Date: 20080214
Docket: IMM-955-07
Citation: 2008 FC 189
Toronto, Ontario, February 14,
2008
PRESENT: The Honourable Mr. Justice O’Keefe
BETWEEN:
JADWIGA PALKA and
PAULA PALKA
Applicants
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 (IRPA) for judicial review of a
decision by a PRRA officer (the officer), dated January 26, 2007, rejecting the
applicants’ Pre-Removal Risk Assessment (PRRA) application.
[2]
The
applicants requested that the decision be set aside and the matter referred
back to a newly constituted panel of the Board for redetermination.
Background
[3]
Jadwiga
Palka (the principal applicant) and her daughter, Paula Palka (the minor
applicant) are citizens of Poland. They arrived in Canada on April 28,
1999 and applied for refugee protection. Their refugee applications were based
on the mother’s claims that she was a member of a particular social group –
woman subject to spousal abuse. In a decision dated April 10, 2001, the Refugee
Division of the Immigration and Refugee Board found that the applicants were
not Convention refugees, nor were they persons in need of protection. The Refugee
Division found critical parts of the principal applicant’s story to be
implausible and ultimately concluded that her fear was not well-founded. The
applicants applied for a PRRA on September 5, 2006. In a decision dated January
26, 2007, the officer determined that the applicants would not be subject to
risk of torture, risk to life or risk of cruel and unusual punishment if
returned to Poland. This is the
judicial review of the officer’s decision.
PRRA Officer’s Decision
[4]
The
officer began the decision by reviewing the Refugee Division’s decision to
reject the applicants’ claims for refugee status. The officer noted that the
Refugee Division had found the principal claimant not credible with respect to
the allegations of spousal abuse and the reasons why she was unable to return
to Poland. The officer
stated that the Refugee Division was not persuaded on a balance of
probabilities that she had suffered the abuse alleged. The officer also noted
that the Refugee Division drew negative inferences respecting her credibility
and found that she had embellished the evidence to advance her claim. The
officer appears to have given deference to the Refugee Division’s finding that
the adult applicant was not a credible or trustworthy witness.
[5]
The
officer then proceeded to analyze the risk allegations. The officer noted the
applicants’ submission that the agent of persecution, the principal applicant’s
husband and the minor applicant’s father, had not ceased efforts to find the
two and had pressured family members for information on their whereabouts. The
officer reviewed four letters from family members and friends of the
applicants. The officer made the following allocations of weight to each
individual letter:
- With
regards to a letter from Mrs. Palka’s Agata, a friend of the applicants,
the officer stated that the letter was worthy of little weight because the
author did not disclose her last name, where she encountered the husband,
or when the letter was written.
- With
regards to a letter from Ms. Janina Surdej, a former neighbour of the
applicants, the officer again stated that without knowing the date on
which the letter was composed or mailed, it was impossible to determine
the currency of the information and thus accorded it little weight.
- With
regards to a letter from Ms. Anna Wilk, an acquaintance of the applicants,
the officer found that the letter was self-serving evidence, produced for
the purpose of bolstering the applicants’ claims for protection and
therefore gave it little weight.
- With
regards to a letter from Mrs. Palka’s sister, Beata, the officer noted
that the letter did not indicate, as the principal applicant had
indicated, that her husband had stated that he would kill her if she
returned to Poland. The officer also noted that Beata was not
a disinterested party in the outcome of the present application.
[6]
The
officer stated that the letters failed to address certain aspects of the
Refugee Division’s credibility findings and that with respect to credibility,
significant deference was owed to the Refugee Division as it had the benefit of
hearing the principal applicant’s sworn testimony. The officer’s final
conclusion on the issue of risk was that the officer was not satisfied that the
evidence was sufficient to overcome the credibility findings of the Refugee
Division.
[7]
As
to the availability of state protection, the officer stated that even if the
officer fully accepted the alleged risk, the applicants had failed to rebut the
presumption of state protection. The officer considered the documentary
evidence submitted by the applicants on domestic violence as a serious problem
in Poland. The officer
reproduced certain relevant sections from these documents. The officer then
considered the political, judicial and police systems in Poland, noting that
Poland was a
democracy in effective control of its territory and security forces. The
officer went on to consider the 2005 US Department of State Country Report of
Human Rights Practices for Poland dated March 8, 2006 (the US DOS Country Report). The officer
reproduced a lengthy section of the report dealing with domestic violence
against women and included statistics of reported cases, and prosecutions. The
officer accepted that “there continue[d] to be a number of shortcomings in the
protective services offered to both victims of domestic violence and child
abuse in Poland”, but noted that the Polish Government did not condone violence
against women or children and that efforts to address these problems were
“making a difference”. The officer considered the principal applicant’s
submissions that she had reported the incidents of abuse to local police on
several occasions, but noted that she had not provided any evidence as to what
measures she had taken to complain about the lack of response from local police.
In conclusion, the officer found that the applicants had failed to rebut the
presumption of state protection. The officer found that the applicants would
not, on a balance of probabilities, be personally subject to a risk to their
lives or risk of cruel and unusual treatment or punishment if they were to
return to Poland.
Issues
[8]
The
applicants submitted the following issues for consideration:
1. Whether
the PRRA officer failed to evince a contextual application to the issue of
state protection;
2. Whether
the PRRA officer breached the principles of natural justice by failing to
disclose the extrinsic evidence to the applicants (or their counsel) for
comment and response; and
3. Whether
the PRRA officer breached the principles of natural justice by failing to
provide the applicants with a hearing to address the credibility concerns that
were raised in the PRRA application.
[9]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer err
in the analysis of state protection?
3. Did
the officer breach procedural fairness by failing to provide the applicants
with a hearing to address credibility concerns?
Applicants’ Submissions
[10]
The
applicants submitted that the officer used an incorrect legal test in assessing
state protection and that this error is reviewable on a standard of correctness
(Pushpanathan v. Canada (Minister of Citizenship and
Immigration), [1998] 1 S.C.R. 982). The applicants submitted that when
assessing whether or not a state has made ‘serious efforts’ to protect its
citizens, the law requires a contextual analysis that is cognizant not only of
the legislative framework in place, but also addresses the actual capacity and
effectiveness of the state’s policing bodies (Garcia v. Minister of Citizenship
and Immigration, [2007] F.C.J. No. 118). The quantity and quality of
evidence required to rebut the presumption of state protection is ‘some clear
and convincing evidence’ (Canada (Attorney General) v. Ward, [1993]
2 S.C.R. 689). The applicants submitted that in providing evidence of the
failures of Polish authorities to effectively respond to requests from women
for protection against abuse, they satisfied the evidentiary requirement of
‘some’ evidence to rebut the presumption of state protection. The applicants
submitted that in failing to engage in a contextual analysis of state
protection, the officer erred.
[11]
The
applicants also submitted that the officer erred in rendering a credibility
determination without an oral hearing. Specifically, the applicants submitted
that in finding that the applicants had not rebutted the credibility inferences
rendered by the Refugee Division, the officer was required to grant the
applicants an oral hearing. The applicants submitted that subsection 113(b) of
IRPA and section 167 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the Regulations) requires that an oral hearing be conducted where
credibility is a determinative issue. Where the conditions prescribed in
section 167 of the Regulations are present, it is a breach of procedural
fairness not to hold an oral hearing (Zokai v. Canada (Minister of
Citizenship and Immigration) 2005 FC 1103).
Respondent’s Submissions
[12]
The
respondent submitted that the appropriate standard of review for questions of
fact is generally patent unreasonableness (Kim v. Canada (Minister of Citizenship
and Immigration), [2005] F.C.J. No. 540 (T.D.)). PRRA decisions are
discretionary and unless an error of law can be demonstrated, there is no basis
for overturning such decisions; the Court should not enter into the re-weighing
of evidence. The respondent submitted that none of the inferences drawn by the
officer from the documentary evidence were so completely unreasonable that they
warrant judicial intervention (Aguebor v. Canada (Minister of Employment
and Immigration) (1993), 160 N.R. 315 (F.C.A.)).
[13]
With
regards to state protection, the respondent submitted that the applicants’
argument that Ward above amended the decision in Canada (Minister of Employment
and Immigration v.
Villafranca) (1992), 18 Imm. L.R. 130 (F.C.A.) such that state
protection must be perfect is not substantiated by the jurisprudence. Adequate
state protection, though imperfect, suffices (Villafranca above, Valdez
v. Canada (Minister of Citizenship and Immigration) 2005 FC 683, Urgel
v. Canada (Minister of Citizenship and Immigration) 2004 FC 1777, Velazquez
v. Canada (Minister of Citizenship and Immigration), [1999]
F.C.J. No. 934, Kadenko v. Canada (Solicitor General) (1996), 143
D.L.R. (4th) 532 (F.C.A.), leave to appeal to S.C.C. refused). The respondent
submitted that the officer relied upon the documentary evidence showing that Poland is a democracy with an
independent judiciary and civil authority in place; moreover, the evidence
indicated that the Polish government does not condone violence against women or
children both of which are prohibited by law. The respondent also submitted
that the officer noted imperfections in the system and the fact that
authorities’ efforts were hampered where violence and abuse go unreported by
the victims. The respondent submitted that the officer then proceeded to
consider the effectiveness of the laws and government policies noting that
reporting had increased due to increased police awareness, media campaigns and
the efforts of non-governmental organizations. The respondent submitted that
the officer assessed the evidence adduced before the officer in light of the
heavy onus upon the applicants to establish clear and convincing evidence of
the state’s inability to protect.
