PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[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 pre-removal risk assessment (PRRA) officer dated February 24, 2006, which rejected the applicant’s PRRA application.
[2] The applicant seeks:
1. an order for a writ of certiorari quashing the decision dated February 24, 2006, which refused her PRRA application;
2. an order for a writ of mandamus to process this application in accordance with the law; and
3. costs for this procedure.
Background
[3] The applicant, Mollie Narcisse, is a citizen of St. Lucia. The circumstances leading to her PRRA application were described in her affidavit and PRRA submissions. She moved from St. Lucia to Barbados with her mother as a baby and remained there until the age of sixteen. She fled Barbados after being sexually abused by her step-father and returned to St. Lucia to live with her sister. She then entered into a relationship with Henderson Clark, whom she claimed abused her both physically and emotionally. She reported the abuse to the police, but was unable to obtain protection. Clark was allegedly a drug dealer and known to be violent.
[4] The applicant fled St. Lucia for Canada with a visitor’s visa in August 1999. She delayed seeking refugee protection in Canada because she was not aware of the opportunity to do so. She claimed refugee status in May 2003, and the hearing was held on February 17, 2004. By decision dated March 9, 2004, her refugee claim was denied due to a lack of credible evidence.
[5] The applicant gave birth to two children while in Canada. The children’s father is not involved in their day-to-day lives, but makes court ordered support payments. The applicant was six months pregnant with her third child at the time of the filing of this application for judicial review. She is the sole caregiver of her children. The applicant claimed to have submitted an application for permanent residence on humanitarian and compassionate grounds (H&C) in January 2006, which was pending at the time this application for judicial review was filed.
[6] She applied for a PRRA on December 1, 2005, alleging that she faced persecution at the hands of her ex-boyfriend if she returned to St. Lucia. By decision dated February 24, 2006, the application was rejected. This is the judicial review of the PRRA officer’s decision.
PRRA Officer’s Reasons
[7] The officer determined that the applicant would not be subjected to a risk of persecution, danger or torture, risk to life or risk of cruel and unusual punishment if she returned to St. Lucia. It was noted that the Board rejected the applicant’s claim for protection because her evidence lacked credibility.
[8] The applicant submitted new evidence including: her PRRA application, PRRA submissions, and a 2003 DOS report concerning St. Lucia. The documents which pre-dated the Board’s decision did not constitute “new evidence” pursuant to paragraph 113(a) of IRPA, and were not considered by the officer. There was insufficient objective evidence to indicate that the applicant’s situation in St. Lucia had changed since the Board’s decision and she had failed to address the credibility concerns identified by the Board.
[9] The applicant did not provide evidence substantiating her statement that her ex-boyfriend had threatened her sister to disclose where the applicant was residing. Her evidence that he had a gun and that she had witnessed his drug dealing was not new evidence, as it could have been presented at the refugee hearing. There was insufficient evidence that he was still interested in harming her if she returned to St. Lucia. It was not plausible that after seven years, the applicant’s knowledge of her boyfriend’s drug dealing would place her at risk if she returned. Should he still be interested in harming her, the evidence established that St. Lucia could offer her state protection.
[10] St. Lucia was a democratic state, with a police force and an independent judiciary. The documentary evidence indicated that violence against women was a serious problem in St. Lucia, and that while there were procedures in place to protect women, police were hesitant to intervene in domestic disputes, and women were reluctant to report domestic violence. Legislation allowed judges to issue protection orders in favour of victims. There was also a non-governmental organization in St. Lucia, which monitored cases of physical abuse and helped victims. The officer concluded that the applicant had failed to rebut the presumption that state protection would be available to her in St. Lucia.
[11] There was insufficient evidence to indicate that the situation she faced had changed since the Board’s decision. The risks identified in her PRRA application were the same as those presented to the Board. The officer found that the government of St. Lucia would not be unwilling or unable to protect her. The applicant claimed that her experience in St. Lucia was appalling, and there were compelling reasons arising from her previous persecution for refusing to avail herself of the protection of her country (see subsection 108(4) of IRPA). The officer found that she had not suffered such appalling persecution that her experience was sufficient not to return her to St. Lucia.
Issues
[12] The applicant submitted the following issues for consideration:
1. Did the officer err in failing to recognize the best interest of the applicant’s two Canadian-born children and one unborn child?
