Date: 20080229
Docket: IMM-3388-07
Citation: 2008 FC 273
Montréal, Quebec, February 29, 2008
Present:
The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
RONY
ALEXIS
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review
brought under subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the “Act”) further to a
decision of an immigration officer dated June 14, 2007, rejecting the applicant’s
application for a Pre-Removal Risk Assessment (“PRRA”).
FACTS
[2]
The applicant is a citizen of Haiti. He was a member of the PNH (Haitian
national police) from 1999 until he resigned on November 3, 2005, a little more than
two months after his arrival in Canada. In 2003, he had been promoted to the position of investigator in
the anti-gang unit of the PNH.
[3]
The applicant arrived in Canada on July 27, 2005, and claimed refugee
protection on September 8, 2005. The RPD rejected the claim because the applicant was excluded
under paragraphs 1F(a) and 1F(c) of the Convention
Relating to the Status of Refugees (“Convention”). The applicant brought an
application for judicial review of the RPD decision, which was dismissed by
this Court.
[4]
The applicant’s mother,
Decelia Charles Milien, came to Canada at the same time as he did. The RPD recognized her as a person in
need of protection under subsection 97(1) of the Act, as she had been
subject to mistreatment by persons who were looking for her son.
[5]
The applicant invoked his right to apply for a
PRRA under section 112 of the Act, alleging that he had received threats
by telephone in December 2004 following an investigation into the escape
of prisoners. The persons who threatened him held him responsible for the imprisonment
of their leader. He filed a complaint with the police on December 27,
2004.
[6]
In January 2005, because of the threats made
against him, the applicant left his home to move in with his mother. On February 9, 2005, three armed men barged
into her house and allegedly confined and brutalized her.
[7]
In April 2005, as he was taking a minibus to the
anti-gang unit’s police station, he was allegedly shot and wounded, such that
he needed two operations to recover from the incident. The armed men fled.
[8]
After being released from hospital, he continued
to receive threats of death, kidnapping and arson, as did his mother, brother
and sister.
[9]
The applicant and his mother came to Canada to attend his brother’s wedding and
subsequently claimed refugee protection.
[10]
In his reasons, the officer considered the
applicant’s individualized risk and concluded that the applicant would not be
subject to a risk to his life or to cruel and unusual treatment if he returned
to Haiti. The officer
determined that there was a lack of probative evidence that the applicant was
personally targeted by the gang members because of his work in the anti-gang
unit.
STANDARD OF REVIEW
[11]
In Kim v. Canada (Minister of Citizenship
and Immigration), [2005] F.C.J. No. 540, 2005 FC 437, at
paragraph 19, Mr. Justice Richard Mosley conducted a pragmatic and
functional analysis and determined that, in the context of the judicial review
of a PRRA application, the standard of review applicable to questions of fact
is patent unreasonableness; to questions of mixed fact and law, reasonableness
simpliciter; and to questions of law, correctness.
ANALYSIS
Language preference
of the PRRA officer
[12]
The applicant submits that it was unfair to
assign the consideration of his application to an officer who was more familiar
with English.
[13]
This argument has no basis. Being more familiar
with one language does not mean a lack of knowledge of another language. I note
on reading the reasons for decision that, in rendering his decision, the PRRA
officer properly summarized the facts alleged by the applicant and analyzed the
situation in the country in question as well as the individualized risk to the
applicant.
[14]
I did not find any indication whatsoever to the
effect that the PRRA officer did not understand the nature of the case or the
evidence he had to analyze.
The applicant’s mother
[15]
The applicant argues that the PRRA officer failed
to consider the fact that the applicant’s mother had been recognized by the RPD
as a person in need of protection under subsection 97(1) of the Act. He
submits that if the RPD reached the conclusion that his mother would face a
danger of torture, a risk to her life or a risk of cruel and unusual treatment,
he would also face the same risks, because his application was based on the
same facts.
[16]
I cannot agree with this argument. Although the
PRRA officer may refer to the decision of the RPD and it is open to him to take
into consideration the mother’s situation, he is not bound by the RPD’s decision.
In cases of such claims, it is trite law that a panel is not bound to grant any
status to a claimant simply because this status was granted to another person whose
claim was based on the same facts. In a recent case, Aoutlev v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 183, 2007 FC 111, Mr. Justice Shore concluded as follows:
[26] This Court’s
case law has established in a large number of decisions that a decision-maker
is not bound by the result in another claim, even if the claim involves a
relative, because refugee status is determined on a case-by-case basis, and
because it is possible that the other decision was incorrect. Bakary v.
Canada (Minister of Citizenship and Immigration), 2006 FC 1111,
[2006] F.C.J. No. 1418 (QL) (Pinard J.); Rahmatizadeh v. Canada (Minister of Citizenship and
Immigration), [1994] F.C.J. No. 578 (QL) (Marc
Nadon J.).)
[17]
The same reasoning applies in this case. Risk is
assessed on a case-by-case basis, and as Shore J. stated, it is always
possible that the other decision was incorrect.
Assessment of credibility
[18]
The applicant submits that the officer had to
grant him an interview, because the issue of credibility had not been considered
by the RPD.
[19]
The issue of determining whether the officer
should have granted a hearing under paragraph 113(b) of the Act
must be settled by applying the factors set out in section 167 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (“Regulations”). A hearing
is held only when the three factors listed in section 167 are present.
Under paragraph (a), there must be 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.
[20]
In this case, I note that no evidence considered
by the officer challenged the applicant’s credibility. Rather, the officer
concluded that there was insufficient probative evidence to conclude that the
applicant was personally targeted because of an investigation he had allegedly conducted
against the head of a criminal gang.
[21]
The situation here is similar to the one in Kaba
c. Canada (Ministre
de la Citoyenneté et de l’Immigration), [2006] A.C.F.
no. 1420, 2006 CF 1113, where Mr. Justice Yvon Pinard wrote the following at paragraph 29:
[translation]
In
these circumstances, the applicant’s allegation that the officer erred in not
granting her a hearing because of the doubts about her credibility is
erroneous. Even if the officer made findings of credibility, her decision is
based primarily on the insufficiency of the evidence submitted by the applicant
to discharge her onus of establishing that she and/or her daughter personally
incurred any risks of return such as those covered in sections 96 and 97 of the
Act should they return to Guinea.
[22]
See also Selliah v. Canada (Minister of Citizenship and
Immigration), [2004] F.C.J. No. 1134,
2004 FC 872, at paragraph 27; Iboude v. Canada (Minister of Citizenship and
Immigration), [2005] F.C.J. No. 1595, 2005 FC 1316, at paragraph 14.
[23]
Because the officer’s decision essentially
concerned the lack of probative evidence that the applicant was personally
targeted, the officer did not make any error in not granting an interview to
the applicant.
Case law
concerning PNH officers
[24]
The applicant submits that the officer should
have considered the recent case law of this Court regarding exclusion, particularly
with regard to members of the PNH, and more specifically the decisions in Merceron
v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 392,
2007 FC 265, and Plaisir v. Canada (Minister of Citizenship and
Immigration), [2007] F.C.J. No. 391, 2007 FC 264.
[25]
With respect, I cannot agree with this argument.
It was not open to the officer to reassess the RPD’s conclusions. This Court
dismissed the application for judicial review of the RPD decision. In Isomi
v. Canada (Minister
of Citizenship and Immigration), [2006] F.C.J. No. 1753,
2006 FC 1394, Mr. Justice Simon Noël stated the
following:
[17] In
addition, the decision to adopt the same conclusions as the RPD seems to be
warranted by the fact that the application for leave and for judicial review of
the RPD’s decision was dismissed by this Court, given the failure to file the
record. I concluded in the following excerpt from Jacques v. Canada, supra,
at paragraph 22, that a PRRA decision is not an appeal of a decision of
the IRB:
As the
respondent argues, a PRRA officer does not sit on appeal or in judicial review
and is therefore entitled to trust the IRB’s findings in the absence of new
evidence.
[18] In
concluding on this point, the PRRA officer did not make any error in adopting
the conclusion of the IRB to the effect that the applicant is a person excluded
from Canada under subparagraphs 1(F)(a) and (c) of the Convention.
[Emphasis added]
Consideration of the evidence
[26]
The applicant submits that the officer erred in
dismissing or cavalierly ignoring decisive and vital evidence.
[27]
First of all, I note that the officer attached
considerable importance to the medical evidence and did not contest that the
applicant had nevertheless been the victim of a shooting. However, he refused
to acknowledge a link between the injuries and the allegation to the effect
that the applicant was being targeted by gang members. The applicant had
submitted two police reports to substantiate the risks alleged, namely, that he
was being threatened by a gang.
[28]
Although the reports corroborated the applicant’s
allegation that he was being targeted, the officer attached little probative
value to those reports. In the officer’s opinion, these reports were merely
statements made by the applicant and his mother and therefore were of little significance.
Thus, the officer did take the evidence submitted by the applicant into account.
The weighing of the evidence lies within the purview of the officer
conducting the assessment and does not normally give rise to judicial review. Therefore, I must dismiss this submission made by the applicant,
which essentially concerns the weight the officer attached to the evidence.
Temporary suspension of removals
[29]
Finally, the applicant submits that the fact
that Haiti was subject to a temporary suspension of removals must be considered
by the officer and mentioned in his reasons for decision, in spite of exclusion
under paragraphs 1F(a) and (c) of the Convention.
[30]
Under subsection 230(1) of the Regulations, The
Minister may impose a stay on removal orders with respect to a country or a
place if the circumstances in that country or place pose a generalized risk to
the entire civilian population. This measure was applied to persons to be removed
to Haiti. However, under
paragraph 230(3)(e) of the Regulations, such a stay does not apply
to a person referred to in section F of Article 1 of the Refugee Convention.
Therefore, the applicant cannot take advantage of the temporary suspension in
effect.
[31]
The issue raised by the applicant is whether, in
spite of the preceding, the fact that a suspension of removals is in effect must
be taken into consideration in the PRRA application decision. In Isomi, supra,
Noël J. answered this question in the affirmative:
[31] Having said
this, and as mentioned previously, I would add that in the case of a
moratorium, as a minimum, the PRRA officer must refer to the stay of removal
orders in force by commenting on it and by distinguishing the specific facts of
the case being studied. If there are facts related to torture or persecution,
they must be considered in the analysis. The objective of such an analysis is
not to circumvent the Regulations, but rather to ensure there is no risk of
torture or persecution to the person in question stemming from the grounds on
which the moratorium is based.
[32]
In this case, although the officer considered
the situation in the country in question, he was silent on the moratorium.
Therefore, a reading of the reasons does not reveal whether the officer
analysed the facts in light of the moratorium. If removed, does the applicant
face a risk in the nature of persecution or cruel and unusual treatment stemming
from the grounds on which the moratorium is based? The officer therefore made
an error warranting intervention by this Court.
[33]
For these reasons, I am of the opinion that the
application for judicial review must be allowed in part and that the PRRA
application must be referred back to another officer for a reconsideration of
the facts in light of the moratorium.
JUDGMENT
THE COURT ORDERS that the application for judicial
review be allowed in part. The PRRA application will be referred back to another
officer for a reconsideration of the facts in light of the moratorium.
“Danièle
Tremblay-Lamer”
Certified
true translation
Michael
Palles
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