Date: 20041006
Docket: IMM-8579-03
Citation: 2004 FC 1375
Toronto, Ontario, October 6th, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
SYED ZAHID ABBAS KAZMI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of a Pre-Removal Risk Assessment (PRRA) officer of October 7, 2003 wherein she determined that there was not a serious possibility that Mr. Kazmi would be persecuted or be at risk for loss of life, cruel or unusual treatment or punishment or torture if he returns to Pakistan. For the reasons below, I have concluded that the application should be dismissed.
BACKGROUND
[2] Mr. Kazmi entered Canada in September 2001 and made a refugee claim immediately based on his religious belief as a Shia Muslim. The refugee board found on March 27, 2003, that the applicant's story was not credible, and that state protection was available to him. Judicial review was not sought on that decision.
[3] Mr. Kazmi filed a PRRA application on September 11, 2003. In his submissions, he included much of the same material as had been before the Refugee Protection Division (RPD). He also, in an updated affidavit, recounted the events leading up to his departure from Pakistan, as well as some of the incidents that had occurred in Pakistan since the RPD decision, including an attack on his brother and threatening phone calls to his wife and parents. He also provided some evidence to address the credibility concerns that were expressed by the RPD.
[4] The PRRA officer reviewed the RPD decision and submissions from Mr. Kazmi. She then included summaries and excerpts from a number of recent objective sources and the recent case Muhammed Yousaf v. MCI 2002 FCT 475.
[5] The officer concluded that the documentary evidence did not disclose an objectively well-founded reason for Mr. Kazmi to fear return. The officer found that Pakistan, at least since 1999, has been making serious efforts to provide effective state protection. He also concluded that the additional evidence brought by Mr. Kazmi made his claim to subjective fear much more credible than was found by the RPD.
ISSUES
[6] 1. Did the PRRA officer err by failing to call the applicant for an oral interview to assess his credibility?
2. Did the PRRA officer err by ignoring documentary evidence that supported the applicant's objective fear?
ARGUMENT & ANALYSIS
1. Credibility
[7] In his written argument Mr. Kazmi submits that he should have been called for an oral hearing because he had new information to present to the officer. At the hearing his counsel argued that the PRRA officer had erred in relying upon the credibility findings of the RPD panel.
[8] Mr. Kazmi submits that he met the criteria for an oral interview under subsection 113(b) of the Immigration and Refugee Protection Act (IRPA) and section 167 of the Immigration and Refugee Protection Regulations in that there was evidence that raised a serious issue of his credibility related to sections 96 and 97 of IRPA, he had evidence to present that was central to the issue, and it could have materially affected the outcome of the decision.
[9] The respondent submits that the record shows that the PRRA officer considered the totality of the evidence, and in any case there is a presumption that all evidence was considered: Hassan v. MEI (1999), 147 NR 317; Huang v. MEI (1993), 66 FTR 178; Randhawa v. MCI, [1999] F.C.J. No. 606.
[10] If Mr. Kazmi had additional information on country conditions, the respondent argues, it was his responsibility to present it in writing, as there is no right to an oral hearing: Matarage v. MCI, [1998] F.C.J. No. 460; Singh v. MCI, [1998] F.C.J. No. 32; Kanyai v. Canada 2002 FCT 850; Nduwimana v. MCI 2002 FCT 812; Tambwe-Lubemba v. MCI, [1999] F.C.J. No. 511.
[11] The criteria for an oral hearing were not met because credibility was not central to the decision: IRPA s. 113(b), IRP Regulations s. 167 and Immigration Department Directives, at p. 56; Zhang v. MCI, [1993] FCJ No. 1204.
Analysis
[12] In her reasons, the officer indicated that several of the implausibilities identified by the RPD were explained away by the new evidence offered by the applicant. She did not unequivocally accept or reject Mr. Kazmi's story as credible, however, she made it clear that his credibility was not central to her decision.
[13] The presumption that all pertinent information was considered can be rebutted by the significance of the information that is not mentioned: Cepeda-Gutierrez v. MCI (1998), 157 FTR 68 (TD); Ali v. MCI 2003 FC 1317; Balendara v. MCI 2003 FC 1078.
[14] The evidence relating to Mr. Kazmi's relatives' experiences at the hands of Sunni extremists since the RPD decision was made, was significant new information. If believed, it might show that the risk to Mr. Kazmi was personalized. However, because the officer did not assess that information, it is unclear what she thought of it. This is a reviewable error in my view, but for the reasons that follow, it would not have had a material effect on the outcome of this case.
2. The documentary evidence
Applicant
[15] Mr. Kazmi submits that the officer failed to exercise her jurisdiction under section 112 of IRPA and breached his rights to natural justice by selectively choosing the documentary evidence she relied upon and by closing her mind to the reality of Pakistan in 2003, where state protection is ineffective.
[16] The respondent submits that this is essentially a challenge to the weight of the evidence assigned by the officer, a matter within her expertise. Furthermore, the documentary evidence relied upon by the applicant all pre-dates the negative RPD decision and was not "new evidence" as contemplated by paragraph 113(a) of IRPA. It was all reasonably available to the applicant to present to the RPD prior to the Board's rejection of his claim to refugee protection and was not, therefore, properly before the PRRA officer.
Analysis
[17] Individuals claiming refugee status must provide clear and convincing confirmation of their state's inability to protect: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. The protection afforded by the state need not be perfect: Canada (Minister of Employment and Immigration) v. Villa franca (1992), 18 Imm. L. R. (2d) 130 (F.C.A.).
[18] I have carefully reviewed the PRRA officer's analysis of the evidence concerning state protection and am satisfied that although I may not have arrived at the same conclusion, I cannot find that she did not consider all of the appropriate evidence or that her decision is not supported by the evidence. There is nothing in her decision that is patently unreasonable.
[19] There is no basis for the court to conclude that the PRRA officer selectively reviewed the documentary evidence and ignored that which was inconsistent with her analysis. She properly considered and weighed the total evidence as required to do: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.).
Certification of a Question
[20] The applicant requested that the Court certify the following question:
Whether a PRRA officer in exercising her discretion under s.113(a) of the Act has to consider the credibility of the applicants in assessing factors under s. 167 of the Regulations?
Section 167 of the Regulations sets out the factors that must be considered in determining whether a hearing is required under paragraph 113(b) of the Act. Paragraph 113(b) provides that a hearing may be held for consideration of an application for protection where the applicant's claim to refugee protection has been rejected when the Minister is of the opinion that a hearing is required based on the factors prescribed in s.167.
[21] A question certified under IRPA s. 74 must be dispositive of an appeal: Bath v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1207. In my view, this case turns on the state protection determination and the proposed question would not, therefore, dispose of an appeal.
ORDER
THIS COURT ORDERS that the application is dismissed. No question is certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8579-03
STYLE OF CAUSE: SYED ZAHID ABBAS KAZMI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 5, 2004
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
APPEARANCES BY:
Mr. Frederick S. Wang FOR THE APPLICANT
Mr. Marcel Larouche FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Frederick S. Wang
Bay Street Immigration Lawyers
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20041006
Docket: IMM-8579-03
BETWEEN:
SYED ZAHID ABBAS KAZMI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent