Ottawa, Ontario, April 6, 2006
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
AND THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] The agent responsible for a Pre-Removal Risk Assessment (PRRA) does not have the power to requalify and therefore to examine humanitarian and compassionate factors within the specific framework of a PRRA. The agent responsible for a PRRA does not make an error by confining his review to sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act). To initiate proceedings based on humanitarian and compassionate grounds, a separate application in accordance with subsection 25(1) of the Act must be filed.
TYPE OF JUDICIAL PROCEEDING
[2] This is an application for judicial review, filed pursuant to subsection 72(1) of the Act, of the decision of an immigration officer responsible for a PRRA dated August 30, 2005, whereby he determined that the applicant did not risk torture or persecution, nor risk of cruel and unusual treatment or threats to his life if removed to his country of citizenship.
FACTS
[3] The applicant, Patrick Dubrezil, was born on September 25, 1983 in Haiti, his country of citizenship. In 1997, Mr. Dubrezil, along with his parents, his brother and sister, arrived in Canada as a permanent resident.
[4] Around January 2001, Mr. Dubrezil met Melissa Robitaille and they became friends. They have been living together since March 2004. Ms. Robitaille has two children who are very attached to Mr. Dubrezil, although he is not their biological father.
[5] On March 12, 2002, while he was at home, three armed individuals broke into Mr. Dubrezil’s residence and shot him in the lower stomach and hip. He was seriously injured and underwent several surgical operations. Since this incident, he has been limping and requires sustained medical care.
[6] On December 13, 2001, Mr. Dubrezil was found guilty of one count of being unlawfully in a dwelling-house in violation of subsection 349(1) of the Criminal Code of Canada (the Code) and of one count of conspiracy in violation of paragraph 465(1)(c) and subsection 349(1) of the Code. He was sentenced to one day of imprisonment on each count and to a probation period of 18 months.
[7] On July 7, 2003, he was found guilty of using a false firearm while committing an offence, in violation of paragraph 85(2)(a) and subsection 85(3) of the Code. He was sentenced to 12 months of imprisonment.
[8] On July 16, 2003, a referral order for an admissibility hearing before the Immigration Division was issued in order to determine whether Mr. Dubrezil is a person described in paragraph 36(1)(a) of the Code, namely an inadmissible person on grounds that he was convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed. Following this referral, the Immigration Division determined on October 31, 2003 that Mr. Dubrezil was inadmissible and issued an exclusion order against him. On the same day, Mr. Dubrezil appealed the decision before the Immigration Appeal Division.
[9] On June 23, 2004, the Immigration Appeal Division ruled that Mr. Dubrezil’s appeal had been abandoned pursuant to subsection 168(1) of the Act.
[10] On March 3, 2005, Mr. Dubrezil filed his PRRA application. On March 16, 2005, he filed a motion to reopen his appeal with the Immigration Appeal Division. The motion was dismissed on June 27, 2005.
CHALLENGED DECISION
[11] The immigration officer responsible for the PRRA found that Mr. Dubrezil had failed to show that he would be exposed in Haiti to the type of risks described in sections 96 and 97 of the Act. Although the overall situation in Haiti is difficult, Mr. Dubrezil has not offered evidence showing that his own situation is different from that of other Haitians. The evidence does not show that there is more than a slight possibility that he would be persecuted or that it is likely he would be personally subjected to a danger of torture, to a risk to his life, or to a risk of cruel and unusual punishment or treatment.
[12] The immigration officer responsible for the PRRA determined that the humanitarian and compassionate factors presented by Mr. Dubrezil were not relevant to the PRRA. The PRRA’s role was to establish whether Mr. Dubrezil would be exposed to a risk of torture, threats to his life or cruel and unusual punishment or treatment if he were sent back to Haiti.
ISSUES
[13] This application raises the two following issues:
1. Was the decision by the immigration officer responsible for the PRRA that humanitarian and compassionate considerations are irrelevant in a PRRA application a reviewable error?
2. Was the decision by the immigration officer responsible for the PRRA to dismiss the application for protection a reviewable error?
ANALYSIS
Statutory Framework
[14] Under subsection 112(1) of the Act, a person subject to a removal order may file an application for a PRRA to seek the protection of Canada.
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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). |
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). |
[15] Section 113 of the Act reads as follows:
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113. Consideration of an application for protection shall be as follows:
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113. Il est disposé de la demande comme il suit :
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(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;
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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;
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(b) a hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required;
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b) une audience peut être tenue si le ministre l’estime requis compte tenu des facteurs réglementaires;
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(c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98;
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c) s’agissant du demandeur non visé au paragraphe 112(3), sur la base des articles 96 à 98;
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. . . |
[…] |
[16] Under subsection 25(1) of the Act, the Minister may grant an exemption from certain obligations under the Act for humanitarian and compassionate reasons, if he feels it is justified.
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25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. |
25. (1) Le ministre doit, sur demande d’un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des circonstances d’ordre humanitaire relatives à l’étranger – compte tenu de l’intérêt supérieur de l’enfant directement touché – ou l’intérêt public le justifient. |
[17] Section 96 of the Act reads as follows:
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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,
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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 :
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(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
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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;
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(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. |
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. |
[18] Section 97 of the Act states as follows:
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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
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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 :
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(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
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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;
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(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
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b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
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(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
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(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
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(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,
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(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,
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(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
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(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 occasionnées pas elles,
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(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
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(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
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(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. |
(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.
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Judicial Review Standard
[19] As both issues raise a question of statutory interpretation and the correct application of the legislation to the facts, we are dealing with issues of mixed law and fact, and the applicable judicial review standard is that of reasonableness simpliciter. As to facts, immigration officers have expertise in risk assessment, and therefore a high measure of judicial restraint is called for. (Kim v. Canada (Minister of Citizenship and Immigration), 2005 FC 437, [2005] F.C.J. No. 540 (QL), at paragraphs 8-19)
Was the decision by the immigration officer responsible for the PRRA that humanitarian and compassionate factors do not give rise to protection a reviewable error?
[20] Mr. Dubrezil confused two essential elements of the administrative organisation within the Department of Citizenship and Immigration: the delegation powers of the Minister and the jurisdiction of officers with respect to the review of a particular application.
[21] Subsection 6(1) of the Act empowers the Minister responsible for the application of the Act, the Minister of Citizenship and Immigration, to delegate some of his powers to classes of individuals or to individuals. The Minister has conferred on the officers responsible for PRRA the power to dispose of PRRA applications as well as of applications for exemptions pursuant to subsection 25(1) of the Act. (Immigration Manual, chapter IL3, Appendix B.) Chapter PP3 of the Immigration Manual, which Mr. Dubrezil incorrectly relies upon, simply reflects that state of affairs. However, it does not have the effect of amending the Act and of including humanitarian and compassionate considerations as protection grounds.
[22] Paragraph 113c) of the Act thus provides that a PRRA is conducted in accordance with sections 96 and 97 of the Act, namely on the basis of the criteria used to determine if an individual is a refugee as defined under the Convention or a person in need of protection.
[23] In Kim, supra, at paragraph 70, (which was followed in Covarrubias v. Canada (Minister of Citizenship and Immigration), 2005 FC 1193, [2005] F.C.J. No. 1470 (QL)), Mr. Justice Richard Mosley held that agents responsible for the PRRA are not empowered to take into account humanitarian and compassionate factors when making a PRRA decision. They should only consider factors related to risk.
By the same logic, I find that PRRA officers need not consider humanitarian and compassionate factors in making their decisions. There is no discretion afforded to a PRRA officer in making a risk assessment. Either the officer is satisfied that the risk factors alleged exist and are sufficiently serious to grant protection, or the officer is not satisfied. The PRRA inquiry and decision‑making process does not take into account factors other than risk. In any case, there is a better forum for the consideration of humanitarian and compassionate factors: the H & C determination mechanism. I do not find that the officer erred in law by refusing to consider humanitarian and compassionate factors in the context of the PRRA decision.
[24] If he wished that humanitarian and compassionate factors be considered, Mr. Dubrezil should have filed a separate application pursuant to subsection 25(1) and paid the necessary filing fees. Since the officer responsible for the PRRA could not requalify and thus examine humanitarian and compassionate grounds within the specific framework of the PRRA (Patel v. Canada (Ministre de l’Emploi et de l’Immigration), [1991] F.C.J. No. 9 (QL), (1991) 121 N.R. 260, at paragraph 4 (F.C.A.), he did not err in confining his analysis to sections 96 and 97 of the Act.
Was the decision by the immigration officer responsible for the PRRA to dismiss the application for protection a reviewable error?
[25] It is settled law that an individual seeking the international protection of Canada is required to prove the existence of a subjective fear (Sinora v. Canada (Minister of Employment and Immigration) (1993), 66 F.T.R. 113, [1993] F.C.J. No. 725 (QL), at paragraph 5) and that his evidence may not be solely based on general documentary evidence. (Al-Shammari v. Canada (Minister of Citizenship and Immigration), 2002 FCT 364, [2002] F.C.J. No. 478 (QL), at
paragraph 24).
[26] In a well-balanced review, the officer responsible for the PRRA noted that, although the overall situation in Haiti was difficult, Mr. Dubrezil had not offered any evidence that he personally feared being persecuted on the basis of one of the five persecution grounds, or that he would personally be exposed to a risk of torture or risk to his life.
[translation]
Although the situation in Haiti is difficult and the applicant’s claim is based on this, he has the burden of showing that he would be personally subjected to a risk. However, the evidence in his case does not lead to the conclusion that there is any more than a slight possibility that he would be persecuted there or that there are serious reasons to believe that he would personally be at risk if he returned to his country. All citizens are affected by the current conditions and the applicant is as affected as the rest of the population. He has failed to show that his situation is different from that of the other Haitians. The risk he would be exposed to is defined as a general risk and therefore does not meet the criteria of sections 96 and 97 of the IRPA.
Notwithstanding the overall risk, the documentary evidence shows that human rights advocates and journalists are more exposed to attacks than others. However, the applicant has failed to show that he is a member of one of those groups. Therefore, I cannot come to the conclusion that he would personally be at risk if he returned to his country. (Court’s reasons, at pages 5-6)
[27] Mr. Dubrezil does not seriously challenge this finding. Instead, to support his argument, that the officer responsible for the PRRA erred, he refers to the general documentary evidence. Besides, his affidavit does not indicate whether or not he submitted this evidence to the officer responsible for the PRRA.
[28] The review of the fear factor was done in accordance with the law and, because there is no specific evidence relating to Mr. Dubrezil, the officer responsible for the PRRA did not err in dismissing the PRRA application.
CONCLUSION
[29] The officer responsible for the PRRA did not err in omitting to take into consideration humanitarian and compassionate factors, as such factors are not relevant to the PRRA decision‑making process. His review was correctly confined to sections 96 and 97 of the Act. Mr. Dubrezil failed to prove that he would personally be at risk if he returned to Haiti. As a general risk does not justify granting protection, the officer responsible for the PRRA had to dismiss the application for protection.
JUDGMENT
THE COURT ORDERS that
1. The application be dismissed;
2. No serious question of general importance be certified.
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
NAMES OF ATTORNEYS AND SOLICITORS OF RECORD
DOCKET: IMM-6142-05
STYLE OF CAUSE: PATRICK DUBREZIL
v.
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS AND THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 29, 2006
REASONS FOR JUDGMENT: Mr. Justice Michel Shore
APPEARANCES:
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Wilerne Bernard
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FOR THE APPLICANT |
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Ian Demers
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FOR THE RESPONDENTS |
SOLICITORS OF RECORD:
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WILERNE BERNARD Montréal, Quebec |
FOR THE APPLICANT |
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENTS |