Date: 20080220
Docket: IMM-1891-07
Citation: 2008 FC 222
Toronto, Ontario, February 20,
2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
WALTER
DOS REIS LIMA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant is an adult male citizen of Brazil. He entered Canada and made a
claim for refugee status which claim was denied by the Refugee Protection
Division. An application for leave to seek judicial review was dismissed. The
Applicant made an application for permanent residence under Humanitarian and
Compassionate grounds which was denied. Leave to seek judicial review of that
decision was denied. In October 2006, the Applicant submitted a Pre-Removal
Risk Assessment application (PRRA) and, by letter dated 19 March 2007 was
advised that his application for protection was rejected. Leave was granted to
seek judicial review of that decision which is the present proceeding. For the
reasons that follow, I find that the application is dismissed.
[2]
The
Applicant describes himself as an Afro-Brazilian. The evidence shows that
about 45% of Brazilians can make that claim. The Applicant came to Canada in July 2002
leaving his wife and two children behind in Brazil. His claim
for fearing return to Brazil does not rest upon circumstances particular to him
but a more generalized claim of human rights violations, violence and
discrimination in Brazil particularly in respect of Afro-Brazilians. The
specific issues raised in this judicial review are set out in the Applicant’s
counsel’s Memorandum as follows:
It is respectfully submitted
that there are four issues in this application, the particulars of which are as
follows:
(a) The Pre-Removal Risk
Assessment Officer, R. North, (“Officer”), erred at law by failing to assess
the circumstances of those similarly-situated to the applicant, and the fact
that generalized country conditions can indeed constitute a risk to the
applicant without adequate “state protection” if returned to Brazil;
(b) The Officer erred at law
by relying on determinative extrinsic evidence without the applicant’s
knowledge and without affording the applicant an opportunity to comment on it;
(c) The Officer erred at law
by waiting over one month to notify the applicant of the refusal of his PRRA,
and then provide him with merely 3 weeks to make all suitable arrangements to
depart Canada;
(d) The Officer erred at law
by processing the applicant’s PRRA at the PRRA Unit in Vancouver, British Columbia, unbeknownst to the
applicant.
[3]
Applicant’s
counsel abandoned issues c) and d) at the hearing.
STANDARD OF REVIEW
[4]
The
Applicant submits and the Respondents do not contest that the applicable
standard of review in a case where there are questions of mixed fact and law is
that of reasonableness simpliciter. Justice O’Keefe in Pruma
v. Canada (MCI), 2005 FC 805 at paragraph 9 in a similar circumstance
agreed that a determination as to whether certain circumstances amounted to persecution
was a question of mixed fact and law and should be reviewed on a standard of
reasonableness simpliciter.
ISSUE (a) SIMILAR FACT
CIRCUMSTANCES
[5]
The
first issue raised by the Applicant is whether the PRRA officer’s mind was
directed to the correct factors and, in particular, whether generalized country
conditions can constitute a risk and whether state protection was adequate.
[6]
The
Applicant argues that the PRRA officer while having regard to section 97 of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) failed
to give adequate consideration to section 96 of the Act or to make an adequate
distinction between the requirements of sections 96 and 97 in the Reasons. Counsel
places reliance on the decision of the Federal Court of Appeal in Salibian
v. Canada (MCI), [1980] 3 F.C. 250 at paragraphs 258 and 259 as repeated in
Fi v. Canada (MCI), 2006 FC 1125 at paragraph 16:
16 Therefore, a refugee claim
that arises in a context of widespread violence in a given country must meet
the same conditions as any other claim. The content of those conditions is no
different for such a claim, nor is the claim subject to extra requirements or
disqualifications. Unlike section 97 of the IRPA, there is no requirement under
section 96 of the IRPA that the applicant show that his fear of persecution is
"personalized" if he can otherwise demonstrate that it is "felt by a group with which he is associated, or, even, by all citizens on account of a
risk of persecution based on one of the reasons stated in the definition
[of a Convention refugee]" (Salibian, above, at
page 258).
[7]
In
the present case there was no substantial evidence put before the PRRA officer
that would have allowed a reasonable conclusion that the Applicant has or would
face a broadly based harassment or abuse or even a specific harassment or abuse
unique to himself. The PRRA officer made reasonable findings that whatever
discrimination that may exist in Brazil against
Afro-Brazilians, that discrimination does not rise to the level of
persecution. The officer found, for instance:
Given that the applicant has
brought forward little evidence of his being subject to persecution because he
is Afro-Brazilian, I find that the applicant has failed to show that the
discrimination he has experienced in Brazil rises to the level of persecution.
Furthermore, given that the risk of criminal violence in Brazil appears to be shared by all its
citizens, I find that the applicant has failed to connect these circumstances
in Brazil to Convention grounds. For
these reasons, I do not find the applicant described under section 96 of the
Immigration and Refugee Protection Act.
[8]
As
to whether Brazil can offer
adequate protection for its citizens. The officer found:
My reading of the evidence in
the USDOS and BBC news reports (especially the May 2006 BBC report provided by
the applicant) is that the Brazilian authorities are having a tough time
dealing with a very high rate of crime but they have not given up nor have they
abandoned areas of their country to lawlessness: in other words, state
protection in Brazil is far from perfect but it is present. Two BBC news
reports (December 2006, January 2007) document the efforts by the authorities
to arrest and prosecute corrupt police and the drug gang members themselves and
the third report (February 2007) shows that the authorities can provide
security for very large events such as the Rio carnival. I find that the
testimony brought forward by the applicant contains little evidence to
contradict that assessment.
[9]
The
jurisprudence establishes that state protection need not be perfect, provided
it is adequate (Zalzana v. Canada (Minister of Employment
and Immigration) (1991), 126 N.R. 126 (F. C.A.)).
[10]
I
find that the PRRA officer’s findings on the evidence were reasonable even if
the officer did not always clearly and explicitly ascribe his findings on the
evidence to one or other of the criteria of sections 96 or 97 and its
subsections.
ISSUE (b) EXTRINSIC
EVIDENCE
[11]
The
second issue raised by the Applicant is whether the PRRA officer made improper
use of extrinsic evidence. I am aware that this issue was relied upon by
Justice O’Keefe who stayed the removal of the Applicant from Canada pending the
determination of this judicial review. The fact that Justice O’Keefe
considered this matter to be sufficient to support the stay of removal does not
constitute a determination of the issue or a finding that is binding in respect
of the issue, it simply means that the lower threshold applicable on stay
applications had been met. On this actual review the Court must consider the
matter afresh.
[12]
The
materials referred by the PRRA officer are listed at the end of the decision.
They consist of publicly available documents commonly used in proceedings of
this sort. Referred to are an Amnesty International World Report, British
Broadcasting Corporation website reports (BBC), a Foreign Affairs and
International Trade Canada Travel Report, a Human Rights Watch Country
Summary and United States Department of State Country Reports on Human
Rights Protection.
[13]
A
PRRA officer has a duty to consult the most recent sources of information and
is not limited to materials furnished by the Applicant (Hassaballa v. Canada
(MCI), 2007 FC 489 per Blais J. at paragraph 39). An officer is not
obliged to disclose, prior to making a decision, all the information consulted
where the information consists of commonly consulted public information as
opposed to novel and significant information which may affect the disposition
of the matter (Mancia v. Canada (MCI), [1998] 3 F.C. 461 (C.A.) per
Decary JA. at paragraph 22).
[14]
Counsel
for the Applicant specifically objected to the PRRA officer’s references to
three BBC website reports occurring after the Applicant had made its
submissions. I find that those reports do not meet the criteria established in
Mancia supra. First, the BBC reports are of the same type of BBC
reports referred to by the Applicant himself who, through his counsel, made
submissions to the Officer. It is not surprising, therefore, that the officer
would continue to have regard to such reports.
[15]
Second,
the information in the reports is confirmatory of the conclusions arrived by
the officer based on other evidence, namely that police protection was
adequate. The information is not novel or of such significance as would affect
the disposition of the matter.
CONCLUSION
[16]
The
application is dismissed. The Counsel for the parties agreed that there is no
question for certification. There is no Order as to costs.
JUDGMENT
THIS COURT
ADJUDGES that :
1. The application is
dismissed;
2. There is no question
for certification;
3. There is no order as
to costs.
"Roger
T. Hughes"
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