Date: 20070504
Docket: IMM-6418-06
Citation: 2007 FC
489
Ottawa, Ontario, May 4, 2007
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
ROGER
GEORGE S. RIZK HASSABALLA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
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 by a Pre-Removal Risk Assessment (PRRA) officer made on October
25, 2006, to refuse an application for protection.
BACKGROUND
[2]
Roger
George S. Rizk Hassaballa (the applicant) is a citizen of Egypt who came to Canada on December 10, 2003,
after being denied asylum in the United States for lack of sufficient documentation, and made a claim for
refugee protection immediately upon arriving in Canada.
[3]
On February 11, 2004, the applicant’s claim for refugee
protection was determined by the Refugee Protection Division (the RPD) to be
abandoned, as a result of his failure to submit his Personal Information Form
(PIF) on time. On March 2, 2004, the applicant filed an application to re-open
his claim for refugee protection, which was denied, as was his application for
judicial review of that decision (IMM-6813-04).
[4]
The applicant’s claim to refugee protection was based on a
well-founded fear of persecution on the ground of religion, for being a Coptic
Christian. Specifically, the applicant claimed to have been attacked and beaten
by a group of fundamentalist Muslims, members of the Gamaa Islamiya
organization, and to have received telephone threats, all stemming from his
friendship with a young Muslim woman who had expressed a strong interest in
Christianity. The applicant also alleged that he was a person in need of
protection based on a danger of torture or a risk of cruel and unusual
treatment, should he be forced to return to Egypt. Further, the applicant submitted that the government in Egypt was unwilling or unable to provide protection, and indeed
tacitly condoned and often engaged in the persecution of Christians.
[5]
On November 17, 2004, the applicant filed an application
for protection under section 112 of the Act. Material in support of the PRRA
was submitted by his counsel on December 8, 2004, and again on May 5, 2005.
DECISION
UNDER REVIEW
[6]
In a
decision made on October 25, 2006, the PRRA officer rejected the application,
finding that, based on the evidence before her, there was no more than a mere
possibility that the applicant would be subjected to persecution should he
return to Egypt. The officer also concluded that there were no substantial
grounds to believe that the applicant would face a risk of torture, nor were
there reasonable grounds to believe that he would face a risk to life or a risk
of cruel and unusual treatment or punishment.
[7]
In her detailed analysis, the PRRA officer did not question
the applicant’s credibility with respect to his story of what happened to him
ten years ago, but found no evidence to suggest that the people who allegedly
harassed and physically injured him at that time would still be interested in
him today. In any event, the officer noted that the applicant could always
relocate to another region of Egypt if he was not comfortable returning to Alexandria where these events occurred. The PRRA
officer also concluded that the discrimination suffered by Coptic Christians in
Egypt did not amount to
persecution and that the presumption of state protection had not been rebutted.
ISSUES FOR CONSIDERATION
[8]
The following issues must be considered in this judicial
review application:
1) Did the PRRA officer err in concluding that the discrimination faced by
Coptic Christians in Egypt did not amount to persecution?
2) Did the PRRA officer err in determining that state protection was
available to the applicant?
3) Did the PRRA officer err by rendering a decision without regard to the
evidence before her?
4) Did the PRRA officer breach the applicant’s right to procedural fairness
by relying on updated documents and independent internet research, without
providing the applicant with an opportunity to respond?
STANDARD OF REVIEW
[9]
In Figurado v. Canada (Solicitor General), 2005 FC 347, [2005] F.C.J. No. 458
(QL), Mr. Justice Luc Martineau stated the following on the issue of the proper
standard of review for matters relating to PRRA decisions:
¶ 51 In
my opinion, in applying the pragmatic and functional approach, where the
impugned PRRA decision is considered globally and as a whole, the applicable
standard of review should be reasonableness simpliciter (Shahi v.
Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1826
(T.D.) (QL), at paragraph 13; Zolotareva v. Canada (Minister of Citizenship
and Immigration) (2003), 241 F.T.R. 289 (F.C.),
at paragraph 24; Sidhu v. Canada (Minister of Citizenship and Immigration),
2004 FC 39, at
paragraph 7). That being said, where a particular finding of fact is made by
the PRRA officer, the Court should not substitute its decision to that of the
PRRA officer unless it is demonstrated by the applicant that such finding of
fact was made in a perverse or capricious manner or without regard to the
material before the PRRA officer (paragraph 18.1(4)(d) [as enacted by
S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27] of the Federal Courts Act; Harb
v. Canada (Minister of Citizenship and Immigration) (2003), 238 F.T.R. 194
(F.C.A.), at paragraph 14).
[10]
On the question of the applicant’s right to procedural
fairness, the decision of the PRRA officer must be reviewed on a standard of
correctness (Canadian Union of Public Employees
(C.U.P.E.) v. Ontario (Minister of Labour), [2003]
1 S.C.R. 539). As such, if this Court finds that the duty of fairness owed to
the applicant was violated, no deference will be
given to the decision-maker and the application to set aside the decision will
be granted (Congrégation
des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village),
[2004] 2 S.C.R. 650).
ANALYSIS
1) Did the PRRA officer err in concluding that the
discrimination faced by Coptic Christians in Egypt did not
amount to persecution?
[11]
The applicant submits that the PRRA officer erred by
failing to indicate what legal test she was using in order to differentiate
between discrimination and persecution. The applicant maintains that there is a
whole body of case law dealing with this issue that should have been mentioned
by the PRRA officer to support her conclusion that the discrimination against
Coptic Christians in Egypt did not amount to persecution.
[12]
The respondent for his part maintains that there is no
specific legal test demonstrating when discrimination will amount to
persecution. The determination is essentially factual, and within the authority
and expertise of the decision-maker. The respondent submits that it was
sufficient for the PRRA officer to recognize, as she did, that discrimination
can amount to persecution, particularly in light of the fact that the Federal
Court of Appeal has recognized that Post Claim Determination Officers (the
predecessors of PRRA officers) are not required to provide reasons that are as
detailed as a tribunal’s would be after an adjudicative hearing (Ozdemir v.
Canada (MCI), 2001 FCA 331, [2001] F.C.J. No. 1646
(QL)).
[13]
As the applicant brings forth the argument that there
exists a legal test for determining when discrimination amounts to persecution,
it is necessary to consider the jurisprudence submitted by the applicant to
this effect. The applicant relies on the decision of Mr. Justice Edmond P.
Blanchard in Osman v. Canada (MCI), 2002 FCT 654, [2002] F.C.J. No. 866 (QL), citing an earlier decision of the Federal
Court of Appeal in Sagharichi v. Canada (MEI), [1993] F.C.J. No. 796
(QL), at paragraph 3, where Mr. Justice Louis Marceau explained the distinction
between incidents of discrimination and incidents of persecution, as follows:
¶ 3 It
is true that the dividing line between persecution and discrimination or
harassment is difficult to establish, the more so since, in the refugee law
context, it has been found that discrimination may very well be seen as
amounting to persecution. It is true also that the identification of
persecution behind incidents of discrimination or harassment is not purely a
question of fact but a mixed question of law and fact, legal concepts being
involved. It remains, however, that, in all cases, it is for the Board
to draw the conclusion in a particular factual context by proceeding with a
careful analysis of the evidence adduced and a proper balancing of the various
elements contained therein, and the intervention of this Court is not warranted
unless the conclusion reached appears to be capricious or unreasonable.
[14]
The applicant further refers to Justice Martineau’s
decision in Mohacsi v. Canada (MCI), 2003 FCT 429, [2003] F.C.J. No. 586
(QL), as to the necessity to consider the cumulative impact of
various discriminatory measures.
[15]
While the jurisprudence cited by the applicant makes it
clear that a finding as to the well-founded fear of persecution of an applicant
is reviewable on a standard of reasonableness, this jurisprudence fails to
disclose which specific legal test must be applied to make such a
determination, despite the applicant’s claim to the contrary.
[16]
In light of the fact that the applicant’s claim is based on
a single incident of violence followed by some telephone threats, and based on
the objective evidence found in the country reports, the PRRA officer concluded
as follows, after analysing a series of documents:
Evidence found in
country reports and articles indicate that there are elements of discrimination
directed towards people who do not worship in the Islamic faith in Egypt. The
evidence does not however indicate that this discrimination amounts to
persecution. There are many Christians who practice their faith without
difficulty. The state has taken steps to curtain acts of discrimination,
through education programs, the establishment of a National Council on Human
Rights and recognition as a national holiday; the observance of Christmas.
The applicant
indicates than when he returned to Egypt during his mother’s
illness he lived with family in Cairo. […] The applicant
has not submitted that he was subject to any incidents or had any problems
while there. The evidence before me does not support that he would still be of
interest to the local Muslims because of his relationship with a girl in 1996
or because of the risks faced by his father.
[17]
Having considered the evidence and the officer’s reasons, I
am satisfied that her finding that the applicant did not have a well-founded
fear of persecution was reasonable and that she did not misapprehend any legal
principle in the process. Furthermore, it is trite law that in order to
establish an objective fear of persecution, a claimant must demonstrate that
state protection is unavailable to him. This portion of the PRRA officer’s
analysis will be considered in the next section of these reasons.
2) Did the PRRA officer err in concluding that state
protection was available to the applicant?
[18]
The applicant submits that the PRRA officer erred by
failing to examine the applicant’s particular situation as relates to state
protection. While the PRRA officer considered whether Coptic Christians in
general have access to state protection, she did not consider whether the
applicant himself had access to state protection.
[19]
The leading case on the question of state protection is the
Supreme Court of Canada’s decision in Canada (A.G.) v. Ward, [1993] 2
S.C.R. 689, where it was stated that, absent a situation of complete breakdown
of the state apparatus, there would be a presumption that a state is able to
protect its citizens. Such a presumption in turn could be rebutted by a
claimant who presented clear and convincing proof of the state’s inability to
protect. As the Supreme Court of Canada stated at paragraph 50 of its reasons:
¶ 50
The issue that arises, then, is how, in a practical sense, a claimant makes
proof of a state's inability to protect its nationals as well as the reasonable
nature of the claimant's refusal actually to seek out this protection. On the
facts of this case, proof on this point was unnecessary, as representatives of
the state authorities conceded their inability to protect
Ward. Where such an admission is not available, however, clear
and convincing confirmation of a state's inability to protect must be provided. For
example, a claimant might advance testimony of similarly situated
individuals let down by the state protection arrangement or the claimant's
testimony of past personal incidents in which state protection did not
materialize. Absent some evidence, the claim should fail, as nations
should be presumed capable of protecting their citizens. Security
of nationals is, after all, the essence of sovereignty. Absent a
situation of complete breakdown of state apparatus, such as that recognized in Lebanon
in Zalzali, it should be assumed that the state is capable of protecting
a claimant. [my emphasis]
[20]
In this case, it is clear from the evidence that the
applicant failed to demonstrate that he himself had sought and been denied
state protection. Instead, the applicant relied on the fact that his father was
granted refugee status to demonstrate that state protection would not be
available to him in Egypt. As
proof, the applicant submitted his father’s PIF and the decision of the RPD,
which did not include reasons for the decision.
[21]
A reading of the PRRA officer’s reasons discloses that the
officer did in fact consider both the documentary evidence on the availability
of state protection in general, as well as the applicant’s particular
situation, but simply rejected the applicant’s argument to the effect that his father’s
acceptance as a refugee was sufficient to demonstrate that state protection was
unavailable to him. The officer noted that the father’s claim for refugee
protection was based on very different facts than that of the applicant, as the
incidents listed in his father’s PIF were mainly related to his business which
printed religious material for the Church. There was also no mention in his father’s
PIF that he sought state protection, other than to say, in relation to a
particular beating, that it was pointless to report the incident to the police
because the police operated with those who beat him, as they are all Muslims
and they band together.
[22]
In light of the evidence submitted to the PRRA officer, I
agree with the respondent that the applicant did not meet the test set out in Ward,
above, for rebutting the presumption of state protection, and that the PRRA
officer’s conclusion on the availability of state protection was entirely
reasonable.
3)
Did the PRRA officer err by rendering a decision without regard to the evidence
before her?
[23]
The applicant submits that the PRRA officer erred in her
assessment of the evidence by not mentioning contradictory evidence among the
documents she cited, in particular evidence that showed problems with the
electoral process and human rights abuses committed by the security forces in
Egypt, and by dismissing an important document submitted by the
applicant, a Master’s thesis entitled “The Coptic Christians of Egypt Today:
Under Threat of Annihilation”.
[24]
The
respondent for his part notes that it is trite law that a decision-maker is
presumed to have considered all of the evidence and that the assessment of
weight to be given to the evidence is a matter within the decision-maker’s
discretion and expertise (Woolaston v. Canada (Minister of Employment and
Immigration), [1973] R.C.S. 102, Hassan v. Canada (Minister of
Employment and Immigration) (1992), 147 N.R. 317, [1992] F.C.J. No. 946
(QL)).
[25]
On
the issue of the selective use of the evidence, I agree with the respondent
that the PRRA officer did refer to contradictory evidence, as she specifically
listed examples of discrimination faced by Christians in Egypt.
[26]
Overall,
the applicant has failed to convince me that the presumption that the officer
considered all of the evidence before her has been rebutted in this case, and I
will not interfere with her assessment of the relative weight to be given to
this evidence in this judicial review application.
[27]
In
terms of the Master’s thesis submitted by the applicant in support of his claim
that Coptic Christians are persecuted in Egypt, it is clear
from the reasons that the PRRA officer considered this particular piece of
evidence, but found it to be of little probative value. I have reviewed the
officer’s reasons for dismissing this document, including that the thesis was
ten years old and referred to material even older and that it reflected the
opinion of the author and his interpretation of the evidence. The PRRA officer
stated that she preferred to rely instead on more objective documentation, such
as the current country reports. Once again, it was within the purview of the
officer to consider the evidence and weigh its probative value, and I can find
nothing wrong with the officer’s decision to conclude that the document in
question was of little probative value (Augusto v. Canada (Solicitor General), 2005 FC 673, [2005] F.C.J. No. 850
(QL)).
4) Did the PRRA officer breach the applicant’s right to
procedural fairness by relying on updated documents and independent internet
research, without providing the applicant with an opportunity to respond?
[28]
Finally, the applicant submits that, in conducting a
unilateral internet search, in relying on uncommon documentary evidence not
typically found in country conditions packages, and in relying heavily on
updated documents and recent research, available long after the applicant
submitted his application, without providing the applicant with an opportunity
to respond, the officer breached the applicant’s right to procedural fairness.
[29]
While I agree with the respondent’s submission that it was
normal for the PRRA officer to rely on updated country reports given the fact
that the decision was made two years after the applicant’s submissions were
received, the real issue is whether the PRRA officer had a duty to disclose to
the applicant the documents she planned to consider in her analysis.
[30]
The applicant relies on the recent decision in Fi v.
Canada (MCI), 2006 FC 1125, [2006] F.C.J. No. 1401 (QL), where Justice
Martineau concluded at paragraphs 8 to 10:
¶ 8
First, the PRRA officer violated the applicant's right to procedural fairness
in the determination of his application for protection. The principles
mentioned by the Federal Court of Appeal in Mancia v. Canada (Minister of
Citizenship and Immigration)(C.A.), [1998] 3 F.C. 461 at
para. 27, are applicable here. It is apparent that the PRRA officer consulted
relevant documentary extrinsic evidence found on the internet, upon which the
applicant was never given an opportunity to comment. Such unilateral use of the
internet is unfair (Zamora v. Canada (Minister of
Citizenship and Immigration) (2004), 260 F.T.R. 155, 2004 FC 1414 at paras.
17-18).
¶ 9 In
particular, the use of information from the Wikipedia website is highly questionable,
as the reliability of its sources has not been demonstrated to the Court.
Moreover, I note that the number of internet documents consulted by the PRRA
officer is important. Of these documents, only the 2005 Amnesty International
Country Report and the U.S. Department of State Country Reports on Human Rights
Practices -- 2005, are among the standard documents found in the Immigration
and Refugee Board (IRB) Documentation Centres. (There is also a Country Report
from 2004.)
¶ 10 The
PRRA officer relied on other documents originating from public sources that
related to general country conditions and that became available and accessible
after the filing of the applicant's submissions. In view of the above finding,
it is not necessary to determine whether or not they were "novel" and
"significant" in light of the Mancia test (above, at para.
27).
[31]
Justice Martineau in turn relied on the decision of the
Federal Court of Appeal in Mancia
v. Canada (MCI)(C.A.), [1998] 3 F.C. 461, [1998] F.C.J. No. 565
(QL), which sought to answer the following certified question:
Does an immigration officer conducting a review pursuant to
the PDRCC regulations violate the principle of fairness, as enunciated by the
Federal Court of Appeal in Shah, when he or she fails to disclose, in
advance of determining the matter, documents relied upon from public sources in
relation to general country conditions?
[32]
After a thorough analysis of the issue, Mr. Justice Robert
Décary concluded at paragraph 27:
¶ 27 I would therefore
answer the certified question as follows, it being understood that each case
will have to be decided according to its own circumstances and it being assumed
that the documents at issue in a given case are of a nature such as that
described above:
(a) with respect to
documents relied upon from public sources in relation to general country
conditions which were available and accessible at Documentation Centres at the
time submissions were made by an applicant, fairness does not require the post
claims determination officer to disclose them in advance of determining the
matter;
(b) with respect to
documents relied upon from public sources in relation to general country
conditions which became available and accessible after the filing of an applicant's
submissions, fairness requires disclosure by the post claims determination
officer where they are novel and significant and where they evidence changes in
the general country conditions that may affect the decision.
[33]
First
of all, it is important to emphasize that the PRRA officer has not only the right
but the duty to examine the most recent sources of information in conducting
the risk assessment; the PRRA officer cannot be limited to the material filed
by the applicant.
[34]
In
this case, the applicant is concerned by the use of updated versions of the
U.S. Department of States Human Rights Report (U.S. DOS report) and the U.S.
Department of States International Religious Freedom Report (Religious Freedom
report). In his own submissions, the applicant relied on the 2003 U.S. DOS
report and on the 2004 Religious Freedom report. The PRRA officer, for her
part, relied on the 2004 and 2005 U.S. DOS reports and on the 2004 and 2005
Religious Freedom reports.
[35]
There
is no question that these updated reports are in the public domain, that they
originate from well-known sources, that they are general in nature, and that
they are frequently quoted by counsel involved in immigration cases on both
sides. In fact, they are part of the standard country documentation packages
relied on by immigration officers when considering various applications under
the Act.
[36]
Counsel
for the applicant was well aware of these documents, and relied on them. She
also had significant experience with cases such as the applicant’s as she herself
noted in a letter dated May 5, 2005, where she requested that the PRRA officer
consider a document she had recently discovered and wished to add to the
applicant’s file. She wrote:
Dear Madam/Sir:
Please be advised that I continue to
represent Mr. Hassaballa in his application for PRRA consideration.
I am writing to enclose a document which
just came to my attention today and which I believe is relevant to the case. I
ask that you please consider this document in coming to a conclusion on Mr.
Hassaballa’s application.
You will note that the publication date
of the thesis is 1996; however, I bring to your attention that this document
was a private Master’s Thesis until it was published on the internet on April
15, 2005. That is why it was completely impossible to have known about this
document and to have provided it at the time of his refugee hearing. It is not
reasonable to have expected the client or myself to have identified and
submitted this document at an earlier date. I can tell you that I do quite a
few Egyptian Christian cases and this document was unknown to me until this
morning. If I did not know about it, then it’s not reasonable to have
expected the client or his former counsel to have known about it either. I
myself came upon it completely by chance this morning.
I ask that you kindly review the document
in its entirety, but, in particular the sections II, III and IV are quite
relevant. [my emphasis]
[37]
If
counsel could find a private Master’s thesis posted on the internet on the
subject of Egyptian Coptic Christians, finding standard documents like the updated
versions of the U.S. DOS report and the Religious Freedom report, also accessible
on the internet, would not have posed a great challenge for her. Indeed, she
should have known, in light of her experience dealing with such cases, that the
PRRA officer would rely on these updated documents.
[38]
As
suggested by the respondent, in addition to the standard nature of the
documents themselves, which is enough to counter the applicant’s submission on
this point, the fact of counsel’s relative expertise in the area demonstrates that
the documents were accessible to the respondent and that there was no breach of
procedural fairness by the PRRA officer in relying on the most updated versions
of these standard country reports, without giving notice to the applicant.
[39]
In
Al Mansuri v. Canada (MPSEP), 2007 FC 22, [2007] F.C.J. No. 16 (QL),
Madam Justice Eleanor Dawson concluded at paragraph 1(iii):
(iii) The officer was not required to provide the
applicants with an opportunity to comment upon two documents the officer relied
upon, because the documents were available in the public domain, originated
from a well-known source and were general in nature describing conditions in Libya for failed asylum
claimants. In view of that, and the content of the documents the applicants did
submit to the officer, the applicants were not deprived of a meaningful
opportunity to fully and fairly present their case as to risk.
Justice Dawson provided
the following reasons for her conclusion at paragraph 52 of Al Mansuri,
above:
¶ 52 In
my view, in light of the ongoing nature of the applicants' submissions with
respect to risk, the public availability of the two documents at issue, the
notoriety of the United Kingdom Home Office as a reliable source for country
condition information, the general nature of the content of the two documents
at issue, and the fact that Amnesty International documents on the same point
were being submitted to the PRRA officer by the applicants the duty of fairness
did not require disclosure of the two documents at issue. With due diligence
the documents would have been available to the applicants. In view of that, and
the content of the Amnesty International documents which the applicants did
submit, the applicants were not deprived of a meaningful opportunity to fully
and fairly present their case as to risk.
[40]
In
Beca v. Canada (MCI), 2006 FC 566, [2006] F.C.J. No. 714 (QL), Strayer
D.J. held at paragraph 8:
¶ 8
With respect to the Officer's consideration of the country reports, the
applicants say that these were not registered at the documentation centre.
While there was no sworn evidence on this that they were or were not
registered, they were by their nature publicly available and an applicant has a
responsibility to be aware of that. See Mancia v. Canada [1998] 3 F.C. 461
(F.C.A.). Whether or not these documents were in the documentation centre they
were obviously available on internet and the failure of the Officer to provide
them to the applicants is not a denial of fairness. See Huggins v. Canada
2005 F.C.J. No. 306,
para. 5. The same cases confirm that whether there has been a denial of
fairness in this respect is a matter for the application judge to decide. I
find the Officer's decision to resort to these reports to be reasonable. The
two United Kingdom reports appear to have been issued in April and December
2004. The Officer did not render her decision until May 11, 2005 and the
applicants had made their last submissions in writing the day before it was
issued. Had they sought and obtained these reports they could have made
submissions on them.
[41]
I
agree with the respondent that in reviewing and comparing the updated
documents, the applicant did not provide convincing evidence that there were novel
and significant changes in the general country conditions that could have
affected the PRRA officer’s decision. In fact, the substance of the excerpts
provided by the applicant’s counsel in paragraphs 44 to 49 of his submissions, demonstrate
that conversion of Muslims to Christianity remains problematic and prohibited
by Sharia Law, that there are reports of forced conversions of Christian women,
and that Christians continue to face discrimination in Egypt. The reference to
a successful judicial outcome for a woman who converted to Islam and then back to
Christianity has nothing to do whatsoever with the applicant’s case.
[42]
To
repeat myself, I am far from being convinced that the updated versions of the
documents referred to are novel and significant to the point that they could
affect the decision of the PRRA officer, as discussed in Mancia, above.
[43]
Furthermore,
the officer’s reliance on “uncommon sources” does not justify this Court’s
intervention either. The reference to NDTV.com concerns an address by President
Mubarak at a university where he “exhorted Muslim scholars to teach tolerance
and shun extremism”. The Asia Times source was relied on to demonstrate that
the government investigates and arrests extremists, including members of the
Gamaa Islamiya, a fact that was also reported in the 2003 U.S. DOS report filed
by the applicant. Finally, the United Nations Cyber School Bus website provided
general information about Cairo and the size of its population, expected
to reach 13.2 million residents by 2010, which is in no way controversial
information.
CONCLUSION
[44]
For
all of the above reasons, I am satisfied that it was not unreasonable for the
PRRA officer to reject the application for protection, in light of the evidence
before her, and that she has not committed any reviewable error that could
justify the intervention of this Court.
[45]
Therefore,
this application for judicial review is denied.
[46]
Neither
counsel suggested questions for certification.
JUDGMENT
1.
The application
is denied;
2.
No question for certification.
“Pierre Blais”
ANNEX
PERTINENT LEGISLATION
Immigration and Refugee Protection Act, S.C. 2001, c. 27
|
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.
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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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