Date: 20070330
Docket: IMM-2747-06
Citation: 2007 FC 346
Vancouver,
British Columbia, March 30, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
KHALED
ABD ELMOHSEN ELMAGRABY
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a
decision by a pre-removal risk assessment (PRRA) officer rejecting the
applicant’s PRRA application.
[2]
The
applicant seeks an order quashing the decision of the officer and remitting the
matter for redetermination.
Background
[3]
The
applicant, Khaled Abd Elmohsen Elmagraby, is a citizen of Egypt. His
Personal Information Form (PIF) was included with his PRRA application and
described the circumstances leading to his claim for protection.
[4]
The
applicant claimed that he was detained and tortured in November 1996 for being
actively involved in his Muslim community. His family feared for his safety and
arranged for him to find employment on a ship headed for Jordan. The
applicant indicated that his supervisor assigned him extra work because he
prayed while on the ship. He stated that his supervisor threatened him and knew
about his previous detention. The applicant left the ship and was again
arrested and tortured. He found employment on another ship in October 1998, and
was beaten by the crew and forced to do extra work. On November 20, 1998, his
ship reached Quebec
City.
He was threatened by the crew and told to leave the ship, which he did. He
travelled to Montreal and found a
local mosque where he was advised not to tell anyone about his situation for
fear of being deported.
[5]
The
applicant claimed refugee status four years later, in May 2002, and a hearing
was held on November 6, 2002. He was denied refugee status by decision of the
Immigration and Refugee Board (Refugee Protection Division), dated November 18,
2002. The Board found that the applicant lacked credibility. Leave to seek
judicial review of the Board’s decision was denied on April 11, 2003. The
applicant subsequently applied for a PRRA in January 2006. No interview was
held regarding this application.
[6]
The
applicant’s PRRA submissions indicated that he feared persecution at the hands
of the authorities, who suspected him of involvement with Muslim extremists. He
explained that this suspicion resulted from his involvement with his local
mosque and the Muslim community. He stated that he was tortured by members of
the mosque and the Egyptian authorities, who accused him of being a member of
Jamaat, an anti-government organization. He feared that his profile as an
active member of his Muslim community put him at risk. He stated that the
government would target him and that his life would be in danger.
[7]
By
decision dated March 24, 2006, the applicant’s PRRA application was denied. The
applicant applied for judicial review of the PRRA decision on May 24, 2006. On
June 5, 2006, the Federal Court granted a stay of the applicant’s removal from Canada pending the
determination of this application for judicial review. This is the judicial
review of the officer’s decision.
Officer’s Reasons
[8]
The
officer determined that the applicant would not be subject to a risk of persecution,
danger of torture, risk to life or risk of cruel and unusual treatment and
punishment, if returned to Egypt.
[9]
The
applicant provided written submissions outlining his risk and referred to the
2004 Department of State (DOS) report for Egypt. The officer
read the DOS reports regarding Egypt for 2004 and 2005, which referred to
police mistreatment, torture of detainees, police corruption and the government’s
poor human rights record. However, the officer found that the applicant had not
provided evidence that addressed the credibility concerns noted by the Board.
Under section 113 of IRPA, applicants who have been denied refugee status may
only present new evidence in support of a PRRA. There was insufficient evidence
to persuade the officer that a different conclusion should be reached than was
found by the Board.
[10]
In
Kaybaki v. Canada (Minister of Citizenship and Immigration)
(2004), 128 A.C.W.S. (3d) 784, 2004 FC 32, the Court held that a PRRA was not a
second refugee hearing, since the PRRA process assessed new risk developments
arising between the hearing and removal date. The officer then considered
country conditions. Egypt was a republic with one dominant national party
and a president who was re-elected for a fifth term in 2005. The officer reproduced
a portion of the documentary evidence which indicated that serious human rights
violations took place in Egypt, however, the evidence did not indicate a
notable decline in such conditions. Country conditions therefore had not
worsened significantly since the Board’s decision.
[11]
The
officer did not find that there was more than a mere possibility that the
applicant would be at risk on any Convention ground, or that he was a person in
need of protection. The officer acknowledged that incidents of torture and
cruel and unusual treatment occurred in Egypt, but the
evidence indicating that the applicant would be targeted for such treatment was
insufficient to conclude that it was likely to happen.
Issues
[12]
The
applicant submitted the following issues at the hearing:
1. Where credibility is
in issue, is an oral hearing required?
2. Did the PPRA officer
misread section 113 of IRPA?
3. Did the PRRA officer
make a perverse decision with respect to any changes in country conditions?
Applicant’s Submissions
[13]
The
applicant submitted that the errors of law committed by the officer were
reviewable on a correctness standard, while errors of fact were subject to
review on the standard of patent unreasonableness. It was submitted that the
officer’s decision as a whole was reviewable on the standard of reasonableness
(see Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, (1999) 174 D.L.R.
(4th) 193).
[14]
The
applicant noted that although credibility findings were central to the officer’s
decision, he was not accorded an interview. It was submitted that the officer
therefore breached the rules of natural justice. It was submitted that the
applicant’s rights pursuant to subsection 113(b) of IRPA had been violated, as
a hearing had not been held despite serious credibility concerns (see Tekie v.
Canada (Minister of
Citizenship and Immigration) (2005), 50 Imm. L.R. (3d) 306, 2005 FC 27). The applicant
submitted that where the prescribed statutory factors were met, the word “may”
in a statute must be read as mandatory (see Bitumar v. Canada (Minister of
Energy, Mines and Resources) (1986), 4 F.T.R. 98, 38 A.C.W.S. (2d) 87
(F.C.T.D.)).
[15]
The
applicant submitted that the officer erred in restricting his assessment of the
PRRA application to new evidence, in isolation. It was submitted that the PRRA
process was not meant to be applied in a restricted fashion. The applicant
acknowledged that the PRRA was not an appeal of the Board’s decision, but
submitted that the consideration of a claim under section 97 of IRPA should not
merely consist of a reiteration of the Board’s decision, without independent
analysis. It was noted that the Board’s decision did not even consider his
claim under section 97. The applicant submitted that the officer not only refused
to exercise his jurisdiction, but breached the rules of natural justice in his
application of subsection 113(a) of IRPA.
[16]
The
applicant submitted that the officer exceeded his jurisdiction by applying too
stringent a test to his claim under section 97 of IRPA. It was submitted that
the officer erred in ignoring the parameters of section 97, and requiring that
the applicant “likely” be targeted for mistreatment. It was submitted that this
test was higher than that of a “balance of probability”.
[17]
The
applicant submitted that the officer erred with respect to his conclusions
regarding country conditions and new evidence. The officer concluded that
conditions in Egypt had not
worsened since 1998. However, it was submitted that there was no indication that
the officer consulted anything other than the 2004 and 2005 DOS reports, and no
mention was made of evidence from 1998. It was submitted that the country
condition findings were perverse, as they were negated by the very documents
cited, without any analysis of their bearing upon the applicant. The applicant
submitted that the officer erred in failing to consider his need for protection
under section 97, in light of this relevant evidence (see Toro v. Canada
(Minister of Employment and Immigration), [1981] 1 F.C. 652 (C.A.)). The
applicant submitted that the officer’s analysis also constituted a breach of
his right to written reasons (see Baker above).
Respondent’s Submissions
[18]
The
respondent noted that most PRRA applications were decided on the basis of
written submissions. It was submitted that hearings were held in exceptional
cases, where the prescribed factors indicated that one was necessary. The
respondent submitted that the factors set out in section 167 of the Immigration
and Refugee Protection Regulations, S.O.R./2002-227 (the Regulations), were
cumulative. It was submitted that the fact that the officer referred to
credibility findings made by the Board did not entitle the applicant to a
hearing (see Selliah v. Canada (Minister of Citizenship
and Immigration) (2004), 256 F.T.R. 53, 2004 FC 872).
[19]
The
respondent submitted that the PRRA was not a second refugee hearing. It was
submitted that the applicant failed to demonstrate that there were changes in
his personal situation, or in country conditions, which placed him at risk (see
Kaybaki above). The respondent submitted that it was open for the
officer to depend upon the Board’s findings (see K.G. v. Canada (Minister of
Citizenship and Immigration) (2005), 137 A.C.W.S. (3d) 1012, 2005 FC 176). It was
submitted that a PRRA assessment by way of written submissions complied with
the principles of fundamental justice (see Suresh v. Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1).
[20]
The
respondent submitted that the officer’s decision disclosed that he had turned
his mind to the relevant issues and considered the evidence (see Augusto
v. Canada (Solicitor
General)
(2005), 139 A.C.W.S. (3d) 349, 2005 FC 673). It was submitted that the officer
distinguished evidence that post-dated the hearing, and reviewed whether it was
sufficient to satisfy the test for protection under IRPA.
