Date: 20030429
Docket: IMM-795-03
Neutral Citation: 2003 FCT 533
Montréal, Quebec, April 29, 2003
Present: The Honourable Mr. Justice Rouleau
BETWEEN:
ALLEL, HOUCINE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion for a stay of execution of a removal order issued against the applicant, attached to which is an application for leave and for judicial review of the decision of the pre-removal risk assessment (PRRA) officer dated November 12, 2002, and the decision of the Minister's delegate dated December 20, 2002.
[2] The applicant is a citizen of Algeria. In 1996, he left his country of origin and went to the United States, where he lived from December 1997 to May 2000. During this period, his refugee claim in the United States was rejected.
[3] On December 6, 2000, the Convention Refugee Determination Division in Canada dismissed the claim of the applicant and his wife.
[4] The Refugee Division concluded that only the applicant, and not his wife, was covered by the exclusion clause in Section F(a) of article 1 of the Convention. The Refugee Division held that the applicant was excluded from the benefit of the protection granted by the Convention because there are serious reasons for considering that he committed crimes against humanity while he was a member of the police in Algeria.
[5] On December 27, 2000, the applicant filed an application for leave and judicial review of this negative decision of the Refugee Division, which was allowed on July 6, 2001.
[6] Pursuant to an agreement reached in the context of an application for a stay filed by the applicant, the respondent decided not to execute the removal order on May 31, 2001, the date initially scheduled for the applicant's removal to the United States.
[7] On April 3, 2002, the Federal Court Trial Division dismissed the application for judicial review of the decision of the Immigration and Refugee Board (IRB).
[8] On April 5, 2002, the moratorium in regard to Algerian nationals ordered by the Minister of Immigration on March 4, 1997, which justified the stay of the applicant's removal, was lifted.
[9] On October 22, 2002, the applicant applied for a pre-removal risk assessment (PRRA).
[10] On December 20, 2002, the Minister's delegate upheld the opinion of the PRRA officer, who had rejected the applicant's submissions that there was a danger if he was returned to Algeria, and the removal order became effective.
[11] The applicant's removal to the United States was scheduled for February 26, 2003.
[12] On February 19, 2003, the applicant applied for a judicial stay of his removal.
[13] On February 21, 2003, Citizenship and Immigration Canada (CIC) granted an administrative stay pending the results of the PRRA application of the applicant's wife.
[14] On April 1, 2003, immigration officer Mélanie Leduc delivered a negative decision on the PRRA application of the applicant's wife, Ms. Abdou.
[15] The removal orders issued against the applicant and his wife are now effective and their removal to the United States is scheduled for April 30, 2003.
[16] The applicant, having been excluded under Section F of article 1 of the Convention, is therefore subject to the procedure set out in sections 112 and 113 of the Immigration and Refugee Protection Act, R.S.C. 2001, c. 27 ("the Act") and section 167 of the Regulations.
[17] The Act and the Regulations thereunder provide for an assessment by a PRRA officer who is to submit his or her opinion to the applicant, who is then allowed to file his or her observations and some documentation concerning that opinion. This documentation and the PRRA officer's opinion are then submitted to the Minister or his delegate, who are to consider them in determining whether there are serious reasons for considering that the applicant might be at risk if he were returned to his country of citizenship or nationality.
[18] The applicant in the instant case submits that the PRRA decision does not provide reasons, and thus is in breach of the principles of natural justice; that it overlooks the personal documentary evidence supplied by the applicant in his submissions dated May 20, 2002; that the decision was made without an interview or hearing, contrary to the regulatory provisions and the legitimate expectations of the applicant; and that the immigration officer's decision is incompatible with the Canadian Charter of Rights and Freedoms.
[19] Notwithstanding the somewhat confused language used by counsel for the applicant in her submissions, it is obvious that she is raising these grounds in opposition to the decision of the Minister's delegate, dated December 20, 2002, and not the opinion of the PRRA officer. This is confirmed by the fact that the application for leave and judicial review is addressed to the decision of the Minister's delegate; moreover, at the hearing the applicant's counsel attacked that decision. The opinion of the PRRA officer in this case is simply a recommendation made to the Minister, who is the only one authorized to make a decision concerning the removal of the applicant under sections 112-113 of the Act and section 167 of the Regulations.
