Date: 20110224
Docket: IMM-1573-10
Citation: 2011
FC 221
Ottawa, Ontario, February 24, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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MOHAMMAD AHSAN ULLAH
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
[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 officer), dated
February 18, 2010, wherein the officer determined that the applicant would not
be subject to risk of torture, risk to life or risk of cruel and unusual
treatment or punishment if returned to Pakistan.
[2]
The
applicant requests an order setting aside the decision of the officer and
remitting it matter back for redetermination by a different officer.
Background
[3]
Mohammad
Ahsan Ullah (the applicant) was born on November 24, 1975 and is a citizen of Pakistan.
[4]
The
applicant became involved in the political branch of the Muttahida Quami
Movement (MQM-A) while attending college. He worked on election campaigns and
held fundraisers. Because of these activities, he faced threats from members
of the terrorist faction known as the MQM Haqiqi (MQM-H). He stayed with
friends and returned home infrequently.
[5]
On
June 28, 2001, the applicant returned home. Several people, who the applicant
alleges were MQM-H members, broke into his house. While attempting to escape,
the applicant was shot and wounded. As a result, he has been diagnosed with
complete paraplegia.
[6]
The
applicant entered Canada on October 11, 2001. He applied for refugee
status but was found to be ineligible based on subsection 34(1) of the Act. In
2006, he requested Ministerial relief under subsection 34(2) at an
inadmissibility hearing of the Immigration Division of the Immigration and
Refugee Board. The applicant has not received a decision on the relief requested
under subsection 34(2) of the Act.
[7]
The
applicant submitted a pre-removal risk assessment (PRRA) in January 2010. His
PRRA application was rejected in March 2010.
Officer’s Decision
[8]
The
determinative issue for the officer was lack of sufficient objective evidence.
[9]
The
officer found that the applicant was someone described in subsection 112(3) of
the Act due to his inadmissibility based on his membership in an organization
engaged in terrorism as per subsection 34(1) of the Act.
[10]
The
officer found that the applicant provided insufficient evidence that the attack
on him was a result of his membership in MQM-A or that the attackers were MQM-H
members. The applicant did not provide evidence about how he knew the attackers
were MQM-H, how they became aware that he was present at his home and why he
would be targeted. The applicant provided a newspaper article that stated that
the attack was random and said nothing about it being politically motivated or
perpetrated by MQM-H members. The officer found the applicant’s statements to
be vague and general.
[11]
The
officer found that the applicant did not provide sufficient information about
his role in MQM-A. The applicant’s statement about his activities were very
general, he did not provide details about when he worked for MQM, how often or
what his position was. The letter from the head of the MQM-A notes only that
the applicant was a supporter. The officer concluded that there was
insufficient evidence that the applicant fits the profile of a person likely to
draw the interest of anyone in Pakistan.
[12]
The
officer concluded that the applicant will face the same generalized risk of
violence as the entire population and would not likely face a risk of torture,
death or cruel and unusual treatment or punishment if returned to Pakistan.
Issues
[13]
The
applicant submitted the following issues for consideration:
1. Did the officer err
in not deferring removal proceedings pending the determination of the
applicant’s application for Ministerial relief under subsection 34(2) of the
Act?
2. Did the officer err
by not convoking a hearing into the PRRA application of the applicant?
3. Did the officer err
in law in his or her interpretation and application of the definition of a
person in need of protection as defined in section 97 of the Act?
4. Did the officer err
in law basing his or her decision on an erroneous finding of fact that he made
in a perverse or capricious manner or without regard for the material before
him?
5. Did the officer
render a decision that is unreasonable, having regard to the evidence before
him or her so as to amount to an error of law?
6. Did the officer err
by ignoring evidence and misinterpreting the evidence including sworn
testimony, documentary evidence and human rights records?
[14]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer err
in not deferring the applicant’s removal from Canada pending a
determination of his application for Ministerial relief pursuant to subsection
34(2) of the Act?
3. Did the officer err
by not holding a hearing pursuant to subsection 113(b) of the Act?
4. Did the officer err
by ignoring probative evidence?
Applicant’s Written Submissions
[15]
The
applicant submits that the officer erred in not providing reasons for his
refusal to defer the proceedings prior to a decision on the application for
Ministerial relief made pursuant to subsection 34(2) of the Act.
[16]
The
applicant submits that the officer erred by not convoking an oral hearing. A hearing
is required when credibility is in issue. The applicant submits that the
officer’s finding that there was insufficient objective evidence of the
applicant’s role with the MQM-A or the identity of his attackers was
essentially a finding of credibility and an oral hearing should have been
convoked.
[17]
The
applicant submits that the officer ignored probative evidence before him. There
was much evidence before the officer that the applicant, as a member of the
MQM-A, faces a personalized risk not shared with the entire population in Pakistan. The officer
made no reference to the documentary evidence which demonstrates that MQM-A
members face a personalized risk in Pakistan. The officer therefore
erred by ignoring evidence.
Respondents’ Written Submissions
[18]
The
respondents submit that the applicant did not meet his onus to provide
sufficient evidence that his removal to Pakistan would subject him personally to a risk to his
life or to a risk of cruel and unusual treatment that is not faced generally by
other individuals. The applicant failed to submit sufficient objective evidence
to indicate how he knew his attackers were MQM-H members, how they became aware
of his return home or why he would be targeted. There was further evidence that
the attack was random. It was open to the officer to conclude that the
applicant had not established a link between his personal circumstances and a risk
defined in section 97 of the Act.
Analysis and Decision
[19]
Issue
1
What is the
appropriate standard of review?
Generally, the standard of
review for a PRRA decision overall is that of reasonableness (see Wang v. Canada (Minister of
Citizenship and Immigration), 2010 FC 799, at paragraph 11).
[20]
Issues
of procedural fairness arising from the determination of a PRRA application
will be determined on the correctness standard, which, typically, includes the
right to be heard (see Wang above, at paragraph 11).
[21]
It
should be noted that issues regarding the right to be heard arising from the
application of subsection 113(b) of the Act are not necessarily reviewed on the
correctness standard. As stated by Mr. Justice Yves de Montigny in Iboude c.
Canada (Ministre de
la Citoyenneté et de l'Immigration), 2005 FC 1316 at
paragraph 12, subsection 113(b) of the Act is clear that the Minister is not
obligated to grant a hearing. In deciding whether to hold a hearing, the PRRA
officer applies the facts to the factors outlined in section 167 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations). This
is a determination of mixed fact and law reviewable on the standard of
reasonableness (see Karimi v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1010 at paragraph 17). However,
if there is no indication that the officer turned his mind to the section 167
factors or the issue of whether to hold an oral hearing, this does raise
concerns of procedural fairness. As such, the absence of an oral hearing, in
the case at bar, should be reviewed on the standard of correctness (see Karimi
above, at paragraph 17).
[22]
The
other issues raised will be reviewed on the standard of reasonableness.
[23]
Issue
2
Did the officer err in not
deferring the applicant’s removal from Canada pending a
determination of his application for Ministerial relief pursuant to subsection
34(2) of the Act?
The officer
deciding the applicant’s application was a PRRA officer from Citizenship and
Immigration Canada. If the applicant wished to submit a request to defer his
removal, this should have been directed to the Canadian Border Services Agency
to be assessed by an inland enforcement officer. I have reviewed the
applicant’s PRRA submissions dated February 1, 2010 and I note that the
deferral request is not noted. As well, I have reviewed the certified tribunal
record and I did not locate a copy of the letter requesting deferral. It is
also important to note that a removal date had not been set at the date of the
hearing. It would not make sense to order a deferral of a removal that has not
yet been scheduled. Consequently, the officer did not make a reviewable error
in failing to defer the applicant’s removal pending a determination of his
application for Ministerial relief pursuant to subsection 34(2) of the Act.
[24]
Issue
3
Did the
officer err by not holding a hearing pursuant to subsection 113(b) of the Act?
When applying
for protection, a person may make written submissions in support of their
application pursuant to subsections 161(1) and (2) of the Regulations. An oral
hearing is not required in the normal course of deciding a PRRA application.
[25]
A
hearing may be held under subsection 113(b) of the Act if the Minister is of
the opinion that a hearing is required based on the factors set out in section
167 of the Regulations. The language of subsection 113(b) signifies that the holding
of an oral hearing is always discretionary having regard for the factors
identified in section 167 of the Regulations (see Begashaw v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1167, at paragraphs 15 and 19).
The factors to be considered which are set out in paragraphs (a), (b) and (c)
of section 167 of the Regulations should be read cumulatively. In Cosgun v. Canada (Minister of
Citizenship and Immigration), 2010 FC 400 Mr. Justice Paul Crampton at
paragraph 32 states that:
Given the presence of the conjunctive
word "and" between paragraphs (b) and (c) above, it is clear that the
factors set forth in paragraphs 167(a), (b) and (c) are cumulative. … The
parties agree that if all three factors in section 167 were satisfied, a PRRA
Officer would be obliged to hold a hearing and that if one of the factors set
forth (b) or (c) is not satisfied then a hearing would not be required.
[26]
Thus,
based on paragraphs (a), (b) and (c) of section 167, an applicant must
establish that there is evidence which raises concerns about the applicant’s
credibility and is related to section 97, that this evidence is central to the
decision on the application for protection and that this evidence, if accepted,
would justify allowing the application for protection.
[27]
A
finding of insufficient evidence may reveal that the officer was actually
concerned about the credibility of the applicant or the evidence. This is noted
throughout the Federal Court jurisprudence. In Zokai v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1103 at paragraph 12, Mr. Justice
Michael Kelen held that:
In refusing to accord weight to the
applicant's story without corroborating evidence, the PRRA Officer, in effect,
concluded that the applicant was not credible. In my view, given these
credibility concerns, it was incumbent on the Officer to consider the request
for an oral hearing and to provide reasons for refusing to grant the request.
[28]
Other
examples of officers purporting to reject applicants’ applications on the basis
of insufficient evidence where they in fact made their decisions based on
credibility grounds are found in Begashaw above, at paragraph 20; Liban
v. Canada (Minister of Citizenship and Immigration), 2008 FC 1252 at
paragraph 14 and Haji v. Canada (Minister of Citizenship and Immigration),
2009 FC 889 at paragraphs 14 to 16).
[29]
Applicants
are required under subsection 10(1) of the Regulations to submit all
information, documents and evidence required by the Regulations and the Act. As
such, it is open to an officer to reject an application on the basis that the
applicant has submitted insufficient evidence. I agree with Mr. Justice
Crampton’s analysis in Herman v. Canada (Minister of Citizenship and Immigration),
2010 FC 629, at paragraph 17, where he states that the cases noted above
regarding findings of insufficiency of evidence:
… do not stand for the proposition that a
PRRA Officer in essence makes an adverse credibility finding every time he or
she concludes that the evidence adduced by an Applicant is not sufficient to
meet the Applicant's evidentiary burden of proof. In each of those cases, it
was clear to the Court that the PRRA Officer either had made a negative
credibility finding, or simply disbelieved the evidence presented by the
Applicant. This is very different from not being persuaded that an Applicant
has met his or her burden of proof on the balance of probabilities.
[30]
Simply
because the officer in this case made a finding that the applicant had
presented insufficient evidence, does not necessarily mean that he made a
negative credibility finding.
[31]
The
officer noted that the applicant helped with election campaigns and fundraising
for MQM-A, but found that the letter from the head of the organization stated
that the applicant was only a supporter. The officer also found that the
newspaper article submitted by the applicant on the incident where he was shot
described the event as a random act.
[32]
The
officer found that the applicant presented no evidence on:
1. when and how often
he did work for MQM-A;
2. the nature of the
previous threats he received from MQM-H, how often and when these threats
occurred and under what circumstances;
3. how he knew that the
men who shot him were MQM-H members;
4. why he believed that
the attack on him was a result of his membership in MQM-A; and
5. how the MQM-H
members became aware that he was present at his home.
[33]
I
have reviewed the material submitted by the applicant in his PRRA application. He
did not provide information on any of these points of concern raised by the
officer. The only information the applicant presented about his role in MQM-A
and the threats he faced from MQM-H was the following:
I first became involved in the MQM-A
through its student wing , the APMSO, when I started attending college in 19992
or 1993. I have worked for the party in election campaigns and other
activities such as fundraising. My MQM-A involvement became such that it was
dangerous for me to remain at home. Both my brother (also involved in
activities for the MQM) and I faced threats from members of the MQM-H to stop
our political activity, and because of these threats we began staying with
friends at various homes and only returning to our own home infrequently.
[34]
I
would then restate the holding of Mr. Justice Paul Crampton from paragraph 18
of Herman above:
…it was reasonably open to the PRRA
Officer to conclude, without making an adverse credibility finding, that the
evidence adduced was not sufficient to establish, on a balance of
probabilities, the claims advanced by the Applicant.
[35]
More
specifically, it was reasonable for the officer to conclude that the applicant
had not met the onus to establish his membership in the MQM-A nor that he
personally faced a risk to his life directly as a result of such membership.
[36]
Issue
4
Did the
officer err by ignoring probative evidence?
The applicant submitted that
the officer made no reference to any of the documentary evidence which
demonstrates that members of the MQM-A face a personalized risk in Pakistan and
that therefore, the officer erred by ignoring evidence.
[37]
However,
the officer did not find that members of the MQM-A do not face any risks in Pakistan, which is
the crux of the documentary evidence provided by the applicant in his
application. Rather, as discussed above, the officer found that there was
insufficient evidence regarding the nature of the applicant’s involvement in
the MQM-A and insufficient evidence about the threats and violence he
personally had faced from the MQM-H. I do not find that the officer ignored
relevant evidence.
[38]
As a
result, the application for judicial review must be dismissed.
[39]
The
applicant did not wish to submit a proposed serious question of general
importance for my consideration for certification. As a result of my findings
on the deferral issue, the respondents did not wish to submit a proposed
serious question of general importance for my consideration for certification.
