Date: 20060919
Docket: IMM-2091-06
Citation: 2006 FC 1125
Ottawa, Ontario, September 19, 2006
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
SALEH
OMAR OSAMA FI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an application for
judicial review of a decision rendered by a Pre-Removal Risk Assessment Officer
(PRRA officer) on March 23, 2006, who rejected the applicant’s application for
protection made under section 112(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA).
[2]
In
the case at bar, the applicant’s claim for protection was based both on his
Palestinian “nationality” (or membership in a particular social group, that is,
as a relatively young male Palestinian from the Israeli-occupied West Bank) and imputed political
opinion.
[3]
The
application for protection was dismissed by the PRRA officer.
[4]
The
PRRA officer recognizes that the documentary evidence clearly supports the
existence of an “objective fear” felt by the Palestinian population in the West
Bank territories occupied by the army of Israel. In this regard, the PRRA officer notes that
the extensive control over the Palestinian population has led to severe
restrictions on its freedom of movement. Closure and curfews on towns and
villages have also seriously obstructed Palestinian economic activity.
Moreover, houses are destroyed for alleged reasons of security or in the
context of territorial expansion. That being said, the denial of protection in
this case is essentially based on the fact that the applicant has not
demonstrated to the satisfaction of the PRRA officer that there is a
“personalized” risk of persecution, torture, risk to life or risk of cruel and
unusual treatment or punishment.
[5]
In support
of his finding that there is not a “personalized” risk, the PRRA officer notes that
the applicant is not a Palestinian militant leader who would be at risk from
“targeted killings”. In coming to this conclusion, the PRRA officer has
considered the allegation that the applicant was previously arrested and
detained by Israeli authorities, first in 1988 following his participation in
the first Intifada, and then in 2000 after his return from the United Arab
Emirates, where he had resided for the previous 10 years. The PRRA officer
has also considered the new evidence of persecution submitted by the applicant,
who relies on the fact that in 2003, the applicant’s family house was destroyed
and the family’s land was confiscated by the Israeli army. The PRRA officer
accepts that the acts in question occurred. He nevertheless finds that the
reasons or motives for the reported destruction of the applicant’s family home
and the confiscation of the family’s land have not been satisfactorily
established. The applicant also alleged that some members of his family were beaten
by Israeli authorities in 2003, but there is no credibility finding with
respect to this allegation, which is supported by a letter of the mayor of
Beit-Lid written on Palestinian National Authority (PNA) letterhead.
[6]
Where
an impugned PRRA decision is considered globally and as a whole, the applicable
standard of review should be reasonableness simpliciter. That being said, the
interpretation of a particular section of IRPA should be assessed on a
correctness basis, while a particular finding of fact made by the PRRA officer
should not be disturbed unless it was made in a perverse or capricious manner
or without regard to the evidence before the PRRA officer (Figurado v.
Canada (Solicitor General) (F.C.), [2005] 4 F.C.R. 387,
2005 FC 347 at para. 51; Harb v. Canada (Minister of
Citizenship and Immigration) (2003), 302 N.R. 178, 2003 FCA 39 at para. 14.
[7]
The
present application must be allowed.
[8]
First,
the PRRA officer violated the applicant’s right to procedural fairness in the
determination of his application for protection. The principles mentioned by
the Federal Court of Appeal in Mancia v. Canada (Minister of Citizenship and
Immigration)(C.A.), [1998] 3 F.C. 461
at para. 27, are applicable here. It is apparent that the PRRA officer
consulted relevant documentary extrinsic evidence found on the internet, upon
which the applicant was never given an opportunity to comment. Such unilateral
use of the internet is unfair (Zamora v. Canada (Minister of
Citizenship and Immigration) (2004), 260 F.T.R. 155, 2004 FC 1414
at paras. 17-18).
[9]
In
particular, the use of information from the Wikipedia website is highly
questionable, as the reliability of its sources has not been demonstrated to
the Court. Moreover, I note that the number of internet documents consulted by
the PRRA officer is important. Of these documents, only the 2005 Amnesty
International Country Report and the U.S. Department of State Country Reports
on Human Rights Practices – 2005, are among the standard documents found in the
Immigration and Refugee Board (IRB) Documentation Centres. (There is also a
Country Report from 2004.)
[10]
The
PRRA officer relied on other documents originating from public sources that
related to general country conditions and that became available and accessible after
the filing of the applicant’s submissions. In view of the above finding, it is
not necessary to determine whether or not they were “novel” and “significant” in
light of the Mancia test (above, at para. 27).
[11]
Second,
the PRRA officer clearly misunderstood the different and distinct applicable
tests under sections 96 and 97 of IRPA respectively. He states in the
impugned decision:
Afin de se prévaloir de la protection
édictée par les articles 96 et 97 de la LIPR, tout demandeur doit
démontrer l’existence d’une crainte objective vérifiable ainsi que d’un risque
personnalisé.
[12]
Section 96
of IRPA refers to “a well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or political opinion”.
[13]
To
satisfy the definition of “Convention refugee” found in section 96 of IRPA,
the claimant must show that he meets all the components of this definition,
beginning with the existence of both a subjective and objective fear of
persecution. The claimant must also establish a link between himself and
persecution for a Convention reason; he must be targeted for persecution in
some way, either “personally” or “collectively” (Rizkalla v. Canada (Minister of Employment
and Immigration)
(1992), 156 N.R. 1 (F.C.A.).
[14]
That
being said, it is trite law that persecution under section 96 of IRPA can
be established by examining the treatment of similarly situated individuals and
that the claimant does not have to show that he has himself been persecuted in
the past or would himself be persecuted in the future. In the context of claims
derived from situations of generalized oppression, the issue is not whether the
claimant is more at risk than anyone else in his country, but rather whether
the broadly based harassment or abuse is sufficiently serious to substantiate a
claim to refugee status. If persons like the applicant may face serious harm
for which the state is accountable, and if that risk is grounded in their civil
or political status, then he is properly considered to be a Convention refugee
(Salibian v. Canada (Minister of Employment and Immigration), [1990] 3
F.C. 250 at 259 (F.C.A.); Ali v. Canada (Minister of Citizenship and
Immigration) (1999), 235 N.R. 316.
[15]
In Salibian,
above, the decision under review related to a refugee claim made by a citizen
of Lebanon. It also appeared that
the plaintiff had been the subject of various incidents connected with the fact
of being Armenian and a Christian. Despite this evidence, the IRB had dismissed
the claim on the ground that the plaintiff was “a victim in the same way as all
other Lebanese citizens are”. The Federal Court of Appeal concluded that the
IRB had both erred in law and made an arbitrary and capricious conclusion of
fact. With respect to the issue of law, Justice Robert Décary clearly
indicated that a situation of “civil war” in a given country “is not an
obstacle to a claim provided the fear felt is not that felt indiscriminately by
all citizens as a consequence of the civil war, but that felt by the applicant
himself, by a group with which he is associated, or, even, by all citizens
on account of a risk of persecution based on one of the reasons stated in the
definition [of a Convention refugee]” (Salibian, above, at 258).
[16]
Therefore,
a refugee claim that arises in a context of widespread violence in a given
country must meet the same conditions as any other claim. The content of those
conditions is no different for such a claim, nor is the claim subject to extra
requirements or disqualifications. Unlike section 97 of IRPA, there is no
requirement under section 96 of IRPA that the applicant show that his fear
of persecution is “personalized” if he can otherwise demonstrate that it is
“felt by a group with which he is associated, or even, by all
citizens on account of a risk of persecution based on one of the reasons
stated in the definition [of a Convention refugee]” (Salibian, above, at
258).
[17]
The
above determinations are essentially factual. Once that nexus is established,
whether the fear of persecution is personalized or generalized, the applicant
is to be accorded the status of a Convention refugee under section 96 of
IRPA.
[18]
According
to the documentary evidence, in the West Bank, there are civilians who are
Palestinian or Israeli. In the U.S. Department of State Country Reports on
Human Rights Practices – 2005, it is noted that “Palestinians in the occupied
territories are not citizens of the country and do not enjoy the rights of
citizens, even if living in areas under full Israeli authority or arrested in Israel”.
[19]
In
one of the positive determinations of Convention refugee status made by the IRB
in the case of Palestinians, produced as part of the tribunal’s record, the
“general consequences of civil war” were described as being “losing one’s life
by accident, loosing a limb by treading on a land mine, lack of food, water,
electricity, etc.” On the other hand, “if one of the warring parties singles
out a person or group of persons for reasons of race, political opinion or one
of the other elements enumerated in the refugee definition and subjects it to
serious human rights violations this clearly constitutes persecution”
(Chairperson’s Guidelines on Refugee Claims related to Civilian
Non-Combatants).
[20]
I
express no opinion with respect to the qualification of the particular situation
in the West
Bank and
the acts of violence against Palestinians allegedly committed by the Israeli
army in the occupied territories. This is a matter to be addressed exclusively by
the IRB, or as the case may be, by the PRRA officer. Moreover, it is fully
recognized by this Court that a PRRA decision is not an appeal of an IRB
decision; however, new facts require that the jurisdiction of the PRRA officer
be properly understood and executed. This signifies that the fear of
persecution on a Convention ground and risk evaluation must both be analyzed to
ensure that the PRRA decision’s outcome is affected in substance, not simply
cosmetically.
[21]
That
being said, I note that in the impugned decision, there is no general finding
of non-credibility and there is no separate “subjective fear” analysis done
under section 96 of IRPA in the specific context of the new facts
alleged by the applicant in support of his application for protection (i.e.
the destruction of the applicant’s family home and the confiscation of the
family’s land, as well as the beating of certain family members by the Israeli
army in 2003).
[22]
It
is also apparent that the PRRA officer failed to determine under
section 96 of IRPA whether the applicant is a member of a particular group
of persons and whether the acts of violence against Palestinians and other
members of the applicant’s family, which constitute the basis for the
applicant’s fear, may amount to “persecution” in the circumstances. Instead,
the PRRA officer more or less asked himself whether the applicant faced distinct
or more serious risks than the Palestinian population at large, and thus
avoided analyzing the nexus between the alleged acts of persecution and the
applicant’s nationality or membership in a particular social group. This is an
error of law.
[23]
Apart
from generalizations, the PRRA officer did not make any finding with respect to
human rights violations occurring in the West Bank except to state that the
Israeli authorities will invoke security reasons. Indeed, according to the
documentary evidence submitted by the applicant, which is not specifically commented
upon by the PRRA officer, there are allegations of increased repression,
disproportionate military force being used and collective punishment and there
are many reports of the Israeli government detaining Palestinians without
charge. The applicant alleges in this regard that the evidence before the PRRA
officer clearly establishes that home demolitions are often carried out against
the Palestinian civilian population for punitive motives, as part of Israeli
authorities’ practice of collective punishment, an allegation that I do not
need to comment upon here, but that was certainly relevant with respect to the
fear of persecution alleged by the applicant.
[24]
The
PRRA officer acted arbitrarily or in a capricious manner in discarding the
reasons or motives advanced by the applicant for the destruction of the
applicant’s family home and the confiscation of his land. The PRRA officer
found that the letters from the PNA did not satisfactorily establish the
reasons or motives for these acts. However, no rationale is provided for this particular
finding. Moreover, the fact that the applicant’s family was beaten by Israeli
authorities, a fact that was never disputed by the PRRA officer, was certainly
a relevant consideration in the assessment of the applicant’s risk of
persecution. That the assessment of the risk of persecution was carried out in
abstraction of this crucial fact is sufficient to render that determination
patently unreasonable (Hasan v. Canada (Minister of Citizenship and Immigration), 2004 FC 1537 at
paras. 17-18).
[25]
Therefore,
in view of the breach of the duty of fairness, the errors of law and the capricious
findings mentioned above, the conclusion reached in this case by the PRRA
officer is unreasonable and a new assessment must take place. That being said,
I also conclude that there is not a reasonable apprehension of bias in this
case, as alleged by the applicant. (The applicant has submitted in this regard
that the impugned decision was the third negative PRRA assessment after the
dismissal of the applicant’s claim by the IRB in 2002, and has suggested that
in view of the perfunctory analysis made in the impugned decision, such conduct
gives rise to a reasonable apprehension of bias.)
[26]
In
conclusion, the impugned decision must be set aside and the matter referred
back for re-determination by another PRRA officer. No question of general importance
was raised by counsel.
ORDER
The
application for judicial review is allowed. The decision rendered by the PRRA
officer is set aside and the matter is referred back for re-determination by a
different PRRA officer. No question of general importance is certified.
“Luc
Martineau”
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