Date: 20060608
Docket: IMM-6562-05
Citation: 2006 FC 716
Ottawa, Ontario, June 8, 2006
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
HAITHAM ALABADLEH
Applicant
and
THE MINISTER OF CITIZENSHIP ANDIMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of the decision of a pre-removal risk assessment officer, dated September 6, 2005, wherein the officer determined that Mr. Alabadleh, a stateless Palestinian, would not be at risk if returned to the Gaza Strip. The following are my reasons for concluding that the application must be dismissed.
[2] Mr. Alabadleh was born in the United Arab Emirates but has neither citizenship nor permanent residence status in that country. His wife and child are Canadian citizens. The family came to Canada in October 2004, Mr. Alabadleh entering on a visitor's visa. On January 18, 2005 an exclusion order was made against Mr. Alabadleh pursuant to ss. 41(a) and 20(1) (a) of the Immigration and Refugee Protection Act, S.C. 2001 c. 27 (IRPA), for failing to comply with the Act.
[3] In February 2005, Mr. Alabadleh applied for a pre-removal risk assessment ("PRRA") on the grounds, in essence, that if returned to Gaza he would face a risk of persecution due to his political opinion in support of peace in the region, risk to his life due to the hostilities between Palestinians and Israelis and risk to his life or of torture due to his peace ideology.
[4] After reviewing the material before her, the PRRA officer determined that the applicant had failed to provide sufficient objective evidence that he faced a personalised risk and, specifically, that the applicant would not be subject to a risk of persecution, to a danger of torture, to a risk to life or to a risk of cruel and unusual treatment or punishment in Gaza.
PRELIMINARY OBJECTION
[5] On November 29, 2005 the applicant filed a PRRA review application presenting additional evidence. This evidence has also been filed in support of this application. The respondent objects to the applicant's attempt to introduce evidence that was not before the decision-maker and to rely on this evidence in his written and oral submissions. In particular, the documents filed in Exhibit F to the applicant's affidavit were not before the PRRA officer when she rendered her decision. The respondent submits that those documents and paragraphs 21-29 of the applicant's affidavit should be struck from the record.
[6] It is well settled that judicial review of an administrative decision is made on the basis of the evidence that was before the decision-maker. Additional evidence is only admissible in very limited circumstances, where it may be needed to resolve issues of procedural fairness or jurisdiction: Ontario Association of Architects v. Association of Architectural Technologists of Ontario, [2003] 1 F.C. 331 at para. 30, 2002 FCA 218; Covarrubias v. Canada(Minister of Citizenship and Immigration) (2005), 48 Imm. L.R. (3d) 186 at para. 13, 17-19, 2005 FC 1193; Asafov v. Canada(Minister of Employment and Immigration), [1994] F.C.J. No. 713 at paras. 1-2 (F.C.T.D.) (QL).
[7] There is no assertion of a want of jurisdiction or of procedural unfairness on the part of the PRRA officer in these proceedings. The applicant submits that the Court has recognized that a broader range of exceptions should be accepted for the reception of new evidence and relies upon two decisions in support of that proposition: Omar v. Canada(Solicitor General) (2004), 23 Admin. L.R. (4th) 56, 2004 FC 1740 [Omar]; Salem v. Canada(Minister of Citizenship and Immigration) (11 October 2005), Ottawa IMM-2494-05 (F.C.) [Salem].
[8] In Omar, judicial review of a PRRA decision was granted where the Court was satisfied on the basis of fresh evidence that "very exceptional circumstances" required that the matter be remitted for reconsideration. In Salem, the Court, in granting a stay of removal, found that there was a serious issue to be tried and that the risk of irreparable harm had been established due to new evidence of a significant intervening event analogous to the situation in Omar.
[9] Both of these decisions are distinguishable on their facts and neither, in my view, was intended to expand the category of exceptions to the general principle that fresh evidence is not admissible on judicial review.
[10] While I accept that there may be circumstances in which the interests of justice require that evidence that was not before the decision-maker be admitted and considered, I do not find that this is such a case. Having closely reviewed the contested evidence and the remainder of the record, I am satisfied the events they describe were within the applicant's knowledge prior to the filing of the February, 2005 PRRA application and do not reflect a change of circumstances that might justify its reception as an exception to the general principle. Accordingly, the evidence will be struck from the record together with the corresponding paragraphs of the applicant's affidavit.
ISSUES
[11] There are two substantive issues arising from the record and the applicant's submissions:
1. Did the PRRA officer err in not considering the interests of the applicant's child in the context of a risk assessment?
2. Did the PRRA officer err by not properly assessing the application under section 97 of IRPA?
ANALYSIS
Standard of Review
[12] The standard of review for PRRA decisions has been the subject of a pragmatic and functional analysis in a number of decisions. For the purpose of these reasons, I adopt the conclusions reached in Kim v. Canada (Minister of Citizenship and Immigration) (2005), 272 F.T.R. 62, 2005 FC 437 [Kim] that the appropriate standard of review for questions of fact is patent unreasonableness, for questions of mixed fact and law, reasonableness, and for questions of law correctness. When a PRRA decision is considered "globally and as a whole," the appropriate standard of review is reasonableness: Figurado v. Canada(Minister of Citizenship and Immigration), [2005] 4 F.C.R. 387, 2005 FC 347.
[13] Whether the PRRA officer has the authority to consider humanitarian and compassionate factors, such as the best interests of a child in the context of a PRRA application, is a question of law or jurisdiction, reviewable on a standard of correctness: Kim, above, at para 62.
Best interests of the child
[14] The officer referred to the applicant's child in two sentences: one noting that the applicant's wife and child are Canadian citizens, and the other stating that the applicant came to Canada accompanied by his wife and daughter. The applicant submits that the PRRA officer was required to consider the needs of his child in assessing risk and erred in not applying the principles developed by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193.
[15] The applicant cites Varga v. Canada(Minister of Citizenship and Immigration), 2005 FC 1280, [2005] F.C.J. No. 1570 (QL) [Varga]in support of the proposition that PRRA officers must consider the best interests of Canadian children whose parents are subject to removal. In Varga, the Court determined that a failure to do so amounted to reviewable error. In reaching this decision, the Court relied on prior decisions which had indicated that in exercising discretion concerning whether to enforce a removal order under s.48 of IRPA, a removals officer must be sensitive to the best interests of Canadian children, although such officials have no obligation to carry out a full H & C examination.
[16] In my view, the appropriate forum for consideration of a child's interests is an application under s.25 of the Act for an exemption based on humanitarian and compassionate factors: El Ouardi v. Canada(Solicitor General)(2005), 48 Imm. L.R. (3d) 157 at para 10, 2005 FCA 42. See also, Kim, above, and Redhead v. Canada(Minister of Citizenship and Immigration), 2006 FC 517, [2006] F.C.J. No. 669 (QL).
[17] As stated by Justice Michel M.J. Shore in Sherzady v. Canada(Minister of Citizenship and Immigration) (2005), 273 F.T.R. 11 at para. 15, 2005 FC 516, there is nothing in the language of the statute or related regulations to suggest that a PRRA officer is meant to consider humanitarian and compassionate factors in the context of a risk inquiry. The risk contemplated by the enactment is that which is personal to the subject of the inquiry.
[18] Even if I were to accept that the officer had the jurisdiction or authority to consider the child's interests, the applicant has provided no evidence that he submitted evidence or made representations concerning the child in his PRRA application, apart from the bare recital of basic information. The applicant contends that this was sufficient to put the officer on notice that she should make inquiries about the child's welfare. I do not agree. The officer could not be expected to
address matters concerning the child not raised by the applicant: Martinezv. Canada(Minister of Citizenship and Immigration), 2005 FC 1660 at para 8, 12, [2005] F.C.J. No. 2066 (QL).
[19] Accordingly, I find that the officer made no reviewable error in failing to address the interests of the applicant's Canadian child.
Failure to Properly Assess Risk Under s.97
[20] The applicant's submission in this respect is essentially that, in her reasons, the officer did not adequately address all of the risk factors that he had alleged he would face if returned to Gaza. However, his argument in support of that submission is based largely on the evidence that was not before the officer, evidence which, I have concluded, must be struck from the record in these proceedings. Accordingly, I have given it no weight in reviewing the officer's decision.
[21] In my view, the PRRA officer properly evaluated the applicant's claim under s. 97. An analysis under s. 97 requires the decision-maker to determine whether a claimant's removal would subject him personally to the dangers and risks specified in that provision. While the decision-maker must assess the claim objectively, with a view to the human rights record of the country in question, the analysis must still be personalised: Bouaouni v. Canada (Minister of Citizenship and Immigration), 2003 FC 1211 at para 41, [2003] F.C.J. No. 1540 (QL); Kilic v. Canada (Minister of Citizenship and Immigration) (2004), 245 F.T.R. 52 at para. 21-29, 2004 FC 84.
[22] Here, after engaging in an extensive review of the evidence of country conditions, the PRRA officer reasonably determined that the applicant had not shown that he faced a personal risk of torture or a risk to his life or of cruel and unusual treatment or punishment if returned to the Gaza strip. The PRRA officer provided clear and detailed reasons for her decision.
[23] The applicant has failed to point to any evidence which may have been overlooked by the officer in making her determination that he would not be at risk. Absent this, and given the extensive reasons of the officer I find that the decision, when considered globally and as a whole, is reasonable. The application is dismissed.
Certified Question
[24] The applicant has requested that the Court certify as a serious question of general importance the question certified in Varga, above: "[w]hat obligation, if any, does a PRRA Officer have to consider the interests of a Canadian-born child when assessing the risks involved in removing at least one of the parents of that child?" An appeal is pending on that question. The respondent is opposed to the certification of this or any question as, in its view, this case turns on its facts.
[25] I agree with the respondent. To certify a question the Court must be satisfied that the answer would be dispositive of the appeal: Bath v. Canada(Minister of Citizenship and Immigration) [1999] F.C.J. No. 1207 (F.C.T.D.) (QL). Even if the Court of Appeal were to determine that a
PRRA officer had some obligation to consider the best interests of a Canadian child, that result would not be dispositive of an appeal of this matter. As I have noted above, there was no evidence submitted nor representations made to the officer respecting the child. I therefore decline to certify the proposed question.
JUDGMENT
THIS COURT ORDERS that the application is dismissed. Paragraphs 21-29 of the applicant's affidavit and the documents attached as Exhibit "F" to the affidavit are struck from the record. No question is certified.
"Richard G. Mosley"
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