Docket: IMM-3165-18
Citation: 2019 FC 346
Ottawa, Ontario, March 21, 2019
PRESENT: The Honourable Mr. Justice Bell
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| BETWEEN:
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| MOHAMED ELKAMIL ELIMAM SHARIF
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| Applicant
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| THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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| Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
Sudan is led by a brutal repressive regime (the Bashir regime). The Bashir regime in place in 2003 remains the regime in place today. In 2003, Sudanese law required that one obtain an exit visa prior to leaving the country. That same law remains in force today. In 2003, political opponents of the Bashir regime were persecuted and tortured. According to country condition documents, opponents of the Bashir regime today may be subject to persecution and torture.
[2]
In 1986, Mr. Sharif joined the Democratic Union Party [DUP] in Sudan. He remained a member of that party and worked to advance its interests until his departure from Sudan in 2003. The un-contradicted evidence is that before August 25, 2003, Mr. Sharif’s political activities included inviting others to join the DUP in opposition to the Bashir regime, the distribution of flyers in support of the DUP and inviting others to join a street protest against the Bashir regime. On or about August 25, 2003, Mr. Sharif was arrested at which time he claims violence was used against him. Following his release, he was arrested for a second time on September 2, 2003, at which time he claims he was tortured and forced to sign a document by which he undertook to cease any political activity. Failure to respect the terms of his release, namely the cessation of all political activity, could result in a sentence up to and including his execution or imprisonment for life.
[3]
Following his second arrest, Mr. Sharif fled to Chad, obtained a fraudulent passport and in 2004 arrived in the United States where he immediately made an asylum claim. After the rejection of his asylum claim, he remained in the United States until 2017. I would note that Mr. Sharif did make one attempt to enter Canada in 2008 for purposes of making an asylum claim. That effort was unsuccessful due to the Safe Third Country Agreement (Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 102 [IRPA]; Canadian Council for Refugees v. Canada, [2009] 3 FCR 136, 2008 FCA 229).
[4]
Given what he perceived as deteriorating conditions for illegal immigrants in the United States, Mr. Sharif entered Canada unlawfully in September 2017. He was arrested and was provided with the opportunity to complete a request for a Pre-Removal Risk Assessment [PRRA] as permitted pursuant to section 112 of IRPA. On April 12, 2018, the PRRA Officer rejected Mr. Sharif’s application [decision] and ordered his removal from Canada. It is from that decision that Mr. Sharif now seeks judicial review pursuant to subsection 72(1) of the IRPA.
II.
Decision under review
[5]
The PRRA Officer concluded that Mr. Sharif would not be subject to risk of persecution, or face a risk to his life or a risk of cruel and unusual treatment or punishment if returned to Sudan.
[6]
The Officer correctly summarized Mr. Sharif’s contentions on the first page of the decision. He states:
Even though the applicant has left Sudan, he states that he remains committed to his political beliefs which oppose the current regime. The applicant declares that he is applying for PRRA because the authorities of Sudan will kill him if he returns there due to his previous political involvement. He alleges that he is a potential target of the regime in Sudan because of his prolonged stay in the USA and his political activist past. Furthermore, he left Sudan without an exit visa, and would have to explain how he did so and how he spent his time abroad.
The applicant also notes that the economic situation in his country of origin has worsened since his departure, and he does not have a social net upon which he can rely. He states that he would have a difficult time finding employment in Sudan.
[7]
The Officer refers to the “objective documentation”
which demonstrates the “near absolute political authority”
held by the Bashir regime for in excess of 26 years. The Officer concludes this objective evidence depicts arbitrary arrests, arbitrary detention, ill-treatment by government forces, and the “arrest and temporary detention of opposition party members.”
The Officer also observes that some opposition leaders live in exile, leaders of opposition parties have been questioned at airport security and that “important members of an opposition party had their passports seized.”
[8]
In response to Mr. Sharif’s concerns about having left Sudan without an exit visa, the Officer states that there is no evidence that those who return without an exit visa are subject to treatment that would amount to persecution, torture, or cruel and unusual treatment or punishment.
[9]
In response to Mr. Sharif’s concerns about his past membership in the DUP, the Officer notes that the documentation demonstrates that high-ranking opposition members could be exposed to arbitrary arrest and detention but that Mr. Sharif’s profile does not fit that of a “key figure”
of the DUP. The Officer further opines that Mr. Sharif has been outside of Sudan for 15 years. The RPD concluded there is no evidence of subversive activity or other activities by Mr. Sharif such that he would be known to the Bashir regime and “could be a potential target as a member of the political opposition”
.
[10]
The Officer concludes his analysis of relevant factors by stating that while the Bashir regime has a history of failing to respect political and civil liberties and that freedom of expression remains a human rights issue in Sudan, these simply demonstrate the political climate within which all Sudanese live and are not particular to Mr. Sharif.
[11]
In his PRRA application, Mr. Sharif expressed concern about being unable to find employment in Sudan. The Officer quite properly concludes that issue is not a proper consideration on a PRRA application. Nothing more will be said on that topic in these reasons.
III.
Relevant Statutory Provisions
[12]
The relevant provisions of the IRPA are sections 112 to 114, and sections 96 to 98 are also important. These provisions are set out in the Appendix attached to these Reasons.
IV.
Analysis
A.
Standard of review
[13]
The Supreme Court, in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190) [Dunsmuir], held that it is not necessary to conduct a review analysis where the standard of review has been established in the jurisprudence. The appropriate standard of review of a PRRA Officer’s decision is reasonableness (Selduz v. Canada (Citizenship and Immigration), 2009 FC 361, at para. 9-10; Balogh v. Canada (Citizenship and Immigration), 2017 FC 654, at para. 23).
[14]
When reviewing a decision on a reasonableness standard, the reviewing Court must show deference to the decision maker while ensuring there was justification, transparency and intelligibility within the decision-making process and satisfying itself that the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir at para 47).
B.
Was the PRRA Officer’s decision reasonable in the circumstances?
[15]
While fully cognizant of the deference I owe to the Officer, I find the decision-making process lacks justification and intelligibility. In reaching this conclusion I make every effort not to re-weigh the evidence, but simply to demonstrate where I consider the reasoning flawed or inadequate such that the decision is rendered unintelligible.
[16]
First, the Officer quite properly notes that the objective documentary evidence demonstrates that political opponents of the Bashir regime are subject to arbitrary arrest and detention. However, following that accurate statement, the Officer then concludes that Mr. Sharif is not a sufficiently important or a sufficiently high-ranking member of the opposition to be considered a “target”
of the Bashir regime. The difficulty with the approach taken by the Officer is that he ignores his own conclusion that political opponents are targeted whether or not they are high-ranking or important.
[17]
Second, in concluding that Mr. Sharif would not be targeted or that he is no more at risk than anyone else in Sudan, the Officer ignores the uncontested evidence accepted by him. The Officer accepts that Mr. Sharif was arrested twice and was forced to sign an undertaking not to engage in political activity on fear of death or imprisonment for life. The fact of those arrests and the signed undertaking form no part of his analysis regarding Mr. Sharif’s risk of being targeted by the Bashir regime, presuming his eventual return to Sudan. Whether Mr. Sharif’s profile puts him at greater risk than other members of the general public in Sudan is, with respect, something the Officer should have considered.
[18]
Third, the uncontested evidence before the Officer was that an exit visa was required to leave Sudan in 2003 and an exit visa is still required. The documentary evidence demonstrates that the purpose of the exit visa is, among other things, to monitor the movement of those with criminal records and the movement of political opponents. The Officer addresses the issue of the exit visa by observing that there is no evidence that those who return without such a visa are subjected to treatment that would amount to persecution, torture, or cruel and unusual treatment or punishment. I question whether that is the issue.
[19]
The issue, in my view, is whether someone who left without a valid passport, without an exit visa, after having been arrested on two occasions and after having signed an undertaking to cease political activities and who entered the United States on a fraudulent Chadian passport would be subject to persecution, torture or cruel and unusual treatment. Even if there is no direct evidence regarding a person with a profile similar to Mr. Sharif, it was incumbent upon the PRRA Officer to make his inferences and draw his conclusions based upon the profile of someone akin to Mr. Sharif. The result may have been the same; however, the failure to distinguish between Mr. Sharif’s profile and, for example, a returning tourist who failed to obtain an exit visa is significant. In my view the approach adopted by the Officer leads to speculation rather than sound inference based decision-making.
[20]
In my view these three (3) observations, without challenging the weight afforded by the Officer to any of the evidence, demonstrate the decision is unjustifiable and lacking intelligibility. Mr. Sharif is not a normal citizen returning without an exit visa. Mr. Sharif may not be a high-profile opposition leader but he is clearly an opponent of the Bashir regime, a profile identified by the Officer as being at risk of arbitrary arrest and detention.
[21]
I would close with one further observation. The Officer quite properly points out that normally an absence of 15 years reduces the chances that a person would still be sought by those seeking to do him harm. Counsel for the Respondent cites the cases (Balci v. Canada (Immigration, Refugees and Citizenship), 2017 FC 681; Alam v. Canada (Minister of Citizenship and Immigration), 2005 FC 1439) holding that the longer the absence the less the risk of harm upon return. I question the utility of the approach that “time heals”
in circumstances where the same repressive authoritarian regime spans those 15 years of absence, the laws on the books 15 years ago remain the same and the country condition evidence is largely the same.
V.
Conclusion
[22]
For the foregoing reasons, I grant Mr. Sharif’s application for judicial review. The decision of the PRRA Officer dated April 12, 2018, is quashed and the matter is remitted to a different officer for redetermination. No question having been proposed for certification, none is certified for consideration by the Federal Court of Appeal.
JUDGMENT in IMM-3165-18
THIS COURT’S JUDGMENT is that:
The Application for Judicial Review is granted;
The decision of the PRRA Officer dated April 12, 2018, is quashed. The matter shall be remitted to a different officer for redetermination; and
No question is certified for consideration by the Federal Court of Appeal.
“B. Richard Bell”
Judge
ANNEX A
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FEDERAL COURT
SOLICITORS OF RECORD
| DOCKET:
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IMM-3165-18
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| STYLE OF CAUSE:
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MOHAMED ELKAMIL ELIMAM SHARIF v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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| PLACE OF HEARING:
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Toronto, Ontario
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| DATE OF HEARING:
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February 6, 2019
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| REASONS FOR JUDGMENT AND JUDGMENT:
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BELL J.
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| DATED:
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March 21, 2019
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APPEARANCES:
| Ameena Sultan
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For The Applicant
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| Norah Dorcine
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For The Respondent
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SOLICITORS OF RECORD:
| Sultan Law
Toronto, Ontario
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For The Applicant
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| Attorney General of Canada
Toronto, Ontario
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For The Respondent
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