Date: 20070322
Docket: IMM-2515-06
Citation: 2007 FC 311
Montréal,
Quebec, March 22, 2007
Present:
The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
GHEORCHE
CALIN LUPSA
Applicant
and
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision by a Canada Border Services
Agency (CBSA) officer rejecting the applicant’s application for pre-removal
risk assessment (PRRA) on the ground that the applicant was not considered to
be a person who would be subjected to a personal risk, a risk to his life, a
risk of torture or cruel and unusual punishment under sections 96 and 97 of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) if he
were returned to Romania.
The facts
[2]
The
applicant, Gheorche Calin Lupsa, is a citizen of Romania.
[3]
The
applicant arrived in Canada in 1992 and filed a refugee claim, which
was refused in April 1993. The applicant filed an application for judicial
review of this decision; the Federal Court quashed the decision, and the matter
was sent back for reconsideration of the claim.
[4]
The
applicant was summoned for the reconsideration of his claim on June 14 and
August 21, 1996, but he did not attend the scheduled hearings. On
September 20, 1996, the Immigration and Refugee Board (IRB) concluded that he
had abandoned his claim. His refugee claim was therefore not considered.
[6]
On
October 10, 2003, the applicant was sentenced to a term of two years less a day
for offences under the Controlled Drugs and Substances Act, S.C. 1996,
c. 19. Consequently, in November 2003, an exclusion order was issued against
him. In January 2004, the applicant’s application for permanent residency was
denied on the ground, inter alia, that he was inadmissible by reason of
criminality under paragraph 36(1)(a) of the Act.
[7]
On
February 10, 2006, a CBSA officer (the PRRA officer) made a negative decision
on the applicant’s PRRA application. On March 22, 2006, a report under
subsection 44(2) of the Act and an expulsion order were issued against the
applicant.
[8]
On
May 18, 2006, the applicant submitted an application for permanent residence,
sponsored by his Canadian wife. On the same day, he filed a motion in this
Court to stay his removal scheduled for May 23, 2006.
[9]
On
May 23, 2006, the stay motion was heard by this Court. Because of the potential
significance of evidence filed before the hearing, and the possibility that
this evidence had not been considered by the PRRA officer in making his
decision, the Court granted the stay pending the outcome of the judicial
review.
Issues
1. The
appropriate standard of review.
2. Did the PRRA
officer fail to consider an important piece of evidence?
3. Was the PRRA
officer obliged to summon the applicant to a hearing, given that he had
abandoned his refugee claim?
Analysis
1. The
appropriate standard of review
[10]
There appears to be some debate in the case law as to whether the
findings of a PRRA officer are reviewable on a standard of reasonableness simpliciter
or patent unreasonableness (Selliah v. Canada (Minister of
Citizenship and Immigration), 2004 FC 872, [2004]
F.C.J. No. 1134 (QL) at paragraph 16; Hailu
v. Canada (Minister of Citizenship and Immigration), 2005 FC 229, [2005] F.C.J. No. 268 (QL) at
paragraph 12; Prasad v. Canada (Minister of Citizenship and Immigration),
2003 FCT 614, [2003] F.C.J. No. 805 (QL)).
[11]
However, given the circumstances of this case, my findings would
be the same regardless of the standard applied.
2. Did
the PRRA officer fail to consider an important piece of evidence?
[12]
Generally,
the Federal Court of Appeal and this Court have stated on many occasions that
the onus is on the applicant to submit evidence on all the elements of his or
her application. Specifically, on a PRRA application, it is settled law that
the applicant bears the burden of providing the PRRA officer with all the
evidence necessary for the officer to make a decision (Cirahan v. Canada
(Solicitor General), 2004 FC 1603, [2004] F.C.J. No. 1943 (QL) at paragraph
13).
[13]
The
PRRA officer does not play a role in the submission of evidence. If the
evidence is insufficient, the applicant must bear the consequences, and the
officer has no obligation to inform the applicant of this (Selliah, above,
at paragraph 22; see also Youssef v. Canada (Minister of
Citizenship and Immigration), 2006 FC 864, [2006] F.C.J. No. 1101 (QL)
at paragraph 33).
[14]
It
is not incumbent on the PRRA officer to alert the applicant to insufficiencies
in the evidence (Tuhin v. Canada (Minister of Citizenship and Immigration), 2006 FC 22,
[2006] F.C.J. No. 36 (QL) at paragraph 4).
[15]
In
this case, the PRRA officer noticed that because the applicant had abandoned
his refugee claim in 1996, the alleged risks had not been evaluated under
section 96 of the Act. Therefore, the officer noted that he would assess all
the information and evidence in the applicant’s file in accordance with this
section from the date the applicant arrived in Canada.
[16]
In
addition, because Parliament expanded the scope of protection by enacting
section 97 of the Act in June 2002, the alleged risks were also evaluated under
this provision. Accordingly, the PRRA officer reviewed the evidence submitted
to him by the applicant as well as the objective documentary sources. The
officer also considered the applicant’s entire Citizenship and Immigration
Canada (CIC) file from the date of his arrival.
[17]
After
considering all this information, the officer found that the applicant had not
submitted any trustworthy and objective evidence to prove that he would be
personally at risk should he return to Romania.
[18]
The
applicant had stated in his PRRA application that he was wanted by the
authorities in his country and feared being arrested if he returned to Romania because he
had been accused of sedition under article 155 of the Romanian Penal Code. An
arrest warrant had allegedly been issued against him shortly after his arrival
in Canada, and he
could face 15 to 25 years’ imprisonment.
[19]
In
his application, the applicant alleges that given his poor health as a result
of a kidney transplant in December 2004 as well as the difficult prison
conditions in Romania, a return to
his country would constitute a personalized risk.
[20]
In
his decision, the PRRA officer acknowledged that the detention conditions in
Romanian prisons are poor. On that point, he found that despite some
improvements, the living conditions in the prisons remain difficult, especially
at the medical and sanitary level.
[21]
The
PRRA officer also confirmed that a crime under article 155 of the Romanian
Penal Code is very serious and punishable by imprisonment, as the applicant
claimed. However, the officer was not convinced that the applicant would face
such a charge because he had not provided trustworthy and objective evidence to
support his argument on this issue in his PRRA application. On this point, the
officer stated:
[TRANSLATION]
The applicant has not filed any document
suggesting that a charge was brought against him under the Romanian criminal
code for sedition. I do not have an indictment, police report or arrest
warrant. I note that the applicant has been in Canada for more than 13 years and that in that
time he has not managed to get the documents confirming the charges pending
against him. . . . I note that the facts raised in the refugee claim, dating
from 1992, do not mention any such charge. The only one that he mentions in the
PIF is the one for driving while intoxicated . . . the applicant has not
established, through trustworthy and objective evidence, that a charge under
the Romanian criminal code is pending against him. Since the fears of the
judicial process as well as the risk of detention are based on the existence of
this charge and considering that this fact was not proven, I am not persuaded that
the applicant met his burden of establishing that there would be a personalized
risk if he were to return to Romania.
[Emphasis added.]
[22]
The
charge under article 155 of the Romanian Penal Code and a translation of this
charge had been produced and filed before the IRB, Convention Refugee
Determination Division (CRDD) on February 3, 1993, as “Exhibit 7.” These
documents were also before the CRDD on the redetermination of the claim
following the order of this Court to that effect on February 24, 1994, and were
identified as “Exhibit 1.”
[23]
This
evidence does not appear on the list of documents submitted by the applicant on
his PRRA application or in the CIC immigration file.
[24]
As
the above-noted case law indicates, the PRRA officer
had to review the file and make a decision based on the evidence before him. He
was not obliged to seek additional evidence. The documentary evidence regarding
the charge against the applicant in Romania
was not before the officer.
[25]
Counsel
for the applicant argues that the officer did not consult the documents from
the Refugee Protection Division (RPD). The regional program advisor at the
Programs Branch of the CIC Quebec Regional Office stated in her supplementary
affidavit that PRRA officers may consult CIC files. Generally, the documents
from the RPD that might contain the CIC file are limited to the Personal
Information Form (PIF) and the Notice of Decision and Reasons of the RPD.
[26]
It
should be noted that no rule, practice or procedure exists requiring a PRRA
officer to consult applicants’ files that the RPD might have, since it is an independent
administrative tribunal. The PRRA officer was not obliged to seek
additional evidence. The applicant could have obtained this evidence in various
ways, including applying to the RPD. He failed to do so and must bear the
consequences. He cannot now cast blame for this on the PRRA officer.
[27]
In
addition, as I indicated above, the case law is clear that the applicant bears
the onus of providing evidence in support of his submissions in his PRRA
application and that any deficiencies in this regard are at the applicant’s
risk.
[28]
In my
view, the PRRA officer made no reviewable error in concluding that he did not
have sufficient evidence before him to find that the applicant would face personalized
risks if he were to return to his country.
[29]
With
regard to the evidence that was not before the PRRA officer and that the
applicant filed on his stay motion, I note that the applicant could always file
a second application for protection under section 165 of the Immigration and
Refugee Protection Regulations, SOR/2002-227, if he considers it advisable
to have this new evidence assessed.
3. Was the
PRRA officer obliged to summon the applicant to a hearing, given that he had
abandoned his refugee claim?
[30]
The
applicant contends that he was entitled to a hearing before the PRRA officer
because his refugee claim had never been heard.
[31]
As provided in subsection 113(b) of the Act, a hearing may
be held on a PRRA application if the Minister, on the basis of prescribed
factors, is of the opinion that a hearing is required. Under section 167 of the
Regulations, above, a PRRA officer is obliged to hold an oral hearing when
there is a serious issue of credibility at stake (Kim v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 321, [2003] F.C.J. No. 452 (QL)
at paragraph 6). Mr. Justice Michael Phelan stated this clearly in Tekie v. Canada
(Minister of Citizenship and Immigration), 2005
FC 27, [2005] F.C.J. No. 39 (QL) at paragraph 16:
. . . section 167 becomes operative
where credibility is an issue which could result in a negative PRRA decision.
The intent of the provision is to allow an Applicant to face any credibility
concern which may be put in issue.
[32]
In
this case, the officer had determined that the applicant’s credibility was not
an issue. He therefore considered that a hearing was not necessary. After
reviewing the factors set out in section 167 of the Regulations, I am of
the view that there were no circumstances justifying a hearing.
[33]
The applicant submits that the absence of a hearing before the
PRRA breached his fundamental rights with respect to both procedural fairness
and the principles of fundamental justice.
[34]
The Supreme Court recognized in Suresh
v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R.
3, that in such a context, a hearing is not required in every case and that the
procedure set out in section 113 is consistent with the principles of
fundamental justice in the Canadian Charter of Rights and Freedoms, since
the applicant has an opportunity to present his case in writing.
[35]
The Federal Court also noted that a PRRA
process that does not include a meeting with the officer nonetheless complies
with the principles of natural justice, if it allows the applicant to present
all of his or her arguments (see: Younis v. Canada (Minister of
Citizenship and Immigration), 2004 FC 266, [2004] F.C.J. No. 339 (QL);
Iboude v. Canada (Minister of Citizenship and Immigration), 2005 FC 1316,
[2005] F.C.J. No. 1595 (QL)).
[36]
Despite the fact that he did not have a
hearing, the applicant herein has failed to demonstrate that he did not have
the opportunity to present all his arguments and evidence to the PRRA officer
as part of his PRRA application.
Conclusion
[37]
This Court is satisfied that the PRRA
officer did not disregard important evidence that was before him or make a
patently unreasonable decision, having regard to the evidence. In my view,
there is no reason for this Court to intervene, regardless of the standard of
review applied.
[38]
For
these reasons, his decision is upheld, and the application for judicial review
is dismissed.
[39]
The
parties had the opportunity to raise a serious question of general importance
as provided in paragraph 74(d) of the Act, and the applicant proposed
the following question for certification:
[TRANSLATION]
Considering Charkaoui
v. Canada (M.C.I), 2007 SCC 9, Suresh v. Canada (M.C.I.),
2002 SCC 1, Chan v. Canada (M.C.I.), [1995] 3 S.C.R. 593, Ward v.
Canada (M.C.I.), [1993] 2 S.C.R. 689, Baker v. Canada (M.C.I.),
[1999] 2 S.C.R. 817, with respect to procedural fairness and the principles of
fundamental justice in section 7 of the Canadian Charter of Rights and
Freedoms, and the exceptional circumstances in this case, was the PRRA
officer required to weigh all the evidence from all the immigration proceedings
when he clearly decided, having regard to sections 96, 97 and 113 IRPA, to
consider the applicant’s entire file from the date of his arrival in Canada and
considering that the officer did not give the applicant the opportunity to file
supplementary representations given the officer’s negative decision and despite
Mr. Lupsa’s request in his PRRA form dated July 19, 2005, that he wanted to
submit other explanations and documents?
[40]
In
the Court’s view, this question does not transcend the interests of the parties
to the litigation or contemplate issues of general application since the PRRA
officer’s analysis is based essentially on a question of fact; there is no
question to be certified.
JUDGMENT
The
application for judicial review is dismissed.
“Danièle Tremblay-Lamer”
Appendix A: Statutory Provisions
|
Immigration and
Refugee Protection Act,
S.C. 2001, c. 27
|
Loi sur l’immigration
et la protection des
réfugiés,
L.C. 2001, ch. 27
|
|
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.
|
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.
|
|
. . .
|
[…]
|
|
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.
|
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.
|
|
. . .
|
[…]
|
|
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;
(b) a hearing may be held if the Minister, on the basis
of prescribed factors, is of the opinion that a hearing is required;
(c) in the case of an applicant not described in
subsection 112(3), consideration shall be on the basis of sections 96 to
98;
(d) in the case of an applicant described in subsection
112(3), consideration shall be on the basis of the factors set out in
section 97 and
(i) in the case of
an applicant for protection who is inadmissible on grounds of serious
criminality, whether they are a danger to the public in Canada, or
(ii) in the case
of any other applicant, whether the application should be refused because of
the nature and severity of acts committed by the applicant or because of the
danger that the applicant constitutes to the security of Canada.
|
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;
b) une audience
peut être tenue si le ministre l’estime requis compte tenu des facteurs
réglementaires;
c) s’agissant
du demandeur non visé au paragraphe 112(3), sur la base des articles 96
à 98;
d) s’agissant
du demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à
l’article 97 et, d’autre part:
(i)
soit du fait que le demandeur interdit de territoire pour grande criminalité
constitue un danger pour le public au Canada,
(ii)
soit, dans le cas de tout autre demandeur, du fait que la demande devrait
être rejetée en raison de la nature et de la gravité de ses actes passés ou
du danger qu’il constitue pour la sécurité du Canada.
|
|
Immigration and
Refugee Protection
Regulations
(SOR/2002-227)
|
Règlement sur l’immigration
et la protection des
réfugiés
(DORS/2002-227)
|
|
165. A person whose application
for protection was rejected and who has remained in Canada since being given notification under
section 160 may make another application. Written submissions, if any,
must accompany the application. For greater certainty, the application does
not result in a stay of the removal order.
|
165. La
personne dont la demande de protection a été rejetée et qui est demeurée au Canada après la délivrance de
l’avis visé à l’article 160 peut présenter une autre demande de
protection. Les observations écrites, le cas échéant, doivent accompagner la
demande. Il est entendu que la demande n’opère pas sursis de la mesure de
renvoi.
|
|
. . .
|
[…]
|
|
167. For the purpose of
determining whether a hearing is required under paragraph 113(b) of
the Act, the factors are the following:
(a) whether there is evidence
that raises a serious issue of the applicant's credibility and is related to
the factors set out in sections 96 and 97 of the Act;
(b) whether the evidence is
central to the decision with respect to the application for protection; and
(c) whether the evidence, if
accepted, would justify allowing the application for protection.
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167. Pour l’application de
l’alinéa 113(b) de la
Loi,
les facteurs ci-après servent à décider si la tenue d’une audience est
requise:
a) l’existence d’éléments de preuve
relatifs aux éléments mentionnés aux articles 96 et 97 de la Loi
qui soulèvent une question importante en ce qui concerne la crédibilité du
demandeur;
b) l’importance de ces éléments de
preuve pour la prise de la décision relative à la demande de protection;
c) la question de savoir si ces éléments
de preuve, à supposer qu’ils soient admis, justifieraient que soit accordée
la protection.
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