Ottawa, Ontario, June 15, 2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicant brings this application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, [2001, c. 27] (the Act), of the negative Pre-Removal Risk Assessment (PRRA) decision by Eric Therriault (PRRA Officer), dated May 24, 2006.
ISSUE
[2] Did the PRRA Officer err in law by failing to assess the risk the applicant would face as a person excluded under articles 1F (a) and (c) of the Convention.
[3] For the reasons that follow, the answer to this question is negative. As a result, the application shall be dismissed.
BACKGROUND
[4] The applicant is a citizen of the Philippines who came to Canada on April 6, 1991 as a seaman aboard the MV Waterklerk. He applied for refugee status on April 17, 1991 on the ground that he was targeted by members of the New People’s Army (NPA) for having refused to leave the army and join their ranks as a training officer.
[5] On August 11, 1993, his application was refused for lack of credibility but also because he was found to have been an accomplice to the human rights violations that were committed against the NPA by the Philippine army during his service from March 1979 to February 1984. He was consequently excluded under articles 1F (a) and (c) of the Convention.
[6] The applicant withdrew his appeal of that decision on February 23, 1994 after marrying a Canadian citizen. He obtained residency in Canada upon his wife’s sponsorship without disclosing on his application that he had been excluded from Canada. On March 1, 2001, he was found inadmissible to Canada by the Adjudication Division of the Immigration and Refugee Board and ordered deported.
[7] His appeal to the Immigration Appeal Division (IAD) against the deportation order was settled by decision of the Federal Court of Appeal, which ruled in November 2005 that he was not entitled to an appeal before the IAD. Similarly, on March 7, 2006, the Federal Court dismissed his application for judicial review against the Adjudication Division’s decision.
[8] His first PRRA application was dismissed on December 4, 2002. It is his second PRRA application dated May 12, 2006 and its unfavourable findings by the PRRA Officer, which are presently before the Court.
DECISION UNDER REVIEW
[9] After a review of the applicant’s allegations and the new documentary evidence, the PRRA Officer was of the view that the documents submitted were not linked to the risks alleged by the applicant. Also, the evidence contained nothing new that was not already considered in the prior proceedings.
ANALYSIS
Standard of Review
[10] This Court has established that the decisions of PRRA Officers are subject to the customary standard of review of patent unreasonableness for questions of fact; reasonableness, for questions of mixed fact and law and for questions of law, correctness (Kim v. Canada (Minister of Citizenship and Immigration), 2005 FC 437, [2005] F.C.J. No. 540 (F.C.) (QL)).
[11] Applied to this instance, the circumstances are purely factual. The PRRA Officer was called upon to assess the new evidence submitted by the applicant to support his allegations that he would be subject to reprisals and torture by the NPA. At no time was the PRRA Officer required to interpret or apply the law to the facts, which were based wholly on documentary evidence. As such, the applicable standard of review is one of patent unreasonableness. Therefore, this Court will not intervene unless the applicant demonstrates that the decision of the PRRA Officer is so unreasonable it leaves no doubt in its wake.
[12] At the outset this is not the case here. The applicant challenges the PRRA decision on the basis that the PRRA Officer failed to consider the fact that the applicant could face significant risk upon his return to the Philippines because he was declared by Canada to have been inadmissible as an accomplice to the atrocities levied against the Philippine army of which he was a member during five critical years when crimes against humanity were committed.
[13] This would be all well and good provided that the applicant could show that he provided evidence of such risk and the PRRA Officer either inadvertently overlooked or in a capricious manner disregarded such evidence before him. In his second application, the applicant mentions the following risks, "I still believe I will be targeted by the NPA if they will recognize me. They will still remember my resentment to join them ..." (p. 237 of the tribunal record). This risk has been considered, analyzed and dismissed by the first PRRA Officer.
[14] The new documentary evidence submitted by the applicant has been also considered and analyzed by the second PRRA Officer. He found that it did not constitute new pieces of evidence that could be linked to the risks alleged. I find no reviewable error here (Dreta v. Canada (Minister of Citizenship and Immigration), 2005 FC 1239, [2005] F.C.J. No. 1053 (F.C.) (QL)).
[15] PRRA Officers are required to consider all the evidence submitted by the applicant and not seek out information that the applicant ought to have submitted. That is why when a PRRA Officer considers important and pertinent extrinsic evidence that may have an implication on the applicant’s claim, the principles of procedural fairness require that such evidence be brought to the attention of the applicant concerned to enable him or her to make submissions before the PRRA Officer reaches his or her determination. Also, when on occasion the principles of procedural fairness are found wanting, this Court has been prompt to sanction such behaviour and return the matter for reconsideration before a different PRRA Officer.
[16] There was nothing in the applicant’s evidence before the PRRA Officer that invited consideration of this innovative idea that the stigma of the applicant’s profile, counsel for the applicant argues should have alerted the PRRA Officer to the fact that he could be subjected to arrest and perhaps cruel and unusual punishment, depending on the particular conditions in the country of origin. Indeed, the applicant’s affidavit makes no mention of this. The issue is raised for the very first time in his Memorandum of Argument.
[17] Both parties draw the Court’s attention to the decision of the Federal Court of Appeal in Owusu v. Canada (Minister of Citizenship and Immigration, 2004 FCA 38, [2004] 2 F.C.R. 635 (C.A.). The applicant argues that his situation can be distinguished from the facts in the H&C ruling in Owusu where Justice John Evans ruled that an immigration officer’s duty to consider certain grounds for relief arises only where there is sufficient pertinent evidence before him or her relating to such ground. The applicant contends that the PRRA Officer in the present case had sufficient evidence in the “war-crimes” finding to compel him to start his risk assessment from this point.
[18] I find that Owusu, above does not help the applicant. This is what Justice Evans said at paragraph 5:
An immigration officer considering an H & C application must be "alert, alive and sensitive" to, and must not "minimize", the best interests of children who may be adversely affected by a parent's deportation: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraph 75. However, this duty only arises when it is sufficiently clear from the material submitted to the decision maker that an application relies on this factor, at least in part. Moreover, an applicant has the burden of adducing proof of any claim on which the H & C application relies. Hence, if an applicant provides no evidence to support the claim, the officer may conclude that it is baseless.
[19] At no time did the applicant allege in his PRRA application that he would face significant risk if returned to the Philippines because he was declared by Canada to have been inadmissible as an accomplice to the atrocities committed by the Philippine army. The argument of the applicant must therefore fail. PRRA Officers may be faulted for many things but mind reading is not one of them.
[20] The parties submitted no questions for certification.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that
1. The application for judicial review is dismissed.
2. No question is certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3192-06
STYLE OF CAUSE: DANIUS SABADAO and
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: June 13, 2007
APPEARANCES:
SOLICITORS OF RECORD:
Pia Zambelli FOR APPLICANT
Montreal, Quebec
John Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec