Date: 20070108
Docket: IMM-2801-06
Citation: 2007 FC 12
Ottawa, Ontario, January 8, 2007
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
SHREE KUMAR RAI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
Docket: IMM-2802-06
AND BETWEEN:
SHREE KUMAR RAI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1] The Applicant seeks judicial review of his negative Pre-Removal Risk Assessment (PRRA) decision dated April 25, 2006, (IMM-2801-06) and his negative humanitarian and compassionate (H&C) decision dated May 15, 2006, (IMM-2802-06). Both decisions were made by the same Immigration Officer.
2. Facts
[2] The Applicant was born on June 4, 1963, in Nepal and is a Nepalese citizen.
[3] He joined the All Nepal National Free Student Union in 1981. He alleges that, due to his involvement with this group, he was arrested and detained for three months in 1985.
[4] In 1991, the Applicant claims he joined the United People’s Front and was arrested during a demonstration in 1993. He was detained for 10 days during which time he was beaten and tortured. He claims that his friend, who was detained with him, died during the detention. He also claims that he was released only after his family paid a bribe to the police.
[5] The Applicant maintains that in 1995 he was again arrested by the police and accused of smuggling weapons into Nepal. He was tortured during his detention and upon his release was warned to cease all political activities. Again his release was secured after payment of a bribe.
[6] In February 1996, the Applicant claims that the police raided his house, and when they did not find him at home, arrested and detained his father instead, who subsequently died as a result of injuries sustained during his detention.
[7] The Applicant then moved to Katmandu in order to hide but his residence there was also raided by the police.
[8] After a two-day transit through Russia, the Applicant arrived in Canada on June 24, 1996, and claimed refugee protection on July 23, 1996.
[9] On March 29, 2000, an IRB decision excluded the Applicant from refugee protection on the basis of his membership in the UPF, which was found to be a political group involved in “terrorist activities”, in contravention of Article 1F(a) of the United Nations Convention Relating to the Status of Refugees (the 2000 decision). The Applicant sought judicial review of this decision.
[10] On July 12, 2001, the Federal Court allowed the Applicant’s application for judicial review of the 2000 decision and quashed the IRB’s decision after finding that the Tribunal erred in determining that mere membership in the UPF is sufficient to justify the application of Article 1F(a). The matter was returned for reconsideration before a differently constituted panel of the IRB with instructions to consider inclusion as well.
[11] On November 9, 2004, the IRB, upon reconsideration of the Applicant’s claim, decided the application on the basis of inclusion and rejected the Applicant’s claim for refugee protection because it found the Applicant not credible as to the incidents which would place him at risk, namely his membership in the UPF (the 2004 decision).
[12] On November 2, 2005, the Applicant submitted a Request for Exemption from Immigrant Visa Requirements on humanitarian and compassionate grounds (H&C). On March 24, 2006, the Applicant submitted a Pre-Removal Risk Assessment application (PRRA) and filed written submissions in support thereof on April 5, 2006. Both applications were rejected.
[13] The Applicant’s PRRA application was rejected on April 25, 2006, and on May 16, 2006, during an interview with an immigration officer, he was informed that his H&C application had been refused as well.
[14] On May 26, 2006, the Applicant filed two applications for leave and for judicial review seeking judicial review of both the PRRA and the H&C decisions. These are the applications dealt with in these reasons.
[15] On June 12, 2006, the Applicant was granted a stay of removal by the Federal Court pending final disposition of the underlying application for judicial review of the H&C decision.
3. Issues
[15] The following issues are raised by the Applicant:
A. Did the PRRA Officer err in assessing the risks to be faced by the Applicant should he be returned to Nepal?
B. Do the circumstances of this case give rise to a reasonable apprehension of bias on behalf of the PRRA Officer?
C. Did the PRRA Officer err by applying an inappropriate test in the H&C decision?
D. Did the PRRA Officer breach the principles of procedural fairness by consulting extrinsic sources of evidence on the country conditions in Nepal in assessing both the H&C and PRRA claims without first providing the Applicant an opportunity to respond?
4. Analysis
[16] The reasons below will be applicable to both decisions under review unless otherwise stated.
A. Did the PRRA Officer err in assessing the risks to be faced by the Applicant should he be returned to Nepal?
[17] The standard of review applicable for different aspects of a PRRA Officer was comprehensively examined in Kim v. Canada (Minister of Citizenship and Immigration, 2005 FC 437, [2005] F.C.J. No. 540 (QL). After conducting a pragmatic and functional analysis as mandated by the Supreme Court in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, Mr. Justice Richard Mosley concluded as follows at paragraph 19:
…I conclude that in the judicial review of PRRA decisions, 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….
[18] The jurisprudence of this Court has also established that credibility findings made by a PRRA Officer are reviewable on a standard of patent unreasonableness. See Tekie v. Canada (Minister of Citizenship and Immigration) 2005 FC 27. Further, Mr. Justice Martineau in Figurado v. Canada, 2005 FC 347, determined that the applicable standard of review when a PRRA Officer’s decision is considered “globally and as a whole” is reasonableness simpliciter.
[19] I am in agreement with the analysis and reasoning of my colleagues in the above-cited cases and, consequently, accept their conclusions in respect to the applicable standard of review.
[20] The first issue in this instance is more precisely framed as whether the PRRA Officer failed to have regard to materials before it, namely the credibility findings made by the IRB in its 2000 decision.
[21] The Applicant argues that the Officer reached an unreasonable conclusion on risk by accepting that the Applicant was not credible in respect to his claim of involvement as a member of the UPF as determined by the IRB in the 2004 decision. The Applicant argues that the Officer failed to consider the 2000 decision of the IRB wherein the IRB held that the Applicant had “intentionally, willingly, and knowingly participated in the UPF” an organization that it found lent itself to terrorist activities. As a result, in the 2000 decision, the IRB determined that the Applicant was excluded by operation of Article 1F(a) of the United Nations Convention Relating to the Status of Refugees.
[22] The Applicant does not take issue with the Officer’s consideration of the credibility findings of the IRB made in the 2004 decision. He alleges, however, that the Officer erred in failing to consider the contrary findings made by the IRB in the 2000 decision. I disagree. The Officer did not err in relying on the credibility findings of the IRB made in its last decision. The 2000 decision had been quashed by this Court with direction that the matter be returned to the IRB for reconsideration before a differently constituted panel. The Court also suggested that the issue of inclusion be specifically dealt with at the new hearing. As a result the Applicant’s claim was heard de novo. Since the first decision was quashed, the subsequent decision of the IRB is determinative of the Applicant’s refugee claim. In that decision, he was found not to be credible in respect to his association with the UPF. It was open to the Officer to consider the 2004 decision of the IRB regarding the Applicant’s credibility in making its decision. The Officer committed no reviewable error by failing to consider the IRB’s earlier credibility finding made in the 2000 decision, which had been quashed by this Court and is consequently a nullity.
B. Do the circumstances of this case give rise to a reasonable apprehension of bias on behalf of the PRRA Officer?
[23] This issue is raised only in respect to the H&C application. The first allegation regarding bias concerns the Minister. The Applicant argues that the Minister has taken contrary positions concerning the Applicant’s membership in the UPF. During the first hearing before the IRB the Minister adopted the position that the Applicant was a member of the UPF and should therefore be excluded from refugee protection. However, on April 25, 2006, the PRRA Officer, the Minister’s delegate concluded that the Applicant was not a member of the UPF. The Applicant argues that this finding was then “copied and pasted” into the Minister’s delegate’s determination of the H&C decision. The Applicant faults the Minister for failing to explain his change of position arguing that when the Minister adopts one position as a party before an independent tribunal and then through his delegate the PRRA Officer, concludes differently without explanation, as here, gives rise to a reasonable apprehension of bias.
[24] I am essentially in agreement with the Respondent’s argument on this point. The role of the Minister’s representative before the IRB and the PRRA Officer are distinct with different powers and obligations under the IRPA. In one case, the Minister’s representative acts as a party before the IRB whereas, in the other case, the PRRA Officer is a decision-maker whose role is to assess evidence and decide whether to grant or not grant protection to an applicant. The proceedings are different and it should come as no surprise that an independent decision-maker may come to a different conclusion than the position adopted by the Minister’s representative on any given point. The roles are simply not related, nor should they be. It follows that there is no obligation requiring the Minister to explain why his representative before the IRB adopted a different position on a question in issue, than the conclusion ultimately arrived at by a PRRA Officer in a pre-removal risk assessment. There is no merit to the Applicant’s argument. I am of the opinion that the above described circumstances do not raise a reasonable apprehension of bias.
[25] The Applicant also contends that a reasonable apprehension of bias is raised by reason of the following circumstances:
(1) the same PRRA Officer refused both the PRRA and H&C applications; and
(2) a substantially similar set of reasons was issued for both the PRRA and H&C decisions.
[26] In my view both arguments must fail. The issue of the same officer deciding both applications was dealt with by Justice Johanne Gauthier in Monemi v. Canada (Solicitor General), 2004 FC 1648. In her reasons for decision she wrote at paragraph 36:
The Court cannot agree that Parliament clearly intended that these applications would be decided by different decision-makers. In fact, sections 25(1) and 112 of IRPA state clearly that these applications would both be decided by the Minister. Thus, strictly speaking, IRPA provides that a decision will be made by the same decision-maker. Obviously, the Minister is entitled to delegate his authority to make such decisions and it was not disputed that the PRRA officer had the appropriate delegated authority to review both applications.
[27] For such a claim to succeed there must be proof of bias. See Haddad v. Canada (Minister of Citizenship and Immigration), 2003 FCT 405, [2003] F.C.J. No. 579 (QL), where Justice Paul Rouleau wrote at paragraphs 7 and 8:
The applicant argues that there is an apprehension of bias because the same officer processed the request for a visa exemption for humanitarian considerations and the PRRA application.
This argument cannot be advanced without proof. Moreover, this Court has held that a decision-maker who assesses risks twice in a particular case does not by this fact alone demonstrate bias….
I agree with the learned judge’s analysis. There is no proof of bias in respect of the PRRA Officer in the instant case.
[28] The Applicant advances as a further allegation of bias that a substantially similar set of reasons was issued for the refusal of the PRRA as for the refusal of the H&C application. On this question I agree with the position expressed by Justice Gauther in Monemi. At paragraphs 40 and 41 she wrote:
Obviously, there will be cases where the two applications will involve a similar if not identical factual or evidentiary basis….
In the absence of specific evidence of bias or conflict of interest, this single evaluation of the factual issues and the evidence does not raise a reasonable apprehension of bias.
[29] I agree that both the PRRA and the H&C decisions read similarly insofar as the analysis of the risk to the Applicant is concerned. However, the H&C decision also includes consideration of further evidence, such as letters, a clinical report and evidence in respect to the Applicant’s connection to Canada. These factors were not examined in the PRRA decision. From this perspective, the decisions are different.
[30] I find that the Applicant has not established that there is a reasonable apprehension of bias either because the same officer refused both decisions or because the reasons read similarly in respect of risks faced by the Applicant. The Applicant produced no evidence of bias or conflict of interest in respect of the PRRA Officer to support his arguments.
C. Did the PRRA Officer err by applying an inappropriate test in the H&C decision?
[31] The application of the proper legal test by a PRRA Officer is a question of law, and the application of that test to a specific set of facts is a question of mixed fact and law. The Supreme Court in Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, found that under section 18.1 of the Federal Courts Act questions of law are reviewable on a standard of correctness.
[32] In respect to the discretionary H&C decision of an immigration officer, Madam Justice Claire l’Heureux-Dubé in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 62, after conducting a pragmatic and functional analysis, determined that the standard of review for an H&C decision of a ministerial delegate is reasonableness simpliciter:
I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.
[33] I adopt the reasoning and conclusions in the above-cited jurisprudence in respect to the applicable standard of review and find that the applicable standard here with respect to the choice of the appropriate legal test in an H&C application is correctness, and the standard of review for the decision of a ministerial delegate with respect to an H&C decision is reasonableness simpliciter.
[34] The applicant submits that the tests for the PRRA and the H&C application are different. An officer determining a PRRA must ask whether the applicant has established that he or she would face a personalized risk to his or her life or physical well-being, while an officer assessing an H&C application must determine whether the applicant would face an unusual, undeserved or disproportionate hardship if removed to his or her country of origin. The Applicant also submits that the threshold for an H&C application is lower than that for the PRRA, and that more discretion is afforded the officer in the former application. The Applicant argues that the Officer was both unable to keep an open mind with respect to the H&C application, because he also decided the PRRA application, and unable to appreciate the distinction between the different tests to be applied. As a consequence, the Applicant argues that the PRRA Officer applied the wrong legal test in deciding the H&C application.
[35] The PRRA Officer in his reasons, referred extensively to the 2004 decision, and accepted the evidentiary conclusions of that decision, namely that the Applicant was not credible. It is generally accepted that the PRRA Officer may be guided by the findings of the IRB because the IRB has the benefit of an oral hearing, and is thus better placed than the Officer to assess credibility. Here the Officer also considered, in his H&C analysis, other evidence that was not considered in the PRRA. In particular, he found that letters from the Applicant’s wife and a friend were insufficient to support the Applicant’s allegations. The conclusion in the clinical report was found by the Officer to be based on the Applicant’s declarations to the author. The Officer therefore ascribed little weight thereto. The other documents were found to be too general to support the personal risks the Applicant invokes. In assessing the Applicant’s establishment in Canada and his personal situation abroad, the PRRA Officer considered the following factors, namely: his age and status, his employment history here and in Nepal, his familial connections in Nepal, and letters from an employer and business partners.
[36] The Applicant’s evidence of risk was not found credible by the IRB, and this position was adopted by the PRRA Officer, which he was entitled to do. Other evidence submitted was found not to corroborate the Applicant’s alleged personal risks. The Officer concluded “…that the Applicant’s circumstances are not of such a nature that he would face unusual, under served, or disproportionate hardship if required to submit his permanent residence application from outside Canada.” In so doing, the Officer articulated the proper test to be applied in assessing the Applicant’s H&C application.
[37] Considering the Officer’s H&C decision and the reasons in support thereof, I find that the Officer applied the appropriate test and committed no reviewable error in assessing the H&C application. I also find that the Officer’s conclusion on the H&C application was reasonably open to him on the evidence.
D. Did the PRRA Officer breach the principles of procedural fairness by consulting extrinsic sources of evidence on the country conditions in Nepal in assessing both the H&C and PRRA claims without first providing the Applicant an opportunity to respond?
[38] This issue arises in the context of the H&C application. The Applicant submits that the PRRA Officer consulted two Internet news articles, namely BBC news reports from April 2006 which reported positive events that occurred in Nepal on April 24 and 25, 2006, events which were referred to by the Officer. In his reasons the PRRA Officer observed, “Fortunately, on 24 April 2006, in a bid to stabilize the country, the king restored parliament and invited opposition parties to designate a prime minister, which they did on 25 April 2006.” The reports are dated after the Applicant’s latest submissions on his PRRA application which were filed with the Officer on April 5, 2006. The reports were not disclosed to the claimant, nor was he given an opportunity to respond. The Applicant argues that this failure to disclose constitutes a violation of his right to procedural fairness.
[39] The Respondent counters that the sources provide only general country information, and that these were not included in the core of the decision, which was based on the applicant being found not credible by the IRB and the failure of the Applicant to produce any further evidence to refute this finding.
[40] The test is provided in Mancia v. Canada (Minister of Citizenship and Immigration) (C.A.), [1998] 3 F.C. 461, where Justice Robert Décary, writing for a unanimous court, summarizes his findings as follows in paragraph 27:
(a) with respect to documents relied upon from public sources in relation to general country conditions which were available and accessible at Documentation Centres at the time submissions were made by an applicant, fairness does not require the post claims determination officer to disclose them in advance of determining the matter;
(b) with respect to documents relied upon from public sources in relation to general country conditions which became available and accessible after the filing of an applicant's submissions, fairness requires disclosure by the post claims determination officer where they are novel and significant and where they evidence changes in the general country conditions that may affect the decision.
[41] The second part of the test in Mancia finds application here. The public source documents must be disclosed where they are novel and significant and where they evidence changes in the general country conditions that may affect the decision. I agree that the documents in question are novel, in that they are dated after the submissions by the Applicant to the PRRA Officer. While the reports relate circumstances in respect to the internal stability of Nepal they do not, in my view, evidence changes in country conditions that may affect the decision. Given the PRRA Officer’s earlier findings that the Applicant was not politically active in Nepal and not credible in respect to his association with the UPF, which I determined to be reasonably open to the Officer, I am of the opinion that his observations regarding the impugned evidence are gratuitous and not material to the outcome of the decision. While it would have been preferable for the PRRA Officer to disclose these reports to the Applicant before rendering his decision, in my opinion, the changes in country conditions evidenced in the public source documents not disclosed to the Applicant, would not affect the decision. I am satisfied that the failure to disclose the extrinsic reports, in the circumstances, does not lead to a breach of the Applicant’s right to procedural fairness.
5. Conclusion
[42] The PRRA Officer committed no reviewable error in rendering the PRAA and the H&C decisions. For the above reasons both applications for judicial review will be dismissed.
[43] The parties have had the opportunity to raise a serious question of general importance as contemplated by paragraph 74(d) of the IRPA and have not done so. I am satisfied that no serious question of general importance arises on this record. I do not propose to certify a question.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review of the Pre-Removal Risk Assessment Officer dated April 25, 2006, is dismissed.
2. The application for judicial review of the Pre-Removal Risk Assessment Officer dated May 15, 2006, is dismissed.
3. No serious question of general importance is certified.
“Edmond P. Blanchard”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2801-06 and IMM-2802-06
STYLE OF CAUSE: Shree Kumar Rai v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 15, 2006
REASONS FOR ORDER AND ORDER: Blanchard J.
APPEARANCES:
Mr. William Sloan FOR THE APPLICANT
Mr. Zoé Richard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. William Sloan FOR THE APPLICANT
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec