Date: 20060406
Docket: IMM-6142-05
Reference: 2006 FC 441
Ottawa, Ontario, April 6, 2006
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
PATRICK
DUBREZIL
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
AND THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
INTRODUCTION
[1]
The agent
responsible for a Pre-Removal Risk Assessment (PRRA) does not have the power to
requalify and therefore to examine humanitarian and compassionate factors within
the specific framework of a PRRA. The agent responsible for a PRRA does not
make an error by confining his review to sections 96 and 97 of the Immigration
and Refugee Protection Act,
S.C. 2001, c. 27 (the Act). To initiate proceedings based on humanitarian and
compassionate grounds, a separate application in accordance with subsection
25(1) of the Act must be filed.
TYPE OF JUDICIAL PROCEEDING
[2]
This is an
application for judicial review, filed pursuant to subsection 72(1) of the Act,
of the decision of an immigration officer responsible for a PRRA dated August
30, 2005, whereby he determined that the applicant did not risk torture or
persecution, nor risk of cruel and unusual treatment or threats to his life if
removed to his country of citizenship.
FACTS
[3]
The
applicant, Patrick Dubrezil, was born on September 25, 1983 in Haiti, his
country of citizenship. In 1997, Mr. Dubrezil, along with his parents, his
brother and sister, arrived in Canada as a permanent resident.
[4]
Around
January 2001, Mr. Dubrezil met Melissa Robitaille and they became friends. They
have been living together since March 2004. Ms. Robitaille has two children who
are very attached to Mr. Dubrezil, although he is not their biological father.
[5]
On March
12, 2002, while he was at home, three armed individuals broke into
Mr. Dubrezil’s residence and shot him in the lower stomach and hip. He was
seriously injured and underwent several surgical operations. Since this
incident, he has been limping and requires sustained medical care.
[6]
On
December 13, 2001, Mr. Dubrezil was found guilty of one count of being
unlawfully in a dwelling-house in violation of subsection 349(1) of the Criminal
Code of Canada (the Code) and of one count of conspiracy in violation of
paragraph 465(1)(c) and subsection 349(1) of the Code. He was sentenced
to one day of imprisonment on each count and to a probation period of 18
months.
[7]
On July 7,
2003, he was found guilty of using a false firearm while committing an offence,
in violation of paragraph 85(2)(a) and subsection 85(3) of the Code. He
was sentenced to 12 months of imprisonment.
[8]
On July 16, 2003, a referral order for an
admissibility hearing before the Immigration Division was issued in order to
determine whether Mr. Dubrezil is a person described in paragraph 36(1)(a)
of the Code, namely an inadmissible person on grounds that he was convicted in Canada of an offence under an Act of Parliament
punishable by a maximum term of imprisonment of at least 10 years, or of an
offence under an Act of Parliament for which a term of imprisonment of more
than six months has been imposed. Following this referral, the
Immigration Division determined on October 31, 2003 that Mr. Dubrezil was
inadmissible and issued an exclusion order against him. On the same day, Mr.
Dubrezil appealed the decision before the Immigration Appeal Division.
[9]
On June
23, 2004, the Immigration Appeal Division ruled that Mr. Dubrezil’s appeal had
been abandoned pursuant to subsection 168(1) of the Act.
[10]
On March
3, 2005, Mr. Dubrezil filed his PRRA application. On March 16, 2005, he filed a
motion to reopen his appeal with the Immigration Appeal Division. The motion
was dismissed on June 27, 2005.
CHALLENGED DECISION
[11]
The
immigration officer responsible for the PRRA found that Mr. Dubrezil had failed
to show that he would be exposed in Haiti to the type of risks described in
sections 96 and 97 of the Act. Although the overall situation in Haiti is
difficult, Mr. Dubrezil has not offered evidence showing that his own situation
is different from that of other Haitians. The evidence does not show that there
is more than a slight possibility that he would be persecuted or that it is
likely he would be personally subjected to a danger of torture, to a risk to
his life, or to a risk of cruel and unusual punishment or treatment.
[12]
The
immigration officer responsible for the PRRA determined that the humanitarian
and compassionate factors presented by Mr. Dubrezil were not relevant to the
PRRA. The PRRA’s role was to establish whether Mr. Dubrezil would be exposed to
a risk of torture, threats to his life or cruel and unusual punishment or
treatment if he were sent back to Haiti.
ISSUES
[13]
This
application raises the two following issues:
1. Was the decision by the
immigration officer responsible for the PRRA that humanitarian and
compassionate considerations are irrelevant in a PRRA application a reviewable
error?
2. Was the decision by the
immigration officer responsible for the PRRA to dismiss the application for
protection a reviewable error?
ANALYSIS
Statutory Framework
[14]
Under
subsection 112(1) of the Act, a person subject to a removal order may file an
application for a PRRA to seek the protection of Canada.
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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).
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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).
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[15]
Section
113 of the Act 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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(b) a hearing
may be held if the Minister, on the basis of prescribed factors, is of the
opinion that a hearing is required;
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b) une
audience peut être tenue si le ministre l’estime requis compte tenu des
facteurs réglementaires;
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(c) in the case
of an applicant not described in subsection 112(3), consideration shall be on
the basis of sections 96 to 98;
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c)
s’agissant du demandeur non visé au paragraphe 112(3), sur la base des
articles 96 à 98;
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.
. .
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[…]
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[16]
Under
subsection 25(1) of the Act, the Minister may grant an exemption from certain
obligations under the Act for humanitarian and compassionate reasons, if he
feels it is justified.
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25. (1) The Minister shall, upon request of a
foreign national who is inadmissible or who does not meet the requirements of
this Act, and may, on the Minister’s own initiative, examine the
circumstances concerning the foreign national and may grant the foreign
national permanent resident status or an exemption from any applicable
criteria or obligation of this Act if the Minister is of the opinion that it
is justified by humanitarian and compassionate considerations relating to
them, taking into account the best interests of a child directly affected, or
by public policy considerations.
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25. (1) Le ministre doit, sur demande d’un
étranger interdit de territoire ou qui ne se conforme pas à la présente loi,
et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui
octroyer le statut de résident permanent ou lever tout ou partie des critères
et obligations applicables, s’il estime que des circonstances d’ordre humanitaire
relatives à l’étranger – compte tenu de l’intérêt supérieur de l’enfant
directement touché – ou l’intérêt public le justifient.
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[17]
Section 96
of the Act reads as follows:
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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; or
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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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(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
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b) soit, si
elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait
sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
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[18]
Section 97
of the Act states as follows:
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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
or, if they do not have a country of nationality, their country of former
habitual residence, 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 ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, 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
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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 occasionnées
pas elles,
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(iv) the risk is
not caused by the inability of that country to provide adequate health or
medical care.
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(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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(2)
A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
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(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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Judicial Review Standard
[19]
As both
issues raise a question of statutory interpretation and the correct application
of the legislation to the facts, we are dealing with issues of mixed law and
fact, and the applicable judicial review standard is that of reasonableness simpliciter.
As to facts, immigration officers have expertise in risk assessment, and
therefore a high measure of judicial restraint is called for. (Kim v. Canada
(Minister of Citizenship and Immigration), 2005 FC 437, [2005] F.C.J. No.
540 (QL), at paragraphs 8-19)
Was the decision by the immigration
officer responsible for the PRRA that humanitarian and compassionate factors do
not give rise to protection a reviewable error?
[20]
Mr.
Dubrezil confused two essential elements of the administrative organisation
within the Department of Citizenship and Immigration: the delegation
powers of the Minister and the jurisdiction of officers with respect to the
review of a particular application.
[21]
Subsection
6(1) of the Act empowers the Minister responsible for the application of the
Act, the Minister of Citizenship and Immigration, to delegate some of his
powers to classes of individuals or to individuals. The Minister has conferred
on the officers responsible for PRRA the power to dispose of PRRA applications
as well as of applications for exemptions pursuant to subsection 25(1) of the
Act. (Immigration Manual, chapter IL3, Appendix B.) Chapter PP3 of the Immigration
Manual, which Mr. Dubrezil incorrectly relies upon, simply reflects that
state of affairs. However, it does not have the effect of amending the Act and
of including humanitarian and compassionate considerations as protection
grounds.
[22]
Paragraph
113c) of the Act thus provides that a PRRA is conducted in
accordance with sections 96 and 97 of the Act, namely on the basis of the
criteria used to determine if an individual is a refugee as defined under the
Convention or a person in need of protection.
[23]
In Kim,
supra, at paragraph 70, (which was followed in Covarrubias v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1193, [2005] F.C.J. No.
1470 (QL)), Mr. Justice Richard Mosley held that agents
responsible for the PRRA are not empowered to take into account humanitarian
and compassionate factors when making a PRRA decision. They should only
consider factors related to risk.
By the same logic, I
find that PRRA officers need not consider humanitarian and compassionate
factors in making their decisions. There is no discretion afforded to a PRRA
officer in making a risk assessment. Either the officer is satisfied that the
risk factors alleged exist and are sufficiently serious to grant protection, or
the officer is not satisfied. The PRRA inquiry and decision‑making
process does not take into account factors other than risk. In any case, there
is a better forum for the consideration of humanitarian and compassionate
factors: the H & C determination mechanism. I do not find that the officer
erred in law by refusing to consider humanitarian and compassionate factors in
the context of the PRRA decision.
[24]
If he
wished that humanitarian and compassionate factors be considered, Mr. Dubrezil
should have filed a separate application pursuant to subsection 25(1) and paid
the necessary filing fees. Since the officer responsible for the PRRA could not
requalify and thus examine humanitarian and compassionate grounds within the
specific framework of the PRRA (Patel v. Canada (Ministre de l’Emploi et de
l’Immigration), [1991] F.C.J. No. 9 (QL), (1991) 121 N.R. 260, at
paragraph 4 (F.C.A.), he did not err in confining his analysis to sections
96 and 97 of the Act.
Was the decision by the immigration
officer responsible for the PRRA to dismiss the application for protection a
reviewable error?
[25]
It is
settled law that an individual seeking the international protection of Canada
is required to prove the existence of a subjective fear (Sinora v. Canada (Minister
of Employment and Immigration) (1993), 66 F.T.R. 113, [1993] F.C.J. No. 725
(QL), at paragraph 5) and that his evidence may not be solely based on general
documentary evidence. (Al-Shammari v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 364, [2002] F.C.J. No. 478 (QL), at
paragraph 24).
[26]
In a
well-balanced review, the officer responsible for the PRRA noted that, although
the overall situation in Haiti was difficult, Mr. Dubrezil had not offered any
evidence that he personally feared being persecuted on the basis of one of the
five persecution grounds, or that he would personally be exposed to a risk of
torture or risk to his life.
[translation]
Although the situation in Haiti is
difficult and the applicant’s claim is based on this, he has the burden of
showing that he would be personally subjected to a risk. However, the evidence
in his case does not lead to the conclusion that there is any more than a
slight possibility that he would be persecuted there or that there are serious reasons
to believe that he would personally be at risk if he returned to his country.
All citizens are affected by the current conditions and the applicant is as
affected as the rest of the population. He has failed to show that his
situation is different from that of the other Haitians. The risk he would be
exposed to is defined as a general risk and therefore does not meet the
criteria of sections 96 and 97 of the IRPA.
Notwithstanding the overall risk, the
documentary evidence shows that human rights advocates and journalists are more
exposed to attacks than others. However, the applicant has failed to show that
he is a member of one of those groups. Therefore, I cannot come to the
conclusion that he would personally be at risk if he returned to his country.
(Court’s reasons, at pages 5-6)
[27]
Mr.
Dubrezil does not seriously challenge this finding. Instead, to support his
argument, that the officer responsible for the PRRA erred, he refers to the
general documentary evidence. Besides, his affidavit does not indicate whether
or not he submitted this evidence to the officer responsible for the PRRA.
[28]
The review
of the fear factor was done in accordance with the law and, because there is no
specific evidence relating to Mr. Dubrezil, the officer responsible for the
PRRA did not err in dismissing the PRRA application.
CONCLUSION
[29]
The
officer responsible for the PRRA did not err in omitting to take into
consideration humanitarian and compassionate factors, as such factors are not
relevant to the PRRA decision‑making process. His review was correctly
confined to sections 96 and 97 of the Act. Mr. Dubrezil failed to prove
that he would personally be at risk if he returned to Haiti. As a general risk
does not justify granting protection, the officer responsible for the PRRA had
to dismiss the application for protection.
JUDGMENT
THE COURT ORDERS that
1. The application be dismissed;
2. No serious question of general importance be
certified.
“Michel
M.J. Shore”
Certified
true translation
François
Brunet, LLB, BCL
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