Docket: IMM-915-11
Citation: 2011 FC 1133
Ottawa, Ontario, October 6,
2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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JEEWAN KHAIMRAJ
FIDEL KHAIMRAJ
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Applicants
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and
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THE MINISTER OF CITIZENSHIP &
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
Mr.
Jeewan Khaimraj and his son, Fidel, claimed refugee protection in Canada after
departing their country of origin, Guyana, in 2005. They alleged
persecution on a variety of grounds – political opinion, religion and ethnicity
– but, in 2007, a panel of the Immigration and Refugee Board dismissed their
claims for a lack of supporting evidence.
[2]
Mr.
Khaimraj and Fidel subsequently applied for a pre-removal risk assessment [PRRA].
They claimed to fear their neighbours in Guyana, who had
attacked them twice in 2004. The PRRA officer concluded that there was no
reason why evidence of those attacks could not have been presented to the
Board. Accordingly, the officer found there was no new evidence before him to
consider in respect of the PRRA. In addition, the officer found that Guyana is capable
of protecting Mr. Khaimraj and his son if they return there.
[3]
Mr.
Khaimraj argues that the officer erred in rejecting his “new” evidence. He was
unaware that he could have presented that evidence to the Board; therefore, the
officer had an obligation to consider it. Further, Mr. Khaimraj argues that the
officer erred in finding that state protection was available in Guyana. He asks me
to overturn the officer’s decision and order another officer to carry out a
fresh PRRA.
[4]
I
can find no error on the officer’s part and must, therefore, dismiss this
application for judicial review. The officer reasonably concluded that there
was no new evidence of risk. He had no obligation, therefore, to go on to
consider whether Guyana could adequately protect the applicants from
risk. Even so, the officer did consider the relevant documentary evidence and
concluded that state protection was available.
[5]
The
two issues to consider are:
1. Did the officer err
in finding no new evidence to consider on the PRRA application?
2. Did the officer err
in finding adequate state protection?
II. The Officer’s Decision
[6]
The
officer summarized Mr. Khaimraj’s allegations regarding attacks by his
neighbours in 2004, including his belief that his wife had died of her injuries
later that year.
[7]
The
officer considered whether that evidence was admissible on a PRRA. An important
consideration was the fact that Mr. Khaimraj had presented a variety of risk
allegations in his refugee claim, all of which had been dismissed by the Board
in 2007. Mr. Khaimraj had not provided the officer with any explanation for the
failure to present the additional evidence of attacks to the Board.
[8]
Accordingly,
the officer found that the evidence did not meet the test of “newness” set out
by the Federal Court of Appeal in Raza v Canada (Citizenship and
Immigration), 2007 FCA 385, para 13. It did not involve an event that
occurred after the Board’s decision or prove any fact that was unknown to Mr.
Khaimraj at the time of his hearing.
[9]
The
officer also noted that the Board had found that state protection was available
to Mr. Khaimraj and Fidel in Guyana. Still, he went on to consider more recent
documentary evidence and concurred with the Board that state protection exists
in Guyana
III. Issue One - Did the officer
err in finding no new evidence to consider on the PRRA application?
[10]
Mr.
Khaimraj asserts that he was unaware that he could have submitted to the Board
evidence of risk based on grounds other than those set out in the Refugee
Convention. Therefore, he maintains that he could not reasonably be expected to
have presented that evidence at the time of his hearing before the Board. As
such, he meets the test for the admission of new evidence on a PRRA set out in
s 113(a) of the Immigration and Refugee Protection Act, SC 2001,
c 27 (see Annex).
[11]
In
my view, a lack of awareness of the possibility of presenting evidence to the
Board does not justify admission of that evidence on a PRRA. A PRRA is intended
to deal with matters that arose after a refugee hearing, or evidence that could
not reasonably have been obtained sooner. As Justice Karen Sharlow pointed out
in Raza, where the evidence does not meet the test of “newness”, it
“need not be considered” (para 13).
[12]
In
my view, the officer had no obligation to consider the evidence relating to the
attacks by Mr. Khaimraj’s neighbours; his refusal to do so was not
unreasonable.
IV. Issue Two - Did the officer
err in finding adequate state protection?
[13]
Mr.
Khaimraj argues that the officer had a duty at least to consider and weigh the
evidence he tendered about the availability of state protection in Guyana.
[14]
In
my view, the officer did not have a duty to consider that evidence. The Board
had already rejected the allegation that Mr. Khaimraj and his son faced a risk
of persecution in Guyana. And there was no evidence properly before the
officer with respect to any other source of risk. Therefore, there was no
specific risk against which the evidence of state protection could be assessed.
[15]
Further,
the officer stated that he did consider that evidence and found no basis for
departing from the Board’s conclusion that state protection was adequate in Guyana.
[16]
Again,
I can find no error on the officer’s part.
V. Conclusion and Disposition
[17]
The
PRRA officer reasonably concluded that there was no new evidence to consider
and, even so, that state protection was available in Guyana. Therefore,
I must dismiss this application for judicial review. Neither party proposed a
question of general importance, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The
application for judicial review is dismissed;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
Annex
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Immigration
and Refugee Protection Act, SC 2001, c 27
Consideration
of application
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;
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Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
Examen
de la demande
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;
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