Dockets: IMM-2050-13
IMM-3938-13
Citation:
2014 FC 505
Ottawa, Ontario, May 26, 2014
PRESENT: The Honourable Mr. Justice Simon Noël
|
BETWEEN:
|
|
SARBJIT KAUR
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
ORDER AND REASONS
I. Introduction
[1]
This Court renders these reasons jointly in
respect to two applications for judicial review brought by the Applicant and
heard on the same day.
[2]
The first application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA] (Docket IMM-2050-13) concerns a decision rendered by Benjamin R.
Dolin [IAD Member Dolin] of the Immigration and Refugee Board [IRB] of Canada’s
Immigration Appeal Division [IAD]. In his decision dated February 19, 2013, IAD
Member Dolin denied the Applicant’s application to reopen her appeal before the
IAD pursuant to section 71 of the IRPA.
[3]
The second application for judicial review, also
brought under subsection 72(1) of the IRPA (Docket IMM-3938-13), applies to a
decision by P. Bandan, Senior Immigration Officer at Citizenship and
Immigration Canada [PRRA Officer] rendered on April 15, 2013 and rejecting the
Applicant’s Pre-Removal Risk Assessment [PRRA] application [the PRRA Decision].
II. Facts
[4]
The Applicant is a citizen of India. Her first husband passed away in 1999. She later married a Canadian citizen, who
became her sponsor, and she came to Canada in November 2006 as a permanent
resident. This marriage ended when the Applicant’s husband repudiated her after
his mother died, blaming her for the death. This marriage was annulled by the
Ontario Superior Court on October 22, 2007 [the Ontario Court Decision].
[5]
The Ontario Court Decision found that the
Applicant had entered into a marriage of convenience, and as a result, she was
subsequently found to be inadmissible to Canada for misrepresentation pursuant
to section 40 of the IRPA. The inadmissibility finding was appealed by the
Applicant but dismissed by the IAD on August 10, 2012.
[6]
The Applicant applied to reopen her appeal on
November 9, 2012, claiming that her former counsel was incompetent and/or
negligent and that his poor services amounted to a breach of natural justice.
Before the IAD, she claimed that her former counsel neglected to specify to the
IAD the exact relief being sought and to provide the IAD with the requested
submissions in relation to the Ontario Court Decision’s finding that she had
entered into a marriage of convenience.
[7]
Around the same time, the Applicant presented
her PRRA application on November 5, 2012, claiming that her return to India
would expose her to a risk by reason of her membership in a particular social
group because she is a divorcee, and a widow and that members of this group are
ostracized, ridiculed and rendered homeless for they are often blamed for their
husband’s death. This PRRA application was rejected on April 15, 2013.
[8]
The Applicant’s application for judicial review
as it concerns the refusal to reopen her appeal under section 71 of the IRPA
was received on June 7, 2013, whereas the application for judicial review regarding
the PRRA decision was received on March 18, 2013. Both applications were heard
during the same sitting before this Court.
III. Analysis
A. Refusal
to reopen the appeal at the IAD under section 71 of the IRPA
(1) Decision
under review
[9]
In this decision, IAD Member Dolin found that
the IAD had the jurisdiction to reopen an appeal on the basis of an applicant’s
counsel’s alleged incompetence. However, he also found that, during the first
appeal in the present matter, the IAD came to the conclusion that the Applicant
was not a credible witness and that her particular circumstances did not
warrant the granting of special relief under paragraph 67(1)(c) of the
IRPA. IAD Member Dolin further concluded that the Applicant was not prejudiced
to the point of having suffered a miscarriage of justice as a result of her
former counsel’s incompetence; given that her testimony was not credible, the
outcome of the appeal would not have been any different if it had not been for
her counsel’s alleged incompetence.
(2) Applicant’s
submissions
[10]
First, IAD Member Dolin erred when he found that
the breach of procedural fairness necessary for an appeal to be reopened
pursuant to section 71 of the IRPA must have been caused by the IAD itself. It
is well established that the incompetence of counsel can lead to a breach of
natural justice and, what is more, IAD Member Dolin acknowledged the
incompetence of counsel in his reasons, which is exactly what the Applicant had
the burden of establishing in order for her appeal to be reopened.
[11]
Second, IAD Member Dolin committed another error
in finding that there was not sufficient evidence to demonstrate that the
Applicant had suffered a prejudice because of her former counsel’s
incompetence. The prejudice is obvious: the IAD had requested submissions in
order to determine whether or not it was bound by the Ontario Court Decision
declaring that the Applicant had entered into a marriage of convenience, and
the Applicant’s former counsel failed to provide the IAD with the requested
submission. Moreover, the Applicant’s former counsel failed to clearly indicate
to the IAD what remedy was sought at appeal and to put forward the humanitarian
and compassionate [H&C] considerations applicable to the Applicant’s case.
It was an error for IAD Member Dolin to find that the Applicant was not
prejudiced as result of her former counsel’s actions or inactions.
(3) Respondent’s
submissions
[12]
With respect to the Applicant’s first argument,
according to which IAD Member Dolin found that the IAD must be the cause of the
breach of natural justice necessary to reopen an appeal under section 71 of the
IRPA, the Respondent replies that the IAD never made such a finding. To the
contrary, IAD Member Dolin found that it had jurisdiction to reopen the appeal in
the present matter. His refusal to reopen the file was based on other reasons.
[13]
As for the second argument, IAD Member Dolin was
entitled to conclude that the Applicant did not suffer a prejudice amounting to
a breach of natural justice as a result of her former counsel’s alleged
incompetence because the Applicant’s case turned on the credibility of her
testimony, or lack thereof. The Applicant did not suffer a prejudice because
the outcome of her application would have been the same notwithstanding of her
former counsel’s incompetence. The Applicant failed to demonstrate in what way
it would have made a difference, in the end, if her former counsel had produced
the submissions requested by the IAD regarding the Ontario Court Decision.
Here, it was the credibility issue that was determinant. In addition, IAD
Member Dolin did assess the two grounds of relief that could have been granted
in the case despite the fact that the Applicant’s former counsel failed to
specify what remedy was sought and to advance the H&C considerations in his
client’s case. The Applicant did not suffer a prejudice as envisioned by case
law as a result of her former counsel’s incompetence, especially that only the
clearly established cases of exceptional incompetence will lead to a breach of
natural justice.
(4) Issue
and standard of review
[14]
The case at bar raises the following issue: did
IAD Member Dolin err in denying the Applicant’s application to reopen her appeal
before the IAD pursuant to section 71 of the IRPA?
[15]
As the underlying issue relates to the existence
of a breach of natural justice, IAD Member Dolin’s decision is to be reviewed
under the standard of correctness (see Hillary v Canada (Minister of Citizenship
and Immigration), 2011 FCA 51 at paras 27-29, [2011] FCJ No 184; see for
example Juste v Canada (Minister of Citizenship and Immigration), 2008
FC 670 at paras 22-24, [2008] FCJ No 863).
[16]
As rightly stated by the Applicant, under this
standard of review, this Court “will not show deference to the decision maker’s
reasoning process; it will rather undertake its own analysis of the question.
The analysis will bring the court to decide whether it agrees with the
determination of the decision maker; if not, the court will substitute its own
view and provide the correct answer. From the outset, the court must ask
whether the tribunal’s decision was correct.” (Dunsmuir v New Brunswick),
2008 SCC 9 at para 50, [2008] SCJ No 9)
(5) Disposition
[17]
For reasons detailed below, the decision
rendered by IAD Member Dolin was the correct decision to make and, therefore,
this Court will not interfere.
[18]
The Applicant asked the IAD to reopen her appeal
pursuant to section 71 of the IRPA, which reads as follows:
|
Immigration and Refugee Protection Act,
SC 2001, c 27
PART 1
IMMIGRATION TO CANADA
Division 7
Right of Appeal
[…]
Reopening appeal
71. The Immigration Appeal Division,
on application by a foreign national who has not left Canada under a removal order, may reopen an appeal if it is satisfied that it failed to observe a
principle of natural justice.
|
Loi sur l’immigration et la protection des réfugiés, LC 2001, ch 27
PARTIE 1
IMMIGRATION AU CANADA
Section 7
Droit d’appel
[…]
Réouverture de l’appel
71. L’étranger qui n’a pas quitté le
Canada à la suite de la mesure de renvoi peut demander la réouverture de
l’appel sur preuve de manquement à un principe de justice naturelle.
|
[19]
At the heart of the IAD’s decision to reopen an
appeal is the determination of whether or not a breach of natural justice
occurred. As aptly noted by the Respondent and contrary to the Applicant’s
assertion, IAD Member Dolin never claimed that the IAD needed to be the cause
of the breach of natural justice. And while IAD Member Dolin did take a somewhat
convoluted approach with respect to jurisdiction – referring to the existence
of new evidence and to the principle of functus officio –, he ended this
analysis by noting that “in cases that do not involve new evidence as the basis
for requesting a reopening, section 71 of the IRPA does not remove the IAD’s
jurisdiction to reopen appeals where there has otherwise been a denial of
natural justice.” (see IAD Member Dolin’s reasons, at para 15) More precisely,
he also concluded that “the IAD has jurisdiction to reopen an appeal based on
the incompetence of appellant’s counsel.” (see IAD Member Dolin’s reasons, at
para 8) This finding could hardly be any clearer.
[20]
For the purpose of section 71 of the IRPA, the
question IAD Member Dolin had to ask himself was whether or not a breach of
natural justice occurred at the outcome of the case, and not whether or not the
Applicant’s former counsel’s incompetence lead to a breach of natural justice.
[21]
In his decision, IAD Member Dolin addressed the
issue of counsel’s incompetence, and the Applicant in her written submissions
goes to great length to substantiate her claims that her former counsel was
incompetent and, as a consequence, that she suffered an obvious prejudice from
which ensues a breach of natural justice, hence opening the door to a request
under section 71 of the IRPA.
[22]
In the present matter, however, there is no need
to undertake an extensive analysis of the criteria applicable to determine if
counsel’s actions or inactions amounted to incompetence as envisioned by case
law (see R v GDB, 2000 SCC 22 at paras 26-29, [2000] 1 S.C.R. 520 [GDB])
because the Applicant’s case was determined on the issue of credibility.
Nonetheless, I shall briefly tackle the issue of counsel incompetence in the
following paragraphs.
[23]
Since counsel acts as an agent, it is generally
accepted that counsel’s actions cannot be separated from that of his or her
client. This well-recognized rule stems from the fact that a client who freely
chooses an agent must be willing to bear the consequences resulting from this
choice of representation. There are nevertheless exceptions to this rule in
cases where conduct of counsel will manifest such negligence that his or her
conduct (or incompetence) amounts to a breach of procedural fairness. In cases
where counsel incompetence leads to a breach of procedural which changes the
result of the claim, the IAD’s intervention in reopening the appeal pursuant to
section 71 of the IRPA would be warranted. To this end, the applicant in
question must meet a three-pronged test laid out in case law (see GDB, above,
at paras 26-29 and Yang v Canada (Minister of Citizenship and Immigration),
2008 FC 269 at paras 17 and 24, [2008] FCJ No 344 [Yang]), the onus of
proving counsel’s incompetence lying with the Applicant (Yang, above, at
para 18):
1. The
counsel’s acts or omissions constituted incompetence;
2. That
a prejudice was caused; or
3. That
a miscarriage of justice occurred.
[Yang,
above, at para 18]
[24]
Also, as stated by my colleague Justice de
Montigny in Bedoya v Canada (Minister of Citizenship and Immigration),
2007 FC 505 at para 20, [2007] FCJ No 680 [Bedoya]:
[20] In addition, the applicants must show that there is a
reasonable probability that but for this alleged incompetence, the result of
the original hearing would have been different: Shirvan v Canada (Minister
of Citizenship and Immigration), [2005] FCJ No. 1864, 2005 FC 1509; Jeffrey
v Canada (Minister of Citizenship and Immigration), [2006] FCJ No. 789,
2006 FC 605; Olia v Canada (Minister of Citizenship and Immigration),
[2005] FCJ No. 417, 2005 FC 315.
[25]
As the outcome would not have been any different
in the present case, this is where the Applicant’s claim fails. As noted
earlier, IAD Member Dolin dismissed the Applicant’s request to reopen her
appeal maintaining that the IAD had found, during the first appeal before it,
that the Applicant was deemed not to be a credible witness on account of
inconsistencies and implausibilities in her testimony (see IAD original
decision dated August 10, 2012, at paras 45 to 47, in the Certified Tribunal
Record [CTR] for Docket IMM-2050-13, at pages 105-108). The Applicant argues
that she suffered an obvious prejudice as a result of her counsel’s inaction
because he failed to produce submissions before the IAD in relation to the
Ontario Court Decision finding that she had entered in a marriage of
convenience. It is not disputed that the Applicant’s former counsel’s conduct
is not in accordance with the professional norms applicable in such a
situation. However, the Applicant did not establish in what way the outcome of
her first appeal would have been any different if her counsel had indeed made
the appropriate submissions, considering that her appeal was rejected on the
basis of a lack of credibility – even if counsel had presented submissions, I
find that there is not a “reasonable probability [that] the result of the
original hearing would have been different” (Bedoya, above, at para 20).
[26]
Therefore, IAD Member Dolin was right in finding
that the Applicant could not claim having suffered a prejudice as a result of
her former counsel’s alleged incompetence.
[27]
Consequently, the Applicant’s application for
judicial review as it concerns IAD Member Dolin’s decision denying her request
to reopen her appeal pursuant to section 71 of the IAD shall be dismissed.
B. Pre-removal
risk assessment application
(1) Decision
under review
[28]
After reviewing the Applicant’s allegations, the
PRRA Officer listed the evidence which was considered in processing the PRRA
application. In this regard, the PRRA Officer afforded little weight and low
probative value to certain documents provided by the Applicant, namely an
affidavit produced by her mother (deemed self-serving) and a letter written by
a priest (because it did not support the Applicant’s personalized risks she
would face in India). The PRRA Officer also examined the prevalent country
conditions and found that while the situation for women in India is not perfect, the government is making serious efforts to rectify the deficiencies
and that the general situation of women has improved. The Applicant failed to
adduce clear and convincing evidence to rebut the presumption of state
protection. As for widows and divorcees in particular, the discrimination tends
to be more important in rural areas, but the Applicant could avail herself from
viable internal flight alternatives [IFAs] in metropolitan areas of the
country.
[29]
In the end, the PRRA Officer found that the
Applicant’s submissions represent the general country conditions and do not
suffice to establish that she faces a personalized, forward-looking risk of
persecution should she return to India. The PRRA Officer found that none of the
Convention grounds were applicable. Consequently, the PRRA Officer concluded
that there is not a serious possibility, should she return to India, that the
Applicant would suffer persecution under section 96 of the IRPA, that she would
be “subjected personally to risk to life or a risk of cruel and unusual
treatment or punishment” under paragraph 97(1)(b) of the IRPA (see the
PRRA Decision, in the CTR for Docket IMM-3938-13, at page 9). Lastly, the PRRA
Officer concluded that the Applicant’s removal would not subject her personally
to a danger, believed on substantial grounds to exist, of torture under
paragraph 97(1)(a) of the IRPA (see the PRRA Decision, in the CTR for
Docket IMM-3938-13, at page 9).
(2) Applicant’s
submissions
[30]
As a first argument, the PRRA Officer erred in
finding that none of the Convention grounds under section 96 of the IRPA
applied to the Applicant. It is clear that the Applicant, as a widow, would be
at risk if she were to be sent back to India, especially considering that she
was subsequently abandoned by her second husband. The Applicant has no control
over the fact that she is a widow, and it has been determined by the Court that
femaleness can be sufficient to qualify as a particular social group. Moreover,
the PRRA Officer set aside some of the evidence because it did not establish
the Applicant’s personalized risk, but the requirement of “personalized” risk
is only applicable to section 97 of the IRPA, whereas an assessment under
section 96 requires that an applicant establish persecution. In fact, the issue
of personalized risk was determinant to the PRRA Officer’s decision and it should
not have been the case.
[31]
Second, the PRRA Officer erred because in the
assessment of her claim, the Applicant was considered as a woman and not as a
widow. Because the PRRA Officer assessed the claim solely on the basis of the
Applicant’s gender, important evidence establishing that widows face a serious
risk of persecution as well as a personalized risk was ignored. The Applicant’s
case should have been examined against that of similarly-situated people.
(3) Respondent’s
submissions
[32]
The PRRA Officer’s findings were not to the
effect that widows and divorcees do not constitute a particular social group,
only that the Applicant failed to establish a well-founded fear of persecution
based on this particular social group. The PRRA Officer considered the Applicant’s
personal circumstances as well as mixed evidence related to women in general
and to widows and divorcees but found that widows and divorcees are more at
risk in remote areas and the Applicant could move to a bigger city. As such,
the PRRA Officer did not fail to make a finding with respect to section 96 of
the IRPA. Moreover, the PRRA Officer did note conflate the assessments under
sections 96 and 97 of the IRPA. In fact, the reference to a “personalized risk”
was reasonable as the risk needs to be particularized for each applicant
because not all the members of a particular social group are exposed to the
same risks. Finally, there seems to be a contradiction in the Applicant’s
arguments as she claims, on one hand, that the PRRA Officer in assessing her
application only considered her as a woman and not a widow and, on the other
hand, that he ignored the fact that she was a woman and that this could suffice
to prove that she belongs to a particular social group.
(4) Issue
and standard of review
[33]
The Applicant’s application for judicial review
raises the question of whether or not the PRRA Officer erred in denying the
application, and more specifically this Court shall address the two following
sub-issues:
1. Did
the PRRA Officer err by requiring the Applicant to establish a personalized
risk and by failing to conduct a proper assessment of whether the Applicant has
a well founded fear of persecution under section 96 of the IRPA, i.e. did the
PRRA Officer conflate the tests for sections 96 and 97 of the IRPA?
2. Did the PRRA Officer err by considering the Applicant as a woman
and not as a widow or a divorcee in assessing the claim?
[34]
With respect to the first question, as it is a
question of law, it is to be reviewed under the standard of correctness (see Mahendran
v Canada (Minister of Citizenship and Immigration), 2009 FC 1237 at para
10, [2009] FCJ No 1555 [Mahendran]; see also Pillai v Canada
(Minister of Citizenship and Immigration), 2008 FC 1312 at para 32, [2008]
FCJ No 1663).
[35]
The standard of review applicable to PRRA
decisions in general, and in the present case to the second issue, is well
settled, as is the level of deference to be afforded to these decisions by this
Court. My colleague Justice O’Keefe of this Court has noted the following in Cao
v Canada (Minister of Citizenship and Immigration), 2013 FC 560 at paras 21
and 22, [2013] FCJ No 632:
[21] It is trite law that the standard of review of PRRA decisions
is reasonableness (see Wang v Canada (Minister of Citizenship and
Immigration), 2010 FC 799, [2010] FCJ No 980 at paragraph 11; and Aleziri
v Canada (Minister of Citizenship and Immigration), 2009 FC 38, [2009] FCJ
No 52 at paragraph 11). […]
[22] In reviewing the officer’s decision on the standard of
reasonableness, the Court should not intervene unless the officer came to a
conclusion that is not transparent, justifiable and intelligible and within the
range of acceptable outcomes based on the evidence before it (see Dunsmuir
above, at paragraph 47 and Canada (Minister of Citizenship and Immigration)
v Khosa, 2009 SCC 12 at paragraph 59, [2009] 1 S.C.R. 339). As the Supreme
Court held in Khosa above, it is not up to a reviewing court to substitute its
own view of a preferable outcome, nor is it the function of the reviewing court
to reweigh the evidence (at paragraph 59).
(5) Disposition
[36]
For reasons set out below, the PRRA Decision is
valid in its entirety and does not warrant the intervention of this Court.
A. Did
the PRRA Officer err by requiring the Applicant to establish a personalized risk
and by failing to conduct a proper assessment of whether the applicant has a well
founded fear of persecution under section 96 of the IRPA, i.e. did the PRRA Officer
conflate the tests for sections 96 and 97 of the IRPA?
[37]
As noted by the Respondent, it is necessary to
read the PRRA Officer’s reasons as a whole and not simply draw attention to
certain passages. Only then will it be possible to determine if the decision
adequately refers to the tests for both sections 96 and 97 of the IRPA. That is
why, upon reading the PRRA Decision, this Court is satisfied that just because
he insisted on the importance of the risk of persecution being personalized, it
does not necessarily mean that the PRRA Officer conflated the tests for
sections 96 and 97 of the IRPA.
[38]
My colleague Justice Beaudry, of this Court,
addressed exactly the same issue in Mahendran, above, at paras 17 and
18, and came to the following conclusion:
[17] In support of his submission, the Applicant relies on the
decision of Justice Martineau in Fi v Canada (Minister of Citizenship and
Immigration), 2006 FC 1125, [2006] F.C.J. No. 1401 (QL). However, I do not
find that this case offers much guidance due to the numerous factual
differences between that case and the one at hand. Instead, I would adopt that
line of cases cited by the Respondent in which it has been held that simply
using the words such as "individualized risk" does not mean that the
different tests under sections 96 and 97 have been conflated (see Pillai and
Kaba). I agree that simply referring to an individualised risk being
required does not mean that the Officer misunderstood the difference between
the two tests.
[18] Although the Officer stated that documentary evidence alone was
not sufficient and that there must be evidence of an individualised risk, I am
satisfied that her reasons as a whole demonstrate that she understood the
difference between the two tests and she did apply the two tests accordingly.
The Officer considered evidence on the country conditions in Sri Lanka, including the situation of individuals similarly situated to the Applicant, and
dismissed the application based on her findings on the changing country
conditions along with her conclusion that the Applicant did not present
individual characteristics that would put him at risk. In doing so, she did
assess the risks faced by the Applicant as a young Tamil male but felt that
this risk was negated by the changing country conditions in Sri Lanka. She further found that there was not an individualised risk as the Applicant did
not present any characteristics that would put him at risk from the government
or the LTTE. I do agree that her analysis could have been more clearly
articulated but it was not unreasonable.
[Emphasis added.]
[39]
As it was the case in Mahendran, above, I
am satisfied that, while they lead to the same result, distinct analysis for
section 96 and for section 97 of the IRPA were validly undertaken by the PRRA
Officer in the present case.
[40]
Also contrary to what the Applicant contends,
the PRRA Officer did assess the Applicant’s claim while taking into account
that she was both a woman and a widow and divorcee. In fact, the PRRA Officer
examined and referred to evidence related to both groups. In addition, the PRRA
Officer never concluded that widows and divorcees in India are not a particular
social group for the purposes of the Convention under section 96 of the IRPA.
The PRRA Officer simply failed to see that the Applicant had a fear of being
persecuted as a result of her belonging to this particular social group. Not
all widows and divorcees in India are treated equally, and it is well known
that the notion of risk under section 96 of the IRPA entails both an objective
and subjective basis. The idea that the risk needs to be “personalized” or
“individualized” undoubtedly refers to the fact that an applicant must
establish the subjective basis of his or her fear of being persecuted.
[41]
In the present matter, the PRRA Officer took
into account the Applicant’s personal circumstances, including the fact that
the Applicant visited India for a week despite already being a widow and a
divorcee. He also considered and referred to mixed public and reliable evidence
concerning both women in general and widows and divorcees. The evidence
considered and referred to include the 2011 United States Department of State
Human Rights Report on India, and a research report entitled IND103726.E, which
speaks of the particular situation of widows and divorcees in India and which refers to numerous credible sources of information, as it is a Response to Information Request. In the end, however, the PRRA Officer came to the conclusion that although
not perfect, the situation of women in general was improving with time and
that, in the case of widows and divorcees in particular, they were more at risk
of being persecuted in rural regions. This mixed evidence and the Applicant’s
individual circumstances lead the PRRA Officer to find that the Applicant did
not produce sufficient evidence to rebut the presumption of state protection
and, in any event, that she could move to a more metropolitan region of India. It should be noted that these findings – the presumption of state protection and the
availability of viable IFAs – were not refuted by the Applicant during these
proceedings. Considering what had been presented as evidence, these findings
fall within the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.” (Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47, [2008] SCJ No 9).
[42]
As for the Applicant’s argument that the PRRA
Officer failed to consider all the evidence, it is well established that a
decision-maker is not required to refer to each and every piece of evidence and
that he or she is deemed to have consulted all the evidence which had been
presented unless the contrary is proven (Florea v Canada (Minister of
Employment and Immigration), [1993] FCJ No 598 (FCA) at para 1; see for
example Andrade v Canada (Minister of Citizenship and Immigration), 2010
FC 1074 at para 64, [2010] FCJ No 1348).
[43]
Thus, having already found that the PRRA Officer
reasonably concluded that the Applicant could benefit from state protection or
move to a viable IFA in India, it would be difficult for this Court to conclude
that the PRRA Officer was wrong in finding that the Applicant failed to
establish the subjective basis of her fear of persecution under section 96 of
the IRPA. As such, unlike what the Applicant asserts, it cannot be said that
the PRRA Officer erred in finding that the Applicant did not have a nexus to
any of the Convention grounds under section 96 of the IRPA. Furthermore, the
existence of a viable IFA settles the issue of the risk under section 97 of the
IRPA.
[44]
Consequently, not only am I satisfied that the
PRRA Officer did not conflate the tests for sections 96 and 97 of the IRPA, I
am satisfied that these tests were reasonably undertaken.
B. Did the PRRA Officer err by considering the Applicant as a
woman and not as a
widow or a divorcee in assessing the claim?
[45]
As mentioned above, the PRRA Officer did not
limit his assessment of the Applicant’s claim to the fact that she is a woman.
He actually took into consideration the Applicant’s personal circumstances as
well as mixed evidence related to the situation of widows and divorcees in India. Ultimately, however, it was found that the Applicant did not rebut the presumption
of state protection and that she could benefit from a number of viable IFAs in
the more metropolitan regions of the country. What is more, as mentioned above,
the PRRA Officer’s assessment of the Applicant’s claim as it concerns her
status as a widow and a divorcee was reasonable.
[46]
As none of the Applicant’s arguments are well
founded, the application for judicial review as it concerns the negative PRRA
Decision shall be dismissed.
IV. Closing
remarks
[47]
For the aforementioned reasons, both
applications for judicial review brought by the Applicant in the current
proceedings shall be dismissed.
[48]
The parties were invited to submit a question
for certification, but none were proposed.
Email this Content