Ottawa, Ontario, February 24, 2006
PRESENT: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") with respect to a decision of Ms. Dulce Neto, a Pre-Removal Risk Assessment Officer ("PRRA Officer Neto"), denying Mr. Mohammad Ilyas Choudry's ("Applicant") application. In its decision dated March 7, 2005, PRRA Officer Neto determined that the Applicant would not be at risk if returned to Pakistan.
ISSUES
[2] The issues at stake can be summarized in the two following questions:
- Did PRRA Officer Neto err in his description of the facts of the present case?
- Did PRRA Officer Neto err in expressing reservations about the authenticity of the First Information Report ("FIR") provided by the Applicant?
CONCLUSION
[3] For the reasons that follow, these two questions are answered in the negative and the application for judicial review is dismissed.
FACTS AND HISTORY OF THE CASE
[4] The Applicant is from Punjab, in Pakistan. As a Pakistan People's Party (PPP) supporter, the Applicant was allegedly threatened and persecuted in his country by members of the Pakistan Muslim League (PML). Because of his political involvement in the PPP, the Applicant submits that he was falsely charged of various criminal offences. He claimed refugee status on February 11, 2000.
[5] On January 25, 2002, the Convention Refugee Determination Division of the Immigration and Refugee Board ("IRB") determined that the Applicant was not a Convention refugee. His application for Leave and for Judicial Review was dismissed on June 12, 2002.
[6] A first negative PRRA ("March 26, 2004 PRRA") was issued on March 26, 2004, by Sylvie Duval ("PRRA Officer Duval"). On June 30, 2004, a consent ordered quashed this decision, as PRRA Officer Duval made an obvious error of fact. The Applicant submitted a warrant before the IRB, dated February 10, 2000 (p. 463 of the tribunal's file). No FIR was ever provided by the Applicant for this warrant, but it was assumed by PRRA Officer Neto, in the present matter, that such a FIR exists ("first FIR"). A FIR dated December 26, 1999 was then provided to PRRA Officer Duval (this FIR, the "second FIR", was not submitted to the IRB - see p. 465 and 466 of the tribunal's file). PRRA Officer Duval mistakenly believed that this second FIR corresponded to the warrant submitted to the IRB, and that this second FIR was submitted to the IRB.
[7] The matter was returned for redetermination by a different PRRA Officer. On March 7, 2005, a second PRRA was issued by PRRA Officer Neto: it is this decision that is under scrutiny before this Court.
ANALYSIS
[8] The standard of review applicable to a PRRA decision considered globally and as a whole is reasonableness simpliciter (Figurado v. Canada(Sollicitor General), 2005 FC 347, [2005] F.C.J. No 458, at para 51). An unreasonable decision is a decision that does not stand up to a somewhat probing analysis (Barreau du Nouveau-Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20, [2003] S.C.J. No. 17, at para. 25; Canada (Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748, [1996] S.C.J. No. 116)). However, where a particular finding of fact is made by the PRRA officer, the Court should not substitute its decision for that of the PRRA officer unless it is demonstrated by the applicant that such finding of fact was made in a perverse or capricious manner or without regard to the material before the PRRA officer (Figurado v. Canada (Sollicitor General), supra, at para. 51.
[9] It is submitted by the Applicant that PRRA Officer Neto did not understand that the second FIR did not correspond to the warrant submitted to the IRB. In other words, the Applicant is of the opinion that PRRA Officer Neto in the matter at hand did make the same mistake as PRRA Officer Duval in the March 26, 2004 PRRA. For the reasons that follow, I do not agree with the Applicant.
[10] The following passages of the decision, taken as a whole, show that the PRRA Officer Neto had a good understanding of the facts:
[...]
IRB hearing
[...]
(p. 5) The claimant emphasized that the police are corrupt in Pakistan and that this is why "they have not confirmed the FIR," and that they had manufactured "a false political case" against him.
[...]
Nature of the risk
[...]
(p. 10) Moreover, the claimant explained that he did not have a FIR for the warrant submitted, because the police refused to give him a copy. What is more, the first lawyer (C. Carfraz Ahmed) stated the following in his letter (2000): "I contacted the police station Saddar to get information regarding cases registered against Ilyas but I could not get satisfactory answer from S.H.O."
As evidence for his PRRA, the claimant submitted a FIR dated December 26, 1999, which states that he had violated articles 149 and 452/147 of the PCC. this FIR was obtained directly from the Sadar Sargodha police station by the second lawyer, Afzal Cheema, in December 2003. The FIR submitted here was therefore from the same police station which had refused to provide a FIR relating to the warrant submitted before the IRB.
(p.11) It seems that
1) At the first IRB hearings, the FIR had already been issued. It should therefore have been submitted during the claim, as was the arrest warrant.
2) The FIR contains charges which are completely different than those in the warrant.
3) The police did not refuse to co-operate with the second lawyer, as they provided him with a copy of the FIR.
4) The FIR which related to the arrest warrant and which was never submitted by the claimant could have been obtained by the second lawyer, in December 2003.
5) On the copy of the FIR provided, we can see marks which seem to have been made by sheets placed on the document when it was photocopied and illegible seals. Moreover, as the document is a photocopy, it is impossible to rule as to its authenticity.
Point 3 is not sufficient in and of itself for us to rule on the legitimacy of the document. However, when combined with all the other points, it adds weight to the conclusions made in the course of this analysis.
Accordingly, considering that the claimant has already submitted a document considered fraudulent, that nothing allows us to invalidate the results obtained in the course of the verification carried out by the IRB, that the FIR submitted here could have been submitted for the purposes of the refugee claim, that the document is a photocopy of unsatisfactory quality and that it contains illegible seals, I do not give any probative value to the warrant submitted, to the FIR or to the lawyers' letters accompanying these documents. [my emphasis]
[11] From this I conclude that PRRA Officer Neto did understand that the second FIR was not for the same warrant as the one submitted to the IRB. The mere fact that the PRRA Officer noted that the charges on each document were different is a correct observation and is not a reviewable error. This statement should not be isolated from its context.
[12] PRRA Officer Neto did not give any probative value to the FIR, nor the warrant, for several reasons. The reasons are summarized in the following paragraph of the decision (p. 11):
Accordingly, considering that the claimant has already submitted a document considered fraudulent, that nothing allows us to invalidate the results obtained in the course of the verification carried out by the IRB, that the FIR submitted here could have been submitted for the purposes of the refugee claim, that the document is a photocopy of unsatisfactory quality and that it contains illegible seals, I do not give any probative value to the warrant submitted, to the FIR or to the lawyers' letters accompanying these documents.
[13] I do not find the reasoning of PRRA Officer Neto nor his description of the facts to be reviewable errors.
[14] The Applicant further points to this passage of the decision:
Moreover, the claimant explained that he did not have a FIR for the warrant submitted, because the police refused to give him a copy.
[15] The Applicant argues that he never stated that the police refused to give him a copy first FIR. This imprecision in the PRRA decision should not warrant the intervention of this Court, not only because it is not material (See Sukhu v. Canada(Minister of Citizenship and Immigration), 2005 FC 1662, [2005] F.C.J. No. 2036), but also because of the explanations given by the Applicant to justify his incapacity to obtain the documents. First, the following passage from the Applicant's story is relevant to understand why the PRRA Officer stated that the police refused to give the Applicant the first FIR (see p. 604 of the tribunal's file):
These risks also apply to me because police has a false political case registered against me. Police in Pakistan is very much corrupted. This is why they have not confirmed the FIR.
In addition, the Applicant's Pakistani lawyer Sarfaz Ahmed requested the first FIR in 2000 (see the lawyer's letter dated September 14, 2000, p. 461 of the tribunal's file), and described the response he received from the police in the following way:
I contacted police station Saddar to get information regarding cases registered against Ilyas but I could not get satisfactory answer from S.H.O.
[16] In my view, it was reasonable for the PRRA Officer to determine that the Applicant's lawyer was refused the first FIR when he requested it, given the above. It was also reasonable to find odd that the Applicant's second Pakistani lawyer easily obtained, in December 2003, the second FIR from the same police station. Furthermore, it was also understandable to find that this information is not necessarily new evidence as it is defined in Section 113 of the IRPA. Taking in consideration, as a whole, the reasons for rejecting the FIR and the warrant, I am of the opinion that this Court's intervention is not justified.
[17] Finally, the Applicant submits that PRRA Officer Neto was wrong in expressing reservations about the FIR submitted without having the documents assessed by an expert. In my view, a PRRA Officer is under no obligation to have the authenticity of documents assessed by an expert to reject documents and none of the observations he made were erroneous. It is also to be noted that the FIR and the warrant dated February 10, 2000 were reviewed by an expert and were found to be not genuine (See tribunal record, p. 639).
[18] The parties were invited to submit a question for certification but they declined to do so.
[19] For these reasons, the application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS THAT:
- The application for judicial review is dismissed and that no questions be certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2680-05
STYLE OF CAUSE: MOHAMMAD ILYAS CHOUDRY v. MCI
PLACE OF HEARING: MONTRÉAL QUÉBEC
DATE OF HEARING: FEBRUARY 22, 2006
REASONS FOR JUDGMENT : NOËL S. J.
APPEARANCES:
| Me MICHAEL DOREY
|
|
| Me DIANE LEMERY
|
SOLICITORS OF RECORD:
| Me MICHAEL DOREY MONTRÉAL QUÉBEC |
|
| JUSTICE CANADA MONTRÉAL QUÉBEC |