[21]
The
respondent submitted that the officer applied the correct threshold of risk to
the applicant’s case. It was submitted that nothing in law supported the
suggestion that a threshold of “likely” was different than “more likely than
not”. The respondent submitted that the fact that the decision did not discuss
the risks under sections 96 and 97 of IRPA separately was not a reviewable
error. It was submitted that where the facts in support of each claim were the
same, the decision-maker was not required to analyse each section separately
(see Brovina v. Canada (Minister of
Citizenship and Immigration) (2004), 130 A.C.W.S. (3d) 1002, 2004 FC
635). The respondent submitted that the applicant was simply rearguing his case
and inviting the Court to reweigh the evidence that was before the officer. It
was submitted that the Court should not do so (see Mekolli v. Canada (Minister of
Citizenship and Immigration) (September 9, 2003), IMM-4974-03 (F.C.T.D)).
Analysis and Decision
Standard of Review
[22]
Justice
Mosley applied the pragmatic and functional approach in order to determine the
standard of review of applicable to a PRRA decision in Kim v. Canada (Minister
of Citizenship and Immigration) (2005), 272 F.T.R. 62, 2005 FC 437, and
concluded as follows at paragraph 19:
Combining
and balancing all of these factors, I conclude that in the judicial review of
PRRA decisions the appropriate standard of review for questions of fact should
generally be patent unreasonableness, for questions of mixed law and fact,
reasonableness simpliciter, and for questions of law, correctness. I am
fortified in my conclusions by the positions taken by my colleagues in other recent
PRRA decisions.
I would adopt Justice Mosley’s conclusion and will
apply the relevant standards to the issues in the case at hand.
[23]
I
propose to deal first with Issue 3.
[24]
Issue
3
Did the PRRA officer make a
perverse decision with respect to any changes in country conditions?
Page 3 of the officer’s notes
to file reads in part, as follows:
. . . I find that the applicant presents
insufficient evidence to persuade me to come to a conclusion different than
that of the RPD. I also find that country conditions have not worsened
significantly in Egypt since the RPD decision.
. . .
As per paragraph 113(a) of IRPA, an
applicant whose claim to refugee protection has been rejected may present only
new evidence. Insufficient new evidence has been received. I have read the
applicant’s Refugee Protection Division Decision and the PRRA application and
submissions. As I find that insufficient new evidence is presented and that no
new risk developments are presented, I will assess general country conditions.
. . .
And at page 4 of the officer’s notes to
file:
Although current documentary evidence
notes serious human rights issues in Egypt,
I do not find that the evidence indicates a notable decline in country
conditions. I do not find that conditions have worsened since the applicant’s
refugee hearing.
[25]
The
Board’s decision was dated November 18, 2002, and the hearing was held on
November 6, 2002. The Board made reference to the documentary evidence only
once and stated:
According to documentary evidence, it is
stated in part under religion:
Under the Constitution, Islam is the
official state religion and primary source of legislation . . .
Neither the Constitution nor the Civil
and Penal Codes prohibit proselytizing . . .
The Constitution requires schools to offer
religious instruction. Public and private schools provide religious instruction
according to the faith of the student.
Therefore, the panel finds again the
claimant has fabricated a flimsy story of persecution and torture based on
being a practising Muslim in a Muslim country.
The Board’s decision makes no reference to
country conditions in November 2002.
[26]
The
documentary evidence referred to by the PRRA officer paints a different picture
of country conditions in Egypt in 2004. By way of example, the U.S. DOS Report
for 2004 contains the following excerpts at pages 36 to 38 and 41 of the
tribunal record:
The Government respected human rights in
some areas; however, its record was poor, and in many areas serious problems
remained. Citizens did not have the meaningful ability to change their
government. The use of military courts to try civilians and Emergency Courts to
try political cases continued to infringe on a defendant’s constitutional right
to a fair trial before an independent judiciary. The 1981 Emergency Law,
extended in February 2003 for an additional 3 years, continued to restrict many
basic rights. The security forces contained to mistreat and torture prisoners,
arbitrarily arrest and detain persons, hold detainees in prolonged pretrial detention,
and occasionally engage in mass arrests. Local police killed, tortured, and
otherwise abused both criminal suspects and other persons. Police continued to
arrest and detain homosexuals. The Government partially restricted freedom of
the press and significantly restricted freedom of assembly and association. The
Government placed some restrictions on freedom of religion. . . .
a. Arbitrary and Unlawful Deprivation
of Life
There were no reports of political
killings; however, during the year, human rights organizations and the press
reported that at least 10 persons died in custody at police stations or
prisons.
