Date:
20060203
Docket:
IMM-4096-05
Citation:
2006 FC 128
Ottawa, Ontario, February 3, 2006
PRESENT: MADAM JUSTICE
TREMBLAY-LAMER
BETWEEN:
MR.
HAMMADI BEN HASSEN KAMMOUN
MS.
LEILA BENT MOHAMED M’RAD
MR.
RAMI BEN HAMADI KAMMOUN
MS.
RIHAD BENT HAMADI KAMMOUN
MR.
RADHOUAN BEN HAMADI KAMMOUN
Applicants
and
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial
review under subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the IRPA) of a pre-removal risk assessment (PRRA) by a PRRA
officer according to which the applicants are not “Convention refugees” or
“persons in need of protection” as these expressions are defined in sections 96
and 97 of the IRPA.
[2] The applicants, citizens of
Tunisia, arrived in Canada on December 3, 2000, on visitor’s visas, to visit
members of their family in Canada. They applied for refugee status in Canada on
December 7, 2000.
[3] They allege the following facts in support
of their claim.
[4] The principal applicant fears being
arrested, detained, tortured and killed by the authorities of Tunisia, since he
refused to sign a document in favour of the brother-in-law of President Ben Ali
for the possession of a boat that could be used for drug trafficking by the
Tunisian government. He had to give up this boat under threat and left the
country in order to protect his family. He fears persecution by the authorities
because of his perceived political opinion and his membership in the social
group of his family. He fears reprisals by his government because in Canada he
has publicly challenged his government’s corruption.
[5] On February 26, 2002, the Refugee
Division of the IRB dismissed the applicants’ claim on the ground that they
were not credible.
[6] On March 18, 2002, the applicants
all signed an application for admission in the post determination refugee
claimant in Canada class, and these applications were received by CIC on March
19, 2002. These applications were subsequently converted into PRRA applications
after the coming into force of the IRPA.
[7] On May 2, 2005, the applicants all
signed an IMM 5508 form, that is, a PRRA application.
[8] On June 2, 2005, the PRRA officer
rejected the applicants’ application on the ground that it had not been
demonstrated to her that there was more than a mere possibility that the
applicants would be persecuted in their country (section 96 of the IRPA) or
that there were substantial grounds to believe that the applicants would be
subject to torture or a risk to their life or to a risk of cruel and unusual
treatment or punishment (section 97 of the IRPA).
[9] As to the applicable standard of
review, I agree with my colleague Mr. Justice Martineau, who held in Figurado
v. Canada (Solicitor General), [2005] F.C.J. No. 458 (F.C.), that the
applicable standard of review for a decision of a PRRA officer where a question
of fact is concerned is that of the patently unreasonable decision.
[10] The applicant submits that the PRRA
officer overlooked evidence corroborating the probability of abuse of power
that he was the victim of in Tunisia. He alleges mainly that he was forced to
do business with a certain Trabelsi, and that the latter used his connections
with the established authorities in Tunisia to deprive him of his property.
[11] But insofar as the association with
the Trabelsi family was concerned, the PRRA officer explicitly found that even
if the applicant had been subjected to embezzlement and blackmail in his
country, that did not make him a person in need of protection or a
Convention refugee. More specifically on this point, the PRRA officer made some
significant findings of fact. The applicant is said to have more than once
denounced corruption and abuses of authority by the presidential family even
while he was in Tunisia, appealing even to the President himself, without
incurring any detrimental consequences. On the contrary, he is said to have
even been “decorated” on World Post Day, October 7, 1999, after he had explained
his situation to a number of persons in authority. The evidence reveals that he
still retained his position as an official (and even obtained a promotion) and
the residence he had been given as a fringe benefit of his position. The
children continued to attend school until the fall of 2000.
[12] The detailed analysis of the
applicant’s conduct by the PRRA officer, in connection with the story provided
by the principal applicant, shows that she correctly assessed all the evidence
and that her finding on his subjective fear is not patently unreasonable.
[13] The applicant also submits that he
has engaged in political activity in Canada and has thereby become, with his
family, a refugee “sur place”. It is important to note that a claim under
paragraph 97(1)(a) of the IRPA has no subjective component (Li v.
Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1
(C.A.), at paragraph 33). Thus, the PRRA officer’s conclusion on subjective
fear can have no impact on her analysis under paragraph 97(1)(a).
[14] Furthermore, the fact that the
activities of the applicant in Tunisia were not considered credible by the IRB
should have no effect on his allegations concerning his activities in Canada.
[15] It is trite law that a fear based on
persecution may arise after a claimant has left his country of origin, as a
result of the claimant’s activities in the host country. This is the notion of
refugee “sur place”.
[16] The Handbook on Procedures and
Criteria for Determining Refugee Status, published by the Office of the
United Nations High Commissioner for Refugees, recently expounded on the notion
of refugee “sur place” in a document dealing with the determination of refugee
status, entitled Refugee Status Determination, Self-study module 2,
September 2005. According to this document, an allegation that a claimant may
be a refugee “sur place” may be based on actions
by the applicant after his or her departure, for example:
·
Political activity, such as participation in demonstrations
against government policies in the country of origin, open engagement in other
anti-government activities (e.g. participation in opposition groups in exile,
public speeches, writing or publishing articles, or close association with
refugees or other known opponents to the government of the country of origin);
or
·
Conversion to a religion not tolerated by the authorities in the
country of origin; or
·
Unauthorized stay abroad, where this is punished by severe
sanctions.
In principle, sur place claims must be assessed on the
same basis as all other claims for refugee status, that is, the decision-maker
must analyze whether each element of the Article 1A(2) definition is satisfied.
If the applicant asserts a fear of persecution based on his or her political
activities or religious conversion, it needs to be examined whether:
·
The applicant’s convictions and/or conduct have come, or are
likely to come, to the attention of the authorities in his or her country of
origin; and
·
Whether there is a reasonable possibility that on return the
applicant would experience persecution for a reason related to a 1951
Convention ground.
If these conditions are met, the applicant will qualify for
refugee status. This also applies where the applicant may not genuinely hold
the political convictions or religious beliefs expressed, but where the mere
fact of their expression may nevertheless be considered by the authorities in
the country of origin as a hostile act and is likely to give rise to
persecution. There is no “good faith” requirement in the 1951 Convention. . .
.
[17] The PRRA officer did not deny that
the applicant had written several of these texts and letters or that he had
communicated with the Tunisian embassy in Ottawa. However, she found that the
fact that he had voluntarily communicated with the representatives of his
country in Canada in order to negotiate showed that his fears were not
substantial. Moreover, she notes, a number of non‑governmental
organizations (NGOs) denounce abuses in a number of reports without being
persecuted for that reason. In my opinion, this conclusion is patently
unreasonable.
[18] In the case at bar, the issue for
determination by the PRRA officer was whether the denunciation of the Tunisian
authorities by Mr. Kammoun in Canada, albeit voluntary, might give rise to a
hostile reaction on the part of the authorities and thus pose a risk should he
return to his country. As I wrote in Ngongo v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 1627 (F.C.T.D.):
¶ 22 According to James Hathaway in The
Law of Refugee Status, regard must be had to the impact of political
activities abroad even when those activities are prompted by the claimant’s
intention to secure asylum:
It does not
follow, however, that all persons whose activities abroad are not genuinely
demonstrative of oppositional political opinion are outside the refugee
definition. Even when it is evident that the voluntary statement or action was
fraudulent in that it was prompted primarily by an intention to secure asylum,
the consequential imputation to the claimant of a negative political opinion by
authorities in her home state may nonetheless bring her within the scope of the
Convention definition. Since refugee law is fundamentally concerned with the
provision of protection against unconscionable state action, an assessment
should be made of any potential harm to be faced upon return because of the
fact of the non-genuine political activity engaged in while abroad.
¶ 23 I share that view. The only
relevant question is whether activities abroad might give rise to a negative
reaction on the part of the authorities and thus a reasonable chance of
persecution in the event of return.
[19] Moreover, as to the comparison
between the applicant and some officials of Tunisian NGOs, the PRRA officer’s
finding, wherein she compared the fate of the applicant to that of the NGOs
that denounce abuses is, in my opinion, arbitrary as well. I do not think the
applicant can be compared to an NGO, as he is not an organization that can rely
on the numerical strength of its membership and international solidarity.
[20] Although it is not the task of the
reviewing court to determine the appropriate weight to be assigned to the
evidence, I note nevertheless that the documentary evidence reports cases of
persecution directed against NGO officials and activists.
[21] As to the documents offered in
evidence by the applicant on June 2, 2005, the PRRA officer indicated that she
had received these documents. However, she did not comment on them, although in
my opinion they are relevant since they corroborate many of the applicants’
allegations concerning their activities in Canada. The more centered the
document is to the issue for determination, the greater the decision-maker’s
obligation to deal with it explicitly (Cepeda-Gutierrez v. Canada (Minister
of Citizenship and Immigration), [1998] F.C.J. No. 1425 (T.D.)).
[22] For these reasons, the application
for judicial review is allowed. The matter is referred back to another PRRA
officer, only to examine the issue of refugee “sur place”.
ORDER
THE COURT ORDERS that
[1] The application for judicial review
be allowed.
[2] The matter be referred back to
another PRRA officer, only to examine the issue of refugee “sur place”.
“Danièle Tremblay-Lamer”
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4096-05
STYLE OF CAUSE: MR.
HAMMADI BEN HASSEN KAMMOUN ET AL.
v.
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal,
Quebec
DATE OF HEARING: January
31, 2006
REASONS FOR ORDER: Tremblay-Lamer
J.
DATED: February
3, 2006
APPEARANCES:
Denis Girard FOR
THE APPLICANTS
Michel Pépin FOR
THE RESPONDENT
SOLICITORS OF RECORD:
Denis Girard FOR
THE APPLICANTS
Montréal, Quebec
John H. Sims FOR
THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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