Date: 20050609
Docket: IMM-9458-04
Citation: 2005 FC 821
Between:
FATMA ZOHRA KHEMIRI
Applicant
- and -
SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER
ROULEAU J.
[1] This is an application for leave and judicial review of a decision of the Pre-Removal Risk Assessment (PRRA) officer of the Canada Border Services Agency, Mélanie Leduc, dated September 10, 2004, that the applicant is not in danger of persecution or torture, a threat to her life or cruel or unusual treatment under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA).
[2] The applicant is a citizen of Tunisia. She came to Canada on November 24, 2000, thanks to a visitor's visa that was valid for six months. Since the expiration of this visa, the applicant remained in Canada without legal status until she was arrested by the immigration authorities on November 12, 2003.
[3] On February 19, 2003, the applicant married Mohamed Khalfallah, a permanent resident of Canada of Tunisian origin.
[4] On August 12, 2003, the applicant filed a sponsored application on the basis of humanitarian considerations.
[5] On November 28, 2003, she filed a PRRA application. In this application, the applicant claimed she was unable to return to Tunisia since her father was doing everything he could to get revenge and would be a threat to her life and safety owing to her marriage in Canada since her father had already arranged a marriage that was to take place in Tunisia.
[6] On March 5, 2004, the applicant received the first negative PRRA decision. On April 28, 2004, she filed an application for leave and judicial review in the Federal Court. She also filed a motion for a stay on May 21, 2004.
[7] Before the application for leave was heard, on May 26, 2004, an administrative stay was granted to the applicant.
[8] On June 7, 2004, upon consent of the parties, Mr. Justice Shore set aside the PRRA decision and returned the case to another PRRA officer for re-examination.
[9] On August 26, 2004, the applicant had an interview with a new PRRA officer. On September 10, 2004, the new officer made a negative PRRA decision and a negative decision on the humanitarian considerations.
[10] On November 17, 2004, the applicant obtained from Mr. Justice Lemieux of the Federal Court a stay of execution of the deportation order made on November 13, 2003.
[11] The immigration officer found that the applicant had not established that she would incur her father's wrath should she return to Tunisia.
[12] In her decision, the new immigration officer (the one who interviewed the applicant on August 26, 2004) referred directly to the previous PRRA decision (the one that was set aside by Shore J.).
[13] The main reasons for the negative decision are the following:
(i) the applicant's husband is said to have declared that he was prepared to return to Tunisia with his wife during an interview on November 12, 2003 (a statement that shows a lack of subjective fear);
(ii) the applicant claims she was promised to her cousin since the age of 22, but she did not marry until the age of 28;
(iii) the applicant waited three years to seek Canada's protection and she made no application upon the expiration of her visitor's visa;
(iv) the political and social equality of women is further advanced in Tunisia than elsewhere in the Arab world;
(v) Tunisia does not impose Sharia law or Islamic fundamentalist laws; and
(vi) under Tunisian law, marriage will be solemnized only with the consent of both spouses.
[14] The officer also noted that the applicant had been advised that she could seek protection (refugee status), but she had never claimed refugee status.
[15] The applicant submits the questions noted by Lemieux J. in the order to stay of November 17, 2004:
(a) did the PRRA officer disregard significant documentary evidence filed by the applicant, and in particular the study entitled "Discrimination and violence against women in Tunisia";
(b) did the PRRA officer err in failing to assess the contradictory evidence on state protection of women in Tunisia in situations like the applicant's;
(c) did the PRRA officer err in relying on the conclusions drawn by a PRRA officer in the same case, whose decision had been set aside upon consent of both parties; and
(d) did the PRRA officer require evidence beyond a simple balance of probabilities.
[16] The respondent submits that the study entitled "Discrimination and violence against women in Tunisia" was not in evidence before the PRRA officer. The respondent alleges that the voluminous document cannot be considered by the Court if it was not in evidence before the officer. However, the applicant submits, in her affidavit, that she filed this document with the PRRA officer.
[17] The applicant further submits that one of the documents cited by the PRRA officer, the US Country Reports on Human Rights Practices for 2003 Tunisia, indicates that sharia law is still used in Tunisia. The U.S. document indicates that Tunisian judges prefer sharia law to the codified laws, particularly in domestic (family) situations.
[18] Concerning the legal opinion, the applicant submits that the PRRA officer relied on the analysis and findings of the first PRRA officer. The respondent submits that Officer Mélanie Leduc made sure to note in her reasons that she had herself analyzed all of the applicant's documents and that her reasons tallied with the conclusions drawn by the first officer. The respondent submits that there is no reason to conclude that the PRRA officer based her analysis of the evidence on the former PRRA decision.
[19] On the question of jurisdiction (burden of proof), the applicant submits that the following passage establishes a problematic situation for women in Tunisia. This passage, drawn from the PRRA officer's decision, reads as follows:
[translation] A report submitted by the Tunisian human rights league explains the situation and indicates that the political, social and legal situation in Tunisia gives men authority "over the body of 'their' women (daughter, partner, wife, mother, neighbour, colleague or friend); authority that goes so far as to be displayed through assaults and violence of all kinds".
[20] The respondent submits that the applicant had to persuade the PRRA officer that she was personally affected by the objective situation described in the documentation, which she did not do.
[21] There are several reasons why the decision of Officer Mélanie Leduc is mistaken. Even if each error, by itself, is not patently unreasonable, these errors, taken together, allow this Court to find that her decision is patently unreasonable.
[22] The two parties make contradictory claims in regard to the document entitled "Discrimination and violence against women in Tunisia". The applicant explains that the document was in evidence before the officer, while the respondent says this was not so. If the document was in evidence before the officer, it was certainly disregarded. I have been persuaded that the document was in evidence before the officer and I reach this conclusion on the basis of the fact that during the hearing the Court was able to examine the complete record filed by Immigration Canada and this record contained the document in question. I must therefore conclude that the officer disregarded this document.
[23] In my opinion, the officer ignored evidence showing that sharia law was still in use in Tunisia and noted that women have problems in Tunisia. The officer believed the applicant's testimony, but did not believe the subjective fear. Her conclusion is not consistent with her reasons. If the applicant's testimony is credible and the evidence suggests that women are subject to violence and discrimination, the officer erred in finding that the applicant did not have a valid subjective fear.
[24] Concerning the legal opinion, the officer can never use reasons that were set aside in a new decision. The applicant had a new interview upon consent of the parties. A new decision must be a new decision. If the officer takes the liberty of using the old reasons, the decision is not new. A decision that follows reasons that have been set aside, whether or not on consent, can never be based on the reasons that were set aside. The fear must be addressed de novo by the new officer. In the case at bar, the officer began the analysis of personal danger with a direct reference to the former decision:
[translation] I concur with this finding made by the PRRA officer on the first application....
[25] By basing her decision on the first decision, the officer committed a patently unreasonable error since she could rely only reasons that were subsequently set aside.
[26] Given the patently unreasonable error, the matter will have to be referred back to another officer who will determine the applicant's fear, in accordance with the present reasons and the Act.
[27] Accordingly, the application for judicial review is allowed and the matter is referred back to another pre-removal risk assessment officer for redetermination.
"Paul U.C. Rouleau"
Judge
OTTAWA, Ontario
June 9, 2005
Certified true translation
Peter Douglas
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-9458-04
STYLE OF CAUSE: FATMA ZOHRA KHEMIRI v. SGC
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 31, 2005
REASONS: The Honourable Mr. Justice Rouleau
DATE OF REASONS: June 9, 2005
APPEARANCES:
Sébastien Dubois FOR THE APPLICANT
Marie Nicole Moreau FOR THE RESPONDENT
SOLICITORS OF RECORD:
Saint-Pierre, Grenier FOR THE APPLICANT
460 St. Catherine St. W.
Suite 410
Montréal, Quebec
H3B 1A7
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General
of Canada
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