Halifax, Nova Scotia, October 16, 2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
and
THE MINISTER OF CITIZENSHIP 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 an immigration officer, dated October 19, 2005, rejecting the applicant’s Pre-Removal Risk Assessment (PRRA) application.
[2] The applicant seeks an order of certiorari quashing the immigration officer’s decision.
Background
[3] The applicant, a national of Tanzania, entered Canada on a visitor visa in November 2002. She claimed refugee status in June 2003, alleging that she is in danger in Tanzania from her estranged husband’s family clan which practices witchcraft, including ritualistic killings of relatives, particularly those who are educated and wealthy.
[4] A refugee protection hearing for the applicant’s claim was set for August 6, 2004. Her son’s refugee claim was scheduled to be heard at the same time. The applicant attended the hearing on August 6, 2004 without her son. At the hearing, the applicant explained that her son was not feeling well and that she wished to proceed with her son as her representative.
[5] Abandonment proceedings were commenced and a show cause hearing was set for August 17, 2004. The applicant was instructed that she was to appear at that hearing along with her son. On August 17, 2004, only the applicant’s son appeared. He indicated that he was not prepared for his hearing at the time of the first sitting. He also stated that his mother was aware of the hearing but he could not explain why she did not appear.
[6] The Refugee Protection Division of the Immigration and Refugee Board (the Board) found that the applicant and her son were in default of proceedings, and their actions in stalling for time were an abuse of process. The Board held that the claims of the applicant and her son were abandoned as of October 6, 2004.
[7] The applicant then submitted a PRRA application. She asked for her story to be reconsidered in light of the fact that her son was ill and confused at the time of the show cause hearing and thus said things that were not true. On October 19, 2005, an immigration officer rendered a negative PRRA decision as the applicant was determined not to be at risk in her country of nationality. This is the judicial review of that decision.
Reasons for the PRRA Officer’s Decision
[8] The PRRA officer stated that it was her understanding that a deemed abandonment of a claim was the same as rejecting a claim under section 107 of IRPA. Based on this, the officer stated that it is reasonable under the circumstances to expect that the evidence now presented should have been presented to the Board prior to its rejection of the claim. The PRRA officer found that there was an absence of sufficient new evidence to demonstrate a risk resulting from changing country conditions or personal circumstances since the Board’s decision.
[9] The PRRA officer found, in the alternative, that if her understanding of a rejection of a claim was incorrect, she did give full consideration to the applicant’s narrative and supporting documents. The officer accepted that there is a widespread belief in witchcraft throughout Tanzania, which in some instances has led to killings of suspected witches by those claiming to be their victims or aggrieved relatives of victims. The officer, however, was of the view that the family members who allegedly seek to harm the applicant do so in a search for wealth, and not because of her race, religion, nationality, political opinion or her membership in a particular social group. The officer determined that the harm feared is criminal in nature, and has no nexus to the Convention refugee definition. Therefore, the applicant had not established a serious possibility of persecution within the meaning of section 96 of IRPA.
[10] The PRRA officer found that, concerning the applicant’s allegation of a risk of harm under section 97 of IRPA, the applicant’s actions and her evidence and internal inconsistencies within the narrative did not support her claim. The officer noted specifically:
1. The applicant entered Canada in November 2002 but did not apply for protection until July 2003;
2. The evidence presented made no mention of the applicant or her family, and the applicant made no reference to the evidence in her narrative;
3. The preponderance of evidence indicated that persons accused of practicing witchcraft are at risk to their lives and on balance, the evidence did not support that there is ritualistic sacrificing of the educated and the wealthy;
4. The applicant believed her children were at risk from her husband’s family as early as 1979, however, she sent her daughter for schooling in the traditional family area because they thought it would be good for her;
5. The applicant’s sister-in-law told the applicant she had come to the applicant’s home to kill her husband, and yet the applicant subsequently let the sister-in-law remain in the home for two days until her husband returned home;
6. The applicant stated at paragraph 31 of the narrative that her son Emmanuel has disappeared and has not been seen since July 2003, but she later stated in paragraph 33 of the narrative that he resides in Kenya; and
7. The applicant stated that the police will not protect her because they are corrupt, but she has approached them in the past, and the documents show that practicing witchcraft is considered a criminal offence and the police have been involved in investigating witchcraft related killings.
