Ottawa, Ontario, the 17th day of November 2006
Present: The Honourable Mr. Justice Simon Noël
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of a pre-removal risk assessment (PRRA) officer dated September 20, 2005, rejecting the application for a PRRA by Felicien Ngankoy Isomi (applicant).
I. Facts
[2] The applicant is Congolese. He claimed refugee protection in 1999, shortly after his arrival in Canada.
[3] On July 14, 2004, the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada determined that the applicant must be excluded from Canada under section 98 of the IRPA because he is a person described in subparagraphs 1(F)(a) and 1(F)(c) of the United Nations Convention Relating to the Status of Refugees (Convention), in Schedule 1 of the IRPA, because he had worked as an officer of the Agence nationale de renseignements (ANR) [national intelligence agency] in the Democratic Republic of the Congo (DRC). At one time, he held the position of a deputy inspector with the counterintelligence service of the domestic security branch of the DRC.
[4] On September 14, 2004, the Federal Court dismissed the applicant’s application for leave to commence an application for judicial review of the RPD’s decision, because he had not filed his record.
[5] On September 20, 2005, the PRRA officer determined that the applicant had not shown he would face a danger of torture, a risk to his life or a risk of cruel and unusual treatment or punishment and therefore could not be recognized as a person in need of protection within the meaning of section 97 of the IRPA. This decision is the subject of the present application for judicial review.
II. Issues
(1) Should the Court accept the applicant’s new evidence, which was not submitted to the PRRA officer?
(2) What is the standard of review applicable to decisions of PRRA officers?
(3) Did the PRRA officer err in endorsing the conclusion reached by the RPD, according to which the applicant was excluded from Canada pursuant to subparagraphs 1(F)(a) and 1(F)(c) of the Convention?
(4) Did the PRRA officer err in concluding that the applicant did not show that he would be personally subjected to a danger if he were removed to the DRC?
(5) May the applicant benefit from the stay of removal orders for nationals of the DRC?
(6) Did the determination of the PRRA officer infringe sections 7 and 12 of the Canadian Charter of Rights and Freedoms or section 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment?
III. Analysis
(1) Should the Court accept the applicant’s new evidence, which was not submitted to the PRRA officer?
[6] In its case law, this Court has clearly established that, on judicial review, the Court may only examine the evidence that was adduced before the initial decision-maker (Lemiecha (Litigation Guardian) v. Canada (Minister of Citizenship and Immigration) (1993), 72 F.T.R. 49 at paragraph 4; Wood v. Canada (A.G.)(2001), 199 F.T.R. 133 at paragraph 34; Han v. Canada (Minister of Citizenship and Immigration), 2006 FC 432 at paragraph 11). In Gallardo v. Canada (Minister of Citizenship and Immigration), 2003 FCT 45 at paragraphs 8 and 9, a case concerning a claim for refugee protection based on humanitarian and compassionate considerations, Mr. Justice Kelen wrote:
The Court cannot consider this information in making its decision. It is trite law that judicial review of a decision should proceed only on the basis of the evidence before the decision-maker.
The Court cannot weigh new evidence and substitute its decision for that of the immigration officer. The Court does not decide H&C applications. The Court judicially reviews such decisions to ensure they are made in accordance with the law.
[7] In addition, in Zolotareva v. Canada (Minister of Citizenship and Immigration), 2003 FC 1274 at paragraph 36, in deciding an application for judicial review of a decision of a PRRA officer, Mr. Justice Martineau wrote the following:
It is unfortunate that the psychologist’s report was not available to the PRRA Officer at the time of the determination. Considering that the psychologist's opinion was not presented before the decision maker who refused her application, the applicant cannot rely on this new evidence. This Court has recognized on numerous occasions that the judicial review of a decision has to be made in light of the evidence that was submitted before the decision maker: see Noor v. Canada (Human Resource Development), [2000] F.C.J. No. 574 at para. 6 (C.A.) (QL); Rodbom v. Canada (Minister of Employment and Immigration), [1999] F.C.J. No. 636 (C.A.) (QL); Bara v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 992 at para. 12 (T.D.) (QL); Khchinat v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 954 at para. 18 (T.D.) (QL); LGS Group Inc. v. Canada (Attorney General), [1995] 3 F.C. 474 at 495 (T.D.); Quintero v. Canada (Minister of Citizenship and Immigration), (1995) 90 F.T.R. 251 at paras. 30-33; Franz v. Canada (Minister of Employment and Immigration), [1994] 80 F.T.R. 79; Asafov v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 713.”
[8] The documents in question are the following:
- The affidavit of Alfred Lukhanda, a friend of the applicant, dated October 26, 2005;
- The affidavit of Jean Baptiste Nosankoy Ikamba, the eldest brother of the applicant, dated October 25, 2005;
- A letter from Gauthier Wembalenga of Toges Noires [an organization of lawyers for human rights] dated October 24, 2005;
- A letter from André Kebaba of the United Nations Mission in the Congo, undated;
- A letter from Claudette Cardinal, coordinator at Amnesty International, dated November 1, 2005.
Would it have been possible to file these documents for the PRRA application? No explanation was given for the late filing of these documents. In his PRRA, the applicant merely stated, [translation] “I was persecuted and I am wanted by the authorities of the Democratic Republic of the Congo”. Furthermore, the PRRA officer noted that [translation] “up to now, no other written submission has been filed in connection with this application”. In addition to the documents submitted to the RPD, the applicant sought to submit only two new documents to the PRRA officer: Canadian Council for Refugees, Review of temporary suspension of removal to Democratic Republic of Congo, March 15, 2004; Amnesty International, Detention without charge/incommunicado detention/Fear of ill-treatment - Commander Dieudonné Amundala Kabengele, Urgent Action. London, November 12, 2003.
[9] In his brief memorandum, the applicant claimed that under section 24 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“the Charter”), he is entitled to effective and efficient recourse, considering that this is a matter of life and death and that as such new evidence should be permitted. In reality, the applicant is seeking to have this judicial review transformed into an appeal.
[10] I do not see how the factual situation described by the applicant or the argument submitted could call into question the case law of this Court. Under section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, an application for judicial review of a decision is considered on the basis of the evidence submitted to the decision-maker. Any addition to this evidence would change the role of the judge hearing such cases. The judge would be able to make a determination by taking new evidence into consideration, which would effectively remove the judge from his or her role as a judge hearing an application for judicial review. Moreover, the applicant has an alternative at his disposition, namely section 165 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations), which allows the filing of a new PRRA application and the use of “new” evidence in support of this application. Accordingly, I do not see how the Charter may be of any use, given the situation in this case.
[11] Accordingly, any new evidence in the applicant’s record which was not submitted to the PRRA officer is withdrawn from this case, more specifically, pages 48, 50, 51, 52 and 53 to 58 of the applicant’s record. Furthermore, the applicant could use the abovementioned alternative. However, if the applicant decides to make a new PRRA application, he will have to make submissions in writing to explain why any new evidence should be accepted.
(2) What is the standard of review applicable to decisions rendered by PRRA officers?
[12] In Kandiah v. Canada (Solicitor General), 2005 FC 1057 at paragraph 6, Madam Justice Dawson studied the matter of standards of review applicable to decisions rendered by PRRA officers and concluded as follows:
As to the appropriate standard of review to be applied to a decision of a PRRA officer, in Kim v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 540, Mr. Justice Mosley, after conducting a pragmatic and functional analysis, concluded “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”. Mr. Justice Mosley also endorsed the finding of Mr. Justice Martineau in Figurado v. Canada(Solicitor General), [2005] F.C.J. No. 458, 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”. This jurisprudence was followed by Madam Justice Layden-Stevenson in Nadarajah v. Canada(Solicitor General), [2005] F.C.J. No. 895 at paragraph 13. For the reasons given by my colleagues, I accept this to be an accurate statement of the applicable standard of review.
[13] In the case at bar, the applicant alleges that the PRRA officer made two errors. The first one was that she adopted the same conclusion as the RPD, to the effect the applicant was a person excluded under section 1(F) of the Convention; the second error was her determination that the applicant had not shown he faced a danger of torture or a risk to his life if he were to return to the DRC. In my opinion, the argument that the PRRA officer erred in adopting the conclusion of the RPD, to the effect that the applicant was a person excluded under section 1(F) of the Convention, is a question of mixed law and fact, because such a decision required an analysis of the evidence before the RPD and the RPD’s conclusions while taking into consideration the statutory provisions on this point. Accordingly, the standard of review applicable to this decision is that of reasonableness simpliciter. The second argument, to the effect the PRRA officer erred in determining that the applicant did not show he faced a danger of torture or a risk to his life if he returned to the DRC, is also a question of mixed law and fact, as the officer had to assess the evidence submitted by the applicant concerning the risk that he faced and the burden of proof under section 97 of the IRPA. Therefore, the standard of review applicable to this determination is also that of reasonableness simpliciter.
(3) Did the PRRA officer err in endorsing the conclusion reached by the RPD, according to which the applicant was excluded from Canada pursuant to subparagraphs 1(F)(a) and 1(F)(c) of the Convention?
[14] PRRA officers are not bound by the conclusions reached by the RPD. However, when the evidence before the PRRA officer is essentially the same as that before the RPD, it is reasonable for the PRRA officer to reach the same conclusions (see Klais v. Minister of Citizenship and Immigration), 2004 FC 783 at paragraph 11). In addition, PRRA officers do not sit on appeal or judicial review and therefore may rely on conclusions reached by the RPD when there is no new evidence (see Jacques v. Canada (Solicitor General), [2004] F.C. 1481).
[15] In this case, the applicant submitted that the RPD was not diligent and prudent in its analysis of section 1(F) of the Convention, which led it to mistakenly conclude that the applicant was a person excluded from Canada under section 98 of the IRPA. I note that the RPD sat on six different occasions and saw and heard the witnesses, including the applicant, before rendering a very detailed and reasoned decision.
[16] That being said, in her decision, the PRRA officer noted the following:
[translation]
In spite of the opportunity to give new explanations concerning the contradictions and inconsistencies raised by the IRB, the applicant did not submit any additional information in support of this application.
In such a context, I can only agree with the conclusions of the IRB, which, after having heard the applicant in six hearings held over a period of approximately one and one-half years, determined that he had been active in the ANR. However, the panel did not believe the story according to which he had been reprimanded and jailed by state authorities for not having supported the positions of the ANR.
(see Applicant’s Record, page 15)
Considering that the applicant did not submit any new evidence to the PRRA officer, it is reasonable for her to have reached the same conclusion as the RPD.
[17] In addition, the decision to adopt the same conclusions as the RPD seems to be warranted by the fact that the application for leave and for judicial review of the RPD’s decision was dismissed by this Court, given the failure to file the record. I concluded in the following excerpt from Jacques v. Canada, supra, at paragraph 22, that a PRRA decision is not an appeal of a decision of the IRB:
As the respondent argues, a PRRA officer does not sit on appeal or in judicial review and is therefore entitled to trust the IRB’s findings in the absence of new evidence.
[18] In concluding on this point, the PRRA officer did not make any error in adopting the conclusion of the IRB to the effect that the applicant is a person excluded from Canada under subparagraphs 1(F)(a) and (c) of the Convention.
(4) Did the PRRA officer err in concluding that the applicant did not show that he would be personally subjected to danger if he were removed to the DRC?
[19] It is acknowledged that a person excluded under section 1(F) of the Convention may, in the case of a PRRA, have the protection of Canada even if refugee protection has not been granted (see subsection 112(3) of the IRPA) if he or she meets the criteria under paragraph 113(d) of the IRPA. Under this paragraph, for a person to receive protection from Canada, that person must meet the criteria specified in section 97 of the IRPA and establish that he or she is not a danger to the Canadian public or to the security of Canada. Section 113 of the IRPA reads as follows:
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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. |
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. |
It is also important to note the wording of section 97:
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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.
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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. |
[20] With regard to section 97 of the IRPA, the case law of this Court has established that to be acknowledged as a person in need of protection, the person in question must prove that he or she has valid individualized grounds to fear being tortured, threatened or mistreated, taking into consideration the objective situation in the country to which he or she will be removed (Kandiah v. Canada (Minister of Citizenship and Immigration), 2005 FC 181 at paragraph 18; Bouaouni v. Canada (Minister of Citizenship and Immigration), 2003 FC 1211 at paragraph 41). In Ahmad v. Canada (Minister of Citizenship and Immigration), 2004 FC 808 at paragraphs 21-22, Mr. Justice Rouleau explained the applicable test to be recognized as a person in need of protection under section 97 of the IRPA in the following terms:
21 First of all, I wish to point out that the relevant test under section 96 is in fact quite distinct from the test under section 97. A claim based on section 97 requires the Board to apply a different criterion pertaining to the issue of whether the applicant's removal may or may not expose him personally to the risks and dangers referred to in paragraphs 97(1)(a) and (b) of the Act. However, this criterion must be assessed in light of the personal characteristics of the applicant. Indeed, as Blanchard J. noted in Bouaouni, supra:
¶ 41 [T]he wording of paragraph 97(1)(a) of the Act... refers to persons, “...whose removal ... would subject them personally...”. There may well be instances where a refugee claimant, whose identity is not disputed, is found to be not credible with respect to his subjective fear of persecution, but the country conditions are such that the claimant’s particular circumstances, make him/her a person in need of protection. [Emphasis added]
22 Thus the assessment of the applicant's fear must be made in concreto, and not from an abstract and general perspective. The fact that the documentary evidence illustrates unequivocally the systematic and generalized violation of human rights in Pakistan is simply not sufficient to establish the specific and individualized fear of persecution of the applicant in particular. Absent the least proof that might link the general documentary evidence to the applicant's specific circumstances, I conclude that the Board did not err in the way it analyzed the applicant's claim under section 97.
[21] Furthermore, in Li v. Canada (Minister of Citizenship and Immigration) 2005 FCA 1 at paragraphs 8-13, the Federal Court of Appeal ruled that for protection to be awarded under section 113 of the IRPA, an applicant must establish on a balance of probabilities that he or she will be subject to the dangers or risks mentioned in paragraphs 97(a) and (b) of the IRPA if he or she were to be removed to the country of destination.
[22] As far as the application for a PRRA is concerned, the applicant did not submit any evidence to the officer showing that he was in danger of being persecuted if he were to be removed to the DRC. As noted earlier, in his answer to question 51 of the PRRA form, the applicant simply stated, [translation] “I was persecuted and wanted by the Democratic Republic of the Congo” (Court record, volume 2, page 592). In answer to question 37 of his Personal Information Form, the applicant stated the following in connection with his fear of persecution:
[translation]
I am afraid that if I return to my country I will be arrested, detained and condemned to life in prison or to death for having deserted my duties and having refused to serve the government in the armed forces because of my political opinions and my conscientious objection . . . .
I am afraid of returning to the Democratic Republic of the Congo, as I will be arrested and condemned to life in prison or to death for having deserted the intelligence service for political reasons and reasons of conscience. I also fear for my life because I will be automatically associated with the opposition by reason of my political opinions.
I also fear being condemned to death for having refused to serve in the armed forces. I am a conscientious objector and refuse to continue to cooperate with a government that violates human rights and forces us to kill other Congolese citizens.
(Court record, volume 2, page 645)
Nothing else was added to the PRRA application in connection with his personalized fear of persecution in the DRC. The record shows that the evidence submitted only deals with the general situation in the DRC. Even at paragraph 17 of his memorandum in support of this application for judicial review, the applicant made only the following comment:
[translation]
Mr. Ngankoy is risking everything because he was a member of a security organization and because he left his position. He will most certainly be seen as an opponent because of his attitude and his claim for refugee protection in a democratic country.
(Applicant’s Record, pages 62-63)
[23] The PRRA officer took into consideration numerous sources of documentation which described the general situation in the DRC, including the fact that violations of human rights, arbitrary arrests, illegal detention with torture and other cruel and inhuman treatment still take place in the DRC. In her analysis, she dealt with the applicant’s situation as a former employee of the ANR and of the danger to which he could be subjected. She concluded that the risk was not significant.
[24] The PRRA officer noted the horrible treatment that a former member of the ANR sustained at the hands of officers of this organization, but she considered this information generally without linking it to a situation which the applicant might personally experience if he returned to the DRC. She put the emphasis on what she considered to be an implausibility in the applicant’s story. His work, as described before the RPD, was to accompany the person in charge of a UN mission investigating the human rights situation. This did not match the content of the report of the organization to the effect that ANR agents obstructed the investigation rather than facilitating it, as the applicant had explained. Accordingly, she questioned the applicant’s credibility and minimized his role within the ANR.
[25] However, it was proven that at one time the applicant was a deputy inspector in the ANR, and the record shows that persons who were associated with the ANR may be subjected to physical abuse, inhumane treatment, persecution or even torture upon their return to the country (see Court record, volume 2, pages 429, 452, 458, 668-671). According to the documentation submitted to the PRRA officer, there may be a connection between the role or the former role played by the applicant as an ANR officer and the imposition of unacceptable treatment that could be linked to torture or death. This aspect, although briefly mentioned, should have been more developed, in that it had been proven that the applicant had been an deputy inspector of the ANR. To reach this conclusion, I studied the explanations given by counsel for the respondent. However, these explanations cannot replace what the analysis should have contained. In any event, this documentation should have been studied by the officer, even if only to consider the applicant’s former work with the ANR.
[26] Moreover, there is documentation explaining that a person forced to return to the DRC may have his or her documents seized, may be detained and sometimes tortured (see the document from the Canadian Council for Refugees, Review of temporary suspension, March 15, 2004, in which reference is made to an article in the newspaper Le Phare in Kinshasa, Congo, dated February 13, 2004). Although the PRRA officer was not obliged to comment on all of the documentation, she had to comment on the document or documents raising circumstances which may be associated with a PRRA applicant. It seems to me that the article in Le Phare is the type of information which requires a minimum of comment, considering the application for a PRRA.
[27] I would add that the stay of removal order (moratorium) is another cause for concern, even though the moratorium does not apply to the applicant (see paragraph 230(3)(e) of the Regulations). In itself, the moratorium gives rise to a disconcerting factual situation which must be taken into consideration in studying the PRRA. The existence of a moratorium for DRC nationals could be useful for the purposes of the analysis by the PRRA officer. This was not done.
[28] Taking into consideration all the reasons resulting from the study of the issue, I reach the conclusion that the decision of the PRRA officer was unreasonable and that the analysis must be redone by another member of the PRRA staff, taking this decision into consideration.
(5) May the applicant benefit from the stay of removal orders for nationals of the DRC?
[29] Evidence has been adduced to the effect that there is a stay of removal orders, in Canada, for citizens of the DRC.
[30] This being said, paragraph 230(3)(e) of the Regulations specifically concerns persons who are excluded under section 1(F) of the Convention and who come from a country to which the moratorium applies. Section 230 of the Regulations reads as follows:
As appears from the Regulations, a person excluded from Canada under section 1(F) of the Convention cannot have the benefit of a stay of removal orders. Accordingly, the applicant cannot take advantage of the moratorium in force, in Canada, for nationals of the DRC.
[31] Having said this, and as mentioned previously, I would add that in the case of a moratorium, as a minimum, the PRRA officer must refer to the stay of removal orders in force by commenting on it and by distinguishing the specific facts of the case being studied. If there are facts related to torture or persecution, they must be considered in the analysis. The objective of such an analysis is not to circumvent the Regulations, but rather to ensure there is no risk of torture or persecution to the person in question stemming from the grounds on which the moratorium is based.
(6) Did the determination of the PRRA officer infringe sections 7 and 12 of the Canadian Charter of Rights and Freedoms or section 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment?
[32] It has been clearly determined by case law that the removal of a person from Canada is not contrary to the principles of fundamental justice and that the enforcement of a removal order is not contrary to sections 7 and 12 of the Charter (Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711, pages 733-735; see also Medovarski v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539 at paragraph 46).
[33] With regard to the applicant’s argument that the PRRA officer infringed section 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture), section 97 of the IRPA, which is the basis of the analysis made by the PRRA officer under paragraph 113(d), incorporates the principles stated in section 3 of this Convention. Section 97 specifically prevents the removal of a person to a country where he or she risks being mistreated, tortured or killed, which is precisely the type of protection required under section 3 of the Convention Against Torture (see Li, supra, at paragraph 33).
[34] On this point, the applicant’s arguments to the effect that the decision of the PRRA officer infringed the Charter or Canada’s international obligations, as a signatory of the Convention Against Torture, are unfounded.
IV. Certified Question
[35] Counsel for the applicant submitted two (2) questions for certification, which were not explained in detail, in his memorandum or subsequently:
1) Does section 24 of the Canadian Charter of Rights and Freedoms, which guarantees access to legal remedies and which ensures that there will be no removal to probable torture or death, authorize in cases of judicial review by the Federal Court, reference to new evidence or to the most up to date information, following the Supreme Court of Canada’s judgment in Suresh? Is new evidence which was not submitted to the decision-maker admissible in the analysis under section 24?
2) Does section 3 of the Convention Against Torture apply before the Immigration and Refugee Protection Board and in the PRRA procedure pursuant to the Canadian Charter of Rights and Freedoms? Is it compulsory to take this into consideration in the determination of the PRRA?
[36] The respondent opposes the application for certification of these questions because they do not transcend the interests of the immediate parties to the litigation and contemplate issues of broad significance or general application.
[37] As far as question 1 is concerned, recourse to Charter principles does not give rise to an automatic right to certification, especially when it is crystal clear in law that an application for judicial review is not an appeal and that such an application is studied taking into consideration the evidence submitted to the initial decision-maker. Furthermore, in this case, the applicant did not even deign to submit any evidence to explain why the new evidence was not submitted to the PRRA officer. If he actually does have any explanations to give, the applicant can still try to submit a new application for a PRRA under section 165 of the Regulations.
[38] There are procedures to be followed when making a PRRA, and the applicant did not abide by them. He cannot invoke section 24 of the Charter to compensate for his non-compliance with these procedures to support such an argument. This question will not be certified, as it does not raise an important question of law, considering the facts and the proceedings on record; it does not transcend the interests of the immediate parties to the litigation and contemplate issues of broad significance or general application (see MCI v. Liyanagamage (1994) 176 N.R. 4 (F.C.A.)).
[39] As far as the second question is concerned, it has already been dealt with by the case law of this Court (see Liyanagamage, supra). The principles of section 3 of the Convention Against Torture are incorporated into section 97 of the IRPA. The question as stated does not warrant certification.
JUDGMENT
THE COURT ORDERS THAT:
- The application for judicial review is allowed in part, and the file must be returned to another PRRA officer so a new analysis may be conducted, taking into consideration this decision;
- No question will be certified.
Certified true translation
Michael Palles
FEDERAL COURT
SOLICTORS OF RECORD
DOCKET: IMM-6465-05
STYLE OF CAUSE: FELICIEN NGANKOY ISOMI v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: October 26, 2006
REASONS FOR ORDER BY: The Honourable Mr. Justice Simon Noël
APPEARANCES:
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Stewart Istvanffy |
FOR THE APPLICANT |
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Diane Lemery |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Istvanffy, Vallières & Associés - Montréal |
FOR THE APPLICANT |
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John H. Sims, Q.C. Deputy Attorney General of Canada Federal Department of Justice - Montréal |
FOR THE RESPONDENT |