Docket: IMM-569-17
Citation:
2017 FC 797
Ottawa, Ontario, August 31, 2017
PRESENT: The
Honourable Mr. Justice Gascon
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BETWEEN:
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AYMAN FARES
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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]
The applicant, Mr. Ayman Fares, is a stateless
descendant of Palestinian refugees who was born in Lebanon. He entered Canada
from the United States in November 2009 and sought refugee protection upon his
arrival. His refugee claim revolved around an alleged risk of persecution in
Lebanon at the hands of Hezbollah. Hezbollah allegedly seeks him out because of
the assistance he provided to the Federal Bureau of Investigation [FBI] in the
United States in the context of a Medicare fraud investigation. In May 2011,
Mr. Fares’ claim was rejected by the Refugee Protection Division [RPD]. The RPD
found that Mr. Fares’ story lacked credibility and that he had not discharged
his burden of showing that he was a Convention refugee or person in need of
protection pursuant to sections 96 and 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA]. Since then, the Canadian immigration
authorities have repeatedly, and unanimously, rejected Mr. Fares’ numerous
attempts to obtain refugee status and protection as they were not persuaded
that Mr. Fares faced threats from individuals tied to Hezbollah in Lebanon, in
response to his cooperation with the FBI.
[2]
Mr. Fares is now disputing a September 2016
decision [Decision] by a senior immigration officer [Officer] refusing Mr.
Fares’ second application for a Pre Removal Risk Assessment [PRRA]. In the Decision,
the PRRA Officer concluded that, as other decision-makers and this Court have on
several occasions between 2011 and 2016, Mr. Fares had not demonstrated the existence
of a personal and objectively identifiable risk for him in Lebanon. In essence,
the Officer found that the evidence offered by Mr. Fares was still insufficient
and not convincing enough to establish a danger of torture, a risk to life or a
risk of cruel and unusual treatment or punishment at the hands of Hezbollah.
[3]
In his application for judicial review, Mr. Fares
is asking this Court to rescind the PRRA Decision and order another officer to
re-examine his file. Mr. Fares claims that the PRRA Officer gave inappropriate
weight to earlier findings made by the RPD; that the Officer’s assessment of
the new evidence was unreasonable; and that the Decision violates several
provisions of the Canadian Charter of Rights and Freedoms, Part I of The
Constitution Act, 1982, being Schedule B to the Canada Act, 1982
(UK), 1982, c 11 [Charter] as well as Canada’s obligations under the
United Nations’ Convention against Torture [UN Convention].
[4]
For the reasons that follow, Mr. Fares’ application
for judicial review will be dismissed. Having examined the evidence available
to the PRRA Officer and applicable law, I see nothing that allows me to set
aside the Decision, nor can I identify any error in the Officer’s analysis and
reasons. The Officer considered the evidence, and the conclusions are
justifiable based on the facts and the law and clearly fall within the range of
possible, acceptable outcomes in the circumstances. Furthermore, I do not find
that Mr. Fares’ application for judicial review raises any overarching Charter
or UN Convention issues. Mr. Fares’ PRRA application was dismissed for one
simple reason: it lacked sufficiently clear and convincing evidence to support his
claims of risks. There are therefore no grounds to justify this Court’s intervention.
II.
Background
A.
The factual context
[5]
Since his arrival in Canada in 2009, Mr. Fares
has made a series of unsuccessful attempts to have his status as a refugee or person
in need of protection recognized by the Canadian immigration authorities.
[6]
Mr. Fares’ refugee claim was first rejected by
the RPD in May 2011 and his application for leave and judicial review of the
negative RPD decision was dismissed by this Court at the leave stage in October
2011. In September 2012, Mr. Fares submitted a first PRRA application alleging that
he would be facing risk from Hezbollah in Lebanon, due to the assistance he provided
to the FBI in the United States between 2003 and 2008 in the context of a Medicare
fraud investigation. He claimed that his collaboration with the FBI led to the
arrest and imprisonment of his employers, who allegedly had ties to Hezbollah.
Mr. Fares’ first PRRA application was rejected by a senior immigration officer
in April 2014, and his application for leave and judicial review of that
decision was dismissed by this Court at the leave stage in November 2014.
[7]
In April 2014, another senior immigration
officer rejected Mr. Fares’ application for permanent residence on humanitarian
and compassionate [H&C] grounds. Mr. Fares’ application for leave and
judicial review of that decision was also dismissed by this Court in December
2014, again at the leave stage.
[8]
In January 2015, the Canada Border Services
Agency [CBSA] began to make arrangements for the removal of Mr. Fares from
Canada, but the deportation was delayed due to difficulties in obtaining the
necessary travel documents from Lebanon. In July 2016, Mr. Fares was informed
by the CBSA that his removal would take place on August 24, 2016. In early August
2016, Mr. Fares submitted a request to defer his removal from Canada, which was
refused by a CBSA officer a few days later. In support of the request to defer,
Mr. Fares had submitted many of the documents found to have limited probative
value by the PRRA Officer in the Decision now the subject of this judicial review.
Mr. Fares’ motion for a stay of his removal from Canada was dismissed by this
Court on August 18, 2016. However, Mr. Fares was not deported from Canada, as
he was granted a temporary stay of removal to await the outcome of his second PRRA
application filed in May 2016.
[9]
In September 2016, the PRRA Officer denied Mr.
Fares’ second PRRA application in the Decision.
[10]
In October 2016, the United Nations’ Office of
the High Commissioner for Human Rights recommended that Canada should not
proceed with the removal of Mr. Fares until his complaint was decided by the UN
authorities. Mr. Fares has remained in Canada since then.
B.
The Decision
[11]
In the Decision, the Officer considered and
reviewed four documents submitted by Mr. Fares in support of his second PRRA
application and which, in his view, provided new evidence of risks. These documents
were: (1) a June 2016 letter from the FBI in Houston; (2) a police report relating
to an attack suffered by Mr. Fares outside a bar in Montreal in January 2014;
(3) another police report from Lebanon, dated August 2015, regarding damages to
the vehicle of Mr. Fares’ sister; and (4) an undated letter from his sister
confirming Mr. Fares’ story and referring to death threats received by the
family. The Officer also analyzed the documentation on the country conditions
prevailing in Lebanon.
[12]
The Officer reviewed each of Mr. Fares’ documents,
but did not find them persuasive. The Officer concluded that they did not have
a strong probative value and failed to demonstrate the risk alleged by Mr.
Fares.
[13]
First, with respect to the 2016 FBI letter, the PRRA
Officer first noted that only a photocopy had been provided and that, even if
it was addressed to the PRRA office, it was not received by the Canadian
authorities and that it was rather apparently sent to Mr. Fares or his counsel.
The PRRA Officer further observed that, while the letter referred generally to
threats of serious bodily harm, it did not give any detail about the threats,
nor did it allude to a relationship between Hezbollah agents and Mr. Fares.
Given this, and the impossibility of assessing the quality of the original
letter, the PRRA Officer determined that the FBI letter could not be given
strong probative value.
[14]
Second, turning to the police report indicating
that Mr. Fares was attacked in Montreal, the PRRA Officer noted that the report
simply stated that Mr. Fares had gone out to a bar and was attacked by a
stranger, in an unknown location, for an unknown reason. The PRRA Officer
concluded that this report failed to establish a link between the attack and Mr.
Fares’ alleged situation in the United States or Lebanon, or with Hezbollah.
[15]
Third, in the same vein, the police report
emanating from Lebanon stated that an individual damaged the vehicle of Mr.
Fares’ sister in Lebanon. However, the PRRA Officer noted that this report did not
mention Mr. Fares at all, or that the incident was linked to a violent or
extremist group of any kind.
[16]
Finally, the letter from Mr. Fares’ sister
confirming his story provided no specific details, was undated, and was very
general in nature. The PRRA Officer thus concluded that these documents did not
demonstrate the risks allegedly faced by Mr. Fares in Lebanon.
[17]
In the Decision, the PPRA Officer also
considered the country conditions in Lebanon and determined that Mr. Fares had not
proven that he would be exposed to risks any different than those faced by the
general population in Lebanon. The PRRA Officer moreover found that even if there
is discrimination against Palestinians in Lebanon, it does not amount to
persecution, and that Mr. Fares had not offered evidence demonstrating a
personalized risk for him.
[18]
The PRRA Officer thus concluded that Mr. Fares had
not demonstrated the existence of a personal and objectively identifiable risk
for him in Lebanon, and that he had failed to establish a danger of torture,
risk to life and of cruel and unusual treatment or punishment.
C.
The standard of review
[19]
It is well-recognized that PRRA applications involve
questions of mixed facts and law and that the standard of review applicable in
such cases is that of reasonableness (Thamotharampillai v Canada
(Citizenship and Immigration), 2016 FC 352 [Thamotharampillai] at
para 18; Abusaninah v Canada (Citizenship and Immigration), 2015 FC 234
at para 19; Selduz v Canada (Citizenship and Immigration), 2009 FC 361
at para 9). The jurisprudence is clear that “[u]nless a
question of procedural fairness arises, the standard of review for a PRRA
officer’s decision is reasonableness” (Ikechi v Canada (Citizenship
and Immigration), 2013 FC 361 at para 26). Since the IRPA is the enabling
statute that PRRA officers are mandated to enforce, its interpretation and
application thus fall within their core area of expertise. In such
circumstances, a high degree of deference is owed to the Officer’s factual
findings and assessment of the evidence (Thamotharampillai at para 17; Aboud
v Canada (Citizenship and Immigration), 2014 FC 1019 at para 17).
[20]
Since Alberta (Information and Privacy
Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 [Alberta
Teachers], the Supreme Court of Canada has stated many times that “when an administrative tribunal interprets or applies its
home statute, there is a presumption that the standard of review applicable to
its decision is reasonableness” (Commission scolaire de Laval v
Syndicat de l’enseignement de la région de Laval, 2016 SCC 8 at para 32,
citing Alberta Teachers at paras 39 and 41; B010 v Canada
(Citizenship and Immigration), 2015 SCC 58 at para 25; Wilson v British
Columbia (Superintendent of Motor Vehicles), 2015 SCC 47 at para 17; Tervita
Corp v Canada (Commissioner of Competition), 2015 SCC 3 at para 35).
[21]
This presumption is not unchallengeable. It can
be overruled, and the standard of correctness can be applied when confronted
with one of the four factors set out by the Supreme Court in Dunsmuir v New
Brunswick, 2008 SCC 9 [Dunsmuir] at paras 43-64 and recently
reiterated in Edmonton (City) v Edmonton East (Capilano) Shopping Centres
Ltd, 2016 SCC 47 [Edmonton] at paras 22-24 and Mouvement laïque
québécois v Saguenay (City), 2015 SCC 16 at paras 46-48. Such is the case
when a contextual analysis reveals a clear intent of Parliament not to protect
the administrative tribunal’s authority with respect to certain issues; when
several courts have concurrent and non-exclusive jurisdiction on a point of
law; when an issue raised is a general question of law that is of central
importance to the legal system as a whole and outside the area of expertise of
the specialized administrative tribunal; or when a constitutional question is
at play. Since none of these scenarios exists in the case at bar, the
presumption established by Alberta Teachers is therefore not rebutted.
[22]
This reasonableness standard requires deference
to the decision-maker as it is “grounded in the
legislature’s choice to give a specialized tribunal responsibility for
administering the statutory provisions, and the expertise of the tribunal in so
doing” (Edmonton at para 33). When reviewing a decision on the
standard of reasonableness, the analysis is concerned with the existence of
justification, transparency and intelligibility within the decision-making
process, and the decision-maker’s findings should not be tampered with if the
decision “falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir
at para 47). Under a reasonableness standard, as long as the process and
outcome fit comfortably with the principles of justification, transparency and
intelligibility, and the decision is supported by acceptable evidence that can
be justified in fact and law, a reviewing court cannot substitute its own view
of a preferable outcome, nor reweigh the evidence (Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at
paras 16-17; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12
at paras 59, 61).
III.
Analysis
A.
The PRRA Decision is reasonable
[23]
Mr. Fares argues that the PRRA Officer erred in
attributing an inappropriate weight to the findings of the RPD, as well as unreasonably
assessed and rejected the new evidence he offered on his risks of death if he were
to return to Lebanon. Mr. Fares submits that, had the evidence been properly
considered, the only logical and reasonable outcome for the PRRA Officer was to
conclude that he faced a substantial risk in Lebanon.
[24]
I disagree with Mr. Fares and instead conclude that the Officer’s
Decision fits well within the boundaries of reasonableness.
[25]
A simple reading of the Decision suffices to
convince me that the PRRA Officer did not ignore or fail to consider the new evidence
submitted by Mr. Fares. Similarly, the PRRA Officer did not blindly follow the
RPD factual findings, as Mr. Fares alleges. On the contrary, the Officer reviewed
all the evidence in detail, found the new evidence insufficient and
unconvincing, and concluded that Mr. Fares had not met his burden in order to
obtain a positive PRRA decision. This is not a case where the administrative tribunal
overlooked some contradictory evidence when making its finding of fact. It is
instead a case where the reasons make it abundantly clear that the PRRA Officer
carefully considered all the evidence adduced by Mr. Fares but simply did not
find it persuasive.
[26]
As is required for all courts and administrative
decision-makers in civil cases, the PRRA Officer assessed the evidence and
conducted his analysis in light of the balance of probabilities standard. The Officer
was guided by the principles established in FH v
McDougall, 2008 SCC 53 [McDougall], where
the Supreme Court held that there is only one civil standard of proof in Canada.
Speaking for a unanimous Court, Rothstein J. stated that
the only legal rule in all cases is that “evidence must
be scrutinized with care by the trial judge” and that “evidence must always be sufficiently clear, convincing and
cogent to satisfy the balance of probabilities test” (McDougall
at paras 45-46). He concluded by saying that, in all civil cases, “the trial judge must scrutinize the relevant evidence with
care to determine whether it is more likely than not that an alleged event
occurred” (McDougall at para 49).
[27]
Mr. Fares and his counsel contend that the PRRA
Officer could not logically and rationally discard the 2016 FBI letter. I
disagree with Mr. Fares’ selective reading of the alleged evidence gleaned from
this letter. Mr. Fares’ submissions amount to an invitation to gerrymander the
evidence before the PRRA Officer so that it fits with the contours of his
unsubstantiated allegations regarding the FBI letter. This is an invitation I
cannot accept. Instead, I find that the PRRA Officer had multiple possible
reasons to question the FBI letter submitted by Mr. Fares and give it minimal
weight.
[28]
I acknowledge the fact that Mr. Fares helped the
FBI in prosecuting a case of fraud involving his former employers, and I do not
dispute that the FBI is a credible and well-recognized foreign organization.
However, the issue before the PRRA Officer and this Court is not the
reliability or credibility of the FBI as a law enforcement agency; the issue is
whether it was reasonable for the PRRA Officer to find that the specific 2016 FBI
letter obtained by Mr. Fares did not constitute sufficiently clear, convincing
and cogent evidence supporting Mr. Fares’ claims of risk. In my view, a cursory
review of the document suffices to demonstrate that the 2016 FBI letter
portrayed by Mr. Fares and his counsel as strong and solid evidence is in fact
riddled with numerous defects raising serious concerns about it and justifying
a reasonable decision-maker not to take it at face value. In addition, in many
respects, the FBI letter failed to substantiate many elements of Mr. Fares’
story.
[29]
The PPRA Officer rightly noted that the FBI
letter does not name any of the people who would have been prosecuted, any
details about the threats that Mr. Fares claims to have received, or any ties
to Hezbollah. Nowhere does it mention or even allude to Hezbollah, despite the
fact that it was the principal focus of Mr. Fares’ claims in his two PRRAs,
refugee claim, H&C application, and request for deferral to the CBSA. Mr.
Fares also omitted to include any noteworthy proof to show when and how the
letter was effectively received. Furthermore, only a photocopy was submitted,
the letter was never received by the PRRA office where it was supposedly addressed,
and no plausible explanation was offered as to why Mr. Fares could not provide the
original. There are, of course, some unsupported and unsubstantiated statements
made by counsel for Mr. Fares to the effect that the original was allegedly received
by the Minister copied on the letter, but I find such self-serving affirmations
unconvincing.
[30]
Mr. Fares asserts in his affidavit that the
authors of the 2016 FBI letter, a Perrye Turner and a Christine Beigning
apparently acting as FBI agents, could be reached at a phone number and email address
mentioned in his affidavit. However, these contact details come from
information provided in a prior undated letter from a Matthew Taylor, who also presented
himself as an FBI agent. It is striking to note that no phone number, email
address or invitation to contact the two authors appear anywhere in the alleged
official 2016 letter from the FBI. I further observe that, in the negative
decisions rejecting his first PRRA and H&C applications, Mr. Fares had
submitted the undated FBI document from Matthew Taylor. That initial, undated
FBI letter was given little weight by the Canadian immigration authorities and was
found to be insufficiently corroborative evidence of Mr. Fares’ alleged risk in
Lebanon. This prior document is similarly worded to the 2016 FBI letter in many
respects: the three main references to the alleged threats to Mr. Fares’ life
if returned to Lebanon contained in the 2016 FBI letter are virtually identical
to what was said in the previous undated document from Matthew Taylor, and contain
no more specificity.
[31]
I also underline that, apart from the
self-serving statements made by both Mr. Fares and his counsel, there is no
evidence supporting their allegations that the 2016 FBI letter had been
approved by the “full hierarchy” of the FBI,
that the letter had been vetted by lawyers from the US Department of Justice,
or that there was communication between the FBI agents and Mr. Fares and his
counsel. No detail and no dates are indeed provided regarding these elusive contacts
between the FBI, Mr. Fares and his counsel. In the same vein, apart from the
self-serving statements of Mr. Fares affirming that Hezbollah knows him,
threatened him and tried to kill him, no evidence of these factual elements appear
in the 2016 FBI letter itself.
[32]
In the circumstances, and in view of all these questionable
shortcomings corroding its contents and reliability, it was certainly open for
the PRRA Officer to give limited probative value to the 2016 FBI letter and raise
serious concerns about it. In fact, in my opinion, to have concluded otherwise
would have been unreasonable. Considering all its defects and deficiencies, the
2016 FBI letter submitted by Mr. Fares falls well short of the content a true,
official FBI letter should have reasonably featured in order to substantiate
Mr. Fares’ claims. In fact, far from being a reflection of what one would
reasonably expect from a major law enforcement agency like the FBI, the first undated
letter and its 2016 reincarnation both submitted by Mr. Fares look more like a
mockery of what authentic FBI documents admitted into evidence would realistically
be.
[33]
What is also telling is that counsel for Mr.
Fares went so far as stating, in his proposal of certified questions submitted
after the hearing before this Court, that the Minister’s office “intervened to stop the deportation after verifying the
authenticity of the FBI letters” [emphasis added]. This is, once
again, a statement totally unsupported by any evidence, and which was flatly
denied by counsel for the Minister in her reply to the questions for
certification. In my opinion, such an unsubstantiated statement made by counsel
at the eleventh hour can only contribute to fortify the legitimate concerns
raised by the PRRA Officer with respect to the probative value of the 2016 FBI
letter.
[34]
It is well-established that it is up to the PRRA
officers to assess and give weight to the evidence before them. Questions of
weight and credibility to be given to the evidence in risk assessments are
entirely within the discretion of the PRRA officers and this Court should not
substitute its analysis for that of the officers. In this case, my review of the
evidence before the Officer confirms that the conclusions reached on the FBI
letter fall within the range of reasonableness.
[35]
I pause to make one additional comment. Counsel
for Mr. Fares advanced the novel proposition that the standard of proof applicable
to a letter from an organization like the FBI should somehow be different, that
documents emanating from the FBI should benefit from some sort of presumptive
validity, and that an administrative decision-maker like the PRRA Officer
should adopt a more relaxed standard of proof towards such documents. I do not
agree. Counsel for Mr. Fares was unable to provide any case law in support of
his proposition, and I am unaware of any precedent or legal principle that
could lend credence to such an approach. The standard of proof on a balance of
probabilities applies to all evidence and, in all cases, the applicants have to
demonstrate that it is more likely than not that a given event occurred. The
fact that a piece of evidence happens to be a letter from the FBI does not
modify this standard.
[36]
I would add that, in the circumstances, it would
be an affront to the most elementary rules of evidence to consider the 2016 FBI
letter under a more favourable light simply because it apparently emanates from
the FBI, given the extent to which this FBI letter is plagued with numerous
shortcomings and defects. Crippled as it is, the FBI letter certainly does not
deserve to be put on the pedestal that counsel for Mr. Fares apparently sees
for it.
[37]
Mr. Fares also relied on a police report from
January 2014, relating to an attack he faced leaving a bar in Montreal, to
claim that his life would be at risk if he is deported to Lebanon. However,
this report does not provide any details regarding the identity of the suspect,
and does not link this event in any way to Hezbollah or Lebanon. A similar
problem arises with his new evidence on the attack on his family in Lebanon: this
second police report refers to damages caused to his sister’s car, but contains
no allusion to Mr. Fares himself or to a link to Hezbollah. Considering the
contents of these documents, it was reasonable for the PRRA Officer to conclude
that they offered limited probative evidence in support of Mr. Fares’ claims of
risks upon return to Lebanon.
[38]
Again, under a reasonableness standard, it is
not the role of the Court to reassess and reweigh the evidence. This Court’s
role is only to determine if the PRRA Officer’s conclusions have the attributes
of justification, transparency and intelligibility, and fall within the range
of possible, acceptable outcomes. Further to my review of the Officer’s reasons
and the record, I detect nothing unreasonable in the Officer’s factual findings.
[39]
In his oral submissions before the Court,
counsel for Mr. Fares referred to several cases relating to the treatment of
the evidence by decision-makers in immigration matters. However, I am not
persuaded that any of the cases cited is relevant to the situation of Mr. Fares
and the particular set of facts in this case. For example, this is not a situation
where the PRRA Officer discarded or omitted to consider the new evidence
submitted, or found it inadmissible for technical reasons like in Elezi v
Canada (Citizenship and Immigration), 2007 FC 240. Nor is it a case where
the PRRA Officer looked at the evidence in isolation, put too much emphasis on
elements peripheral to Mr. Fares’ claim, or approached the evidence with
suspicion (Gonzalez Perea v Canada (Citizenship and Immigration), 2008
FC 432). Neither is this a situation where the PRRA Officer was silent on
evidence clearly pointing to an opposite conclusion and squarely contradicting
some findings of fact, or where it can be inferred that the tribunal overlooked
contradictory evidence when making its decision (Cepeda-Gutierrez v Canada
(Minister of Citizenship and Immigration), [1998] FCJ No 1425 (QL)).
B.
The PRRA Decision does not raise any
Charter or UN Convention issues
[40]
As another ground of judicial review, Mr. Fares
and his counsel contend that the Decision goes against overarching principles
flowing from the Charter and Canada’s international obligations under the
UN Convention. Mr. Fares submits that, by rejecting the risk to his safety and
life should he return to Lebanon, the PRRA Officer ignored both the Charter and
Canada’s obligations in international law.
[41]
I disagree.
[42]
First of all, counsel for Mr. Fares argues that
a different, so-called “constitutional” standard
of review should govern matters where the application of the Charter and
UN Convention come into play. When asked if he had any cases in support of this
novel argument, counsel for Mr. Fares, once again, could not cite any. In fact,
there is no particular or “constitutional”
standard of review calling for a less deferential approach on judicial reviews
of administrative decisions raising Charter or UN Convention issues. The
unsupported interpretation proposed by counsel for Mr. Fares flies in the face
of the teachings of the Supreme Court and strays away from the consistent
jurisprudence on judicial reviews and on the standard of review applicable in
cases raising Charter issues.
[43]
The Supreme Court has clearly stated that, when an
issue involves consideration of whether a discretionary decision of an
administrative decision-maker respects Charter values and principles,
the reasonableness standard applies (Loyola High School v Quebec (Attorney
General), 2015 SCC 12 [Loyola] at paras 3-4; Doré v Barreau du
Québec, 2012 SCC 12 [Doré] at paras 57-58; Lewis v Canada (Public
Safety and Emergency Preparedness), 2017 FCA 130 at para 43). Furthermore, Charter
or UN Convention issues do not fit within any of the four exceptions repeatedly
identified by the Supreme Court since Dunsmuir as requiring a less
deferential standard of correctness on judicial review (Edmonton at
paras 22-24).
[44]
I would add that it is now trite law that the
removal of a person after a proper risk assessment under the PRRA process is
not contrary to sections 7 and 12 of the Charter (Atawnah v Canada
(Public Safety and Emergency Preparedness), 2016 FCA 144 [Atawnah]; Suresh
v Canada (Minister of Citizenship and Immigration), 2002 SCC 1). As for the
UN Convention, paragraph 97(1)(a) of the IRPA specifically refers to the
notion of torture contained in Article 1 of the UN Convention and therefore
integrates the principles contained in Article 3 of the Convention.
[45]
In any event, I am not persuaded that the
present case raises an issue of principle regarding the application of the Charter
or UN Convention. As stated above, I am satisfied that the factual findings
made by the PRRA Officer do not fall outside the range of possible, acceptable
outcomes defensible in respect of the facts and law. Despite Mr. Fares’
repeated attempts to bang the Charter and UN Convention drums and morph
this case into something bigger, it remains a matter where Mr. Fares has simply
failed to provide the sufficiently clear, convincing and cogent evidence needed
to support his PRRA application and his claim of serious risk at the hands of
Hezbollah. The determinative issue raised by this application for judicial
review and the Decision is whether it was reasonable for the PRRA Officer to
conclude as he did. I find that it was.
IV.
Certified questions
[46]
Mr. Fares asks the Court to certify three
questions:
A. Do the current standard of review of reasonableness at the Federal
Court and the lack of attention to the substance of decisions regarding our
international obligations respect the right to an effective legal recourse that
is provided for in Article 24 of the Charter?
B.
Do the current legal recourses of the PRRA and
judicial review by the Federal Court respect our international human rights
obligations to provide an effective recourse under Article 2(3) of the
International Covenant on Civil and Political Rights linked with the
substantial rights of Articles 6 and 6 [sic] of this same convention in
deportation matters?
C.
Is the decision-maker obliged to respect the
criteria of the second paragraph of Article 3 of the UN Convention against
Torture in judging whether there would be a substantial risk of torture?
[47]
For the reasons that follow, I do not find that any
of the proposed questions meets the requirements for certification developed by
the Federal Court of Appeal.
[48]
According to paragraph 74(d) of the IRPA, a
question can be certified by the Court if “a serious
question of general importance is involved”. To be certified, “a question must (i) be dispositive of the appeal and (ii)
transcend the interests of the immediate parties to the litigation, as well as
contemplate issues of broad significance or general importance” (Mudrak
v Canada (Citizenship and Immigration), 2016 FCA 178 [Mudrak] at
paras 15-16; Zhang v Canada (Citizenship and Immigration), 2013 FCA 168
[Zhang] at para 9). As a corollary, the question must have been dealt
with by the Court and must arise from the case (Mudrak at para 16; Zhang
at para 9; Varela v Canada (Citizenship and Immigration), 2009 FCA 145
at para 29).
[49]
I decline to certify the first question as it is
not dispositive of the appeal and I do not consider it of general importance. I
agree with counsel for the Minister that no evidence has been provided by Mr.
Fares demonstrating that the PRRA process was not an effective legal recourse
in his case. In addition, the fact remains that Mr. Fares was twice
unsuccessful in his PRRA applications (as well as in his refugee claim, H&C
application and request for deferral of removal) because the proffered evidence
was found to be insufficient and unconvincing. Therefore, this is not a
situation where the effectiveness of the PRRA process is called into question.
Mr. Fares’ PRRA application was dismissed based on the low probative value of
the evidence he submitted to the Officer. The first proposed question would thus
not be dispositive of the appeal. Moreover, I am not persuaded that it is a
question of general importance. No case law supports the interpretation advanced
by counsel for Mr. Fares and the Supreme Court has affirmed in Loyola
and Doré that the reasonableness standard governs the determination of
whether a discretionary decision of an administrative tribunal respects the Charter.
It is also well established that the removal of a person after a proper risk
assessment is not contrary to sections 7 and 12 of the Charter (Atawnah).
I finally note that, in Pozos Martinez v Canada (Citizenship and Immigration),
2010 FC 31 at paras 26-29, the Court denied a similar request for certification
made by counsel for Mr. Fares.
[50]
As for the second question, I find that it does
not meet the test for certification either. For the reasons detailed in the
consideration of the first question, the proposed question would not be
dispositive of this appeal. The answer to the proposed question is also
well-settled in this Court’s jurisprudence.
[51]
Turning to the third question, it would also not
be determinative of the appeal as the evidence of risk provided by Mr. Fares
was found to be insufficient and unconvincing in this case. In addition, I am
not persuaded that this is a question of general importance, as the answer to
the question is explicitly contained in the IRPA itself, at paragraph 97(1)(a).
This provision, which the decision-makers are required to apply, already
embodies the principles contained in Article 3 of the UN Convention.
V.
Conclusion
[52]
For all of these reasons, the PRRA Officer’s Decision
represents a reasonable outcome based on the law and the evidence. Under a
standard of reasonableness, the Decision under judicial review must be
intelligible, justified and transparent, as well as fall within the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law. This is the case here. In addition, Mr. Fares’ application for judicial
review does not trigger Charter or UN Convention issues. It was based on
a lack of sufficiently clear, convincing and cogent evidence to satisfy the
balance of probabilities test. Consequently, I must dismiss this application
for judicial review.
[53]
There are no questions of general importance to
be certified.
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