error in assessing the H&C application. I also find that the
Officer’s conclusion on the H&C application was reasonably open to him on
the evidence.
D. Did
the PRRA Officer breach the principles of procedural fairness by consulting
extrinsic sources of evidence on the country conditions in Nepal
in assessing both the H&C and PRRA claims without first providing the
Applicant an opportunity to respond?
[38]
This issue arises in the context of the H&C application. The Applicant
submits that the PRRA Officer consulted two Internet news articles, namely BBC
news reports from April 2006 which reported positive events that occurred in Nepal
on April 24 and 25, 2006, events which were referred to by the Officer. In his
reasons the PRRA Officer observed, “Fortunately, on 24 April 2006, in a bid to stabilize the country, the king restored parliament and invited opposition parties
to designate a prime minister, which they did on 25 April 2006.” The reports
are dated after the Applicant’s latest submissions on his PRRA application
which were filed with the Officer on April 5, 2006. The reports were not
disclosed to the claimant, nor was he given an opportunity to respond. The
Applicant argues that this failure to disclose constitutes a violation of his
right to procedural fairness.
[39]
The Respondent counters that the sources provide only general country
information, and that these were not included in the core of the decision,
which was based on the applicant being found not credible by the IRB and the
failure of the Applicant to produce any further evidence to refute this
finding.
[40]
The test is provided in Mancia v. Canada (Minister of
Citizenship and Immigration) (C.A.), [1998] 3 F.C. 461, where
Justice Robert Décary, writing for a unanimous court, summarizes his findings
as follows in paragraph 27:
(a) with respect to documents
relied upon from public sources in relation to general country conditions which
were available and accessible at Documentation Centres at the time submissions
were made by an applicant, fairness does not require the post claims
determination officer to disclose them in advance of determining the matter;
(b) with respect to documents
relied upon from public sources in relation to general country conditions which
became available and accessible after the filing of an applicant's submissions,
fairness requires disclosure by the post claims determination officer where
they are novel and significant and where they evidence changes in the general
country conditions that may affect the decision.
[41]
The second part of the test in Mancia finds application here. The
public source documents must be disclosed where they are novel and significant
and where they evidence changes in the general country conditions that may
affect the decision. I agree that the documents in question are novel, in that
they are dated after the submissions by the Applicant to the PRRA Officer.
While the reports relate circumstances in respect to the internal stability of Nepal
they do not, in my view, evidence changes in country conditions that may affect
the decision. Given the PRRA Officer’s earlier findings that the Applicant was
not politically active in Nepal and not credible in respect to his association
with the UPF, which I determined to be reasonably open to the Officer, I am of
the opinion that his observations regarding the impugned evidence are
gratuitous and not material to the outcome of the decision. While it would have
been preferable for the PRRA Officer to disclose these reports to the Applicant
before rendering his decision, in my opinion, the changes in country conditions
evidenced in the public source documents not disclosed to the Applicant, would
not affect the decision. I am satisfied that the failure to disclose the
extrinsic reports, in the circumstances, does not lead to a breach of the Applicant’s
right to procedural fairness.
5. Conclusion
[42]
The PRRA Officer committed no reviewable error in rendering the PRAA and
the H&C decisions. For the above reasons both applications for judicial
review will be dismissed.
[43]
The parties have had the opportunity to raise a serious
question of general importance as contemplated by paragraph 74(d) of the
IRPA and have not done so. I am satisfied that no serious question of general
importance arises on this record. I do not propose to certify a question.
ORDER
THIS COURT ORDERS
that:
1. The application for
judicial review of the Pre-Removal Risk Assessment Officer dated April 25,
2006, is dismissed.
2. The application for judicial
review of the Pre-Removal Risk Assessment Officer dated May 15, 2006, is
dismissed.
3. No serious
question of general importance is certified.
“Edmond
P. Blanchard”
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