Date: 20080304
Docket: IMM-1918-07
Citation: 2008 FC 294
Ottawa, Ontario, March 4, 2008
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
INGRID MARCIA NATION-EATON
ROSHOWN JORDANE HARDY and
JUSTIN DAWAIN GOULBOURNE
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a
decision by a Pre-Removal Risk Assessment Officer (PRRA officer) dated March
26, 2007, rejecting the applicants’ Pre-Removal Risk Assessment (PRRA)
application.
[2]
The
applicants requested that the decision be set aside and the matter referred
back to a different PRRA officer for re-determination.
Background
[3]
Ingrid
Marcia Nation-Eaton (the principal applicant), Roshown Jordane Hardy (son) and
Justin Dawain Goulbourne (son) (together “the applicants”) are citizens of Jamaica. They came
to Canada to claim
refugee protection on the basis that the principal applicant had suffered
severe domestic violence at the hands of her husband from February 1998 to July
2005. In a decision dated March 29, 2006, the Refugee Board found that the
applicants were neither Convention refugees, nor persons in need of protection.
The Refugee Board accepted the allegations of domestic violence, but found that
adequate state protection was available to victims of domestic violence in Jamaica.
[4]
The
applicants filed a PRRA application on November 7, 2006, and provided
submissions November 29, 2006. In a decision dated March 26, 2007, the PRRA
officer rejected the applicants’ PRRA application. This is the judicial review
of the PRRA officer’s decision.
PRRA
Officer’s Decision
[5]
The
PRRA officer rejected the applicants’ application on the basis that they had
provided insufficient evidence to demonstrate that they would be at risk if
returned to Jamaica. The PRRA
officer stated that all of the applicants’ submissions and evidence had been
reviewed and considered, but found that they had enumerated the “same risks
that were presented to the RPD [Refugee Protection Division] panel”. The PRRA
officer also found that the applicants had failed to rebut the findings of the
RPD panel and to provide any evidence in accordance with subsection 113(a) of
IRPA. The PRRA officer stated that the evidence submitted by the applicants
pre-dates their RPD hearing and that in the absence of any new evidence, the
PRRA officer “was not persuaded to arrive at a different conclusion from that
of the RPD […]”.
[6]
The
PRRA officer also discussed how PRRA applications were not to be treated as a
review of the RPD decision or a second refugee hearing. The PRRA officer cited Perez
v. Minister of Citizenship and Immigration, 2006 FC 1379 for the
proposition that RPD decisions are considered final with respect to the issue
of protection under sections 96 and 97 with the exception of new evidence
demonstrating exposure to a new, different or addition risk not contemplated at
the time of the RPD decision. The PRRA officer then concluded that the
applicants did not meet the definition of protected persons as per IRPA.
Issues
[7]
The
applicants submitted the following issues for consideration:
1. Did
the PRRA officer err in law in determining that a successful PRRA must be based
upon a different risk than that enunciated in an applicant’s refugee claim?
2. Did
the PRRA officer breach his duty of fairness to the applicants by failing to
provide adequate reasons for concluding that the documentary evidence was
insufficient to demonstrate risk under sections 96 or 97 of IRPA?
[8]
I
would rephrase the issues as follows:
1. What
is the appropriate standard of review?
2. Did
the PRRA officer err in law in stating that a successful PRRA application must
be based upon a different risk from the risk enunciated in an applicant’s
refugee claim?
3. Did
the PRRA officer breach the duty of fairness in failing to expressly refer to
the documentary evidence, specifically the Home Office’s Country Original
Information Report, Jamaica, dated November 30, 2006?
Applicants’
Submissions
[9]
The
applicants submitted that the PRRA officer erred in stating that a successful
PRRA application must be based upon a different risk from the risk enunciated
in an applicant’s refugee claim. It was submitted that while it is clear that
successful PRRA applications must be based upon new evidence arising after the
rejection of the refugee hearing or evidence not reasonably available at the
time of the refugee hearing, there is no requirement that the risk in question
be different from that claimed in the refugee hearing. PRRA applications “may
require consideration of some or all of the same factual and legal issues as a
claim for refugee protection”; however, the requirement of “new evidence” under
section 113 of IRPA prevents re-litigation of refugee matters (Raza v. Canada (Minister
of Citizenship and Immigration), [2007] F.C.J. No. 1632 (FCA). The
applicants submitted that the case relied on by the PRRA officer, Perez above,
does not stand for the enunciated proposition that the risk in question must be
different from that alleged in the applicants’ refugee proceedings. The PRRA
officer erred in stating that this was so.
[10]
The
applicants submitted that despite the PRRA officer’s blanket statement that he
had carefully considered all the evidence including the documentary evidence,
the PRRA officer failed to expressly mention relevant portions of the Home
Office’s Country of Original Information Report, Jamaica, dated
November 30, 2006 (specifically pages 82 to 88). It was submitted that as this
documentary evidence was relevant and post-dated the RPD hearing, the PRRA
officer was obliged to analyse whether the evidence was merely a repetition of
information before the RPD, or whether it was capable of demonstrating that the
applicants were now at risk (Raza above). The applicants noted that this
duty exists irrespective of which party submitted the evidence in question.
There is no evidence in the decision that the PRRA officer discharged this
duty, instead he provided a blanket statement that he had carefully considered
all the evidence. The applicants submitted that such a blanket statement does
not suffice where, as here, the evidence omitted from the reasons appears to squarely
contradict the PRRA officer’s findings of fact (Cepeda-Gutierrez v. Canada
(Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425).
And finally, the applicants submitted that failure to mention this documentary
evidence also breached the officer’s duty of fairness to provide adequate
reasons as per Via Rail Canada Inc. v. National Transportation Agency,
[2000] F.C.J. No. 1685.
Respondent’s
Submissions
[11]
The
respondent submitted that the PRRA officer correctly found that the applicants
had failed to present any new evidence therefore denying their application. It
was submitted that the applicants misconstrued the PRRA officer’s findings in
stating that the PRRA officer found that the applicants had to provide evidence
of a different fear in order to be successful in their application. The
respondent argued that the applicants rely on Raza above, for the
proposition that evidence in a PRRA application cannot be rejected solely
because it does not raise a new risk issue, but the applicants do so without
demonstrating how it applies to the present case. In the present case, the PRRA
officer found that the applicants had not presented any new evidence to support
either a heightening or change in the previously alleged fear or a new fear
altogether.
[12]
The
respondent also submitted that the PRRA officer provided sufficient reasons for
his decision. With regards to the applicants’ argument that the PRRA officer
should have expressly considered sections of the Home Office’s Country of
Original Information Report, Jamaica, the respondent submitted that
the PRRA officer addressed this evidence in his reasons by concluding that the
applicants did not present evidence that rebutted the RPD’s findings. Moreover,
the evidence does not support that there was a change in the conditions for
victims of domestic abuse since the applicants’ refugee claim was rejected. The
PRRA officer had no duty to provide further reasons for why the country
condition evidence was insufficient to establish a risk.
Analysis and
Decision
[13]
Issue
1
What is
the appropriate standard of review?
Errors of law
are reviewable on a standard of correctness as are questions of procedural
fairness (Canada (Minister of
Public Safety and Emergency Preparedness) v. Philip, 2007
FC 908).
[14]
Issue
2
Did the PRRA officer err in
law in stating that a successful PRRA application must be based upon a
different risk from the risk enunciated in an applicant’s refugee claim?
The applicants submitted that
the officer committed a reviewable error in stating that a successful PRRA
application must be based upon a risk different from that alleged during the
refugee determination. The portion of the decision referred to by the
applicants reads as follows:
In her PRRA application the applicant has
enumerated the same risks that were presented to the RPD panel at her hearing
on February 24, 2006. The applicant, in the case at hand, has failed to rebut
the findings of the RPD panel. Moreover, she has failed to provide any evidence
in accordance with section 113(a) of the Immigration and Refugee Protection
Act. The evidence submitted by the applicant pre-dates her RPD hearing.
[15]
In
my opinion, the applicants have misinterpreted the phrase “same risks that were
presented to the RPD panel”. I admit that this phrase is somewhat ambiguous.
The applicants understand this phrase to mean that the PRRA officer was denying
the applicants’ claim on the basis that the risk to the applicants was still
one of domestic violence from the principal applicant’s husband and that there
needed to be some other kind or source of risk to allow the application. I do
not agree with this interpretation.
[16]
In
my opinion, the PRRA officer’s use of the words “same risks” referred to the
fact that the circumstances of the risk alleged by the applicants in their PRRA
application were the same as the circumstances alleged in their refugee claim.
I believe that this interpretation is more logical given that the PRRA officer
goes on to cite a passage from Perez above wherein the Federal Court
stated:
The decision of the RPD is to be
considered as final with respect to the issue of protection under s. 96 or s.
97, subject only to the possibility that new evidence demonstrates that the
applicant would be exposed to a new, different or additional risk that could
not have been contemplated at the time of the RPD decision.
[17]
This
passage shows that the PRRA officer was aware that the law permits a successful
PRRA application to be based on new evidence of an additional risk alone and as
such, that there is no requirement that the risk be of a different kind or from
a different source. I do not accept the applicants’ interpretation of the PRRA
officer’s decision, and consequently, I find that no error of law was made by the
PRRA officer in this regard.
[18]
Issue
3
Did the PRRA officer err in
failing to expressly refer to the documentary evidence, specifically the Home
Office’s Country Original Information Report, Jamaica, dated 30 November
2006?
The applicants submitted that
the PRRA officer committed a reviewable error in not expressly discussing
portions of the Home Office’s Country Original Information Report, Jamaica,
dated 30 November 2006 that were relevant to state protection for victims of
domestic violence in Jamaica. The respondent submitted that this evidence in no
way provides that country conditions had changed since the applicants’ refugee
application was denied.
[19]
The
documentary evidence at issue post-dates the refugee hearing. Moreover, the
portions of this report identified by the applicants contained information
about the country conditions in Jamaica for victims of domestic
abuse. However, as submitted by the respondent, the PRRA officer is presumed to
have considered all the evidence before her. In fact, the officer stated that
she had done so. Moreover, the PRRA officer also concluded that the documentary
evidence presented did not demonstrate that the applicants would be at risk if
removed from Canada.
[20]
The
applicants submitted that the PRRA officer’s blanket statement that they had
considered all the evidence was insufficient given that the evidence omitted
from the reasons contradicts the ultimate finding (Cepeda-Gutierrez above).
I do not agree. In my opinion, the present case is distinguishable from the
case of Cepeda-Gutierrez above. That case dealt with evidence that was
specific and personal to the applicant. In the present case, the evidence
alleged to have been not considered is general documentary evidence.
[21]
Even
if the reasoning in Cepeda-Gutierrez above did apply in the present
case, the applicants have failed to convince me that the documentary evidence
in question contradicts the PRRA officer’s finding. The portion of the
documentary evidence identified by the applicants does not support the finding
of a change in the country conditions.
[22]
The
applicants also submitted that the officer’s reasons were insufficient. I have
reviewed the reasons and I find the reasons to be sufficient.
[23]
The
application for judicial review is therefore denied.
[24]
Neither
party wished to submit a proposed serious question of general importance to me
for my consideration for certification.
JUDGMENT
[25]
IT
IS ORDERED that the application for judicial review is denied.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The relevant
statutory provisions are set out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c.27:
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112.(1)
A person in Canada, other than a person referred to in subsection 115(1),
may, in accordance with the regulations, apply to the Minister for protection
if they are subject to a removal order that is in force or are named in a
certificate described in subsection 77(1).
(2) Despite
subsection (1), a person may not apply for protection if
(a) they are
the subject of an authority to proceed issued under section 15 of the
Extradition Act;
(b) they have
made a claim to refugee protection that has been determined under paragraph
101(1)(e) to be ineligible;
(c) in the
case of a person who has not left Canada since the application for protection
was rejected, the prescribed period has not expired; or
(d) in the
case of a person who has left Canada since the removal order came into
force, less than six months have passed since they left Canada after their claim to refugee protection was determined to
be ineligible, abandoned, withdrawn or rejected, or their application for
protection was rejected.
(3) Refugee
protection may not result from an application for protection if the person
(a) is
determined to be inadmissible on grounds of security, violating human or international
rights or organized criminality;
(b) is
determined to be inadmissible on grounds of serious criminality with respect
to a conviction in Canada punished by a term of imprisonment of at least two
years or with respect to a conviction outside Canada for an offence that, if
committed in Canada, would constitute an offence under an Act of Parliament
punishable by a maximum term of imprisonment of at least 10 years;
(c) made a
claim to refugee protection that was rejected on the basis of section F of
Article 1 of the Refugee Convention; or
(d) is named
in a certificate referred to in subsection 77(1).
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.
114.(1)
A decision to allow the application for protection has
(a) in the
case of an applicant not described in subsection 112(3), the effect of
conferring refugee protection; and
(b) in the
case of an applicant described in subsection 112(3), the effect of staying the
removal order with respect to a country or place in respect of which the
applicant was determined to be in need of protection.
(2) If the
Minister is of the opinion that the circumstances surrounding a stay of the
enforcement of a removal order have changed, the Minister may re-examine, in
accordance with paragraph 113(d) and the regulations, the grounds on which
the application was allowed and may cancel the stay.
(3) If the
Minister is of the opinion that a decision to allow an application for protection
was obtained as a result of directly or indirectly misrepresenting or
withholding material facts on a relevant matter, the Minister may vacate the
decision.
(4) If a
decision is vacated under subsection (3), it is nullified and the application
for protection is deemed to have been rejected.
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112.(1)
La personne se trouvant au Canada et qui n’est pas visée au paragraphe 115(1)
peut, conformément aux règlements, demander la protection au ministre si elle
est visée par une mesure de renvoi ayant pris effet ou nommée au certificat
visé au paragraphe 77(1).
(2)
Elle n’est pas admise à demander la protection dans les cas suivants :
a)
elle est visée par un arrêté introductif d’instance pris au titre de
l’article 15 de la Loi sur l’extradition;
b)
sa demande d’asile a été jugée irrecevable au titre de l’alinéa 101(1)e);
c)
si elle n’a pas quitté le Canada après le rejet de sa demande de protection,
le délai prévu par règlement n’a pas expiré;
d)
dans le cas contraire, six mois ne se sont pas écoulés depuis son départ
consécutif soit au rejet de sa demande d’asile ou de protection, soit à un
prononcé d’irrecevabilité, de désistement ou de retrait de sa demande
d’asile.
(3)
L’asile ne peut être conféré au demandeur dans les cas suivants :
a)
il est interdit de territoire pour raison de sécurité ou pour atteinte aux
droits humains ou internationaux ou criminalité organisée;
b)
il est interdit de territoire pour grande criminalité pour déclaration de
culpabilité au Canada punie par un emprisonnement d’au moins deux ans ou pour
toute déclaration de culpabilité à l’extérieur du Canada pour une infraction
qui, commise au Canada, constituerait une infraction à une loi fédérale
punissable d’un emprisonnement maximal d’au moins dix ans;
c)
il a été débouté de sa demande d’asile au titre de la section F de l’article
premier de la Convention sur les réfugiés;
d)
il est nommé au certificat visé au paragraphe 77(1).
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.
114.(1)
La décision accordant la demande de protection a pour effet de conférer
l’asile au demandeur; toutefois, elle a pour effet, s’agissant de celui visé
au paragraphe 112(3), de surseoir, pour le pays ou le lieu en cause, à la
mesure de renvoi le visant.
(2)
Le ministre peut révoquer le sursis s’il estime, après examen, sur la base de
l’alinéa 113d) et conformément aux règlements, des motifs qui l’ont justifié,
que les circonstances l’ayant amené ont changé.
(3)
Le ministre peut annuler la décision ayant accordé la demande de protection
s’il estime qu’elle découle de présentations erronées sur un fait important
quant à un objet pertinent, ou de réticence sur ce fait.
(4)
La décision portant annulation emporte nullité de la décision initiale et la
demande de protection est réputée avoir été rejetée.
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