In June, the Egyptian Organization for
Human Rights (EOHR) issued a report entitled “Torture: An Unchecked Phenomena,”
in which it documented 41 cases of torture in police stations resulting in 15
deaths in custody from April 2003 to April 2004. EOHR also asserted that from
April 1993 to April 2004, it documented 412 cases of torture in police
stations, including 120 cases where detainees died as a direct result of
torture.
. . .
The Constitution prohibits the infliction of
"physical or moral harm" upon persons who have been arrested or
detained; however, torture and abuse of detainees by police, security
personnel, and prison guards remained common and persistent. According to the
U.N. Committee Against Torture, a systematic pattern of torture by the security
forces exists, and police torture resulted in deaths during the year (see
Section 1.a.).
Despite these legal safeguards, there were numerous,
credible reports that security forces tortured and mistreated detainees. Human
rights groups reported that the State Security Investigations Service (SSIS),
police, and other government entities continued to employ torture to extract
information, coerce opposition figures to cease their political activities, and
to deter others from similar activities. Reports of torture and mistreatment at
police stations remained frequent. In prominent cases, defendants alleged that
police tortured them during questioning (see Sections 1.e. and 2.c.). Although
the Government investigated torture complaints in some criminal cases and
punished some offending officers, punishments generally have not conformed to the
seriousness of the offense.
Principal methods of torture reportedly employed
by the police and the SSIS included stripping and blindfolding victims;
suspending victims from a ceiling or doorframe with feet just touching the
floor; beating victims with fists, whips, metal rods, or other objects; using electrical
shocks; and dousing victims with cold water. Victims frequently reported being
subjected to threats and forced to sign blank papers for use against themselves
or their families should they in the future complain about the torture. Some
victims, including male and female detainees and children, reported sexual
assaults or threats of rape against themselves or family members. While the law
requires security authorities to keep written records of detentions, human
rights groups reported that the lack of such records often effectively blocked
investigation of complaints.
Hundreds, perhaps thousands, of persons have been
detained administratively in recent years under the Emergency Law on suspicion
of terrorist or political activity. Several thousand others have been convicted
and were serving sentences on similar charges (see Section 1.e). In a July 2003
interview published in Al-Ahram Weekly, HRAAP (formerly HRCAP) estimated that
the total number of persons held in administrative detention was approximately
15,000.
[27]
The applicant claimed that the authorities believed that he was involved
with Muslim extremists. Having reviewed the index of references and the PRRA
officer’s decision, I cannot find any reference to documentary evidence
regarding country conditions in Egypt in November 2002. In my view, the PRRA
officer’s finding that “country conditions have not worsened significantly in Egypt
since the RPD decision” is problematic. First, the officer would have needed to
consider country conditions in November 2002 before concluding that country
conditions had not worsened by the time of the PRRA decision. The officer’s
decision did not demonstrate any knowledge of country conditions in 2002, nor
did the sources referred to include any such information. Secondly, the very
document referred to by the officer paints a very different picture of country
conditions than is set out in the Board’s November 2002 decision. Whether it
is the case that the officer did not have any knowledge of country conditions
in 2002, or that the conditions mentioned by the Board were used as references,
it is clear that the 2004 DOS report referred to by the officer did not show
that conditions had not worsened since the date of the Board’s decision.
[28]
It
is my opinion that the officer’s decision on country conditions is patently
unreasonable. The application for judicial review is therefore allowed.
[29]
Because
of my finding on this issue, I need not deal with the other issues.
[30]
The
applicant requested that I certify the following questions as serious questions
of general importance:
1. Is a hearing (interview)
statutorily, or constitutionally, required pursuant to the IRPA and IRPA
Regulations, in a PRRA assessment, where issues of credibility are in issue?
2. Is “evidence” to be considered
on a PRRA assessment only the “new evidence”, or is the PRRA only triggered by
the “new evidence” but once triggered all the evidence considered in the
assessment?
3. Is the test of “likely to
happen” higher than a “balance of probability” (more likely than not) test?
[31]
The
respondent opposed the certification of the foregoing questions.
[32]
I
am not prepared to certify these questions.
JUDGMENT
[33]
IT
IS ORDERED AND ADJUDGED that:
1. The application for
judicial review is allowed and the matter is referred to a different panel of
the Board for redetermination.
2. None of the proposed
questions will be certified as serious questions of general importance.
"John
A. O'Keefe"
ANNEX
Relevant
Statutory Provisions
The relevant
statutory provisions are set out in this section.
The Immigration
and Refugee Protection Act, S.C. 2001, c. 27:
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96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97.(1)
A person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques:
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.(1)
A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée:
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant:
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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