Date:
20121128
Docket:
IMM-4820-11
Citation:
2012 FC 1384
Ottawa, Ontario,
November 28, 2012
PRESENT: The
Honourable Mr. Justice Lemieux
BETWEEN:
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MUHAMMAD ASHRAF
GONDAL
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
and Background
[1]
The
Applicant is a citizen of Pakistan who came to Canada in June 2003
seeking this country’s protection due to his fear of persecution at the hands
of the Pakistan Muslim League (PML) arising from of his involvement in the
Pakistan Peoples Party (PPP). He made his refugee claim shortly after coming
to Canada.
[2]
The
proceeding before this Court is a challenge by the Applicant to the June 14,
2011 decision of a Pre-Removal Risk Assessment Officer (PRRA
Officer) who found the Applicant does not face more than a mere possibility of
persecution on any of the Convention grounds should he return to Pakistan and
therefore his PRRA application did not meet the requirements of section 96 of
the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA).
The PRRA Officer also found there was insufficient evidence to conclude he
would be at a risk spelled out in section 97 of the IRPA and, in particular,
under section 97(1)(b)(iii).
[3]
In
September 2007 the Refugee Protection Division (RPD) rejected his claims
to be at risk either under section 96 or section 97 of the IRPA.
[4]
The
hearing before the RPD was scheduled to take place on December 8, 2005
but was postponed because the Immigration and Refugee Board of Canada (IRB)
received information “that the claimant was assaulted at his work place in
Canada (Toronto), suffered serious injuries, was in the hospital for a long
period of time and then was placed in a rehabilitation facility. This limited
his mobility and communications.”
[5]
It
is accepted Mr. Gondal was brutally and viciously attacked on June 21, 2005
while working in a gas station in Toronto awaiting the hearing of his refugee
claim. That attack left him permanently disabled with a serious brain injury
which led to the development of a medical condition called Aphasia, a
communication impairment condition which prevents him from speaking and
understanding a spoken language, to read and to write.
[6]
As
it turned out, the RPD had to appoint a designated representative but it was
difficult for that representative to communicate with Mr. Gondal because of the
language barrier and his difficulty to speak. There was no oral evidence
from the Applicant before the RPD. He was simply not able to testify. The
RPD’s decision was based on the evidence presented by Mr. Gondal in his
Port-of-Entry statement, his Personal Information Form (PIF), other supportive
documents and the evidence presented by the Minister as well as the
observations from the Refugee Protection Officer (RPO) the comments from the
designated representative and from his counsel, an Immigration Consultant who
was to present further submissions in writing but did not do so. In submissions
to the PRRA Officer and before this Court, Mr. Gondal was represented by
competent counsel.
[7]
The
RPD found his story not to be credible. The RPD had
evidence from the Minister which states that Interpol tried to confirm if there
was a false case of rape filed against him by his alleged persecutors, the PML,
as asserted by PPP officials. The information received from Interpol was that
there was no such case filed which lead the RPD to conclude the PPP’s
letters contained information which was false. The RPD also found his
medical condition shows he would not be able to take care of himself let alone
participate in political activities, and said “that the claimant would
benefit if he returns to Pakistan, so his family in Pakistan can take care of
him.”
[8]
Leave
to seek judicial review was refused by a judge of this Court from the RPD’s
decision on April 2, 2008.
II. The PRRA
Officer’s Decision (dated June 14, 2011)
[9]
The
PRRA Officer reviewed the RPD decision of November 21, 2007 citing its
conclusion which reads:
In summary, the panel finds that the core reasons
presented by the claimant for the basis of his fear is impugned by the
information presented by the Minister, which shows that the party the
claimant allegedly supports and was a member of, provided letters stating that
there was a false case of rape charges against the claimant, which actually
does not exist. This leads the panel to believe that the letters are
compromised and are not genuine.
[10]
The
PRRA Officer then wrote:
The applicant has not addressed any of the serious
credibility findings of the RPD panel in this application. I acknowledge that
the applicant was not able to testify at his refugee hearing due to his
communication limitations, however, the RPD panel made a finding of a lack
of credibility based on the information that he had already provided to
Canadian authorities. While I am not bound by these findings, the RPD is a
decision making body who are experts in the determination of refugee claims,
I therefore give considerable weight to the findings of the RPD.
Furthermore, leave to appeal the negative RPD decision was denied by the
Federal Court in a decision dated 02 April 2008.
[Emphasis added]
[11]
The
PRRA Officer acknowledged that counsel for Mr. Gondal in support of this PRRA
application and submissions submitted various country conditions documentation
as it pertains to the human rights, political, security and medical availability
in Pakistan. He found, “based on analysis of this evidence, ... it does not
provide any new evidence to indicate the applicant would now be at risk upon
return to Pakistan.” He concluded by writing:
I have thoroughly reviewed the applicant’s PRRA
application and submissions, and it is my finding that there is insufficient
objective evidence to indicate that his situation in Pakistan has changed since
the RPD decision. The risk identified by the applicant was dealt with at the
Refugee Protection Hearing. A PRRA application is not an appeal of a negative
refugee decision, or a review of a previous decision of the RPD, but rather an
assessment based on new facts or evidence which demonstrate that the applicant
is now at risk of persecution, torture, risk to life or risk of cruel and
unusual treatment or punishment. Nonetheless, I have carefully read and
considered the materials submitted by the applicant and current country
conditions.
