Date: 20110211
Docket: IMM-1610-10
Citation: 2011 FC 172
Ottawa,
Ontario, February 11,
2011
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
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INDRADEI PARRASRAM DHRUMU
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision, dated February 16, 2010,
of a Pre-Removal Risk Assessment (PRRA) officer, denying the applicant’s
request for protection under sections 96 and 97 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act).
FACTS
Background
[2]
The
applicant, a 49 year-old citizen of Guyana, arrived in Canada on December 5,
2003 and made a claim for refugee protection based on persecution on the ground
of race, gender and political opinion, because she was Indo-Guyanese, a woman
and a member of the ruling People Progressive Party (PPP).
[3]
The
refugee claim was rejected in a decision dated January 18, 2005 by the Refugee
Protection Division of the Immigration and Refugee Board (the Board). The Board
held that the determinative issue was lack of credibility. The Board provided a
detailed examination of discrepancies and omissions in the applicant’s
evidence.
[4]
The
applicant submitted a PRRA application which was denied on February 16, 2010,
and is the subject of this judicial review application.
Decision under Review
[5]
The
PRRA officer denied the PRRA application because the officer found that the
applicant did not face more than a mere possibility of persecution under
section 96 nor was it more likely than not that the applicant faced a risk of
torture, or a risk to her life or of cruel and unusual treatment or punishment
under section 97 of the Act.
[6]
The
officer considered the applicant’s evidence that had not been submitted in the
refugee claim, and conducted independent research into country conditions in Guyana as they
related to the applicant.
[7]
The
officer considered whether the evidence submitted by the applicant was “new”
evidence within the meaning of section 113 of the Act. In particular, the
officer considered the following evidence that the applicant had submitted:
1.
Documentary
evidence of risks of criminal attacks faced by the applicant on account of her
status as a Guyanese returning from abroad and as a woman. Regarding this
evidence, the officer concluded as follows:
Counsel has submitted that there is
evidence that criminal gangs target Guyanese who return from abroad and that
violence against women is endemic across Guyana and therefore the applicant is likely to
be victimized by criminal gangs, in addition to the fact that she would be
alone in Guyana with no family support or
protection. However, I do not consider this to be new evidence as it was
reasonably available for consideration by the Board. I do not find it to be
evidence of new risk developments which are personal to the applicant and which
have arisen since the date of the Board’s decision.
2.
Affidavits
from two friends of the applicant. The first of these affidavits was from a long-time
acquaintance of the applicant who stated that she had volunteered with the
applicant campaigning during Guyana’s 1992 general elections. She confirmed
the widespread attacks made against people based on race, and stated that the
applicant received constant threats to her life and on several occasions took
refuge in the affiant’s home before finally fleeing Guyana. The affiant
states that she is sure that the applicant’s life would be in danger in Guyana. The second
affidavit was from a long-time friend of the applicant. The affiant attested
that in 2003 on account of her membership in the PPP the applicant faced
physical abuse to her person and attacks on her house that caused her to leave.
This affiant, too, stated that the applicant’s life would be in danger if she
returned to her home in Guyana. The PRRA officer found that these
affidavits were also not new evidence within the definition of section 113 of
the Act:
Counsel has also submitted affidavits
from the applicant and two friends that do post-date the decision of the Board,
however, I find that they were reasonably available for the applicant’s refugee
hearing. I do not find this constitutes new evidence as they refer only to the
applicant’s circumstances which were considered by the Board. No new risk
developments are contained in these affidavits. Moreover, no explanation has
been provided by the applicant or her counsel as to why these affidavits could
not have been presented to the Board for its consideration. I note that the
deponents (a close acquaintance and a friend) state that they have been aware
of the circumstances faced by the applicant and the information contained is
essentially a repetition of the same information that the applicant provided to
the RPD. The applicant does not explain why these affidavits could not have
been provided by the these deponents for the applicant’s hearing.
3.
113
pages of additional documentation regarding country conditions in Guyana. The officer
stated that this generalized information was considered with regard to
assessing current country conditions, but was not evidence of new risk
developments or of risks faced by the applicant that are personal to the
applicant and not faced by the general population. The officer concluded:
I do not consider this to be new evidence
and none of it rebuts the significant findings of the Board.
[8]
The
officer found that the applicant’s submissions also failed to reveal any risk developments
faced by the applicant that had not been addressed by the Board. The officer
concluded as follows:
In regards to the remaining submissions
made by counsel, it appears to me that most of the arguments made by counsel
are really addressed to the correctness of the RPD decision. Those arguments
are misplaced as they could and should have been made in a challenge to the RPD
decision. The Applicant cannot, having failed to bring an application for
judicial review of that decision, bring what can be described as a collateral
attack on the RPD decision in the context of the PRRA decision.
[9]
The
officer reviewed its own research into country conditions in Guyana. The officer
found that Guyana is a
functioning democracy in which civil authorities generally maintain effective
control of the security forces and in which the government is capable of
protecting its citizens. The officer recognized, however, that the police
forces face significant difficulties, including poor training, poor equipment,
budgetary constrains, corruption, staff shortages, and lack of public confidence
and cooperation. Citing Canada (Attorney General) v.
Ward,
(1992) 2 S.C.R. 689, the officer found that the applicant had failed to rebut
the presumption of state protection that operated in the case.
[10]
The
officer quoted Kaybaki v. Canada (Minister of
Citizenship and Immigration), 2004 FC 32, in which I stated, at
paragraph 11, that “The PRRA application cannot be allowed to become a second
refugee hearing. The PRRA process is to assess new risk developments between
the hearing and the removal date.”
[11]
The
officer concluded as follows:
In the case at hand, I have insufficient
objective evidence before me that the applicant would be denied police
protection for any reason should she require it. The applicant in her PRRA
submissions has failed to provide, by way of evidence, clear and convincing
proof of the state’s inability to protect. She has failed to rebut the
presumption of state protection. I acknowledge that there are tensions amongst
the Indo and Afro-Guyanese communities affecting social and political life and
find however, that these are risks faced by the entire population. I do not
find that the applicant has provided sufficient objective evidence that she, by
virtue of her personal circumstances, faces risks greater than other citizens
of Guyana nor has she provided sufficient objective evidence that the
government would be unable to or unwilling to offer her protection should she
require it. Consequently, I am not persuaded to arrive at a different
conclusion from that of the Immigration and Refugee Board.
LEGISLATION
[12]
Section 96
of the Act, grants protection to Convention refugees:
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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
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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.
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[13]
Section 97
of the Act grants protection to persons whose removal would subject them
personally to a danger of torture, or to a risk to life, or to a risk of cruel
and unusual treatment or punishment:
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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.
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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.
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[14]
Section
113(a) of the Act allows a PRRA applicant to present only evidence that arose
after the rejection of the refugee claim:
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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;
. . .
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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;
. .
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[15]
Subsection
161(2) of the Immigration and Refugee Protection Regulations
S.O.R./2002-227, requires the applicant to identify new evidence:
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. . . (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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. . . (2)
Il désigne, dans ses observations écrites, les éléments de preuve qui
satisfont aux exigences prévues à l'alinéa 113 a) de la Loi et indique dans
quelle mesure ils s'appliquent dans son cas.
. . .
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ISSUES
[16]
The
applicant raises the following two issues:
1. Did the
officer fail to assess new, material, and relevant evidence of personal risk to
the applicant?; and
2. Did the
officer err in its legal interpretation of what constitutes new evidence?
STANDARD OF REVIEW
[17]
In Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Supreme Court of
Canada held at paragraph 62 that the first step in conducting a standard of
review analysis is to “ascertain whether the jurisprudence has already
determined in a satisfactory manner the degree of (deference) to be accorded with
regard to a particular category of question”: see also Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, per Justice
Binnie at paragraph 53.
[18]
The
jurisprudence is clear that factual determinations made by a PRRA officer are
to be reviewed on a standard of reasonableness: see, for example, my decision
in Girmaeyesus v. Canada (Citizenship and
Immigration), 2010 FC 53, at paragraph 23.
[19]
In
reviewing the Board's decision using a standard of reasonableness, the Court
will consider “the existence of justification, transparency and intelligibility
within the decision-making process” and “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir, supra, at paragraph 47; Khosa, supra,
at paragraph 59.
[20]
The
question of the proper interpretation of the requirement for new evidence in
section 113 of the Act is a question of law to be determined on a standard of
correctness: see, for example, my decision in Singh v. Canada (Citizenship
and Immigration), 2009 FC 774, at paragraph 13.
ANALYSIS
Issue 1: Did the officer fail to
assess new, material, and relevant evidence of personal risk faced by the
applicant?
[21]
The
applicant submits that the officer failed to assess the new evidence provided
by the applicant. I disagree. As detailed above, the officer enumerated and
evaluated all of the evidence that the applicant had submitted. The applicant
is not able to identify any evidence that she submitted to the PRRA officer
that was not explicitly considered in the officer’s reasons.
Issue 2: Did the
officer err in its legal interpretation of what constitutes new evidence?
[22]
The
applicant submits that the PRRA officer erred in its legal interpretation of
what constitutes new evidence under section 113 of the Act. The applicant,
relying upon Kirindage De Silva v. Canada (Citizenship
and Immigration), 2007 FC 841, and Raza v. Canada (Citizenship and
Immigration), 2007 FCA 385, submits that new evidence that clarifies or further
validates a feared risk may qualify as new evidence.
[23]
In
Raza, the Federal Court of Appeal considered the meaning of section
113(a) of the Act. At paragraph 13 of that decision, the Court states that the
criterion of “newness” relates to three factors: proof the current state of
affairs or an event that occurred subsequent to the refugee hearing in the
country of removal; proof of a fact that has only become known to the applicant
subsequent to the refugee hearing; or contradiction of a finding of fact made
at the refugee hearing.
[24]
In
De Silva, Deputy Justice Teitelbaum stated the error committed by the
PRRA officer in that case at paragraph 21:
The Officer excluded these documents
solely based on the fact that they related to the allegations raised in front
of the Refugee Board. This is not the test for new evidence set out in
subsection 113(a).
[25]
In
this case, the officer excluded the evidence not because it related to risk
allegations made before the Board, but rather because it did not demonstrate
any new developments in any risks identified before the Board, any new risks
faced by the applicant, or any new facts that had come to the applicant’s
attention subsequent to her hearing before the Board. In addition, the Board
concluded that none of the evidence successfully rebutted the Board’s findings
of fact.
[26]
The
applicant relies on De Silva per Justice Teitelbaum for when new
evidence may be considered by the PRRA officer under section 113 of the Act. He
states at paragraph 17:
… this does not mean that new evidence
relating to old risks need not be considered … The PRRA officer should first
consider whether a document falls within one of the three prongs of subsection
113(a) …
The
three prongs are:
1.
if the new
evidence arose after the rejection by the Board; or
2.
was not
reasonably available (at the time of the Board hearing); or
3.
could not
reasonably have been expected to have been presented at the time of the Board
hearing.
[27]
In
the application at bar, the new evidence presented to the PRRA officer was
reasonably available at the time of the Board hearing and could have been
presented to the Board. The fact that the new evidence corroborates events,
contradicts findings of the Board, and clarifies the evidence before the Board
does not make it new evidence under section 113 of the Act. If it did, the
applicant could split her case, and present evidence at the PRRA stage which
could have been presented at the Board stage. This is exactly the wrong which
section 113 of the Act prohibits, and which the Federal Court of Appeal
confirms in Raza, supra.
[28]
The
applicant also relies on Komahe v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1521 at paragraph 28:
… there was nothing he (the applicant)
could have done before the Board decision to make the documents available to
the Board.
In the case at bar, all of the applicant’s
evidence before the PRRA officer could have been marshalled before the Board
hearing.
[29]
It
is clear to the Court, therefore, that the PRRA officer in this case properly
interpreted the requirements of section 113(a) of the Act with regard to the
evidence submitted by the applicant on this application.
[30]
Accordingly,
there is no basis upon which this Court can interfere with the PRRA officer’s
findings.
CERTIFIED QUESTION
[31]
Both
parties advised the Court that this case does not raise a serious question of
general importance which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
This application for judicial review is dismissed.
“Michael
A. Kelen”
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