Date:
20130308
Docket:
IMM-1748-12
Citation:
2013 FC 257
Ottawa, Ontario,
March 8, 2013
PRESENT: The
Honourable Madam Justice Kane
BETWEEN:
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GAUTAM CHANDIDAS,
REKHA CHANDIDAS, KARAN
CHANDIDAS,
KUNAL CHANDIDAS, RHEA CHANDIDAS
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act], of the decision
of a senior immigration officer (the officer), dated January 12, 2012, which
refused the applicants’ pre-removal risk assessment (PRRA) and found that the
applicants would not be subject to a risk of persecution, danger of torture,
risk to life or risk of cruel and unusual treatment or punishment if returned
to their country of nationality, India.
Background
[2]
The
Chandidas family seeks judicial review of their negative PRRA decision. A brief
description of the Chandidas’ time in Canada is provided to situate this
application.
[3]
Gautam
Chandidas, the principal applicant, is a citizen of India who arrived in Canada on a visitor’s visa in August 2007. His wife, two sons and daughter arrived in
November 2007.
[4]
The
applicants applied for refugee status in May 2008 based on the principal
applicant’s fear of persecution due to his experience in India. Mr Chandidas, who is Hindu, owned a garment factory in New Delhi that employed many
Muslims. The Muslim employees demanded time off for daily prayers, which he
refused due to production demands. Following a strike, he closed his
factory. In retaliation, he was kidnapped twice and threatened. A fatwa
was issued by a local mosque calling for his execution. Mr Chandidas fled and
claims that he and his family cannot return to India.
[5]
The
Immigration and Refugee Board [the Board] denied the applicant’s claim for
refugee protection, finding that his claims lacked credibility, that a fatwa
had not been issued and that the applicants had no subjective fear of persecution.
Leave for judicial review of the negative decision was denied on September 8,
2011.
[6]
In
November 2011, the applicants applied for a PRRA, which reiterated the risks
stated in the refugee protection claim. The principal applicant claimed that he
and his family had no internal flight alternative.
[7]
On
January 12, 2012, the PRRA officer refused the application.
[8]
In
July 2010, prior to seeking the PRRA, the applicants had submitted an
application for permanent residence from within Canada on humanitarian and
compassionate [H&C] grounds based on the best interests of their child [BIOC]
and on their establishment in Canada. The H&C application was refused by
the same officer who refused the PRRA application and on the same day, January
12, 2012. The application for judicial review of the H&C decision was heard
at the same time as the current application and was granted. Separate reasons
for judgment were issued and can be found at Chandidas v Canada (Minister of Citizenship and Immigration), 2013 FC 258.
[9]
On
March 13, 2012, this Court granted the applicants’ motion to stay their removal
from Canada.
Decision under Review
[10]
The
officer found that the applicants had an internal flight alternative [IFA] in
Mumbai and as a result, that they would
not be subject to a risk of persecution, danger of torture, risk to life or
risk of cruel and unusual treatment or punishment if returned to India. The
officer concluded that the applicants were not in need of protection under
sections 96 or 97 of the Act.
[11]
In
reaching this conclusion, the officer considered the principle applicant’s
submission about the fatwa issued against him and which indicated that the
family had no IFA. Due to their daughter Rhea’s treatment and follow-up care
for relapsed acute lymphoblastic leukemia [ALL], the applicants indicated that
the only possible treatment center would be in Mumbai, where the principal
applicant could be found by Muslims wanting to execute the fatwa. However, the
applicants also submitted that this treatment center would not provide the
treatment Rhea needed, putting the child’s health and, possibly, life at risk.
[12]
The officer
rejected some documents submitted by the applicants on the basis that they did
not constitute “new evidence” pursuant to paragraph 113 (a) of the Act, since they pre-dated
the applicants’ refugee claim. These documents included news reports on fatawa and police dysfunction and impunity in India.
[13]
However,
the officer accepted other documents as new evidence, while noting that they
should be excluded under paragraph 113 (a) of the Act. These documents
related to the possibility of an IFA, which the Board had not examined. The
officer accepted a letter from Dr Truong at Sick Kids Hospital in Toronto, describing the treatment needed, and an Executive Summary of the India Pediatric
Oncology Initiative Meeting supported by the Jiv Daya Foundation, which
described the barriers to treatment of childhood cancer in India. The officer also accepted a copy of a recent unsigned letter from the principal
applicant’s estate manager in India, which described the active status of the
fatwa against him.
[14]
The
officer indicated that he attributed significant weight to the findings of the
Board, according to which the applicants did not face a risk of persecution.
The officer noted that the principal applicant reiterated the same risks: that
he fears Muslims in India because of the fatwa issued against him and he fears
being executed, and that there is a lack of state protection due to the sheer
number of Muslims in India. The officer attributed little weight to the letter
provided by the principal applicant as new evidence of the active status of the
fatwa.
[15]
However,
the officer did not make an explicit finding that a fatwa had not been issued.
[16]
In
assessing the forward-looking risk, the officer considered current country
condition documents. These included a 2010 United States Department of State
report describing India’s democratic political system, as well as a 2007
Immigration and Refugee Board Response to Information Request [RIR] which
examined fatawa in general.
[17]
The
officer concluded that the applicants had a reasonable and viable IFA in Mumbai
because there was little evidence to suggest that the authority who issued the
fatwa had far-reaching influence that would endanger the principal applicant
there. The officer also concluded that the applicants would adapt to new
environments, and that Rhea would have access to treatment for ALL in Mumbai.
The Issues
[18]
Three
issues arise in this application: whether the officer breached the duty of
procedural fairness by relying on the RIR, which was public information but had
not been disclosed to the applicants; whether the officer failed to consider
Rhea’s best interests, as required by paragraph 3 (3)(f) of the Act
(which provides that the Act is to be applied and construed in a manner
that complies with international human rights instruments to which Canada is a
signatory); and, whether the officer’s IFA finding was reasonable.
[19]
It
is well settled that questions of mixed law and fact are assessed on a
reasonableness standard, and questions of law and procedural fairness are
assessed on a correctness standard: Dunsmuir
v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 51 [Dunsmuir].
[20]
While
all three issues are canvassed below, I find that the determinative issue is
the IFA finding. The IFA finding was not reasonable given the needs of the
child, Rhea, for adequate treatment for ALL. It should be noted that the
application for judicial review of the negative H&C decision was granted in
Chandidas v Canada (Minister of Citizenship and Immigration), 2013 FC 258,
where the officer’s assessment of the BIOC was found to be inadequate. The
evidence with respect to the seriousness of ALL and the barriers to the
availability of treatment in India was part of the record before the officer in
both applications. The barriers to treatment make the IFA in Mumbai
unreasonable.
Did
the officer breach the duty of procedural fairness by relying on the RIR, which
was public information but had not been disclosed to the applicants?
[21]
The
applicants submit that the officer breached the duty of fairness by failing to
disclose extrinsic evidence, i.e. the 2007 RIR on fatawa, which the officer
relied upon in determining that the fatwa would not be operative beyond the
area of the principal applicant’s former factory, and not in Mumbai, and in
failing to provide the applicants an opportunity to respond.
[22]
The
applicants argue that the document was not available to them due to paragraph
113 (a) of the Act, which prevents PRRA applicants from relying upon
evidence that pre-dates the rejection of their refugee claim (in this case, May
11, 2011). The applicants contend that this provision prevents them from
making submissions to rebut the evidence relied upon by the officer because the
evidence existed prior to the determination of the refugee claim – it was not
“new” evidence.
[23]
The
respondent submits that there was no breach of procedural fairness since the
officer was not required to notify the applicants that he would be relying upon
public sources regarding general country conditions: Mancia v Canada (Minister of
Citizenship and Immigration), [1998] 3 FC 461, 147 FTR 307
(CA) at para 27.
[24]
Section 113
(a) of the Act relates specifically to PRRA applications and provides:
|
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;
[…]
[emphasis
added]
|
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;
[…]
[je
souligne]
|
[25]
In Asmelash
v Canada (Minister
of Citizenship and Immigration), 2005 FC 1732, [2005] FCJ No
2145, the Court considered how the duty of procedural fairness applies with
respect to the disclosure of public documents. Justice Blais, as he then was,
noted:
[14] In Mancia v. Canada (Minister of
Citizenship and Immigration), (1997) 125 F.T.R. 297, [1997]
F.C.J. No. 120, Justice MacKay, at paragraph 13,
confirmed that there is no obligation on the part of the officer to disclose
information that is available from a public source prior to the date of any
submission by the applicant:
I note that in
Nadarajah, Rothstein J. considered the documentary evidence there in question
to be from sources available to the public and he referred to the decision of
Mr. Justice Rouleau in Quintanilla v. The Minister of Citizenship and
Immigration, unreported, Court file IMM-1390-95, January 22, 1996 (F.C.T.D.),
[1996] F.C.J. No. 84. In the latter case, where documentary
evidence of country conditions considered in a PDRCC assessment is material
that is publicly available, Rouleau J. held there was no obligation to inform
the applicant, in advance of a decision, of specific documents concerning
country conditions that are being considered. That same principle was
applied in Nadarajah by Rothstein J., and in my view it is applicable here, at
least with reference to documents published and available from public sources
prior to the date of any submission by the applicant.
[15] In Chen v. Canada (Minister of Citizenship and Immigration),
(2003) F.T.R. 297, [2002] 4 F.C. 193, Justice Hansen, at
paragraphs 33-36, takes the analysis regarding extrinsic versus non-extrinsic
evidence one step further by concluding that the distinction between the two is
no longer determinative of whether the duty of fairness requires disclosure.
She adopts the position that when dealing with matters of procedural fairness,
the overriding concern with respect to the disclosure of evidence is whether
the document, opinion, or report is one of which the individual is aware or
deemed to be aware:
The broad principle I
take from Mancia is as follows. Extrinsic evidence must be disclosed to an
applicant. Fairness, however, will not require the disclosure of non-extrinsic
evidence, such as general country conditions reports, unless it was made
available after the applicant filed her submissions and it satisfies the other
criteria articulated in that case.
In my view, both of
these "rules" share a single underlying rationale. Fairness requires
that documents, reports, or opinions of which the applicant is not aware, nor
deemed to be aware, must be disclosed.
The underlying
rationale for the rule established in Mancia, in my opinion, survives Haghighi
and Bhagwandass. The principle of those cases, generally stated, is that the
duty of fairness requires disclosure of a document, report or opinion, if it is
required to provide the individual with a meaningful opportunity to fully and
fairly present her case to the decision maker.
Therefore, while it
is clear that the distinction between extrinsic and non-extrinsic evidence is
no longer determinative of whether the duty of fairness requires disclosure,
the rationale behind the rule in Mancia remains. I arrive at this conclusion
because even in recent jurisprudence, applying the post-Baker framework for
defining the duty of fairness, the overriding concern with respect to
disclosure is whether the document, opinion, or report is one of which the
individual is aware or deemed to be aware.
[emphasis
added]
[26]
The applicants’
concern relates to the fact that they could not adduce any evidence (old or
new) to rebut the information included in the RIR because they were not aware
that the officer was relying on this information to begin with. The applicants
note that if they had been aware of the officer’s reliance on the RIR and if
they had evidence to rebut this that pre-dated the IRB decision (for example,
that reflected the same time period as noted in the RIR), they would have been
precluded from raising this due to section 113 of the Act, and that this
is unfair.
[27]
In this case,
the applicants claimed that a fatwa was issued and the onus was on them to
establish that risk, which they endeavored to do in their submissions to the
Board and in their submissions to the officer with the new letter from the
estate manager. It should not be surprising that the officer would inform
himself about fatawa in general.
[28]
In my view,
the failure to disclose the publicly available RIR is not a breach of
procedural fairness. Section 113 of the Act only restricts the
applicants’ ability to adduce such information; it does not restrict the
ability of the officer to use information that is not “new”. The information
was publicly available and the applicants could have accessed it. The applicants
were deemed to be aware of it. Moreover, they had presented other new evidence
regarding the fatwa, to which the officer attributed little weight.
[29]
In some
circumstances, section 113 of the Act may place an applicant in a ‘catch
22’ situation when the officer relies on new evidence (of which the applicant
is not aware), but the applicant is restricted in rebutting that new evidence.
In this case, the RIR was public information and provided balanced and general
information about fatawa. The officer cited excerpts including the following: “Even
though a fatwa may not be recognized by the government, the group that issued
it takes it seriously. In such a case, a fatwa issued against an individual can
be just as dangerous as if it were government action against the individual”.
Moreover, the applicants did seek to introduce evidence about the risk to them
of the fatwa.
[30]
In these
circumstances, there was no breach of procedural fairness as a result of the
officer’s reliance on the publicly available RIR.
Did
the officer fail to consider the best interests of Rhea, as required by
paragraph 3 (3)(f) of the Act,
which provides that the Act is to be applied and construed in a manner
that complies with international human rights instruments to which Canada is a
signatory?
[31]
The
applicants submit that because Canada is a signatory to the UN Convention on
the Rights of the Child [UNCRC], the Act must be interpreted
in accordance with the Convention and therefore a BIOC analysis should have
been conducted by the officer for the PRRA.
[32]
The
respondent submits that the UNCRC does not require that the interests of
affected children be considered under every provision of the Act: Mandida
v Canada (Minister of Citizenship and Immigration) 2010 FC 491,
[2010] FCJ No 591; de Guzman v Canada (Minister of Citizenship and
Immigration), 2005 FCA 436, [2005] FCJ No 2119. The Act provides an
effective opportunity to consider the BIOC pursuant to section 25, in H&C
applications. Although the same officer may conduct the PRRA and the H&C
assessment, these are separate decision-making processes with different
considerations and tests.
[33]
The
two decision-making processes are indeed separate.
[34]
In
Canada (Minister of Citizenship and Immigration) v Varga, 2006 FCA 394,
[2006] FCJ No 1828, the Federal Court of Appeal held that the best interests of
the child need not be considered in every decision if there is another
opportunity for such considerations:
[13] Neither the Charter nor the Convention
on the Rights of the Child requires that the interests of affected children
be considered under every provision of the Act: de Guzman v. Canada (Minister of Citizenship and Immigration), [2006] 3 F.C.R. 655,
2005 FCA 436 at para. 105. If a statutory scheme provides an effective
opportunity for considering the interests of any affected children, including
those born Canada, such as is provided by subsection 25(1), they do not also
have to be considered before the making of every decision which may adversely
affect them. Hence, it was an error for the Applications Judge to read into the
statutory provisions defining the scope of the PRRA officer’s task a duty also
to consider the interests of the adult respondents’ Canadian-born children.
[35]
In Pinter v Canada (Minister of Citizenship and
Immigration), 2005 FC 296, [2005] FCJ No 366, Chief
Justice Lutfy noted the difference between the assessment of risk factors in an
application for humanitarian and compassionate consideration and one for
protection from removal:
3 In an application for
humanitarian and compassionate consideration under section 25 of the
Immigration and Refugee Protection Act (IRPA), the applicant's burden is to
satisfy the decision-maker that there would be unusual and undeserved or
disproportionate hardship to obtain a permanent resident visa from outside Canada.
4 In a pre-removal risk
assessment under sections 97, 112 and 113 of the IRPA, protection may be
afforded to a person who, upon removal from Canada to their country of
nationality, would be subject to a risk to their life or to a risk of cruel and
unusual treatment.
[36]
While
recent amendments to section 25 of the Act have clarified that the risk
factors considered in sections 96 and 97 should not be considered in H&C
applications, but that other hardships may be considered, that amendment is not
at issue in this case. The cases referred to above continue to describe the
distinction between the two processes.
[37]
Similarly in Hamam v Canada (Minister of Citizenship and
Immigration),
2011 FC 1296, [2011] FCJ No 1585, Justice Mandamin noted:
[41] The jurisprudence sets out that the
risk in an H&C application is that of hardship which is different from the
risk to be considered in a PRRA application. As Justice Montigny stated in Ramirez,
“[i]t is beyond dispute that the concept of ‘hardship’ in an H&C
application and the ‘risk’ contemplated in a PRRA are not equivalent and must
be assessed according to a different standard.”
[38]
The
two assessments are different, and the better opportunity to consider the BIOC
is in the context of an H&C application. In this case, the applicants made
an H&C application, which was refused by the same officer who refused the
PRRA. The officer found that Rhea’s best interests would be met by returning to
India because treatment was available for her there. Judicial review was
granted for the H&C decision upon finding that the officer failed to
conduct an appropriate BIOC analysis and for other reasons (see file no.
IMM-1750-12).
[39]
Although
the officer was not required to conduct a full BIOC analysis in the context of
the PRRA, he did engage in a partial analysis of the BIOC in determining that
an IFA existed in Mumbai.
[40]
Dr
Truong’s letter indicated that “cancer outcomes and overall survival is well
known to be higher in developed countries such as Canada where there is a
network of excellent pre-hospital care (ie. EMS, ambulance), provision of
supportive care (antibiotics and blood products), and excellent inpatient
hospital services (diagnostic imaging and access to essential medications)”.
[41]
Dr
Truong also indicated:
The treatment of relapsed leukemia is physically
and psychologically demanding on a young child. The chemotherapy is much
more intensive and requires multiple clinic visits and long periods of
hospitalization. The regime is so intense that rarely, a few children will die
while on therapy. Rhea has had a few instances during the treatment
where she has had some life threatening episodes and had to be admitted to the
intensive care unit. The provision of timely and high quality care offered here
has allowed her to recover from those episodes without any complications.
