Date: 20070605
Docket: IMM-4040-06
Citation: 2007 FC 584
Ottawa, Ontario, June 5,
2007
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
CHEE
PING CHONG
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 dated June 21,
2006, to refuse an application for protection.
BACKGROUND
[2]
Chee Ping Chong (the applicant) is a citizen of Malaysia who arrived in Canada in August 2003 and submitted a claim for refugee protection in January
2004, claiming to be at risk from having witnessed a murder and having
subsequently collaborated with the police in their investigation of this
murder.
[3]
His application was rejected by the Refugee Protection
Division (RPD) of the Immigration and Refugee Board, on the ground that he was
not credible in light of the many contradictions between the information
provided in his Personal Information Form (PIF) and his testimony before the
RPD, such as the exact year the alleged murder took place, as well as the significant
omissions in his PIF. In addition, the RPD did not find it plausible that
groups of people would want to kill the applicant in 2004 because of a murder
he witnessed in 1984. The RPD also noted that his actions were not consistent
with his claimed fear, since he resided in Malaysia for nineteen years following
the incident, and travelled abroad on a number of occasions, only to re-avail
to Malaysia. Finally, the RPD noted
that the presumption of state protection had not been rebutted and that
internal flight initiatives were available to the applicant.
[4]
The applicant sought leave to commence an application for
judicial review of that decision, which was dismissed on July 19, 2005.
[5]
On February 21, 2006, the applicant filed a PRRA
application, alleging the same risks as those alleged before the RPD. His application
was accompanied by a cover letter from his counsel, a translation of his PIF
narrative, and a letter dated February 19, 2006 and signed by the Assistant
Superintendent of Police at the Kuala Lumpur Headquarters, in support of his
alleged fear for his life should he be forced to return to Malaysia.
ISSUE FOR
CONSIDERATION
[6]
The single issue raised in this application is whether the
PRRA officer erred by failing to properly assess the new evidence submitted by
the applicant.
STANDARD OF
REVIEW
[7]
In determining
the proper standard of review for matters relating to decisions of PRRA
officers, I rely, as I have on previous occasions, on the analysis of Mr.
Justice Luc Martineau in Figurado
v. Canada (Solicitor General),
2005 FC 347, at
paragraph 51, which reads as follows:
¶ 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).
ANALYSIS
[8]
As a starting point, I refer to the summary of the role of
the PRRA officer written by my colleague Mr. Justice Robert L. Barnes in Yousef v. Canada (Minister of Citizenship and
Immigration), 2006 FC 864, at
paragraphs 20 and 21:
¶ 20
Some of the evidence-based arguments made here on behalf of the Applicant
appear to misconstrue the role of the PRRA officer. It is not the role of the
PRRA officer to re-examine evidence assessed by the Board, and it is not open
to the officer to revisit the Board's factual and credibility conclusions. It
is also not the duty of the PRRA officer to consider evidence that could have
been put to the Board, but was not. The role of the PRRA officer, as defined by
section 113 of the Immigration and Refugee Protection Act, S.C. 2001,
c.27 (IRPA), is to examine "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".
Here, the PRRA officer clearly and correctly defined her role in conformity
with the above section 113 limitations.
¶ 21 In
Kaybaki v. Canada (Solicitor General), [2004] F.C.J. No. 27, 2004 FC 32, Justice
Michael Kelen very succinctly confirmed the limited role of a PRRA officer at
paragraph 11:
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... For this reason, the PRRA officer should
not have considered these letters. The PRRA application cannot be allowed to
become a second refugee hearing. The PRRA process is to assess new risk
developments between the [IRB] hearing and the removal date.
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I would also add to Justice Kelen's remarks that
it is not the role of a PRRA officer to act as a court of appeal from a prior
refugee/protection decision.
[9]
With this in mind, I now turn to the applicant’s
submissions. Essentially, the applicant submits that the PRRA officer had an
obligation to provide adequate justification for rejecting the documentary
evidence which supports the claim of the applicant. Since the burden of
explanation increases with the relevance of the evidence in question to the
disputed facts, a blanket statement that the officer has considered the
evidence will not suffice when the evidence omitted from the discussion in the
reasons appears squarely to contradict the officer’s findings of fact (Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. No. 1425). Therefore, the applicant maintains that the PRRA officer’s duty to
provide adequate reasons extends to his finding on the probative value of the
new evidence, especially since it supports the applicant’s position, and that
failure to do so is sufficient for this Court to set aside the decision (Babilly
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1473).
