| Citation: |
Parshottam v. Canada (Minister of Citizenship and Immigration), 2008 FCA 355, [2009] 3 F.C.R. 527 |
A-73-08 |
Karim Badrudin Parshottam (Appellant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Parshottam v. Canada (Minister of Citizenship and Immigration) (F.C.A.)
Federal Court of Appeal, Evans, Sharlow and Ryer JJ.A.—Toronto, October 30; Ottawa, November 14, 2008.
Citizenship and Immigration — Exclusion and Removal — Removal of Refugees — Appeal from Federal Court decision dismissing judicial review of unsuccessful pre-removal risk assessment (PRRA) application — Appellant long-time permanent resident of United States — Refugee Protection Division (RPD) holding appellant excluded under United Nations Convention Relating to the Status of Refugees, Art. 1E as permanent resident of U.S. when entered Canada — Leave to apply for judicial review denied, removal order issued — After considering new evidence in form of letters expressing contrary opinion, PRRA officer concluding appellant still permanent resident of U.S. at time of PRRA — PRRA officer’s finding not unreasonable in circumstances — Refusal not putting appellant at risk of return to country where persecuted given letter from U.S. authorities consenting to return to U.S. — Majority declining to answer certified question — Appeal dismissed — Sharlow J.A. (concurring): If new evidence Art. 1E not applying as of date of PRRA, officer may determine whether or not Art. 1E currently applies — If change of status such that Art. 1E not applicable, PRRA officer should consider why change occurred, what steps claimant took, might have taken to cause or fail to prevent change of status — If asylum shopping apparent, Art. 1E may apply despite change in status.
Judges and Courts — Majority declining to answer question certified by Federal Court under Immigration and Refugee Protection Act, s. 74(d) because not dispositive of appeal — Sharlow J.A. (concurring): Question should be answered even if not dispositive of appeal because Federal Court case law disclosing confusion on issue; by certifying question, Federal Court Judge expressing opinion serious question of general importance.
This was an appeal from the Federal Court’s dismissal of an application for judicial review of the decision of a pre-removal risk assessment (PRRA) officer finding that the appellant would not be at risk if returned to the United States. The appellant entered Canada in February 2004 from the United States with a green card which was valid until June 2004, evidencing his status in the U.S. as a permanent resident. He had resided lawfully in the U.S. for the previous 18 years. His application for refugee protection, based on a well-founded fear of persecution in Uganda and Pakistan, was dismissed based on his permanent resident status in the U.S. when he entered Canada. As such, the Refugee Protection Division (RPD) held that he was a person referred to in Article 1E of the United Nations Convention Relating to the Status of Refugees and the Federal Court denied him leave to apply for judicial review of that decision. Following issuance of a removal order he applied for a PRRA. In December 2006, the PRRA officer admitted as new evidence two opinion letters which had not been before the RPD, expressing doubts as to whether the appellant would still be considered a permanent resident of the U.S. However, the officer held that at the time of the pre-removal risk assessment, the appellant was a permanent resident of the U.S. and could be returned thereto based on that status. The officer also rejected his arguments that if returned to the U.S. he would be at risk of persecution or of refoulement to Uganda or Pakistan. The Federal Court dismissed the application for judicial review and certified a question as to whether the relevant date for determination of whether a person should be excluded under Article 1E and section 98 of the Immigration and Refugee Protection Act (IRPA) was the date of admission to Canada or the date of the PRRA application.
Held, the appeal should be dismissed.
Per Evans J.A. (Ryer J.A. concurring): The certified question was not answered because it was not dispositive of the appeal.
As to the admissibility of the opinion letters under paragraph 113(a) of the IRPA as “new evidence”, the Court’s task on judicial review is limited to examining the evidence to ensure that the PRRA officer’s finding was not unreasonable. When the circumstances were considered in their entirety, including the RPD’s finding less than a year before the PRRA officer’s decision that the appellant was, at the time of entry into Canada, and continued to be, a permanent resident of the U.S., the PRRA officer’s conclusion was not unreasonable. Since the Federal Court denied the application for leave to challenge the RPD’s decision, the appellant was bound by the RPD’s finding. To the extent that the seriousness of the consequences of the PRRA officer’s decision were part of the context, the refusal of his PRRA application did not put the appellant at risk of being sent to a country where he requires protection. Because he holds a letter of consent the appellant will not be peremptorily refused entry to the U.S.
Per Sharlow J.A. (concurring): The question of whether it was open to the PRRA officer to consider whether the Article 1E bar remained in effect in December 2006 when, on the eve of the appellant’s removal to the U.S., he made his claim for protection under section 112 of the IRPA is unsettled and should be answered because Federal Court case law discloses some confusion on this point and because the Federal Court, in certifying the question, has expressed the opinion that it is a serious question of general importance.
The RPD considered the appellant’s status at two points in time: when he first made his refugee claim and then when the RPD made its decision. There was no error in principle in this general approach. It respects the purpose of Article 1E of the Convention and section 98 of the IRPA, both of which are expressed in the present tense, by ensuring an examination of status in the U.S. as of the date of the decision. At the same time, it discourages asylum shopping. The PRRA officer took the same approach, considering the appellant’s status in the U.S. when he entered Canada and made his refugee claim and at the time of the PRRA. The answer to the certified question should be that if a claimant presents new evidence that Article 1E does not apply as of the date of the PRRA, the officer may determine on the basis of the new evidence whether or not Article 1E currently applies. If it does apply, the claim is barred. If a change of status has occurred and it does not currently apply, the PRRA officer should consider why the change occurred and what steps, if any the claimant took or might have taken to cause or fail to prevent the change of status. If the acts or omissions of the claimant indicate asylum shopping, Article 1E may be held to apply despite the change in status.
Assuming that the opinion letters were properly accepted, it was reasonable for the PRRA officer to find that they were insufficient to establish that the appellant had lost his permanent resident status in the U.S. The record did not establish what factual information was provided to the letter writers which weakened their probative value and the letters did not address a number of aspects of U.S. immigration law. The PRRA officer was apparently incorrect in interpreting a letter from U.S. Customs consenting to the return of the appellant to the U.S. as indicating that he was authorized to return under a Reciprocal Arrangement. Such letter was not an acknowledgement that the appellant would be regarded as a permanent resident. Therefore it was illogical to use the consent letter as a reason for giving less weight to the opinion letters. However, notwithstanding the PRRA officer’s incorrect statement, the opinion letters were not sufficiently probative to warrant a new pre-removal risk assessment.
statutes and regulations judicially considered
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 74(d), 98, 112, 113(a),(c).
United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1E.
cases judicially considered
referred to:
Mahdi v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 1; 191 N.R. 170 (F.C.A.); F.H. v. McDougall, [2008] 3 S.C.R. 41; (2008), 297 D.L.R. (4th) 193; [2008] 11 W.W.R. 414; 2008 SCC 53; Rai v. Canada (Minister of Citizenship and Immigration) (2007), 305 F.T.R. 135; 2007 FC 12; Elezi v. Canada (Minister of Citizenship and Immigration), [2008] 1 F.C.R. 365; (2007), 310 F.T.R. 59; 62 Imm. L.R. (3d) 66; 2007 FC 240; Figurado v. Canada (Solicitor General), [2005] 4 F.C.R. 387; (2005), 28 Admin. L.R. (4th) 82; 262 F.T.R. 219; 2005 FC 347.
authors cited
Jones, Martin and Sasha Baglay. Refugee Law, Toronto: Irwin Law, 2007.
APPEAL from the decision of the Federal Court ((2008), 68 Imm. L.R. (3d) 288; 2008 FC 51) dismissing an application for judicial review of the decision of a pre-removal risk assessment officer. Appeal dismissed.
appearances:
Leigh Salsberg for appellant.
Martin E. Anderson and David Joseph for respondent.
solicitors of record:
Jackman & Associates, Toronto, for appellant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
Evans J.A.:
A. INTRODUCTION
[1] This is an appeal by Karim Badrudin Parshottam, a citizen of Uganda by birth, from a decision of the Federal Court ((2008), 68 Imm. L.R. (3d) 288), in which Justice Mosley dismissed his application for judicial review of a rejection of his application for protection by a pre-removal risk assessment (PRRA) officer.
[2] Mr. Parshottam entered Canada in February 2004 from the United States with a green card, evidencing his status in the United States as a permanent resident. The card was valid until June 2004. He had resided lawfully in the United States for the previous 18 years. On his arrival in Canada, Mr. Parshottam applied for recognition as a refugee. Although he alleged a fear of persecution in the United States, the principal basis of his claim was that he had a well-founded fear of persecution as a gay Muslim man in Uganda and in Pakistan, where he lived with his parents after their expulsion from Uganda by the regime of Idi Amin. Mr. Parshottam is now 47 years old.
[3] In a decision dated January 9, 2006, the Refugee Protection Division of the Immigration and Refugee Board (RPD) dismissed his application for recognition in Canada as a refugee. The RPD found that Mr. Parshottam had been a permanent resident of the United States since 1990, a status which he retained when he arrived in Canada. The RPD also stated that “on a balance of probabilities, the claimant continues to be a permanent resident of the United States” and “there is no serious doubt that the United States of America would no longer recognise him as a permanent resident”.
[4] Accordingly, Mr. Parshottam was held to be a person referred to in Article 1E of the United Nations Convention Relating to the Status of Refugees [July 28, 1951, [1969] Can. T.S. No. 6] (Convention) and, as such, was neither a Convention refugee nor a person in need of protection by virtue of section 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
[5] In April 2006, the Federal Court denied Mr. Parshottam’s application for leave to apply for judicial review of the RPD’s decision. Following the issue of a removal order, he applied for a PRRA.
[6] In a decision dated December 12, 2006, a PRRA officer dismissed Mr. Parshottam’s application for protection, concluding:
At the time of this PRRA assessment, and based on the evidence before me, the applicant is a Permanent Resident of the United States and may be returned to that country based on that status. The evidence before me does not show that the applicant has lost his status in the United States as a Permanent Resident. [Emphasis added.]
The officer also rejected his arguments that, if returned to the United States, he would be at risk of persecution there as a gay Muslim man and of refoulement to Uganda or Pakistan.
[7] Under a Reciprocal Arrangement between Canada and the United States for the exchange of deportees, U.S. Customs and Border Protection issued a letter, dated July 31, 2006, consenting to the return of Mr. Parshottam to the United States. However, this letter is not an acknowledgement by U.S. authorities that, on his return, Mr. Parshottam would be regarded by U.S. authorities as a permanent resident.
[8] Justice Mosley dismissed his application for judicial review of the PRRA decision and certified the following question for appeal under paragraph 74(d) of the IRPA:
Once the Refugee Protection Division excludes an individual from protection under Article 1E of the Refugee Convention and IRPA s. 98 due to having nationality of a third country, what is the relevant date for a PRRA officer’s determination whether the individual should also be excluded under Article 1E and section 98 from PRRA protection — t he time of admission to Canada or the time of the PRRA application?
B. Legislative Framework
Section E of Article 1 of the United Nations Convention Relating to the Status of Refugees
E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.
Immigration and Refugee Protection Act
98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.
…
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
…
(c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98;
C. ISSUES AND ANALYSIS
[9] Mr. Parshottam had advanced a number of arguments before the RPD, the PRRA officer, and Justice Mosley to support his claim for protection in Canada. However, before us counsel relied on only two: (1) the PRRA officer was correct to determine whether Mr. Parshottam was a permanent resident of the United States for the purposes of Article 1E of the Convention and section 98 of the IRPA as of the date of the assessment, not of his admission to Canada; (2) the PRRA officer erred in concluding that Mr. Parshottam was a permanent resident of the United States at the time of the assessment.
Issue 1: Permanent residence: time of determination
[10] In my view, the question certified by Justice Mosley is not dispositive of the appeal and should not be answered. It is clear from the extract from the PRRA officer’s reasons, which I quoted in paragraph 6 above, that she determined Mr. Parshottam’s permanent resident status in the United States as of the date of her assessment. Counsel for Mr. Parshottam submits that this is the correct date. However, because I would dismiss the appeal on other grounds, I am prepared to assume for present purposes that counsel is right to say that an applicant’s permanent residence in a third country is determined as of the date of the PRRA.
[11] I would only add that, with all respect to Justice Mosley, I do not share his view that it is “settled law” that whether a claimant for protection in Canada is a permanent resident of a third country for the purpose of Article 1E of the Convention and section 98 of the IRPA is invariably determined as of the time of the claimant’s arrival in Canada and that subsequent events are irrelevant: see, for example, Martin Jones and Sasha Baglay, Refugee Law (Toronto: Irwin Law Inc., 2007) at pages 153-154. Beyond this, nothing in these reasons is to be taken as expressing a view on the correct answer to the certified question.
[12] It is common ground that if Mr. Parshottam was a permanent resident of the United States at the relevant time, he is excluded by Article 1E from claiming refugee status in Canada.
Issue 2: Did the PRRA officer err in concluding that Mr. Parshottam was a permanent resident of the United States at the time of the assessment for the purposes of Article 1E and IRPA, section 98?
[13] Justice Mosley did not deal with this issue because he was of the view that the PRRA officer should have assessed Mr. Parshottam’s permanent resident status as of his entry into Canada in February 2004.
[14] Counsel for the Minister argued that a PRRA officer may only consider whether an applicant is at risk as against the country to which he or she is being removed from Canada. Accordingly, since Mr. Parshottam was being removed to the United States, where he would be admitted under the letter of consent, the only questions were whether he was at risk of persecution in, or refoulement from, the United States. Because Mr. Parshottam no longer challenges the PRRA officer’s conclusion that he was not at risk in these respects, the Minister says that the appeal should be dismissed. However, I need not decide this issue in order to dispose of the appeal and I express no view on it.
[15] As I have already noted, the RPD found that Mr. Parshottam was a permanent resident of United States on his arrival in Canada and continued to be so. Since the Federal Court denied Mr. Parshottam’s application for leave to challenge this decision, he is bound by it and cannot collaterally impugn its findings in this proceeding.
[16] The PRRA officer took into consideration two opinion letters, which had not been before the RPD, expressing doubts as to whether Mr. Parshottam would still be recognized as a permanent resident of the United States as a result of both the length of his absence and his application for refugee status in Canada. Despite these letters, the PRRA officer concluded that he had not lost his status.
(i) Standard of proof
[17] Whether the officer applied the appropriate standard of proof is a question of law of general application to PRRAs and, like other such questions of law decided in this administrative context, is reviewable on a standard of correctness. I agree with Justice Mosley (at paragraph 16 of his reasons) on this issue.
[18] Counsel argued that the PRRA officer had erred in law by applying the wrong standard of proof. That is, the officer required Mr. Parshottam to prove as a matter of certainty that he had lost his permanent resident status in the United States. Counsel relied on Mahdi v. Canada (Minister of Citizenship and Immigration) (1995), 191 N.R. 170 (F.C.A.), at paragraph 12, as authority for the proposition that the officer should have asked whether on a balance of probabilities Mr. Parshottam had lost his status, taking into account the possibility that United States’ authorities might no longer recognize him as a permanent resident because of the expiry of his green card, the length of time that he had been in Canada and the fact that he had left the United States to apply for permanent resident status in Canada as a refugee.
[19] I do not agree. Although the PRRA officer did not articulate the standard of proof that she was applying, it is to be assumed in the absence of indications to the contrary that she applied the correct one, namely, a balance of probabilities: F.H. v. McDougall, [2008] 3 S.C.R. 41, at paragraph 54 (F.H.). In my opinion, the officer’s reasons, including her observation that whether Mr. Parshottam was still a permanent resident would ultimately be determined by an immigration judge in the United States, do not establish that she applied some standard other than a balance of probabilities.
[20] I do not read her reasons as treating a judicial determination of loss of status as a necessary precondition to a finding by the PRRA officer that Mr. Parshottam was no longer a permanent resident in the United States. Further, the fact that the RPD had expressly applied the correct standard, a decision which the PRRA officer had before her, also makes it unlikely that she selected another standard. Since it is clear from the officer’s reasons that she took into account the evidence supporting Mr. Parshottam’s contention that he had lost permanent resident status in the United States, it would be unduly formalistic to require, as a matter of law, that she advert expressly in her reasons to the doubt which that evidence raised.
(ii) Application of the standard of proof
[21] The officer’s application of the correct standard of proof to the evidence is a question of mixed fact and law, in which the factual element is the larger. Hence, the standard of review is unreasonableness: Rai v. Canada (Minister of Citizenship and Immigration) (2007), 305 F.T.R. 135 (F.C.), at paragraph 17.
[22] Counsel argued that, in view of the new evidence before her, the PRRA officer’s finding that Mr. Parshottam was a permanent resident in the United States at the time of the assessment was unreasonable.
[23] The first item of “new” evidence considered by the PRRA officer was a letter, dated June 28, 2006, from Nan Berezowski, an immigration lawyer practising in Toronto and a member of the New York Bar. On the basis of the information about Mr. Parshottam’s situation that she had been given by his counsel, Ms. Berezowski stated that permanent residents do not have an automatic right to resume their status after an absence from the United States: the length of time spent abroad and whether absence from the United States was intended to be temporary will be taken into consideration. She concluded that Mr. Parshottam “has extremely poor prospects for readmission to the United States as a lawful Permanent Resident”.
[24] The second letter, dated May 19, 2006, was from Gary Sheaffer, Consular Section Chief, U.S. Consulate General in Montréal. He expressed the view that, on the basis of the facts that he had been given (including his claim to remain in Canada as a refugee and the length of his absence), it was “not likely” that Mr. Parshottam would qualify as a returning resident. He referred, in particular, to the fact that, by applying for refugee status in Canada, Mr. Parshottam had evinced “a clear desire to abandon U.S. status”.
[25] The Minister has not challenged the decision of the PRRA officer to admit the two letters under paragraph 113(a) of the IRPA as “new evidence”. However, I make the following observations in order to put the letters in context. First, although dated approximately 12 months after the date of the RPD hearing (June 3, 2005), the letters do not demonstrate any material change of circumstances since the RPD dismissed Mr. Parshottam’s refugee claim in January 2006. Second, since Mr. Parshottam had arrived in Canada in February 2004 and his green card had expired in June of that year, the opinions expressed in the letters might be thought to have been reasonably available to him at the time of the hearing at the RPD, and could have been expected to have been put in evidence by his legal counsel, who was not his present counsel. The fact that the letters were dated after the RPD hearing does not make them “new evidence”: Elezi v. Canada (Minister of Citizenship and Immigration), [2008] 1 F.C.R. 365 (F.C.), at paragraphs 27-30.
[26] The letters were written by appropriately qualified people and on their face raise a doubt about Mr. Parshottam’s future status in the United States. However, it is not the function of a reviewing court to determine for itself whether it would have concluded that this evidence was “sufficiently clear, convincing and cogent to satisfy the balance of probabilities” (F.H., at paragraph 46) that Mr. Parshottam would no longer be regarded by U.S. authorities as a permanent resident. That is the job of the PRRA officer. This Court has the more limited task on judicial review of examining the evidence to ensure that her finding was not unreasonable.
[27] I am not persuaded that, when the circumstances are considered in their entirety, the PRRA officer’s conclusion was unreasonable, particularly since the evaluation of the evidence before her was at the core of her expertise.
[28] An important context of the officer’s decision is the finding by the RPD, in a decision rendered less than a year earlier, that Mr. Parshottam was at the time of entry into Canada, and continued to be, a permanent resident of the United States. Although noting that the expiry of Mr. Parshottam’s green card did not result automatically in the lapse of his permanent resident status, the RPD does not seem otherwise to have specifically considered the effect of his absence on his status. However, having failed to obtain leave to apply for judicial review of that decision, Mr. Parshottam cannot collaterally attack the RPD’s decision but must take its findings as they are.
[29] The PRRA officer was concerned that the letters may not have given sufficient weight to the fact that resident status is determined on the facts of individual cases. Hence, the cogency of the letters that she considered can only be assessed by reference to the factual assumptions on which they were based, something that the record does not reveal. The officer notes, for example, that the letters do not refer to Mr. Parshottam’s “psychological challenges” and their possible impact on his decision to leave the United States. Nor do they refer to the fact that he had resided in the United States for 18 years, the last 14 of them as a permanent resident.
[30] To the extent that the seriousness of the consequences of the PRRA officer’s decision are considered as part of the context in a determination of whether the balance of probabilities standard has been met (F.H., at paragraph 40), I would note that the refusal of his PRRA application does not put Mr. Parshottam at risk of being sent to a country where he requires protection.
[31] We know also that, because he holds a letter of consent, Mr. Parshottam will not be peremptorily refused entry at the border, whatever his residence status in the United States is ultimately determined to be. The PRRA officer’s reasons may suggest that she may not always have kept separate and distinct the different bases advanced by Mr. Parshottam for his application for protection. However, I am not satisfied that, when considered “globally and as a whole” (Figurado v. Canada (Solicitor General), [2005] 4 F.C.R. 387 (F.C.), at paragraph 51), her decision can be said to be unreasonable.
D. CONCLUSIONS
[32] For these reasons, I would dismiss the appeal.
Ryer J.A.: I agree.
* * *
The following are the reasons for judgment rendered in English by
[33] Sharlow J.A.: I agree with the disposition of this appeal proposed by my colleague Justice Evans. However, I reach that conclusion for different reasons.
[34] The certified question that opened the door to this appeal reads as follows:
Once the Refugee Protection Division excludes an individual from protection under Article 1E of the Refugee Convention and IRPA s. 98 due to having nationality of a third country, what is the relevant date for a PRRA officer’s determination whether the individual should also be excluded under Article 1E and section 98 from IRPA protection — t he time of admission to Canada or the time of the PRRA application?
[35] Article 1E of the Convention and section 98 of the IRPA establish a legal bar to a refugee claim. They are quoted in the reasons of Justice Evans and are repeated here for ease of reference.
CONVENTION
E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.
IRPA
98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.
[36] It is generally accepted that the Article 1E exclusion would apply to any person who has the status of permanent resident of the U.S. and who makes a refugee claim in Canada against the country of his or her nationality. Mr. Parshottam was a permanent resident of the U.S. in February of 2004 when he entered Canada and when he made his refugee claim against Uganda (he also made a refugee claim against the U.S. but that claim was dismissed and is not being pursued). There is no evidence that the U.S. immigration authorities have taken any steps to deprive Mr. Parshottam of his status as a permanent resident of the U.S. Thus, if Mr. Parshottam’s refugee claim against Uganda had been adjudicated in February of 2004, it would have been barred by Article 1E. Mr. Parshottam’s fear is that if he is now removed to the U.S., the U.S. authorities may determine that he is no longer entitled to the status of permanent resident of the U.S., and could remove him to Uganda despite his well-founded fear of persecution there.
[37] It is clear from the record that, even if the U.S. authorities determine that Mr. Parshottam is no longer entitled to the status of permanent resident of the U.S., he is unlikely to be refouled to Uganda. However, that should not obscure the importance of this appeal to Mr. Parshottam. If the decision of the PRRA officer in this case is wrong in law or is unreasonable, Mr. Parshottam will have been wrongly deprived of his right to assert, in Canada, a potentially valid refugee claim against Uganda. It is clear that, but for Article 1E, Mr. Parshottam’s refugee claim against Uganda would have succeeded on the merits (see the written observations made by the Refugee Protection officer, appeal book, Vol. 2, at page 241).
[38] As I understand the certified question, it is intended to determine whether it was open to the PRRA officer to consider whether the Article 1E bar remained in effect in December of 2006 when, on the eve of Mr. Parshottam’s removal to the U.S., he made his claim for protection under section 112 of the IRPA. I agree with Justice Evans that this issue is unsettled but I do not agree that it should remain unsettled, even if it is not dispositive of this appeal. I reach that conclusion because the Federal Court jurisprudence discloses some confusion on this point and because Justice Mosley, by certifying the question, has expressed the opinion that it is a serious question of general importance.
[39] Mr. Parshottam proposes an answer to the certified question that is the polar opposite of the answer proposed by the Minister. Mr. Parshottam argues that his status as a permanent resident of the U.S. must be determined as of the date of the pre-removal risk assessment and at no other time. The Minister argues that, because Mr. Parshottam was a permanent resident of the U.S. in February of 2004 when he entered Canada and made his refugee claim, it is not open to him to assert that he may have lost that status at some point during his sojourn in Canada or that the U.S. authorities may not recognize that status if he is removed to the U.S.
[40] It is instructive to consider the decision of the RPD in this case, even though it is final and not subject to judicial review. The RPD did not accept either of the extreme views stated above. Rather, the RPD took a middle path, recognizing that Mr. Parshottam was a permanent resident of the U.S. in February of 2004 when he entered Canada and made his refugee claim, but going on to consider Mr. Parshottam’s assertion that he had lost his status as a permanent resident of the U.S. while he was in Canada. In effect, the RPD determined Mr. Parshottam’s U.S. status at two points in time, first as of February of 2004 when Mr. Parshottam first made his refugee claim, and then as of January of 2006 when the RPD made its decision. The RPD examined carefully what change to Mr. Parshottam’s status was alleged to have occurred in the interim, and the degree of responsibility that should reasonably be borne by Mr. Parshottam if in fact there was a change of status.
[41] I see no error in principle in the general approach taken by the RPD. It respects the purpose of Article 1E and section 98, both of which are expressed in the present tense, by ensuring an examination of Mr. Parshottam’s status in the U.S. as of the date of the decision. At the same time, it discourages asylum shopping by considering evidence that would tend to indicate that Mr. Parshottam has failed to take the formal steps available to him to preserve his status in the U.S. as it was when he first asserted his refugee claim in February of 2004.
[42] The PRRA officer took the same approach, correctly in my view, when she considered the merits of Mr. Parshottam’s assertion that his status as a permanent resident of the U.S. was lost or would not be recognized. The PRRA officer, like the RPD, considered Mr. Parshottam’s status in the U.S. as of February of 2004 when he entered Canada and made his refugee claim, and also at the time of the pre-removal risk assessment in December of 2006. In my view, that was the correct approach. I would answer the certified question as follows:
Question: Once the Refugee Protection Division excludes an individual from protection under Article 1E of the Refugee Convention and IRPA section 98 due to having nationality of a third country, what is the relevant date for a PRRA officer’s determination whether the individual should also be excluded under Article 1E and section 98 from PRRA protection—t he time of admission to Canada or the time of the PRRA application?
Answer: If the claimant presents new evidence (as contemplated by paragraph 113(a) of the IRPA) that Article 1E does not apply as of the date of the pre-removal risk assessment, the PRRA officer may determine on the basis of the new evidence that Article 1E currently applies, in which case the claim for protection is barred. Alternatively, the PRRA officer may determine on the basis of the new evidence that Article 1E does not currently apply although it did apply at the time of the claimant’s admission to Canada (or at the date of the RPD decision). If such a change of status has occurred, the PRRA officer should consider why the change of status occurred and what steps, if any, the claimant took or might have taken to cause or fail to prevent the change of status. If the acts or omissions of the claimant indicate asylum shopping, Article 1E may be held to apply despite the change in status.
[43] I turn now to the merits of the PRRA officer’s decision. She concluded first that Mr. Parshottam had presented her with two letters that met the statutory conditions for “new evidence” pursuant to paragraph 113(a) of the IRPA. One is a letter dated June 28, 2006 from an immigration lawyer. The other is a letter dated May 19, 2006 from a U.S. consular official.
[44] The Minister did not object to the PRRA officer considering the letters. The admissibility of the letters was not the subject of debate in the Federal Court and was not raised in this appeal as an issue in Minister’s memorandum of fact and law. I do not agree with the observation of Justice Evans that the information in the letters might have been reasonably available at the time of the RPD hearing and could have been expected to have been produced at that stage. In my view the record provides no foundation for that observation. My analysis presumes that the evidence was properly accepted by the PRRA officer on the basis that in the circumstances, it would not have been reasonable to expect Mr. Parshottam to present that evidence to the RPD.
[45] The question in this appeal is whether it was reasonable for the PRRA officer to conclude, on a balance of probabilities, that Mr. Parshottam was a permanent resident of the U.S. as of the date of the pre-removal risk assessment.
[46] The new evidence considered by the PRRA officer indicates that the conduct of Mr. Parshottam in coming to Canada to make a refugee claim may be taken by the U.S. authorities as a declaration of his intention not to return to the U.S. or an expression of his desire to abandon his U.S. status. The record does not establish what factual information was provided to the writers of these letters to elicit this reply, which weakens their probative value. Further, as the PRRA officer noted, there are a number of aspects of U.S. immigration law that these letters do not address, including the fact that in the U.S., the determination of the status of a returning permanent resident is assessed on an individual basis. Therefore, it was reasonable in my view for the PRRA officer to find that these two letters were insufficient to establish that Mr. Parshottam had lost his status as a permanent resident of the U.S.
[47] There is one aspect of the PRRA officer’s consideration of the new evidence that appears to me to be incorrect. It appears in this sentence (appeal book, Vol. 1, at page 33):
Further, [the letters] do not take into account the U.S./Canada Reciprocal Arrangement. A consent letter is on file dated, July 31, 2006 which indicates that the applicant is authorized to return to the United States pursuant to Section III (2) of the Reciprocal Arrangement.
[48] This comment refers to a letter dated July 31, 2006 to the Minister from the U.S. Customs and Border Protection consenting to the return of Mr. Parshottam to the U.S. I agree with Justice Evans that this letter is not an acknowledgement by U.S. authorities that, on his return, Mr. Parshottam would be regarded by U.S. authorities as a permanent resident. For that reason, it seems to me illogical for the PRRA officer to use the consent letter as a reason for giving less weight to the letters from the lawyer and the U.S. consular official addressing Mr. Parshottam’s status as a permanent resident of the U.S. However, even if she had not made that statement, I cannot conclude that the letters from the lawyer and the U.S. consular officer are sufficiently probative to warrant a new pre-removal risk assessment.
[49] For these reasons, I would dismiss the appeal.