Date: 20060830
Docket: IMM-6866-05
Citation: 2006 FC 1041
Ottawa, Ontario, August 30,
2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
HASSAN JIHAD AMMAR
RIMA
IBRAHIM
ALI
AMMARA
JAWAD
AMMAR
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] The most
significant issue raised in this application for judicial review is whether an
officer conducting a pre-removal risk assessment (PRRA) errs in law by failing
to assess the best interests of an applicants’ Canadian-born child. The other
issues raised are whether the officer erred by ignoring relevant evidence and
whether the officer erred by failing to properly assess the specific risk the
applicants are said to face. For the reasons that follow, I have concluded
that the officer did not err by failing to consider the best interests of the
applicants’ Canadian children, and that in the present case the officer
committed no reviewable error in his assessment of the PRRA application.
THE RISKS IDENTIFIED IN THE
PRRA
[2] Hassan
Jihad Ammar, his wife Rima Ibrahim, and their children Ali and Jawad Ammar are
citizens of Lebanon. Mr. Ammar and his wife have two other children who were
born in Canada while their parents’ unsuccessful refugee claims were pending.
Mr. Ammar filed a PRRA application in which he stated that if returned to Lebanon
he would be at risk from the state of Lebanon because of his prior service in
the South Lebanese Army (SLA), his travel to Israel and his collaboration with
the government of Israel and the Israeli Army. He also stated that he was at
risk from Hezbollah.
THE PRRA DECISION
[3] The
officer gave comprehensive and thoughtful reasons to support his conclusion
that Mr. Ammar would not be subject to a risk of torture, a risk to life,
or a risk of cruel and unusual treatment or punishment if returned to Lebanon.
The decision is cogently summarized in the Minister’s memorandum of argument
and I repeat that summary here:
i) In
two separate refugee claims, the applicant was found not to be credible.
ii)
The two adult applicants were found ineligible to make a third refugee
claim, due to their previous rejections.
iii)
In May 2005 the male applicant was found inadmissible under s. 35(1)(a)
for having committed war crimes based on his association with the […] (SLA).
iv)
Between 1989-1991 the male applicant joined the SLA and worked as a cook
and security guard.
v)
He passed on names to the SLA of 10-15 people he believed were
associated with the Hezbollah. There is no evidence that the Hezbollah are
aware of this activity and no evidence that any of the relatives of the named
persons are threatening the male applicant.
vi)
The Hezbollah do not engage in revenge killing and have turned over
suspected SLA members to the Lebanese army.
vii)
The male applicant is wanted for having collaborated with Israel, and
the Lebanese authorities want to put him on trial.
viii)
About 2,277 former SLA members have been charged with collaboration with
Israel. Most have been convicted and served sentences of imprisonment, fines
or restraining orders. The vast majority served prison sentences between 3
months – 2 years. Ordinarily foot soldiers generally received sentences of
about 12-18 months. One third of former SLA members received 1 year jail
sentence and one third received 3-4 weeks.
ix)
Those who have been sentenced to death in abstentia are
entitled to a new trial. The Military Court denied every recommendation for
the death sentence – none have been executed.
x)
The trial procedures are public and the accused has access to legal aid
lawyers. Some accused have been acquitted[. When not acquitted] the sentences
have been lenient in the circumstances. The Military Court follows the same
procedure as the civilian courts. Although not at the same standard as
Canadian courts, they are not show trials. Evidence must be advanced to
support a conviction.
xi)
Although prison conditions are poor, they do not pose a serious health
risk. SLA associates are allowed access to lawyers and family. Most SLA
members have served their sentences, while those who continue to serve do so as
regular prisoners. The majority of detainees do not experience torture or
physical mistreatment.
THE ISSUES
[4] Mr.
Ammar and his family argue that the officer erred in the following three
respects:
1.
The officer was obliged at law to consider the consequences that the
removal of Mr. Ammar and his wife would have on their two Canadian-born
children, and he failed to do so.
2.
In conducting the risk assessment the officer ignored evidence, specifically
a letter from a lawyer in Lebanon that stated that an arrest warrant had been
issued in respect of Mr. Ammar, charging him with “[c]ollaborating with
the Israeli Enemy” and “joining with the Armed Forces of Southern Lebanon Army
collaborating with Israel”. The letter referenced a provision which was said
to dictate for these offences “punishment either by execution or life in prison
with hard labor”.
3.
The officer failed to conduct a proper PRRA because the officer
conducted a general assessment of the situation of former members of the SLA
and failed to assess Mr. Ammar’s own situation.
The Alleged Obligation to
Consider the Best Interests of the Canadian-Born Children
[5] In
the present case, it is common ground that there is no discussion in the PRRA
assessment about the best interests of the Canadian-born children. On the
basis of this Court’s decision in Varga v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1280 this is said to be a reviewable
error. In Varga, the Court wrote at paragraph 17:
17. Therefore
it appears that, in law, a Removals Officer is required to be "alert,
alive and sensitive" to the condition of Canadian-born children who may be
left behind, or taken with a parent who is subject to a removal order. In this
case, therefore, the PRRA Officer was wrong, in law, in stating "it is not
my mandate to consider the Applicants' two Canadian citizen children". The
interests of these children, though not determinative, must be considered and
given some weight in a PRRA application even more so than when the Removal
Officer acts. For this reason, the application will be allowed and the matter
sent back for re-determination by a different PRRA Officer.
[6] However,
subsequent to Varga the contrary conclusion was reached with respect to
the obligation of an officer to consider the best interests of a Canadian
child. In Alabadleh v. Canada (Minister of Citizenship and
Immigration), 2006 FC 716 the Court found at paragraphs 16 and 17:
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.
[7] In
my respectful view, the Court’s conclusion in Alabadleh is correct. I
reach this conclusion on the following basis.
[8] First,
it is important to situate PRRA applications in their statutory context. The
PRRA was a new procedure, implemented upon the coming into force of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act). The PRRA process is
governed by sections 112 to 116 of the Act, and sections 160 to 174 and 232 of
the Immigration and Refugee Protection Regulations, SOR/2002-227
(Regulations). The applicable Regulatory Impact Analysis Statement (Canada
Gazette Part II, Vol. 136, Extra No. 9) notes, at page 274, that:
The policy basis for assessing risk prior
to removal is found in Canada's domestic and international commitments
to the principle of non-refoulement. This principle holds that persons should
not be removed from Canada to a country where they would be at risk
of persecution, torture, risk to life or risk of cruel and unusual treatment or
punishment. Such commitments require that risk be reviewed prior to removal.
[…]
What has changed
The Pre-Removal Risk Assessment is a new mechanism and, as such, has no
direct equivalent under the current legislation.
In effect, by having the Immigration and Refugee Board (IRB) examine
consolidated protection grounds (the Geneva Convention, the Convention
Against Torture and the risk to life or the risk of cruel and unusual
treatment or punishment), the type of assessment carried out under Post
Determination Refugee Claimants in Canada Class (PDRCC) regulations is now
incorporated into the determination made by the IRB. The use of the same
consolidated protection grounds at the PRRA stage makes risk assessment for
failed claimants simpler, in that it is limited to the consideration of new
evidence and constitutes a file update.
While access to risk assessment through PDRCC was limited to failed
claimants, various additional populations now have access to PRRA. Potential
applicants include those found to be ineligible for consideration by the IRB,
repeat claimants who no longer have access to the IRB, as well as those who
have had risk assessed previously under PRRA but who have not been removed from
Canada after a negative protection decision. In the latter case, the PRRA will
consist of a file update in the event that new evidence is presented.
The PRRA is closely linked in time to
removals and is carried out immediately prior to removal.
[9] Thus,
with certain limited exceptions (for example persons who came to Canada through
a designated third country, persons subject to an authority to proceed under
the Extradition Act, persons who return to Canada within six months of
their removal, and persons who have been granted refugee protection) a person
who is subject to a removal order may apply for protection (see: section 112 of
the Act). The person must be notified of their right to apply for protection
before they are removed from Canada (see: subsection 160(3) of the Regulations)
and may apply for protection once given such notification (see: subsection
160(1) of the Regulations). Generally, an enforceable removal order is stayed
pending consideration of the application for protection contained in the PRRA
application (see: section 232 of the Regulations).
[10] Of
particular relevance is section 112 of the Act which prescribes who may apply
for a PRRA. A condition precedent to section 112 of the Act is that the person
be subject to a removal order. Canadian-born children, being citizens of this
country, have an unqualified right to remain in Canada. They cannot be subject
to a removal order and therefore cannot apply for a PRRA.
[11] It
follows that their interests cannot be assessed on a PRRA application qua
applicant.
[12] I
now turn to consider what it is that an officer conducting a PRRA is required
to consider. Section 113 of the Act provides:
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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;
(c) in the case of an
applicant not described in subsection 112(3), consideration shall be on the
basis of sections 96 to 98;
(d) in the case of an
applicant described in subsection 112(3), consideration shall be on the basis
of the factors set out in section 97 and
(i) in the case of an
applicant for protection who is inadmissible on grounds of serious
criminality, whether they are a danger to the public in Canada, or
(ii) in the case of any other applicant, whether the
application should be refused because of the nature and severity of acts
committed by the applicant or because of the danger that the applicant
constitutes to the security of Canada.
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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;
c)
s’agissant du demandeur non visé au paragraphe 112(3), sur la base des articles
96 à 98;
d)
s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments
mentionnés à l’article 97 et, d’autre part :
(i) soit du fait que le demandeur interdit de
territoire pour grande criminalité constitue un danger pour le public au
Canada,
(ii) soit, dans le cas de tout autre
demandeur, du fait que la demande devrait être rejetée en raison de la nature
et de la gravité de ses actes passés ou du danger qu’il constitue pour la
sécurité du Canada.
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[13] This
provision makes it clear, in my view, that the relevant factors the officer
“shall” consider are confined to those described in sections 96 to 98 of the
Act. Persons described in subsection 112(3) of the Act (for example, persons
who are inadmissible on grounds of security or organized criminality) may only
have their claims considered on the basis of the factors contained in section
97 of the Act. Humanitarian and compassionate factors are not among those an
officer “shall” consider under either section 96 or 97 of the Act.
[14] The
conclusion that humanitarian and compassionate factors are not to be considered
on a PRRA application is consistent with this Court’s decision in Kim v. Canada
(Minister of Citizenship and Immigration), 2005 FC 437. There, my
colleague Mr. Justice Mosley wrote at paragraph 70:
70. By the same logic, I
find that PRRA officers need not consider humanitarian and compassionate
factors in making their decisions. There is no discretion afforded to a PRRA
officer in making a risk assessment. Either the officer is satisfied that the
risk factors alleged exist and are sufficiently serious to grant protection, or
the officer is not satisfied. The PRRA inquiry and decision-making process does
not take into account factors other than risk. In any case, there is a better
forum for the consideration of humanitarian and compassionate factors: the
H&C determination mechanism. I do not find that the officer erred in law by
refusing to consider humanitarian and compassionate factors in the context of
the PRRA decision.
[15] Before
leaving this point, I believe it is relevant to observe that the Federal Court
of Appeal has cautioned that humanitarian grounds should not be imported into
the determination of refugee claims. See: Canada (Minister of
Citizenship and Immigration) v. Ranganathan, [2001] 2 F.C. 164 at
paragraph 17. Just as humanitarian and compassionate factors should not be
considered in the determination of a claim to status as a Convention refugee,
they should not, in my view, be imported into consideration of the need for
protection based upon the factors prescribed in sections 96 to 98 of the Act.
[16] The
final basis for my conclusion that the best interests of Canadian children are
not to be assessed within a PRRA application is recognition that other
provisions exist within the Act which mandate consideration of those interests.
Specifically, section 25 of the Act requires that those interests be assessed
on an application to the Minister to grant a foreign national permanent
resident status, or on an application to the Minister to exempt a foreign
national from any applicable criteria or obligation under the Act. It is not
necessary for the best interests of children to be examined in each available
proceeding under the Act. As the Federal Court of Appeal observed in DeGuzman
v. Canada (Minister of Citizenship and Immigration), 2005 FCA
436 at paragraph 105:
105. […] not every statutory
provision must be able to pass the "best interests of the child"
test, if another provision requires their careful consideration. In my opinion,
section 25 is such a provision, because it obliges the Minister to consider the
best interests of a child when deciding whether, in his opinion, humanitarian
and compassionate circumstances justify exempting an applicant from the normal
selection criteria and granting permanent residence status.
Did the Officer Ignore
Evidence?
[17] Mr.
Ammar argues that the officer ignored evidence, specifically the letter from a
lawyer to the effect that Mr. Ammar would be arrested and tried on his return
to Lebanon. However, the officer dealt at some length with the letter and its
contents and concluded that the letter’s contents were inconsistent with what
the documentary evidence disclosed with respect to similarly situated persons.
While there was evidence of poor conditions in Lebanese prisons, the officer
noted that the country condition reports presented a “mixed picture”. It was
for the officer to weigh the conflicting evidence. The officer’s conclusion
that the majority of SLA detainees did not encounter torture, risk to life, or
risk of cruel and unusual treatment or punishment was supported by tenable
reasons grounded in the evidence. The conclusion withstands a somewhat probing
analysis1. It follows that there is no basis for
intervention on judicial review.
Did the Officer Fail to
Assess Mr. Ammar’s Individual Situation?
[18] Mr.
Ammar argues that the officer failed to consider Mr. Ammar’s own circumstances,
particularly in light of the content of the letter from the lawyer.
[19] As
noted above, the officer did consider the content of the letter and Mr. Ammar’s
prior circumstances. I note that while the letter is undated, it was
translated in December of 1998. The officer considered Mr. Ammar’s situation
in light of the current country condition documentation. There is no basis for
intervention on this ground.
CONCLUSION
[20] For
these reasons, the application for judicial review will be dismissed.
[21] Counsel
for Mr. Ammar was afforded the opportunity to make further submissions in
writing with respect to the consideration of the best interests of the Canadian
children and also certification of a question. However, no submissions were
submitted and no certified question was proposed.
[22] No
question will be certified. Not only did Mr. Ammar not seek certification of a
question, but the PRRA application was silent with respect to the need to
assess the best interest of Mr. Ammar’s Canadian children. Thus, even if the
Court of Appeal were to find some obligation to consider their best interests,
that result would not be dispositive of an appeal when the issue was not raised
before the PRRA officer and no submissions were made to the officer.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1.
The application for judicial review is dismissed.
“Eleanor R. Dawson”
1. I respectfully adopt the conclusion of
my colleague Mr. Justice Simon Noël in Choudry v.Canada (Minister of Citizenship
and Immigration), 2006 FC 239 at paragraph 8 with respect to the standard
of review applicable to a PRRA decision.
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