Date: 20071001
Docket: IMM-2014-06
Citation: 2007 FC 991
Ottawa, Ontario, October
1, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
OMAR AL ASALI, MANAL DAFASH,
HAMZEH AL ASALI,
HEBA AL ASALI, OBADA AL ASALI and TUQA AL
ASALI
Applicants
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a
decision by an immigration officer dated February 28, 2006, which rejected the
applicants’ application for a Pre-Removal Risk Assessment (PRRA).
[2]
The
applicants seek an order setting aside the decision of the PRRA officer and
remitting the matter for redermination.
Background
[3]
The
applicants are Palestinians who came to Canada on November 29, 2004 from the United States and
claimed refugee protection in Canada. The principal applicant, Omar Asali, is a stateless
Palestinian from Hebron, in the West Bank. He
fled his home on July 30, 2004, with his wife and four children, aged 3, 9, 13
and 16 years, allegedly as a result of the risk of persecution they faced at
the hands of Israeli settlers and the Palestinian Authority.
[4]
Previously,
the principal applicant had entered the United States on October 6, 2003 and returned to Jordan on February 12, 2004.
He returned to the United States with his family on August 2, 2004, on a United States visa that was valid
until February 1, 2005. The applicants remained in the United States until November 29,
2004, when they came to Canada in order to claim
refugee protection.
[5]
On
July 25, 2005, the Refugee Protection Division of the Immigration and Refugee
Board (the Board) determined that the applicants were not Convention refugees
or persons in need of protection. The applicants were refused leave to
challenge the Board’s decision on October 11, 2005.
[6]
The
applicants applied for a PRRA in December 2005. On February 28, 2006 a letter
was sent to the applicants informing them that their application for a PRRA had
been rejected on the grounds that they would not be subject to a risk of
persecution, torture or cruel and unusual treatment or punishment, or a risk to
life should they return to the West Bank, Palestine. This is the judicial
review of the negative PRRA decision.
Officer’s Reasons
[7]
The
application was rejected on February 28, 2006, because the officer determined
that the applicants would not be subject to risk of persecution or torture, or
face a risk to life or risk of cruel and unusual treatment or punishment if
removed to the West Bank.
[8]
The
principal applicant had identified the risks that he would be subjected to,
including daily systematic harassment, humiliation and persecution at the hands
of Israeli settlers and the Israeli army. He owned a fruit and vegetable store,
and he alleged that when he tried to open his store he would be beaten and
tortured by Israeli soldiers and settlers. He alleged that soldiers would
sometimes detain him for a few days and then release him.
[9]
The
principal applicant also alleged that his friend was killed by Hamas in April
2004 because he was accused of collaborating with Israel. The principal
applicant felt that he might suffer the same fate.
[10]
The
Board did not find the principal applicant credible. Although there was a list
of killed collaborators on the internet, the name of the principal applicant’s
friend was not there, nor had there been any documentary evidence to support
the claim. There were inconsistencies in his account of his store having been
vandalized by Hamas. The principal applicant had spent three months in the United States before coming to Canada, and failed to claim
asylum there. At the port of entry, he stated that he was afraid of the
Palestinian authority, not Hamas. When confronted with this contradiction, he
said he was told to say that by a friend.
[11]
The
PRRA officer accepted that the applicants were stateless Palestinians. He
accepted the Board’s credibility findings, and noted that no further evidence
was received that could not have been produced at the applicants’ refugee
hearing. The officer’s decision stated the following:
I
acknowledge that country conditions are poor for Palestinians from the West
Bank. The human rights record of the Palestinian Authority is poor and police
lack the necessary resources to be effective. However, the evidence does not
establish on a cumulative grounds basis that the level of discrimination and
harassment that they may experience rises to the level of a sustained and
systematic denial of basic human rights. As a result, there is a serious
possibility that they would experience adverse country conditions,
discrimination and a degree of harassment. However, they do not have a
well-founded fear or persecution. These facts also lead me to the conclusion
that they are not at substantial risk of torture, death or cruel and unusual
treatment or punishment.
[12]
The
principal applicant had also alleged that he would have trouble supporting his
family financially, but the officer reasoned that challenges to
re-establishment do not constitute a risk described in sections 96 and 97 of
IRPA, and were more properly considered in an H&C application.
Issues
[13]
The
applicants submitted the following issues for consideration:
1. Did
the officer err by failing to provide a clear evidentiary basis for key
findings?
2. Did
the officer err by conducting a selective analysis of the objective documentary
evidence concerning the risk to the applicants in the West Bank and failing to base its decision upon the totality of the
evidence before it?
3. Did
the officer err in failing to conduct a separate assessment of the risk faced
by the minor applicants?
Applicants’ Submissions
[14]
The
applicants submitted that the officer had accepted that they were at risk of:
(1) harassment; (2) discrimination; (3) the poor human rights record of the
authorities; and (4) the ineffectiveness of the police. It was submitted that
the officer erred in failing to explain why this was insufficient to establish
a risk of persecution.
[15]
The
applicants relied upon the decision of Mohacsi v. Canada (Minister
of Citizenship and Immigration), [2003] 4 F.C. 771, 2003 FCT 429, wherein
Justice Martineau found that the Board had erred in concluding that the
discrimination faced did not amount to persecution, but did not provide
reasoning in support of the conclusion. The applicants submitted that in this
case, as in Mohacsi, the officer must state his reason for finding that
the discrimination and harassment did not amount to persecution. It was
submitted that there were no statements by the officer as to what kind of
discrimination the applicants were likely to face, and it was therefore
impossible to determine why this treatment did not amount to persecution.
[16]
The
applicants submitted that the objective documentary evidence specifically
identified a risk to Palestinian children, but that the officer did not
specifically consider this evidence in his reasons. Four of the applicants were
minor children, yet the officer did not differentiate the risk they faced from
the overall risk faced by the adult applicants. It was submitted that not only
did the officer fail to make any mention of the best interests of the children,
an assessment he was obligated to make, but there was also no assessment of the
risks faced by young Palestinian children in the West Bank.
Respondent’s Submissions
[17]
The
respondent submitted that the role of the PRRA officer under section 113 of
IRPA was to examine only new evidence: (1) that arose after the rejection; (2)
that was not reasonably available before; or (3) that the applicant could not
reasonably have been expected to present under the circumstances. As such, it
was submitted that it was open to the officer to follow the Board’s conclusion
that the principal applicant lacked credibility. The respondent also submitted
that the applicants were simply challenging the weight given by the officer to
evidence regarding current country conditions.
[18]
The
respondent cited Alabadleh v. Canada (Minister of Citizenship
and Immigration) (2006), 357 N.R. 333, 2006 FC 716, wherein Justice Mosley
denied an application for judicial review of a PRRA decision. In Alabadleh,
the applicant was also a stateless Palestinian who asserted that the PRRA
officer had failed to consider the interest of the children in the context of a
risk assessment. Justice Mosley found that the appropriate forum for
consideration of the children’s interest was an application for consideration
of humanitarian and compassionate factors under section 25 of IRPA.
[19]
The
respondent submitted that this case was similar to Alabadleh in that the
applicant made insufficient submissions regarding the risks faced by the
children.
Analysis and Decision
Standard of Review
[20]
Justice
Mosley performed a pragmatic and functional analysis of a PRRA officer’s
decision in Kim v. Canada (Minister of Citizenship and Immigration), 2005 FC 437 at
paragraphs 8 to 22. I agree with his reasoning on the applicable standards and
would adopt it here. Since the issues in this case are questions of fact, they
are to be reviewed on the standard of patent unreasonableness.
[21]
I
propose to deal first with Issue 2.
[22]
Issue
2
Did
the officer err by conducting a selective analysis of the objective documentary
evidence concerning the risk to the applicants in the West Bank and failing to base its decision upon
the totality of the evidence before it?
The applicants submitted
that the officer erred in failing to address the risk faced by the minor
applicants. The respondent submitted that an H&C application was a more
appropriate forum within which to consider the best interests of children. In
his submissions to the officer, the principal applicant stated the following in
support of his PRRA application:
My family and I have always been subject to daily systematic
harassment, humiliation and persecution at the hands of Israeli settlers and
Israeli Army.
…
The current security situation is extremely bad in the West
Bank.
That I am not able to open my fruit and vegetables shop any
more.
Thus, I would not be able to support myself and my family
financially.
Israeli soldiers and Israeli settlers are still there and
thus the risk is also still there.
…
I am afraid should my family and I go back to Palestine we would certainly face persecution at
the hands of Israeli settlers and Israeli soldiers.
Civilian Palestinians are gunned down by Israeli soldiers
daily and Israeli settlers and I am afraid to wake up one day witnessing the
death of one of my children if not all my family.
Going back to Palestine means death for me and my family
members.
[23]
The
PRRA officer’s decision failed to address the risk faced by the four minor
applicants, who ranged in age from three to sixteen years old. I would note
that the applicants’ PRRA application included the following under section 54,
which requests “Supporting Evidence”:
Pictures of Israeli soldiers beating Palestinian children.
…
Violations committed by Israeli soldiers and Israeli
settlers against civilian Palestinians.
Pictures of Palestinian casualties including children at the
hands of Israeli soldiers.
[24]
There was
also documentary evidence on file which showed the nature of the risks faced by
Palestinian children living in the West Bank. The record contained evidence
that Palestinian children risked being shot and killed by Israeli Defense
Forces and were being used as human shields. I am of the opinion that there was
sufficient evidence submitted by the principal applicant to put the officer on
notice that the children faced particular risks if returned to the West Bank.
[25]
In
my view, the PRRA officer made a patently unreasonable decision when the
officer failed to address the risk faced by the minor applicants if they were
returned to the West Bank.
[26]
Because
of my finding on this issue, I need not deal with the other issues.
[27]
The
application for judicial review is therefore allowed and the matter is returned
to a different PRRA officer for redetermination.
[28]
Neither
party wished to submit a serious question of general importance for my
consideration for certification.
JUDGMENT
[29]
IT
IS ORDERED that the application for judicial review is allowed, the decision
of the PRRA officer is set aside and the matter is referred to a different PRRA
officer for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27.:
|
96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97.(1)
A person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the protection
of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in disregard
of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques:
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.(1)
A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée:
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant:
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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