Date: 20101020
Docket: IMM-354-10
Citation: 2010 FC 1023
Toronto, Ontario, October 20,
2010
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
OUSSAMA AYACH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The Applicant, Mr. Oussama
Ayach, is a citizen of Lebanon who came to Canada in August 2006, claiming a fear of persecution by Hezbollah
because he is a member of the Druze religious community. His claim for refugee
protection in Canada was heard on January 17, 2008 and
dismissed by the Immigration and Refugee Board, Refugee Protection Division
(the RPD) in a decision dated July 9, 2008 (the RPD Decision). The RPD
concluded that the Applicant had failed to produce credible or trustworthy
evidence that he had been persecuted by members of Hezbollah.
[2]
In an application for
a pre-removal risk assessment (PRRA), made in April 2009, the Applicant restated
his fear of persecution at the hands of Hezbollah. In support of his PRRA
application, the Applicant submitted new evidence regarding the country
conditions in Lebanon. Included in the application was a
letter from the Applicant’s brother describing an attack, by Hezbollah, on
members of his family that occurred on May 7, 2008. In the letter, the brother
claims that members of Hezbollah asked about the Applicant’s whereabouts during
the attack.
[3]
In a decision dated
November 27, 2009, a PRRA Officer dismissed the Applicant’s PRRA application.
The key determination of the PRRA Officer was that the Applicant was alleging
the same risks that were considered and dealt with in the RPD decision. The
PRRA Officer concluded that the documentary evidence provided by the Applicant
did not demonstrate that country conditions had deteriorated in Lebanon, or that there were new risks to the Applicant since the
RPD decision. With respect to the brother’s letter, the PRRA Officer stated
only the following:
I
also acknowledge the letter from the applicant’s brother indicating that he is
still threatened. I find that the applicant does not rebut the significant
findings of the RPD.
[4]
Finally,
the PRRA Officer states that
“I find that if this applicant were at risk a state apparatus of protection
would be available to him”.
[5]
The Applicant seeks
judicial review of the decision.
[6]
The decision of the
PRRA Officer is reviewable on a standard of reasonableness (Woldegabriel v. Canada (Minister of Citizenship and
Immigration), 2008
FC 1223 at para. 21). As taught by the Supreme
Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190 at para. 47:
In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[7]
In my view, the determinative
issue in this case is whether the PRRA Officer had regard to the evidence put
forward by the Applicant. The Applicant specifically references a change in his
personal circumstance in Lebanon by adducing “new” evidence by
way of a letter from his brother. However, as noted above, the Officer
dismisses the brother’s letter in one sentence. There is no express finding by
the PRRA Officer that the letter is not new evidence; nor is there an analysis
of whether this letter should be admitted as “new evidence” under s. 113(a) of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
With respect to the letter, the Officer does not consider its credibility,
relevance, newness, materiality, or express statutory conditions. These factors
were set out by the Federal Court of Appeal in Raza v. Canada, 2007 FCA 385, at paragraph 13, as a basis
for assessing whether evidence can be admitted as “new” pursuant to s.113(a) of
the IRPA.
[8]
The
responsibility of this Court is not to re-weigh evidence that was before the
PRRA Officer, and I will not attempt to do so. However, the letter was not
irrelevant. The events discussed in the letter occurred after the Applicant’s
hearing date, and before the RPD decision was rendered. The PRRA Officer should
have analyzed either why the letter was not new evidence under s. 113(a) of the
IRPA or why it should not to be afforded any weight
[9]
The
alternate finding of state protection could have been determinative of the
Applicant’s PRRA application. However, the PRRA Officer offers no analysis
whatsoever of how she reached the conclusion that state protection was
available to the Applicant. I cannot determine that the PRRA Officer’s
conclusion with regard to state protection was reasonable in this case.
[10]
Based on
the above, I conclude that the PRRA Officer’s decision does not demonstrate the
justification, transparency
and intelligibility required.
The Application for Judicial Review will be allowed.
[11]
Neither party
proposes a question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
- The application for judicial review
is allowed, the decision of the PRRA Officer is quashed and the matter is
sent back to a different PRRA Officer for re-determination; and
- No question of general importance is
certified.
“Judith
A. Snider”
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