Date: 20061016
Docket: IMM-6809-05
Citation: 2006 FC 1227
Halifax, Nova Scotia, October 16, 2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
SARAH
GIDEON MWAKOTBE
Applicant
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 an immigration officer, dated October 19, 2005, rejecting the
applicant’s Pre-Removal Risk Assessment (PRRA) application.
[2]
The
applicant seeks an order of certiorari quashing the immigration
officer’s decision.
Background
[3]
The
applicant, a national of Tanzania, entered Canada on a visitor
visa in November 2002. She claimed refugee status in June 2003, alleging that
she is in danger in Tanzania from her estranged husband’s family clan which
practices witchcraft, including ritualistic killings of relatives, particularly
those who are educated and wealthy.
[4]
A
refugee protection hearing for the applicant’s claim was set for August 6,
2004. Her son’s refugee claim was scheduled to be heard at the same time. The
applicant attended the hearing on August 6, 2004 without her son. At the
hearing, the applicant explained that her son was not feeling well and that she
wished to proceed with her son as her representative.
[5]
Abandonment
proceedings were commenced and a show cause hearing was set for August 17,
2004. The applicant was instructed that she was to appear at that hearing along
with her son. On August 17, 2004, only the applicant’s son appeared. He
indicated that he was not prepared for his hearing at the time of the first
sitting. He also stated that his mother was aware of the hearing but he could
not explain why she did not appear.
[6]
The
Refugee Protection Division of the Immigration and Refugee Board (the Board)
found that the applicant and her son were in default of proceedings, and their
actions in stalling for time were an abuse of process. The Board held that the
claims of the applicant and her son were abandoned as of October 6, 2004.
[7]
The
applicant then submitted a PRRA application. She asked for her story to be
reconsidered in light of the fact that her son was ill and confused at the time
of the show cause hearing and thus said things that were not true. On October
19, 2005, an immigration officer rendered a negative PRRA decision as the
applicant was determined not to be at risk in her country of nationality. This
is the judicial review of that decision.
Reasons for
the PRRA Officer’s Decision
[8]
The
PRRA officer stated that it was her understanding that a deemed abandonment of
a claim was the same as rejecting a claim under section 107 of IRPA. Based on
this, the officer stated that it is reasonable under the circumstances to
expect that the evidence now presented should have been presented to the Board
prior to its rejection of the claim. The PRRA officer found that there was an
absence of sufficient new evidence to demonstrate a risk resulting from changing
country conditions or personal circumstances since the Board’s decision.
[9]
The
PRRA officer found, in the alternative, that if her understanding of a
rejection of a claim was incorrect, she did give full consideration to the
applicant’s narrative and supporting documents. The officer accepted that there
is a widespread belief in witchcraft throughout Tanzania, which in
some instances has led to killings of suspected witches by those claiming to be
their victims or aggrieved relatives of victims. The officer, however, was of
the view that the family members who allegedly seek to harm the applicant do so
in a search for wealth, and not because of her race, religion, nationality,
political opinion or her membership in a particular social group. The officer
determined that the harm feared is criminal in nature, and has no nexus to the
Convention refugee definition. Therefore, the applicant had not established a
serious possibility of persecution within the meaning of section 96 of IRPA.
[10]
The
PRRA officer found that, concerning the applicant’s allegation of a risk of
harm under section 97 of IRPA, the applicant’s actions and her evidence and
internal inconsistencies within the narrative did not support her claim. The
officer noted specifically:
1. The applicant entered Canada in November 2002 but
did not apply for protection until July 2003;
2. The
evidence presented made no mention of the applicant or her family, and the
applicant made no reference to the evidence in her narrative;
3. The
preponderance of evidence indicated that persons accused of practicing
witchcraft are at risk to their lives and on balance, the evidence did not
support that there is ritualistic sacrificing of the educated and the wealthy;
4. The
applicant believed her children were at risk from her husband’s family as early
as 1979, however, she sent her daughter for schooling in the traditional family
area because they thought it would be good for her;
5. The
applicant’s sister-in-law told the applicant she had come to the applicant’s
home to kill her husband, and yet the applicant subsequently let the
sister-in-law remain in the home for two days until her husband returned home;
6. The
applicant stated at paragraph 31 of the narrative that her son Emmanuel has
disappeared and has not been seen since July 2003, but she later stated in
paragraph 33 of the narrative that he resides in Kenya; and
7. The
applicant stated that the police will not protect her because they are corrupt,
but she has approached them in the past, and the documents show that practicing
witchcraft is considered a criminal offence and the police have been involved
in investigating witchcraft related killings.
[11]
Further,
the PRRA officer stated that the applicant has failed to show that Tanzania is a state
in total breakdown and has not provided clear and convincing proof to rebut the
presumption of the state’s ability to provide protection against the alleged
actions of her husband’s family.
Issues
[12]
The
applicant submitted the following issues for consideration in her memorandum:
1. Does a “rejection” of a claim within the meaning
of section 113 of IRPA include abandonment and withdrawal of a claim?
2. Is
the content of the duty of fairness owed by the PRRA officer to the applicant
heightened once the Board breaches the duty of fairness owed to the applicant?
3. Does
a person who has a well-founded fear of persecution by reason of membership in
a sub-group of a social group have a well-founded fear of persecution by reason
of membership in a social group?
4. Do
the findings of the officer on the extended grounds of protection manifest
reviewable error?
A fifth issue was submitted, but
this was relevant only to the leave application.
[13]
I
would rephrase the issues as follows:
1. Did the PRRA officer
err in determining that rejection of a claim is the same as an abandonment of a
claim for the purposes of section 113 of IRPA?
2. Did
the PRRA officer breach the duty of procedural fairness?
3. Did
the Board err in finding that the applicant’s fear of persecution has no nexus
to the Convention refugee definition?
Applicant’s Submissions
[14]
The applicant
submitted that the PRRA officer made an error of law in considering only
evidence which arose since the abandonment decision. The applicant submitted
that IRPA distinguishes between rejection and abandonment of claims to refugee
protection. A person who has abandoned a claim has not had his or her claim
rejected and hence, he or she is not restricted to submitting only new evidence
under section 113 of IRPA.
[15]
The applicant
submitted that the Board violated the duty of fairness by declaring her refugee
protection claim to be abandoned at a hearing where she was not present as a
result of not having adequate notice. It was further submitted that the PRRA
officer breached the duty of fairness in rejecting the PRRA application without
any regard to the inadequacy of the notice of the abandonment hearing or the
misunderstanding that the improper notice generated. It was submitted that the
content of the duty of fairness owed by a second tribunal (i.e. the PRRA
officer) is heightened once a first tribunal (i.e. the Board) breaches the duty
of fairness and the second tribunal is in a position to cure that defect.
[16]
The applicant
submitted that the officer’s determination in the alternative is also flawed.
It was submitted that the officer erred in rejecting the concept that educated,
wealthy family members can be considered a particular social group for the
purposes of the Convention refugee definition. It was submitted that the
applicant should have been considered as a member of a particular social group,
namely, educated and perceived wealthy family members of a family clan that
practices witchcraft.
[17]
The applicant
submitted that a PRRA officer is not entitled to question the credibility of a
claim without conducting a hearing. In this case, there was no hearing, and yet
the PRRA officer questioned the applicant’s credibility.
[18]
The applicant
submitted that there was evidence before the PRRA officer that there is
pervasive police corruption in Tanzania, which contradicts the officer’s finding
that there is adequate state protection. It was submitted that the officer
erred in not referring to this evidence, which supported the statements of the
applicant.
Respondent’s Submissions
[19]
The
respondent submitted that any error that the PRRA officer may have made in her
understanding of a rejection of a claim is immaterial, in the sense that it has
no effect on the outcome of the determination, because the officer proceeded to
analyse the evidence of the applicant. The officer stated, “In the alternative,
given the possibility that my understanding of A107 is in error, I did give
full consideration to the applicant’s narrative and supporting documents”. The
officer made specific reference to objective country condition evidence and
items that were provided by the applicant, as well as the applicant’s
narrative. The respondent submitted that the officer’s demonstrated analysis of
the evidence immunizes the decision from the applicant’s argument that the
officer erred by not looking at the evidence.
[20]
The
respondent submitted that any alleged breach of duty of fairness by the Board
cannot be remedied by the PRRA process. The PRRA process is not an appeal from
or review of the Board’s decision (see Kaur v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1612 at paragraph 17).
Thus, the applicant’s allegation that she was deprived of fairness before the
Board is not something that the PRRA officer would have been expected to
consider.
[21]
The
respondent submitted that the officer’s finding on adequate state protection is
determinative (see Muszynski v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1075). It was submitted that this
finding renders academic any discussion as to whether the applicant’s allegations
establish a nexus with the Convention refugee definition within the parameters
of a “particular social group”. The respondent submitted that the officer’s
findings that the applicant would not face persecution or risk if returned, and
that adequate state protection exists, were based on the evidentiary record,
and were therefore sufficient for the PRRA officer to dispose of the
applicant’s PRRA application.
Analysis and Decision
[22]
Standard
of Review
The
immigration officer’s decision on a PRRA application, considered globally and
as a whole, is reviewable on a standard of reasonableness simpliciter.
Particular findings of fact, however, are reviewable on a standard of patent
unreasonableness.
[23]
Issue
1
Did the PRRA
officer err in determining that rejection of a claim is the same as an
abandonment of a claim for the purposes of section 113 of IRPA?
If an
applicant’s refugee protection claim has been previously rejected, the
applicant may submit only new evidence for consideration on a PRRA application.
[24]
The
Board decided that the applicant and her son were in default of proceedings and
had abandoned their claims. The PRRA officer was of the view that an
abandonment of a claim is the equivalent of a rejection of a claim for the
purposes of section 113. Thus, the officer stated that the applicant’s evidence
should have been presented to the Board for consideration prior to its
rejection of the claim.
[25]
I
agree with the applicant that the officer incorrectly equated an abandonment of
a claim to a rejection of a claim. An abandonment of a claim means that the
applicant is in default of proceedings (see subsection 168(1) of IRPA). A
rejection of a claim means a refusal of a claim on the merits (see subsection
107(1) of IRPA). In this case, since the applicant’s claim was abandoned, not
rejected, the PRRA officer was not limited to considering new evidence.
[26]
Nevertheless,
the error that was made by the PRRA officer in this regard is not material. The
PRRA officer went on to find, in the alternative, that if she were incorrect in
her understanding of a rejection of a claim, she would consider the applicant’s
narrative and supporting documents. The officer then proceeded to assess the
applicant’s evidence. I am therefore not persuaded that this application for
judicial review should be allowed on the ground that the PRRA officer confused
a rejection of a claim with an abandonment of a claim.
[27]
Issue
2
Did the PRRA
officer breach the duty of procedural fairness?
In her PRRA submissions, the
applicant explained that she did not attend the abandonment hearing because she
did not know that she was required to attend. She thought that only her son was
required to attend. She submitted that the PRRA officer breached the duty of
procedural fairness in not having regard to the inadequate notice she received
of the abandonment hearing.
[28]
In
my opinion, this argument cannot succeed. The purpose of a PRRA is not to
appeal or review an abandonment decision. The PRRA is an assessment based on
new facts or evidence to determine whether the applicant is now at risk of
persecution, or subject to a risk to life or risk of cruel and unusual treatment or
punishment in their country of nationality (see Kaur v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1612 at paragraph 17). The
PRRA officer is not required to consider submissions that challenge an
abandonment decision. If the applicant felt that she did not have adequate
notice of the show cause hearing, the proper venue to address those concerns is
in a judicial review of the abandonment hearing, not on a PRRA application. The
PRRA officer noted in her decision that there is no indication that the
applicant or her son sought judicial review of the Board’s abandonment
decision.
[29]
Issue
3
Did the Board
err in finding that the applicant’s fear of persecution has no nexus to the
Convention refugee definition?
In her decision, the PRRA
officer stated at page 6 of the tribunal record:
That being said, after reviewing
the applicant’s narrative, it is my opinion that those family members who
allegedly seek to harm the applicant and her family wish to do so in a search
for wealth, not because of the applicant’s race, religion, nationality,
political opinion or her membership in a particular social group. In the
circumstances described by the applicant (paras. 1, 5, 6 and 23 of her
narrative), I believe the claimed threats and attempts at harming her or her
family members to be criminal in nature and not a matter of persecution, which
leads me to conclude that the harm feared has no nexus to the Convention
refugee definition.
[30]
The applicant
contended that the officer’s reasoning is in error. The applicant’s
narrative related that she is at risk from members of her husband’s family clan
who practice witchcraft and who have performed ritualistic killings of family
members, particularly educated family members. The applicant fears that she
will be a victim in one of their ritualistic killings. The applicant submitted that for the
purposes of the Convention refugee definition, she should have been considered
as a member of a particular social group, namely, educated and perceived
wealthy family members of a family clan that practices witchcraft.
[31]
The
applicant stated at paragraphs 5 to 8 of her PIF narrative:
The region of Mbeya, where our
families live, is well known for its practices of witchcraft, sorcery and human
sacrifice. I am not sure why this is, perhaps because we are near the border.
My own parents were educated by missionaries and, as a result are Christian and
do not participate in such sorcery. I am also Christian but to us witchcraft
and sorcery are a very real and evil power. I believe that true Christianity is
protection from the witchcraft. I discovered, that in my husband’s family the
belief in witchcraft and sorcery has been quite common, even when the late Mr.
Lebi Mwakatobe [the applicant’s husband’s father] was still alive. During his
life, however, it was not as rampant as after he passed away (in the 1960s). A
desire for wealth, power and fame have led people from my husband’s clan to
become involved in killing people for wealth and power.
… The belief is that the educated
and the rich are better sacrificed. I suspect that getting such people is meant
to please their master. It is a ritual thing.
After we returned to Tanzania I
became aware of the strange disappearances and deaths of family members in my
husband’s clan. …
In 1976, Charles, the grandson of
Mr. Lebi Mwakatobe, was also a form six student when he disappeared. He was
also found dead in his mother’s home. Talk by the villagers indicated that his
own mother, Tamari Mwakyoma had killed him and had sold his body parts to
become rich. The villagers openly accused her of sacrificing her own son. They
said that Charles had pleaded with his mother to spare his life. I believe that
this is part of the practice of a secret cult of some kind. I cannot explain
how it happened, but after Charles’ death, Tamari came into a lot of money and
built a tourist hotel of fifty rooms in Mbeya town and bought many tour buses
(about 4 or 6). Charles had been very intelligent and had been waiting to enter
university which is why many believe that he had been killed – for the power
that this would bring to the spirit of the killer. After Tamari became rich
people were more convinced that she had sacrificed her son.
[32]
A
review of the reasons shows that the PRRA officer was of the view that the
in-laws’ desire to kill the applicant was motivated by the pursuit of wealth.
This was supported by the applicant’s documentary evidence which indicated that
human body parts from Tanzania are sold in the black
market for a huge profit. This was also supported by the applicant’s narrative,
which suggested that a family member had been killed for a profit (presumably,
by sale of his body parts).
[33]
The
PRRA officer found that there were credibility problems with the applicant’s
evidence, and concluded that the applicant was not at risk of harm because of
her in-laws’ alleged belief in ritualistic killing. The PRRA officer made these
credibility findings in the context of section 97 of IRPA, but these could also
apply to section 96 of IRPA, as the account of her in-laws’ activities was
relevant to both sections of the Act. I would note that the PRRA officer did
accept that there is a widespread belief in witchcraft in Tanzania, however,
the documentary evidence referred primarily to killings of those suspected of
practicing witchcraft, particularly, elderly women. The evidence submitted by
the applicant did not refer to ritualistic killings of family members by those
who practice witchcraft.
[34]
The
officer found that the harm feared by the applicant was purely criminal in
nature and was not a matter of persecution. In light of the evidence before the
officer, I am of the view that this was not an unreasonable determination for
the officer to make. Given this determination, it was not necessary for the
officer to decide whether educated, perceived wealthy members of a family clan
that practices witchcraft may be considered a particular social group under section
96 of IRPA.
[35]
Because
of this finding, I need not deal with the state protection issue.
[36]
The
application for judicial review is therefore dismissed.
[37]
The
applicant proposed the following questions for consideration for certification
as serious questions of general importance:
1. Does “rejection” in section
113 of the Immigration and Refugee Protection Act include abandonment
and withdrawal?
2. Does a person who has a
well-founded fear of persecution by reason of membership in a sub-group of a
social group have a well-founded fear of persecution by reason of membership in
a social group?
[38]
Subsection
74(d) of IRPA states that only serious questions of general importance can be
certified. In Chu v. Canada (Minister of
Citizenship and Immigration) (1996), 116 F.T.R. 68 (F.C.T.D.),
Associate Chief Justice Jerome stated the following at paragraph 2 concerning
the certification of questions:
Section 83(1) of the Immigration Act
requires that only “serious questions of general importance” be certified.
Similar language was interpreted in the Ontario High Court of Justice in Rankin
v. McLeod, Young, Weir Ltd. (1986), 57 O.R. (2d) 569 Catzman, J.,
found that rule 62.02(5)(b) of the Ontario Rules of Civil Procedure “contemplates
issues of broad significance or general application that are felt to warrant
resolution by a higher level of judicial authority” (supra at p. 575).
The Federal Court of Appeal has relied on that reasoning and has added that the
issue to be certified must also be determinative of the appeal (Liyanagamage
v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R.
4 (F.C.A.)).
[39]
The
same would apply to “serious questions of general importance” under subsection
74(d) of IRPA. I am of the view that the questions proposed for certification
in this case should not be certified as serious questions of general importance
as they would not be determinative of the appeal.
JUDGMENT
[40]
IT
IS ORDERED that the application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant
Legislation
The relevant provisions of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 concerning a rejection and an
abandonment of a claim are set out below.
|
107. (1) The Refugee Protection Division shall accept a
claim for refugee protection if it determines that the claimant is a
Convention refugee or person in need of protection, and shall otherwise
reject the claim.
168. (1) A Division may determine that a proceeding before
it has been abandoned if the Division is of the opinion that the applicant is
in default in the proceedings, including by failing to appear for a hearing,
to provide information required by the Division or to communicate with the
Division on being requested to do so.
|
107. (1) La Section de la protection des réfugiés accepte
ou rejette la demande d’asile selon que le demandeur a ou non la qualité de
réfugié ou de personne à protéger.
168. (1) Chacune des sections peut prononcer le
désistement dans l’affaire dont elle est saisie si elle estime que
l’intéressé omet de poursuivre l’affaire, notamment par défaut de
comparution, de fournir les renseignements qu’elle peut requérir ou de donner
suite à ses demandes de communication.
|
The relevant provisions
of the Act
governing an application for protection (a PRRA application) are set out below.
|
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.
|
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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Consideration of an application for
protection is made on the basis of sections 96 to 98.
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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,
(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
(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.
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
(a) to a danger, believed on substantial grounds to exist,
of torture within the meaning of Article 1 of the Convention Against Torture;
or
(b) to a risk to their life or to a risk of cruel and
unusual treatment or punishment if
(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
(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,
(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.
(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.
98. A person referred to in section E or F of Article 1 of
the Refugee Convention is not a Convention refugee or a person in need of
protection.
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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:
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;
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.
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:
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;
b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut
se réclamer de la protection de ce pays,
(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,
(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.
(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.
98. La personne visée aux sections E ou F de l’article
premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié
ni de personne à protéger.
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Subsection 74(d) is relevant to the
certification of a question.
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74. Judicial review is subject to the following
provisions:
(a) the judge who grants leave shall fix the day and place
for the hearing of the application;
(b) the hearing shall be no sooner than 30 days and no
later than 90 days after leave was granted, unless the parties agree to an
earlier day;
(c) the judge shall dispose of the application without
delay and in a summary way; and
(d) an appeal to the Federal Court of Appeal may be made
only if, in rendering judgment, the judge certifies that a serious question
of general importance is involved and states the question.
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74. Les règles suivantes s’appliquent à
la demande de contrôle judiciaire:
a) le juge qui accueille la demande d’autorisation fixe les
date et lieu d’audition de la demande;
b) l’audition ne peut être tenue à moins
de trente jours — sauf consentement des parties — ni à plus de
quatre-vingt-dix jours de la date à laquelle la demande d’autorisation est
accueillie;
c) le juge statue à bref délai et selon la procédure
sommaire;
d) le jugement consécutif au contrôle judiciaire n’est
susceptible d’appel en Cour d’appel fédérale que si le juge certifie que
l’affaire soulève une question grave de portée générale et énonce celle-ci.
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