Date: 20071106
Docket: IMM-6211-06
Citation: 2007 FC 1151
Ottawa, Ontario, November 6, 2007
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
ABDUL HALIM BISWAS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Abdul Halim Biswas came to Canada in 2003 from Bangladesh. He claimed
refugee protection based on his fear of political persecution as a member of a
political party, the Awami League. His claim was dismissed by a panel of the
Immigration and Refugee Board because of a lack of credible evidence. Mr.
Biswas then requested a pre-removal risk assessment and presented some new
evidence to support his application. Nevertheless, the officer who conducted
the assessment found that the new evidence did not show that Mr. Biswas was at
risk of persecution or serious mistreatment if he returned to Bangladesh. Mr.
Biswas argues that the officer erred by unfairly discounting the value of the
evidence he supplied. He asks me to order a reassessment by a different
officer.
[2]
I can find no basis for overturning the officer’s decision and must,
therefore, dismiss this application for judicial review.
I. Issues
- Did the officer fail to consider
relevant evidence?
- Did the officer fail to
appreciate the significance of the new evidence?
- Did the
officer err in failing to respond to Mr. Biswas’ request to defer his
assessment until
he received
the response to his application for humanitarian and compassionate relief?
II. Analysis
A. Did the officer fail to
consider relevant evidence?
[3]
The officer reviewed the documentary evidence Mr. Biswas presented and
determined that some of it was not new evidence and, therefore, should not form
part of the risk assessment (relying on s. 113(a) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 ; relevant enactments are set
out in an Annex). Mr. Biswas submits that the officer should have considered a
letter written by Gazi Kamul Huda, General Secretary of one branch of the Awami
League. The letter post-dated Mr. Biswas’ refugee claim. However, the officer
concluded that the letter could not be considered new evidence because its main
contents related to events that had occurred before Mr. Biswas had left Bangladesh
and, therefore, could have been presented as part of his refugee claim.
[4]
Mr. Biswas disputes this conclusion because the letter also states that
returning to Bangladesh would be “very risky to his life”. Since this is a
reference to the current situation in Bangladesh, Mr. Biswas argues that this
information could not have been presented in his refugee claim and, therefore,
should have been treated as new evidence.
[5]
In my view, the officer did not err. While, technically speaking, the letter’s
reference to an ongoing risk was new information, it amounted merely to an
isolated and unsubstantiated statement. As will be discussed below, the officer
did go on to consider other, more direct, evidence that Mr. Biswas might
currently be in danger. In the context of the evidence as a whole, the
officer’s treatment of the Awami League letter was appropriate.
B. Did the officer fail to
appreciate the significance of the new evidence?
[6]
The officer considered two pieces of documentary evidence and found them
both to be of little evidentiary value. The first was a letter written by Mr.
Biswas’ wife in 2005. She stated that terrorists were threatening her and
demanding money. She undertook to provide more details later but no further
information about her circumstances was put before the officer.
[7]
The officer noted that Mr. Biswas had not supplied the envelope in which
the letter was allegedly sent, which would have confirmed its origins and date.
Further, the officer was concerned that the letter did not originate from an
unbiased source. In light of the numerous adverse credibility findings
previously made against Mr. Biswas by the Immigration and Refugee Board, the
officer felt that the letter deserved little weight. I cannot fault the
officer’s treatment of this evidence. Generally speaking, it is for the officer
to determine how much weight a piece of evidence deserves. The Court will
intervene only when that determination is unsupportable.
[8]
The officer also considered a letter from the Chairman of the Balora
Union Council in which the author stated that Mr. Biswas had left Bangladesh
because his life was threatened by “various tortures of a few unruly persons”
and that his wife and son continued to be harassed by the same people. The
officer concluded that the letter was vague. It did not identify the identities
of the alleged persecutors or provide the reason why they were interested in
Mr. Biswas and his family. The officer determined that the letter was of little
probative value. Again, I cannot fault the officer’s treatment of this
evidence.
[9]
Mr. Biswas also submitted that, if the officer was dissatisfied with the
amount of detail in the letter, the officer had a duty to contact the author to
obtain more information. In my view, there is no basis for this submission. The
burden fell on Mr. Biswas, not the officer, to marshall persuasive evidence of
persecution.
C. Did the officer err in
failing to respond to Mr. Biswas’ request to defer his assessment until he
received the response to his application for humanitarian and compassionate
relief?
[10]
Mr. Biswas states that he made an oral request to the officer to defer
his assessment until he found out the results of his application for
humanitarian and compassionate consideration. The officer never gave him a direct
answer, but proceeded to issue his risk assessment while the other application
remained outstanding.
[11]
Mr. Biswas was unable to provide any authority or statutory basis for
this argument. He pointed to the discretion of an enforcement officer to defer
a person’s removal from Canada pending a request for special relief and
suggested that a risk assessment officer should have the same authority. To my
mind, the two situations are not comparable. An enforcement officer’s
discretion derives from the wording of s. 48 of the Immigration and Refugee
Protection Act. It appears there is no analogous provision that would
invest risk assessment officers with a similar discretion.
[12]
In light of the foregoing conclusions, I must dismiss this application
for judicial review. Neither party proposed a question of general importance
for me to certify, and none is stated.
JUDGMENT
THIS COURT’S ORDER IS
that
1. The
application for judicial review is dismissed.
2. No question
of general importance is stated.
“James
W. O’Reilly”
Annex
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Immigration
Refugee Protection Act,
S.C. 2001, c. 27
Enforceable
removal order
48. (1) A removal order is enforceable if
it has come into force and is not stayed.
Effect
(2) If a removal order is enforceable, the
foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is
reasonably practicable.
Consideration
of application
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;
|
Loi
sur l’immigration et la protection des réfugiés, L.R. 2001, ch. 27
Mesure de renvoi
48. (1) La mesure de renvoi est
exécutoire depuis sa prise d’effet dès lors qu’elle ne fait pas l’objet d’un
sursis.
Conséquence
(2) L’étranger visé par la mesure de
renvoi exécutoire doit immédiatement quitter le territoire du Canada, la
mesure devant être appliquée dès que les circonstances le permettent
Examen de la demande
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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