[14]
As
to the applicants’ submission that an oral hearing was required, the respondent
submitted that PRRA applications are usually decided on the basis of written
submissions and only in exceptional cases are hearings required. The respondent
agreed that the requirements for an oral hearing are set out in section 167 of
the Regulations, but submitted that the in the present case, not all the
requirements were met. Specifically, the respondent submitted that the
officer’s credibility determinations were not central to the decision (as
required by subsection 167(b)) because the application was not denied on the
basis of credibility, but yet on the existence of state protection. Moreover,
the officer found that the applicants had not established the objective basis
of their application and thus no hearing was required (Allel v. Canada (Minister of Citizenship
and Immigration)
2003 FCT 533).
Analysis and Decision
[15]
Issue
1
What is the appropriate
standard of review?
Failure to apply a meaningful
contextual application of the law on state protection to the facts of a case is
an error of law reviewable on a standard of correctness (Garcia above at
paragraph 28). The PRRA officer’s finding with regards to state protection is
fact specific and is reviewable on a standard of patent unreasonableness (Kim
above).
[16]
For
questions of procedural fairness, no pragmatic and functional analysis is
required; they are reviewable on a standard of correctness (Demirovic v.
Canada (Minister of
Citizenship and Immigration), 2005 FC 1284 at paragraph 5).
[17]
With
regards to the question of an oral hearing, the requirements for an oral
hearing during a PRRA application are set out in section 167 of the
Regulations; the proper interpretation and application of this section is a
question of law reviewable on a standard of correctness (Demirovic above).
[18]
Issue
2
Did the officer err in the
analysis of state protection?
Recently, in Garcia above,
Justice Campbell of this Court engaged in a very thorough review of the jurisprudence
on state protection. I do not wish to repeat this analysis, but I do
find it necessary to highlight a few sections relevant to the present case. At
paragraphs 10 to 16, Justice Campbell elaborated on the decision in Villafranca
above, noting that the analysis of state protection required not only a
consideration of the “serious efforts” of the state to address the risk in
question, but also a review of these efforts on an “operational level”. That is
to say, that it is insufficient for the officer to consider the state’s efforts
such as legislative initiatives, public inquiries into the issue and so forth;
the officer is required to consider the actual operation of these initiatives
and their effectiveness in addressing the problem.
[19]
In
Garcia above, Justice Campbell went on at paragraphs 18 to 20 to address
the decision in Ward above and its impact on Villafranca above:
In my opinion, Ward amends the
decision in Villafranca in a particularly important respect. Ward makes
a clear statement on the quantity and quality of the evidence which a claimant
must produce to rebut the presumption of state protection, that is, a claimant
is only required to provide some clear and convincing evidence. Therefore, in
my opinion, the statement in Villafranca that “it is not enough for a
claimant merely to show that his government has not always been effective at
protecting persons in his particular situation” cannot any longer be applied as
a point of law. Thus, evidence of the failure of state authorities to effectively
respond to requests from women for protection from violent sexual predators,
exclusive to all other evidence, can be found to constitute some clear and
convincing evidence that rebuts the presumption of state protection. Whether
this finding is made depends on the quality of the evidence produced in the
judgement of the decision-maker involved.
[20]
The
applicants submitted that the officer erred in law in failing to apply a
contextual analysis of state protection and that the applicants had satisfied
the evidential burden set out in Ward above, to rebut the presumption of
state protection. The respondent submitted that the officer in fact did apply a
contextual analysis of state protection as required and that the applicants are
really taking issue with the officer’s ultimate finding on state protection.
[21]
Having
reviewed the officer’s decision, I am of the view that there was no failure to
apply a contextual approach to the analysis of state protection in the present
case. The officer considered the “serious efforts” of the Polish government as
documented in the US
DOS Country Report including the “blue card” record keeping system (which
documents incidents of spousal abuse), media campaigns, criminal laws against
domestic violence and rape, a newly approved national program on counteracting
domestic violence and efforts by NGOs. The officer then went on to consider
evidence as to the effectiveness of such efforts at pages 10 and 11 of the
decision:
This evidence indicates that, whereas
NGOs such as the Women’s Rights Center had observed a rather serious pattern of
police reluctance to intervene in cases of domestic violence when it
participated in publishing a report on domestic violence in Poland in 2002, it
was reported to be indicating that police reluctance was only an “occasional”
problem in 2005, and occurred “…particularly when the perpetrator was a member
of the police force and when victims were unwilling to cooperate. Despite the
high amount of unreported domestic violence which appears to still exist in Poland, an increase in the number of
domestic violence cases has been attributed to “…heightened police awareness,
particularly in urban areas, as a result of media campaigns and NGO efforts”.
In 2005, police in Poland conducted 22,652
investigations into incidents of domestic violence and forwarded 21,843 cases
for indictments to prosecutors.
[22]
This
is not a case where the officer simply stated state initiatives to address the
problem and then failed to conduct any further analysis. In my opinion, the
above passage supports the finding that the officer conducted a contextual
analysis of the state protection available for victims of domestic violence in Poland.
[23]
The
applicants also submitted that they had satisfied the evidential burden
established in Ward above, to rebut the presumption of state protection.
The applicants submitted that the two documents referenced in the written
representation portion of their PRRA application constitute “some clear and
convincing evidence” needed to rebut the presumption of state protection. The
documents in question are a press release from the World Organization Against
Torture entitled Poland: Concern About Violence Women dated November 13,
2002 and a report from the Minnesota Advocates for Human Rights, Women’s Rights
Center entitled Domestic Violence in Poland dated July 2002.
[24]
The
officer considered both reports at pages 8 and 9 of the decision. However, at
page 10 of the decision, the officer stated:
I give greater weight to the evidence
from the US State Department, as it is more recent and appears to reflect that
circumstances in Poland have improved since the NGO
report cited above was published in 2002.
[25]
The
officer gave consideration to the evidence provided by the applicants, but
found more recent evidence more convincing. The officer was entitled to do so.
It is not for this Court to reweigh the evidence before the officer. In my
opinion, the officer applied the correct law on state protection and made a
final finding on state protection that is in no way patently unreasonable.
[26]
Issue
3
Did the officer breach
procedural fairness by failing to provide the applicants with a hearing to
address credibility concerns?
The
applicants submitted that the officer breached procedural fairness by failing
to conduct an oral hearing to address credibility concerns. The respondent
submitted that the officer correctly applied section 167 of the Regulations and
therefore no hearing was required.
[27]
The
requirements for an oral hearing are set out in section 167 of the Regulations,
which reads as follows:
167. For the purpose of determining
whether a hearing is required under paragraph 113(b) of the Act, the factors
are the following:
(a) whether there is evidence that raises
a serious issue of the applicant's credibility and is related to the factors
set out in sections 96 and 97 of the Act;
(b) whether the evidence is central to
the decision with respect to the application for protection; and
(c) whether the evidence, if accepted,
would justify allowing the application for protection.
[28]
The
criteria contained in the above section are understood to be cumulative (Kim
v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 452 (T.D.) at paragraph
6).
[29]
In
my opinion, the requirement in subsection 167(c) is not met in the present
case. The officer found that that there existed adequate state protection in Poland to protect
the applicants. Therefore, even if the evidence provided by the principal applicant
was found to be credible and was accepted, the application for protection would
have failed regardless because of the officer’s finding on state protection. As
such, I find that the officer correctly applied section 167 of the Regulations
and thus, there was no need for an oral hearing under subsection 113(b).
[30]
The
application for judicial review is therefore dismissed.
[31]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
IT
IS ORDERED that the
application for judicial review is dismissed.
"John A. O’Keefe"
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c.27:
|
96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97.(1)
A person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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.
|
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques:
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.(1)
A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée:
a) soit au
risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture
au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant:
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la menace
ou le risque ne résulte pas de l’incapacité du pays de fournir des soins
médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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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The Immigration and Refugee Protection
Regulations, SOR/2002-227:
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167. For the
purpose of determining whether a hearing is required under paragraph 113(b)
of the Act, the factors are the following:
(a) whether
there is evidence that raises a serious issue of the applicant's credibility
and is related to the factors set out in sections 96 and 97 of the Act;
(b) whether
the evidence is central to the decision with respect to the application for
protection; and
(c) whether
the evidence, if accepted, would justify allowing the application for
protection.
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167.
Pour l’application de l’alinéa 113b) de la Loi, les facteurs ci-après servent
à décider si la tenue d’une audience est requise:
a) l’existence
d’éléments de preuve relatifs aux éléments mentionnés aux articles 96 et 97
de la Loi qui soulèvent une question importante en ce qui concerne la
crédibilité du demandeur;
b)
l’importance de ces éléments de preuve pour la prise de la décision relative
à la demande de protection;
c) la question
de savoir si ces éléments de preuve, à supposer qu’ils soient admis,
justifieraient que soit accordée la protection.
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