[10]
In the letter dated February 19, 2006, from Tan Kim Tong,
Assistant Superintendent of Police at the Kuala Lumpur Headquarters,
confirmation is provided that the applicant cooperated in the investigation of
a murder case in 1985, and that such cooperation was much appreciated. The
third and final paragraph then speaks to the danger faced by the applicant as a
result of his cooperation with the police. Mr. Tong writes:
It is advised that Mr.
Chong could stay away from Malaysia as the murderer was seeking for revenge for persons giving
information leading to his committal for the murder. Before the trial four out
of five witnesses died. The police department is not able to give Mr. Chong
round the clock protection.
[11]
The PRRA officer addressed this evidence in the following
way:
The letter from the
Assistant Superintendent of Police of the Kuala Lumpur Headquarters states that
with the applicant’s cooperation, the murderer in question was sentenced to ten
years imprisonment. The letter advises that the applicant should stay away from
Malaysia as the “police department is not able to give Mr. Chong
round the clock protection”.
With respect to the
aforementioned letter from the police, I have not considered it in the
assessment of the applicant’s PRRA for the following reasons. Firstly, I am not
satisfied that it constitutes new evidence that arose after the rejection or
was not reasonably available. Furthermore, there is insufficient evidence to
show that the applicant could not have been reasonably expected to have
presented it at the time of rejection given the circumstances.
[12]
The PRRA officer in this case did not simply provide a ‘blanket
statement’ to the effect that he considered all of the evidence. He addressed
the issue of the letter directly, summarized its content, and refused to
consider it as new evidence as it did not meet the test set out at paragraph
113(a) of the Act, which requires that:
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(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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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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[13]
While it is true that the PRRA officer did not explain why exactly
he came to the conclusion that the test was not met in this case, it is also
true that the answer to that question is rather self-evident, as the letter in
question only confirms the bare-bones of the applicant’s story as relates to a
murder which took place two decades ago and a sentencing hearing which took
place 15 years ago, and no explanation was provided by the applicant to the
PRRA officer as to why such a letter was not prepared earlier and submitted to
the RPD. The fact that the letter is dated February 19, 2006, does not mean
that it could not have been prepared sooner, in light of the events that it
recounts. As in Yousef, above, there is nothing in this letter that is new
in the sense that it arose subsequent to the hearing before the RPD.
Furthermore, absent any proof from the applicant of circumstances that
prevented him from obtaining this letter sooner, it does not constitute
evidence that was not reasonably available to the applicant at the time of the
hearing before the RPD. Consequently, based on the evidence
before the PRAA officer, the decision to disregard this letter on the basis
that it could not be considered new evidence within the meaning of paragraph
113(a) of the Act, was more than reasonable.
[14]
The applicant, in his affidavit in support of this
application, notes that he could not produce this letter earlier, because he
was unable to locate Mr. Tong, even with the help of his friends in Malaysia. However, this information is nowhere to be found in the
material submitted to the PRRA officer. Therefore, this explanation could not
have been considered by the officer in his analysis and does not affect the
reasonableness of his conclusion.
[15]
In light of the above, I agree with the respondent that the
PRRA officer did not make a reviewable error that would justify the
intervention of this Court.
[16]
Furthermore, I would add that, even if the PRRA officer had
accepted this ‘new’ evidence, I am not satisfied that it would have been
sufficient to overcome the findings of the RPD as to the lack of credibility of
the applicant, the implausibility of his story, and the existence of internal
flight alternatives. As was noted by Mr. Justice Michel Beaudry in Waheed v.
Canada (Minister of
Citizenship and Immigration), 2003 FCT 329, at
paragraph 27:
A general finding of a lack of credibility can
extend to an applicant's testimony as a whole, and documentary evidence cannot
be deemed to apply to a claim that is not credible: Sheikh v. Canada
(Minister of Employment and Immigration), [1990] 3 F.C. 238
(C.A.); see also Tsafack v. Canada (Minister of Citizenship and Immigration),
[1996] F.C.J. No. 506
(T.D.) (QL).
[17]
For the above reasons, this application for judicial review
is dismissed.
[18]
Neither counsel suggested questions for certification.
JUDGMENT
1.
The application is dismissed.
2.
No question for certification.
“Pierre Blais”
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