Date: 20040521
Docket: IMM-9199-03
Citation: 2004 FC 752
OTTAWA, ONTARIO, THE 21st DAY OF MAY 2004
Present: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
SEMMAN JOSEPH ABDOU
RIZK NAGHAM
Applicants
- and -
SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by Guylaine Fortin (the PRRA officer), dated October 6, 2003, on a Pre-Removal Risk Assessment application by Semman Joseph Abdou (the applicant) and his wife, Rizk Nagham. In this decision, it was determined that the applicants would not be subject to a risk of persecution or torture, a risk to life or a risk of cruel and unusual treatment or punishment if they were removed to Lebanon.
[2] The applicant was a member of the South Lebanon Army (SLA), working as a guard at the barracks of this organization. In his PRRA application, the applicant alleged that he feared the members of Hezbollah and the Lebanese authorities. Excluded by the Refugee Protection Division of the Immigration and Refugee Board based on paragraphs 1F(a) and (c) of the Convention, the applicant came under subsection 112(3) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act). The PRRA officer therefore proceeded to assess the PRRA application only on the basis of section 97 of the Act, in accordance with paragraph 113(d) of the Act.
[3] The applicants appear to be claiming that they were denied a fair hearing. The respondent submits, correctly, that this vague and general allegation is unfounded. The applicants had the opportunity to make written submissions in their PRRA applications and the PRRA officer was justified in determining that a hearing was not required. Paragraph 113(b) of the Act provides that a hearing can only be held if the prescribed factors are met. These factors, appearing in section 167 of the Immigration and Refugee Protection Regulations, SOR/2002-227, provide that the evidence must raise a serious and crucial issue of the applicant's credibility for a hearing to be required. Therefore, there is a right to a hearing in PRRA procedure provided that credibility is the key element on which the officer based his or her decision and that, without a critical finding on credibility, the decision would have been unfounded. This was not the case here. In fact, a careful review of the officer's decision shows that the decision on credibility was not determinative in itself when all of the elements considered are taken into account. The PRRA officer did not find that the applicant lacked credibility but rather that there was no objective basis for the risks alleged in light of the documentary evidence and that the only risks that he could incur did not meet the requirements of section 97 of the Act.
[4] Several reasons led the PRRA officer to find that the requirements of section 97 of the Act had not been met. The PRRA officer first observed that, even though he had allegedly been threatened by the Lebanese authorities since 1996, the applicant did not leave his country until May 2000. Yet he had held a valid passport since February 1997. Accordingly, the PRRA officer determined that this delayed departure was inconsistent with having a subjective fear. Further, the PRRA officer observed that the risks alleged by the applicant in his PRRA application were the same as those that he had alleged in his Personal Information Form (PIF) and at the hearings held by the Board.
[5] The PRRA officer noted that the applicant had submitted a single piece of new evidence in his PRRA application, a document issued by the Directorate General of the Internal Security Forces. The PRRA officer observed that this document had significant shortcomings that she described extensively in her notes. Despite the doubts that she had about the authenticity of this document, the PRRA officer nevertheless examined its contents. She determined that the document was not conclusive. She noted, inter alia, that the document only indicated that a notice had been issued by the army regarding the applicant, which did not in any way confirm the applicant's allegation that an arrest warrant had been issued against him. Considering all of the shortcomings that she noted with respect to this document, the PRRA officer did not assign it any weight. The applicants have not persuaded me that the PRRA officer's failure to request explanations about this document, under the circumstances, is sufficient in itself to set aside the decision and refer the matter for reconsideration.
[6] The PRRA officer also observed that the objective documentary evidence showed that the Hezbollah was no longer a threat and that, even if it were, the applicant would be entitled to protection by the Lebanese authorities. Moreover, the PRRA officer found that if the applicant had to face charges for his involvement in the SLA, an organization known internationally for committing terrorist acts for a number of years, the sanction he would face could not be characterized as an unlawful sanction, or as a sanction imposed in disregard of accepted international standards. In effect, the PRRA officer found that the documentary evidence indicated that the penalties imposed for membership in the SLA are not contrary to international standards. The applicants claim that the PRRA officer erred in finding that the applicant would be subject to a sanction that could not be characterized as an unlawful sanction, or a sanction imposed in disregard of accepted international standards, contradicting reports by Amnesty International. However, it appears from the PRRA officer's notes that she took the Amnesty International report into consideration, but made her finding in light of the information given in the "UK Country Assessment: Lebanon 2001". This finding was reasonably available to the PRRA officer.
[7] Considering the evidence before her, the PRRA officer also noted that there were mitigating circumstances in the applicant's favour and that these circumstances would be taken into consideration in determining any sanction potentially arising from his involvement in the SLA. In light of the documentary evidence and mitigating circumstances which could play in the applicant's favour, the PRRA officer also determined that there was a slim chance that he would be sentenced to imprisonment and that, on a balance of probabilities, it was not likely that he would be tortured or mistreated. The Court is not persuaded that this finding was unreasonable.
[8] In view of all of the foregoing, none of the arguments made by the applicants show that there are substantial grounds to believe that the PRRA officer erred in law or based her decision on erroneous findings of fact that she made in a perverse or capricious manner or without regard for the material before her and, accordingly, the intervention of this Court is not warranted. As mentioned earlier, after weighing all of the evidence before her, the PRRA officer found that the applicant lacked subjective or objective fear. The PRRA officer assessed the probative value of the only document furnished by the applicant, which she had to do. She determined that she could not assign any weight to this document given the dubious elements that she had noted. As this is, fundamentally, purely a question of assessing the evidence, I must find that the applicants were unsuccessful in discharging the heavy burden of proof to show that the PRRA officer's decision was patently unreasonable. Accordingly, the application for judicial review is dismissed. No question of general importance will be certified.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed.
"Luc Martineau"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-9199-03
STYLE OF CAUSE: SEMMAN JOSEPH ABDOU ET AL. v. SOLICITOR GENERAL OF CANADA
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: MAY 20, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
DATE OF REASONS: MAY 21, 2004
APPEARANCES:
VICKEN G. ARTINIAN FOR THE APPLICANTS
MARIE-CLAUDE DEMERS FOR THE RESPONDENT
SOLICITORS OF RECORD:
VICKEN G. ARTINIAN FOR THE APPLICANTS
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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