Date: 20041022
Docket: IMM-8077-03
Citation: 2004 FC 1473
Toronto, Ontario, October 22nd, 2004
Present: The Honourable Mr. Justice O'Keefe
BETWEEN:
IHSAN BABILLY
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") for judicial review of the August 8, 2003 decision of a pre-removal risk assessment officer, (the "PRRA Officer"), wherein it was determined that Ihsan Babilly (the "applicant") would not be subject to a risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment if returned to Syria, his country of nationality.
[2] The applicant seeks an order:
1. Setting aside the decision of the PRRA Officer; and
2. Referring the applicant's claim back for re-determination in accordance with such directions as this Honourable Court considers appropriate.
[3] In his notice of application, the applicant also requested an extension of time to file his application for leave and judicial review, which was filed six days past the statutory deadline of fifteen days from the date of receiving the PRRA Officer's decision. He states that he received the PRRA Officer's decision on September 24, 2003, meaning that the 15 day period to file leave expired on October 9, 2003. The applicant filed six days later on October 15, 2003. In granting leave to commence this application for judicial review, the applicant's request for an extension of time was not explicitly dealt with. If necessary, the time for the applicant to file his application for leave and for judicial review is extended to October 15, 2003.
Background
[4] The applicant is a citizen of Syria who left that country in May 1999 for Turkey, and arrived in Canada on October 30, 1999.
[5] The applicant made a Convention refugee claim, alleging a well-founded fear of persecution based on his perceived political opinion of being a supporter of the Muslim Brotherhood , his Sunni Muslim religion, and his membership in a particular social group, namely his family.
[6] The applicant's claim for refugee protection was denied by a May 29, 2000 decision of the Convention Refugee Determination Division ("CRDD"), as it was then constituted under the former Immigration Act, R.S.C. 1985, c. I-2 (which was repealed by S.C. 2001, c. 27, section 274).
[7] The CRDD rejected the applicant's refugee claim because it did not find it credible that the Syrian authorities were interested in the applicant's whereabouts, that the applicant's behaviour in Syria between 1995 and 1999 was not consistent with a subjective fear of persecution and torture, and due to the implausibility and lack of credibility of some of the applicant's allegations.
[8] The applicant's request for inland processing of his permanent residence application based on humanitarian and compassionate ("H & C") grounds was denied on January 18, 2003. The negative H & C decision is the subject of file IMM-1472-03.
[9] On May 30, 2003, the applicant requested a pre-removal risk assessment ("PRRA"). In his PRRA application, the applicant stated that he was arrested several times in 1995 by Syrian security police, was interrogated, threatened, tortured and then released. The applicant stated that he was tortured in detention to force him to confess his membership in the Muslim Brotherhood.
[10] By letter dated August 8, 2003, the applicant's PRRA application was refused. The PRRA Officer's "Notes to File" constitute the written reasons for her decision.
[11] On October 22, 2003, Lemieux J. granted the applicant's request for a stay of his removal to Syria pending final determination of his application for leave and judicial review of the PRRA Officer's decision.
[12] On March 29, 2004, Layden-Stevenson J. granted leave for the applicant to bring his application for judicial review of the PRRA Officer's decision.
The PRRA Officer's Decision
[13] The PRRA Officer recognized that the applicant was alleging a fear of detention and torture on the basis of being a Sunni Muslim and for perceived political opinion, namely, membership in the Muslim Brotherhood. The PRRA Officer held that the applicant had provided insufficient evidence to support his claim of persecution for reasons of religion, since Sunni Muslims form the majority in Syria and although the ruling Alawi sect may discriminate against Sunni Muslims, this treatment did not amount to persecution.
[14] The PRRA Officer also rejected the applicant's claims of being at risk due to his perceived political opinion. In essence, the PRRA Officer was not convinced the applicant would be pursued by the authorities if he returned to Syria, based on:
1. The applicant's presence in Syria for four years after his last period of detention and the fact that he has been out of the country for an additional four years;
2. The applicant's new evidence (a letter from his Mosque and a letter from his mother) was not of sufficient probative value to persuade the PRRA Officer that the applicant was indeed wanted by the Syrian authorities; and
3. Although the documentary evidence reports ill treatment of high profile political opponents, the applicant was not a political activist, did not have a high profile, and was not a member of the Muslim Brotherhood.
[15] The PRRA Officer acknowledged that Syrian officials prosecute those who leave Syria illegally and unsuccessfully seek asylum in other countries, and impose sentences of imprisonment and fines. The PRRA Officer was not satisfied that the applicant had left Syria illegally. The CRDD had found that the applicant's explanations regarding his departure from Syria were not credible. The PRRA Officer held that there was insufficient evidence to arrive at a conclusion different from the CRDD on this issue. Even if the applicant had left Syria illegally, however, the PRRA Officer found that a sentence of three months detention and a fine was not a violation of international standards.
[16] The PRRA Officer concluded (at page 5 of the "Notes to File"):
While I acknowledge documentary evidence of Syria's poor human rights record, I do not find there is more than a mere possibility the applicant, who is not a political activist, a dissident, or a religious activist, and who is a Sunni Muslim who has been out of the country for over four years, would face a risk of persecution on one of the convention grounds. I find it unlikely he would face a risk to life or a risk of cruel and unusual treatment or punishment from Syrian authorities.
[17] This proceeding is the judicial review of the PRRA Officer's decision.
Applicant's Submissions
[18] The applicant submitted that the applicable standard of review is reasonableness simpliciter.
[19] The applicant submitted that the PRRA Officer's decision is reviewable for a number of reasons, specifically that:
1. The PRRA Officer erred in her assessment of the applicant's new evidence by giving no rationale or reasoning with respect to why the two letters submitted by the applicant had no probative value;
2. The PRRA Officer did not have a proper understanding of the true risk alleged by the applicant, namely his perceived political opinion of supporting the Muslim Brotherhood. The applicant further submitted that the PRRA Officer misinterpreted his claim as one based on religion;
3. The PRRA Officer erred by failing to consider the most up-to-date information available at the time of her assessment, including information from Amnesty International, the National Post and the Globe and Mail regarding the treatment of Maher Arar at the hands of Syrian authorities for allegedly belonging to the Muslim Brotherhood organization. In the applicant's view, this information directly contradicts the PRRA Officer's statement that only high profile political opponents would be of interest to the Syrian authorities. By ignoring this relevant evidence, the applicant submitted that the PRRA Officer erred; and
4. It was a fundamental error for the PRRA Officer to decide that a sentence of three months imprisonment and a fine for illegally leaving Syria and claiming asylum elsewhere did not violate international standards. The applicant pointed out that the PRRA Officer did not cite any authority for this proposition, and stated that returning the applicant to Syria would contravene the principle that it is unacceptable to return a person to face torture.
Respondent's Submissions
[20] The respondent denied that the PRRA Officer misapprehended the applicant's claim, or ignored evidence. Furthermore, the respondent submitted that the applicant is essentially asking this Court to re-weigh the evidence before the PRRA Officer, which is not the role of this Court sitting on judicial review.
[21] The respondent submitted that the PRRA Officer's Notes to File indicate that she clearly understood the risk alleged by the applicant. The respondent further submitted that the applicant has failed to point to any specific mischaracterization of the basis for his claim. To the contrary, the respondent pointed to the PRRA Officer's reference in Part 3 "Risks Identified by the Applicant" and Part 6 "Assessment of Risk" of her Notes to File which specifically refer to the applicant's claim being based on his perceived membership in the Muslim Brotherhood.
[22] The respondent submitted that the PRRA Officer's treatment of the new evidence submitted by the applicant was appropriate and does not provide any basis for this Court's intervention. In the respondent's view, it was open to the PRRA Officer to weigh the letters and conclude they had minimal probative value. The letters were not written by disinterested persons, did not state that the applicant is perceived in Syria as a member of the Muslim Brotherhood, nor do they explain why the applicant is allegedly still sought by the Syrian authorities.
[23] The respondent stated that the PRRA Officer did not err by failing to consider the Amnesty International information and press reports regarding Maher Arar, since that information was not submitted to her and furthermore, it addressed the specific circumstances of another individual. The respondent contended that it is misleading for the applicant to present these documents along with documents that were actually before the PRRA Officer as a single exhibit to his affidavit.
[24] Contrary to the applicant's argument, the respondent stated that it was open to the PRRA Officer to conclude that punishment for leaving Syria illegally would constitute prosecution, not persecution. In the respondent's view, such a law is of general application that does not, in and of itself, constitute persecution unless it is one of a series of discriminatory measures which pertain to a Convention ground. Furthermore, the respondent argued that an ordinary law of general application, even in a non-democratic society, should be given a presumption of validity and neutrality.
[25] The respondent pointed out that the PRRA Officer's finding regarding prosecution not constituting persecution was in the alternative to the PRRA Officer's primary view that it was not believable that the applicant had left Syria illegally.
[26] The respondent submitted that the PRRA Officer's findings of fact and weighing of the evidence should be accorded considerable deference. As the applicant had not demonstrated that the PRRA Officer's assessment was patently unreasonable or fundamentally flawed, the respondent requested that this application for judicial review be dismissed.
Issues
[27] The applicant's arguments raise the following issues:
1. Did the PRRA Officer err in assessing the applicant's new evidence?
2. Did the PRRA Officer misapprehend the basis of the applicant's allegations of risk?
3. Did the PRRA Officer ignore relevant documentary evidence?
4. Did the PRRA Officer err in her analysis of prosecution versus persecution?
Relevant Statutory Provisions and Regulations
[28] Subsection 96(a) of IRPA defines a Convention refugee as follows:
|
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,
(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
. . . |
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:
a) soit se trouve hors de tout pays don't 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;
. . . |
[29] Section 97 of IRPA defines a "person in need of protection" as follows:
|
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
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if |
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays don't elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
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;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant: |
|
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(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,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
(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. |
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(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,
(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 occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats.
(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. |
Analysis and Decision
[30] Issue 1
Did the PRRA Officer err in assessing the applicant's new evidence?
The PRRA Officer's assessment of the applicant's new evidence is contained at page 4 of the Notes to File:
I acknowledge the applicant's new evidence, a faxed letter from his Mosque in Syria and a letter from his mother, the former indicating that the applicant was accused of being "against" the regime and that the secret police look for the applicant at the mosque and the latter indicating that the authorities still search for him and threaten his mother. While I do acknowledge this evidence, the probative value of them is insufficient to persuade me that the applicant is indeed wanted by Syrian authorities.
[31] Beaudry J. of this Court stated in Waheed v. Canada (Minister of Citizenship and Immigration), 2003 FCT 329 at paragraph 18:
The Board did not provide adequate justification for rejecting documentary evidence which supports the claims of the applicant. This Court held in Bains v. Canada (Minister of Employment and Immigration) (1993), 20 Imm. L.R. 296 (2d) (F.C.T.D.), that the Board has an obligation to comment on the information and why it rejected it, especially if it supports the applicant's position.
[32] I have reviewed the PRRA Officer's notes and I cannot determine why the PRRA Officer acknowledged the evidence (a faxed letter from the applicant's mosque in Syria and a letter from the applicant's mother), but found the evidence to be of insufficient probative value to persuade the PRRA Officer that the applicant was wanted by Syrian authorities. In its written memorandum, the respondent offered a number of possible explanations for why the letters could have been viewed so unfavourably, namely, they were written by partial individuals, were inconsistent with other evidence, did not specifically mention the Muslim Brotherhood, nor provided very detailed explanations of the applicant's situation. While the PRRA Officer may have based her decision relating to the probative value of the new evidence on one or all of these factors, her decision does not specifically mention any of them. As a result, I do not know what
the PRRA Officer's reasons were for reaching her decision on the probative value of the evidence.
[33] I am of the opinion that the PRRA Officer did not provide adequate justification for her conclusion on the probative value of the new evidence, especially since it supports the applicant's position. The PRRA Officer erred in assessing the applicant's new evidence.
[34] Because of my finding on this issue, I need not deal with the other issues raised in this application.
[35] The application for judicial review is therefore allowed and the matter is referred to a different PRRA officer for redetermination.
[36] Neither party wished to submit a proposed serious question of general importance for my consideration.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is allowed and the matter is referred to a different PRRA officer for redetermination.
2. If necessary, the time for filing the applicant's application for leave and for judicial review is extended to October 15, 2003.
"John A. O'Keefe"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8077-03
STYLE OF CAUSE: IHSAN BABILLY
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 24, 2004
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
APPEARANCES BY:
Robin L. Seligman
FOR THE APPLICANT
A. Leena Jaakkimainen
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Robin L. Seligman
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT
Date: 20041022
Docket: IMM-8077-03
BETWEEN:
IHSAN BABILLY
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER