Date: 20070726
Docket: IMM-2363-07
Citation: 2007 FC 772
Ottawa, Ontario, July 26,
2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
Ahmed
DJEBLI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and THE MINISTER OF
PUBLIC
SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
The
Applicant is scheduled to be removed from Canada on July 31,
2007. He seeks a stay of his removal until the underlying application for
judicial review of the decision dated, April 26, 2007, by the Pre-Removal
Risk Assessment (PRRA) Officer, has been determined by this Court.
[2]
Most
recently, this Court has confirmed that when a PRRA decision is considered as a
whole, the applicable standard of review should be reasonableness
simpliciter; however, findings of fact made by a PRRA officer are only
reviewable by this Court if they are patently unreasonable. (Chong v. Canada (Minister of
Citizenship and Immigration), 2007 FC 584, [2007] F.C.J. No. 791 (QL), as
stated by Justice Pierre Blais.
[3]
This
Court has also stated that PRRA Officers have a specialized expertise in risk
assessment, and that their findings are usually fact driven. The weighing of
evidence is also a factual determination. Accordingly, findings of fact and the
weighing of evidence should attract considerable deference from a reviewing
Court. (Selliah
v. Canada (Minister of Citizenship and Immigration), 2004 FC 872, [2004]
F.C.J. No. 1134 (QL) at para. 16; Kim v. Canada (Minister of
Citizenship and Immigration), 2005 FC 437, [2005] F.C.J. No. 540 (QL) at
para. 19; Ray v. Canada (Minister of Citizenship and Immigration), 2006 FC 731, [2006]
F.C.J. No. 927 (QL) at paras. 28-29.)
[4]
The
Applicant has failed to demonstrate that any of the PRRA Officer’s findings of
fact are patently unreasonable, or that, as a whole, the decision is
unreasonable.
[5]
The
Applicant has not established the existence of a serious issue in relation to
the underlying judicial review application. Since all three elements of the
tri-partite test set out in Toth v. Canada (Minister of Employment
and Immigration)
(1988), 86 N.R. 302 (F.C.A.), must be proven by the Applicant, this
motion should be dismissed for that sole reason.
[6]
The
Applicant has similarly failed to establish that he will suffer irreparable
harm if he is returned to Algeria. Nor has he shown that the balance of convenience is in his
favour. (Toth, above; MacDonald Inc. v. Canada (Attorney
General), [1994] 1 S.C.R. 311 (S.C.C.); Wang v. Canada (Minister
of Citizenship and Immigration), (2001) 3 F.C. 682; Mikhailov v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 642 (QL).)
[7]
For
these reasons as well, his motion for a stay of his removal should be
dismissed.
PRELIMINARY REMARK
[8]
As
a preliminary matter, it should be noted that there is no statutory stay in
this case since the circumstances described in sections 231 and 232 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (Regulations), more
specifically, section 232(c) thereof, no longer apply to the Applicant;
therefore, the only remedy that was available to him is a judicial stay under
section 18.2 of the Federal Courts Act, R.S.C., 1985, c. F-7.
FACTS
[9]
On
September 8, 1999, the Applicant was admitted to Canada as a member
of the crew of a vessel owned by an Algerian state company. On September 10,
1999, the Applicant deserted this vessel. Five days later, on September 15,
1999, the Applicant claimed refugee status.
[10]
On
March 24, 2000, the Immigration and Refugee Board (IRB) rejected the
Applicant’s claim. The IRB did not believe the Applicant’s story to the effect
that he was persecuted by two individuals who wanted him to assist them to
leave Algeria
clandestinely on the ship of which he was a crew member. (IRB Decision
dated, March 24, 2000, Exhibit “E” to Sylvie Boutin’s affidavit at pps. 23–27
of the Respondent’s Motion Record.)
[11]
On
May 8, 2000, the Applicant filed an application for permanent residence in
Canada as a member of the post-determination refugee claimants in Canada class
(PDRCC); however, the study of this application was deferred due to the
temporary suspension of removals to Algeria ordered by the then Minister of Citizenship
and Immigration (Minister). (1st page of PDRCC application &
internal document indicating study of PDRCC claim to be deferred, Exhibit “F”
to affidavit of Sylvie Boutin at pps. 29-30 of the Respondent’s Record.)
[12]
On
August 2, 2000, this Court rejected the Applicant’s application for leave and
judicial review of the negative decision of the IRB. (Order of Justice Pierre
Denault dated, August 2, 2000, Exhibit “G” to Sylvie Boutin’s affidavit,
Respondent’s Record at p. 32.)
[13]
On
April 5, 2002, the Minister lifted the temporary suspension of removals to Algeria. (Affidavit
of Sylvie Boutin at para. 14, Respondent’s Record at p. 10.)
[14]
On
January 29, 2003, the Applicant applied for permanent residence in Canada based on
humanitarian and compassionate considerations (H&C). On February 26, 2003,
the Applicant was advised that his application had been transferred to the “Ministère
des Relations avec les Citoyens et de l’Immigration du Québec” (MRCI) pursuant
to the joint programme established for Algerians by the governments of Quebec
and of Canada. (Affidavit
of Sylvie Boutin at para. 15, Respondent’s Record at p. 34.)
[15]
On
October 28, 2003, the MRCI concluded that the Applicant’s integration into Canada was
insufficient to warrant granting his application for permanent residence. (MRCI
Decision dated, October 28, 2003, Exhibit “I” to Sylvie Boutin’s affidavit,
Respondent’s Record at pps. 36-40.)
[16]
On
March 17, 2006, after receiving an updated in-Canada application for permanent
residence from the Applicant on March 7, 2003, his case was evaluated for a
second time by a Canadian immigration officer. The latter determined that the
Applicant’s integration into Canada was minimal. Furthermore, the immigration
officer also considered the Applicant’s allegation that he risked imprisonment
for deserting his ship, if he were to return to Algeria. The
immigration officer considered recent documentary evidence, and concluded that
the treatment of prisoners and the conditions of detention in Algeria had
significantly improved; therefore, the immigration officer concluded that
sufficient humanitarian and compassionate considerations did not exist to
warrant exempting the Applicant from the requirement that he apply for
permanent residence from outside of Canada. (Applicant’s update of his H&C
application, Decision and Notes to file of Immigration Officer, Exhibit “J” to
Sylvie Boutin’s affidavit at pps. 42-55, Respondent’s Record.)
[17]
On
October 25, 2006, the Applicant was called in for an interview by Canadian
immigration authorities and advised of his right to apply for a Pre-Removal
Risk Assessment (PRRA). On April 26, 2007, the Applicant’s PRRA application was
dismissed. It is that decision which is the subject of the underlying judicial
review application.
ISSUE
[18]
Has
the Applicant demonstrated that he satisfies the tri-partite test?
ANALYSIS
SERIOUS ISSUE
(a) The PRRA Officer did not misinterpret
the United Nations High Commissioner for Refugees (UNHCR) position paper
related to possible risks for returning Algerians
[19]
The
Applicant argues that the PRRA officer erred in concluding that the UNHCR
position paper dated, December 2004, indicates a risk for returning Algerians,
suspected of links to Islamist movements.
[20]
The
Applicant argues that the UNHCR position paper indicates that there is a risk
for all returning failed asylum seekers. Furthermore, according to his
interpretation of this document, the risk arises by reason of one’s prolonged
absence from Algeria.
[21]
The
Applicant’s argument is tantamount to saying that no country may return failed
asylum seekers to Algeria, when the individuals have been absent from
their country for a prolonged period. This argument is untenable.
[22]
Moreover,
a careful reading of the entire position paper (found at pp. 21-22 of the
Applicant’s Motion Record) demonstrates that the PRRA officer’s interpretation
of this document is reasonable.
[23]
A
recognition exists, for example, in the second paragraph of the said document
that it is stated that there is a concern for returned asylum seekers, because
of the Algerian government’s perception that they may have been involved in
“international terrorism”. In the same paragraph, there is also a reference to “public
reports” that European intelligence agencies have uncovered networks
related to groups proscribed by the United States (U.S.) government after
September 11, 2001. The paragraph goes on to state that it is alleged that
these networks operate in Algeria.
[24]
The
third paragraph states that the UNHCR will not comment on the substance of
these “public reports”; however, it notes that they contribute to the
suspicion with which returned asylum seekers may be viewed, “notably those
persons who have had prior links to Islamist movements”.
[25]
In
the fourth paragraph, the UNHCR refers to the potential risk, associated
with prolonged absence. It is only reasonable to conclude that the meaning of
this statement may only be truly understood if one considers the context, that
is, the content of the document, as a whole.
[26]
The
plain and ordinary meaning of the UNHCR position paper is as stated by the PRRA
officer. Returned asylum seekers with prior links to Islamist movements may be
at risk.
[27]
Since
the Applicant does not fit this profile, the PRRA officer reasonably concluded
that he was not at risk simply because he is returning to Algeria after a
prolonged absence.
[28]
Further
support exists for the PRRA officer’s interpretation of the UNHCR position
paper which is provided in the document, as cited at footnote 15, of her
decision. This document is a Response to Information Request (RIR) prepared by
the IRB, which was posted on the UNHCR website. (Affidavit of Mélanie Leduc,
Exhibit “A”.)
[29]
After
citing the UNHCR position paper, the RIR stated that “No further information on
the treatment of failed refugee claimants returned to Algeria […] could be
found among the sources consulted by the Research Directorate.” This RIR,
however, also states, amongst other matters, the following:
- An article in The
Guardian indicated that, in 2002, 55 of the 1,330 “failed asylum
seekers” in the UK were returned to Algeria, while
in April 2005, “nearly all [were] returned”;
- In 13 December 2005
correspondence with the Research Directorate, an official with the Canada
Border Services Agency (CBSA) indicated that:
At no point during the removal process
are foreign authorities informed that an individual has made a refugee claim in
Canada…
- According to Mohammed
Sekkoum, chairman of the Algerian Refugee Council in Britain, “more
than 12,000 Algerians [have] returned to Algeria since
the announcement [by President Abselaziz Bouteflika] of the National Civil
Concord in 1999”;
- Human rights
organizations, however, stated that returnees suspected of terrorism faced
“abusive treatment, including torture”.
[30]
The
RIR cited by the PRRA officer confirms that her interpretation of the UNHCR
position paper was reasonable. It also confirms that many Algerians have
returned to their country since the late 90’s. Moreover, it indicates that
Algerian authorities may not know that the Applicant has made an unsuccessful
refugee claim in Canada. It does not indicate that prolonged absence,
in and of itself, places a returning Algerian at risk.
[31]
Based
on all of the foregoing, the Applicant has not demonstrated that the PRRA
officer erred in her interpretation of the UNHCR position paper.
b) The PRRA Officer did
not err in law in relation to the Applicant’s allegation that he may be
imprisoned for desertion in Algeria
[32]
The
Applicant makes no mention of a critical finding of fact of the PRRA officer,
that is: it is reasonable to assume that if he is sought by Algerian
authorities, as he alleges, other summonses, convocations or warrants would
have been sent to him.
[33]
The
PRRA officer notes that the convocation submitted by the Applicant (page 19 of
the Applicant’s Record) is dated, May 14, 2002. Yet, five years, subsequently,
at the time of the PRRA evaluation, no other document is submitted.
[34]
Moreover,
as the PRRA officer notes, she was never provided with an original of the
convocation.
[35]
The
Applicant deserted his ship in September of 1999. It is difficult to understand
why Algerian authorities would wait three years to issue a convocation for
desertion of his ship.
[36]
Moreover,
the wording of the convocation is sparse, to say the least. It makes no mention
of the article of the Algerian penal code under which the Applicant is
allegedly charged, nor does it provide any description of the circumstances of
the offence.
[37]
In
light of the foregoing, it was reasonable for the PRRA officer to conclude that
the convocation does not demonstrate that the Algerian authorities are after
the Applicant.
[38]
Even
if the Applicant possibly faces prosecution under Article 527 of the Algerian
National Code, a simple reading of the wording of that provision of the law,
indicates that a conviction is highly unlikely. Article 527 indicates that a
crew member who deserts his vessel is liable to conviction if he occupies “un
poste de garde ou de sécurité”, and if his desertion causes damages. The
Applicant told the removals officer that he was an assistant mechanic. (Sylvie
Boutin’s Notes to File, Exhibit “L” to her affidavit at pp. 71-72 of the
Respondent’s Record.)
[39]
In
light of the foregoing, the statements in paragraphs 10 and 11 of the
Applicant’s Written Representations that “Mr. Djebli fears extended detention”
and that he “faces a mandatory prison sentence” appear to be without any
foundation.
[40]
Although
the PRRA officer discussed the monetary fine at page 5 of her decision, at page
1, under the heading, “Risques allégués par le demandeur”, she specifically
referred to the Applicant’s allegation that he faces prosecution under an
Algerian law that punishes desertion by imprisonment. Moreover, starting at
page 5, after discussing the possibility of a fine, the PRRA officer discussed
legal rights afforded by the Algerian justice system, and prison conditions.
Her concluding paragraph under the heading “Conditions de détention” indicates
that, even if the Applicant were to be imprisoned, she is satisfied that his
rights would be respected.
c) The PRRA officer did
not err in law in concluding that the Algerian law in question was not
excessive or contrary to international norms
[41]
The
Applicant argues that the Algerian penalties for desertion are grossly
disproportionate when one considers the nature of the offence. He argues that
the PRRA officer should have considered whether such imprisonment constitutes
cruel and unusual punishment.
[42]
Yet,
the Applicant does not provide any jurisprudence that specifically supports his
argument that imprisonment for deserting a ship would constitute cruel and
unusual punishment.
[43]
In
Zolfagharkhani v. Canada (Minister of Employment and Immigration),
[1993] 3 F.C. 540 (C.A.), [1993] F.C.J. No. 584 (QL), the Federal Court of
Appeal established the following general propositions in relation to the issue
as to whether a law of general application is persecutory:
[19] After this
review of the law, I now venture to set forth some general propositions
relating to the status of an ordinary law of general application in determining
the question of persecution:
[20] (1) The
statutory definition of Convention refugee makes the intent (or any principal
effect) of an ordinary law of general application, rather than the motivation
of the claimant, relevant to the existence of persecution.
[21] (2) But the
neutrality of an ordinary law of general application, vis-à-vis the five
grounds for refugee status, must be judged objectively by Canadian tribunals
and courts when required.
[22] (3) In such
consideration, an ordinary law of general application, even in non-democratic
societies, should, I believe, be given a presumption of validity and neutrality,
and the onus should be on a claimant, as is generally the case in refugee
cases, to show that the laws are either inherently or for some other reason
persecutory.
[23] (4) It will
not be enough for the claimant to show that a particular regime is generally
oppressive but rather that the law in question is persecutory in relation to a
Convention ground.
[44]
According
to the principles established in Zolfagharkhani, above, an ordinary law
of general application, such as article 527 of the Algerian National Code, is
presumed to be valid and neutral. The onus is on the claimant to show that it
is inherently, or for some other reason, persecutory.
[45]
In
that regard, very recently in Hinzman v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 171, [2007] F.C.J. No. 584 (QL) at
paragraphs 46-49, although not dealing specifically with the issue of whether
a law of general application is persecutory, the Federal Court of Appeal
concluded that evidence as to the actual treatment of military deserters in the
U.S., including whether they are usually imprisoned for desertion was highly
relevant to the Applicant’s claim.
[46]
As
to whether imprisonment for desertion is, in and of itself, cruel and unusual,
the Applicant has not undertaken the analysis prescribed in R. v. Smith,
[1987] 1 S.C.R. 1045. Nor has he provided any foundation for his argument that
a sentence of imprisonment for desertion of a ship is so unfit, having regard
to the offence, and the offender, as to be grossly disproportionate.
d) Conclusion
re the question of a serious issue
[47]
In
light of all of the foregoing, the Applicant has not demonstrated that there is
a serious issue in relation to the underlying PRRA decision.
[48]
Since
all of the elements of the tri-partite test must be established, this motion
should be dismissed on this basis alone.
IRREPARABLE
HARM
[49]
The
jurisprudence of this Court establishes that “irreparable harm” implies the
“serious likelihood of jeopardy to an applicant’s life or safety”. (Calderon v. Canada
(Minister of Citizenship and Immigration), [1995] F.C.J. No. 393; Legault v.
Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002]
F.C.J. No. 457 (QL); Kerrutt v. Canada (Minister of Employment and
Immigration) (1992), 53 F.T.R. 93 (F.C.T.D.); Simpson v. Canada (Minister
of Employment and Immigration), [1993] F.C.J. No. 380 (QL).)
[50]
For
the reasons set out above, the Applicant has not demonstrated that he is at
risk as a failed refugee claimant, returning to Algeria.
[51]
The
letter from “Amnistie internationale” is new evidence that was not placed
before the PRRA officer. It is therefore inadmissible in the underlying
judicial review application.
[52]
If
this Court is to consider this letter, in relation to the issue of irreparable
harm, the following should be noted:
- No matter how
well-intentioned, Amnistie internationale should not be permitted to usurp
the functions of the PRRA officer or of this Court;
- This letter speaks
of risk associated with prolonged absence; however, other documentary
evidence associated the risk is one which is coupled with suspicion by
Algerian authorities that an individual has had links to Islamist
movements;
- The letter itself
cites information which speaks of individual at risk of being detained by
the “Département du Renseignement et de la Sécurité” (DRS);
- Moreover, the
letter indicates that the DRS is involved in anti-terrorist activities;
therefore, presumably potential targets are suspected terrorists, or
persons the DRS suspects have links to Islamist movements.
[53]
In
this case, as the PRRA officer noted that the Applicant does not fit this
profile.
[54]
As
to the possibility of imprisonment, it is extremely remote, and most probably
non-existent.
[55]
Even
assuming that imprisonment of the Applicant is possible, the PRRA officer
reasonably concluded that the Applicant would not be at risk in Algeria even if he
were in prison.
BALANCE OF
CONVENIENCE
[56]
Removal
orders must be enforced as soon as is reasonably practicable. Furthermore, it
is trite law that the public interest must be considered when this Court
evaluates whether the balance of convenience favours the Applicant or the
Minister. In this case, in light of all of the foregoing, it is in the public
interest that the Applicant be removed as soon as possible. (Section 48, Immigration
and Refugee Protection Act, S.C. 2001, c.27; RJR-MacDonald Inc. v.
Canada, [1994] 1 S.C.R. 311; Blum v. Canada (Minister of
Citizenship and Immigration) (1994), 90 F.T.R. 54, [1994] F.C.J. No. 1990
(QL) (Justice Paul Rouleau).)
[57]
Therefore,
the balance of convenience favours the Minister. For this reason as well, this
motion for a stay should be dismissed.
CONCLUSION
[58]
For
all of the above reasons, the Applicant’s Motion for a stay of execution of the
removal order is dismissed.
JUDGMENT
THIS COURT ORDERS that the Applicant’s Motion for a stay of execution of the
removal order be dismissed.
“Michel M.J. Shore”
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