Date: 20080407
Dockets: IMM-3226-07
IMM-3227-07
Citation: 2008 FC 412
Montréal, Quebec, April
7, 2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
NAVEED AKRAM CHOUDHARY
SAFIA NAVEED
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicants apply for judicial review of two negative decisions rendered by the
same PRRA officer:
a. The first
decision, dated May 28, 2007, in file IMM-3226-07, concerns an
application for permanent residence from within Canada on humanitarian and
compassionate (H & C) grounds and a request for an exemption from
the requirement to obtain a permanent resident visa prior to coming to Canada (subsection
11(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the
Act)). The application is rejected by the H & C officer (the
officer) on the basis of insufficient H & C grounds to justify an
exemption under subsection 25(1) of the Act;
b. The second
decision rendered on May 29, 2007, in file IMM-3227-07, concerns the assessment
of a pre-removal risk (PRRA) application. The PRRA officer (the officer) concludes
in his decision that the applicants have not discharged themselves of their
burden to prove, on a balance of probabilities, that they are not at risk for
one of the reasons in paragraph 97(1)(a) or (b) of the Act should
they return to Pakistan, their country of nationality or habitual residence.
[2]
At
the applicants’ request and by decision of this Court both files have been
joined and were heard jointly. The present judgment will therefore address both
applications with respect to the date of the decisions in review.
Facts
[3]
The
applicant Choudhary and his wife Safia Naveed are both citizens of Pakistan. Mr. Choudhary
was active in the Shia Muslim community and claims that he was targeted by the
Sunni extremist group Sipah-e-Sahaba (SSP) for speaking out against
fundamentalist violence and terrorism. The applicants allege that they were
attacked several times, but that the police did not do anything to help them.
[4]
On
February 14, 2002, the police allegedly came to arrest Mr. Choudhary at
the applicants’ home in their absence. He claims that they informed his father
that a complaint had been filed against him for publicly insulting the Sunni
faith, resulting in a criminal charge of blasphemy.
[5]
Forced
to leave their son behind, as travel arrangements could not be made for him, the
couple fled to Canada via the United States in March
2002, arrived on April 14, 2002, and claimed refugee status on April 15, 2002.
[6]
The
applicants’ refugee claim was dismissed by the Refugee Protection Division
(RPD) on December 14, 2002 on the basis that they did not credibly establish
their identities and thus their entire story was not credible.
[7]
This
Court rejected, on March 24, 2005, their application for leave to have the
decision of the RPD judicially reviewed and a request to reopen their claim
with further documentation was rejected on July 8, 2005 by the RPD.
[8]
The
applicants then filed on November 16, 2006, for a PRRA and on December 27,
2006, for a waiver of immigrant visa requirements based on humanitarian and
compassionate (H & C) grounds. Both were refused by the same
officer in late May 2007.
[9]
The
applicants claim their son left behind was kidnapped on November 2, 2006 and would
still be missing. They also allege that a “fatwa” (warrant for arrest) was
issued against the applicant Choudhary pursuant to the criminal charge of
blasphemy. Ms. Naveed’s claim of risk is based on that of her husband.
[10]
The
couple have three young Canadian-born children and Mr. Choudhary obtained
full-time work only for a brief period before their H & C
hearing.
[11]
On
November 16, 2006, the applicants submitted their PRRA application and on
December 27, 2006 they submitted their H & C application
completed with an update on March 29, 2007.
[12]
On
August 9, 2007, the Applicants filed their applications for leave and for
judicial review against the negative PRRA and H & C decisions.
Standard of Review
[13]
In
light of the recent Supreme Court of Canada decision in Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9 (QL), it is clear that
the standard of patent unreasonableness has now been abandoned, and that courts
conducting a standard of review analysis must now focus on two standards, those
of correctness on a question of law and charter; and, reasonableness, on a
question of credibility or appreciation of facts.
[14]
The
jurisprudence is clear in stating that the decision maker’s credibility
analysis is central to its role as trier of facts and that, accordingly, its
findings in this regard should be given significant deference. The grant of
deference supports a reasonableness standard of review and implies, as the
Court held at paragraph 49 of Dunsmuir, supra, that courts will
give “due consideration to the determinations of decision makers” when reaching
a conclusion. Accordingly, the first issue will be reviewed on the standard of
reasonableness and the second question on a standard of correctness.
I - The PRRA decision
[15]
Although
the officer notes correctly in his decision that only new evidence is intended
to be considered in a PRRA application, he nevertheless states that a specified
list of documents were examined and considered in order to ensure procedural
fairness.
[16]
The
officer finds that the applicants have credibly established their identities
since the RPD hearing and therefore assesses their risk in Pakistan on that
basis. He also notes that although the evidence shows sectarian violence in Pakistan affecting
all minority groups in the country, the government has nevertheless enacted laws
and taken action to crack down on terrorist groups including the SSP. The
country’s documentation shows that blasphemy cases normally result in release
on bail or dropped charges.
[17]
Fatwas
are only of consequence if issued by a proper body. The officer assessed the
copy of the fatwa allegedly issued against Mr. Choudhary and found that there is
no means, in the evidence, to determine whether it was issued by a proper body.
He therefore gave little weight to the fatwa produced in evidence and therefore
found that the applicants failed to prove the presence of a personalized risk.
Issues
[18]
There
are essentially two issues at play:
- Is the analysis of
the evidence by the officer unreasonable?
- Does his negative
PRRA decision constitute a violation of sections 7 and 12 of the Canadian
Charter of Rights and Freedoms (the Charter) or the
United Nations Convention Against Torture (Convention Against
Torture)?
Analysis
[19]
The
applicants have invited this Court to review the RPD’s credibility finding first.
It must be reasserted that the PRRA is not an appeal of a negative refugee
finding, nor is the judicial review of the PRRA a licence to review all
decisions made with respect to the applicants.
[20]
The
applicants have asserted that the officer’s treatment of the RPD decision as
final is unreasonable. But let us not forget that the applicants made two
evaluation requests against the RPD decision; a request to reopen and an
application for judicial review. The Court finds that the applicants have had
sufficient attention given to any of the errors alleged against the RPD’s decision
and therefore that it was correctly viewed as final by the officer.
[21]
The
argument that the officer erred in law by relying on the findings of the RPD
must also be rejected from the outset. This Court has regularly held that it is
open to the PRRA officer to base his or her findings on those of the RPD (Yousef
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 864, [2006] F.C.J. No. 1101 (QL)).
[22]
The
applicants have next asserted that the officer improperly assessed the
evidence, citing specific extracts of the proof he allegedly did not consider.
The respondent counters that the PRRA officer relied on many documentary
sources, including those provided by the applicants and that the applicants have,
at best, demonstrated that the objective documentary evidence is not totally
unequivocal. The officer is tasked with weighing and analysing that evidence,
and his findings and conclusion should not be vacated except where
unreasonable.
[23]
The
applicants are asking this Court to reweigh the evidence and come to the
contrary conclusion. That is not the role of the Court on judicial review. This
Court does not see in what way the officer’s decision was unreasonable and therefore
the decision will not be vacated on this issue.
International
Obligations
[24]
The
applicants also assert that the officer’s decision is contrary to the
obligations imposed on Canada by its international commitments,
including the Convention Against Torture. In essence, their argument is that
the PRRA is not an effective assessment since “practically everyone is refused
without regard to the evidence”, that the Charter should be interpreted
in conformity with Canada’s international obligations, which is not the
case, and thus the officer’s decision is contrary to the Charter.
[25]
It
is well established that a deportation order, with respect to a person who is
not a Canadian citizen, is not contrary to the principles of fundamental justice
and that the execution of such order is not contrary to sections 7 or 12 of the
Charter (Canada (Minister of Employment and Immigration) v. Chiarelli,
[1992] 1 S.C.R. 711). It cannot therefore be said, as argued by the applicants,
that the PRRA decision in this case violates either the Convention Against
Torture or the Charter. This argument does not stand the analysis of subsection
97(1) of the Act
which
refers specifically to torture and is therefore the basis of an effective
assessment pursuant to Canada’s international obligations (Sidhu v. Canada
(Minister of Citizenship and Immigration), 2004 FC 39, [2004] F.C.J. No. 30
(QL)).
[26]
The
officer’s decision is well reasoned and based on a thorough and thoughtful
analysis of the situation facing the applicants upon their return to Pakistan. Their
claims of fear of torture, as well as cruel treatment, were specifically
evaluated. The Court cannot see how that decision is anything other than a
safety valve in the refugee system for those who might be otherwise returned to
torture in violation of Canada’s international obligations.
[27]
For
the foregoing reasons, the Court will dismiss the application for judicial
review produced in file IMM-3227-07 against the PRRA decision of May 29, 2007.
II -The H & C
decision
[28]
The
officer first sets out the factors to consider on an H & C
application from inside Canada, as set out in the Processing Manual IP5 -
Immigrant Applications in Canada made on Humanitarian or Compassionate
Grounds.
[29]
The
officer then assesses the applicants on the factors of “establishment by
prolonged inability to leave Canada”, “best interests of the children” and
objectively “personalized risk”, and finds that there are insufficient H & C
grounds to allow the applicants to apply for permanent resident status from
within Canada.
Issues
[30]
This
proceeding raises three issues:
- Did the officer err
by failing to properly consider the best interests of the applicants’
three Canadian-born children?
- Did the officer err
in law by assessing the wrong criteria in coming to the decision?
- Did the officer err
by failing to properly consider the evidence?
[31]
Applicants
bear the onus to satisfy the decision makers that their personal circumstances
are such that the hardship of having to obtain a permanent resident visa
outside from Canada would be
unusual and undeserved or disproportionate.
Best interest
of the children (BIC)
[32]
After
reviewing the applicants’ establishment and integration in Canada, the officer
finds that they have provided few details of their establishment in Canada since 2002
and, on the basis of his analysis of the information in their files, the
officer concludes that there are insufficient H & C grounds to
grant them the waiver. The Court notes that the applicants do not really
contest this finding.
[33]
As
a rule the best interest of the children has been found by this Court to be an
important factor to consider when assessing H & C applications.
Knowing this rule the applicants insist on this factor in their contestation of
the H & C decision and contend that the IO completely failed to
properly consider the best interests of their Canadian-born children.
[34]
They
argue that the negative finding of the officer violates the rights of the
children to a family life as enshrined in international covenants and they contend
that families who have been in Canada for several years, are economically well
established and have Canadian‑born children should generally be accepted
on an H & C application.
[35]
The
BIC is one factor among others to be considered by the officer in his assessment
of an H & C application but these interests do not constitute necessarily
the determinative factor acting as an impediment to removal of the family (Bolanos
v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1032, [2003] F.C.J. No. 1331 (QL)).
[36]
The
case law on the BIC, beginning with the case of Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39
(QL),
consistently sets out the duty imposed on the officer of remaining alive, alert
and sensitive to the best interests of affected children: “That is not to say
that children’s best interests must always outweigh other considerations, or
that there will not be other reasons for denying an H & C claim
even when children’s interests are given this consideration.” A negative
finding will stand except where it can be shown that the officer did not meet
this duty because “the interests of children are minimized, in a manner
inconsistent with Canada’s humanitarian and compassionate tradition and
the Minister’s guidelines”.
[37]
The
applicants invite the Court to intervene and set the case law in a new
direction. They suggest that a short period of living in Canada, financial
establishment and Canadian‑born children are indicia which should generally
permit a family to remain on an H & C application. The Court must
however point out that it is clear in the Act that the H & C
decision is meant to remain an exceptional exemption from the normal
immigration process to alleviate undue or extreme hardship. It is open only to
Parliament to change the nature of the H & C assessment, not to
this Court.
[38]
In
the case at bar, the officer was clearly “alive, alert and sensitive” to the
children’s interests as can be seen in his reasons and the elements he considered.
That was his prerogative and the Court will not vacate the decision on this
issue since the officer’s findings are reasonable and quite relevant to the
evidence analyzed.
Criteria assessed
[39]
The
applicants contend that the officer erred in looking primarily at the risk
facing the family on its return to Pakistan rather than undue or
excessive hardship. The Court notes in this regard that the argument which
underlies their entire application is that of the risk to them on return. The
officer did assess their establishment in Canada and found it
to be insufficient to overcome the negative factors. The applicants did not
argue much against that finding. The Court cannot find that the officer failed
to assess the relevant factors for an H & C decision.
Assessment of the
evidence
[40]
The
applicants also submit that the officer erred in the assessment of the evidence
showing personalized risk to Mr. Choudhary. The Court finds this an interesting
argument, given the applicants’ complaint of an over-analysis of this issue.
That said, the Court finds, as in the related PRRA decision, that the applicants
have not demonstrated that the officer’s decision on this issue is
unreasonable.
[41]
The
officer referred directly to documentary evidence of sectarian violence and to
the evidence provided by the applicants. The officer found, even if the
questions about the authenticity of the documents provided by the applicants were
set aside, that the evidence remains insufficient to establish objectively the
existence of personalized risk.
[42]
Having
reviewed the file, the Court concludes that the findings of the IO were open to
him on the evidence, are reasonable and should therefore stand.
[43]
For
the foregoing reasons, The Court will dismiss both applications.
Questions submitted by
applicants for certification
[44]
The applicants proposed for certification two questions they
consider serious and of general importance pursuant to section 74(d) of
the Act:
Question No. 1
Do the
guarantees of Articles 23 and 24 of the International Covenant on Civil and
Political Rights regarding the protection of family life and the protection
of children mandate the acceptance of requests for residence based on
humanitarian consideration when there are Canadian children or a Canadian
spouse who is affected by the decision in the absence of significant negative
countervailing considerations?
Question No. 2
Is there an
obligation on the part of the PRRA officer to consider the criteria of Article
3(2) of the Convention Against Torture regarding a situation of massive,
systematic and flagrant human rights abuses when assessing the possibility of a
risk of return under Canadian law?
[45]
In the case of Canada
(Minister of Citizenship and Immigration) v. Liyanagamage, [1994] F.C.J.
No. 1637 (C.A.) (QL), the Federal Court of Appeal
states that:
[4] In
order to be certified pursuant to subsection 83(1), a question must be one
which, in the opinion of the motions judge, transcends the interests of the
immediate parties to the litigation and contemplates issues of broad
significance or general application … but it must also be one that is
determinative of the appeal. The certification process contemplated by section
83 of the Immigration Act is neither to be equated with the reference
process established by section 18.3 of the Federal Court Act, nor is it
to be used as a tool to obtain from the Court of Appeal declaratory judgments
on fine questions which need not be decided in order to dispose of a particular
case.
[46]
In addition in Huynh
v. Canada, [1995] 1 F.C. 633, 646 (T.D.), confirmed by the Federal Court of
Appeal at [1996] 2 F.C. 976 (C.A.), this Court states that to justify its
certification the question must raise not only a question of law of general
application but it must be new and not already determined by the Federal
Court of Appeal or the Supreme Court of Canada.
[47]
The
issue raised in question no. 1 has been canvassed by the Federal Court of
Appeal, in Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.),
at paragraph 12, also in Langner v. Canada (Minister of Employment and
Immigration) (1995), 184 N.R. 230 (C.A.) at paragraphs 8, 9 and 11 as well
as by the Supreme Court of Canada in Baker, supra, at paragraph
75. Simply put, the presence of Canadian children does not call to a certain
result in the context of an application under section 25 of the Act.
Their presence does not in itself constitute an impediment to the “refoulement”
of a parent illegally residing in Canada nor does it lead to a right to have a parent remain
in Canada.
[48]
Moreover,
in De Guzman v. Canada (Minister of Citizenship and Immigration), 2005
FCA 436, [2006] 3 F.C.R 655 (F.C.A.), at paragraph 87 and following, the
Federal Court of Appeal considered the impact of international human rights
instrument to which Canada adhered, including the International Covenant on
Civil and Political Rights which Canada has ratified but has not legislated
upon.
[49]
The
question no. 1 is not new and has been determined by the Federal Court of
Appeal and the Supreme Court of Canada and accordingly the Court refuses to
certify this question.
[50]
The
issue raised in question no. 2 touches the scope of the PRRA officer’s
discretion contained at sections 113(c) and 96 to 98 of the Act.
Paragraph 97(1)a) of the Act providing that a person is in need
of protection when he is personally subject to a danger, “believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture”.
[51]
The general human rights situation in Pakistan and the presence
of personal risk was considered by the officer in this case. The question no. 2
raises factual issues that do not transcend the applicants’ interest nor
constitute an issue of broad significance or general application that should
lead to a certification pursuant to the criteria set forth in the case of Liyanagamage,
supra, at paragraph 4.
[52]
For
the foregoing reasons, the Court refuses to certify the two
questions.
JUDGMENT
FOR THESE REASONS
THE COURT:
DISMISSES the applications
for judicial review of the H & C decision produced in file
IMM-3226-07 and of the PRRA decision produced in file IMM-3227-07, and
REFUSES
TO CERTIFY
the questions proposed by the applicants for both files.
“Maurice
E. Lagacé”
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