PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of a decision by a Pre-Removal Risk Assessment (PRRA) officer dated June 21, 2006, to refuse an application for protection.
BACKGROUND
[2] Chee Ping Chong (the applicant) is a citizen of Malaysia who arrived in Canada in August 2003 and submitted a claim for refugee protection in January 2004, claiming to be at risk from having witnessed a murder and having subsequently collaborated with the police in their investigation of this murder.
[3] His application was rejected by the Refugee Protection Division (RPD) of the Immigration and Refugee Board, on the ground that he was not credible in light of the many contradictions between the information provided in his Personal Information Form (PIF) and his testimony before the RPD, such as the exact year the alleged murder took place, as well as the significant omissions in his PIF. In addition, the RPD did not find it plausible that groups of people would want to kill the applicant in 2004 because of a murder he witnessed in 1984. The RPD also noted that his actions were not consistent with his claimed fear, since he resided in Malaysia for nineteen years following the incident, and travelled abroad on a number of occasions, only to re-avail to Malaysia. Finally, the RPD noted that the presumption of state protection had not been rebutted and that internal flight initiatives were available to the applicant.
[4] The applicant sought leave to commence an application for judicial review of that decision, which was dismissed on July 19, 2005.
[5] On February 21, 2006, the applicant filed a PRRA application, alleging the same risks as those alleged before the RPD. His application was accompanied by a cover letter from his counsel, a translation of his PIF narrative, and a letter dated February 19, 2006 and signed by the Assistant Superintendent of Police at the Kuala Lumpur Headquarters, in support of his alleged fear for his life should he be forced to return to Malaysia.
ISSUE FOR CONSIDERATION
[6] The single issue raised in this application is whether the PRRA officer erred by failing to properly assess the new evidence submitted by the applicant.
STANDARD OF REVIEW
[7] In determining the proper standard of review for matters relating to decisions of PRRA officers, I rely, as I have on previous occasions, on the analysis of Mr. Justice Luc Martineau in Figurado v. Canada (Solicitor General), 2005 FC 347, at paragraph 51, which reads as follows:
¶ 51 In my opinion, in applying the pragmatic and functional approach, where the impugned PRRA decision is considered globally and as a whole, the applicable standard of review should be reasonableness simpliciter (Shahi v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1826 (T.D.) (QL), at paragraph 13; Zolotareva v. Canada (Minister of Citizenship and Immigration) (2003), 241 F.T.R. 289 (F.C.), at paragraph 24; Sidhu v. Canada (Minister of Citizenship and Immigration), 2004 FC 39, at paragraph 7). That being said, where a particular finding of fact is made by the PRRA officer, the Court should not substitute its decision to that of the PRRA officer unless it is demonstrated by the applicant that such finding of fact was made in a perverse or capricious manner or without regard to the material before the PRRA officer (paragraph 18.1(4)(d) [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27] of the Federal Courts Act; Harb v. Canada (Minister of Citizenship and Immigration) (2003), 238 F.T.R. 194 (F.C.A.), at paragraph 14).
ANALYSIS
[8] As a starting point, I refer to the summary of the role of the PRRA officer written by my colleague Mr. Justice Robert L. Barnes in Yousef v. Canada (Minister of Citizenship and Immigration), 2006 FC 864, at paragraphs 20 and 21:
¶ 20 Some of the evidence-based arguments made here on behalf of the Applicant appear to misconstrue the role of the PRRA officer. It is not the role of the PRRA officer to re-examine evidence assessed by the Board, and it is not open to the officer to revisit the Board's factual and credibility conclusions. It is also not the duty of the PRRA officer to consider evidence that could have been put to the Board, but was not. The role of the PRRA officer, as defined by section 113 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (IRPA), is to examine "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". Here, the PRRA officer clearly and correctly defined her role in conformity with the above section 113 limitations.
¶ 21 In Kaybaki v. Canada (Solicitor General), [2004] F.C.J. No. 27, 2004 FC 32, Justice Michael Kelen very succinctly confirmed the limited role of a PRRA officer at paragraph 11:
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... For this reason, the PRRA officer should not have considered these letters. The PRRA application cannot be allowed to become a second refugee hearing. The PRRA process is to assess new risk developments between the [IRB] hearing and the removal date. |
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I would also add to Justice Kelen's remarks that it is not the role of a PRRA officer to act as a court of appeal from a prior refugee/protection decision.
[9] With this in mind, I now turn to the applicant’s submissions. Essentially, the applicant submits that the PRRA officer had an obligation to provide adequate justification for rejecting the documentary evidence which supports the claim of the applicant. Since the burden of explanation increases with the relevance of the evidence in question to the disputed facts, a blanket statement that the officer has considered the evidence will not suffice when the evidence omitted from the discussion in the reasons appears squarely to contradict the officer’s findings of fact (Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. No. 1425). Therefore, the applicant maintains that the PRRA officer’s duty to provide adequate reasons extends to his finding on the probative value of the new evidence, especially since it supports the applicant’s position, and that failure to do so is sufficient for this Court to set aside the decision (Babilly v. Canada (Minister of Citizenship and Immigration), 2004 FC 1473).
[10] In the letter dated February 19, 2006, from Tan Kim Tong, Assistant Superintendent of Police at the Kuala Lumpur Headquarters, confirmation is provided that the applicant cooperated in the investigation of a murder case in 1985, and that such cooperation was much appreciated. The third and final paragraph then speaks to the danger faced by the applicant as a result of his cooperation with the police. Mr. Tong writes:
It is advised that Mr. Chong could stay away from Malaysia as the murderer was seeking for revenge for persons giving information leading to his committal for the murder. Before the trial four out of five witnesses died. The police department is not able to give Mr. Chong round the clock protection.
[11] The PRRA officer addressed this evidence in the following way:
The letter from the Assistant Superintendent of Police of the Kuala Lumpur Headquarters states that with the applicant’s cooperation, the murderer in question was sentenced to ten years imprisonment. The letter advises that the applicant should stay away from Malaysia as the “police department is not able to give Mr. Chong round the clock protection”.
With respect to the aforementioned letter from the police, I have not considered it in the assessment of the applicant’s PRRA for the following reasons. Firstly, I am not satisfied that it constitutes new evidence that arose after the rejection or was not reasonably available. Furthermore, there is insufficient evidence to show that the applicant could not have been reasonably expected to have presented it at the time of rejection given the circumstances.
[12] The PRRA officer in this case did not simply provide a ‘blanket statement’ to the effect that he considered all of the evidence. He addressed the issue of the letter directly, summarized its content, and refused to consider it as new evidence as it did not meet the test set out at paragraph 113(a) of the Act, which requires that:
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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; |
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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[13] While it is true that the PRRA officer did not explain why exactly he came to the conclusion that the test was not met in this case, it is also true that the answer to that question is rather self-evident, as the letter in question only confirms the bare-bones of the applicant’s story as relates to a murder which took place two decades ago and a sentencing hearing which took place 15 years ago, and no explanation was provided by the applicant to the PRRA officer as to why such a letter was not prepared earlier and submitted to the RPD. The fact that the letter is dated February 19, 2006, does not mean that it could not have been prepared sooner, in light of the events that it recounts. As in Yousef, above, there is nothing in this letter that is new in the sense that it arose subsequent to the hearing before the RPD. Furthermore, absent any proof from the applicant of circumstances that prevented him from obtaining this letter sooner, it does not constitute evidence that was not reasonably available to the applicant at the time of the hearing before the RPD. Consequently, based on the evidence before the PRAA officer, the decision to disregard this letter on the basis that it could not be considered new evidence within the meaning of paragraph 113(a) of the Act, was more than reasonable.
[14] The applicant, in his affidavit in support of this application, notes that he could not produce this letter earlier, because he was unable to locate Mr. Tong, even with the help of his friends in Malaysia. However, this information is nowhere to be found in the material submitted to the PRRA officer. Therefore, this explanation could not have been considered by the officer in his analysis and does not affect the reasonableness of his conclusion.
[15] In light of the above, I agree with the respondent that the PRRA officer did not make a reviewable error that would justify the intervention of this Court.
[16] Furthermore, I would add that, even if the PRRA officer had accepted this ‘new’ evidence, I am not satisfied that it would have been sufficient to overcome the findings of the RPD as to the lack of credibility of the applicant, the implausibility of his story, and the existence of internal flight alternatives. As was noted by Mr. Justice Michel Beaudry in Waheed v. Canada (Minister of Citizenship and Immigration), 2003 FCT 329, at paragraph 27:
A general finding of a lack of credibility can extend to an applicant's testimony as a whole, and documentary evidence cannot be deemed to apply to a claim that is not credible: Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.); see also Tsafack v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 506 (T.D.) (QL).
[17] For the above reasons, this application for judicial review is dismissed.
[18] Neither counsel suggested questions for certification.
JUDGMENT
1. The application is dismissed.
2. No question for certification.
“Pierre Blais”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4040-06
STYLE OF CAUSE: CHEE PING CHONG and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 31, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: Blais J.
DATED: June 5, 2007
APPEARANCES:
Calvin Huong FOR APPLICANT
David Joseph FOR RESPONDENT
SOLICITORS OF RECORD:
Calvin Huong FOR APPLICANT
Toronto, Ontario
John Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario