Date: 20071206
Docket: A-11-07
Citation: 2007 FCA 385
CORAM: LINDEN J.A.
SHARLOW
J.A.
RYER
J.A.
BETWEEN:
SYED MASOOD RAZA
PERVEEN MASOOD RAZA
SYED SALMAN MASOOD RAZA
and SYED OMAIR RAZA by his litigation
guardian SYED MASOOD RAZA
Appellants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT
SHARLOW J.A.
[1]
This
is an appeal from a judgment of Justice Mosley (2006 FC 1385). He dismissed the
appellants’ application for judicial review of the decision of a pre removal
risk assessment officer, who rejected their application for protection under
subsection 112(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the “IRPA”). An application under subsection 112(1) of the IRPA is
referred to as a “pre removal risk assessment application” or a “PRRA
application”.
[2]
The
principal issue in this appeal is the interpretation of paragraph 113(a)
of the IRPA. Paragraph 113(a) deals with the circumstances in which a failed
refugee claimant who makes a PRRA application may present evidence to the PRRA
officer that was not before the Refugee Protection Division (“RPD”) of the
Immigration and Refugee Board.
[3]
Justice
Mosley summarized, at paragraphs 10 through 12 of his reasons, his conclusions
as to the standard of review applicable to a decision of a PRRA officer. Neither
party suggested that he erred in his statement of the applicable standard of
review, or that he failed to apply the appropriate standard of review. As that
issue was not debated, I accept for the purposes of this appeal that the
standard of review for questions of law is correctness, for questions of fact
is patent unreasonableness, and for questions of mixed fact and law is
reasonableness. In my view, nothing in this appeal turns on the standard of
review.
[4]
Mr.
Syed Masood Raza, his wife and their two children are citizens of Pakistan and members
of the Shia minority in that country. Mr. Raza suffered attacks in 1994 at the
hands of Sipah-e-Sahaba Pakistan extremists because of Mr.
Raza’s participation in the religious and business affairs of the Shia
community. He reported the attacks to the police, to no avail. Mr. Raza left Pakistan on October 3,
1994 and his family left the following December. They lived in Texas without
status until 2003, when they came to Canada. Mr. Raza and his
family sought refugee protection under the IRPA on the basis that he had been
attacked because of his religious faith and that adequate state protection was
not available.
[5]
The
provisions of IRPA describing the conferral of refugee protection are sections 95,
96 and 97, which read in relevant part as follows (provisions referring to
criminality and national security, which are not in issue in this case, have
been omitted):
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95. (1) Refugee protection is conferred on a person when
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95. (1)
L’asile est la protection conférée à toute personne dès lors que, selon le
cas :
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(a) the person has been
determined to be a Convention refugee or a person in similar circumstances
under a visa application and becomes a permanent resident under the visa or a
temporary resident under a temporary resident permit for protection reasons;
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a) sur constat qu’elle est, à la suite d’une demande
de visa, un réfugié ou une personne en situation semblable, elle devient soit
un résident permanent au titre du visa, soit un résident temporaire au titre
d’un permis de séjour délivré en vue de sa protection;
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(b) the Board determines
the person to be a Convention refugee or a person in need of protection; or
(c) […] the Minister
allows an application for protection.
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b) la Commission lui reconnaît la qualité de réfugié
ou celle de personne à protéger;
c) le ministre accorde la demande de protection […].
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(2) A protected person is a person on whom refugee protection is
conferred under subsection (1), […] .
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(2) Est appelée personne protégée la personne à qui l’asile est conféré […]
.
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96. A Convention refugee is a person who, by
reason of a well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or political opinion,
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96. A qualité de
réfugié au sens de la Convention—le réfugié—la personne qui, craignant avec
raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
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(a) is outside each of
their countries of nationality and is unable or, by reason of that fear,
unwilling to avail themself of the protection of each of those countries;
[…] .
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a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
[…] .
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97. (1) A person in need of protection is a person
in Canada whose removal to their country or
countries of nationality […] would subject them personally
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97. (1) A qualité de personne à protéger la
personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité […] exposée :
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(a) to a danger, believed
on substantial grounds to exist, of torture within the meaning of Article 1
of the Convention Against Torture; or
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a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
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(b) to a risk to their
life or to a risk of cruel and unusual treatment or punishment if
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b) soit à une menace à sa vie ou au risque de
traitements ou peines cruels et inusités dans le cas suivant :
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(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
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(i) elle ne peut ou, de ce fait, ne veut se réclamer
de la protection de ce pays,
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(ii) the risk would be faced by the person in every
part of that country and is not faced generally by other individuals in or
from that country,
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(ii) elle y est exposée en tout lieu de ce pays
alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le
sont généralement pas,
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(iii) the risk is not inherent or incidental to
lawful sanctions, unless imposed in disregard of accepted international
standards, and
(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care.
