Date: 20061222
Docket: IMM-1644-06
Citation: 2006 FC 1549
BETWEEN:
MOHAMED ZIAR JAOUADI
Applicant
and
THE
MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS and
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondents
REASONS FOR ORDER
BLANCHARD J.
1. Introduction
[1]
The Applicant, Mohamed Ziar Jaouadi, seeks judicial
review of his negative Pre-Removal Risk Assessment (PRRA) decision dated March
1, 2006.
2. Facts
[2]
The Applicant, a 28 year-old citizen of Tunisia,
arrived in Canada on August 2, 2000, as part of a group of more than one
hundred young Tunisian tourists. At that time the Applicant was suffering from
psychotic episodes and depression. He is still being treated with
anti-depressants for this condition.
[3]
On August 11, 2000, the applicant claimed refugee
status, alleging that he had been arrested and tortured several times by the
police who were targeting him because he practices Islam and because he was not
a member of a student organization known as the “Parti de l’Union des Étudiants
Rassemblement constitutionnel démocratique”, a youth organization associated
with the party in power. He claimed that he was first arrested at a student
demonstration April 7, 1999, and was detained and beaten for three days. Two
weeks later he was again detained between the 27th and 28th
of April, 1999, and tortured. He alleged he was under administrative
surveillance until September of 1999, during which time his mail was
intercepted and examined. He was imprisoned and tortured a final time for one
week, after the police arrested him on April 26, 2000.
[4]
At his hearing before the Immigration Refugee Board
(IRB) held on July 20, 2001, the Applicant claimed to be a sympathizer of
Ennhada, a known terrorist organization, and to know several of its
members, including its leader, Rachid Ghannouchi, who allegedly provided him
with a job with the “École professionelle du Barreau”. The Applicant also
claims that he is a “refugee sur place” because of his involvement in
Canada in several organizations, among others l’Association des jeunes
tunisiens au Canada (AJTC) and l’Association des victimes de la torture en
Tunisie (AVTT).
[5]
Upon learning of the Applicant’s association with
Ennhada the IRB adjourned the hearing and asked the Minister of Citizenship and
Immigration to intervene.
[6]
At the resumption of the hearing before the IRB on
January 15, 2003, the Applicant significantly changed his story narrated on
July 20, 2001. He now claims that he was not a member of Ennhada and had
merely met one of its members by chance. He states that he was advised by a
friend and by his former counsel to falsify his story regarding his connection
to Ennhada. He now states that he fears a return to Tunisia because of his
political activities in Canada.
[7]
The Applicant also changed counsel after alleging that
he had been advised to falsify his story by his first counsel, and his new
lawyer brought a motion for recusal of the Board Members. When members of the
IRB refused to withdraw from the Applicant’s case, he applied for judicial
review of that refusal to the Federal Court. The application was denied on the
basis that the Applicant did not come to court with clean hands. The Court did
not believe the Applicant’s first story in respect of his association with
Ennhada.
[8]
The IRB, however, in its December 15, 2004 decision,
chose to believe the Applicant’s first story, and rejected the refugee
application on the basis that the Applicant’s membership in Ennhada, a
terrorist organization, contravened Article 1F(b) of the United Nations
Convention Relating to the Status of Refugees. The Applicant sought
judicial review of the IRB decision.
[9]
The application for judicial review was dismissed on
September l6, 2005. The Court ruled that it was open to the IRB to prefer the
Applicant’s first story to the second.
[10]
The Applicant made a PRRA application, on December 12,
2005, wherein he alleges that he risks persecution based on:
(a) links with Ennhada
(b) fact that he is a practicing Muslim
(c) fact that he had been previously arrested,
and that he left Tunisia while
still under administrative surveillance
(d) claim of refugee status in Canada
(e) association with the AJTC and AVTT, among
others
[11]
The Applicant also claims that the stress of the
Canadian immigration process and his fear of persecution by Tunisian authority
may cause him to suffer further psychotic episodes and depression.
[12]
A negative decision was rendered by the PRRA Officer on March 1, 2006.
That decision is the object of this application for judicial review.
3. Impugned
Decision
[13]
At the outset, the PRRA Officer explained that because
this case started before the coming into force of the Immigration and
Refugee Protection Act, S.C. 201, c. 27, (the Act), and because the IRB had
only decided on the basis of section 96 of the Act, she was required to review
the entire file in order to consider whether the Applicant was a person in need
of protection pursuant to section 97 of the IRPA. The PRRA Officer also
explained that she was not bound by the decision of the IRB.
[14]
The PRRA Officer noted that the Applicant changed his
story several times. She also observed that the Applicant had had no difficulty
in obtaining his identity card and his passport and had been able to leave Tunisia without difficulty. The PRRA
Officer found that the Applicant was not implicated in any political party nor
was he involved in any group whatsoever in Tunisia. Further, she found that he could not be a suspected Ennhada
sympathizer since he had been able to live a normal life in Tunisia, which included studying, working
and traveling. She reasoned that simple involvement in different groups such as
the AJTC in Canada would not be
perceived as involvement in subversive groups by the Tunisian authorities.
[15]
The PRRA Officer determined that, even if the articles
written by the Applicant had been brought to the attention of the Tunisian
Authorities, new measures have been announced to promote freedom of the press
in Tunisia.
[16]
As for the applicant’s medical condition, the PRRA
Officer concluded that the Applicant would be able to receive the needed medical
attention in his country.
[17]
The PRRA Officer found that the Applicant would not be
personally targeted upon his return to Tunisia. She found that Tunisia had made efforts recently to improve matters for journalists and
NGOs by allowing more freedom of expression and political opinion. Even though
all persons returning to Tunisia after an extended period away are subject to questioning, this was
not, in itself, determined to be a risk of persecution. The Applicant had not
shown that he would be identified by the Tunisian authorities for his
involvement in Canada with organizations
such as the AJTC. Even if he were to be so identified, the PRRA Officer did not
find that he would be imputed to have opinions contrary to the Tunisian
Government such that he would be at risk upon his return.
4. Issues
A. Did the PRRA Officer err in not granting the
Applicant a hearing?
B. Did the PRRA Officer apply the wrong standard
of proof in assessing the Applicant’s risk?
C. Did the PRRA Officer err in her assessment of
the Applicant’s refugee sur place claim?
5. Analysis
A. Did
the PRRA Officer err in not granting the Applicant a hearing?
[18]
The first issue raised involves the application of the
factors established by section 167 of the Immigration and Refugee Protection
Regulations SOR/2002-227 (the Regulations) to the facts of the case, and is
therefore a question of mixed fact and law. It is necessary for a reviewing
court to determine the applicable standard of review with respect to each decision
of an administration decision-maker, not merely each general type of decision
under a particular provision. See Canada (Attorney General) v. Sketchley, 2005
FCA 404 at paragraph 46. As such, I will proceed with a pragmatic and
functional analysis in respect of this first question, which involves
considering: (i) the presence or absence of a privative clause; (ii) the
relative expertise of the PRRA Officer; (iii) the purpose of the statute on the
whole, and (iv) the nature of the question (Dr. Q v. College of Physicians
and Surgeons of British Columbia, [2003] 1 S.C.R. 226).
[19]
There is no privative clause in the Act. Sections 72 to
75 of the IRPA specifically contemplate judicial review of inadmissibility
decisions by the Federal Court, yet it is not as of right since leave is
required. Additionally, the powers of a court on judicial review are more
limited than on appeal. Further an appeal to the Federal Court of Appeal is
again not as of right and is dependant on a serious question of general importance
being certified. These factors militate in favour of a certain level of
deference by the Court.
[20]
Three factors are relevant in determining the relative
expertise of the PRRA Officer (Pushpanathan v. Canada (Minister of
Citizenship and Immigration), [1998] 1 S.C.R. 982 at paragraph 33). They
are:
(a) The Officer’s expertise
(b) The Court’s own expertise relative to that of
the Officer, and
(c) The nature of the specific issue before the
Officer relative to the Court’s expertise.
[21]
The PRRA Officer is expected to have extensive
knowledge of country conditions since his or her work involves assessing such
conditions in the context of alleged risks of return to a specific county of a
claimant. In this respect PRRA Officers have greater expertise than the Court
and this factor consequently militates in favour of a greater degree of
deference. PRRA Officers, however, are often not legally trained, and, as a
result, their familiarity with the law will extend only to IRPA and the
associated Regulations as they relate to their functions. The Court is an
expert in the law and its application, and will, as a result, show little
deference to the decision of a PRRA Officer where the issue is one of law.
[22]
I now deal with the purpose of the statute on the
whole. The objectives of the Act are set out in subsection 3(2). The main
objective is to recognize that the refugee program is “…about saving lives and
offering protection to the displaced and persecuted.” Paragraphs 3(2)(d)
and 3(2)(e) of the Act are particularly relevant to the work of a PRRA
Officer. They read as follows:
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(d) to
offer safe haven to persons with a well-founded fear of persecution based on
race, religion, nationality, political opinion or membership in a particular
social group, as well as those at risk of torture or cruel and unusual
treatment or punishment;
(e) to
establish fair and efficient procedures that will maintain the integrity of
the Canadian refugee protection system, while upholding Canada’s respect for the human rights and
fundamental freedoms of all human beings;
|
d) d’offrir l’asile à ceux qui craignent avec raison d’être
persécutés du fait de leur race, leur religion, leur nationalité, leurs
opinions politiques, leur appartenance à un groupe social en particulier,
ainsi qu’à ceux qui risquent la torture ou des traitements ou peines cruels
et inusités;
e) de mettre en place une procédure équitable et efficace qui soit
respectueuse, d’une part, de l’intégrité du processus canadien d’asile et,
d’autre part, des droits et des libertés fondamentales reconnus à tout être
humain;
|
[23]
The PRRA Officer is consequently required to assess a
claimant’s risk of return to his country with the objective of protecting that
person against torture, risk to life or a risk of cruel and unusual treatment or
punishment. The risk assessment is directly related to the personal situation
of each claimant and the particular conditions of the country in question at
the time. The legislative purpose here does not call for the decision-maker to
resolve and balance competing policy objectives or the interests of various
communities. The legislative characteristics are not “polycentric” in nature.
Rather, the statutory provisions essentially seek to determine the rights of
the parties resulting from factual determinations. In such circumstances, less
deference is shown by the reviewing court.
[24]
The fourth factor requires consideration of the nature
of the specific question. The question deals with whether the PRRA erred in
deciding that a hearing was not warranted in the circumstance and involves the
application of the factors set out in section 167 of the Regulations to the
facts of the case. This is a question of mixed law and fact and warrants less
deference from a reviewing court.
[25]
Upon considering the above factors, I find that the
standard of reasonableness simpliciter is appropriate for a question
involving the application of the section 167 factors to a decision as to
whether to hold a hearing in a PRRA. I am supported in this finding by the determinations
of my colleagues in the following decisions. See Kim v. Canada (Minister of Citizenship and
Immigration), 2005 FC 437 at paragraphs. 8-22; Beca
v. Canada (M.C.I.), 2006 FC 566 at paragraph 9.
[26]
The PRRA procedure is not
an appeal procedure or a level of review for IRB decisions. The purpose of the
PRRA is to assess risks to which a person may be subject on removal to his or
her country of origin, based on new facts which may have come to light after
the decision on the refugee application. See Alvarez
v. Canada (Solicitor
General), 2005 FC 143, at paragraph
6.
[27]
Generally, the risk assessment is done without a
hearing and on the basis of new evidence that has been submitted since the
rejection of the refugee claim. The procedure is dictated by paragraphs 113(a)
and (b) of the Act:
|
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;
(b) a
hearing may be held if the Minister, on the basis of prescribed factors, is
of the opinion that a hearing is required;
|
113. Il est disposé de la demande comme il suit :
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;
b) une audience peut être tenue si le ministre l’estime requis
compte tenu des facteurs réglementaires;
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[28]
The factors to consider in determining whether a
hearing is required are enumerated in section 167 of the Regulations:
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167. For the purpose of
determining whether a hearing is required under paragraph 113(b) of
the Act, the factors are the following:
(a)
whether there is evidence that raises a serious issue of the applicant's
credibility and is related to the factors set out in sections 96 and 97 of
the Act;
(b)
whether the evidence is central to the decision with respect to the
application for protection; and
(c)
whether the evidence, if accepted, would justify allowing the application for
protection.
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167. Pour l’application de
l’alinéa 113b) de la Loi, les facteurs ci-après servent à décider si
la tenue d’une audience est requise :
a) l’existence d’éléments de preuve relatifs aux éléments
mentionnés aux articles 96 et 97 de la Loi qui soulèvent une question
importante en ce qui concerne la crédibilité du demandeur;
b) l’importance de ces éléments de preuve pour la prise de la
décision relative à la demande de protection;
c) la question de savoir si ces éléments de preuve, à supposer
qu’ils soient admis, justifieraient que soit accordée la protection.
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These factors are
cumulative.
[29]
The Applicant argues that the PRRA Officer made an
independent credibility finding when she determined, contrary to the finding of
the IRB, that the Applicant would not be suspected of being connected to
Ennhada by the Tunisian authorities. He claims that this would engage
subsection 167(a) of the Regulations, in that it raises a serious
issue in regards to the Applicant’s credibility. Given that findings concerning
the Applicant’s association with Ennhada are central to the decision, the
Applicant argues that the other factors in section 167 of the Regulations are
met. On this basis, the Applicant contends that a hearing should have been
held.
[30]
In my view it was open to the PRRA Officer to prefer
one version of the Applicant’s story over another. Both the first and second
versions of the story were before the Tribunal and formed part of the record,
and they were, consequently, also part of the record on the PRRA application.
It follows that the facts at issue are not new and had been considered
previously by the Tribunal. I am therefore in agreement with the Respondent’s
argument that an oral hearing would not have been required to determine the
credibility of any new evidence that was not before the IRB. In my view the
PRRA Officer did not err in not granting the applicant a hearing
B. Did the PRRA Officer apply the wrong standard of proof
in assessing the Applicant’s risk?
[31]
The Applicant argues that by concluding that he had to
establish on a balance of probabilities that he faced a risk and that the
Tunisian government was aware of his activities, the PRRA Officer applied too
stringent a burden of proof. The Applicant contends that the burden of proof
regarding the knowledge of the authorities should be lower, namely “are aware
or may be aware”. Application of the proper standard of proof is a legal
question, reviewable on a correctness standard.
[32]
In determining whether a person is in need of
protection, within the meaning of section 97 of the IRPA, the PRRA Officer
articulated, at page 14 of her reasons, the correct standard of proof to be
applied, namely, on a balance of probabilities. This standard has been
repeatedly confirmed in the jurisprudence of this Court. See Li v. Canada
(M.C.I.), 2005 FCA 1, [2005] 3 F.C.R. 239 (C.A.), paragraphs 9, 28-29, 39; Selliah
v. Canada
(M.C.I.), 2005 FCA 160, (2005) 339 N.R. 233
(F.C.A.).
[33]
In the last paragraph of her reasons, however, the PRRA
Officer appears to have applied a different standard of proof. She wrote: “Je ne puis affirmer qu’il existe des motifs sérieux de
croire que le requérant soit exposé personnellement à un risque de torture, de
menace à sa vie, de traitement ou peine cruels et inusités en retournant dans
son pays d’origine, la Tunisie.” The parties do not dispute that this
standard is a lesser standard of proof than proof on a balance of
probabilities. I agree. The PRRA Officer articulated the wrong standard of
proof at this point in her reasons. Even if I were to accept that the Officer
had erred by imposing this standard of proof to the Applicant, the error would
be of no consequence to the Officer’s determination of risk. By holding the
Applicant to a lesser standard of proof than that required by law, the
Applicant suffers no prejudice and the result would not change. If the
Applicant was unable to meet the lesser standard, it is clear the more
demanding standard would not be met. In any event, reading the decision as a whole,
I am satisfied the PRRA Officer applied the appropriate standard of proof in
coming to her decision. As a consequence, I find that no reviewable error was
committed by the PRRA Officer on the applicable standard of proof.
C. Did the PRRA Officer err in her assessment of the
Applicant’s refugee sur place claim?
[34]
The ultimate decision before of the PRRA Officer
is to determine whether the Applicant is a person in need of protection within
the meaning of section 97 of the IRPA. Such decisions, when considered
“globally and as a whole” are reviewable on the reasonableness simpliciter
standard. See Demirovic v. Canada (Minister of Citizenship and Immigration)
2005 FC 1284, at paragraph 23, Kim v. Canada (Minister of Citizenship and Immigration), 2005 FC 437, paragraphs 8-22; Herrada et al. v. Canada (M.C.I.),
2006 CF 1004, paragraph 24; Yousef v.Canada (M.C.I.), 2006 FC 864, paragraph
17.
[35]
The PRRA Officer, in her decision, found there was no
evidence that the Applicant’s political activities or political beliefs would
be, or would risk being, brought to the attention of the Tunisian authorities.
She found that the activities of the AJTC, in particular, are not against the
Tunisian government but are intended to aid young Tunisians in Canada. Further, she stated that by simply
implicating himself in various groups such as the AJTC in Canada does not constitute subversive
behaviour on the part of the Applicant. The PRRA Officer determined that the
impact of the Applicant’s
political activities and declarations in Canada was minor and opportunistic and not subversive so as to attract the
attention of the Tunisian Regime.
[36]
Further, the PRRA Officer found that any risk to the
Applicant is reduced since recent evidence shows that the Tunisian authorities
have announced measures to promote freedom of expression. The PRRA Officer also
found that it was unlikely the Applicant would be identified by Tunisian
authorities since he had a common name. This finding was essentially based on
the fact that the Applicant was permitted to leave Tunisia without incident.
[37]
The respondent argues that it is clear from the PRRA
Officer’s comprehensive decision that she considered all the evidence before
her even though she did not expressly analyze all of the evidence in her reasons.
The Respondent argues that the decision was open to the officer and reasonable.
[38]
The Applicant argues that the PRRA Officer ignored
evidence in order to come to the conclusion that the Tunisian government is
neither interested in, nor informed of, his political activities. The Applicant
submits that there is ample evidence of his critical stance towards the
Tunisian Government in publications found on the Internet, to which the
Tunisian Government would have access. He also argues that the PRRA Officer
herself acknowledges that the Tunisian Government is concerned with critics of
the government on the Internet. He submits, therefore, that it is likely that
the Tunisian government is interested and informed about him, putting him
particularly at risk, and that the Officer committed a reviewable error by
failing to consider this evidence.
[39]
The country condition evidence shows that the
Tunisian government is intolerant of public criticism and uses intimidation,
criminal investigations, the court system, arbitrary arrests, residential
restrictions, and travel controls to discourage criticism by human rights and
opposition activists. Political prisoners and Islamists reportedly receive
harsher treatment during their arrests and confinement than common political
prisoners. The documentary evidence also shows that security forces regularly
use violence against Islamists, activists and dissidents, and torture detainees
to elicit confessions and political prisoners to discourage resistance. The
PRRA Officer acknowledged in her reasons the regime’s lack of tolerance to
criticism. She wrote: “Les documents de référence indiquent
que le gouvernement de la Tunisie contrôle le pays et est peu réceptive à la
critique ou aux parties d’opposition.”
[40]
The documentary evidence further establishes
that the Tunisian Government blocks access to a number of websites, including
nearly all sites belonging to domestic human rights, opposition and Islamist
groups. While the evidence shows that the government recently allowed access to
several foreign websites that had previously been blocked such as Al-Jazeera,
“Reporters without Borders” and Hotmail, a report on “cyber-freedom”
nevertheless ranked Tunisia last among 11 Arab countries in terms of
freedom of access to the internet. Given this evidence, it is reasonable to
conclude that the Tunisian authorities have an interest in monitoring the
content of various critical internet sites. In the circumstances, the PRAA
Officer agreed that the AJTC web site is likely available and accessible in Tunisia. In her
reasons, she observed: “Considérant cet état de fait,
il est raisonnable de penser que les écrits de l’AJTC au Canada, soient
accessibles en Tunisie.”
[41]
In respect to nationals returning from abroad, the Country Reports show that Tunisian authorities routinely perform
security checks on those who have been outside the country for an extended
period of time. This is also acknowledged by the PRRA
Officer in her reasons: “Les personnes retournant en Tunisie après un certain
temps à l’extérieur du pays sont questionnées pour fin d’identité et de
sécurité, cette règle s’applique à tous les citoyens de Tunisie.”
[42]
Regarding the Applicant’s activities in Canada, the
record established that numerous critical statements concerning the Tunisian
authorities were made by the Applicant. This evidence is essentially
uncontradicted. I discuss below examples of the Applicant’s activities and
declarations made in Canada.
[43]
In an interview broadcasted on Radio Centre Ville à Montréal on
May 6, 2003, the Applicant, as President of the AJTC accuses the Tunisian
Authorities of human rights abuses. He stated: “La personne est décédée sous la torture, sa
famille n’a jamais eu aucune idée sur son arrestation
ou même elle n’a pas plus voir le corps…. Et puis maintenant, le gouvernement
tunisien nie l’existence complète de ce jeune homme, de Maher Osmani.”
[44]
The Applicant attests that he also helped the AJTC
organize a vigil, held on October 31, 2002, to protest the drowning of 14
Tunisians who attempted to seek asylum in Italy. He claims to have issued and published on the AJTC web site a
general invitation to attend the vigil on behalf of the Association wherein he
wrote:
L’AJTC lance un
cri de détresse et fait appel a tous les organismes gouvernementaux et non-gouvernementaux
qui s’occupent de l’aide et la protection de la jeunesse de se mobiliser et de
donner la main aux jeunes tunisiens en situation alarmante outre que demander
aux autorités concernés dans tous les pays du monde entier de faire ouvrir
leurs portes aux demandeurs d’asile tunisiens et de traiter plus sérieusement
leurs dossiers, ainsi qu’oublier l’ancienne face connue de la Tunisie et de l’y
classer parmi les pays les plus dangereux qui ne respectent jamais les droits
de la personne.
[45]
In his affidavit evidence, the Applicant attests that
the AJTC also participated in the organization of a rally against the
imprisonment of M. Jebali, a leader of Ennhada, and M. Yahyaoui, webmaster
for TUNeZINE, a dissident website published out of France. The rally took place in front of the Tunisian Embassy in Montréal
on January 30, 2003, and an article on the rally appeared in “La Presse”
newspaper the following day. His participation as an organizer is acknowledged
on the AJTC web site and the Applicant’s name appears in a list of
participants. His participation in the rally is also noted in the publication
“The Observer” and on the “Réveil tunisien” web site.
[46]
It was unreasonable in my view for the PRRA Officer to
determine that the Applicant’s activities in Canada were not subversive and would be of no interest to Tunisian
authorities. The documentary evidence establishes without doubt that critics of
the Tunisian regime are not tolerated, monitored and are dealt with harshly.
This evidence was accepted and acknowledged by the PRRA Officer in her reasons
for decision. Evidence particular to the Applicant establishes that he engaged
in activities and made declarations in Canada that were critical of the Tunisian government. This evidence is
uncontraverted. To find the AJTC to be an organization simply to aid young
Tunisians in Canada is to
ignore the evidence. The evidence clearly establishes that the AJTC engages in
activities that are critical of the Regime. To qualify the Applicant’s
activities and declarations as non-subversive is also not consistent with the
significant evidence showing his criticism of the Tunisian government. In my
view, given the evidence before the Officer, both findings are unreasonable in
that they were made without regard to the evidence.
[47]
I also find unreasonable the PRRA Officer’s
determination that the Applicant would not be identifiable to the Authorities
by reason of his common name. I cannot imagine how this could be so given the
documentary evidence which establishes that returning nationals are subjected
to security checks, and particularly those who have been abroad for an extended
period as was the Applicant. The Applicant’s identity would have been
established before leaving the country in order to obtain a passport or other
travel documents. There is simply no evidence to support the PRRA Officer’s
finding that having a common name would allow him to avoid detection upon his
return. The finding is based on speculation and is unreasonable.
[48]
On the evidence, it was open to the PRRA Officer to
find that the Applicant’s involvement with Ennhada and his life style while in Tunisia to be of no interest to Tunisian authorities.
However, in my view, the Applicant’s activities in Canada do not support a similar conclusion. It matters not that the
activities of the Applicant in Canada are opportunistic. The jurisprudence teaches that even if the
activities are motivated by the claimant’s desire for asylum, the section 97
analysis must assess any potential harm to be faced upon return because of the
political activity engaged in while abroad even if that activity is
non-genuine. See Ngongo v. Canada (M.C.I.), [1999] F.C.J. No. 1627 (QL).
[49]
In my opinion, the PRRA Officer erred in her assessment
of the Applicant’s refugee sur place claim. The above discussed
erroneous findings, taken cumulatively, lead me to conclude that the PRRA
Officer rendered an unreasonable decision on the evidence that was before her.
[50]
The country condition evidence shows that the Tunisian
government persecutes those who criticize it, uses violence against political
opponents, and treats Islamists in a particularly harsh manner. The evidence
submitted by the Applicant, essentially uncontradicted, shows that the
Applicant is engaged in activities in Canada that can only be described as political expression that is critical
of the Tunisian government, much of it on the Internet. The evidence also
establishes that the Tunisian government would likely be aware of the
Applicant’s activities since the evidence also establishes that Tunisian
authorities monitor the Internet for critical material.
[51]
I am left to conclude that the PRRA Officer’s decision
was rendered without regard to the evidence. In the result she committed a
reviewable error in deciding as she did in respect to the Applicant’s
activities in Canada and her
resulting conclusion regarding the Applicant’s risks.
[52]
For the above reasons, the application for
judicial review will be allowed. I will order the matter returned for
re-consideration by a different PRRA Officer.
[53]
Counsel are requested to serve and file
any submission with respect to certification of a question of general
importance, if any, within twenty (20) days of receipt of these reasons. Each
party will have a further five (5) days to serve and file any reply to the
submission of the opposite party. Following consideration of those submissions,
an order will issue allowing the application for judicial review and disposing
of the issue of a serious question of general importance as contemplated by section
74(d) of the IRPA
“Edmond P.
Blanchard”
Ottawa, Ontario
December 22, 2006
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