Date: 20110629
Docket: IMM-6678-10
Citation: 2011 FC 793
Ottawa, Ontario, June 29,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
|
|
KEMEL HAZIME
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA], for judicial review of
a decision of Pre-removal Risk Assessment (PRRA) Officer A. Dello (the Officer)
dated October 28, 2010, wherein the Officer refused the Applicant’s PRRA
application. The Officer determined that, based on the evidence, state
protection would be forthcoming in Venezuela.
[2]
Based
on the reasons that follow, the application is allowed.
I. Background
A. Factual
Background
[3]
The
Applicant, Kemel Hazime, is a Venezuelan citizen of Lebanese descent. He was
born in Venezuela on January
22, 1985. When he was six, his family moved back to Lebanon to escape
the discrimination they allegedly faced as Arabs in Venezuela. In 1995,
the family fled Lebanon for the United States where they lived
without status until 2003. At that point the Applicant’s family entered Canada and made a
refugee claim against Lebanon. The family’s refugee
claim was dismissed in 2004 and their PRRA application was refused in 2005.
However, the Applicant and his family successfully became permanent residents
in 2006 on humanitarian and compassionate (H&C) grounds. The other members
of the Applicant’s family are now Canadian citizens.
[4]
In
August 2009, the Applicant was convicted of conspiracy to commit an indictable
offence, namely exporting a controlled substance and trafficking. He was
sentenced to four years in prison, but was paroled after serving only 1 and a
half years. Nevertheless, he lost his permanent resident status due to serious
criminality and a deportation order was issued in February 2010.
B. Impugned
Decision
[5]
The
Applicant submitted an application for a PRRA. He feared returning to
Venezuela for three reasons: 1) Arabs in Venezuela are routinely targeted
because they are perceived to be wealthy; 2) Returnees from first world
countries such as Canada are targeted since they are perceived as having
accumulated wealth; 3) The Applicant would be unable to protect himself in the
violent conditions of Venezuela as someone who has minimal ties to the country,
not having been there in over 20 years and not fluent in the dominant language.
[6]
The
Officer listed the submissions received as part of the application, which
included a statement prepared by counsel, a declaration by the Applicant’s
father, a copy of a National Parole Board decision, copies of travel advisories
for Venezuela and four articles about kidnappings in Venezuela. The
Officer then stated that she has read the Applicant’s submissions and conducted
independent research. She found that there was insufficient evidence to show
that the Applicant was at risk under section 97 of the IRPA.
[7]
The
Officer acknowledged that the Applicant was concerned that he would be targeted
due to his perceived wealth, but found that the determinative issue was whether
state protection would be forthcoming. The Officer then quoted the U.S.
Department of State Country Report on Human Rights Practices at length. The
Officer concluded that while state protection in Venezuela “may not be
unfailingly successful as evidenced above; however it is sufficient that the
state makes serious efforts to protect its citizens.” The Officer determined
that the Applicant would not likely be at risk of torture, or likely to face a
risk of cruel and unusual treatment or punishment as described in section 97 of
the IRPA.
II. Issue
[8]
Was
the Officer’s state protection finding reasonable?
III. Standard
of Review
[9]
The
appropriate standard of review to apply to findings of fact, or mixed fact and
law in a PRRA decision is reasonableness (Hnatusko v Canada (Minister of
Citizenship and Immigration), 2010 FC 18 at para 25). Judicial
deference to the decision is appropriate where the decision demonstrates
justification, transparency and intelligibility within the decision-making
process, and where the outcome falls within a range of possible, acceptable
outcomes that are defensible in respect of the facts and law (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
IV. Argument
and Analysis
A. Was
the Officer’s State Protection Finding Reasonable?
[10]
The
Applicant submits that the Officer’s decision is flawed in a number of ways:
the Officer misunderstood and misapplied the test for state protection; the
decision is inconsistent with the evidence; the Officer ignored relevant
documentary and personal evidence; and finally, the reasons are inadequate.
The Respondent maintains that the Applicant only disagrees with the outcome and
seeks to have this Court reweigh the evidence.
[11]
Having
reviewed the record and the decision, I find that the Officer’s reasons do not
adequately explain her decision. On its face, the decision is inconsistent
with the documentary evidence the Officer herself chose to excerpt in the
reasons. There is no meaningful analysis of the Applicant’s specific fears, nor
is there anything to indicate that the Officer appreciated the documentary
evidence submitted to corroborate the objective basis of those fears. On the
basis of these failings, the decision ought to be remitted back to a different
decision-maker.
[12]
The
Officer concluded that Venezuela is a democratic country
with institutions, infrastructures and legislative tools common to most free
and democratic countries. The mere fact of the existence of an independent
judiciary, police force, army and other administrative institutions was taken
to indicate that the state is willing and able to protect its citizens. These
conclusory remarks, however, are not consonant with the nearly three pages of
bullet points the Officer chose to excerpt from the U.S. Department of State
Country Report on Human Rights Practices.
[13]
For
instance, the report indicates that although Venezuela is a
constitutional democracy,
Politicization of the judiciary and
official harassment and intimidation of the political opposition and the media
intensified during the year. The following human rights problems were reported
by the nongovernmental organization (NGO) community, the media, and in some
cases the government itself: unlawful killings, including summary executions
of criminal suspects; widespread criminal kidnappings for ransom; prison
uprisings resulting from harsh prison conditions; arbitrary arrests and
detentions; corruption and impunity in police forces; a corrupt, inefficient,
and politicized judicial system characterized by trial delays and violations of
due process; political prisoners and selective prosecution for political
purposes; infringement of citizens’ privacy rights by security forces;
government closure of radio and television stations and threats to close
others; government attacks on public demonstrators; systemic discrimination
based on political grounds; considerable corruption at all levels of
government; threats and attacks against domestic NGO’s; violence against women;
inadequate juvenile detention centres; trafficking in persons; and restrictions
on workers’ right of association.
[…]
Media frequently reported the public
perception of collaboration between police and kidnappers. […]
[…]
Corruption was a major problem in all
police forces, whose members were generally poorly paid and minimally trained.
Impunity for corruption, brutality, and other acts of violence were major
problems explicitly acknowledged by some government officials.
[…]
While the constitution provides for an
independent judiciary, judicial independence remained compromised according to
many observers, and there were allegations of corruption and political
influence, particularly from the Prosecutor General’s Office.
[…]
[14]
The
Officer does not explain why she decided that there is an independent
judiciary, when the previous excerpt specifically mentioned that judicial
independence was compromised. The paragraph following the documentary excerpt
is comprised of the Officer’s conclusions, but it is completely devoid of any
meaningful analysis.
[15]
The
Officer acknowledged that the documentary evidence suggested that state
protection may not be unfailingly successful, but explained that it is
sufficient that the state makes serious efforts to protect its citizens. The
Officer does not expand on what serious efforts Venezuela is making.
From the excerpted country conditions document, I see that a National
Prevention Council for Citizen Security has been established and that some
local police forces offered human rights training. I can only presume these
are the efforts the Officer refers to, however, she does not point to them, nor
does she explain why she weighed those factors in preference over the factors
that suggest, on their face, that state protection is neither forthcoming nor
adequate. Furthermore, this Court has accepted that an Officer must consider
the actual impact of “serious efforts” at the operational level in assessing
whether the state can offer adequate, but not perfect, protection (JNJ v Canada
(Minister of Public Safety and Emergency Preparedness), 2010 FC 1088 at
para 26).
[16]
The
decision also lacks any engagement with the specific set of risks feared by the
Applicant. The Officer found that state protection was determinative in this
case. That is fine, but in undertaking that analysis the Officer was also
required to consider the availability of state protection for someone in the position
the Applicant alleges he would be in. In the present matter, that is someone
who is of Arab descent who is a foreigner or a new-comer to Venezuela. The
decision completely lacks any engagement with this particular factual matrix.
[17]
Of
course, as the Respondent argues, the onus was on the Applicant to rebut the
presumption of state protection, and the Officer is not obliged to mention
specific passages of the Applicant’s material. I agree with Justice Judith
Snider’s statement at para 15 of Arias v Canada (Minister of
Citizenship and Immigration), 2011 FC 437 that the PRRA Officer must
simply provide an adequate explanation of the basis upon which the decision was
reached. However, the Officer was obliged to make obvious through her reasons
that she considered the documentary and personal evidence proffered to support
the Applicant’s case and contradicting her own conclusion. The presumption
that the decision-maker has considered all of the evidence is a rebuttable one
(Kaybaki v Canada (Solicitor General of
Canada),
2004 FC 32, 128 ACWS (3d) 784 at para 5; Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), 157 FTR 35, 83 ACWS (3d) 264).
[18]
The
Applicant’s father swore an affidavit attesting to the difficulty he
experienced accessing state protection as a person of Arab descent when he
lived in Venezuela. He
specifically noted:
The police force would not
assist me in Venezuela. It is well known that the
police force is corrupt, but their harassment of Arabs is even greater than
their harassment of other citizens. Police were known to kidnap Arabs for
ransom. Police often ask for bribes from Arabs and stop and harass us random.
(Application record pg 47).
[19]
Although
that experience was many years ago, the Applicant also provided current
newspaper articles reporting the kidnappings and killings of people of Lebanese
origin in Venezuela.
Additionally, the Applicant argued that he would be akin to a tourist in Venezuela and provided
evidence showing that specific risks are faced by tourists, including
difficulty accessing police services in English (Application record pg 61). It
was up to the Officer to evaluate the quality of the evidence and weigh it
against the other available country conditions evidence as she saw fit. But
the reasons need to show that such an exercise occurred, and as they stand,
they do not.
[20]
The
reasons are not sufficiently cogent or intelligible. The decision is
unreasonable. This application for judicial review is allowed.
V. Conclusion
[21]
In
consideration of the above conclusions, this application for judicial review is
allowed.
[22]
No
question to be certified was proposed and none arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is allowed.
“ D.
G. Near ”
Email this Content