[11] Further, the PRRA officer stated that the applicant has failed to show that Tanzania is a state in total breakdown and has not provided clear and convincing proof to rebut the presumption of the state’s ability to provide protection against the alleged actions of her husband’s family.
Issues
[12] The applicant submitted the following issues for consideration in her memorandum:
1. Does a “rejection” of a claim within the meaning of section 113 of IRPA include abandonment and withdrawal of a claim?
2. Is the content of the duty of fairness owed by the PRRA officer to the applicant heightened once the Board breaches the duty of fairness owed to the applicant?
3. Does a person who has a well-founded fear of persecution by reason of membership in a sub-group of a social group have a well-founded fear of persecution by reason of membership in a social group?
4. Do the findings of the officer on the extended grounds of protection manifest reviewable error?
A fifth issue was submitted, but this was relevant only to the leave application.
[13] I would rephrase the issues as follows:
1. Did the PRRA officer err in determining that rejection of a claim is the same as an abandonment of a claim for the purposes of section 113 of IRPA?
2. Did the PRRA officer breach the duty of procedural fairness?
3. Did the Board err in finding that the applicant’s fear of persecution has no nexus to the Convention refugee definition?
Applicant’s Submissions
[14] The applicant submitted that the PRRA officer made an error of law in considering only evidence which arose since the abandonment decision. The applicant submitted that IRPA distinguishes between rejection and abandonment of claims to refugee protection. A person who has abandoned a claim has not had his or her claim rejected and hence, he or she is not restricted to submitting only new evidence under section 113 of IRPA.
[15] The applicant submitted that the Board violated the duty of fairness by declaring her refugee protection claim to be abandoned at a hearing where she was not present as a result of not having adequate notice. It was further submitted that the PRRA officer breached the duty of fairness in rejecting the PRRA application without any regard to the inadequacy of the notice of the abandonment hearing or the misunderstanding that the improper notice generated. It was submitted that the content of the duty of fairness owed by a second tribunal (i.e. the PRRA officer) is heightened once a first tribunal (i.e. the Board) breaches the duty of fairness and the second tribunal is in a position to cure that defect.
[16] The applicant submitted that the officer’s determination in the alternative is also flawed. It was submitted that the officer erred in rejecting the concept that educated, wealthy family members can be considered a particular social group for the purposes of the Convention refugee definition. It was submitted that the applicant should have been considered as a member of a particular social group, namely, educated and perceived wealthy family members of a family clan that practices witchcraft.
[17] The applicant submitted that a PRRA officer is not entitled to question the credibility of a claim without conducting a hearing. In this case, there was no hearing, and yet the PRRA officer questioned the applicant’s credibility.
[18] The applicant submitted that there was evidence before the PRRA officer that there is pervasive police corruption in Tanzania, which contradicts the officer’s finding that there is adequate state protection. It was submitted that the officer erred in not referring to this evidence, which supported the statements of the applicant.
Respondent’s Submissions
[19] The respondent submitted that any error that the PRRA officer may have made in her understanding of a rejection of a claim is immaterial, in the sense that it has no effect on the outcome of the determination, because the officer proceeded to analyse the evidence of the applicant. The officer stated, “In the alternative, given the possibility that my understanding of A107 is in error, I did give full consideration to the applicant’s narrative and supporting documents”. The officer made specific reference to objective country condition evidence and items that were provided by the applicant, as well as the applicant’s narrative. The respondent submitted that the officer’s demonstrated analysis of the evidence immunizes the decision from the applicant’s argument that the officer erred by not looking at the evidence.
[20] The respondent submitted that any alleged breach of duty of fairness by the Board cannot be remedied by the PRRA process. The PRRA process is not an appeal from or review of the Board’s decision (see Kaur v. Canada (Minister of Citizenship and Immigration), 2004 FC 1612 at paragraph 17). Thus, the applicant’s allegation that she was deprived of fairness before the Board is not something that the PRRA officer would have been expected to consider.
[21] The respondent submitted that the officer’s finding on adequate state protection is determinative (see Muszynski v. Canada (Minister of Citizenship and Immigration), 2005 FC 1075). It was submitted that this finding renders academic any discussion as to whether the applicant’s allegations establish a nexus with the Convention refugee definition within the parameters of a “particular social group”. The respondent submitted that the officer’s findings that the applicant would not face persecution or risk if returned, and that adequate state protection exists, were based on the evidentiary record, and were therefore sufficient for the PRRA officer to dispose of the applicant’s PRRA application.
Analysis and Decision
[22] Standard of Review
The immigration officer’s decision on a PRRA application, considered globally and as a whole, is reviewable on a standard of reasonableness simpliciter. Particular findings of fact, however, are reviewable on a standard of patent unreasonableness.
[23] Issue 1
Did the PRRA officer err in determining that rejection of a claim is the same as an abandonment of a claim for the purposes of section 113 of IRPA?
If an applicant’s refugee protection claim has been previously rejected, the applicant may submit only new evidence for consideration on a PRRA application.
[24] The Board decided that the applicant and her son were in default of proceedings and had abandoned their claims. The PRRA officer was of the view that an abandonment of a claim is the equivalent of a rejection of a claim for the purposes of section 113. Thus, the officer stated that the applicant’s evidence should have been presented to the Board for consideration prior to its rejection of the claim.
[25] I agree with the applicant that the officer incorrectly equated an abandonment of a claim to a rejection of a claim. An abandonment of a claim means that the applicant is in default of proceedings (see subsection 168(1) of IRPA). A rejection of a claim means a refusal of a claim on the merits (see subsection 107(1) of IRPA). In this case, since the applicant’s claim was abandoned, not rejected, the PRRA officer was not limited to considering new evidence.
[26] Nevertheless, the error that was made by the PRRA officer in this regard is not material. The PRRA officer went on to find, in the alternative, that if she were incorrect in her understanding of a rejection of a claim, she would consider the applicant’s narrative and supporting documents. The officer then proceeded to assess the applicant’s evidence. I am therefore not persuaded that this application for judicial review should be allowed on the ground that the PRRA officer confused a rejection of a claim with an abandonment of a claim.
[27] Issue 2
Did the PRRA officer breach the duty of procedural fairness?
In her PRRA submissions, the applicant explained that she did not attend the abandonment hearing because she did not know that she was required to attend. She thought that only her son was required to attend. She submitted that the PRRA officer breached the duty of procedural fairness in not having regard to the inadequate notice she received of the abandonment hearing.
[28] In my opinion, this argument cannot succeed. The purpose of a PRRA is not to appeal or review an abandonment decision. The PRRA is an assessment based on new facts or evidence to determine whether the applicant is now at risk of persecution, or subject to a risk to life or risk of cruel and unusual treatment or punishment in their country of nationality (see Kaur v. Canada (Minister of Citizenship and Immigration), 2004 FC 1612 at paragraph 17). The PRRA officer is not required to consider submissions that challenge an abandonment decision. If the applicant felt that she did not have adequate notice of the show cause hearing, the proper venue to address those concerns is in a judicial review of the abandonment hearing, not on a PRRA application. The PRRA officer noted in her decision that there is no indication that the applicant or her son sought judicial review of the Board’s abandonment decision.
[29] Issue 3
Did the Board err in finding that the applicant’s fear of persecution has no nexus to the Convention refugee definition?
In her decision, the PRRA officer stated at page 6 of the tribunal record:
That being said, after reviewing the applicant’s narrative, it is my opinion that those family members who allegedly seek to harm the applicant and her family wish to do so in a search for wealth, not because of the applicant’s race, religion, nationality, political opinion or her membership in a particular social group. In the circumstances described by the applicant (paras. 1, 5, 6 and 23 of her narrative), I believe the claimed threats and attempts at harming her or her family members to be criminal in nature and not a matter of persecution, which leads me to conclude that the harm feared has no nexus to the Convention refugee definition.
[30] The applicant contended that the officer’s reasoning is in error. The applicant’s narrative related that she is at risk from members of her husband’s family clan who practice witchcraft and who have performed ritualistic killings of family members, particularly educated family members. The applicant fears that she will be a victim in one of their ritualistic killings. The applicant submitted that for the purposes of the Convention refugee definition, she should have been considered as a member of a particular social group, namely, educated and perceived wealthy family members of a family clan that practices witchcraft.
[31] The applicant stated at paragraphs 5 to 8 of her PIF narrative:
The region of Mbeya, where our families live, is well known for its practices of witchcraft, sorcery and human sacrifice. I am not sure why this is, perhaps because we are near the border. My own parents were educated by missionaries and, as a result are Christian and do not participate in such sorcery. I am also Christian but to us witchcraft and sorcery are a very real and evil power. I believe that true Christianity is protection from the witchcraft. I discovered, that in my husband’s family the belief in witchcraft and sorcery has been quite common, even when the late Mr. Lebi Mwakatobe [the applicant’s husband’s father] was still alive. During his life, however, it was not as rampant as after he passed away (in the 1960s). A desire for wealth, power and fame have led people from my husband’s clan to become involved in killing people for wealth and power.
… The belief is that the educated and the rich are better sacrificed. I suspect that getting such people is meant to please their master. It is a ritual thing.
After we returned to Tanzania I became aware of the strange disappearances and deaths of family members in my husband’s clan. …
In 1976, Charles, the grandson of Mr. Lebi Mwakatobe, was also a form six student when he disappeared. He was also found dead in his mother’s home. Talk by the villagers indicated that his own mother, Tamari Mwakyoma had killed him and had sold his body parts to become rich. The villagers openly accused her of sacrificing her own son. They said that Charles had pleaded with his mother to spare his life. I believe that this is part of the practice of a secret cult of some kind. I cannot explain how it happened, but after Charles’ death, Tamari came into a lot of money and built a tourist hotel of fifty rooms in Mbeya town and bought many tour buses (about 4 or 6). Charles had been very intelligent and had been waiting to enter university which is why many believe that he had been killed – for the power that this would bring to the spirit of the killer. After Tamari became rich people were more convinced that she had sacrificed her son.
[32] A review of the reasons shows that the PRRA officer was of the view that the in-laws’ desire to kill the applicant was motivated by the pursuit of wealth. This was supported by the applicant’s documentary evidence which indicated that human body parts from Tanzania are sold in the black market for a huge profit. This was also supported by the applicant’s narrative, which suggested that a family member had been killed for a profit (presumably, by sale of his body parts).
[33] The PRRA officer found that there were credibility problems with the applicant’s evidence, and concluded that the applicant was not at risk of harm because of her in-laws’ alleged belief in ritualistic killing. The PRRA officer made these credibility findings in the context of section 97 of IRPA, but these could also apply to section 96 of IRPA, as the account of her in-laws’ activities was relevant to both sections of the Act. I would note that the PRRA officer did accept that there is a widespread belief in witchcraft in Tanzania, however, the documentary evidence referred primarily to killings of those suspected of practicing witchcraft, particularly, elderly women. The evidence submitted by the applicant did not refer to ritualistic killings of family members by those who practice witchcraft.
[34] The officer found that the harm feared by the applicant was purely criminal in nature and was not a matter of persecution. In light of the evidence before the officer, I am of the view that this was not an unreasonable determination for the officer to make. Given this determination, it was not necessary for the officer to decide whether educated, perceived wealthy members of a family clan that practices witchcraft may be considered a particular social group under section 96 of IRPA.
[35] Because of this finding, I need not deal with the state protection issue.
[36] The application for judicial review is therefore dismissed.
[37] The applicant proposed the following questions for consideration for certification as serious questions of general importance:
1. Does “rejection” in section 113 of the Immigration and Refugee Protection Act include abandonment and withdrawal?
2. Does a person who has a well-founded fear of persecution by reason of membership in a sub-group of a social group have a well-founded fear of persecution by reason of membership in a social group?
[38] Subsection 74(d) of IRPA states that only serious questions of general importance can be certified. In Chu v. Canada (Minister of Citizenship and Immigration) (1996), 116 F.T.R. 68 (F.C.T.D.), Associate Chief Justice Jerome stated the following at paragraph 2 concerning the certification of questions:
Section 83(1) of the Immigration Act requires that only “serious questions of general importance” be certified. Similar language was interpreted in the Ontario High Court of Justice in Rankin v. McLeod, Young, Weir Ltd. (1986), 57 O.R. (2d) 569 Catzman, J., found that rule 62.02(5)(b) of the Ontario Rules of Civil Procedure “contemplates issues of broad significance or general application that are felt to warrant resolution by a higher level of judicial authority” (supra at p. 575). The Federal Court of Appeal has relied on that reasoning and has added that the issue to be certified must also be determinative of the appeal (Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.)).
[39] The same would apply to “serious questions of general importance” under subsection 74(d) of IRPA. I am of the view that the questions proposed for certification in this case should not be certified as serious questions of general importance as they would not be determinative of the appeal.
JUDGMENT
[40] IT IS ORDERED that the application for judicial review is dismissed.
ANNEX
Relevant Legislation
The relevant provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 concerning a rejection and an abandonment of a claim are set out below.
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107. (1) The Refugee Protection Division shall accept a claim for refugee protection if it determines that the claimant is a Convention refugee or person in need of protection, and shall otherwise reject the claim.
168. (1) A Division may determine that a proceeding before it has been abandoned if the Division is of the opinion that the applicant is in default in the proceedings, including by failing to appear for a hearing, to provide information required by the Division or to communicate with the Division on being requested to do so.
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107. (1) La Section de la protection des réfugiés accepte ou rejette la demande d’asile selon que le demandeur a ou non la qualité de réfugié ou de personne à protéger.
168. (1) Chacune des sections peut prononcer le désistement dans l’affaire dont elle est saisie si elle estime que l’intéressé omet de poursuivre l’affaire, notamment par défaut de comparution, de fournir les renseignements qu’elle peut requérir ou de donner suite à ses demandes de communication.
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The relevant provisions of the Act governing an application for protection (a PRRA application) are set out below.
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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.
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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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Consideration of an application for protection is made on the basis of sections 96 to 98.
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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.
98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.
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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.
98. La personne visée aux sections E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.
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Subsection 74(d) is relevant to the certification of a question.
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74. Judicial review is subject to the following provisions:
(a) the judge who grants leave shall fix the day and place for the hearing of the application;
(b) the hearing shall be no sooner than 30 days and no later than 90 days after leave was granted, unless the parties agree to an earlier day;
(c) the judge shall dispose of the application without delay and in a summary way; and
(d) an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question.
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74. Les règles suivantes s’appliquent à la demande de contrôle judiciaire:
a) le juge qui accueille la demande d’autorisation fixe les date et lieu d’audition de la demande;
b) l’audition ne peut être tenue à moins de trente jours — sauf consentement des parties — ni à plus de quatre-vingt-dix jours de la date à laquelle la demande d’autorisation est accueillie;
c) le juge statue à bref délai et selon la procédure sommaire;
d) le jugement consécutif au contrôle judiciaire n’est susceptible d’appel en Cour d’appel fédérale que si le juge certifie que l’affaire soulève une question grave de portée générale et énonce celle-ci.
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