Date: 20090602
Docket: IMM-817-09
Citation: 2009 FC 563
Montréal, Quebec, June 2, 2009
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
DAVIDSON
ALTENOR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Preliminary
comments
[1]
The
applicant alleges that the Refugee Protection Division (RPD) concluded that he
was a Convention refugee.
[2]
He
therefore argues that the pre‑removal risk assessment (PRRA) officer was
bound by that conclusion and had to follow it.
[3]
This
argument is unfounded for two reasons.
[4]
The
PRRA officer rightly found that the RPD had exceeded its jurisdiction by
determining that the applicant was at risk. The Federal Court of Appeal has
clearly and explicitly held as follows:
[38] . . . In my view, the Board
exceeded its mandate when it decided to deal with the appellant’s risk of
torture upon return with the result that the Minister is not bound by that
finding. Once the Board found that the exclusion applied, it had done
everything that it was required to do, and there was nothing more it could do,
for the appellant. The appellant was now excluded from refugee protection, a
matter within the Board’s competence, and was limited to applying for protection,
a matter within the Minister’s jurisdiction. The Board’s conclusions as to the
appellant’s risk of torture were gratuitous and were an infringement upon the
Minister’s responsibilities.
(Xie v.
Canada (Minister of Citizenship and Immigration), 2004 FCA 250, [2005]
1 F.C.R. 304)
[5]
The
applicant submits that there is some debate over this question. In support of
his argument, he cites several trial decisions. This Court is bound by the
decisions of the Federal Court of Appeal. Even excerpts from several trial
decisions cannot change the fact that the Federal Court of Appeal precedent is
the one this Court must follow.
[6]
The
applicant’s argument must fail for another reason. PRRA officers are not bound
by the RPD’s conclusions and may reach different ones.
[7]
Moreover,
in this case, the RPD did not make detailed findings of fact. Instead, the
panel engaged in a detailed analysis of the question of exclusion:
[14] PRRA officers are
not bound by the conclusions reached by the RPD. However, when the evidence
before the PRRA officer is essentially the same as that before the RPD, it is
reasonable for the PRRA officer to reach the same conclusions (see Klais v.
Minister of Citizenship and Immigration), 2004 FC 783 at
paragraph 11). In addition, PRRA officers do not sit on appeal or judicial
review and therefore may rely on conclusions reached by the RPD when there is
no new evidence (see Jacques v. Canada (Solicitor General), [2004]
F.C. 1481).
(Isomi v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1394, 157 A.C.W.S. (3d) 807)
[8]
As
well, it should be noted that, at paragraph 38 of Xie, above, in
which the claimant was excluded under Article 1F(b), the Federal
Court of Appeal stated unequivocally that the Minister’s representative (that
is, the PRRA officer) was not bound by the RPD’s findings of fact with regard
to risk.
II. Introduction
[9]
On
May 29, 2009 at 2:00 p.m., the applicant, Davidson Altenor,
filed a motion to stay the removal order made against him, which was to be
executed on June 3, 2009. The decision to which the motion relates is
a negative decision made on January 16, 2008 concerning his PRRA
application.
III. Facts
[10]
On
February 20, 2009, Mr. Altenor, a citizen of Haiti, filed an
application for leave and for judicial review of that decision and perfected
his record.
[11]
Mr. Altenor
arrived in Canada on July 13, 2004 after staying in the
United States for seven months between December 2003 and July
2004. He claimed refugee status on July 13, 2004.
[12]
Mr. Altenor’s
claim was rejected on September 27, 2006. The RPD concluded that, because
of his involvement in the Haitian police, he had to be excluded from the
definition of Convention refugee and from being a person in need of protection
under Article 1F(a) and (c) of the Convention.
[13]
On
February 5, 2007, Justice Pierre Blais dismissed the leave
application filed against the RPD’s decision.
[14]
On
December 12, 2007, Mr. Altenor sent Citizenship and Immigration
Canada (CIC) his PRRA submissions. In paragraph 3 of those submissions, he
stated that he did not have to present new evidence to establish his fear [translation] “because the RPD has already ruled that this
fear is well‑founded”.
[15]
On
January 16, 2008, the decision under review was made.
IV. Issue
[16]
Has
the applicant shown that a serious question and irreparable harm exist and that
the balance of inconvenience is in his favour?
V. Analysis
[17]
The
applicant must meet the requirements of the tripartite test set out in Toth v.
Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302,
11 A.C.W.S. (3d) 440 (F.C.A.). All three requirements must be met. Failure
to meet any of them is therefore fatal.
A.
Serious question
[18]
In
support of his motion for a stay, Mr. Altenor raises three questions
that he characterizes as serious.
[19]
First,
Mr. Altenor alleges that the officer made an error justifying the Court’s
intervention by concluding that he was inadmissible rather than excluded.
[20]
Second,
Mr. Altenor alleges that the officer could not disregard the RPD’s
conclusion that he fell within the definition of Convention refugee
(page 2 of the RPD’s reasons).
[21]
Finally,
he alleges that the PRRA officer refused his application mainly because of
negative findings about his credibility. He therefore argues that the officer
should have granted him an interview under section 167 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
1st question -
Confusion between inadmissibility and exclusion
[22]
The
officer explained why the applicant was a person described in
section 112(3). He began by noting that Mr. Altenor had been excluded
because of his position in the Haitian police. However, in the middle of the
page, the officer added the following:
[translation]
Moreover, the Immigration
and Refugee Protection Regulations provide as follows:
For the purpose of determining whether a
foreign national or permanent resident is inadmissible under
paragraph . . ., if either the following determination or
decision has been rendered, the findings of fact set out in that determination
or decision shall be considered as conclusive findings of fact:
The RPD has excluded the applicant from
the Convention. He is considered inadmissible under paragraph 35(1)(a)
of the IRPA because there are reasonable grounds to believe that he committed
an act outside Canada that constitutes an offence referred to in
sections 4 to 7 of the Crimes Against Humanity and War Crimes Act.
[23]
This
finding is incorrect, since Mr. Altenor was never found inadmissible; he
was excluded by the RPD under section 98 of the IRPA; however, it is a mere
finding of fact that did not affect the officer’s decision. This error had no
impact on the heading under which it was found.
[24]
Contrary
to what Mr. Altenor argues, the PRRA officer never found him inadmissible,
since such a determination was not within the officer’s jurisdiction. Moreover,
such an important determination would not be made in the part of a decision
where the decision maker is simply setting out facts.
[25]
Thus,
the officer made an error; the error concerns a fact that is neither relevant nor
determinative in this case. The presence of an error of this kind does not
raise a serious question.
2nd question
- Was the officer bound by the RPD’s decision?
[26]
Mr. Altenor
alleges that the RPD concluded that he was a Convention refugee.
[27]
He
therefore argues that the PRRA officer was bound by that conclusion and had to
follow it.
[28]
This
argument is unfounded for two reasons.
[29]
First,
the PRRA officer rightly found that the RPD had exceeded its jurisdiction by
determining that Mr. Altenor was at risk. The Federal Court of Appeal has
clearly and explicitly held as follows:
[38] . . . In my view, the Board
exceeded its mandate when it decided to deal with the appellant’s risk of
torture upon return with the result that the Minister is not bound by that finding.
Once the Board found that the exclusion applied, it had done everything that it
was required to do, and there was nothing more it could do, for the appellant.
The appellant was now excluded from refugee protection, a matter within the
Board’s competence, and was limited to applying for protection, a matter within
the Minister’s jurisdiction. The Board’s conclusions as to the appellant’s risk
of torture were gratuitous and were an infringement upon the Minister’s
responsibilities.
(Xie,
above)
[30]
Mr. Altenor
submits that there is some debate over this question. In support of his
argument, he cites several trial decisions. This Court is bound by the
decisions of the Federal Court of Appeal. The existence of several trial
decisions cannot change the fact that the Federal Court of Appeal precedent is
the one this Court must follow.
[31]
Mr. Altenor’s
argument must fail for another reason. PRRA officers are not bound by the RPD’s
conclusions and may reach different ones.
[32]
Moreover,
in this case, the Court notes the following:
[14] PRRA officers are
not bound by the conclusions reached by the RPD. However, when the evidence
before the PRRA officer is essentially the same as that before the RPD, it is
reasonable for the PRRA officer to reach the same conclusions (see Klais v.
Minister of Citizenship and Immigration), 2004 FC 783 at
paragraph 11). In addition, PRRA officers do not sit on appeal or judicial
review and therefore may rely on conclusions reached by the RPD when there is
no new evidence (see Jacques v. Canada (Solicitor General), [2004]
F.C. 1481).
(Isomi, above)
[33]
As
well, it should be noted that, at paragraph 38 of Xie, above, in
which the claimant was excluded under Article 1F(b), the Federal
Court of Appeal stated unequivocally that the Minister’s representative (that
is, the PRRA officer) was not bound by the RPD’s findings of fact with regard
to risk.
[34]
This
argument does not raise a serious question either.
3rd question
- Duty to hold a hearing
[35]
Mr. Altenor
argues that the PRRA officer refused his application for reasons of
credibility. This allegation is incorrect.
[36]
Rather,
the officer concluded that Mr. Altenor had not filed sufficient evidence
to satisfy him that the application was well‑founded. In other words, the
officer concluded that Mr. Altenor had not discharged his burden of
proving that he would be at risk if he returned to Haiti.
[37]
Although
the dividing line between credibility and insufficiency of evidence is a thin
one, it does exist. A PRRA officer has no duty to hold a hearing in cases where
the applicant does not file enough evidence to discharge the burden of proving
that returning poses a risk.
[38]
This
reasoning was recently applied by Justice Russell Zinn:
[34] It is also my view
that there is nothing in the officer’s decision under review which would
indicate that any part of it was based on the Applicant’s credibility. The
officer neither believes nor disbelieves that the Applicant is lesbian –
he is unconvinced. He states that there is insufficient objective evidence
to establish that she is lesbian. In short, he found that there was some
evidence – the statement of counsel – but that it was insufficient to
prove, on the balance of probabilities, that Ms. Ferguson was
lesbian. In my view, that determination does not bring into question the
Applicant’s credibility.
(Ferguson v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1067, 170 A.C.W.S. (3d) 397)
B.
Irreparable
harm
[39]
Mr. Altenor
identifies only one source of irreparable harm. He argues that he would be
detained in the United States.
[40]
This
Court has found several times that detention in the United States does not
constitute irreparable harm. For example, Justice Marc Nadon wrote
the following in Mikhailov v. Canada (Minister of Citizenship and
Immigration) (2000), 191 F.T.R. 1, 97 A.C.W.S. (3d) 727:
[11] On the question of irreparable
harm, the Applicants argue that they would face irreparable harm if they went
to the United States because they would possibly be detained. In this
regard, they cite a September 1998 report by Human Rights Watch entitled
“United States--Locked Away: Immigration Detainees in Jails in the
United States” and submit that “asylum seekers in the United States
are generally detained (page 26 [of Report], first paragraph)” (paragraph 30
of Applicants’ Written Representations of their Motion Record). Although the
U.S. Immigration and Naturalization Act provides, as the Human Rights
Watch Report points out, that all asylum seekers shall be detained pending a
resolution of their claims, the Report also notes that people are detained
“because they lack valid documents for entering or remaining in the
United States; to protect public safety; to ensure their presence at
ongoing immigration proceedings; or to prevent them from remaining in the
United States after they have been ordered to return to their home
countries” (p. 30 of Human Rights Watch Report, p. 39 of Applicants’
Record). This seems to suggest that detention is limited to people seeking
asylum in the United States, not in Canada. Further, I believe that none
of the reasons for detention listed in the Report apply to the Applicants.
Moreover, a subsequent study by Human Rights Watch suggests that detention is
no longer routine and reports that case‑by‑case reviews have been
implemented such that individuals would not be detained if they could show that
they do not constitute a danger to society, that they have community ties, and
would likely appear for future hearings.
[41]
Justice Yves de Montigny
applied the same reasoning in Joao v. Canada (Minister of Citizenship
and Immigration), 2005 FC 880, 140 A.C.W.S. (3d) 533:
[10] I should say that the
Applicants are being removed to the United States, not Angola. This Court
has held that removal to the United States does not constitute irreparable
harm, even if the person concerned may be detained. The United States is
presumed to treat detainees and refugee claimants fairly. It will be up to the
American authorities to decide whether the Applicants should eventually be
removed to Angola (Mikhailov v. Minister of Citizenship and Immigration),
[2000] F.C.J. No. 642; Akyol v. Canada (Minister of Citizenship
and Immigration), [2003] F.C.J. No. 1182).
[42]
As
well, this Court has stated in two recent decisions that neither removal
to the United States nor detention in that country can constitute
irreparable harm:
[29] The Federal Court
of Appeal has found that the United States institutions have democratic
systems of checks and balances, an independent judiciary and constitutional
guarantees of due process. There is no irreparable harm arising should the
Applicants engage the American immigration system. The Applicants will have
access to that country’s removal process, and any other relevant immigration
processes (Hinzman v. Canada (Minister of Citizenship and Immigration),
2007 FCA 17, 157 A.C.W.S. (3d) 153 at para. 46. . . .
(Diallo v. Canada (Minister of
Citizenship and Immigration), 2009 FC 84; also, Qureshi v.
Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 96,
156 A.C.W.S. (3d) 180, at paragraphs 25‑26)
[43]
The
risks Mr. Altenor would face if he returned to Haiti were not established
by him before the PRRA officer. He cannot rely on the same allegations to prove
the existence of irreparable harm.
[44]
Furthermore,
the mere fact that there is a leave application against an administrative
decision does not mean that the removal of the person concerned constitutes
irreparable harm.
[11] Sixth, the deportation of
individuals while they have outstanding leave applications and/or other
litigation before the Court, is not a serious issue nor does it constitute
irreparable harm. . . .
(Akyol v. Canada (Minister of
Citizenship and Immigration), 2003 FC 931, 124 A.C.W.S. (3d) 1119)
[45]
With
regard to Justin Mazzola’s affidavit, Mr. Mazzola admits in
paragraph 5 that detention in the United States lasts an average of
37 days. He does not specify the reasons why detention may last longer or the
number of cases in which detention lasted much longer than the average. As
well, the Court realizes that Mr. Mazzola is obviously not aware of the
specific content of Mr. Altenor’s case. The Court notes that
Mr. Mazzola works for Amnesty International and that what he says is based
solely on his knowledge of information from his work rather than on any
specific knowledge of Mr. Altenor’s case.
C.
Balance of inconvenience
[46]
The
balance of inconvenience is in the Minister’s favour. Section 48 of the
IRPA provides that a removal order must be enforced as soon as is reasonably
practicable. There is a public interest in having a system that operates in an
efficient, expeditious and fair manner.
[47]
Moreover,
one of the objectives of the IRPA is to promote international justice and
security by fostering respect for human rights (paragraph 3(1)(i)
of the IRPA). Mr. Altenor was excluded from the definition of Convention
refugee because the Immigration and Refugee Board (IRB) had serious reasons for
considering that he had committed crimes against humanity and acts contrary to
the purposes and principles of the United Nations. The balance of inconvenience
is therefore clearly in the Minister’s favour.
VI. Conclusion
[48]
For
all these reasons, the applicant’s stay application must be dismissed.
JUDGMENT
THIS COURT ORDERS that the
motion for a stay of the removal order made against the applicant be dismissed.
“Michel
M.J. Shore”
Certified
true translation
Brian
McCordick, Translator
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