Date: 20080327
Docket: IMM-2069-07
Citation: 2008 FC 386
BETWEEN:
ALICE MARIA Da MOTA , CABRAL
De MEDEIROS
JOAO CARLOS CABRAL De MEDEIROS
PEDRO MIGUEL CABRAL De MEDEIROS
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
INTRODUCTION
[1]
These
reasons follow the hearing of an application for judicial review of a decision
of a Pre-Removal Risk Assessment Officer (the “Officer”), dated the 5th
of April, 2007, wherein the Officer concluded:
To summarize, as the above
analysis indicated that the state of Portugal made serious efforts to provide
protection services for victims of domestic violence at the operational level,
it is concluded that state protection is available for the applicants if they
need assistance from the state and approach the state to seek assistance, and
therefore, their PRRA application does not meet the requirements either under
s. 96 or s. 97 of IRPA. As a result, their application can not be granted.
In the foregoing quotation, the reference
to “IRPA” is, of course, a reference to the Immigration and Refugee
Protection Act.
BACKGROUND
[2]
The
Applicants are citizens of Portugal. Alice Maria Da Mota
Cabral De Medeiros (the “Principal Applicant”) is the mother of the other two
(2) Applicants.
[3]
The
Applicants arrived in Canada from Portugal with the husband of the
Principal Applicant who is also the father of the other two (2) Applicants.
Together with the husband and father, they filed Convention refugee claims.
Their claims were rejected. They were determined by the Refugee Protection
Division (the “RPD”) to be economic migrants.
[4]
A
Pre-Removal Risk Assessment application was filed on the 6th of
December, 2005. The husband and father was marginally involved in that
application. The application was rejected. On consent, this Court returned
the Pre-Removal Risk Assessment application for redetermination. It was
apparent that the husband and father had turned to domestic abuse, particularly
against his wife, and that he was no longer involved in any way in their
Pre-Removal Risk Assessment application. In fact, he had been removed from Canada, to Portugal, in June of
2006. The Applicants allege a fear that they will be killed by their husband
and father if they are required to return to Portugal. Their fear
is based upon threats from the husband and father. In effect, the
redetermination of the Applicants’ Pre-Removal Risk Assessment application was
based on a “sur place” claim arising out of family violence in Canada.
THE DECISION UNDER
REVIEW
[5]
The
Officer was satisfied that the determinative issue before him was the
availability of state protection for the Applicants in Portugal. He wrote:
With no serious concern
raised over the applicants’ credibility regarding their fear of domestic
violence by the principal claimant’s separated husband and with a full
acknowledgement of the problem of domestic abuse in Portugal as expressed
in various governmental or non-governmental documents, the key issue in this
PRRA application, in my opinion, is state protection. The reconsideration of
and decision upon the application subsequent to the reconsideration will hinge
on the availability or non-availability of state protection.
[6]
It
was not in dispute before the Court that the Officer considered the totality of
the critical evidence before him. Rather, the dispute centered around the
weight given the documentary evidence. The Officer chose to rely on country
conditions documentation in preference to much more specific documentation
regarding the experience of a similarly situated individual and an affidavit of
a technical advisor for the Board of a Portuguese Victim Support organization,
the particular focus of which was on victims of family violence.
[7]
The
Officer examined the question of state protection under two (2) headings: first,
“Serious Efforts by a State”, in this case Portugal, and
“Operational Level of State Protection”. He concluded with respect to both
issues that, on the documentation before him, the Applicants had simply failed
to rebut the presumption of state protection. In essence, while the Officer
acknowledged the high level of family violence in Portugal he concluded
that adequate, but certainly not perfect, state protection was available to the
Applicants in their particular circumstances.
THE ISSUES
[8]
While
a broader range of issues was identified in written materials filed on behalf
of the Applicants, at hearing, counsel for the Applicants focused essentially
on two (2) issues which I would characterize as: first, the Officer’s weighing
of the evidence before him, which counsel for the Applicants would characterize
as perverse; and secondly, a misapplication of the guidance from Canada
(Attorney General v. Ward)
that a claimant might overcome the presumption of state protection,
particularly in a democratic nation such as Portugal, by advancing the
testimony of similarly situated individuals let down by the state
protection arrangements in that nation. In counsel’s submissions, it was urged
that, in the Officer’s reasons supporting his decision, he misinterpreted the
test as being one of testimony from domestically abused women in which
state protection did not materialize.
[9]
In
addition to the foregoing issues, the Court is obliged to examine the issue of
standard of review on an application for judicial review such as this.
ANALYSIS
a) Standard of
Review
[10]
Until
very recently, it has been generally accepted that the standard of review of a
decision on a Pre-Removal Risk Assessment, when taken as a whole, is reasonableness
simpliciter.
Further, it has generally been accepted that conclusions of pure fact drawn by
a Pre-Removal Risk Assessment Officer are reviewed on a patent unreasonableness
standard.
[11]
On
Friday, the 7th of March, the world changed. In Dunsmuir v. New Brunswick, the Supreme
Court eliminated the “patent unreasonableness” standard of review and reduced
the standards from three (3) to two (2), those being “correctness” and
“reasonableness”. The Court further re-identified the concept “pragmatic and
functional analysis” with the same process now to be referred to as “standard
of review analysis.”
[12]
A
few paragraphs from the majority judgment delivered by Justices Bastarache and
Lebel are of interest here. At paragraph [51], the Justices wrote:
Having dealt with the
nature of the standards of review we now turn our attention to the method for
selecting the appropriate standard in the individual cases. As we will now
demonstrate, questions of fact, discretion and policy as well as questions
where the legal issues cannot be easily separated from the factual issues
generally attract a standard of reasonableness while many legal issues attract
a standard of correctness. Some legal issues, however, attract the more
deferential standard of reasonableness.
I read the foregoing paragraph as
justifying the continuation of the past practice of this Court in
identifying the standard of review of a
pre-removal risk assessment decision, when viewed
generally, as “reasonableness”.
[13]
Justices
Bastarache and Lebel continued at paragraph [57] of their reasons:
An exclusive review is
not required in every case to determine the proper standard of review. Here
again, existing jurisprudence may be helpful in identifying some of the
questions that generally fall to be determined according to the correctness
standard…this simply means that the analysis required is already deemed to have
been performed and need not be repeated.
I regard the foregoing paragraph as being
equally applicable in the determination of questions that generally fall to be
determined according to the “reasonableness” standard. Based on earlier
jurisprudence of this Court, I am satisfied that here the analysis generally
required has already been performed and therefore need not be repeated.
[14]
The Court did not address paragraph 18.1(4)(d)
of the Federal Courts Act.
The relevant portions of subsection 18.1(4) reads as follows:
|
18.1 (4) The Federal Court may grant relief under subsection
(3) if it is satisfied that the federal board, commission or other tribunal
|
18.1 (4) Les mesures prévues au paragraphe (3)
sont prises si la Cour fédérale est convaincue que l'office fédéral, selon le
cas :
|
|
…
|
…
|
|
( d)
based its decision or order on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard for the material before it;
|
d) a rendu
une décision ou une ordonnance fondée sur une conclusion de fait erronée,
tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont
il dispose;
|
|
…
|
…
|
I am satisfied
that it remains clear that, where this Court is called upon to review a finding
of a federal board, commission or other tribunal, the decision of which is
under judicial review by this Court, this Court is still entitled, and indeed
obliged, to grant relief if it determines that the finding is indeed a finding
of fact and that it was made in a perverse or capricious manner or without
regard for the material before the federal board, commission or other
tribunal. This “standard of review” has been interpreted as akin to the now
abolished standard of “patent unreasonableness”.
[15]
Justices Bastarache and Lebel also commented at
some length on the concept of the deference owed by Courts to administrative
boards, commissions and other tribunals specialized expertise. I am satisfied
that Pre-Removal Risk Assessment Officers are specialized administrative “tribunals”
with decision-making responsibilities and that significant deference is owed to
their decisions, and, in particular, their decisions regarding the weight to be
given to evidence presented before them.
b) The
weighing of the documentary evidence before the Officer
[16]
In
the absence of a hearing or interview in the course of a Pre-Removal Risk
Assessment, and here there was none since the Officer accepted the credibility
of the Applicants, the Officer’s weighing of the documentary evidence regarding
country conditions, in this case, specifically
relating to state protection, is at the
heart of the Officer’s role. He or she is specialized in the performance of
that function and, I am satisfied, is entitled to substantial deference in his
or her conclusions in that regard. Once again here, it was acknowledged that
the Officer took into account all of the critical documentary evidence in front
of him. As earlier indicated, he preferred general country conditions
documentation on state protection against family violence in Portugal to more
specific and case-oriented documentation. Counsel for the Applicants urged
that this constituted reviewable error. I disagree.
[17]
The
burden was on the Applicants to overcome a presumption in favour of the
existence of state protection, particularly in a democratic and stable state
such as Portugal. The
Officer reviewed the evidence and concluded that the Applicants in this matter
had failed to rebut that presumption. While I might have reached a different
conclusion, and certainly counsel for the Applicants would have reached a
different conclusion on the weighing of the evidence, that is not relevant. I
am satisfied that the Officer’s analysis was thorough and his conclusion was
open to him. In the result, the Applicants simply cannot succeed on this
ground.
c) Testimony
of Similarly Situated Individuals
[18]
Counsel
for the Applicants also raised the issue of the distinction between testimony of
similarly situated individuals and testimony from similarly situated
individuals. I am satisfied that this distinction which appears on the face of
the Officer’s reasons is nothing more than a drafting issue. It is simply not an
issue of substance. Once again, the Applicants cannot succeed on this ground.
CONCLUSION
[19]
Based
upon the foregoing brief analysis, this application for judicial review will be
dismissed.
CERTIFICATION OF A
QUESTION OR QUESTIONS AND EXTENSION OF AN EXISTING ORDER FROM THIS COURT
STAYING THE REMOVAL OF THE APPLICANTS FROM CANADA
[20]
Upon
counsel being advised at the close of hearing of the Court’s conclusions with
regard to this application for judicial review, counsel for the Applicant
proposed the following three (3) questions for certification:
1. Where, in a judicial review
from a PRRA, in which credibility and the facts are not in dispute or issue, is
the question of whether “effective state protection” is available, under Ward,
on those facts, a question of: (a) law? (b) fact? Or (c) mixed fact and law?
2. Where, in a judicial review
from a PRRA, in which credibility and the facts are not in dispute or issue, is
the question of whether “effective state protection” is available, under Ward,
on those facts, reviewed on the standard of (a) “correctness” or (b)
“reasonableness simpliciter”?
3. Where, in a judicial review
from a PRRA, in which credibility and the facts are not in dispute or issue, on
the question of whether “effective state protection” is available, under Ward,
on those facts, is the Federal Court, in the event the decision is set aside,
under a duty, pursuant to ss. 7 and 24(1) of the Charter and Suresh,
to grant substantive remedy and direct the result of conferring protection?
[21]
Counsel
for the Applicant further proposed that the Court extend the earlier Order of
this Court enjoining removal of the Applicants from Canada until such
time as any appeal from the Court’s Order herein is disposed of. The Court
expressed doubt as to its authority to grant such an extension of the
outstanding injunction.
[22]
Counsel
for the Respondent requested an opportunity to consult his client on the
questions proposed for certification and to make written representations
regarding certification. Counsel for the Respondent also agreed to provide
written representations regarding this Court’s jurisdiction to extend the
current injunction. I agreed to provide such an opportunity with regard to the
proposed questions for certification of a question and welcomed the offer to
provide submissions on extension of the injunction.
[23]
These
reasons will be distributed. Counsel for the Respondent will have seven (7)
days from the date of such distribution to serve and file written submissions
on the proposed questions for certification and on the issue of extension of
the injunction. Thereafter, counsel for the Applicants will have seven (7)
days to serve and file responding submissions. Only thereafter will an Order
issue giving effect to these reasons.
“Frederick
E. Gibson”
Ottawa,
Ontario.
March
27, 2008
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