Date: 20090226
Docket: IMM-3238-08
Citation: 2009 FC 208
Ottawa, Ontario, February 26, 2009
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
SOFIA
REMOLINA DE TORRES
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 a pre-removal risk assessment (PRRA) officer (the officer), dated
May 30, 2008 rejecting the applicant’s PRRA application.
[2]
The
applicant requests that the decision be set aside pursuant to subsection 18(1)
of the Federal Courts Act, R.S.C. 1985, c. F-7 and the matter referred
back to a newly constituted panel of the Board for redetermination.
Background
[3]
Sofia
Remolina de Torres (the applicant) is an 81-year-old citizen of Columbia born November 24, 1927. In June
2006, the applicant arrived in Canada and claimed refugee status in Canada. However,
the application proceeded to a pre-removal risk assessment (PRRA) because the
applicant and her husband were found not to be Convention refugees or persons
in need of protection by Canada on October 7, 2003, after filing a claim in
2001. In 2004, the applicant returned to Columbia after the
death of her husband in Canada.
[4]
In
September 2006, the applicant’s daughter, Elizabeth Remolina de Torres came to Canada and claimed
refugee status which was accepted in 2007. The applicant submitted
documentation during the PRRA application alleging that another daughter of the
applicant, Maria Teresa Remolina de Torres, was also persecuted by the Armed
Revolutionary Forces of Colombia (FARC) in Columbia. The
applicant and her daughters allege that they received several threatening phone
calls from FARC which caused them to relocate in Bogota.
[5]
The
applicant’s initial refugee claim was based on the alleged persecution by guerrillas
of FARC. The applicant alleged that she had been threatened because of her
involvement in an evangelical Christian church in Columbia. The Board
found that “the husband gave vague and confusing responses to questions from
the Board and did not believe that threatening phone calls had been made to
their home in Bogota”.
PRRA Officer’s Decision
[6]
The
officer received the PRRA application on November 14,
2006
and further submissions from the applicant’s counsel up to June 2007. After
considering the documentation, the officer gave the following reasons for his
refusal on the application.
[7]
First,
the officer found that the applicant restated the same material circumstances
that had been presented before the Immigration and Refugee Board in her earlier
claim. Second, the officer found that the Personal Information Form (PIF) of
the applicant’s daughter, Elizabeth Remolina de Torres (Elizabeth) , did not
contain any new risk developments that were personal to the applicant and
originating since the Board’s decision in 2003. Third, the officer found that
the documentation provided by the applicant were not new developments since the
Board’s decision in 2003 for the applicant’s refugee claim including (a) a
complaint written by the applicant’s daughter, Maria Teresa Remolina de Torres
(Maria Teresa) to the Attorney General’s Office in Bogota on July 7, 2006 and
an acknowledgement sent back by the Attorney General’s Office on July 31, 2006
stating that an investigation had been commenced, (b) a letter written by Maria
Teresa to the Ministry of the Interior and of Justice on September 4, 2006 ,
and (c) a letter written by the Local Ombudsman’s Office of Suba on October 12,
2006 acknowledging a sworn statement by Maria Teresa and that the document is
valid for emergency medical attention. Finally, the officer did not find
documentation submitted related to the applicant’s religious affiliations and
persecution as well as current reports on country conditions in Columbia during
the PRRA application to be sufficient objective evidence that conditions had
changed in Colombia since the
date of the Board’s decision.
[8]
The
officer also noted that he was not privy to the specific details of the
daughter Elizabeth’s claim and the evidence presented to the Board but that
Elizabeth ‘s PIF as well as the Board’s decision on her case that he did have
access to, did not present evidence that would overcome the Board’s decision in
2003 on the applicant’s case for refugee protection (PRRA Notes to File by
Officer McLean, pages 3 to 5).
Issues
[9]
The applicant
submitted the following issues for consideration:
1. What
is the appropriate standard of review?
2. Did
the officer err in finding that the applicant had not presented new evidence?
3. Did
the officer provide sufficient reasons for his conclusions that the evidence
did not overcome the Board’s negative findings?
Applicant’s Submissions
[10]
The
applicant acknowledges that a negative refugee determination by the Board must
be respected by a PRRA officer, unless there is new evidence that would have
changed the original outcome of the Board hearing. The applicant refers to the
Federal Court of Appeal decision in Raza v. Canada (M.C.I.), [2007]
F.C.J. No. 1632 on the correct interpretation of subsection 113(a) of the Act.
Specifically, the applicant refers to Madame Justice Sharlow’s opinion that “Paragraph 113(a)
asks a number of questions, some expressly and some by necessary implication,
about the proposed new evidence” including whether the evidence tendered is
credible, whether it is relevant, whether it is new and whether it is material
(Raza above). The question of the “newness” of the evidence is
enunciated in this summary. Madame Justice Sharlow questions at paragraph 13 of
Raza above, whether the evidence tendered in a PRRA application is 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.
[11]
The
applicant states that evidence is not considered new because it arises since
the Board hearing but that it must relate to “. . . new developments, either in
country conditions or in the applicant’s personal situation . . .” (Mr.
Justice de Montigny in Elezi v. Canada (Minister of
Citizenship and Immigration), 2007 FC 240
(Can. LII), [2007] F.C.J. No. 357 at
paragraph 27).
[12]
The
applicant alleges that she experienced further persecution after the negative
Board decision in 2003 and that the officer erroneously found that this
evidence was not new and was in error in not giving reasons for this
finding.
[13]
The
applicant argues that evidence must be qualified and that it is an error for a
PRRA officer not to assess evidence just because it has been before the Board
already (applicant’s memorandum of argument, paragraph 17). Madam Justice
Tremblay-Lamer suggests in Elezi v. Canada (Minister of Citizenship
and Immigration), [2008] F.C.J. No. 562, that “…where new evidence is
admitted that contradicts the Board’s previous findings of fact, the evidence
cannot be discounted solely because it contradicts its prior conclusions,
rather the capacity of the new evidence to temper those findings for the
purposes of the present PRRA analysis must be evaluated”.
[14]
The
applicant argues that unlike the refugee protection claim in 2003, the PRRA application
had no major inconsistencies and that the evidence she submitted was new,
namely, the updated country documentation and the circumstances that had
happened to her and her daughters after the applicant returned to Canada in 2004. The
applicant submits that the officer did not assess the credibility of the new
evidence which was open to him.
[15]
The
applicant submits that the description of the threats are consistent with the
documentation about how FARC operates and that the targeting of the applicant
is corroborated by documentation by Colombian authorities.
[16]
The
applicant claims that the PRRA officer’s assessment of her risk of torture or
to her life under the section is unreasonable. They point to documentary
evidence since the refugee refusal in 2003, that the FARC target religious
leaders and practitioners for political or financial rather than religious
reasons and that kidnappings and extortions are a common method of getting money
and political support. The applicant contends that any denial of extortion
requests carries with it a threat of torture and death and refusal to pay is
considered an indication of political opposition ( see UNHCR Report, page 26
from PRRA application, page 10).
[17]
The
applicant argues that her personal risk also exists by extension of her family
ties and her gender as was put forward in the UNHCR Report of 2006 (the
Report). The Report states that the “risk involved in kidnappings and extortion
is not limited to the victim” but rather “the entire family of the victim is
also at risk” (PRRA application, page 12). Therefore, the applicant submits
there were “clearly” new developments, Raza above, and that the
officer’s decision ran afoul of the prohibition in Elezi above, which
states that new evidence should not be discounted solely because it
contradicted prior conclusions of the Board.
[18]
The
applicant submits that the officer committed a reviewable error when he made
adverse findings regarding the materiality of the evidence and that in any case,
it did not overcome the findings of the Board (applicant’s memorandum of argument,
paragraphs 29 and 30).
[19]
The
applicant submits that the circumstances of the applicant’s daughter, Elizabeth
were material to the PRRA application of the applicant. The applicant argues
that the daughter’s claim was “indistinguishable” from the applicant’s in that
she also was an evangelical Christian incurring persection by FARC. The
evidence was that the family had been involved in this church targeted by FARC
and that these factors made it “incumbent on the officer to engage in an
adequate analysis of the materiality of the evidence . . .” (applicant’s memorandum
of argument, paragraph 31).
Respondent’s Submissions
[20]
The
respondent submits that contrary to what the applicant alleges, the officer in
the PRRA decision did not state that the evidence which post-dated the Board’s
decision was not new. Further, the respondent disagrees that the officer did
not evaluate whether this new evidence rebutted the conclusions of the Board.
The respondent submits that ultimately the applicant is asking the PRRA officer
to reweigh the evidence and substitute her decision for that of the Board faced
with the same evidence of the same nature five years ago.
[21]
The
respondent in its submissions rely on the decision of the Board on the refugee
claim in 2003. The respondent reminds the Court that the Board found that the
applicant’s family in Columbia did not receive threatening calls based on the
applicant’s oral evidence during the refugee hearing and had stated that
nothing had happened in Columbia while she was in Canada that made her fearful
of returning. The respondent also wishes to remind the Court that the Board
rejected the claims that the applicant or her husband (who was alive at the
time) were leaders in the church community.
[22]
The
respondent then turns to the positive outcome of the applicant’s daughter Elizabeth’s refugee
claim in Canada. The
respondent notes that the reasons and evidence in this claim were not included
in the applicant’s PRRA application and was not available as evidence for the
officer to evaluate in making his decision.
[23]
The
respondent also submits that the officer’s decision based on the evidence sent
by another daughter of the applicant’s, Maria Teresa, and the documentary
evidence on country conditions did not prove that the applicant was at risk.
The officer found that the country conditions had not changed since the
decision in 2003. The actions of FARC in Columbian society remain the same
problem as it was in 2003 when the initial refugee claim was denied. And the
officer rightly found that the documentation of Maria Teresa did not prove a
personal risk to the applicant.
[24]
The
respondent argues that the evaluation of evidence by the officer was a
determination of fact that warrants deference and that a decision of the
officer should only be substituted when the applicant proves that the officer’s
decision was based on an error made in a perverse or capricious manner in
accordance with paragraph 18(4)(d) of the Federal Courts Act.
[25]
The
respondent argues that the applicant’s “attack” on several aspects of the
decision indicates that the decision was comprehensive.
[26]
The
respondent argues that even if the Court does not regard the decision as
comprehensive in length, the Federal Court of Appeal has stated that it is
inappropriate to require detailed reasons by officers (see Ozdemir v. Canada
(Minister of Citizenship and Immigration), [2001], F.C.J. No. 1646 and Ragupathy
v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 654)
and that as long as significant and probative evidence was assessed, the Court
should not interfere (Ozdemir above).
[27]
The
respondent argues that the applicant’s documentary evidence from her daughter
in Columbia and the evidence of her daughter who had just received refugee
protection in Canada was of insufficient detail and specificity, in other
words, probative value and the officer’s analysis was more than sufficient.
[28]
The
respondent argues that the applicant was not entitled to an interview because
credibility was not at issue. The respondent submits that the lack of first
hand evidence from the applicant did not demonstrate an entitlement to an
interview instead of providing “her own narrative” that may have warranted one.
Analysis and Decision
[29]
Issue
1
What is the appropriate
standard of review?
Last year, the Supreme Court of
Canada in Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9 clarified the
approach and standards to be applied to decision in the review of
administrative decisions.
[30]
The
approach involves determining whether jurisprudence has already found the
standard of review to be applied in similar circumstances. The issues submitted
by the applicant involve not only a review of the facts put forward in the
documentation but also how those facts should be regarded in accordance with
federal legislation under both the Federal Courts Act and IRPA. Since Dunsmuir
above, there have already been numerous decisions on what standard to apply
to questions of mixed facts and law for a PRRA decision including Ramanathan
v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J. No. 1064
and Erdogu v. Canada (Minister of
Citizenship and Immigration), [2008] F.C.J. No. 546 which state a
consensus towards the standard of reasonableness. Therefore, the issues put
forward by the applicant are reviewable on a standard of reasonableness.
[31]
At
paragraph 47 of Dunsmuir above, reasonableness has been articulated as:
Reasonableness
is a deferential standard animated by the principle that underlies the
development of the two previous standards of reasonableness: certain questions
that come before administrative tribunals do not lend themselves to one
specific, particular result. Instead, they may give rise to a number of
possible, reasonable conclusions. Tribunals have a margin of appreciation
within the range of acceptable and rational solutions. A court conducting a
review for reasonableness inquires into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law.
[32]
Issue
2
Did the officer err in
finding that the applicant had not presented new evidence?
Salient to the issues in a PRRA
application are whether the applicant adduced evidence that is “new”. The
newness of the evidence does not necessarily mean that it has never been put
before immigration authorities before, and accordingly, it does not necessarily
mean that evidence put forward is new just because it has never been seen
before. The word new in the context of a PRRA analysis has a legal meaning. The
Federal Court of Appeal recently pronounced on the meaning of new evidence in Raza
above:
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).
The burden of proof in proving the newness
of the evidence and its materiality lies with the applicant (see Mahdi v. Canada (Minister of
Citizenship and Immigration), [2008] F.C.J. No. 1438).
[33]
The
applicant presented a copy of the order which found her daughter who came to Canada in September
2006, to be a Convention refugee. A copy of her daughter Elizabeth’s PIF was
before the PRRA officer. It is not unreasonable to state that her daughter’s
successful refugee claim would be based on the information in the PIF.
[34]
There
was information in the PIF that the applicant’s daughter Elizabeth received
threatening phone calls from FARC after her mother’s return to Columbia. The
applicant’s other daughter also received threatening phone calls and in July
2006, she made a complaint to the Fiscalia and in September 2006, she
approached the human rights directorate of the Minister of Interior and
Justice.
[35]
In
my view, the applicant can rely on evidence concerning her daughters and
evidence that her daughter Elizabeth gave about her in Elizabeth’s PIF.
[36]
Although
the officer marked an “X” in the box for new evidence (applicant’s record page
8), he has not treated the evidence as new evidence in his assessment.
[37]
The
officer did not find this evidence not to be credible.
[38]
I
am of the view that the new evidence contained in her daughter’s PIF is
relevant in that it is capable of proving facts relevant to the claim for
protection. The evidence that she was involved in the church and that she
received threatening phone calls from FARC are relevant in this sense.
[39]
I
also am of the opinion that the additional evidence presented by the applicant
is new in the sense that it goes to proving the current state of affairs in Columbia and events
that occurred or circumstances that arose after the hearing of the Refugee
Protection Division (RPD).
[40]
The
new evidence must also be material in the sense that the refugee claim would
probably have succeeded if the evidence had been before the RPD.
[41]
The
officer made no analysis of the materiality of new evidence. This, the officer
is required to do. The officer’s decision at pages 9 and 10 read in part as
follows:
The applicant is restating materially the
same circumstances which she articulated before the Immigration and Refugee
Board. In addition, I have been presented with the Personal Information Form
(PIF) of her daughter, Elizabeth and the decision of the Immigration and
Refugee Board which accepted Elizabeth as a Convention refugee on 17
April 2007. I do not find that Elizabeth’s PIF contains evidence of
new risk developments which are personal to the applicant and which have arisen
since the date of the Board’s decision. Similarly, I do not find the Board’s
decision with respect to Elizabeth to be evidence of new risk
developments which are personal to the applicant and which have arisen since
the date of the Board’s decision. I am not privy to the specific details and
evidence presented to the Board by Elizabeth
nor do I have the Board’s reasoning, with respect to its findings, before me.
Moreover, I do not find that the information pertaining to Elizabeth overcomes the Board’s
findings with respect to the applicant.
[42]
As
noted above, the officer found that while there was information before him that
was not before the Refugee Board in 2003, the evidence was wanting for detail
and specificity personal to the applicant which undermined its materiality. The
officer mentioned that he was only provided with the knowledge that the
daughter’s claim had been accepted and the daughter’s PIF which explained the
daughter’s personal circumstances upon fleeing Columbia. As well, he
found that the documentation from Maria Teresa, the other daughter who remains
in Columbia, was lacking in materiality as they were nothing beyond complaints
and acknowledgements from Columbian authorities of the complaints and again,
even if it was, it was not personal to the applicant but to the daughter.
[43]
There
was other evidence, however, that suggests that this evidence was more material
than at first glance. The documentation provided to the officer on recent
country conditions suggests that more weight be given to the daughter’s
letters. The officer addressed each of the documents from the applicant
including articles from Reachout Trust, UNHCR, U.S. Department of
State and two decisions of the IRB, however, he did not find anything that
added materiality to the evidence. The UNHCR Report states that, the “risk
involved in kidnappings and extortion is not limited to the victim,” but rather
“the entire family of the victim is also at risk”.
[44]
I
am of the view that it was not reasonable not to do an assessment or analysis
of the additional evidence to determine whether or not it was material in the
sense outlined in Raza above. As a result, the application for judicial
review must be allowed and the matter remitted to a different officer for
redetermination.
[45]
As
a result of my findings on this issue, I need not deal with the remaining
issue.
[46]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[47]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different officer for redetermination.
“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:
|
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.
. . .
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.
|
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.
. .
.
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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The Immigration
and Refugee Protection Act Regulations, SOR/2002-227:
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161(2) A
person who makes written submissions must identify the evidence presented
that meets the requirements of paragraph 113(a) of the Act and indicate how
that evidence relates to them.
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161(2)
Il désigne, dans ses observations écrites, les éléments de preuve qui
satisfont aux exigences prévues à l’alinéa 113a) de la Loi et indique dans
quelle mesure ils s’appliquent dans son cas.
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