[20] In Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, the Supreme Court of Canada stated in paragraph 126 that the Minister must provide written reasons and rationally sustain his decision that there are no substantial grounds to believe that a refugee claimant will be subjected to torture, execution or other cruel or unusual treatment. However, the Court adds, in paragraph 127, that the Minister has such an obligation only if a claimant establishes that torture or risk is a real possibility. In this case, the PRRA officer concluded unequivocally that there were no such substantial grounds in the applicant's case in the event of his return to Algeria.
[21] In any event, I am satisfied that the decision of the Minister's delegate gives sufficient reasons; it sets out clearly the documentary evidence on which it is based, which included the extremely detailed opinion of the PRRA officer and the supporting documentation.
[22] Concerning the submission to the effect that the Minister's decision did not consider the submissions and exhibits of May 20, 2002, the Federal Court of Appeal has held on many occasions that a tribunal or decision-maker need not refer to all of the documentation that is submitted. Furthermore, in her evaluation the PRRA officer does not refer specifically to the arguments submitted by the applicant on May 20, 2002, but she does refer to the affidavits and the documentation filed on that date. I am not persuaded that this overcomes the burden of establishing a serious question for determination.
[23] The applicant's counsel also submits that the Minister was obliged to hear her client viva voce under section 113(b) of the Act. This provision reads as follows:
113. Consideration of an application for protection shall be as follows:
...
(b) a hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required; [Emphasis added]
[24] The factors that the Minister must take into account in the exercise of his discretion are spelled out in section 167 of the Regulations:
167. For the purpose of determining whether a hearing is required under paragraph 113(b) of the Act, the factors are the following:
(a) whether there is evidence that raises a serious issue of the applicant's credibility and is related to the factors set out in sections 96 and 97 of the Act;
(b) whether the evidence is central to the decision with respect to the application for protection; and
(c) whether the evidence, if accepted, would justify allowing the application for protection.
[25] As I read these provisions, it is obvious that the Minister or his delegate is not required to grant a hearing or interview to a claimant, even when serious issues of credibility related to the risks and dangers referred to in sections 96 and 97 of the Act are raised. In the case at bar, the PRRA officer concluded that the objective evidence did not establish a substantial reason to believe that the applicant would be exposed to a risk of danger or torture should he return. No serious issue of credibility is therefore raised in the assessment by the PRRA officer. Moreover, since the applicant did not establish the existence of a real possibility of torture, the Minister's delegate was not obliged to summon him to an interview or a hearing: Suresh, supra, at paragraphs 121 and 127.
[26] As mentioned, the applicant's counsel has not managed to persuade me that the applicant's credibility in relation to the factors cited in sections 96 and 97 of the Act is such an issue in this case that he should have been heard viva voce: Singh v. Canada (Minister of Citizenship and Immigration), [1985] 1 S.C.R. 177, at paragraph 108 (S.C.C.). Moreover, since he has not established the existence of a real possibility of danger or torture should he return to Algeria, the procedural protections under section 7 of the Charter do not apply: Suresh, supra, at paragraphs 121 and 127.
[27] For all these reasons, I have not been persuaded that there is a serious issue for determination. In any event, even if there is some evidence that upon his arrival in the United States the applicant will probably be subject to arrest, there is no evidence that he will be mistreated. And although it is probable that the American authorities will return him to Algeria, there is no objective evidence that the applicant might risk torture or other cruel or unusual treatment.
[28] For these reasons, the motion for a stay is dismissed.
ORDER
THE COURT ORDERS that the application to stay is dismissed.
"Paul U.C. Rouleau"
Judge
Montréal, Quebec
April 29, 2003
Certified true translation
Suzanne Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030429
Docket: IMM-795-03
Between:
ALLEL, HOUCINE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET: IMM-795-03
STYLE: ALLEL, HOUCINE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 28, 2003
REASONS FOR ORDER AND ORDER:
THE HONOURABLE MR. JUSTICE ROULEAU
DATED: April 29, 2003
APPEARANCES:
Johanne Doyon FOR THE APPLICANT
Andrea Shahin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Doyon & Montbriand FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec