Toronto, Ontario, June 15, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
and
EMERGENCY PREPAREDNESS
REASONS FOR JUDGMENT AND JUDGMENT
[1] Remesh Kura Lal Chir seeks to judicially review a Pre-removal Risk Assessment, which concluded that adequate state protection was available to him in the Philippines, and that he also had a viable internal flight alternative outside of Manila.
[2] Mr. Lal Chir submits that he was denied procedural fairness in the risk assessment process, as the PRRA officer refused to disclose which documents were being relied upon in the assessment. Moreover, Mr. Lal Chir says that the Officer erred in his analysis of the state protection and internal flight alternative issues.
[3] For the reasons that follow, I am satisfied that the Officer did not commit any reviewable errors, and that, as a result, the application must be dismissed.
Background
[4] Mr. Lal Chir is a citizen of the Philippines, who came to Canada as a visitor in 1997. Since then, he has been fighting a valiant battle to stay in this country.
[5] After a conditional departure order was issued in 1998, Mr. Lal Chir unsuccessfully sought refugee protection. He applied for judicial review of that decision, but was denied leave. He also received a negative Post-Determination Refugee Claimants in Canada Class ("PDRCC") decision in 2000, and did not seek judicial review of that decision.
[6] Meanwhile, in 1999, Mr. Lal Chir applied for permanent residence in Canada on humanitarian and compassionate grounds, on the basis of the risk to his life he claims that he would face should he return to the Philippines. Mr. Lal Chir says that he was a money-lender in Manila, asserting that he feared his competitors, who had been making threats on his life.
[7] As part of that H & C application, the issue of risk was referred to a risk assessment officer for assessment.
[8] In the meantime, Mr. Lal Chir also applied for a PRRA, asserting the same fear of his competitors in the money-lending business in Manila.
[9] It appears that a single assessment was carried out, which was intended to serve as both the risk assessment component of the H & C decision and as the PRRA decision. This risk assessment found that Mr. Lal Chir would not be at risk if he were removed to the Philippines, as adequate state protection was available to him in that country. The PRRA officer also found that Mr. Lal Chir had viable internal flight alternatives outside of Manila.
[10] Mr. Lal Chir's H & C application was rejected in April of 2003. He sought leave to judicially review this decision, but leave was denied.
[11] The decision regarding his PRRA application was served on Mr. Lal Chir on April 13, 2005, along with a direction to report for removal on May 21, 2005. Mr. Lal Chir's removal was subsequently stayed, by order of Justice O'Keefe. It is the negative PRRA decision that forms the subject matter of this application.
Standard of Review
[12] In Kim v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 540, 2005 FC 437, Justice Mosley had occasion to consider the appropriate standard of review to be applied to the decision of a PRRA officer. After conducting a pragmatic and functional analysis, he concluded that "the appropriate standard of review for questions of fact should generally be patent unreasonableness, for questions of mixed law and fact, reasonableness simpliciter, and for questions of law, correctness". (at ¶ 9)
[13] Justice Mosley also endorsed Justice Martineau's conclusion in Figurado v. Canada(Solicitor General), [2005] F.C.J. No. 458, 2005 FC 347, that the appropriate standard of review for the decision of a PRRA officer is reasonableness simpliciter when the decision is considered "globally and as a whole". (at ¶ 51)
[14] I agree with Justice Mosley's conclusions, and adopt his analysis as my own.
Was There a Denial of Procedural Fairness?
[15] Counsel for Mr. Lal Chir asserts that he was denied procedural fairness in the handling of his PRRA application, as the Officer refused to disclose which documents were being relied upon in the assessment, despite repeated requests that he do so.
[16] It is unnecessary to go through a standard of review analysis in relation to a question of procedural fairness - it is for the Court to determine whether the procedure that was followed in a given case was fair or not, having regard to all of the relevant circumstances: Sketchley v. Canada (Attorney General), [2005] F.C.J. No. 2056, 2005 FCA 404, at ¶ 52-53.
[17] Counsel's submissions in relation to the procedural fairness issue initially focussed on the alleged refusal of the PRRA officer to advise him which documents and websites had been examined in the course of the risk assessment. Although the final version of the risk assessment lists the websites relied upon, counsel insisted that the page with the source references was not attached to the draft report.
[18] Counsel subsequently withdrew this argument, with apologies to the Court, when the copy of the draft report, which had been included in the affidavit filed by counsel in support of Mr. Lal Chir's motion for a stay, was produced. The draft decision included a list of the website references.
[19] Counsel for Mr. Lal Chir then argued that it was unclear whether the PRRA officer had documents relating to the ongoing threats faced by Mr. Lal Chir's family in the Philippines before him when he conducted the risk assessment.
[20] A review of the Certified Tribunal Record discloses that the documents in question were indeed before the PRRA officer when he carried out his risk assessment. Moreover, the PRRA decision itself makes specific reference to the threats made after Mr. Lal Chir left the Philippines. As a consequence, I am not persuaded that there was any breach of procedural fairness here.
[21] Before moving on to consider the next issue, it should also be noted that, unlike a risk assessment carried out in the context of an H & C application, there is no obligation on a PRRA officer to disclose a draft PRRA decision to an applicant for comment prior to the decision being finalized: Rasiah v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 711, 2005 FC 583, at ¶ 19.
[22] To the extent that there is such a duty in the H & C context, it should be noted, firstly, that the H & C is not under review here, and secondly, that leave to judicially review the H & C decision has already been denied by this Court.
The State Protection Issue
[23] Counsel for Mr. Lal Chir also contends that the PRRA officer erred in his assessment of the state protection issue by applying the wrong test. I do not agree.
[24] After quoting from the Federal Court of Appeal decision in Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189, 99 D.L.R. (4th) 334, to the effect that a state cannot be expected to guarantee the protection of its citizens at all times, the Officer goes on to state that the evidence before him did not indicate that the Philippines were in such a state of lawlessness that state protection was not available to its citizens.
[25] This analysis is consistent with the teachings of the Supreme Court of Canada in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, where the Court stated that, except in circumstances of complete breakdown of the state apparatus, there will be a presumption that the state is capable of protecting the claimant.
[26] Although the PRRA officer used his own words to describe his understanding of the test for state protection, I am satisfied that when the decision is read fairly, in its entirety, that the Officer properly understood and applied the correct test, and that the Officer's decision was reasonable.
The Internal Flight Alternative Issue
[27] Counsel for Mr. Lal Chir contends that the PRRA Officer erred in failing to specifically identify any potential internal flight alternative, and to provide him with an opportunity to address it. Given that the Officer's conclusions on the state protection issue are determinative of this case, it is unnecessary to address this issue.
Conclusion
[28] For these reasons, the application for judicial review is dismissed.
Certification
[29] Counsel for Mr. Lal Chir proposed a question for certification relating to the internal flight alternative issue. Given that the Board's finding in relation to the issue of state protection is determinative of this application, it is not appropriate to certify the question.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This application for judicial review is dismissed; and
2. No serious question of general importance is certified.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2592-05
STYLE OF CAUSE: REMESH KURA LAL CHIR v.
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 13, 2006
REASONS FOR JUDGMENT
AND JUDGMENT BY: MACTAVISH J.
APPEARANCES BY:
Mr. Osborne G. Barnwell FOR THE APPLICANT
Ms. Catherine Vasilaros FOR THE RESPONDENT
SOLICITORS OF RECORD:
Osborne G. Barnwell
Barrister and Solicitor
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT