Ottawa, Ontario, August 30, 2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
RIMA IBRAHIM
ALI AMMARA
JAWAD AMMAR
Applicants
and
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The most significant issue raised in this application for judicial review is whether an officer conducting a pre-removal risk assessment (PRRA) errs in law by failing to assess the best interests of an applicants’ Canadian-born child. The other issues raised are whether the officer erred by ignoring relevant evidence and whether the officer erred by failing to properly assess the specific risk the applicants are said to face. For the reasons that follow, I have concluded that the officer did not err by failing to consider the best interests of the applicants’ Canadian children, and that in the present case the officer committed no reviewable error in his assessment of the PRRA application.
THE RISKS IDENTIFIED IN THE PRRA
[2] Hassan Jihad Ammar, his wife Rima Ibrahim, and their children Ali and Jawad Ammar are citizens of Lebanon. Mr. Ammar and his wife have two other children who were born in Canada while their parents’ unsuccessful refugee claims were pending. Mr. Ammar filed a PRRA application in which he stated that if returned to Lebanon he would be at risk from the state of Lebanon because of his prior service in the South Lebanese Army (SLA), his travel to Israel and his collaboration with the government of Israel and the Israeli Army. He also stated that he was at risk from Hezbollah.
THE PRRA DECISION
[3] The officer gave comprehensive and thoughtful reasons to support his conclusion that Mr. Ammar would not be subject to a risk of torture, a risk to life, or a risk of cruel and unusual treatment or punishment if returned to Lebanon. The decision is cogently summarized in the Minister’s memorandum of argument and I repeat that summary here:
i) In two separate refugee claims, the applicant was found not to be credible.
ii) The two adult applicants were found ineligible to make a third refugee claim, due to their previous rejections.
iii) In May 2005 the male applicant was found inadmissible under s. 35(1)(a) for having committed war crimes based on his association with the […] (SLA).
iv) Between 1989-1991 the male applicant joined the SLA and worked as a cook and security guard.
v) He passed on names to the SLA of 10-15 people he believed were associated with the Hezbollah. There is no evidence that the Hezbollah are aware of this activity and no evidence that any of the relatives of the named persons are threatening the male applicant.
vi) The Hezbollah do not engage in revenge killing and have turned over suspected SLA members to the Lebanese army.
vii) The male applicant is wanted for having collaborated with Israel, and the Lebanese authorities want to put him on trial.
viii) About 2,277 former SLA members have been charged with collaboration with Israel. Most have been convicted and served sentences of imprisonment, fines or restraining orders. The vast majority served prison sentences between 3 months – 2 years. Ordinarily foot soldiers generally received sentences of about 12-18 months. One third of former SLA members received 1 year jail sentence and one third received 3-4 weeks.
ix) Those who have been sentenced to death in abstentia are entitled to a new trial. The Military Court denied every recommendation for the death sentence – none have been executed.
x) The trial procedures are public and the accused has access to legal aid lawyers. Some accused have been acquitted[. When not acquitted] the sentences have been lenient in the circumstances. The Military Court follows the same procedure as the civilian courts. Although not at the same standard as Canadian courts, they are not show trials. Evidence must be advanced to support a conviction.
xi) Although prison conditions are poor, they do not pose a serious health risk. SLA associates are allowed access to lawyers and family. Most SLA members have served their sentences, while those who continue to serve do so as regular prisoners. The majority of detainees do not experience torture or physical mistreatment.
THE ISSUES
[4] Mr. Ammar and his family argue that the officer erred in the following three respects:
1. The officer was obliged at law to consider the consequences that the removal of Mr. Ammar and his wife would have on their two Canadian-born children, and he failed to do so.
2. In conducting the risk assessment the officer ignored evidence, specifically a letter from a lawyer in Lebanon that stated that an arrest warrant had been issued in respect of Mr. Ammar, charging him with “[c]ollaborating with the Israeli Enemy” and “joining with the Armed Forces of Southern Lebanon Army collaborating with Israel”. The letter referenced a provision which was said to dictate for these offences “punishment either by execution or life in prison with hard labor”.
3. The officer failed to conduct a proper PRRA because the officer conducted a general assessment of the situation of former members of the SLA and failed to assess Mr. Ammar’s own situation.
The Alleged Obligation to Consider the Best Interests of the Canadian-Born Children
[5] In the present case, it is common ground that there is no discussion in the PRRA assessment about the best interests of the Canadian-born children. On the basis of this Court’s decision in Varga v. Canada (Minister of Citizenship and Immigration), 2005 FC 1280 this is said to be a reviewable error. In Varga, the Court wrote at paragraph 17:
17. Therefore it appears that, in law, a Removals Officer is required to be "alert, alive and sensitive" to the condition of Canadian-born children who may be left behind, or taken with a parent who is subject to a removal order. In this case, therefore, the PRRA Officer was wrong, in law, in stating "it is not my mandate to consider the Applicants' two Canadian citizen children". The interests of these children, though not determinative, must be considered and given some weight in a PRRA application even more so than when the Removal Officer acts. For this reason, the application will be allowed and the matter sent back for re-determination by a different PRRA Officer.
[6] However, subsequent to Varga the contrary conclusion was reached with respect to the obligation of an officer to consider the best interests of a Canadian child. In Alabadleh v. Canada (Minister of Citizenship and Immigration), 2006 FC 716 the Court found at paragraphs 16 and 17:
16. In my view, the appropriate forum for consideration of a child's interests is an application under s.25 of the Act for an exemption based on humanitarian and compassionate factors: El Ouardi v. Canada (Solicitor General) (2005), 48 Imm. L.R. (3d) 157 at para 10, 2005 FCA 42. See also, Kim, above, and Redhead v. Canada (Minister of Citizenship and Immigration), 2006 FC 517, [2006] F.C.J. No. 669 (QL).
17. As stated by Justice Michel M.J. Shore in Sherzady v. Canada (Minister of Citizenship and Immigration) (2005), 273 F.T.R. 11 at para. 15, 2005 FC 516, there is nothing in the language of the statute or related regulations to suggest that a PRRA officer is meant to consider humanitarian and compassionate factors in the context of a risk inquiry. The risk contemplated by the enactment is that which is personal to the subject of the inquiry.
[7] In my respectful view, the Court’s conclusion in Alabadleh is correct. I reach this conclusion on the following basis.
[8] First, it is important to situate PRRA applications in their statutory context. The PRRA was a new procedure, implemented upon the coming into force of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act). The PRRA process is governed by sections 112 to 116 of the Act, and sections 160 to 174 and 232 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations). The applicable Regulatory Impact Analysis Statement (Canada Gazette Part II, Vol. 136, Extra No. 9) notes, at page 274, that:
The policy basis for assessing risk prior to removal is found in Canada's domestic and international commitments to the principle of non-refoulement. This principle holds that persons should not be removed from Canada to a country where they would be at risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment. Such commitments require that risk be reviewed prior to removal.
[…]
What has changed
The Pre-Removal Risk Assessment is a new mechanism and, as such, has no direct equivalent under the current legislation.
In effect, by having the Immigration and Refugee Board (IRB) examine consolidated protection grounds (the Geneva Convention, the Convention Against Torture and the risk to life or the risk of cruel and unusual treatment or punishment), the type of assessment carried out under Post Determination Refugee Claimants in Canada Class (PDRCC) regulations is now incorporated into the determination made by the IRB. The use of the same consolidated protection grounds at the PRRA stage makes risk assessment for failed claimants simpler, in that it is limited to the consideration of new evidence and constitutes a file update.
While access to risk assessment through PDRCC was limited to failed claimants, various additional populations now have access to PRRA. Potential applicants include those found to be ineligible for consideration by the IRB, repeat claimants who no longer have access to the IRB, as well as those who have had risk assessed previously under PRRA but who have not been removed from Canada after a negative protection decision. In the latter case, the PRRA will consist of a file update in the event that new evidence is presented.
The PRRA is closely linked in time to removals and is carried out immediately prior to removal.
[9] Thus, with certain limited exceptions (for example persons who came to Canada through a designated third country, persons subject to an authority to proceed under the Extradition Act, persons who return to Canada within six months of their removal, and persons who have been granted refugee protection) a person who is subject to a removal order may apply for protection (see: section 112 of the Act). The person must be notified of their right to apply for protection before they are removed from Canada (see: subsection 160(3) of the Regulations) and may apply for protection once given such notification (see: subsection 160(1) of the Regulations). Generally, an enforceable removal order is stayed pending consideration of the application for protection contained in the PRRA application (see: section 232 of the Regulations).
[10] Of particular relevance is section 112 of the Act which prescribes who may apply for a PRRA. A condition precedent to section 112 of the Act is that the person be subject to a removal order. Canadian-born children, being citizens of this country, have an unqualified right to remain in Canada. They cannot be subject to a removal order and therefore cannot apply for a PRRA.
[11] It follows that their interests cannot be assessed on a PRRA application qua applicant.
[12] I now turn to consider what it is that an officer conducting a PRRA is required to consider. Section 113 of the Act provides:
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113. Consideration of an application for protection shall be as follows: (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; (b) a hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required; (c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98; (d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and (i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or (ii) in the case of any other applicant, whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada. |
113. Il est disposé de la demande comme il suit : a) le demandeur d’asile débouté ne peut présenter que des éléments de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les ait présentés au moment du rejet; b) une audience peut être tenue si le ministre l’estime requis compte tenu des facteurs réglementaires; c) s’agissant du demandeur non visé au paragraphe 112(3), sur la base des articles 96 à 98; d) s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à l’article 97 et, d’autre part : (i) soit du fait que le demandeur interdit de territoire pour grande criminalité constitue un danger pour le public au Canada, (ii) soit, dans le cas de tout autre demandeur, du fait que la demande devrait être rejetée en raison de la nature et de la gravité de ses actes passés ou du danger qu’il constitue pour la sécurité du Canada.
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[13] This provision makes it clear, in my view, that the relevant factors the officer “shall” consider are confined to those described in sections 96 to 98 of the Act. Persons described in subsection 112(3) of the Act (for example, persons who are inadmissible on grounds of security or organized criminality) may only have their claims considered on the basis of the factors contained in section 97 of the Act. Humanitarian and compassionate factors are not among those an officer “shall” consider under either section 96 or 97 of the Act.
[14] The conclusion that humanitarian and compassionate factors are not to be considered on a PRRA application is consistent with this Court’s decision in Kim v. Canada (Minister of Citizenship and Immigration), 2005 FC 437. There, my colleague Mr. Justice Mosley wrote at paragraph 70:
70. By the same logic, I find that PRRA officers need not consider humanitarian and compassionate factors in making their decisions. There is no discretion afforded to a PRRA officer in making a risk assessment. Either the officer is satisfied that the risk factors alleged exist and are sufficiently serious to grant protection, or the officer is not satisfied. The PRRA inquiry and decision-making process does not take into account factors other than risk. In any case, there is a better forum for the consideration of humanitarian and compassionate factors: the H&C determination mechanism. I do not find that the officer erred in law by refusing to consider humanitarian and compassionate factors in the context of the PRRA decision.
[15] Before leaving this point, I believe it is relevant to observe that the Federal Court of Appeal has cautioned that humanitarian grounds should not be imported into the determination of refugee claims. See: Canada (Minister of Citizenship and Immigration) v. Ranganathan, [2001] 2 F.C. 164 at paragraph 17. Just as humanitarian and compassionate factors should not be considered in the determination of a claim to status as a Convention refugee, they should not, in my view, be imported into consideration of the need for protection based upon the factors prescribed in sections 96 to 98 of the Act.
[16] The final basis for my conclusion that the best interests of Canadian children are not to be assessed within a PRRA application is recognition that other provisions exist within the Act which mandate consideration of those interests. Specifically, section 25 of the Act requires that those interests be assessed on an application to the Minister to grant a foreign national permanent resident status, or on an application to the Minister to exempt a foreign national from any applicable criteria or obligation under the Act. It is not necessary for the best interests of children to be examined in each available proceeding under the Act. As the Federal Court of Appeal observed in DeGuzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436 at paragraph 105:
105. […] not every statutory provision must be able to pass the "best interests of the child" test, if another provision requires their careful consideration. In my opinion, section 25 is such a provision, because it obliges the Minister to consider the best interests of a child when deciding whether, in his opinion, humanitarian and compassionate circumstances justify exempting an applicant from the normal selection criteria and granting permanent residence status.
Did the Officer Ignore Evidence?
[17] Mr. Ammar argues that the officer ignored evidence, specifically the letter from a lawyer to the effect that Mr. Ammar would be arrested and tried on his return to Lebanon. However, the officer dealt at some length with the letter and its contents and concluded that the letter’s contents were inconsistent with what the documentary evidence disclosed with respect to similarly situated persons. While there was evidence of poor conditions in Lebanese prisons, the officer noted that the country condition reports presented a “mixed picture”. It was for the officer to weigh the conflicting evidence. The officer’s conclusion that the majority of SLA detainees did not encounter torture, risk to life, or risk of cruel and unusual treatment or punishment was supported by tenable reasons grounded in the evidence. The conclusion withstands a somewhat probing analysis1. It follows that there is no basis for intervention on judicial review.
Did the Officer Fail to Assess Mr. Ammar’s Individual Situation?
[18] Mr. Ammar argues that the officer failed to consider Mr. Ammar’s own circumstances, particularly in light of the content of the letter from the lawyer.
[19] As noted above, the officer did consider the content of the letter and Mr. Ammar’s prior circumstances. I note that while the letter is undated, it was translated in December of 1998. The officer considered Mr. Ammar’s situation in light of the current country condition documentation. There is no basis for intervention on this ground.
CONCLUSION
[20] For these reasons, the application for judicial review will be dismissed.
[21] Counsel for Mr. Ammar was afforded the opportunity to make further submissions in writing with respect to the consideration of the best interests of the Canadian children and also certification of a question. However, no submissions were submitted and no certified question was proposed.
[22] No question will be certified. Not only did Mr. Ammar not seek certification of a question, but the PRRA application was silent with respect to the need to assess the best interest of Mr. Ammar’s Canadian children. Thus, even if the Court of Appeal were to find some obligation to consider their best interests, that result would not be dispositive of an appeal when the issue was not raised before the PRRA officer and no submissions were made to the officer.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is dismissed.
Judge
1. I respectfully adopt the conclusion of my colleague Mr. Justice Simon Noël in Choudry v.Canada (Minister of Citizenship and Immigration), 2006 FC 239 at paragraph 8 with respect to the standard of review applicable to a PRRA decision.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6866-05
STYLE OF CAUSE: HASSAN JIHAD AMMAR ET AL.
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 25, 2006
APPEARANCES:
ROSE L. LEGAGNEUR FOR THE APPLICANTS
SALLY THOMAS FOR THE RESPONDENT
SOLICITORS OF RECORD:
ROSE L. LEGAGNEUR FOR THE APPLICANTS
BARRISTER & SOLICITOR
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA