Date: 20070216
Docket: IMM-1737-06
Citation: 2007 FC 176
Ottawa, Ontario, February 16, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
KETURAH
LAVERNE CUPID
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The
Applicant, Ms. Keturah Laverne Cupid, claims that she was a victim of domestic
violence in her home country of St. Vincent and the Grenadines (St.
Vincent). Her claim for refugee protection was denied in a decision of the
Refugee Protection Division of the Immigration and Refugee Board (RPD) dated
April 2, 2003. While the RPD did not disbelieve her story of domestic violence,
the RPD concluded that there was adequate state protection and that she had an
internal flight alternative in Kingstown. The Applicant did not
seek leave for judicial review of the Board’s decision. By application dated
February 13, 2005, the Applicant applied for protection under the pre-removal
risk assessment (PRRA) process. In a decision dated February 22, 2006, a PRRA
Officer denied her application. The Applicant seeks judicial review of this
decision.
Issues
[2] The issues,
as pursued by the Applicant in submissions before me, are as follows:
- Did the
PRRA Officer err by providing inadequate reasons?
- Was the
decision perverse, capricious or made without regard to the evidence?
- Did the
PRRA Officer err in her conclusions on state protection by applying the
wrong test or making a perverse finding?
[3] For the
reasons that follow, I am not persuaded that the PRRA Officer’s decision
warrants intervention by this Court.
Analysis
What is the
context for a PRRA decision?
[4] The starting
point must be to consider the purpose of the PRRA process. The purpose of
requiring a PRRA analysis has been described as “to offer safe haven to persons
at risk of torture or cruel and unusual punishment, as well as upholding
Canada’s respect for human rights and fundamental freedom of all human beings” (Kim
v. Canada (Minister of Citizenship and Immigration), 2005 FC 437, 272 F.T.R.
62, [2005] F.C.J. No. 540 at para. 13 (F.C.) (QL). However, in fulfilling this
purpose, the provisions of the Immigration and Refugee Protection Act as
well as jurisprudence of this Court make it clear that the PRRA process is not
to become another refugee determination process (see, for example, Quiroga
v. Canada (Minister of Citizenship and Immigration), 2006 FC 1306, 153
A.C.W.S. (3d) 192, [2006] F.C.J. No. 1640 (F.C.) (QL)). Canada’s
obligations vis-à-vis a claimant are fulfilled, in the first instance and in
most cases, by the RPD hearing and decision. However, recognizing that there
may be a “gap” between the time that an RPD decision is issued and the actual
date of removal of a claimant (or that some persons will not have had access to
a refugee determination), Canada has taken steps to ensure that a claimant is
provided with a process whereby changed conditions and circumstances may be
assessed. It follows that, if country conditions or the personal situation of
the claimant have not changed since the date of the RPD decision, a finding of
the RPD on the issue of state protection – as a final, binding decision of a
quasi-judicial process – should continue to apply to the claimant. In other
words, a claimant who has been rejected as a refugee claimant bears the onus of
demonstrating that country conditions or personal circumstances have changed
since the RPD decision such that the claimant, who was held not to be at risk
by the RPD, is now at risk. If the applicant for a PRRA fails to meet that burden,
the PRRA application will (and should) fail.
[5] In
this context, there is no dispute that the PRRA Officer must comply with the
rules of natural justice and must not base her decision on an erroneous finding
of fact that she made in a perverse or capricious manner or without regard for
the material before her (Federal Courts Act, R.S.C. 1985, c. F-7, s.
18.1(4)(d)).
Did the PRRA Officer err
by failing to provide adequate reasons?
[6] The
first argument of the Applicant is that the PRRA Officer erred by failing to
provide adequate reasons for her decision. Since this is an allegation that the
PRRA Officer failed to comply with the rules of procedural fairness, the
question for judicial review is not the subject of a standard of review. Either
the PRRA Officer provided adequate reasons or she did not.
[7] The
Applicant relies on Via Rail Canada Inc. v. National Transportation Agency
(C.A.), 193 D.L.R. (4th) 357, [2001] 2 F.C. 25 at para. 22
(F.C.A.), for the principle that the obligation to provide adequate reasons is
not satisfied by merely reciting the submissions and evidence of the parties
and stating a conclusion. The Applicant submits that the PRRA officer’s reasons
merely state conclusions without any analysis. I do not agree.
[8] The
PRRA Officer’s decision was not lengthy and, as admitted by the Respondent,
could have been written more clearly. The decision of the PRRA Officer is brief
but must be reviewed in the context of (a) her role as a PRRA Officer; and (b)
the submissions made to her by the Applicant. I have already discussed the
purpose of a PRRA process. In this case, the PRRA Officer was required to
assess the information submitted by the Applicant to determine whether she now
was facing a risk that was not identified and considered by the RPD.
[9] One
of the key paragraphs in the decision is the following:
The applicant applied for a Pre-Removal
Risk Assessment on January 26, 2006. Submissions were received from her and her
counsel on February 15, 2006. The information provided to me has been read and
considered in this assessment of risk. These submissions include evidence from
both before and since the determination of the applicant’s refugee claim. The
applicant has provided her own affidavit dated February 9, 2006 attesting to the
details of the abuse she suffered from her family members and her ex-common-law
spouse. As with the Board, as indicated in their decision, the veracity of
these statements from the applicant is not in doubt. This can also be said in
response to the February 1, 2006 letter of support from the applicant’s
long-time friend that also attests to the applicant’s abuse. However, these
documents still do not negate the applicant’s necessity to seek state
protection as indicated in the Board’s decision at the time of the applicant’s
refugee claim. The additional documentary evidence provided by the applicant
and counsel serves to provide updated background information on country
conditions in St.
Vincent with
regard to violence against women. However, this information does not indicate
to me that conditions have worsened since the applicant’s refugee claim was
determined in April 2003. Finally, the applicant and counsel have provided a
letter from a Community Health Centre indicating that the applicant has been assessed
by a therapist with regard to the abuse she has suffered in the past. This
letter indicates that the applicant has “developed healthy ways of managing her
fears, anxiety and depression.” In my opinion this letter is insufficient
evidence in support of the applicant’s stated risk in returning to her home
country. In general, the evidence provided does not persuade me to reach a
determination that differs from the Board’s in April 2003 as adequate state
protection continues to be available to the applicant in her home country.
[10] From
my reading of this paragraph in its totality (rather than extracting individual
phrases and sentences), the reasoning of the PRRA Officer is adequately (albeit
briefly) set out. In brief, the paragraph: (a) describes the Officer’s process
of review of the submissions; (b) explains why the evidence either did not
differ from that which was before the Board or did not indicate changed country
conditions; and (c) concludes that the Applicant had not presented sufficient evidence
to persuade the PRRA Officer “to reach a determination that differs from the
Board’s in April 2003 as adequate state protection continues to be available to
the applicant in her home country”. In my view, the reasons are adequate to
respond to the question of whether country conditions had changed.
[11] The
Applicant relies on the decision of Justice Layden-Stevenson in Dervishi v. Canada (Minister of
Citizenship and Immigration), 2006 FC 354, 147 A.C.W.S. (3d) 280,
[2006] F.C.J. No. 423 (F.C.) (QL). The facts before the PRRA Officer in that
case were not, contrary to the Applicant’s submissions, “on all fours” with the
application before me. In that case, the Applicants raised completely new
grounds of risk than had been considered by the RPD. Thus, the PRRA Officer was
the first decision maker to assess the risk on these grounds and was obliged to
respond to more than merely the question of whether the situation had changed
since the RPD decision. In contrast, the Applicant in this case made the same
claims and, for the most part, the same submissions that were considered by the
RPD.
[12] In
conclusion on this issue of adequacy of reasons, I refer to Ozdemir v. Canada (Minister of
Citizenship and Immigration), 2001 FCA 331, 110 A.C.W.S. (3d) 152, [2001]
F.C.J. No. 1646 (F.C.A.), where the Court of Appeal was addressing the issue of
adequacy of reasons in the context of the predecessor to the PRRA process. In
that decision, at para. 11, Justice Evans wrote:
[I]t would be inappropriate to require
PCDO’s, as administrative officers, to give as detailed reasons for their
decisions as may be expected of an administrative tribunal that renders its
decisions after an adjudicative hearing. In our opinion, the reasons given by
the PCDO adequately explain the basis of her decision and do not support an
inference that she failed to consider all the material before her.
[13] In
the case before me, the reasons provide the basis for the PRRA Officer’s
decision. The somewhat unclear language and brevity of the reasons do not
amount to a breach of the rules of procedural fairness.
Was the decision
perverse, capricious or made without regard to the evidence?
[14] The
Applicant next argues that the decision was perverse and was made without
regard to the evidence. Specifically, the Applicant submits that the failure of
the PRRA Officer to make explicit reference to the documentary evidence that
indicates a number of serious problems with providing state protection to
victims of spousal abuse.
[15] A
finding of a PRRA Officer on country conditions is a finding of fact which has
been held to be subject to review on a standard of patent unreasonableness (see
for example, Kim v. Canada (Minister of Citizenship and Immigration),
2005 FC 437 at para. 19, 272 F.T.R. 62). Considerable deference is owed to the
PRRA Officer’s factual determination that country conditions in St. Vincent.
The Court should only intervene if the decision was perverse, capricious or
made without regard to the evidence.
[16] Once
again, I must look at the issue with regard to the role of the PRRA Officer and
the burden of the Applicant. The question for the PRRA Officer is whether the
Applicant has established that the situation has changed since the RPD rendered
its decision. First, I note that, while the documentary evidence is dated after
the RPD decision, it does not contain any reference to the situation worsening
over the “gap” period. Further, the submissions of counsel made to the PRRA
Officer do not identify any changes. Rather, counsel appears to have merely
provided arguments as to why the RPD erred in its conclusion. The PRRA Officer
was, in effect, being asked to reverse the decision of the RPD on state
protection. The evidence and submissions did not address the question of changed
conditions. In short, the Applicant did not demonstrate that, although she was
not found to be at risk as of the date of the RPD decision, she was now.
[17] Further,
the evidence referred to by the Applicant consists of passages extracted from
documents that also include evidence of positive developments and continuing
efforts (with some effectiveness) in addressing the problems of domestic
violence. In her reasons, the PRRA Officer acknowledged that violence against
women continues to be a problem. Thus, I am satisfied that she understood and
appreciated both the positive and negative evidence before her. Given that this
evidence was not personal to the Applicant, the PRRA Officer did not err by
failing to make explicit reference to every negative comment in the country
condition documentation.
[18] The
Applicant also submits that the PRRA Officer erred by failing to consider the
letter from her friend that, among other things, referred to victims of
domestic violence. It is evident that the PRRA Officer had read the letter from
the friend. It also appears that the PRRA Officer did not accord it any weight
on the issue of domestic violence. It would have been preferable for the PRRA
Officer to make explicit reference to the submissions of the friend on this issue.
However, I am not persuaded that her failure to do so is a reviewable error.
The submissions were as follows:
Crime in St. Vincent is increasing very drastically,
especially domestic crimes. Every year you hear in the news of men killing
their spouses or girlfriend because she wants to leave him. Not too long ago
right in my neighbourhood a man run down his wife and chopped her to death
right in her neighbourhood yard where she ran for help. No one is safe anymore.
[19] These
assertions by her friend are not substantiated in any way. The statement about
the woman who was run down is hearsay. We have no information on the
circumstances in which the unidentified woman was run down and killed. Quite
simply, these statements do little, if anything, to assist the Applicant. They
are of no probative value. In the circumstances, the PRRA Officer did not
commit a reviewable error by failing to refer to these submissions on domestic
violence.
Did the PRRA Officer err
in her conclusions on state protection by applying the wrong test or making a
perverse finding?
[20] The
Applicant further submits that the PRRA Officer erred by applying the wrong
test for state protection. As it is a question of law, the PRRA Officer’s
decision is reviewable on a standard of correctness (Kim, above, at
para. 19).
[21] In
my view, there is no error. In the first place, the Officer determined that
there was no evidence of changed country conditions. Thus, it is arguable that
the issue of the correct test is not directly applicable to the case before me;
the PRRA Officer was entitled to rely on the unchallenged decision of the RPD
and the test that the RPD used for assessing state protection. Had the
Applicant presented evidence that raised new risks, or new documentation that
exposed a deteriorated level of state protection, the PRRA Officer would have
had to address squarely the test for state protection.
[22] Secondly,
to the extent that the Officer carried out her own research and concluded, in
effect, that the Applicant had not rebutted the presumption of state
protection, I am satisfied that she understood and applied the correct test as
set out in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103
D.L.R. (4th) 1 and Kadenko v. Canada (Solicitor General)
(1996), 143 D.L.R. (4th) 532 (F.C.A.), 68 A.C.W.S. (3d) 334, leave
to appeal to S.C.C. refused, 25689 (May 8, 1997)).
[23] The
Applicant also alleges that the PRRA Officer erred in her reference to the
document provided by the Applicant from the police. The full paragraph in which
the comment is situated in the reasons is as follows:
In the absence of evidence to
the contrary, the state is presumed to make efforts to protect its citizenry as
demonstrated in the document provided by the applicant from the police in St.
Vincent. The availability of state protection obviates the applicant’s need for
international protection. The principle is well-established in Canadian case
law.
[24] The
document in question is a police clearance certificate issued by the
Commissioner of Police in St. Vincent. The Applicant argues
that it is perverse to conclude from this document that state protection is
available to the Applicant. I agree with the Applicant that it would be
perverse to rely on this document as proof that the state provides protection
to victims of domestic abuse. However, that was not, in my view, the use that
the PRRA Officer made of the document. When read as a whole, the paragraph is
intended to address the general notion that a state is presumed to make efforts
to protect its citizens. It is not unreasonable to conclude that a state in
which the police can and will assist its citizens by providing reliable
identity documents is making efforts to protect its citizens.
Conclusion
[25] In
summary, I am satisfied that the decision, when read as a whole, is reasonable.
The reasons are adequate for purposes of the PRRA process. The PRRA Officer was
correct in addressing her mind to the question of whether the evidence
established that the Applicant would now be exposed to risks that did not exist
at the time of the RPD decision. To the extent that she considered the adequacy
of state protection, her conclusions were not unreasonable and followed the
correct test for state protection.
[26] It
appears to me that most of the arguments made by the Applicant 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.
[27] The
application for judicial review will be dismissed. No question was proposed for
certification and, in my view, there is no question of general importance that
warrants certification.
ORDER
This Court orders that:
- The application for
judicial review is dismissed; and
- No question of
general importance is certified.
“Judith A. Snider”
____________________________
Judge
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