Toronto, Ontario, February 23, 2006
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
NADA EL FAKI
FARAS MOHAMED ALI
AMR MOHAMED ALI
OULLA MOHAMED ALI
LEENA MOHAMED ALI
and
THE SOLICITOR GENERAL OF CANADA
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a negative Pre-Removal Risk Assessment ("PRRA") dated September 14, 2004. At the conclusion of the hearing I indicated that I would allow the application and provided brief oral reasons. This is to record and elaborate upon those reasons.
[2] As a preliminary matter, the style of cause will be amended to reflect the change of ministerial responsibilities in which the PRRA decision making function was returned to the Minister of Citizenship and Immigration.
[3] The applicants are a family from Sudan. They arrived in Canada via the United States in September 1999 and made a refugee claim based on the fear of persecution by the Sudanese government for their support of the UMMA party. The principal applicant, Mohamed Elsheikh Ali, was a member of the UMMA opposition party in Sudan and supported the Sudanese human rights movement while the family resided in Saudi Arabia.
[4] When they returned to Sudan, Mr. Ali was briefly detained, interrogated and told to report back in 30 days. His passport was seized. The applicant did not report and he and his family were smuggled out of Sudan.
[5] The Convention Refugee Determination Division ("RDD") determined the applicants not to be Convention refugees in May 2001. Based on the documentary evidence before the RDD at the time, the member concluded that the applicant did not have the kind of political profile as an opponent that would attract attention from Sudanese authorities amounting to persecution. The applicants' Application for Leave and Judicial Review of the decision of the RDD was dismissed on October 17, 2001.
[6] The applicants then applied to be able to stay in Canada under the Post-Determination Refugee Claimants Class ("PDRCC"). No decision on that application was made prior to the coming into force of the Immigration and Refugee Protection Act S.C. 2001 c. 27 ("IRPA"). The applicant was converted into an application for a PRRA and the applicants took the opportunity to make further submissions, which they did in January 2003. Their PRRA application was denied on September 14, 2004.
[7] The principal issue in these proceedings was whether the PRRA officer ignored new evidence submitted by the applicants in arriving at her decision. As a secondary issue, the applicants allege that they were denied procedural fairness by the failure of the officer to disclose documents that she had accessed from the Internet and relied upon in making her findings with respect to changed country conditions.
[8] As I have concluded that the application must be granted on the primary ground, I do not propose to analyse the fairness issue. However, for the guidance of the next officer who will consider the matter, fairness requires disclosure of readily accessible public domain information where it is novel and significant and where it evidences changes in the general country conditions that may affect the decision:Mancia v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 461, 161 D.L.R. (4th) 488 (F.C.A.)
[9] With respect to the standard of review of a PRRA decision, I rely on the pragmatic and functional analysis conducted in Kim v. Canada(Minister of Citizenship and Immigration), (2005) 30 Admin. L.R. (4th) 131, 2005 FC 437. Thus 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. When the decision is considered "globally and as a whole" the standard should be one of reasonableness: Figurado v. Canada(Solicitor General), [2005] 4 F.C.R. 387, 2005 FC 347.
[10] The reasonableness standard requires that there be some line of analysis within the reasons that could reasonably lead the officer from the evidence before her to the conclusion at which she arrived and can withstand a somewhat probing scrutiny: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20 at para.55.
[11] As stated by Justice Judith A. Snider in Marin v. Canada(Minister of Citizenship and Immigration), (2004) 135 A.C.W.S. (3d) 917,2004 FC 1683 at para. 10, it is not necessary for a PRRA officer to refer to every piece of documentary evidence. There is a presumption that the officer has considered all of the evidence and a review of the decision as a whole will normally inform the reviewing judge as to whether the officer was aware of and considered all of the evidence.
[12] The applicants' case, essentially, is that the officer relied on the prior determination of their refugee claim and ignored the new evidence they submitted including letters from the PDF and the security services of the Sudanese Ministry of Defence and a letter from the chairman of the Sudanese Human Rights Group ("SHRG"). The respondent invites me to conclude that it is clear that the officer considered all of the applicants' evidence, as she said that she did, and that it is otherwise implicit in her analysis of the claim.
[13] Indeed, the officer did deal with the question of whether Mr. Ali was at risk of being conscripted into the Sudanese army and concluded, reasonably, that considering his age (48) there was a slight but improbable risk. But the officer did not address the letters received from the security services directing Mr. Ali to report. These did not relate to the conscription issue but contradicted the RDD's finding that the applicant did not have sufficient "profile" to have problems with the authorities. Further, the SHRG chairman's letter identified him as an active supporter of the group among the Sudanese expatriates in Saudi Arabia and the Gulf States. The officer also had before her objective third party documentary evidence indicating human rights abuses by the Sudanese government including the arrest of the SHRG chairman.
[14] In my view, the officer should have at minimum addressed the documentary evidence before her and provided a reason for rejecting it. The authenticity of the documents was not questioned. The officer should have provided an explanation for why they did not carry any weight in her determination. As Justice Evans (as he then was) explained in Cepeda-Gutierrez v. Canada(Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, [1998] F.C.J. No. 1425 at para. 17 (F.C.T.D.) (QL), "the more important the documentary evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact 'without regard to the evidence."
[15] In the circumstances, I draw that inference and find that the PRRA assessment in this instance was made perversely and capriciously and without regard to the evidence. Accordingly, the factual determinations were patently unreasonable and the assessment, considered globally, was unreasonable.
[16] No questions of general importance were proposed and none are certified.
ORDER
THIS COURT ORDERS that
1. the style of cause is amended to substitute the Minister of Citizenship and Immigration as respondent for the Solicitor General;
2. the application is granted and the matter is remitted for reconsideration by a different risk assessment officer;
3. no questions are certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8683-04
STYLE OF CAUSE: MOHAMED ELSHEIKH ALI
NADA EL FAKI
FARAS MOHAMED ALI
AMR MOHAMED ALI
OULLA MOHAMED ALI
LEENA MOHAMED ALI
Applicants
and
SOLICITOR-GENERAL OF CANADA
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 22, 2006
REASONS FOR ORDER
APPEARANCES:
| Jack Martin |
|
|
Ladan Shahrooz |
|
SOLICITORS OF RECORD:
|
Jack Martin, Toronto, Ontario |
|
|
John H. Simms, Q.C. Deputy Attorney General of Canada
|
|