Chekroun v. Canada (Minister of Citizenship and Immigration), (2013) 436 F.T.R. 1 (FC)

• Judge: Strickland, J.
• Court: Federal Court (Canada)
• Case Date: March 06, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 436 F.T.R. 1 (FC);2013 FC 737

Chekroun v. Can. (M.C.I.) (2013), 436 F.T.R. 1 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. JL.009

David Ben Chekroun (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-6124-12; 2013 FC 737; 2013 CF 737)

Indexed As: Chekroun v. Canada (Minister of Citizenship and Immigration)

Federal Court

Strickland, J.

July 3, 2013.

Summary:

A pre-removal risk assessment (PRRA) officer found that the applicant would not be subject to risk of persecution, danger of torture, risk to life, or risk of cruel or unusual punishment if removed from Canada and, as previously decided by the Refugee Protection Division, that the applicant was not a Convention refugee or person in need of protection pursuant to ss. 96 and 97 of the Immigration and Refugee Protection Act (IRPA). The same officer refused the applicant's application for permanent residence based on humanitarian and compassionate (H&C) grounds pursuant to s. 25 of the IRPA. The applicant applied for judicial review of both the PRRA and H&C decisions.

The Federal Court allowed the applications. Both matters were remitted for re-determination before a different officer.

Administrative Law - Topic 8264

Administrative powers - Discretionary powers - Fettering of discretion - [See first Aliens - Topic 1206 ].

Aliens - Topic 1206

Admission - Immigrants - Upon compassionate or humanitarian grounds - The applicant applied for judicial review of a decision refusing his application for permanent residence based on humanitarian and compassionate (H&C) grounds - One issue was whether the officer's discretion was unreasonably fettered by requiring the applicant to demonstrate a "reasonable expectation" that he would be allowed to remain in Canada permanently - The issue arose from certain statements made by the officer - The Federal Court stated that evidence of a "reasonable expectation" that an applicant would be permitted to remain in Canada was not a pre-requisite or foundational criteria nor was it a test that an applicant had to meet to establish hardship - However, on review of the H&C decision as a whole, the court was not convinced that the officer applied a "reasonable expectation" test as a pre-requisite or test - Rather, in the context of the applicant's immigration history and his establishment in Canada, the officer was noting that he had not taken any steps to demonstrate his statelessness - Had he done so, this may have been a positive establishment factor if it had demonstrated that the circumstances which kept him in Canada were beyond his control - The court did not find that the officer's discretion was fettered when giving consideration to the applicant's establishment in Canada - See paragraphs 85 to 88.

Aliens - Topic 1206

Admission - Immigrants - Upon compassionate or humanitarian grounds - The applicant applied for judicial review of a decision refusing his application for permanent residence based on humanitarian and compassionate (H&C) grounds - The Federal Court did not accept that the officer ignored or misconstrued evidence of hardship related to the applicant's claim that he was or would be perceived to be Jewish - Neither the applicant's H&C application nor the submissions of his counsel in support of the H&C application raised the concern now argued, being that the applicant, whether or not he adhered to the Jewish faith, would be perceived as Jewish and therefore at risk of hardship, should he return to Algeria - See paragraphs 91 to 93.

Aliens - Topic 1206

Admission - Immigrants - Upon compassionate or humanitarian grounds - The applicant's application for permanent residence based on humanitarian and compassionate (H&C) grounds was refused - The officer found that the applicant had not provided sufficient personal evidence to establish his sexual identity as a homosexual and had not provided sufficient corroborating evidence to establish his homosexuality on the balance of probabilities - Accordingly, the officer was unable to find that he would be subjected to hardship that was unusual, undeserved or disproportionate - The applicant applied for judicial review - The Federal Court allowed the application - The officer erred in rejecting the applicant's affidavit evidence as to his sexuality and in requiring corroborating evidence of the applicant's sexual orientation - There was reason to believe that the applicant would be subject to hardship that could amount to unusual, undeserved or disproportionate hardship because of his homosexuality should he be returned to Algeria - Hardship was determined as a result of a global assessment of H&C considerations put forth by the applicant - Here, the officer accepted that the applicant suffered from OCD, PTSD and Tourette's Syndrome and that because of his mental health he could not work and he relied on social assistance - The officer accepted that the applicant had been in Canada since 1999 and the evidence as to his extensive volunteer work over the years - The officer acknowledged the applicant's community ties here and that he had no family or support in Algeria - The officer unreasonably refused to accept the applicant's evidence as to his homosexuality - The officer's finding that the applicant would not be subject to unusual, undeserved or disproportionate hardship if he were returned to Algeria was not reasonable - See paragraphs 94 to 101.

Aliens - Topic 1583

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112 - 116) - Application for protection (IRPA, s. 112) (incl. procedure and considerations) - The applicant applied for judicial review of a negative decision rendered on his pre-removal risk assessment (PRRA) application - One issue was whether the PRRA officer ignored or misconstrued evidence related to the applicant's perceived Jewish religion - The Federal Court held that the officer did not make a reviewable error in failing to address a risk that was, at best, only implicitly before him - The alleged persecution and risk arising from a perception of the applicant as Jewish, should he return to Algeria, did not comprise a distinct basis of his PRRA application - Only one indirect reference was contained in his counsel's submissions being: "Given the new evidence that confirms his identity as a Jew, and that his last name, Ben Chekroun would easily identify him as a Jew within Algeria, it is submitted that on that basis alone, Mr. Ben Chekroun is a Convention Refugee" - The only evidence which addressed this issue was a letter from Mr. Checroune - That letter stated that its author was born in Vilar, Algeria in 1935, Vilar being a city east of Tiemcen, the applicant's birth place - Checroune stated "that Mr. Ben Chekroun is North African (Algerian) Jewish and his name is recognized in the region" - Neither the Checroune letter nor the submission by the applicant's counsel explicitly raised the issue of the applicant's perceived Jewish identity - Further, given that the Checroune letter was an unsworn document which did not explicitly state that the applicant's name would be recognized as Jewish in Algeria or explain why this was so and how the author of the letter knew that to be the case, it would be of little probative value in establishing that fact - See paragraphs 53 to 58.

Aliens - Topic 1588

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112 - 116) - Evidence (IRPA, s. 113(a)) - The applicant applied for judicial review of a negative decision rendered on his pre-removal risk assessment (PRRA) application - The Federal Court held that the PRRA officer erred by requiring corroborating evidence of the applicant's sexual orientation - The applicant's affidavit set out in some detail the applicant's history in the context of his homosexuality - The officer's finding that the applicant's affidavit lacked sufficient detail to establish his sexual orientation was not reasonable - The officer did not give any reasons for doubting the truthfulness of the applicant's evidence as to his sexual orientation - When a claimant swore to the truth of his testimony, that testimony was presumed to be true unless there was a valid reason to doubt its truthfulness - In the absence of any such reasons, the applicant met the burden of establishing his sexual identity by way of his sworn affidavit - Accordingly, the officer unreasonably demanded corroborating evidence of that fact - See paragraphs 59 to 65.

Aliens - Topic 1589

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112 - 116) - When hearing required (IRPA, s. 113(b)) - The applicant applied for judicial review of a negative decision rendered on his pre-removal risk assessment (PRRA) application - The applicant argued that the PRRA officer made credibility findings with regard to the applicant's sworn evidence and he therefore should have convoked an oral interview - The Federal Court allowed the application - The officer had stated that there was insufficient evidence to establish the applicant's sexual orientation - However, the officer did not say why the applicant's affidavit evidence alone was insufficient to establish that fact and, there was no conflicting evidence or inconstancies to bring that evidence into question - The officer's finding of insufficient evidence was actually a conclusion as to the applicant's credibility - The factors set out in s. 167 of the Immigration and Refugee Protection Regulations were met and the officer was required to hold an oral hearing - Further, the applicant's counsel had requested an oral hearing if credibility was an issue - Nothing in the PRRA decision indicated that the officer considered that request - The failure to consider the request was unreasonable - See paragraphs 66 to 73.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 35].

Wang v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 515; 2010 FC 799, refd to. [para. 36].

Aleziri v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 24; 2009 FC 38, refd to. [para. 36].

Din et al. v. Canada (Minister of Citizenship and Immigration) (2013), 430 F.T.R. 208; 2013 FC 356, refd to. [para. 36].

Kisana v. Canada (Minister of Citizenship and Immigration) (2010), 392 N.R. 163; 2009 FCA 189, refd to. [para. 36].

Jiang v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 749; 2012 FC 1511, refd to. [para. 36].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 36].

Liu v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 584; 2008 FC 836, refd to. [para. 37].

Quann v. Canada (Attorney General) (2013), 431 F.T.R. 308; 2013 FC 460, refd to. [para. 38].

Brown v. Canada (Minister of Citizenship and Immigration) et al., [2012] F.T.R. Uned. 663; 2012 FC 1305, refd to. [para. 39].

Nagy et al. v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 303; 2013 FC 640, refd to. [para. 39].

Lopez et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 502; 2012 FC 1022, refd to. [para. 40].

Sandoval Mares v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 127; 2013 FC 297, refd to. [para. 40].

Ponniah v. Canada (Minister of Citizenship and Immigration) (2013), 431 F.T.R.71; 2013 FC 386, refd to. [para. 40].

Ikechi v. Canada (Minister of Citizenship and Immigration) (2013), 430 F.T.R. 228; 2013 FC 361, refd to. [para. 40].

Zaki v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 661; 2005 FC 1066, refd to. [para. 41].

Benitez v. Canada (Minister of Citizenship and Immigration) (2007), 290 F.T.R. 161; 2006 FC 461, refd to. [para. 41].

Thamotharem v. Canada (Minister of Citizenship and Immigration) (2007), 366 N.R. 301; 2007 FCA 198, refd to. [para. 41].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [para. 55].

Kandiah v. Canada (Minister of Citizenship and Immigration) (1994), 87 F.T.R. 72 (T.D.), refd to. [para. 55].

Avdullahi v. Canada (Minister of Citizenship and Immigration) (2012), 412 F.T.R. 298; 2012 FC 784, refd to. [para. 55].

Ogunrinde v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2012), 413 F.T.R. 211; 2012 FC 760, refd to. [para. 55].

Ortega Ayala et al. v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 357; 2011 FC 611, refd to. [para. 63].

Ferguson v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 750; 2008 FC 1067, refd to. [para. 64].

Maldonado v. Minister of Employment and Immigration (1979), 31 N.R. 34 (F.C.A.), refd to. [para. 65].

Strachn v. Canada (Minister of Citizenship and Immigration) (2012), 416 F.T.R. 312; 2012 FC 984, refd to. [para. 67].

Liban v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. A43; 2008 FC 1252, refd to. [para. 69].

Zokai v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 688; 2005 FC 1103, refd to. [para. 72].

Singh et al. v. Canada (Minister of Citizenship and Immigration) (2009), 340 F.T.R. 29; 2009 FC 11, refd to. [para. 86].

Chandidas v. Canada (Minister of Citizenship and Immigration) (2013), 429 F.T.R. 55; 2013 FC 258, refd to. [para. 86].

Garas v. Canada (Minister of Citizenship and Immigration) (2010), 379 F.T.R. 286; 2010 FC 1247, refd to. [para. 98].

Webb v. Canada (Minister of Citizenship and Immigration) (2012), 417 F.T.R. 306; 2012 FC 1060, refd to. [para. 98].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 25 [para. 1]; sect. 113(b) [para. 66].

Immigration and Refugee Protection Regulations, sect. 167 [para. 66].

Counsel:

Carole Simone Dahan, for the applicant;

Evan Duffy and Martin Anderson, for the respondent.

Solicitors of Record:

Refugee Law Office, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard on March 6, 2013, at Toronto, Ontario, before Strickland, J., of the Federal Court, who delivered the following decision on July 3, 2013.