Date: 20051014
Docket: IMM-1727-05
Citation: 2005 FC 1406
OTTAWA, Ontario, the 14th day of October 2005
PRESENT: THE HONOURABLE MR. JUSTICE TEITELBAUM
BETWEEN:
IMED ADHERRAHAMA KAWECH
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision on a pre-removal risk assessment (PRRA) dated February 21, 2005, by an immigration officer (the officer), who determined that Imed Abderrahma Kawech (the applicant) was not in danger of torture or persecution, or subject to a risk of cruel and unusual treatment or punishment or to a risk to his life if he were to be removed to Tunisia.
[2] The applicant is a Tunisian citizen and is married to a Canadian citizen. He came to Canada on August 10, 2000. On August 7, 2001, he claimed refugee status, but that claim was dismissed on May 14, 2002. The applicant therefore filed a PRRA application and an application for a permanent resident visa exception based on humanitarian and compassionate considerations.
[3] On February 21, 2005, before receiving a reply to his application on humanitarian and compassionate grounds, the PRRA application was dismissed and the applicant received a direction to report to a meeting in order to make arrangements to leave Canada.
[4] On July 5, 2005, the applicant received a letter from an officer of Citizenship and Immigration Canada, stating that a new public policy for spouses and common-law partners (the new policy) had been introduced on February 18, 2005. This new policy had the effect of exempting the applicant from the obligation to have immigration status (paragraph 124(b) of the Immigration and Refugee Protection Regulations (SOR/2002-227) (the Regulations), and from the requirements provided under subsection 21(1) of the Act and under subparagraph 72(1)(e)(i) of the Regulations.
[5] The applicant submits that he fulfilled the obligations under the new policy, and therefore that the PRRA decision should be set aside, given that it no longer applied to his case.
[6] The impugned decision is the dismissal of a PRRA application against the applicant. The officer determined that the applicant had not adduced any new evidence and that all of his allegations had been addressed in his refugee claim. The officer also referred to several passages from the documentary evidence on Tunisia in its decision, noting that she relied on those passages to counter the applicant's testimony, which she found to lack credibility.
[7] The applicant submits that the officer completely contradicted the documentary evidence on the prevailing situation in Tunisia.
[8] Second, the applicant alleges that the officer had been negligent because she did not take into consideration the fact that he had filed an application on humanitarian and compassionate grounds that was still pending.
[9] Third, the officer's decision breaches the new policy, because on the one hand, the applicant would be authorized to stay in Canada, but on the other, there is an attempt to get him to leave Canada.
[10] Finally, this dispute has become moot because the applicant meets all of the requirements under the new policy. Therefore, the respondent must consent to the application for judicial review.
[11] The respondent submits that the PRRA decision by the officer was made by Citizenship and Immigration Canada (CIC) and not by the Canada Border Services Agency (CBSA). Therefore, the PRRA decision and the enforcement of a removal are completely separate.
[12] Further, if the dispute has become moot, it is upon the applicant to desist from it, given the fact that it was the applicant who filed the application for judicial review.
[13] With regard to the officer's decision, the applicant is asking the Court simply to substitute its opinion for that of the officer, which is not its role.
[14] The issues are the following:
1. Is the decision by the PRRA officer unreasonable?
2. Is the PRRA application still valid, given the fact that the applicant filed an application under the new policy on sponsorship of spouses?
Is the decision by the PRRA officer unreasonable?
[15] Although the applicant alleges that the officer's decision was [TRANSLATION] "purely capricious, contrary to the facts, and motivated simply by the desire to close the applicant's file prematurely"; after a careful review of the reasons for her decision, I do not find that she was unreasonable.
[16] The appropriate standard of review for a PRRA decision was recently examined by my colleague Mr. Justice Martineau in Figurado v. Canada (Solicitor General), [2005] F.C.J. No. 458 at paragraph 51:
In my opinion, in applying the pragmatic and functional approach, where the impugned PRRA decision is considered globally and as a whole, the applicable standard of review should be reasonableness simpliciter (Shahi v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1826 at para. 13 (F.C.T.D.) (QL); Zolotareva v. Canada (Minister of Citizenship and Immigration), 2003 FC 1274, [2003] F.C.J. No. 1596 (F.C.) (QL) at para. 24; Sidhu v. Canada (Minister of Citizenship and Immigration), 2004 FC 39, [2004] F.C.J. No. 30 (F.C.) (QL) at para. 7). That being said, where a particular finding of fact is made by the PRRA officer, the Court should not substitute its decision to that of the PRRA officer unless it is demonstrated by the applicant that such finding of fact was made in a perverse or capricious manner or without regard to the material before the PRRA officer (paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended; Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, [2003] F.C.J. No. 108 (F.C.A.) (QL) at para. 14).
[17] In her decision, the officer pointed out that the applicant had filed a refugee claim and that the claim had been denied because of his lack of credibility. In this case, in support of his PRRA application, the applicant reiterated the same facts and fears as those presented earlier in his refugee claim. Paragraph 113(a) of the Act identifies the evidence that may be filed in the context of a PRRA application:
| 113. Consideration of an application for protection shall be as follows:
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113. Il est disposé de la demande comme il suit:
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| (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection;
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a) le demandeur d'asile débouté ne peut présenter que des éléments de preuve survenus depuis le rejet ou qui n'étaient alors pas normalement accessibles ou, s'ils l'étaient, qu'il n'était pas raisonnable, dans les circonstances, de s'attendre à ce qu'il les ait présentés au moment du rejet;
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[18] The officer therefore properly analyzed the new evidence submitted by the applicant in support of his application and determined that:
The applicant's PRRA submission did not provide a satisfactory explanation to clarify the inconsistencies and contradictions found by the IRB. Therefore, I take into consideration the findings of the IRB, which had an opportunity to hear the applicant and verify the veracity of the allegations. Problematic with the applicant's claim is that he has failed to provide documentary evidence to satisfy why he is personally at risk and why someone in the same position would face the same risk. As new evidence he submitted an extract from the police authorities in Tunisia, which also confirms that he has no criminal record. Although his father alleged, in the letter submitted as new evidence, that his son is wanted by the police, I give little weight to this document as it is not from an objective source, and does not objectively confirm the risk alleged.
(See page 6 of the PRRA officer's reasons dated February 21, 2005.)
[19] Further, with respect to the documentary evidence as well as the new evidence submitted by the applicant, the officer stated, inter alia, that:
· The applicant was not an organizer, speaker of leader in the UGET. He has not participated in any activities to oppose the Tunisian government since arriving in Canada. He is a very minor player in the Tunisian human rights movement. Documentary evidence shows that those students being targeted are militants and executive members of student organizations, not the applicant.
· The applicant obtained his passport in March 2000 without any problems with the Tunisians government, which could have refused him this request. According to US Country Report 2003, the Tunisian authorities use denial of passports against citizens who criticize the government.
· The applicant waited one year before making his refugee claim, which is inconsistent with his subjective fear of persecution.
· The panel noted a number of contradictions, omissions and implausibilities in the applicant's testimony which led the panel to find the applicant not credible. The panel concluded that the applicant's allegations and evidence submitted in support were all fabricated. The applicant's PRRA submissions did not provide a satisfactory explanation to clarify the inconsistencies and contradictions found by the IRB.
(See page 6 of the PRRA officer's reasons dated February 21, 2005.)
[20] In the decision Bilquees v. Canada (Minister of Citizenship and Immigration), 2004 FC 157, [2004] F.C.J. No. 205, my colleague Mr. Justice Pinard reiterated the fact that an assessment of credibility is a question of fact and that this Court must not intervene in that assessment unless it is unreasonable.
The PRRA officer found, like the panel that preceded her, that the applicants were not credible. The evaluation of credibility is a question of fact and this Court cannot substitute its decision for that of the PRRA officer unless the applicant can show that the decision was based on an erroneous finding of fact that she made in a perverse or capricious manner or without regard for the material before her (see paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7). The PRRA officer has specialised knowledge and the authority to assess the evidence as long as her inferences are not unreasonable (Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)) and her reasons are set out in clear and unmistakable terms (Hilo v. Canada (M.E.I.) (1991), 15 Imm.L.R. (2d) 199 (F.C.A.)).
[21] Given the fact that the officer's decision gave reasons, with concrete facts from the applicant's file, in my opinion there was no error by the officer, and the PRRA decision was made following a complete analysis of the evidence before her.
Is the PRRA application still valid, given the fact that the applicant filed an application under the new policy on sponsorship of spouses?
[22] The applicant also alleges that the filing of his application under the new policy facilitating the processing of exemptions filed by spouses should nullify the PRRA decision.
[23] Yet, the simple fact of filing that application does not guarantee the applicant's admissibility or that he will therefore benefit from the new policy, or that he will be entitled to reside in Canada until the application has been decided. To the contrary, the effect of being admitted under the new policy is to exempt the applicant from the obligation of having immigration status in Canada. It does not guarantee that he will not be removed to Tunisia.
[24] A person applying under the new policy who is contemplated by an enforceable removal order could obtain an administrative stay; if need be, that person will have to leave Canada and wait outside Canada to receive a response to their application.
[25] In this case, the assessment of the applicant's application under the new policy has yet to be done. Only if the applicant meets the requirements of that new policy will he be accepted in Canada and the application for judicial review of the PRRA decision will become moot. Therefore, it becomes clear that an application under the new policy is separate from a PRRA decision.
[26] It appears that the applicant is confusing a pre-removal risk assessment with the enforcement of a removal order. As the applicant alleges, it would seem odd to me that he would be accepted in Canada under the new policy, while at the same time, a removal order was enforced against him. Such is not the case, however, and an analysis of that situation would be premature.
[27] For all of the reasons stated above, it is my opinion that the PRRA officer's decision is not unreasonable. Further, the fact that a PRRA decision is made at the same time that a decision under the new policy for sponsorship of spouses is pending is entirely reconcilable. This application for judicial review is therefore dismissed.
ORDER
The application for judicial review is dismissed. The parties did not submit any question for certification.
"Max M. Teitelbaum"
JUDGE
Certified true translation
Kelley A. Harvey, BCL, LLB
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