Date: 20090603
Dockets: IMM-2297-09 & IMM-2299-09
Citation: 2009 FC 578
BETWEEN:
Ebrahim Mohammed MAMOON
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
AND THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR
ORDER
Lemieux J.
Introduction and
Background
[1]
On
Friday, May 22, 2009, I dismissed an application by Ebrahim Mohammed Mamoon to stay
the execution of his removal, on May 24, 2009, to Tanzania. These are
my reasons.
[2]
His
stay application was grafted to two leave and judicial review applications from
two decisions dated March 26, 2009, made by the same Immigration Officer:
1) The rejection
of his application for permanent residence on humanitarian and compassionate
grounds (the H&C application); and,
2) The refusal
of protection on the basis of a negative Pre-Removal Risk Assessment (PRRA) holding
he would not be the subject of persecution, danger of torture, risk to life or
risk of cruel and unusual treatment if returned to Tanzania.
[3]
The
fear he expressed in the PRRA application was twofold: 1) risks associated with
his father’s political career as a member of the ruling party and as Deputy Mayor
of the Ilala Municipal Council, in Tanzania’s capital of Dar es Salaam. Being
the son of a prominent business and political family, he stated he and his
family had been threatened by opposition members; and, 2) he had become a
homosexual in Canada and, as a Muslim, he would face the death penalty or be
stoned if his mosque realized he was gay or had a relationship with a person of
the same gender.
[4]
The
Applicant and his brother Cassim arrived in Canada on October
10, 2005, both making refugee claims which were denied by the Refugee
Protection Division (the RPD) on July 20, 2006. They had only asserted
before the RPD their risk was based on perceived political opinion owing to
their father’s prominence. The Applicant and his brother Cassim obtained leave
but my colleague Justice Barnes upheld the RPD’s decision (see Mamoon v. Canada (Minister of
Citizenship and
Immigration,
2007 FC 794). That decision, nor
the RPD decision was put before me.
[5]
Justice
Barnes made the following observations:
· At paragraph
3, he found: “It appears from the record that the senior Mr. Mamoon was
instrumental in assisting the Applicants and their sisters to leave Tanzania and he has
promoted the within refugee claims”;
· At paragraphs
4 and 9, “because of the severity of the threats the family received and the
fact they did not seek state protection “borders on the absurd””; and,
·
At paragraph 8, the RPD rejected the brothers’ claims on the
basis of lack of credibility and on the basis of the availability of state
protection. He found the RPD’s credibility findings were unimpeachable citing,
in particular, inconsistencies between the claimants’ PIFs and the father’s
affidavit.
[6]
The
Applicant’s fear on account of his sexuality was a new risk placed before the
PRRA Officer and consequently had not been assessed by the RPD.
[7]
It
is convenient to concentrate first on the negative PRRA decision since the H&C
application was one, where under hardship to return to Tanzania to apply for a
permanent residence visa for entry into Canada, was based
on the same fear expressed in the PRRA application.
The PRRA decision
[8]
These
reasons deal with the case of Ebrahim Mohammed Mamoon. I dismissed from the
bench, on May 24, 2009, his brother Cassim’s stay application connected to
similar H&C and PRRA applications, except Cassim’s fear was that he would
be perceived to be a homosexual because of his brother’s homosexuality yet he [Cassim]
was not one.
The Applicant’s
sexuality
[9]
The
evidence submitted to the PRRA Officer in support of his homosexuality
consisted of:
· His affidavit
dated December 21, 2007;
· An undated
letter from his friend Reza Alidad; and,
· A document
from MAND8, a chat line for gays which apparently had a photo of the Applicant.
[10]
The
PRRA Officer was not satisfied the evidence before him was sufficient to
persuade him the Applicant was a homosexual or bisexual. The PRRA Officer
mentioned:
1) That after
the Applicant had his first homosexual act in July or August 2007 with an
individual who attended the same college he did, the Applicant in his affidavit
wrote that he had a couple of sexual relationships with men and some women;
2) He asserted
he had a homosexual relationship with Mr. Alidad but Mr. Alidad did not
corroborate this in his undated letter;
3) The chat line
was given little weight as being unpersuasive to establish the Applicant’s
bisexuality or homosexuality; and,
4) The Applicant
had provided insufficient evidence to indicate he was presently involved in a
relationship with a member of the same sex or when his last relationship was or
if he is involved with a member of the opposite sex and when or with whom.
[11]
Counsel
for the Applicant did not seriously impugn the PRRA Officer’s findings on the
Applicant’s sexuality but rather relied on the Applicant’s affidavit, filed in
support of his stay application. That affidavit is dated May 12, 2009
and was not before the PRRA Officer. It has the following features:
1) It confirms
he had no sexual relationship with Mr. Alidad and concedes his previous
affidavit gave a false impression on this point; and,
2) It admits in
his previous affidavit he had described himself as bisexual but today he would
define himself as a homosexual because of a relationship he developed beginning
in the last week of December 2007 with Afzal Sardar who also filed a brief
supporting affidavit stating he is the common law partner of the Applicant.
Conditions in Tanzania for
homosexuals
[12]
The
PRRA Officer examined the documentary evidence on this issue. She noted current
documentary evidence on country conditions (DOS reports for 2008 and 2007)
indicated homosexuality was illegal in Tanzania with
punishment of up to five years in prison. She observed, however, there were no
reports that anyone was punished under the law since 2004 according to a report
from Amnesty International. She noted that The Gay Times similarly reported
that the laws against homosexuality in Tanzania are rarely
enforced. She noted, however, that homosexuals in that country faced societal
discrimination.
[13]
The
PRRA Officer analysed the contrary evidence in these terms:
Documentary evidence that the Applicant
submitted indicates that Amnesty International reports that no arrests due to homosexuality
were made in Tanzania or Zanzibar in 2004 or in recent years. The Gay
Times similarly reports that the laws against homosexuality in Tanzania are rarely enforced. The
report goes on and indicates that gays and lesbians in Tanzania are violently persecuted, mistreated,
hated and ostracized wrote Tanzanian Bishop Mdimi Mhogolo. Bishop Mhogolo’s
letter expressed disagreement with the Diocese’s decision to refuse donations
from any United States Episcopal Church group that either fails to censure homosexual
acts or that blesses same sex union. A World Bank supported working paper
entitled Sexual Minorities, Violence and Aids in Africa (July 2005) indicates
that homosexuals in Tanzania run a high risk of
experiencing violence and intolerance. The findings reported indicate that
social risks-such as the risk of being evicted or losing a job were especially
high in Tanzania. In addition adverse comments
against homosexuals in Tanzania were regularly made by senior
politicians, including the head of state.
[14]
She
concluded as follows:
The evidence appears to be mixed with
respect to the treatment of homosexuals in Tanzania. The documentary evidence cited is drawn
from a variety of reliable and independent sources, none of which have any
vested interest in the outcome of this claim. While there are some
inconsistencies among sources, the preponderance of the current objective
evidence regarding treatment of homosexuals in Tanzania suggests that the laws
against homosexuality in Tanzania are rarely enforced, no reports that anyone was punished
under the law during the year and that homosexuals faced societal
discrimination.
[My emphasis.]
The Applicant has provided insufficient
objective evidence that the societal discrimination faced by homosexuals
amounts to persecution.
There is insufficient objective evidence
before me to indicate that the Applicant would be incarcerated for being
bisexual/homosexual upon return to Tanzania
today.
[15]
The
PRRA Officer also commented on an undated article titled “Homosexuality on the
rise say Muslim clerics”. Her research dates this article to 2005. She analyzed
this document in these terms:
The article indicates that youth
homosexuality is on the rise along east Africa’s Indian Ocean coast. Despite the harsh penalties the
clerics complained that homosexuality has resurfaced on Zanzibar. Despite the laws, they
lamented that it was difficult to successfully prosecute alleged homosexuals in
court, suggesting that alternate methods of preventing the practise might have
to be found. Nearly all of Zanzibar’s one million people are
Muslims who have over the years fought against homosexuality. Police arrested
the clerics for assault in the May 12 incident in which the clerics were
accused of attacking a man in Zanzibar who was allegedly planning to
marry his male partner from Mombassa.
I have read and considered this article
however it does persuade me that the Applicant would be incarcerated for his
sexual orientation upon return to Tanzania
today.
The H&C decision
[16]
As
noted, the PRRA Officer decided the Applicant’s H&C decision under the
rubric of “unusual, undeserved or disproportional hardship”. She noted, apart
from his brother Cassim being with him in Canada, the Applicant’s family lived
in Tanzania. On his
establishment in Canada, she noted his arrival in October of 2005, his
employment full time as a manager and cook at Pizza Pizza since July 2007, his
studies at Durham College and
his community volunteering.
[17]
As
previously mentioned, her risk analysis is in terms similar to what she had
written in her PRRA decision. She asked herself the question whether the risk
identified by the Applicant that if returned to Tanzania would amount to
unusual and undeserved or disproportionate hardship in order to make an
application for permanent residence to Canada which is what IRPA requires, i.e.
such an application be made outside Canada. She concluded in the
negative because the Applicant had not established he was either a homosexual
or bisexual and would not be at risk to his life upon his return in his country
of origin.
Analysis
[18]
The
law is clear the Applicant in order to obtain a stay must establish: 1) a
serious issue to be tried; 2) irreparable harm if the stay is not granted; and,
3) the balance of convenience favours him.
The PRRA decision
a) Serious issue
[19]
Counsel
for the Applicant proposed the following as serious issues:
1) The PRRA
Officer rejected the Applicant’s evidence because it did not believe him (a
credibility finding), yet did not interview him as required by law; and,
2) The PRRA
Officer misread the evidence on country conditions for homosexuals in Tanzania as well as
the evidence provided by a law firm in Dar es Salaam.
[20]
I
do not see any serious issue raised even on the lower threshold of there being
merely an arguable case which is one which has some merit, i.e. is not
frivolous and vexatious.
[21]
The
PRRA Officer did not make an adverse credibility finding in respect of the
Applicant in terms of not believing he was a homosexual. A plain reading of her
decision clearly shows she did not find the evidence the Applicant had provided
sufficient to establish he was a homosexual or was a bisexual. The PRRA
Officer’s conclusion is a finding of fact which commands considerable deference
from the Courts and in the case of Federal Tribunals reflects the will of
Parliament through the enactment of section 18.1(4)(d) of the Federal Courts
Act (see the recent decisions of the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, at paragraph 53 and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, at paragraphs 3 and 46).
[22]
It
seems to me the analysis which my colleague Justice Zinn in Ferguson v. Canada
(Minister of Citizenship and Immigration), 2008 FC 1067 to which I entirely subscribe, is on point.
[23]
The
Applicant attempted to repair the deficiency in his evidence about his
homosexuality by providing evidence of a new homosexual relationship since late
December 2007. That evidence was not before the PRRA Officer and cannot nurture
a serious issue. Moreover, it remains uncorroborated.
[24]
Counsel
for the Applicant’s second argument also fails. The PRRA Officer did not err in
assessing the evidence before her. She simply preferred the most current
reports on country conditions which the jurisprudence clearly states is within
her mandate. Again her finding is one of fact which was reasonably open to her
and cannot be said to be capricious or arbitrary.
[25]
The
Applicant has a point on the PRRA Officer’s consideration of the letter from
Nasir Rattansi, dated June 17, 2008, but it is hardly determinative in the
light of Justice Barnes’ decision and the RPD’s finding of adequate state
protection.
b) Irreparable harm
[26]
The
evidence in support of irreparable harm must be clear and convincing and non
speculative. I find the factual underpinnings to the harm of return to be weak
considering no serious issue arises.
c) Balance of convenience
[27]
In the circumstances,
it favours the Minister.
The
H&C decision
[28]
Counsel for the
Applicant raises, as a serious issue, the PRRA Officer applied the wrong test
in determining whether returning to Tanzania to make an application for
permanent residence to Canada would constitute unusual, undeserved or
disproportional hardship.
[29]
He argues the PRRA
Officer applied the section 97 criteria of risk of torture, risk to life or
risk of cruel and unusual punishment which is a higher standard than the
hardship test.
[30]
He
relies on Chief Justice Lutfy’s decision in Pinter v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 366, where it is clearly stated “hardship” in
an H&C application and “risk” in a PRRA application are not equivalent and
must be assessed on a different standard.
[31]
In
the case at hand, the PRRA Officer wrote:
After carefully considering the evidence
before me concerning the Applicant’s fear of returning to Tanzania, I find that
the Applicant has not established that there are probable grounds to believe
that, should he return to Tanzania, there will be a risk to his life that would
subject him personally to a risk that would amount to unusual and undeserved,
or disproportionate hardship.
[32]
I
agree with counsel for the Respondent, this particular sentence is worded
somewhat awkwardly and should not be read in isolation but considered in the
light of the decision as a whole. From that perspective, it is clear to this
Court she asked herself the right question and considered the evidence before
her from the proper hardship lens.
[33]
In
any event, the Applicant has not established irreparable harm or balance of
convenience.
[34]
For
these reasons, the stay application is dismissed. A copy of these reasons is to
be placed in both files.
“François Lemieux”
______________________________
Judge
Ottawa,
Ontario
June 3,
2009
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