Date: 20090723
Docket: IMM-50-09
Citation: 2009
FC 745
Ottawa, Ontario, July 23, 2009
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
FUAD MASUD AL MANSURI
NURIA BEN AMER
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review of the decision of L. Krajcovic (the Officer)
dated September 5, 2008, wherein the Officer determined that the applicants
were not at risk in Libya and accordingly refused the
applicants’ applications for the Minister’s protection. Having carefully
considered the applicants’ record as well as the written and oral submissions
of both parties, I have come to the conclusion that the Officer erred in
assessing the new evidence as it relates to the applicants’ sur place
claim.
BACKGROUND
[2]
The
background to the applicants’ refugee claim was well summarized by my colleague
Madam Justice Eleanor R. Dawson in her reasons to dismiss the application for judicial
review of the first PRRA decision: see Fuad Al Mansuri and Nuria Ben Amer v.
The Minister of Public Safety and Emergency Preparedness and the Solicitor
General, 2007 FC 22.
[3]
The
applicants are citizens of Libya. They entered Canada on January 1, 1999, having
left their two children in Libya as the government apparently
refused to issue the children visas that would allow them to travel with their
parents. They subsequently had four Canadian-born children, but one passed
away in 2005.
[4]
The
applicants’ fear of returning to Libya
stems from the principal applicant’s reluctance to cooperate with the Libyan
Intelligence Services. After completing his military service in 1994, he
claims that he was forcibly recruited by the Intelligence Service to report any
anti-government sentiment at his place of employment. In May 1998, the
Military Service issued an order for all former soldiers that had served
between certain dates to travel to the eastern part of Libya to fight against suspected terrorists
that had entered the country. At the time, the applicants’ son was in critical
care in the hospital and so the male applicant did not report for military
duty. He was arrested and spent 18 days in prison while the government was
trying to confirm his story. During that time, the applicant alleges that he
was continually harassed and psychologically tortured. He was also warned that
if he failed to carry out an order in the future, he would be executed.
[5]
In
December 1998, the applicant received a personalized order from the Head of the
Military Intelligence Services to travel to Romania for the purpose of assassinating a
Libyan national living there. This is when the applicants decided to flee the
country. Upon their arrival in Canada
in January 1999, the applicants claimed refugee status.
[6]
The
Convention Refugee Determination Division of the Immigration Refugee Board (the
Board) determined that the male applicant was excluded from refugee protection
under Article 1(F)(a) of the Refugee Convention, due to his involvement with
the Libyan Intelligence Service. The Board further considered inclusion, and
concluded that the applicant’s account was implausible, as it was not credible
that he would have been maintained in service by Libyan intelligence and trusted
with an overseas assignment after having allegedly previously refused to carry
out an order. The Board concluded that the entire account was implausible and
inconsistent with the known methods of operation of the Libyan Intelligence
Service. As the applicant Nuria had based her claim on that of her husband, her
claim also failed since it had no objective basis. In May 2001, this Court
denied the applicants leave to seek review of the Board decision.
[7]
The
applicants then applied for a PRRA. In addition to the grounds raised in their
refugee claim, they argued that they would be at risk if returned to Libya because refugee claimants are subjected
to human rights abuses in that country. Mr. Al Mansuri’s claim could only be
properly considered by the PRRA Officer on the basis of the grounds set out in
section 97 of the Immigration and Refugee Protection Act, S.C. 2001, c.
27 (the Act), since his claim to refugee protection had been rejected on the
basis of section 1(F)(a) of the Refugee Convention.
[8]
The evidence
adduced on that application included a letter from Mr. Al Mansuri’s father and
an arrest warrant issued three weeks after the applicants embarked from Libya. The Officer who assessed the PRRA
application did not find the letter and arrest warrant credible evidence, as it
was the only material received from Libya and materialized only after the
applicants were given arrangements for their removal from Canada. The Officer relied on the
applicants’ own experiences and that of their family to guide the decision.
The Officer noted that the Libyan government is ruthless in dealing with
dissenters and does not rely on arrest warrants but on arbitrary arrest and
detention. The Officer reasoned that if the applicant truly was a dissenter
the authorities would have responded vehemently to him. The Officer also
relied on the Board findings that the applicants’ story was implausible and not
well-founded. The Officer did not give effect to the applicants’ claim that
they were at risk as returning asylum seekers. Justice Dawson dismissed the
application for judicial review of that decision in January 2007 (supra).
[9]
The
applicants made another application for a PRRA in October 2007. The rejection
of that second application is the subject of the present litigation.
THE IMPUGNED DECISION
[10]
In
rejecting the second protection application, the Officer relied extensively on
the prior determinations of the applicants’ case, in particular the findings of
the first PRRA. The Officer then considered the new evidence submitted by the
applicants, which consisted of a letter from the Refugee Coordinator in the
Toronto Office of Amnesty International written specifically about the
applicants’ case; an article about the applicants that appeared in the Windsor Star;
a letter addressed to the Prime Minister of Canada from the American Libyan
Freedom Alliance’s Chairman, posted on the internet, pleading that Mr. Al
Mansuri be granted political asylum and referring to the case of another Libyan
citizen expelled from Canada in 2002 only to be imprisoned for life upon his
return to his country; and documentary evidence including a United States
Department of State Country Reports on Human Rights Practices in Libya (2007),
an Amnesty International Report on Libya (2007), and a Human Rights Watch World
Report on Libya (2008).
[11]
With
respect to the Amnesty International letter, the Officer acknowledged that such
a particularized letter carries significant weight, but determined that the
conclusions drawn in that letter were “problematic” as they are based on the
applicants’ own account, which had been found not to be credible. Also, the
Officer concluded that the facts upon which the conclusions in the letter were
based had not been established. In particular, while the Officer concluded that
the evidence established that the Libyan government was aware of the
applicants’ presence in Canada, there was no evidence that
the Libyan government had knowledge of the details of the applicants’ refugee
claim. The Officer further indicated that there was no evidence that the
applicants had made any public allegations against the Libyan government.
[12]
The
Officer then considered the documentary evidence and quoted extensively from it.
He then concluded that while the evidence revealed that dissidents could face
arrest, detention, and human rights violations, the applicants were not
similarly situated to the dissidents referred to in the evidence. More
specifically, he wrote:
The applicants claim that they
are at risk of arrest and detention upon return to Libya because the male applicant did not
follow orders of the Libyan Intelligence Service, their filing of a refugee
claim in Canada and the media attention
brought to their claim. However, after review of the above-noted documentary
evidence, I do not find that the male applicant is similarly situated to the
individuals who were arrested and detained on the basis of their political
acts, which resulted in them being perceived of as dissidents or politically
opposed to the government. I do not find that the male applicant’s refusal to
obey orders of the Intelligence Service and his refugee claim in Canada constitute “political
activism” to an extent that the applicants face risk on this basis. As a
result, I find that the applicant has not established the facts of his case on
a balance of probabilities, namely that he holds the profile of an individual
who is perceived of as a dissident or politically opposed to the government.
ISSUES
[13]
In his
written and oral submissions, counsel for the applicants raised three questions
which all go to the assessment of the evidence by the Officer. The crucial
issue, it seems to me, is whether the Officer adequately assessed the
applicants’ new argument as it relates to a sur place claim, and whether
the new evidence was properly analyzed in that light.
ANALYSIS
[14]
There is
no dispute between the parties as to the applicable standard of review. The
determination of risk on return to a particular country is in large part a
fact-driven inquiry. Whether the Officer had proper regard to all the evidence
that was before him is clearly the kind of decision calling for deference from
a reviewing court. It is now well established, as a result of Dunsmuir
v. New Brunswick, 2008 SCC 9, that such a decision must be reviewed on a
standard of reasonableness: see, e.g., Erdogu
v. Canada (Minister of Citizenship and
Immigration), 2008 FC
407; Campbell c. Canada (Minister of Citizenship and
Immigration), 2009 FC
682; Aleziri v. Canada (Minister of Citizenship and
Immigration), 2009 FC
38. As a result, it may only be overturned if it does not fall “within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” (Dunsmuir, supra, at para. 47).
[15]
The Officer was
certainly entitled to give little weight to the Amnesty International letter,
to the extent that it was based on the applicants’ own personal account that
was determined to be not credible by the Board. The problem, however, is that
the letter is based not only on the information provided by the applicants, but
also on Amnesty International’s objective documentation on the human rights
situation in Libya, which was then applied to the specific facts of the
applicants’ circumstances. Indeed, the factors identified in the letter that
would put Mr. Al Mansuri at risk have nothing to do with the credibility of the
applicants. They include the fact that Mr. Al Mansuri was an employee of the
Libyan government and did not return to Libya but made a refugee claim in Canada, the details of that claim and his presence in Canada are known to the Libyan authorities, he has made public
allegations against the Libyan authorities, and the details of Mr. Al Mansuri’s
case have been reported in the media in Canada and on the internet.
[16]
These
facts do not depend on Mr. Al Mansouri’s credibility and can be easily
verified. For example, the letter to the Prime Minister is publicly available,
and the Amnesty International letter refers to the website where it can be
found. That letter details the consequences of the Canadian government’s
actions against similarly situated persons returned to Libya. Yet, it was only briefly mentioned in
the Officer’s reasons without any discussion.
[17]
The
Officer also questions whether the details of the applicants’ refugee claim are
known to Libyan authorities, and whether the male applicant has made public
allegations against the Libyan authorities. It is for that reason that the
Officer doubts the conclusions drawn by Amnesty International, and eventually
concludes that the applicants are not similarly situated to the individuals who
were arrested and detained because they were perceived of as dissidents or
politically opposed to the government.
[18]
This
conclusion is flawed and is not supported by the evidence. The Amnesty International
letter itself makes it clear that the applicants are seeking refugee status,
and that Mr. Al Mansouri opposes the government. The letter from the American
Libyan Freedom Alliance similarly indicates that Mr. Al Mansouri applied for
political asylum. The mere fact that a non-governmental organization like
Amnesty International and a dissident group advocating constitutional democracy
in Libya support Mr. Al Mansouri and his wife would, in all likelihood, be
sufficient to make the applicants suspect in the eyes of the Libyan
authorities.
[19]
But there
is more. The publicity surrounding Mr. Al Manrouri’s refugee claim and his
attempts to remain in Canada have been publicized in the media, and there is
evidence that failed refugee claimants returned to Libya are harassed, intimidated, detained, and
tortured. It may well be, as the respondent suggests, that Libyan officials do
not read the Windsor Star on a daily basis, but one need only look for
the applicant’s name on an internet search engine to find it and other sites
related to the applicants’ story.
[20]
I am
therefore of the view that the Officer did not properly assess the evidence
that was before him, and failed to give proper consideration to the applicants’
sur place claim. While the Officer could rely on previous credibility
findings, these were not determinative of the applicants’ new basis to seek
protection from the Canadian authorities.
[21]
For all
the foregoing reasons, this application for judicial review is granted.
Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that this application for judicial
review is allowed, and the matter is remitted to a different immigration
officer for redetermination. No question is certified.
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