Date: 20100319
Docket: IMM-496-09
Citation: 2010 FC 318
Ottawa, Ontario, March 19,
2010
PRESENT: The
Honourable Mr. Justice O’Keefe
BETWEEN:
AVIS CASANDRA JAMES
KESBURN LENIS DURRANT
ATESHA ALCENIA DURRANT
NASHBORN ANTHONIO JAMES
Applicants
and
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 (the Act), for judicial review of
a decision of a pre-removal risk assessment officer (the PRRA officer) dated
January 21, 2009, which determined that the applicants would not be subject to
risk of persecution, danger of torture, risk to life or risk of cruel and
unusual treatment or punishment if returned to St. Vincent and the Grenadines
(the PRRA decision).
[2]
The
applicants request that the PRRA officer’s decision be quashed and that their
claims be referred back to a different officer for redetermination. However,
for the reasons that follow, I find that this application should be dismissed.
Background
[3]
Avis
Casandra James (Avis) is a citizen of St. Vincent and the Grenadines. She and her
children came to Canada in 2006 and were allowed to enjoin the refugee
claim of her sister, Neslyn, and several other family members. The refugee
claim was in regards to Avis’s husband, Lennox, who in 2001
attacked her brother, Noel, with a machete. Lennox was later convicted for the
attack and was still in prison in St. Vincent.
[4]
Noel
and his children were accepted as refugees. The Refugee Protection Division (the
Board) however denied the claims of Neslyn and Avis and their respective family
members in a decision dated January 29, 2008. The Board stated that the applicants
had not rebutted the presumption of state protection. The applicants had
submitted to the Board that Lennox was plotting to kill them all upon his
release and then commit suicide. Primary evidence of this threat came in the
form of a letter from a prison officer. The Board questioned the authenticity
of the letter and wondered why the prison officer had sent the letter in
support of the applicants’ refugee claim, but had not taken it to the
authorities to prevent an early release for Lennox. Particularly with regard to
Avis’s claim, the Board relied on the fact that she had been able to get a six
month restraining order against Lennox in 2002 which was complied with, but
then did not seek another such order when Lennox moved back
in with her during 2003. In the Board’s view, these actions showed that Avis
had been provided with protection from the authorities before and that she
would have received further protection had she sought it.
[5]
This
Court denied the applicants leave to judicially review the Board’s decision in
June of 2008.
[6]
In
support of their PRRA application, the applicants submitted about 15 letters
from the family members themselves and from other family members and friends.
The letters contained opinions about the seriousness of Lennox’s threat, his
deficiencies as a father and also reflected on the good character of the
applicants and their sincere desire to remain in Canada.
PRRA Officer’s Decision
[7]
As
a preliminary matter, the PRRA officer stated that he had independently
reviewed all the documents and evidence before him, as well as the publicly
available documents on the country conditions.
[8]
The
PRRA officer then reviewed the Board’s decision and materials and determined
that having read all the letters submitted in support of the PRRA, they were
not new evidence. The letters merely restated materially the same circumstances
and risks that were before the Board. There is no reason why the letters could
not have been submitted to the Board. The applicants have failed to present any
evidence of any new personalized risk developments arising since.
[9]
The
PRRA officer then turned to a review of country conditions. He found that
documentary evidence indicates that state protection exists for victims of
domestic abuse. He considered documentary evidence that violence against women
continues to be a serious problem, but found that there has not been a
significant change in country conditions since the applicants’ refugee claim
was heard.
Issues
[10]
The
following are the issues in this case:
1. What is the
appropriate standard of review?
2. Did the PRRA officer
err in concluding that the applicants had not presented new evidence under
subsection 113(a)?
3. Did the PRRA officer
err in concluding that based on the evidence provided by the applicants, they
would not be subject to risk of torture, be at risk of persecution, or face a
risk to life of cruel and unusual treatment or punishment if removed to St.
Vincent?
Applicants’ Written Submissions
[11]
The
applicants submit that upon receiving evidence submitted in support of a PRRA,
officers must consider its credibility, relevance, newness and materiality. Evidence
which clarifies or further validates something raised at the Board may qualify
as new evidence. If evidence can be accepted under subsection 113(a), an
officer must go on to consider if it evidences a new risk. The PRRA officer
erred by simply dismissing the evidence as not being sufficient to rebut the Board’s
findings. The new threat was evidenced by the letter of Mr. Robinson which
stated that Lennox had become aware that he was now with Avis and that Lennox
was now threatening to kill him and his whole family, causing him to quit his
job and come to Canada too. The PRRA officer said he read the letters
but did not offer any analysis to suggest that he actually considered them.
[12]
The
applicants also submit that the PRRA officer was too selective in his review of
state protection and country conditions, leaving out significant details that
contradicted his ultimate conclusions. He should not have accepted that there
is effective state protection. The evidence shows that there is not even
adequate protection for women in St. Vincent.
Respondent’s Written Submissions
[13]
The respondent submits that the deferential standard of reasonableness
is to be applied. Determinations by PRRA officers are in large part fact driven.
Countries’ human rights records and personal risk upon returning are outside the
realm of the Court’s expertise. Courts may not re-weigh factors, but may
intervene only if a PRRA decision is unsupported by the evidence or failed to
consider appropriate factors. Neither is the case here.
[14]
The respondent further submits that it is the applicants who have
the burden to establish their PRRA application with credible and trustworthy
evidence. Here they failed to rebut the presumption of state protection. The
state did in fact protect Avis by first issuing a restraining order and later
incarcerating Lennox.
[15]
Finally, the respondent asserts that the decision was not
unreasonable. Regarding the evidence that was before the PRRA officer, there
was no explanation as to how it is new, or why it could not have been tendered
before the Board as is required under section 113 of the Act. The evidence is
in regards to continuing threats from Lennox, but these
are not new threats. The Board had considered similar evidence by Mr. Robinson.
The PRRA officer did not ignore evidence and was not required to mention every
piece of evidence. Further, regarding the state protection analysis, the onus
to rebut the presumption of state protection remains at all times on the
applicants. Applicants must introduce evidence of inadequate state protection
and then convince the trier of fact that on the balance of probabilities, state
protection is inadequate. Evidence to rebut the presumption must be clear and
convincing and be both relevant and reliable. No such evidence was provided.
Analysis and Decision
[16]
Issue
1
What is the standard of
review?
It is well established that the
determinations of PRRA officers are accorded significant deference and are
reviewable, post-Dunsmuir (Dunsmuir v. New Brunswick, 2008 SCC 9),
on the standard of reasonableness (see Raza v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1385, 58 Admin. L.R. (4th) 283,
affm’d, 2007 FCA 385, 289 D.L.R. (4th) 675, Ruiz v. Canada (Minister of
Citizenship and Immigration), 2006 FC 465, [2006] F.C.J. No. 573 (QL)
at paragraph 12, Muszynski v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1075, [2005] F.C.J. No. 1329 (QL)
at paragraphs 7and 8).
[17]
In
the Federal Court decision in Raza above, Mr. Justice Mosley, at paragraph
10, reviewed some of the law regarding the significant deference accorded to
decisions of PRRA officers:
[10] PRAA officers have a specialized
expertise in risk assessment, and their findings are usually fact driven, and
therefore warrant considerable deference: Selliah v. Canada (Minister of Citizenship and
Immigration),
2004 FC 872, 256 F.T.R. 53 at para.16 [Selliah]. Considerable deference
is owed to the factual determinations of a PRAA officer including their
conclusions with respect to the proper weight to be accorded to the evidence
placed before them: Yousef v. Canada (Minister of Citizenship and
Immigration),2006
FC 864, [2006] F.C.J. No. 1101at para. 19 [Yousef]. In the absence of a
failure to consider relevant factors or reliance upon irrelevant ones, the
weighing of the evidence lies within the purview of the officer conducting the
assessment and does not normally give rise to judicial review: Augusto v.
Canada (Solicitor General), 2005 FC 673, [2005] F.C.J. No. 850, at para. 9.
[18]
I
add however, that the issue at hand, while still a question of mixed law and
fact, is more law intensive than a PRRA officer’s ultimate conclusion. In other
words, the determination of whether evidence submitted constitutes new evidence
under subsection 113(a) is not owed as much deference as largely fact driven
determinations such as the PRRA officer’s determination of risk.
[19]
Issue
2
Did the PRRA officer
err in concluding that the applicants had not presented new evidence under
subsection 113(a)?
Subsection 113(a) of the Act
indicates that in PRRA applications where a refugee claim has been rejected,
applicants can only present: (i) evidence that arose after the rejection, (ii)
evidence that was unavailable, or (iii) evidence that they could not reasonably
have been expected to have presented. If an applicant asserts that the evidence
falls into the second or third category, he or she must provide an explanation
as to why it was not available or could not have been presented (see Elezi
v. Canada (Minister of Citizenship and Immigration), [2008] 1 F.C.R. 365,
2007 FC 240 at paragraph 26, Kaybaki v. Canada (Solicitor General of Canada),
2004 FC 32, [2004] F.C.J. No. 27 (QL)).
[20]
In
Elezi above, Mr. Justice de Montigny noted however, that the mere fact
that the evidence is dated after the Board decision, does not mean that the
evidence is new if it merely affirms the existence of facts that pre-date the
decision (see Elezi above, at paragraphs 27 to 30). The evidence must
relate to new developments.
[21]
In
Kaybaki above, Mr. Justice Kelen warned at paragraph 11 that:
. . . the PRRA application cannot be
allowed to become a second refugee hearing. The PRRA process is to assess new
risk developments between the hearing and the removal date.
[22]
The
Federal Court of Appeal in Raza v. Canada (Minister of Citizenship and
Immigration), 2007 FCA 385, 289 D.L.R. (4th) 675, [2007] F.C.J. No. 1632
(QL), recently reflected on the additional substantive thresholds that evidence
must pass under subsection 113(a). At paragraph 13, Madam Justice Sharlow
states:
[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).
[23]
The
above questions do not need to be asked in every case or in any particular
order. “…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.” (see Raza above, at paragraph 15).
[24]
I
agree that new evidence relating to old risks should be considered (see Kirindage
de Silva et al v. The Minister of Citizenship and Immigration, 2007 FC
841). However, the evidence must be new evidence.
[25]
The
law has not changed in the sense that an applicant must show that there has
been a new development or provide evidence of a development or fact that was
not presented to the Board. If a PRRA officer can determine that evidence does
not meet the express statutory conditions, no other questions need to be asked.
In substance, Raza above, has highlighted the additional requirements
that the evidence be credible and that the new developments described must be
relevant and material to the failed refugee claim.
[26]
Here,
the applicants submit as new evidence a letter stating that Lennox had found
out about Avis’s relationship with Mr. Robinson who also now resides in Canada. According
to the handwritten letter, Lennox now wants to kill Mr. Robinson’s whole family
and has a new motive to kill Avis’s whole family. While this may qualify as a
new development for the purposes of passing the express statutory conditions
question, it fails at the materiality stage. In the Board’s decision however,
the Board accepted Avis’s evidence that Lennox wanted to
kill her.
[27]
In
Raza above, Madam Justice Sharlow found that the evidence presented in
that case failed at the materiality stage:
[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.
[28]
The
prime issue in the Board decision here was state protection, yet none of the
applicants’ letters went to that issue. Like in Raza above, it was open
for the PRRA officer to conclude that none of the applicants’ letters provided
any new evidence that would go to rebut the Board’s decision. The PRRA officer
did not have to provide a more detailed legal analysis of why each letter was
not material. I would not allow judicial review on this ground.
[29]
Issue
3
Did
the PRRA officer err in concluding that based on the evidence provided by the
applicants, they would not be subject to risk of torture, be at risk of
persecution, or face a risk to life of cruel and unusual treatment or
punishment if removed to St. Vincent?
The
Board had determined that the applicants were not refugees or persons in need
of protection because they had not been able to rebut the presumption of state protection.
In fact, the primary evidence on that issue was the fact that the state had provided
protection from Lennox, the agent of persecution, by providing a restraining
order that was obeyed and later incarcerating him.
[30]
Since
the PRRA officer determined that the applicants did not provide any new
evidence under subsection 113(a), it was incumbent on him to respect the
decision of the Board (see Raza above, at paragraph 13).
[31]
Despite
this, the PRRA officer reviewed updated country information on St. Vincent. He reviewed
the updated U.S. Department of State, Saint Vincent and the Grenadines: Country
Reports on Human Rights Practices – 2007, (released March 11, 2008). The
evidence stated that St. Vincent is a democratic state with political and
judicial institutions capable of protecting its citizens, but also that
violence against women remained a serious problem. In the end, the PRRA officer
concluded that there has not been a significant change in the country
conditions since the Board decision.
[32]
The
applicants cannot, on judicial review, argue that the PRRA officer should have
come to a different conclusion than the Board, when the applicants had not
provided him with any new material evidence. I would not allow judicial review
on this ground.
[33]
The
application for judicial review is therefore dismissed.
[34]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[35]
IT
IS ORDERED THAT the application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27
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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).
(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.
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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).
(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.
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