Date: 20110316
Docket: IMM-2036-10
Citation: 2011
FC 317
Toronto, Ontario,
March 16, 2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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AMIRA HAMADI
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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 ORDER AND
ORDER
[1]
Mrs.
Hamadi, a Lebanese national, is a widow whose husband was murdered by Hezbollah
in 1984. The murder was attributed to his pro-Israel beliefs. He believed that Israel should be allowed to exist in
peace. Mrs. Hamadi and her two sons share that view.
[2]
She
encouraged her two sons flee to the United States, where they had valid student permits. She eventually
applied for refugee status in Canada. Her claim was dismissed in
2000. The RPD Member found there were some credibility issues, and expressed
concerns with respect to the strategic location for Hezbollah of her villa. At
the time of the decision, the Israeli-Lebanese border was no longer near that
villa, and “there is no credible evidence, although admittedly not a lot of
time has passed since the withdrawal, that Hezbollah has taken any action
against traitors with the exception of prominent SLA figures.”
[3]
For
reasons not clear from the record, Mrs. Hamadi was only presented with her
Pre-Removal Risk Assessment (PRRA) form in 2008. Her PRRA was dismissed in
2010.
[4]
Sections
112 and following of the Immigration and Refugee Protection Act provide
that a person such as Mrs. Hamadi may still apply for protection even though
her refugee claim was dismissed. However, she is only entitled to present “new
evidence that arose after the rejection or was not reasonably available, or
that the applicant could not reasonably have been expected in the circumstances
to have presented, at the time of the rejection” (s.113(a)).
[5]
Mrs.
Hamadi submitted two letters as new evidence. The PRRA officer gave these
letters “minimal weight,” and concluded that while Hezbollah continues to be a
threat, there was insufficient evidence to establish that she faced more than a
mere possibility of persecution, should she be returned to Lebanon. The officer
also found there was insufficient evidence to establish that, more likely than
not, she would be subjected to torture or to a risk to her life, or would be at
risk of cruel or unusual punishment or treatment.
[6]
One cannot
always anticipate the evidence which will satisfy a decision maker. Counsel for
the Minister submits that this is a question of insufficient evidence, and that
I am being asked to re-weigh the evidence. I characterize the matter as one of
credibility, and the officer should have addressed his concerns at a hearing in
accordance with section 113(b) of IRPA and section 167 of the Immigration
Regulations. The evidence is central to the decision with respect to
protection and if accepted would certainly have justified allowing the
application.
[7]
The main
thrust of Mrs. Hamadi’s application is a “to whom it may concern” letter, not
on letterhead but apparently signed by the Secretariat-General of Hezbollah in 2003,
stating that she and her two sons were facing both legal and religious
prosecution for opposing Hezbollah’s principles and ideology, for refusing to
abide by its order to become members, and for not participating in Al Jihad
to fight the Israeli/Zionist enemy in South Lebanon.
[8]
The second
letter, apparently on Hezbollah letterhead but not dated, states there is a
judgment against Mrs. Hamadi: “She is condemned to death for the crime in
dealing and cooperating with Israeli or Israeli co-operators and she is
considered a traitor to her country with the rights of confiscating her house
at the city of Dweir and the right to use it to our own benefit in the area.”
This letter is signed by Abou Hassan of Hezbollah’s main general office of
investigations. There is a note that the English translation is unofficial and
informal.
[9]
One of
Mrs. Hamidi’s son’s applied for refugee status in the United States. His application was originally refused,
but then re-opened on the strength of these letters. Apparently, since then the
claim of her other son has likewise been re-opened. The PRRA officer pointed
out that the American decision was not binding here, which is quite true.
[10]
In dealing
with the two letters, the officer assigned minimal weight to the first because
it was not on Hezbollah’s letterhead or logo, did not contain the date it was
issued and appears to have been requested by Mrs. Hamadi then-attorney. The
officer thought it implausible that Hezbollah would issue a document to assist
in the PRRA application. I have grave problems with this opinion. First of all
the letter was dated. Second, there was no PRRA pending at that time the
document was issued. Third, Hezbollah was treating itself as a government and
was simply certifying one of its own records. Why not identify the applicant?
If one obtains, and pays for a certified record of this Court, the receipt is
addressed to that applicant.
[11]
The second
letter, the undated one, identifies the Hezbollah files and a judgment hearing
number 236KM under which Mrs. Hamadi was condemned to death. The officer found
this letter to have minimal probative value, notwithstanding the logo, because
the translation was said to be unofficial and informal and because there was no
statement as to who translated it, no attestation as to its accuracy, and no
explanation as to how the document was obtained.
[12]
One cannot
give minimal value to a death sentence. One must give it considerable value, or
no value whatsoever. If one gives no value to it, it follows that the officer
considered it a forgery, and therefore considered Mrs. Hamadi a liar.
[13]
The burden
of proof is on Mrs. Hamidi to establish that she is at risk, and the standard
is that of the balance of probabilities (Carrillo v Canada (Minister of Citizenship and
Immigration)
2008 FCA 94, [2008] 4 FCR 636).
[14]
It seems
to be conceded that if Hezbollah intended to execute Mrs. Hamadi, no state
protection would be available. It is not contested that Hezbollah is in the
position to carry out its own sentence of death should Mrs. Hamadi be returned
to Lebanon. Thus, if the two so-called
Hezbollah documents are legitimate she would clearly be at risk. Therefore,
this decision turned on a credibility issue, not an insufficiency of evidence
issue. If the officer was concerned about the provenance of the letters and the
accuracy of one of the translations, he should have put these issues to Mrs.
Hamidi at a hearing.
[15]
In the
result, the decision is both unreasonable and procedurally unfair.
ORDER
FOR REASONS GIVEN:
1.
The
judicial review is granted;
2.
The matter
is referred back to a different Pre-Removal Risk Assessment Officer for
reconsideration.
“Sean Harrington”
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