Date: 20070615
Docket: IMM-3192-06
Citation: 2007 FC 623
Ottawa, Ontario, June 15,
2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
DANIUS
SABADAO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant brings this application for judicial review pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, [2001, c. 27] (the
Act), of the negative Pre-Removal Risk Assessment (PRRA) decision by Eric
Therriault (PRRA Officer), dated May 24, 2006.
ISSUE
[2]
Did
the PRRA Officer err in law by failing to assess the risk the applicant would
face as a person excluded under articles 1F (a) and (c) of the Convention.
[3]
For
the reasons that follow, the answer to this question is negative. As a result, the
application shall be dismissed.
BACKGROUND
[4]
The
applicant is a citizen of the Philippines who came to Canada on April 6,
1991 as a seaman aboard the MV Waterklerk. He applied for refugee status on
April 17, 1991 on the ground that he was targeted by members of the New
People’s Army (NPA) for having refused to leave the army and join their ranks
as a training officer.
[5]
On
August 11, 1993, his application was refused for lack of credibility but also
because he was found to have been an accomplice to the human rights violations
that were committed against the NPA by the Philippine army during his service
from March 1979 to February 1984. He was consequently excluded under articles 1F
(a) and (c) of the Convention.
[6]
The
applicant withdrew his appeal of that decision on February 23, 1994 after
marrying a Canadian citizen. He obtained residency in Canada upon his
wife’s sponsorship without disclosing on his application that he had been
excluded from Canada. On March 1,
2001, he was found inadmissible to Canada by the Adjudication
Division of the Immigration and Refugee Board and ordered deported.
[7]
His
appeal to the Immigration Appeal Division (IAD) against the deportation order
was settled by decision of the Federal Court of Appeal, which ruled in November
2005 that he was not entitled to an appeal before the IAD. Similarly, on March
7, 2006, the Federal Court dismissed his application for judicial review
against the Adjudication Division’s decision.
[8]
His
first PRRA application was dismissed on December 4, 2002. It is his second PRRA
application dated May 12, 2006 and its unfavourable findings by the PRRA
Officer, which are presently before the Court.
DECISION UNDER REVIEW
[9]
After
a review of the applicant’s allegations and the new documentary evidence, the
PRRA Officer was of the view that the documents submitted were not linked to
the risks alleged by the applicant. Also, the evidence contained nothing new
that was not already considered in the prior proceedings.
ANALYSIS
Standard of Review
[10]
This
Court has established that the decisions of PRRA Officers are subject to the
customary standard of review of patent unreasonableness for questions of fact;
reasonableness, for questions of mixed fact and law and for questions of law,
correctness (Kim v. Canada (Minister of Citizenship and Immigration), 2005
FC 437, [2005] F.C.J. No. 540 (F.C.) (QL)).
[11]
Applied
to this instance, the circumstances are purely factual. The PRRA Officer was
called upon to assess the new evidence submitted by the applicant to support
his allegations that he would be subject to reprisals and torture by the NPA.
At no time was the PRRA Officer required to interpret or apply the law to the
facts, which were based wholly on documentary evidence. As such, the applicable
standard of review is one of patent unreasonableness. Therefore, this
Court will not intervene unless the applicant demonstrates that the decision of
the PRRA Officer is so unreasonable it leaves no doubt in its wake.
[12]
At
the outset this is not the case here. The applicant challenges the PRRA
decision on the basis that the PRRA Officer failed to consider the fact that
the applicant could face significant risk upon his return to the Philippines
because he was declared by Canada to have been inadmissible as an accomplice to
the atrocities levied against the Philippine army of which he was a member
during five critical years when crimes against humanity were committed.
[13]
This
would be all well and good provided that the applicant could show that he
provided evidence of such risk and the PRRA Officer either inadvertently
overlooked or in a capricious manner disregarded such evidence before him. In
his second application, the applicant mentions the following risks, "I
still believe I will be targeted by the NPA if they will recognize me. They
will still remember my resentment to join them ..." (p. 237 of the
tribunal record). This risk has been considered, analyzed and dismissed by the
first PRRA Officer.
[14]
The
new documentary evidence submitted by the applicant has been also considered
and analyzed by the second PRRA Officer. He found that it did not constitute
new pieces of evidence that could be linked to the risks alleged. I find no reviewable
error here (Dreta v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1239, [2005] F.C.J. No. 1053
(F.C.) (QL)).
[15]
PRRA
Officers are required to consider all the evidence submitted by the applicant
and not seek out information that the applicant ought to have submitted. That
is why when a PRRA Officer considers important and pertinent extrinsic evidence
that may have an implication on the applicant’s claim, the principles of
procedural fairness require that such evidence be brought to the attention of
the applicant concerned to enable him or her to make submissions before the
PRRA Officer reaches his or her determination. Also, when on occasion the
principles of procedural fairness are found wanting, this Court has been prompt
to sanction such behaviour and return the matter for reconsideration before a
different PRRA Officer.
[16]
There
was nothing in the applicant’s evidence before the PRRA Officer that invited
consideration of this innovative idea that the stigma of the applicant’s
profile, counsel for the applicant argues should have alerted the PRRA Officer
to the fact that he could be subjected to arrest and perhaps cruel and unusual
punishment, depending on the particular conditions in the country of origin.
Indeed, the applicant’s affidavit makes no mention of this. The issue is raised
for the very first time in his Memorandum of Argument.
[17]
Both
parties draw the Court’s attention to the decision of the Federal Court of
Appeal in Owusu v. Canada (Minister of Citizenship and Immigration, 2004
FCA 38, [2004] 2 F.C.R. 635 (C.A.). The applicant argues
that his situation can be distinguished from the facts in the H&C ruling in
Owusu where Justice John Evans ruled that an immigration officer’s duty
to consider certain grounds for relief arises only where there is sufficient
pertinent evidence before him or her relating to such ground. The applicant
contends that the PRRA Officer in the present case had sufficient evidence in
the “war-crimes” finding to compel him to start his risk assessment from this
point.
[18]
I
find that Owusu, above does not help the applicant. This is what
Justice Evans said at paragraph 5:
An immigration officer considering an H
& C application must be "alert, alive and sensitive" to, and must
not "minimize", the best interests of children who may be adversely
affected by a parent's deportation: Baker v. Canada (Minister of Citizenship and
Immigration),
[1999] 2 S.C.R. 817, at paragraph 75. However, this duty only arises when it is
sufficiently clear from the material submitted to the decision maker that an
application relies on this factor, at least in part. Moreover, an applicant has
the burden of adducing proof of any claim on which the H & C application
relies. Hence, if an applicant provides no evidence to support the claim, the
officer may conclude that it is baseless.
[19]
At
no time did the applicant allege in his PRRA application that he would face
significant risk if returned to the Philippines because he was declared by
Canada to have been inadmissible as an accomplice to the atrocities committed
by the Philippine army. The argument of the applicant must therefore fail. PRRA
Officers may be faulted for many things but mind reading is not one of them.
[20]
The
parties submitted no questions for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
1.
The
application for judicial review is dismissed.
2.
No
question is certified.
“Michel
Beaudry”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS
OF RECORD
DOCKET: IMM-3192-06
STYLE OF
CAUSE: DANIUS
SABADAO and
MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: June 13, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: Beaudry J.
DATED: June 15, 2007
APPEARANCES:
Pia Zambelli FOR
APPLICANT
Sylviane Roy FOR
RESPONDENT
SOLICITORS OF RECORD:
Pia Zambelli FOR
APPLICANT
Montreal, Quebec
John Sims, Q.C. FOR
RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec
Email this Content