2. Did the officer fetter her discretion by finding that there was no evidence upon which to base a positive PRRA decision due to the fact that the applicant was found not to be a Convention refugee or a person in need of protection?
[13] The applicant argued two points during the hearing of her application for judicial review:
1. Did the applicant fit within the exception to the ruling contained in Varga v. Canada (Minister of Citizenship and Immigration) 2007), 57 Imm. L.R. (3d) 159, 2006 FCA 394, that a PRRA officer need not assess the best interests of Canadian-born children?
2. Should the PRRA officer’s decision be set aside because the tribunal record did not contain the notes of an enforcement officer, taken at the time the applicant was referred for a PRRA?
Analysis and Decision
[14] Point 1
Did the applicant fit within the exception to the ruling contained in Federal Court of Appeal’s decision in Varga, that a PRRA officer need not assess the best interests of Canadian-born children?
Paragraph 17 of Varga reads as follows:
In oral argument, counsel for the respondents argued that the PRRA officer failed to consider the possibility that, if their two Canadian-born children went to Hungary, the respondents would themselves be exposed to a greater risk of persecution. I agree that this is a matter within the PRRA officer’s jurisdiction. However, since counsel did not make this submission to the officer, he cannot complain that the officer was at fault in not considering it.
[15] I take this paragraph to mean that a PRRA officer should consider whether the fact that Canadian-born children would be returning with their parents to their parents’ country of citizenship would expose the parents to a greater risk of persecution. The record does not disclose that this argument was made before the PRRA officer, therefore the officer cannot be faulted for not considering it. There was no error made by the PRRA officer in this respect.
[16] Point 2
Should the PRRA officer’s decision be set aside because the tribunal record did not contain the notes of an enforcement officer taken at the time the applicant was referred for a PRRA?
The parties are in agreement that the notes made by the enforcement officer when she interviewed the applicant were not included in the tribunal record. The applicant submitted that the decision of the PRRA officer should be set aside based on the following remarks made by Justice Layden-Stevenson in Li v. Canada (Minister of Citizenship and Immigration) (2006), 54 Imm. L.R. (3d) 189, 2006 FC 498 at paragraph 15:
It is clear that Ms. Li's PIF was before the officer and the officer's reasons state that the officer read and considered it. However, the PIF is not anywhere to be found in the certified tribunal record. While the failure to provide a certified record in accordance with the Rules does not, in itself, warrant automatic quashing of the decision: Hawco v. Canada (Attorney General) (1998), 150 F.T.R. 106 (F.C.T.D.); Murphy v. Canada (Attorney General) (1997), 131 F.T.R. 33 (F.C.T.D.), there is authority for the proposition that Rule 17 of the Federal Court Immigration and Refugee Protection Rules, SOR/93-22 is mandatory. The tribunal must prepare and produce a record containing all documents relevant to the matter that are in the possession or control of the tribunal. The decision may be set aside when the record is incomplete: Gill v. Canada (Minister of Citizenship and Immigration) (2003), 34 Imm. L.R. (3d) 29 (F.C); Kong et al. v. Canada (Minister of Employment and Immigration) (1994), 73 F.T.R. 204 (F.C.T.D.).
[17] The enforcement officer’s notes read as follows:
Present at Interview: client
Up to date address: yes
Pictures (4 each person): bringing them tomorrow
Passport (seizure): no ppt on file – yes
SIN card (take copy): can’t find SIN – lost at home
D/L (take copy): copy
Criminality: no
Health: none for her – son has asthma & exyema
RPD decision: CR REFUSED 26MAR2004
Type of Removal Order: deemed deport
Litigation: DENIED DATE 28JUN2004
H&C Application: none in FOSS
-Provide Notification Letter & Application, go through letter:
-the removal process has now begun
-deadline for application: - must submit to PRRA office for stay of removal
-deadline for written submissions: - submit only new evidence – statement of no intention
-will be called in for PRRA decision, usually 1-3 months
-if positive, can apply for PR, if negative, will receive removal arrangements for departure within 2-3 weeks –prepare now, in case of a negative decision
Interview Notes:
2 children – CC
I initiated PRRA. I stressed to the client to get the passports for her children ASAP.
Kristen Gale, Enforcement Officer, FRP-GTEC
[18] As noted earlier, it was not argued before the PRRA officer that the fact that the children would be travelling with the applicant would increase her risk of persecution. It would seem to me that this is the only time that the notes concerning the children might be material. This case is distinguishable from that of Li. In Li, the officer referred to a document in his or her reasons which was not included in the tribunal record. As a result, the decision had to be set aside. In the present case, the Court has the notes of the enforcement officer regarding the children’s health, and they do not seem material to the issue of an increased risk of persecution of the applicant. The decision will not be set aside for this reason.
[19] The application for judicial review is therefore denied.
[20] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
JUDGMENT
[21] IT IS ORDERED that the application for judicial review is denied.
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set out in this section.
The Federal Courts Immigration and Refugee Protection Rules, S.O.R. 93-22.:
|
17. Upon receipt of an order under Rule 15, a tribunal shall, without delay, prepare a record containing the following, on consecutively numbered pages and in the following order:
(a) the decision or order in respect of which the application for judicial review is made and the written reasons given therefor,
(b) all papers relevant to the matter that are in the possession or control of the tribunal,
(c) any affidavits, or other documents filed during any such hearing, and
(d) a transcript, if any, of any oral testimony given during the hearing, giving rise to the decision or order or other matter that is the subject of the application for judicial review,
and shall send a copy, duly certified by an appropriate officer to be correct, to each of the parties and two copies to the Registry.
|
17. Dès réception de l’ordonnance visée à la règle 15, le tribunal administratif constitue un dossier composé des pièces suivantes, disposées dans l’ordre suivant sur des pages numérotées consécutivement:
a) la décision, l’ordonnance ou la mesure visée par la demande de contrôle judiciaire, ainsi que les motifs écrits y afférents;
b) tous les documents pertinents qui sont en la possession ou sous la garde du tribunal administratif,
c) les affidavits et autres documents déposés lors de l’audition,
d) la transcription, s’il y a lieu, de tout témoignage donné de vive voix à l’audition qui a abouti à la décision, à l’ordonnance, à la mesure ou à la question visée par la demande de contrôle judiciaire,
dont il envoie à chacune des parties une copie certifiée conforme par un fonctionnaire compétent et au greffe deux copies de ces documents.
|
The Immigration and Refugee Protection Act, S.C. 2001, c. 27.:
|
108. (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances:
(a) the person has voluntarily reavailed themself of the protection of their country of nationality;
(b) the person has voluntarily reacquired their nationality;
(c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality;
(d) the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or
(e) the reasons for which the person sought refugee protection have ceased to exist. (2) On application by the Minister, the Refugee Protection Division may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1). (3) If the application is allowed, the claim of the person is deemed to be rejected. (4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.
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;
. . .
|
108. (1) Est rejetée la demande d’asile et le demandeur n’a pas qualité de réfugié ou de personne à protéger dans tel des cas suivants:
a) il se réclame de nouveau et volontairement de la protection du pays dont il a la nationalité;
b) il recouvre volontairement sa nationalité;
c) il acquiert une nouvelle nationalité et jouit de la protection du pays de sa nouvelle nationalité;
d) il retourne volontairement s’établir dans le pays qu’il a quitté ou hors duquel il est demeuré et en raison duquel il a demandé l’asile au Canada;
e) les raisons qui lui ont fait demander l’asile n’existent plus.
(2) L’asile visé au paragraphe 95(1) est perdu, à la demande du ministre, sur constat par la Section de protection des réfugiés, de tels des faits mentionnés au paragraphe (1).
(3) Le constat est assimilé au rejet de la demande d’asile.
(4) L’alinéa (1)e) ne s’applique pas si le demandeur prouve qu’il y a des raisons impérieuses, tenant à des persécutions, à la torture ou à des traitements ou peines antérieurs, de refuser de se réclamer de la protection du pays qu’il a quitté ou hors duquel il est demeuré.
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;
. . . |
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2312-06
STYLE OF CAUSE: MOLLIE NARCISSE
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
APPEARANCES:
|
Mary Lam
|
|
|
Greg George
|
SOLICITORS OF RECORD:
|
Mary Lam Toronto, Ontario
|
|
|
John H. Sims, Q.C. Deputy Attorney General of Canada
|