Date: 20030930
Docket: IMM-5513-02
Citation: 2003 FC 1130
Toronto, Ontario, September 30th, 2003
Present: The Honourable Madam Justice Snider
BETWEEN:
ARSHAD MOHAMMAD ARSHAD
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Arshad Mohammad Arshad (the "Applicant") is a citizen of Pakistan. He entered Canada on December 7, 1999 and claimed Convention refugee status on the basis of his political opinion. In particular, he claimed to fear persecution by members of the Pakistan Muslim League ("PML"), the Pakistan People's Party ("PPP"), police authorities and the military. This claim was denied by the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") on November 7, 2000.
[2] In response to a notice received by the Applicant on July 24, 2002, the Applicant submitted a Pre-Removal Risk Assessment ("PRRA") application on August 22, 2002. A number of documents were submitted with the application and, in the covering letter to this application, the Applicant's then counsel stated that "More evidence will be submitted at a later date". A further package of documents was submitted under cover letter dated September 25, 2002. This package was received by the PRRA Office on October 10, 2002, the date of the PRRA Officer's decision.
[3] In his decision dated October 10, 2002, the PRRA Officer determined that the Applicant would not be subject to risk a persecution, torture, risk to life or risk of cruel and unusual treatment or punishment if he were returned to Pakistan.
[4] The Applicant seeks judicial review of the PRRA Officer's decision.
Issues
[5] This application raises the following issues:
1. Was the PRRA Officer under a duty to consider the September 25 package of documents, given that the evidence arrived over a month beyond the due date and on the same date that the Officer made the decision?
2. Did the PRRA Officer err by ignoring relevant evidence or give improper weight to evidence, that evidence being the evidence contained in the September 25 package of documents?
Analysis
[6] The Applicant submits that the PRRA Officer had a duty to address the documentation included in the September 25, 2002 package and his failure to even mention this documentation is an error of law and a violation of the principles of fundamental justice and procedural fairness.
[7] I find that, on a balance of probabilities, the PRRA Officer failed to address the documentation package dated September 25, 2002. The PRRA Officer acknowledges, in the decision, that no new evidence was submitted. However, the documentation submitted on September 25, contained documents that could be described as new evidence. In particular, the two police report excerpts submitted in the September 25, 2002 package describe incidents that occurred after the rejection of the Applicant's Convention refugee claim on November 7, 2000. These reports describe the destruction of the Applicant's parents' wheat crop by fire, a suspected arson, on March 10, 2002 and an attack on the Applicant's brother and daughter on April 10, 2001. Thus, if the PRRA Officer had a duty to consider this information, his failure to do so was an error.
[8] More important, in the circumstances of this case, is the question of whether the PRRA Officer was obligated to consider this documentation. On July 24, 2002, the Applicant received a letter from Citizenship and Immigration Canada, informing him that his application for protection under the Post-Determination Refugee Claimants in Canada Class was automatically transferred into a PRRA application. This letter invited him to send written submissions and new evidence, stating that:
Your written submissions must be received at the address below within 30 days of this notification.
[...]
If no submissions are received within this time, a decision will be made on your application.
(Emphasis in original)
[9] Attached to this letter was a PRRA application. The following statement appears in this application:
IMPORTANT
If you wish to make additional submissions in support of this application, you have thirty (30) days following the date you received the Notification Regarding a Pre-Removal Risk Assessment (PRRA). Note that upon expiration of the thirty (30) day period, a decision can be rendered with regard to your application based, if received, on publicly available documentation and/or evidence available at that time.
[10] The Applicant's Notification Regarding Pre-Removal Risk Assessment is dated July 24, 2002. This form was served on the Applicant in person. Thirty days from July 24 is August 23. Therefore, all submissions and documentation were due by August 23, 2002. Following this date, the PRRA Officer could render a decision based on information already on file.
[11] The documentation at issue in this case was not submitted until September 25, 2002, well beyond the thirty day deadline. The uncontradicted evidence is that the PRRA Officer did not receive this package until October 10, 2002, the date of his decision. This is not a situation where the PRRA Officer was aware of late documents and decided that, because of the lateness, he would not consider them. The evidence supports a conclusion that the PRRA Officer was not aware of the package at the time he made his decision.
[12] Although the Applicant mentioned in both his PRRA application and the covering letter to that application that further evidence would be submitted, this does not change my conclusion. The Applicant was well aware of the thirty day deadline. The PRRA application form and the Notification clearly state that, following the expiry of this deadline, a decision can be rendered based on the information before the PRRA Officer. Given the lateness of the submissions and the timing of the decision in this case, the PRRA Officer was under no obligation to consider it in his risk assessment. Indeed, to decide otherwise would be to place a burden on the PRRA Officer to undertake extensive searches for late documents every time he started his decision-making process.
[13] Clearly, a PRRA Officer has a discretion to consider documents that are filed late. Had the information reached the PRRA Officer in a reasonable time before he considered the application, even if a few days late, it may have been a reasonable expectation that he consider those late documents. However, those are not the facts before me. While, this is a process that benefits from some flexibility, there must be some reasonable limits to what can be expected in the circumstances of each case. In this case, it was a reasonable exercise of the PRRA Officer's discretion to proceed after waiting for more than a month longer than necessary for the promised documentation. As a result, there is no need to consider the second issue and this application for judicial review should be dismissed.
Question for Certification
[14] Neither party submitted a question for certification. None will be certified.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
2. There is no question of general importance for certification.
"Judith A. Snider"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5513-02
STYLE OF CAUSE: ARSHAD MOHAMMAD ARSHAD
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 30, 2003
REASONS FOR ORDER
AND ORDER BY: SNIDER J.
DATED: SEPTEMBER 30, 2003
APPEARANCES BY: Ms. Chantal Desloges
FOR THE APPLICANT
Ms. Negar Hashemi
FOR THE RESPONDENT
SOLICITORS OF RECORD: GREEN AND SPIEGEL
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT
Date: 20030930
Docket: IMM-5513-02
BETWEEN:
ARSHAD MOHAMMAD ARSHAD
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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