[Emphasis added]
[12]
He
further noted in 2008 Pakistan held national elections which brought to power a
coalition let by the PPP and discussed Mr. Gondal’s submissions that even
though the PPP is now the governing party in Pakistan politics in that country
are very unpredictable and the human rights situation remains poor, which the
PRRA Officer recognized had some merit; he expressed the view, however, Mr.
Gondal had provided insufficient evidence to persuade him he will be targeted
upon return to Pakistan adding:
The applicant has not been in Pakistan for eight years and there is insufficient evidence before me that any particular
group or individual would be interested in causing the applicant any harm.
Furthermore, the applicant has not provided any evidence to indicate whether
any of his family members in Pakistan are experiencing any difficulties due to
his affiliation with the PPP. I find that it is mere speculation as to whether
the applicant would experience any difficulties due to his political
involvement with the PPP in the future.
[13]
The
PRRA Officer then addressed the issue which Mr. Gondal had also raised, namely
that his life is at risk due to the fact that he will lose his medical support
system in Canada and be faced with a poorly equipped, rural health care system
in Pakistan.
[14]
The
PRRA Officer then reviewed the documentary evidence on the availability of
medical care in Pakistan. I need not review this evidence because the PRRA
Officer was alive to the provisions of Section 97(1)b) of the IRPA
and particularly, section 97(1)b)(iv). He wrote:
According to Section 97(1)b) of the Immigration and
Refugee Protection Act (IRPA), “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 to a risk to their life or to a
risk of cruel and unusual treatment or punishment if (iv) the risk is not
caused by the inability of that country to provide adequate health or medical
care.” Protection under 97(1)(b) is not granted when the risk arises from
the state’s inability to provide adequate health or medical care. However,
when treatment is available in the receiving country but the applicant is
likely to be denied access to it, may establish a risk under 97(1)(b).
Based upon careful analysis of the evidence before me, it is my finding that
there is insufficient evidence before me to indicate that the applicant will
not be able to obtain the health services/medication and/or treatments that he
may need upon return to Pakistan. Furthermore, I do not find that there is
sufficient evidence to persuade me that the applicant would be denied access to
any medical care which he may require upon return to Pakistan.
[Emphasis added]
[15]
In
so doing, the PRRA Officer applied the decision of the Federal Court of Appeal
in Covarrubias v Canada (Minister of Citizenship and Immigration), 2006
FCA 365, para 41, which held the exclusion in paragraph 97(1)b)(iv) would not
cover situations where medical care is denied for an illegitimate reason such
as prosecutorial reasons.
III. The
Arguments
[16]
Counsel
for the applicant argued; (1) the PRRA Officer ignored the risk allegations
which the applicant put forward, (2) he failed to address the medical evidence
put forward, (3) he failed to consider the totality of the evidence and not
each element of it in isolation with the rest.
[17]
Counsel
for the respondent counters by arguing the Officer’s reasons show he considered
all grounds of the risks alleged by the applicant, namely, (1) the situation in
Pakistan being volatile with the risk of political violence always being
present, (2) the risk associated with his medical condition. The respondent
submits the Officer did not err in not considering, as counsel for the
applicant advanced, the risk generated through the combination of his political
affiliation and his medical condition. Counsel for the respondent
submits they were presented and considered as two discrete grounds. As to the
applicant’s argument that the PRRA Officer failed to expressly consider
specific pieces of evidence, counsel argued he was not obligated to mention
each individual piece of evidence in his decision. Finally, counsel submitted
the PRRA Officer did not give undue weight to the RPD’s credibility finding.
IV. Analysis
and Conclusions
(a) The standard of
review
[18]
Both
parties agree the reasonableness standard applies to this decision. According
to the Supreme Court of Canada’s decision in Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 47 tells us a reasonable decision is
one which “falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law.”
(b) Conclusion
[19]
The
applicant did not challenge the RPD’s credibility findings which led that
tribunal to decide Mr. Gondal did not have a well-founded fear of persecution
at the hands of the Pakistan Muslim League. The applicant’s PRRA submissions
focussed on Pakistan’s weak human rights record, the volatility of its politics
and the lack of medical facilities in Pakistan to meet his specific needs.
[20]
I
agree with counsel for the applicant the PRRA Officer’s analysis of medical
availability in Pakistan to meet the applicant’s needs was lacking. In the
respondent’s memorandum of fact filed on November 3, 2011 opposing the grant of
leave, respondent’s counsel, at paragraph 11, wrote that the applicant could
not fault the Officer for not referring the medical documentation adduced
because “he clearly understood the basic point of that documentation, to
wit the facts of his disabilities and its effects on his life.”
[21]
That
failure led this Court to quash the Officer’s finding the applicant’s H&C
case had not been made out (See Gondal v MCI, 2012 FC 1383).
[22]
Because
of paragraph 97(1)(b) of the IRPA provides that protection is not
granted when the risk arises from the state’s inability to provide adequate
health or medical care, the Officer’s error in assessing the medical
evidence is not determinative. That is why the Officer’s decision under the
H&C application was doubly important.
[23]
The
applicant has not shown how the PRRA decision was flawed otherwise. The
decision was not unreasonable in the particular context of paragraph 97(1)(b)
of the IRPA.
JUDGMENT
THIS
COURT’S JUDGMENT is that this judicial review application is
dismissed. No certified question was proposed.
“François Lemieux”
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