Date: 20081117
Docket: IMM-1203-08
Citation: 2008 FC 1269
Ottawa, Ontario, this 17th
day of November 2008
Present: The
Honourable Mr. Justice Pinard
BETWEEN:
ASHIQ AL ISLAM, NAHID ISLAM,
MASIHA ISLAM, FARISA ISLAM
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of the decision of a Pre-Removal Risk
Assessment (PRRA) officer dated January 28, 2008, which rejected the
applicants’ application for protection under subsection 112(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”).
[2]
The
principal applicant, Ashiq al Islam, is Bihari. The Biharis are
Urdu-speaking Muslims who fled to East Pakistan at the time of Partition and
were stranded there after Bangladesh’s independence in 1971.
They are at odds with the Bangla-speaking majority of that country, after
siding with Pakistan during the
nine-month conflict.
[3]
The
principal applicant arrived in the United States from Bangladesh on December
24, 2002. The female applicant, Nahid Islam, is his wife; she arrived in the United
States
on June 24, 2002. On June 22, 2003, they landed in Canada with the
minor twins who were born in the United States, and made an
application for refugee status the same day.
[4]
The
principal applicant fears returning to Bangladesh because of
the hostility of his parents-in-law, who are deeply opposed to their daughter’s
marriage to a Bihari; and, more generally, because of the terrible
treatment of Biharis.
[5]
The
Refugee Protection Division (the “RPD”) assessed the applicants’ claims on
April 26, 2006 and September 28, 2006. At the hearing, the female applicant
based her claim on that of her husband, who was also appointed the designated
representative of both minor claimants against the United States. Their
claims were rejected on March 23, 2007. An application for leave for judicial
review was denied on August 10, 2007 by Justice Heneghan. The applicants
subsequently applied for a PRRA, but were denied. It is this decision that is
the subject of the present review.
* * * * * * *
*
[6]
The
principal applicant’s claim is two-pronged. It is based on (1) a well-founded
fear of persecution by his influential in-laws who oppose his marriage to their
daughter, and (2) the dire treatment of Biharis by the Bangladeshi State and
people.
[7]
On
the first point, most of the RPD’s decision was based on adverse credibility
findings. The principal applicant argues that the PRRA officer was not entitled
to rely on these findings but had a duty to provide a hearing, if she had
concerns about credibility. I cannot agree.
[8]
A
pre-removal risk assessment is ordinarily made on the basis of written
submissions (see section 113 of the Act; subsection 161(1) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the “Regulations”), and Alvarez v. Solicitor General of
Canada, 2005 FC 143). An oral
hearing is only required when the factors listed in section 167 of the
Regulations are met. In this case, an oral hearing was not needed to
determine the credibility of any new evidence that was not before the RPD.
Consequently, the PRRA officer did
not err in not granting the applicant a hearing (Jaouadi v. Minister of Public Safety and
Emergency Preparedness, 2006 FC 1549).
[9]
On
the second point, the principal applicant provided evidence which, in part,
could and should have been adduced before the RPD. In that regard, counsel for
the respondent is correct when she states, at paragraph 20 of her written
submissions:
. . . contrary to the Applicants’
implication in their Memorandum of Argument, the PRRA officer did not take
issue with the principle Applicant’s ethnicity as a Bihari. Rather, she was of
the opinion that the mistreatment of the Biharis in Bangladesh was an issue that had already been put
before the RPD. As such, this claim and the evidence in support of it were
subject to ss. 113(a) of the Immigration and Refugee Protection Act . .
.
[10]
She
also correctly points out at paragraph 24 of her memorandum that the “PRRA is
not an appeal of the RPD decision”; accordingly, it “is not the duty of the
PRRA officer to consider evidence that could have been put to the RPD but was
not” (see Jaouadi, supra, at paragraph 26; Alvarez, supra,
at paragraph 6; Raza et al. v. The Minister of Citizenship and Immigration
et al., 370 N.R. 344, 2007 FCA 385; and Yousef v. Minister of
Citizenship and Immigration, 296 F.T.R. 182, 2006 FC 864, at paragraph 21).
[11]
As
for the rest of the evidence which was accepted by the PRRA officer as new
evidence, the latter writes, in her decision:
The new evidence submitted by the
applicant does not sufficiently address these inconsistencies, such that the
applicant rebuts the finding of the RPD on the same risk situation. The 19 page
hand written submission summarizes the applicants’ risk, and provides a history
of events. The letter does not rebut the specific credibility findings made by
the board, by explaining why these inconsistencies existed.
With reference to the documentary
evidence, I find that the applicant did not indicate how the documentary
evidence relates to him and his personal risk situation. Also, the documentary
evidence does not address the specific inconsistencies sighted [sic] by
the RPD in its decision. While the documents provide information that relates
to the country conditions in Bangladesh, they do not sufficiently
rebut the numerous inconsistencies sighted [sic] by the board in its
decision.
[12]
Upon
reviewing the evidence, I am not satisfied that the assessment of the facts
made by the PRRA officer is unreasonable. In such circumstances, it is not
incumbent upon this Court to substitute its own assessment to that made by the
PRRA officer.
* * * * * * *
*
[13]
For
all the above reasons, the application for judicial review is dismissed.
JUDGMENT
The application for judicial review of the
decision of a Pre-Removal Risk Assessment officer dated January 28, 2008, which
rejected the applicants’ application for protection under subsection 112(1) of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27, is
dismissed.
“Yvon Pinard”
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