The successful treatment of children with cancer
requires high quality medical care, the availability of specialists in oncology
and other medical specialties, and a multidisciplinary team of personnel that
includes nurses, pharmacists, dieticians and social workers to name a few. It
requires access to diagnostic imaging services such as CT and MRI scanners and
access to essential chemotherapeutic drugs, such as those that Rhea is
currently receiving.
[emphasis in original]
[42]
The
Jiv Daya Report (India Pediatric Oncology Initiative Meeting) included
information that described the obstacles to treatment for children with
cancer in India. The report indicated that the overall cure rate in India varied between 10 and 25%, compared to 70% in the United States. The report also indicated
that there were over 40,000 new cases of childhood cancer each year in India and 70% have advanced disease at diagnosis. There are only 55 practicing paediatric
oncologists in all of India.
[43]
The
report indicated that the barriers to treatment identified included the lack of
infrastructure, insufficient staff, lack of training, economic restraints and
other challenges related to the delivery of care, and that the common issue
expressed was the constant influx of patients, inadequate beds to see them all
and insufficient staff to treat them.
[44]
The
evidence highlights that the treatment for relapsed ALL is specialised. The
officer’s conclusion that there was little evidence that medical treatment
would not be available in Mumbai is not reasonable.
Was the officer’s IFA finding
reasonable?
[45]
The test for
an IFA is well established and
there is a high onus on the applicant to demonstrate that a proposed IFA is
unreasonable: Ranganathan v Canada (Minister of Citizenship and Immigration),
[2001] 2 FC 164, [2000] FCJ No 2118 (CA). The two-pronged test for an IFA
has been cited in many cases and was established in Thirunavukkarasu v Canada (Minister of Employment and Immigration),
[1994] 1 FC 589, [1993] FCJ No 1172 (CA), which continues to apply.
[46]
The
test is: (1) the
Board (or in this case, the officer) must be satisfied, on a balance of
probabilities, that there is no serious possibility of the claimant being persecuted
in the proposed IFA; and, (2) conditions in the proposed IFA must be such that
it would not be unreasonable, upon consideration of all the circumstances,
including consideration of a claimant’s personal circumstances, for the
claimant to seek refuge there.
[47]
In
the present case, the officer found that Mumbai offered a reasonable IFA
because no one beyond the immediate area of the principal applicant’s former
factory would feel compelled to follow the fatwa, the applicant and his family
would adapt to Mumbai, and Rhea would have access to treatment there.
[48]
For
the reasons noted above, the finding that the applicants had provided little
evidence that medical treatment would not be available in Mumbai is
unreasonable. The evidence establishes the barriers to treatment in India and highlights that Rhea has been treated for relapsed ALL which requires specialised
treatment and follow-up care.
[49]
Due to the
personal circumstances of the applicant’s family, particularly the needs of
Rhea for access to prompt and high quality treatment and follow-up for ALL, the
second branch of the IFA test has not been met.
Proposed Certified Question
[50]
The
applicants proposed the following question for certification:
Do the principles of fairness dictate that a PRRA
officer must, before arriving at his or her final determination on a PRRA
application, when relying on evidence referred to in subsection 113 (a) of
IRPA, which evidence the PRRA applicant could not rely upon in his or her PRRA
application by operation of subsection 113 (a) of IRPA, disclose that said
evidence to the PRRA applicant and afford him or her an opportunity to rebut
that evidence.
[51]
The
respondent has replied that the proposed question does not meet the test for
certification as it is not a serious question of general importance that will
be dispositive of the appeal. The question pertains to the disclosure of a
particular country condition document, and therefore would not be a question of
general importance: Gunaratnam v Canada (Minister of Citizenship and
Immigration),
2011 FC 122, [2011] FCJ No 194. Moreover, the law is well settled that PRRA
officers need not disclose public documents relied upon about country
conditions and which were available and accessible at the time the submissions
were made: Mancia, above; Hernandez v Canada (Minister of
Citizenship and Immigration), 2011 FC 1301, [2011] FCJ No 1588; Holder v Canada
(Minister
of Citizenship and Immigration) 2012 FC 337, [2012] FCJ No 353.
[52]
As
noted above, the applicants were deemed to have been aware of the publicly
accessible RIR and hence disclosure was not required. The applicants had also
sought to adduce some new evidence about the fatwa, to which the officer
attributed low weight. The question proposed for certification does not aptly
capture the hypothetical situation faced by the applicants. In addition, its
determination would not be dispositive.
[53]
No
question is certified.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The application for
judicial review is allowed and the PRRA should be remitted for consideration by
a different officer;
2. No question is
certified; and,
3. No costs are awarded.
"Catherine M.
Kane"
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