Date:
20120801
Docket:
IMM-5863-11
Citation:
2012 FC 953
Ottawa, Ontario,
August 1, 2012
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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ARNANT MAZREKAJ
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
Mr
Arnant Mazrekaj unsuccessfully claimed refugee protection in Canada based on his fear of persecution in Kosovo. In 2010, a panel of the Immigration and
Refugee Board rejected his claim because of a lack of credible evidence, and
because authorities in Kosovo could probably protect him.
[2]
Mr
Mazrekaj then applied for a pre-removal risk assessment [PRRA]. In addition to
the risks he set out in his refugee claim, Mr Mazrekaj presented a further source
of risk – because his uncle had testified before the International Criminal
Tribunal for the former Yugoslavia [ICTY], other family members were at risk of
retribution. In fact, his brothers had been attacked as a result.
[3]
The
PRRA officer believed that the risk that Mr Mazrekaj alleged in his application
was essentially the same as the one he had presented in his refugee claim. As
for the risk flowing from his uncle’s testimony, the officer noted that the
uncle testified in 2009, well before the hearing into his refugee claim, so he
could have raised that issue earlier. Further, the uncle’s testimony was
publicly available, so Mr Mazrekaj could not credibly claim that the reason he
did not raise the issue before the Board was in order not to make it public.
Similarly, the attack on his brothers took place prior to his hearing, so he
could have raised that, too. Therefore, the officer concluded that Mr Mazrekaj
had failed to present new evidence that he faced a substantial risk of
mistreatment in Kosovo.
[4]
Mr
Mazrekaj argues that the officer erred by failing to accord him an oral
hearing, by relying on evidence of which he was unaware, and by rendering an
unreasonable decision. He asks me to quash the officer’s decision and order
another officer to reconsider his application.
[5]
I
agree with Mr Mazrekaj that the officer reached his conclusion by relying on
extrinsic materials to which he should have had a chance to respond. I will
grant his application for judicial review on that basis, making it unnecessary
for me to consider Mr Mazrekaj’s other arguments.
[6]
The
sole issue, therefore, is whether the officer treated Mr Mazrekaj unfairly by
relying on extrinsic materials.
II. The Officer’s
Decision
[7]
The
officer took note of Mr Mazrekaj’s claim that, at the time of his refugee
hearing, he feared the consequences of disclosing his uncle’s testimony before
the ICTY. However, the officer found that the testimony had been public
knowledge well before the hearing.
[8]
The
officer relied on his own research of the ICTY’s website. It showed that the
uncle’s testimony was published as part of the court’s records. The officer
also consulted the website of an organization called the SENSE Agency. It
showed that the uncle was featured in an article from 2009, eight months before
the refugee hearing.
[9]
Based
on this evidence, the officer concluded that Mr Mazrekaj could have raised his
concerns at his refugee hearing about his uncle’s testimony. Therefore, he had
not put forward a new risk that could support a positive PRRA.
III. Did the Officer rely
on extrinsic materials?
[10]
Mr
Mazrekaj submits that the officer treated him unfairly by relying on the
results of his own research, namely the ICTY transcript and SENSE report that
were publicly available before the refugee hearing. He claims not to have been
aware of that evidence. Therefore, the officer had a duty to give him a chance
to respond to it.
[11]
The
Minister contends that the evidence cited by the officer was not extrinsic, as
it was publicly available and came from a reliable source. In addition, Mr
Mazrekaj could have anticipated that the officer would check the ICTY website.
In effect, Mr Mazrekaj simply “played the odds” by holding back a source of
risk that he should have raised at his hearing.
[12]
In
my view, Mr Mazrekaj should have been given an opportunity to respond to the
evidence on which the officer relied. The officer consulted materials that
could not be described as the kind of standard documents that applicants can
reasonably expect officers to consult (Riaji v Canada (Minister of
Citizenship and Immigration), 2011 FC 1240; Mancia v Canada (Minister of
Citizenship and Immigration), [1998] 3 FC 461 (CA)).
[13]
The
evidence before the officer showed a clear risk to ICTY witnesses and their
families. In effect, the officer rejected Mr Mazrekaj’s claim to have been
reluctant to publicly identify his uncle as a witness at the time of his
refugee hearing on the basis that he must have known that this was already
public knowledge.
[14]
The
documents cited by the officer showed that at least some of the uncle’s testimony
was accessible on-line. But those sources were not so obvious or widely
accessible that they could defeat Mr Mazrekaj’s claim to have been unaware that
his uncle’s testimony was publicly available at the time of his hearing in
2010. Mr Mazrekaj should have been given a chance to respond to that evidence
before the officer concluded that his claim was groundless.
IV. Conclusion and
Disposition
[15]
The
officer’s failure to give Mr Mazrekaj an opportunity to respond to documentation
the officer retrieved through independent research was unfair to Mr Mazrekaj.
Accordingly, I must allow this application for judicial review and order
another officer to reconsider Mr Mazrekaj’s PRRA application. Neither party
proposed a question of general importance for me to certify, and none is
stated.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is allowed. The matter is referred back to
another officer for reconsideration;
2.
No
question of general importance is stated.
“James W. O’Reilly”
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