Date:
20130418
Docket: IMM-7116-12
Citation: 2013 FC 398
Calgary, Alberta, April 18, 2012
PRESENT: The Honourable Madam Justice
Gleason
BETWEEN:
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WAEL
MASAOUD KHALIFA DAWOUD
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Applicant
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and
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THE MINISTER OF PUBLIC
SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of the April 19, 2012
decision of a Senior Immigration Officer [the PRRA officer or officer] of the
Backlog Removal Office of Citizenship and Immigration Canada in Niagara Falls, Ontario, refusing the applicant’s pre-removal risk assessment [PRRA]
application.
[2]
The applicant is a citizen of Libya of Amazigh (or Berber)
ethnicity who alleged fear of persecution in Libya at the hands of the regime
of the country’s former leader, Colonel Moammar Gaddafi. The PRRA officer
rejected the applicant’s claim in light of the uprising in Libya in 2011 as
part of the Arab Spring and the fact that Gaddafi had been killed and his
regime was no longer in power. The officer reasoned that given the “high
profile and media interest generated by the situation in Libya,” it was reasonable to expect that the applicant was aware of the changes that had
occurred in that country. As the applicant had submitted no evidence regarding
any risks that he would now face in the new climate in Libya, the officer rejected his PRRA.
[3]
In the present application, the applicant asserts that he had a
right to “[be] informed of the PRRA officer’s inclinations to reach
conclusions based on recent developments” in Libya, following the fall of the
Gaddafi regime, and that the officer’s failure to disclose the articles upon
which he relied violated the applicant’s rights to procedural fairness.
[4]
A claim of a violation of procedural fairness is one to be
determined by the Court; no deference to the officer is appropriate (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 43;
Vasanthakumar v Canada (Minister of Citizenship and Immigration), 2012
FC 74 at para 6 [Vasanthakumar]).
[5]
In my view, the key question when considering whether there was a
violation of procedural fairness is whether the applicant was “deprived of a
meaningful opportunity to fully and fairly present [his] case as to risk” (Al
Mansuri v Canada (Minister of Public Safety and Emergency Preparedness),
2007 FC 22 at para 52). In arguing that he was, the applicant relies upon the
statement of the Federal Court of Appeal in Mancia v Canada (Minister of
Citizenship and Immigration), [1998] 3 FC 461, 147 FTR 307 that:
[W]ith respect to documents relied
upon from public sources in relation to general country conditions which became
available and accessible after the filing of an applicant’s submissions,
fairness requires disclosure by the [PRRA] Officer where they are novel and
significant and where they evidence changes in the general country conditions
that may affect the decision.
[Emphasis added.]
[6]
Thus, I must consider whether the information relied on by the
officer should be considered to be “novel and significant [… and to] evidence
changes in the general country conditions that may affect the decision”.
There is no doubt that the fall of the Gaddafi regime was a significant
event that directly impacted upon the PRRA decision in the applicant’s case.
The only issue is whether it can properly be considered to be “novel” at the
time the decision was rendered in April of 2012.
[7]
Some context is necessary to understand the applicant’s claim.
The applicant filed his PRRA materials on June 13, 2011, and qualified his risk
as one from the Gaddafi regime. He noted that the Libyans of Amazigh ethnicity
were at the forefront of the uprising against the regime, thereby putting the
uprising at issue in his submissions. Gaddafi was killed on October 20, 2011.
The decision was rendered almost exactly six months later, on April 19, 2012.
There is no doubt that the officer’s conclusion that the applicant must have
been aware of the fall of the regime is reasonable, given the applicant’s
background, the fact he had family members in Libya and the wide-spread media
coverage of the overthrow of the regime.
[8]
In the decision, the officer relied on the
impugned articles for two points only: first, to highlight the date of the
overthrow of the regime, and second, to underscore that the Amazigh had
been particularly targeted by the Gaddafi regime. The latter point was not a
new one; indeed, it was raised by the applicant in his PRAA submissions. And,
as noted, the applicant cannot credibly claim that he was taken by surprise by
the consideration the officer gave to the fall of the regime when the essence
of his PRAA claim centered on the risk posed by that regime.
[9]
I find the present case to be comparable to the decision of
Justice Mactavish in Vasanthakumar, where she found that the decisions
cited to her relying upon the so-called “Mancia exception” (noted above) could
be distinguished as they were rendered during a time of significant turmoil and
changing conditions in Sri Lanka (from late 2008 through early 2009) and the
events in question were no longer novel when the PRRA (in her case) was decided
almost two years later.
[10]
In the present case, while the elapsed timeframe between the
events and the decision was undoubtedly shorter, the significant event was more
decisive in that the leader that was the source of the applicant’s claimed fear
(Gaddafi) was killed six months prior to a decision being rendered in his PRRA
decision. Bearing in mind that it is the burden of the applicant to establish
that he will be at risk if returned to his home country, as well as the
notoriety of the fall of Gaddafi, and the fact that the applicant was
represented by counsel, I cannot conclude that the applicant was “denied a
meaningful opportunity to fully and fairly present his case” in the present
circumstances. I thus conclude that there was no violation of procedural
fairness.
[11]
For the preceding reasons, this application is
dismissed. No question for certification was proposed and none is appropriate
given the fact-specific nature of my decision.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
The application for judicial review is dismissed;
2.
No question is certified under section 74 of the
Immigration and Refugee Protection Act, SC 2001, c 27;
3.
There is no order as to costs.
"Mary J.L. Gleason"
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