Docket:
IMM-4000-15
Citation:
2016 FC 454
Fredericton, New Brunswick, April 21,
2016
PRESENT: The Honourable Mr.
Justice Bell
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BETWEEN:
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Aider ABDEL
KADDER
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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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JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review of a
negative Pre-Removal Risk Assessment [PRRA] dated July 29, 2015, in which the
PRRA officer determined that Aider Abdel Kadder [Mr. Kadder] is not a
Convention refugee and would not be subject to a risk of torture, or face a
risk to life or risk of cruel and unusual treatment or punishment should he
return to Iraq, his country of nationality, as contemplated by ss 96 and 97 of
the Immigration and Refugee Protection Act, SC 2001, c 27 [the
Act]. For the reasons set out below, I would dismiss the application for
judicial review.
II.
Background
[2]
Mr. Kadder is a citizen of Iraq who is also a
Kurd and a Sunni. He belongs to the Hanarai tribe which mainly lives in Irbil
and other parts of Iraqi Kurdistan. Fearing Saddam Hussein and the Baath party,
Mr. Kadder arrived in Canada and claimed refugee protection on August 31, 2001.
The Immigration and Refugee Board, Refugee Protection Division [RPD], in a
decision dated November 16, 2004, denied him refugee protection on the basis
that his testimony was neither credible nor trustworthy, and that he had not
presented credible evidence that he would face a risk of torture, a risk to his
life or a risk of cruel and unusual treatment or punishment should he return to
Iraq. Following that decision, he applied for permanent residence status based
on humanitarian and compassionate grounds, which as noted below, was eventually
dismissed for reasons of inadmissibility.
[3]
Mr. Kadder says that in October 2009, he met a
Moroccan woman in Canada with whom he developed a romantic and serious
relationship. In and around December 2011, Mr. Kadder contacted his family, part
of a very traditional and religious tribe, who live in Iraq and informed them
he wished to get married. The family refused its consent, based, according to
Mr. Kadder, upon the fact his girlfriend was not Iraqi, not Kurdish and not
from his tribe. Despite his family’s objection, Mr. Kadder pursued the romantic
relationship.
[4]
Mr. Kadder says he had an argument with his
girlfriend on October 24, 2012, during which time he slapped her on the face.
He was later convicted of assault causing bodily harm and criminal harassment
and threats, for which he was sentenced to four months’ imprisonment (of which
he only served 80 days). Mr. Kadder’s family eventually learned of his
conviction and sentence.
[5]
Mr. Kadder says he fears death from his family
members who have allegedly threatened to kill him. According to Mr. Kadder the
death threats arise from his long-term relationship with a woman outside of
marriage, his lies to hide the relationship, and his criminal sentence, all of
which have tarnished his family’s honour. He claims his family and his tribe
are very powerful and could easily locate him if he returns to Iraq. Mr. Kadder
also contends that because he is a Kurd and a Sunni (non-practicing), he cannot
live in the non-Kurdish areas of Iraq.
[6]
Mr. Kadder’s application for permanent residence
on humanitarian and compassionate grounds took several years to process. He was
eventually found inadmissible on the grounds of serious criminality pursuant to
s 36(1)(a) of the Act. Mr. Kadder applied for a PRRA on October 30,
2013.
III.
Impugned Decision
[7]
On July 29, 2015, the PRRA officer concluded
that Mr. Kadder was not a person in need of protection pursuant to ss 96 and 97
of the Act.
[8]
In the analysis of the risks, the officer observed
that Mr. Kadder was determined to be inadmissible on grounds of serious
criminality (a conviction in Canada punishable by a term of imprisonment of at
least ten years) under s 112(3) of the Act. I note that the officer did not
mention the negative credibility findings of the RPD, nor did he rely upon credibility
in reaching his decision. Rather, he based his conclusion on the insufficiency
of the evidence.
[9]
The officer found that Mr. Kadder did not meet
the definition of s 96 of the Act as his fear of retaliation from his family
members is not linked to an enumerated Convention ground. The officer also
determined that Mr. Kadder provided insufficient objective evidence to
corroborate his allegations that he is at risk if he returns to Iraq.
Specifically, the officer found that Mr. Kadder did not present objective
evidence: that he was threatened or harmed in any way; that he would be at risk
after having been away from Iraq for fourteen years or that he would have
maintained ties which would put him at risk; that any family member would be
interested in him; and that he could not reside in other areas of Iraq.
Furthermore, the officer determined the documentation provided by Mr. Kadder,
namely the newspaper articles and documentation from UNHCR, are generalized in
nature and do not establish a personalized risk of harm in Iraq. The officer concluded
as follows:
…After consideration of the evidence before
me, a review of the current country conditions and taking into account the
personal circumstances of the applicant, it is my finding that he is not a
Convention Refugee in accordance with Section 96 of the Immigration and Refugee
Protection Act nor is he a person in need of protection in accordance with
Section 97 of the Immigration and Refugee Protection Act.
IV.
Issue
[10]
The sole issue on this application is whether
the officer’s decision to deny Mr. Kadder’s PRRA application meets the test of
reasonableness.
V.
Standard of Review
[11]
Given the deference owed to PRRA officers and
the questions of mixed fact and law that arise in such cases, the applicable
standard of review is that of reasonableness (Ahmad v Canada (Citizenship
and Immigration), 2012 FC 89, [2012] FCJ No 96 at para 19; Kulanayagam v
Canada (Minister of Citizenship and Immigration), 2015 FC 101, [2015] FCJ
No 63 at para 21; Alvarez v Canada (Minister of Citizenship and Immigration),
2014 FC 564, [2014] FCJ No 594 at paras 19-20; Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 47 [Dunsmuir]). A reviewing court
must not substitute its views regarding the assessment of the evidence (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), 1998 FCJ No 1425, 157
FTR 35 at para 14). This Court will only
intervene if it concludes the PRRA officer’s decision is not justified,
transparent and intelligible, and falls outside the “range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” (Dunsmuir, above at para 47).
VI.
Relevant Provisions
[12]
By application of s 112(3) of the Act, refugee
protection may not be conferred to applicants who are found inadmissible on
grounds of serious criminality. However, pursuant to s 113(e) of the
Act applicants who have been found inadmissible on grounds of serious
criminality, but have been sentenced to a term of imprisonment of less than two
years, or no prison term, are eligible for a PRRA on the basis of ss 96 to 98
of the Act (see Appendix ‘A’).
VII.
Analysis
[13]
Mr. Kadder contends the officer either assumed
that both ss 96 and 97 contain nexus requirements or simply failed to assess the
case under s 97. I disagree. Although the officer did not explicitly mention
that the second part of his analysis was based on s 97, it is clear from the analysis
that he assessed Mr. Kadder’s risk should he return to Iraq and determined he
was not a person in need of protection under s 97. Because I am satisfied of
the reasonableness of the officer’s decision as it relates to s 96 of the Act,
I will move immediately to an assessment of whether the conclusion regarding s
97 meets the test of reasonableness. In order to meet the onus upon him with
respect to s 97, Mr. Kadder must prove on a balance of probabilities that he
personally is at risk should he return to Iraq (Bayavuge v Canada (Minister
of Citizenship and Immigration), 2007 FC 65 [2007] FCJ No 111; Ferguson
v Canada (Minister of Citizenship and Immigration), 2008 FC 1067, [2008]
FCJ No 1067 at paras 21-22). It is not sufficient to demonstrate a generalized
risk (Lalane v Canada (Minister of Citizenship and Immigration), 2009 FC
5, [2009] FCJ No 2 at para 28; Hussain v Canada (Minister of Citizenship and
Immigration), 2006 FC 719, [2006] FCJ No 916 at para 12).
[14]
As well established in the jurisprudence, the inadequacy
of reasons alone is not sufficient to render a decision unreasonable (Pushparasa
v Canada (Minister of Citizenship and Immigration), 2015 FC 828, [2015] FCJ
No 812; Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland Nurses’]).
The decision under review must be read in conjunction with the evidentiary
record and under the assumption that the decision-maker has considered all the
evidence. However, the reasons given when considered in conjunction with the
evidence must “allow the reviewing court to understand
why the tribunal made its decision and permit it to determine whether the
conclusion is within the range of acceptable outcomes” (Newfoundland
Nurses’, above at para 16). In my view, the PRRA officer’s reasons, when
considered in light of the evidence, meet the test of reasonableness. I
elaborate below.
[15]
First, with respect to country conditions, the officer
categorically stated that he “read and carefully
considered all of the documentary material provided in addition to conducting
[his] own independent research into current country conditions in Iraq as they
relate to the applicant”. Independent research into country conditions
is not only permitted but required in certain cases: see, Myle v Canada
(Minister of Citizenship and Immigration), 2007 FC 1073, [2007] FCJ No 1389
at para 12; and Hassaballa v Canada (Minister of Citizenship and
Immigration), 2007 FC 489, [2007] FCJ No 658 at para 33. For purposes of s
97 of the Act, it was incumbent upon Mr. Kadder to demonstrate a personalized
risk flowing from the objective country conditions. The officer considered the
evidence and found no such risk. It is not the role of the Court on judicial
review to re-weigh the evidence (Ellero v Canada (Public Safety and
Emergency Preparedness), 2008 FC 1364, [2008] FCJ No 1746 at para 34). While
the evidence demonstrates a worsening humanitarian crisis in large areas of
Iraq, that evidence is not sufficient on a PRRA application if there is no
connection to the personal characteristics of Mr. Kadder (Prophète v Canada
(Minister of Citizenship and Immigration), 2008 FC 331, [2008] FCJ No 415
at para 17). His major contention, apart from the fear of his family, is that
he is a non-religious, secularized, Kurd who has lived in the West for 14 years
and cannot live in non-Kurdish areas of Iraq. The officer’s conclusion
regarding that evidence, where the onus of proof rests upon Mr. Kadder, is
unequivocal:
I do not find that they demonstrate that the
applicant is personally at risk in Iraq. None of this material corroborates of
(sic) substantiates the applicant’s allegations or addresses his personal
circumstances in any way. The applicant presents insufficient objective evidence
that would support his allegations that he is at risk in returning to Iraq.
[16]
Second, the officer clearly demonstrated that he
read and considered Mr. Kadder’s affidavit given the significant recitations of
fact found in the affidavit which are included in the decision. While the
officer does not mention the affidavit filed by Mr. Kadder’s friend, Ghulam
Mahmoudi, I find that affidavit unhelpful to Mr. Kadder. It concludes by saying
Mr. Kadder’s family was “scandalized by the whole
affair” and that they were “very angry with him”.
Mr. Mahmoudi does not say the family threatened death, violence or any other
form of persecution against Mr. Kadder. If they had made such threats, surely
Mr. Mahmoudi would have mentioned them in his affidavit. In my view the decision,
when considered in conjunction with the evidence, demonstrates the officer
carefully considered Mr. Kadder’s evidence and found it insufficient to meet
the threshold required under s 97 of the Act. This conclusion is reasonable
given the Mahmoudi affidavit and the failure by Mr. Kadder to specifically set
out when threats were made to him and by whom. His affidavit is abstract at
best. In the circumstances it was not unreasonable for the officer, after
stating he had considered all of the evidence to conclude there was a lack of
objective evidence that “anyone is interested in him
and that he is being sought by his family and/or tribe”.
VIII.
Conclusion
[17]
For the above reasons, I am of the view that the
PRRA officer’s decision, when read in conjunction with the record, meets the
test of reasonableness. The decision is justified, transparent and intelligible
and falls within a range of acceptable outcomes. I would therefore dismiss the
application for judicial review.
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