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(iii) la menace ou le risque ne résulte pas de
sanctions légitimes—sauf celles infligées au mépris des normes
internationales—et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
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[6]
The claims of Mr.
Raza and his family for refugee protection were rejected by the RPD. The RPD
did not doubt Mr. Raza’s account of the attacks he suffered. However, the RPD concluded
that conditions in Pakistan had changed since his departure, and that adequate
state protection was available as of the date of his application for refugee
protection. Leave to seek judicial review of that decision was dismissed by the
Federal Court on May 5, 2005.
[7]
Once
the leave application was dismissed, there was no procedure available to Mr.
Raza and his family to challenge the decision of the RPD to reject their claim
for refugee protection on the basis of a finding of adequate state protection. There
is no statutory right of appeal. Subsection 55(1) of the Refugee Protection
Division Rules (SOR/2002-228) provides for a refugee protection claim to be
reopened after it has been decided, but the Federal Court has held that this
applies only if the application to reopen is based on an allegation that there
was a failure to observe a principle of natural justice (see, for example, Ali
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1153, Lakhani
v. Canada (Minister of Citizenship and Immigration), 2006 FC 612).
[8]
After
the RPD rejected the claim of Mr. Raza and his family for refugee protection, they
became the subjects of a removal order. Prior to their removal date, they made a
PRRA application under subsection 112(1) of the IRPA, as they were entitled to
do. The removal order was stayed pending the determination of the PRRA
application (section 232 of the Immigration Regulations, SOR/2002-227).
[9]
Subsection
112(1) reads in relevant part as follows:
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112. (1) A
person in Canada […] may,
in accordance with the regulations, apply to the Minister for protection if
they are subject to a removal order that is in force […]
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112.
(1)
La personne se trouvant au Canada […] peut, conformément aux règlements,
demander la protection au ministre si elle est visée par une mesure de renvoi
ayant pris effet […]
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[10]
The
purpose of section 112 of the IRPA is not disputed. It is explained as follows
in the Regulatory Impact Analysis Statement, Canada Gazette, Part II, Vol. 136,
Extra (June 14, 2002), at page 274:
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The
policy basis for assessing risk prior to removal is found in Canada’s domestic
and international commitments to the principle of non-refoulement. This
principle holds that persons should not be removed from Canada to a
country where they would be at risk of persecution, torture, risk to life or risk
of cruel and unusual treatment or punishment. Such commitments require that
risk be reviewed
prior to removal.
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La
justification, au niveau des politiques, de l’examen des risques avant renvoi
se trouve dans les engagements nationaux et internationaux du Canada en
faveur du principe de nonrefoulement. En vertu de ce principe, les demandeurs
ne peuvent être renvoyés du Canada dans un pays où ils risqueraient d’être persécutés,
torturés, tués ou soumis à des traitements ou peines cruels ou inusités. Ces
engagements exigent que les risques soient examinés avant le renvoi.
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[11]
Assuming
there are no issues of criminality or national security, an application
under subsection 112(1) is allowed if, at the time of the application, the
applicant meets the definition of “Convention refugee” in section 96 of the
IRPA or the definition of “person in need of protection” in section 97 of the
IRPA (paragraph 113(c) of the IRPA). The result of a successful PRRA
application is to confer refugee protection on the applicant (subsection 114(1)
of the IRPA).
[12]
A
PRRA application by a failed refugee claimant is not an appeal or
reconsideration of the decision of the RPD to reject a claim for refugee protection.
Nevertheless, it may require consideration of some or all of the same factual
and legal issues as a claim for refugee protection. In such cases there is an
obvious risk of wasteful and potentially abusive relitigation. The IRPA
mitigates that risk by limiting the evidence that may be presented to the PRRA
officer. The limitation is found in paragraph 113(a) of the IRPA, which reads
as follows:
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113. Consideration of an application for protection shall
be as follows:
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113. Il est disposé de la demande comme
il suit :
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(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; [… ] .
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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;
[…] .
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[13]
As
I read paragraph 113(a), it is based on the premise that a negative
refugee determination by the RPD must be respected by the PRRA officer, unless
there is new evidence of facts that might have affected the outcome of the RPD
hearing if the evidence had been presented to the RPD. Paragraph 113(a)
asks a number of questions, some expressly and some by necessary implication,
about the proposed new evidence. I summarize those questions as follows:
1.
Credibility: Is the
evidence credible, considering its source and the circumstances in which it
came into existence? If not, the evidence need not be considered.
2.
Relevance: Is the
evidence relevant to the PRRA application, in the sense that it is capable of
proving or disproving a fact that is relevant to the claim for protection? If
not, the evidence need not be considered.
3.
Newness: Is the
evidence new in the sense that it is capable of:
(a)
proving
the current state of affairs in the country of removal or an event that
occurred or a circumstance that arose after the hearing in the RPD, or
(b)
proving
a fact that was unknown to the refugee claimant at the time of the RPD hearing,
or
(c)
contradicting
a finding of fact by the RPD (including a credibility finding)?
If not, the
evidence need not be considered.
4.
Materiality: Is the
evidence material, in the sense that the refugee claim probably would have
succeeded if the evidence had been made available to the RPD? If not, the
evidence need not be considered.
5.
Express
statutory conditions:
(a)
If
the evidence is capable of proving only an event that occurred or circumstances
that arose prior to the RPD hearing, then has the applicant established either
that the evidence was not reasonably available to him or her for presentation
at the RPD hearing, or that he or she could not reasonably have been expected
in the circumstances to have presented the evidence at the RPD hearing? If not,
the evidence need not be considered.
(b)
If
the evidence is capable of proving an event that occurred or circumstances that
arose after the RPD hearing, then the evidence must be considered (unless it is
rejected because it is not credible, not relevant, not new or not material).
[14]
The
first four questions, relating to credibility, relevance, newness and
materiality, are necessarily implied from the purpose of paragraph 113(a)
within the statutory scheme of the IRPA relating to refugee claims and pre
removal risk assessments. The remaining questions are asked expressly by
paragraph 113(a).
[15]
I
do not suggest that the questions listed above must be asked in any particular
order, or that in every case the PRRA officer must ask each question. What is
important is that the PRRA officer must consider all evidence that is
presented, unless it is excluded on one of the grounds stated in paragraph [13]
above.
[16]
One
of the arguments considered by Justice Mosley in this case is whether a
document that came into existence after the RPD hearing is, for that reason
alone, “new evidence”. He concluded that the newness of documentary evidence
cannot be tested solely by the date on which the document was created. I agree.
What is important is the event or circumstance sought to be proved by the
documentary evidence.
[17]
Counsel
for Mr. Raza and his family argued that the evidence sought to be presented in
support of a PRRA application cannot be rejected solely on the basis that it
“addresses the same risk issue” considered by the RPD. I agree. However, a PRRA
officer may properly reject such evidence if it cannot prove that the relevant
facts as of the date of the PRRA application are materially different from the
facts as found by the RPD.
[18]
In
this case, Mr. Raza and his family submitted a number of documents in support
of their PRRA application. All of the documents were created after the
rejection of their claim for refugee protection. The PRRA officer concluded
that the information in the documents was essentially a repetition of the same
information that was before the RPD. In my view, that conclusion was
reasonable. The documents are not capable of establishing that state protection
in Pakistan, which had
been found by the RPD to be adequate, was no longer adequate as of the date of
the PRRA application. Therefore, the proposed new evidence fails at the fourth
question listed above.
[19]
Justice
Mosley found that the PRRA officer’s assessment of the documents was reasonable
and was not based on an error of law. I agree. For that reason, I would dismiss
this appeal.
[20]
Justice
Mosley certified the following questions:
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1. Is
“new
evidence” for the purposes of s. 113(a) of the IRPA limited to evidence that
post-dates and is “substantially different” from the evidence that was before
the Refugee Protection Division (RPD)?
2.
Does the standard for the reception of “new evidence” under s. 113(a) of the
IRPA require the PRRA officer to accept any evidence created after the RPD
determination, even where that evidence was reasonably available to the
applicant or he/she could reasonably have been expected to present it at the
hearing.
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[21]
These
questions do not lend themselves to simple yes or no answers. I would answer
them by referring to the questions listed in paragraph 13 of these reasons.
“K.
Sharlow”
“I
agree
A.M. Linden J.A.”
“I
agree
C. Michael Ryer J.A.”
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