JUDGMENT
[40]
IT IS
ORDERED that the
application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration and Refugee Protection Act, 2001, c. 27
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34.(1) A permanent resident or a foreign
national is inadmissible on security grounds for
(a) engaging
in an act of espionage or an act of subversion against a democratic
government, institution or process as they are understood in Canada;
(b) engaging
in or instigating the subversion by force of any government;
(c) engaging
in terrorism;
(d) being a
danger to the security of Canada;
(e) engaging
in acts of violence that would or might endanger the lives or safety of
persons in Canada; or
(f) being a
member of an organization that there are reasonable grounds to believe
engages, has engaged or will engage in acts referred to in paragraph (a), (b)
or (c).
34(2) The
matters referred to in subsection (1) do not constitute inadmissibility in
respect of a permanent resident or a foreign national who satisfies the
Minister that their presence in Canada would not be detrimental to the
national interest.
72.(1) Judicial review by the Federal
Court with respect to any matter — a decision, determination or order made, a
measure taken or a question raised — under this Act is commenced by making an
application for leave to the Court.
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.
112(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:
. . .
(b) a hearing
may be held if the Minister, on the basis of prescribed factors, is of the
opinion that a hearing is required;
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34.(1)
Emportent interdiction de territoire pour raison de sécurité les faits
suivants :
a) être
l’auteur d’actes d’espionnage ou se livrer à la subversion contre toute
institution démocratique, au sens où cette expression s’entend au Canada;
b) être
l’instigateur ou l’auteur d’actes visant au renversement d’un gouvernement
par la force;
c) se livrer
au terrorisme;
d) constituer
un danger pour la sécurité du Canada;
e) être
l’auteur de tout acte de violence susceptible de mettre en danger la vie ou
la sécurité d’autrui au Canada;
f) être membre
d’une organisation dont il y a des motifs raisonnables de croire qu’elle est,
a été ou sera l’auteur d’un acte visé aux alinéas a), b) ou c).
34(2)
Ces faits n’emportent pas interdiction de territoire pour le résident
permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne
serait nullement préjudiciable à l’intérêt national.
72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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.
112 (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 :
. . .
b)
une audience peut être tenue si le ministre l’estime requis compte tenu des
facteurs réglementaires;
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Immigration
and Refugee Protection Regulations, SOR/2002-227
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10.(1) Subject to paragraphs 28(b) to (d),
an application under these Regulations shall
(a) be made in
writing using the form provided by the Department, if any;
(b) be signed
by the applicant;
(c) include
all information and documents required by these Regulations, as well as any
other evidence required by the Act;
(d) be
accompanied by evidence of payment of the applicable fee, if any, set out in
these Regulations; and
(e) if there
is an accompanying spouse or common-law partner, identify who is the
principal applicant and who is the accompanying spouse or common-law partner.
161.(1) A person applying for protection
may make written submissions in support of their application and for that
purpose may be assisted, at their own expense, by a barrister or solicitor or
other counsel.
(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.
167. For the
purpose of determining whether a hearing is required under paragraph 113(b)
of the Act, the factors are the following:
(a) whether
there is evidence that raises a serious issue of the applicant's credibility
and is related to the factors set out in sections 96 and 97 of the Act;
(b) whether
the evidence is central to the decision with respect to the application for
protection; and
(c) whether
the evidence, if accepted, would justify allowing the application for
protection.
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10.(1)
Sous réserve des alinéas 28b) à d), toute demande au titre du présent
règlement :
a) est faite
par écrit sur le formulaire fourni par le ministère, le cas échéant;
b) est signée
par le demandeur;
c) comporte
les renseignements et documents exigés par le présent règlement et est
accompagnée des autres pièces justificatives exigées par la Loi;
d) est
accompagnée d’un récépissé de paiement des droits applicables prévus par le
présent règlement;
e)
dans le cas où le demandeur est accompagné d’un époux ou d’un conjoint de
fait, indique celui d’entre eux qui agit à titre de demandeur principal et
celui qui agit à titre d’époux ou de conjoint de fait accompagnant le
demandeur principal.
161.(1)
Le demandeur peut présenter des observations écrites pour étayer sa demande
de protection et peut, à cette fin, être assisté, à ses frais, par un avocat
ou un autre conseil.
(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.
167.
Pour l’application de l’alinéa 113b) de la Loi, les facteurs ci-après servent
à décider si la tenue d’une audience est requise :
a)
l’existence d’éléments de preuve relatifs aux éléments mentionnés aux
articles 96 et 97 de la Loi qui soulèvent une question importante en ce qui
concerne la crédibilité du demandeur;
b)
l’importance de ces éléments de preuve pour la prise de la décision relative
à la demande de protection;
c)
la question de savoir si ces éléments de preuve, à supposer qu’ils soient
admis, justifieraient que soit accordée la protection.
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