Date: 20090115
Docket: IMM-360-08
Citation: 2009
FC 38
Montréal, Quebec,
January 15, 2009
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
ABDULLAH MOHAMMED ALEZIRI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of the decision of an
immigration officer dated December 6, 2007, dismissing the applicant’s pre-removal
risk assessment (PRRA) application.
I. Overview
[2]
The
applicant, a
citizen of Saudi
Arabia,
arrived in Canada on a student
visa. A year later, he made a refugee claim which was denied. A challenge of
that decision was denied leave. The applicant then applied for a pre-removal risk
assessment (PRRA) on the same grounds as his refugee claim. That application
was also refused, as the applicant failed to provide sufficient new evidence to
permit a different conclusion than the one rendered on his refugee claim. The
applicant now challenges that negative PRRA decision.
II. The Facts
[3]
The
applicant claims he began to study Christianity in Saudi Arabia, and that as
a result he was harassed, detained and charged by the Saudi religious police. The
applicant was baptized in Canada on March 19, 2006, one day prior to his
hearing before the Refugee Protection Division (RPD). The hearing was adjourned
and further written submissions were allowed but never submitted by the
applicant’s counsel who never received the documentary evidence the applicant
had the responsibility to provide.
[4]
The
applicant states that he was advised by his counsel the day before the hearing to
obtain a certificate confirming he had been baptized; but the applicant claims
he was unable to obtain his certificate of baptism before April 23, 2006, when
he alleges to have immediately contacted his counsel’s office by phone requesting
an appointment to bring him the certificate. This message and other post-hearing
telephone messages left by the applicant with his counsel’s office went
unanswered.
[5]
His
refugee claim was denied on May 9, 2006 without the certificate of baptism
having been produced. In its decision, the RPD notes with respect to the
applicant’s conversion to Christianity that “[t]he claimant gave very confusing
testimony” and that “[w]hile [he] may now regularly attend a church, […] there
is no credible or trustworthy evidence to support the conclusion he has
converted to Christianity […]. The claimant may have a “real interest” in
studying Christianity but I am unable to accept, on a balance of probabilities,
that claimant’s interest is motivated by faith”. Leave for judicial
review of this decision was refused by this Court on November 27, 2006.
[6]
The
applicant then applied for a PRRA. His application included as new evidence his
certificate of baptism which was refused by the PRRA officer because it should and
could have been submitted before the RPD before its decision.
[7]
The
PRRA decision of December 6, 2007, is now impugned by the present application
for judicial review.
In
support of his PRRA application, the applicant submits fearing that he will be
severely persecuted upon his return to Saudi Arabia as a result of
his conversion to Christianity.
III. The Impugned PRRA Decision
[8]
The
applicant’s PRRA application is based on the same grounds as his refugee claim.
The PRRA officer based his adverse finding on the following:
1. The RPD found the applicant
not to be a refugee as it found him not to be credible nor that he was a genuine
Christian convert.
2. The applicant
presented three documents as new evidence. None of these documents fit the
definition of new evidence in section 113 of the IRPA. The first
documents were already considered by the RPD. The second document predated the
RPD hearing and no reasonable explanation was provided as to why it was not
previously available. In any event, the second document, a hospital report, did
not contain any detail which would give it any probative value.
The third
document, a certificate of baptism, was to have been submitted directly
following the RPD hearing but was not. No reasonable explanation was provided
as to why it was not previously submitted. In any event, even if considered as
new evidence, the certificate of baptism alone was insufficient to overcome the
significant credibility concerns of the RPD.
3. The
documentary evidence on country conditions provided by the applicant does not
show that conditions have worsened in Saudi Arabia since the applicant’s
RPD hearing.
4. The US Department
of State Report (US DOS) indicates that Christians are free to practice their
religion in Saudi
Arabia
and that no Muslim citizen who converted to Christianity was prosecuted for
apostasy in years.
[9]
Finally,
the PRRA officer concluded that he did not believed that the applicant would
face more than a mere possibility of persecution on any of the convention
grounds, and that it was unlikely that he would face a risk of torture or a
risk to life or a risk of cruel and unusual treatment or punishment.
IV. Issues
[10]
The
present application raises the following issues:
1. Did the PRRA
officer err in his determination of “new evidence” pursuant to s. 113(a)
of the IRPA?
2. Did the PRRA
officer err in fact and law in his assessment of the applicant’s “sur place”
claim?
3. Did the PRRA
officer misconstrue the evidence before him and base his determination on
irrelevant considerations?
V. Analysis
Standard of
Review
[11]
The
present case involves the application of law to a situation of fact only. The
appropriate standard of review here is therefore reasonableness. The question
at issue falls within the expertise of the PRRA officer and as a result
deference is owed to him (Dunsmuir v. New Brunswick, 2008 SCC
9). The Court should not intervene unless the PRRA officer’s decision does not
fall "within a range of possible, acceptable outcomes which are defensible
in respect of the facts and law" (Dunsmuir, above, at paragraph
47).
New
Evidence
[12]
The
applicant argues that the certificate of baptism should be considered
new evidence since his former counsel was responsible for the applicant’s
baptismal certificate not being filed before the RPD. The applicant alleges
that the negligence of his former incompetent counsel constitutes a breach of
natural justice.
[13]
The
problem with this reasoning is that it is the applicant who had undertaken to
obtain and remit his certificate of baptism, not his lawyer. The applicant may
have very well waited for a reply of his counsel to his telephone messages, but
his obligation never ceased and he never delivered his certificate of baptism
on time either to his counsel or the RPD, and this although he knew then that
the RPD was expecting this certificate before rendering its decision. The
certificate of baptism was not admitted as new evidence by the PRRA officer because
the applicant did not provide him with a reasonable explanation to as to why his
certificate of baptism was not previously placed before the RPD on time.
[14]
Furthermore,
the Court notes that there was no mention of his counsel’s negligence in the
applicant’s PRRA submissions; therefore, the PRRA officer should not be faulted
for not considering submissions that were not before him. This is the first
instance where allegations of negligence on the part of applicant’s previous
counsel are alleged. There was no acceptable explanation for the delay in
providing the baptismal certificate, or allegations of the negligence of the
applicant’s former counsel prior to this application for judicial review. The
PRRA officer’s decision not to admit the certificate on the basis that it was
not new, was not unreasonable. But even if the baptismal certificate had been
admitted, the PRRA officer held that this would not have made a difference in
his decision; in the context of this case, the Court does not see why this
additional conclusion is unreasonable.
[15]
With
respect to the negative credibility findings of the RPD, the applicant does not
characterize the decision correctly in stating that it turned on the lack of
objective proof of conversion. While that was one finding, there were many more
negative findings including many inconsistencies between the applicant’s PIF
and his oral testimony, parts of the oral testimony that the RPD found to be
unlikely or inconsistent, and discordance between the submissions that there
were charges against him in Saudi Arabia when he had travelled to Canada on a
passport with a visa. The PRRA officer was not unreasonable in deciding that
even if the baptismal certificate were admitted, it would not have been
sufficient to make a difference in the finding of negative credibility against
the applicant.
Risk
[16]
The
weighing of evidence was well within the discretion of the PRRA officer;
therefore, the Court will not interfere with the PRRA officer’s finding that
the baptismal certificate, even if admitted as new evidence, was insufficient
to overcome the RPD’s negative credibility findings. The PRRA officer explained
why this was not sufficient evidence in that it did not present any further
evidence of genuine conversion, of attendance at Christian services or of
participation within the Christian community. This finding should also be read
in conjunction with the RPD’s other reasons for finding the applicant not to be
credible.
[17]
No
“sur place” claims were present or necessary in this case since the
applicant claimed to have begun studying Christianity before he came to Canada, and that he
did not present credible evidence of genuine conversion since.
[18]
Whether
the PRRA officer applied or not the correct test for section 97 of the IRPA,
when he found that the applicant did not face any objective risk, becomes
irrelevant for the case at hand from the moment this judicial review fails on
the issue of credibility.
[19]
True
the applicant is not satisfied and disagrees with the PRRA officer’s findings
in this regard. However, the PRRA officer as the trier of fact was entitled to
weigh the documentary evidence and come to his own conclusion. The applicant
having failed to convince the Court that the impugned decision is not
defensible in respect of the facts and law, the Court does not see any valid reason
to intervene.
[20]
Therefore,
the application to review the PRRA officer’s decision will be dismissed, and the Court agrees with
the parties that there is no important question of general interest to certify.
JUDGMENT
FOR THE
FOREGOING REASONS THE COURT dismisses the application.
“Maurice E. Lagacé”
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