Docket: IMM-1128-11
Citation: 2011 FC 1240
Ottawa, Ontario, October 31,
2011
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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NOUREDDINE OMAR RIAJI
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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
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the
Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] of a
decision of Pre-Removal Risk Assessment [PRRA] officer dated January 13, 2011
where she rejected the applicant’s application for permanent residency based on
humanitarian and compassionate [H&C] grounds pursuant to subsection 25(1)
of the Act.
BACKGROUND
FACTS
[2]
The
applicant, a citizen of Morocco, claims that he fears
for his life because, in 1995, he converted to Christianity and such conversion
is considered apostasy and is punishable by death. From 1992 to 2004, he lived
in Bulgaria but he has
since lost his status in that country.
[3]
In
2002, he met Christine Bouchard, a Canadian citizen, and they began a romantic
relationship. On September 24, 2003, they were married in Morocco in a Muslim
ceremony.
[4]
On
July 2, 2004, the applicant applied for a temporary resident permit at the
Canadian embassy in Bucharest. He came to Canada on July 14,
2004 to testify in court proceedings that were repeatedly postponed, leading
the applicant to overstay his visa and to lose his status in Bulgaria.
[5]
On
April 12, 2005, he claimed refugee protection based on a fear of persecution
because of his religious conversion. His refugee claim was refused on November
28, 2007 based on findings that there was no credible basis for his claim and
that his religious conversion was not credible.
[6]
The
applicant and Ms. Bouchard separated in 2007 and, on April 17, 2008, they were
divorced. In April 2007, the applicant met Josee Cote, also a Canadian citizen.
The applicant and Ms. Cote were married on April 19, 2008.
[7]
On
May 2, 2008, the applicant applied for a PRRA, alleging risk in Morocco based on his
religious conversion.
[8]
On
August 7, 2008, Ms. Cote applied to sponsor the applicant. However, she and the
applicant separated in April 2009 and she withdrew her sponsorship application
on July 20, 2009.
[9]
At
some point in July 2009, the applicant met Danielle Breton and they began
living together. Ms. Breton has not applied to sponsor the applicant.
[10]
On
February 2, 2010, the applicant filed his H&C application.
[11]
On
November 27, 2010, the applicant retained counsel to assist with his PRRA and
H&C applications. On December 6, 2010, the applicant’s counsel contacted
the Officer to request complete copies of his PRRA and H&C applications. On
December 13, 2010, counsel again contacted the Officer to request a complete
copy of the applicant’s file. On January 6, 2011, counsel inquired when the
Officer expected to render her decision, but the Officer refused to provide a
date.
[12]
On
January 13, 2011, the Officer refused both the PRRA and H&C applications.
[13]
On
February 9, 2011, the applicant’s counsel received a copy of his file and on
February 11, she was notified of the negative PRRA and H&C decisions.
THE DECISION UNDER
REVIEW
[14]
The
Officer reviewed the H&C considerations underlying the applicant’s H&C
application: namely, his establishment in Canada, his family’s financial
dependence on him, the best interests of his daughter, and the risk he faces if
he returns to Morocco.
[15]
On
the issue of establishment, the Officer found that the lack of a sponsorship
application by Ms. Breton weighed against a positive H&C decision. She also
examined the applicant’s employment history in Canada and his
volunteer activities and found that these weighed in favour of his H&C
application.
[16]
The
Officer considered the applicant’s claim that his family in Morocco is
financially dependent on him, but ultimately rejected it due to a lack of
detail in the letters from these family members and a lack of corroborating
evidence. She acknowledged that the applicant’s brother in Morocco is disabled,
but noted that a Google search for “pension invalidité Maroc” (“disability
pension Morocco”) revealed a detailed scheme for the provision of disability
pensions, retirement pensions, family allotments and death benefits in Morocco;
she found that the applicant failed to establish that his family could not
obtain a disability pension from the state of Morocco or that this pension
would be insufficient to meet their needs.
[17]
She
then considered the best interests of the applicant’s Moroccan daughter and his
claim that she is dependent on him for emotional and financial support, as well
as his claim that she had been sexually assaulted and will therefore be ostracised
unless the applicant can bring her to Canada. She interviewed the applicant
over the telephone, but was concerned with his inability to answer basic
questions about the daughter’s assault, such as in what year it occurred or
what the circumstances were that led up to it. The Officer noted the medical
certificate that had been provided, but found that it merely stated that the
daughter and her mother attended a medical clinic and that the daughter is not
a virgin. She noted that the daughter’s affidavit made no mention of the
assault. Thus she gave little weight to the allegation that the daughter had
been assaulted.
[18]
The
Officer considered the emotional ties between the daughter and the applicant,
but noted that the medical certificate stated that she lived with her father’s
family in Casablanca, and that
her affidavit stated that she is living with a paternal aunt. Based on this
information, she was not satisfied that the daughter has no emotional support
in Morocco such that her best interests warrant a positive H&C decision for
the applicant. She further noted that the applicant left Morocco when the
daughter was 2 years old and that he has only seen her once since then when he
returned to Morocco for his
wedding to Ms. Bouchard.
[19]
The
Officer also considered the applicant’s claim that his daughter will be
ostracised if she stays in Morocco because she is no longer a virgin, but found
after an internet search that some Moroccan women in urban centres are choosing
to eschew traditional values such as chastity until marriage, and that there
are medical procedures available to implant an artificial hymen should the daughter
wish to recreate the appearance of chastity. Thus she gave little weight to the
allegations that the daughter will be ostracised and will have no social
prospects in Morocco.
[20]
The
Officer concluded that the daughter’s best interests did not warrant H&C
relief for the applicant.
[21]
Finally,
the Officer turned to the alleged risk to the applicant should he return to Morocco. She noted
that the risk is the same risk that was alleged in the applicant’s refugee
claim and that the Immigration and Refugee Board had doubted the genuineness of
his religious conversion given his return to Morocco for his
Muslim wedding to Ms. Bouchard.
[22]
The
Officer considered the applicant’s claim that he is known to the authorities
due to his contact with high-ranking officials through his former business, but
found that he had not demonstrated that these prestigious contacts would put
him at risk on his return to Morocco. He also found no
evidence that the applicant would be unable to find work because of his
religion, noting that several reference letters from these high-ranking
contacts post-date his conversion to Christianity. She consulted the
documentary evidence about religious minorities in Morocco and found
that the evidence contradicted the applicant’s assertion that Christians cannot
get jobs and that religious converts have not been imprisoned since 1999.
[23]
The
Officer therefore denied the H&C application.
ISSUES
a.
Did the
Officer breach procedural fairness by failing to provide the applicant with an
opportunity to comment on extrinsic evidence?
b.
Did the Officer
breach the applicant’s legitimate expectations?
c.
Was the
Officer’s assessment of the evidence unreasonable?
STANDARD OF
REVIEW
[24]
The
first two issues are procedural fairness issues reviewable on the correctness
standard (see Canada (Minister of Citizenship and Immigration)
v Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at para 43). The issue of the Officer’s weighing
of the evidence is a question of mixed fact and law and is reviewable on the
reasonableness standard (see Awolope v Canada (Minister of
Citizenship and Immigration), 2010 FC 541, 368 FTR 177 at para 29).
1. Did the Officer
breach procedural fairness by failing to provide the applicant with an
opportunity to comment on extrinsic evidence?
[25]
The
applicant submits that the Officer breached procedural fairness by consulting
extrinsic evidence from the internet without giving him a chance to comment on
it.
[26]
The
Respondent submits that the Officer’s extrinsic research was not material to
her decision, as she had already given little weight to the allegations that
Sanna had been sexually assaulted and had concluded that the daughter’s ties to
her Moroccan family were much stronger than her ties to the applicant. Even if
the Officer erred in not disclosing the information she found on the internet
to the applicant, the Court should uphold the decision because the information
is not conclusive. I agree with the respondent for the following reasons.
[27]
The
Officer’s conduct in performing her own internet searches to clarify certain
narrow issues clearly falls outside of the norm as they are not standard documents
from sources such as Human Rights Watch, Amnesty International, or from a
government authority such as the United States Department of State. Although
officers routinely consider such standard documents, there is no duty to
disclose them even though they are extrinsic to the application because an
applicant is deemed to know that this type of evidence will be considered and
where to find it (see Mancia, above, at para 22).
[28]
However,
Mancia, above, drew a distinction between the treatment of standard
documents and documents from other sources:
[W]here the immigration officer intends
to rely on evidence which is not normally found, or was not available at the
time the applicant filed his submissions, in documentation centres, fairness
dictates that the applicant be informed of any novel and significant
information which evidences a change in the general country conditions that may
affect the disposition of the case. [At para 22, my emphasis]
[29]
Here,
as was the case in Zamora, above,
The documents in question were not
standard documents such as Human Rights Watch, Amnesty International or country
reports issued under governmental authority, but rather the result of specific
research on the internet carried out by the PRRA officer. That research,
including such documents she may have found were beneficial to Mr. Aguilar
Zamora, should have been disclosed and he should have been given an opportunity
to respond. [At para 18]
[30]
However,
unlike in Zamora, the
Officer’s extrinsic research in this instance was not material to the outcome
of the H&C application because she did not rely upon this information
to render her decision.
[31]
The
Officer considered evidence about disability pensions in Morocco only after
she had concluded that the applicant had provided insufficient evidence
that his Moroccan family depends on him for financial support, and she only
considered evidence about sexually active women after she had given little
weight to the allegations that the daughter had been attacked and had
concluded that the daughter had much closer ties to her Moroccan family than to
the applicant.
[32]
I
note as well that the applicant has not offered any evidence to contradict the
extrinsic evidence, although he has attempted to explain how it does not apply.
[33]
While
it would have been prudent for the Officer not to conduct her own research or
to have disclosed this evidence to the applicant, the evidence ultimately was
not material to the decision and therefore the non-disclosure did not breach
procedural fairness.
2.
Did the Officer breach the applicant’s legitimate expectations?
[34]
The
applicant submits that he had a legitimate expectation that the Officer would
not reach a decision until his counsel had received a copy of his file and had
the chance to make additional submissions. The Officer was aware that his
counsel was awaiting a copy of his file. The Officer’s refusal to provide a
date when the decision would be made gave rise to a legitimate expectation.
[35]
The
Respondent submits that the Officer did not breach any legitimate expectations.
The Respondent notes that, in a letter dated December 13, 2010, the applicant’s
counsel indicated that “Nous croyons que le dossier est complet”. Further, it is
common practice for officers to refuse to remark on when a decision will be
issued, and explains that this is why the Officer did not tell the applicant’s
counsel that the decision would be rendered shortly. Further, the applicant’s
counsel never indicated that she wished to make further submissions.
[36]
I
am not persuaded that the applicant had a legitimate expectation particularly
in light of the applicant’s counsel’s letter stating that his file was complete
and the fact that she never mentioned that she had the intention of sending
additional material, there was no reason for the Officer to wait to render her
decision. The Officer’s vague answer when asked about when the decision might
be rendered did not give rise to a legitimate expectation. In fact, in my
opinion, it is prudent not to disclose any particular date as any delay in
rendering a decision could be interpreted negatively.
3.
Was the Officer’s assessment of the evidence unreasonable?
[37]
The
applicant claims to have informed the Officer in his interview that rape is a
taboo subject in Morocco, and that for this reason he did not ask any
questions when he was informed of the daughter’s sexual assault. He therefore
claims that it was reasonable for him to be unable to answer even basic
questions about the incident and for the only evidence of the assault to be a
medical certificate indicating that the daughter is no longer a virgin.
[38]
Further,
the applicant argues that the Officer’s conclusion that the daughter will not
be ostracized is unreasonable because it is based on information found in
online forums. The applicant claims that information from online forums is not
reliable and should be given less weight than information from other sources,
citing several cases of this Court.
[39]
Although
the applicant has cited some decisions (Jalil v Canada (Minister of
Citizenship and Immigration) 2006 FC 303, Lubega v Canada (Minister of
Citizenship and Immigration) 2006 FC 303, Kocak v Canada (Minister of
Citizenship and Immigration) 2004 FC 1288) to support his assertion that
information from internet forums is not reliable evidence, none of these
decisions actually stand for that principle.
[40]
Further,
the presence of children is not determinative of a claim, Legault v Canada (Minister of
Citizenship and Immigration), 2002 FCA 125, [2002] FC 358 at para 12.
Rather, all that is required is that the Officer was “alert, alive and sensitive”
to the best interests of the applicant’s children.
[41]
The
applicant has failed to demonstrate that the Officer was not alert, alive and
sensitive to the daughter’s interests or that the decision is otherwise
unreasonable.
[42]
Thus,
the application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS
that the application for judicial review is
dismissed.
“Danièle
Tremblay-Lamer”
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