Date: 20041217
Docket: IMM-3628-04
Citation: 2004 FC 1740
BETWEEN:
OSAMA FI SALEH OMAR
Applicant
- and -
SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of a Pre-Removal Risk Assessment ("PRRA") Officer, dated February 24, 2004, wherein the Officer found against the applicant.
[2] Osama Fi Saleh Omar (the "applicant") is a stateless person from Palestine (West Bank) who came to Canada through the United States of America. The applicant fears persecution, torture, a risk to his life, and a risk of cruel and unusual treatment or punishment if he is deported from Canada to the United States and ultimately to the West Bank or the Occupied Territories.
[3] Having been denied refugee status on July 3, 2002, the applicant applied for a PRRA on November 27, 2003, which was denied by the impugned order dated February 24, 2004. As a result of the removal order issued against him, the applicant was notified on April 1st, 2004, that he had to leave Canada and that he was to be deported to the United States on April 29, 2004.
[4] On April 28, 2004, I granted the applicant his request for a stay of his removal to the United States (and eventually to the West Bank or the Occupied Territories) pending disposition of this application for judicial review. I was then satisfied that the requirements with respect to serious issue, irreparable harm and balance of convenience had been met by the applicant. The stay order was granted on the basis in part of evidence which was not before the PRRA Officer. I am of the opinion that such new evidence was then admissible for the purpose only of establishing irreparable harm.
[5] At the later stage of hearing of this application for judicial review, learned counsel for the respondent made an objection to the admissibility of the new evidence in question on the basis of jurisprudence which included Bovar Waste Management Inc. v. Canada (Minister of the Environment), [2001] F.C.J. No. 487 (T.D.) (QL), wherein Madam Justice Dawson stated, at paragraph 9:
. . . It is again settled law that an application for judicial review should proceed on the basis of the material that was before the decision-maker and as a general principle evidence extrinsic to the record before the decision-maker may not be introduced. That general principle is subject to the limited exception that in circumstances where the only way "to get at the want of jurisdiction is by the bringing of such new evidence before the reviewing Court" extrinsic evidence may be admissible: Gitxsan Treaty Society v. Hospital Employees' Union, [2000] 1 F.C. 135 at 143 (C.A.).
(Emphasis is mine.)
[6] In Gitxsan Treaty Society v. Hospital Employees' Union, [2000] 1 F.C. 135, relied upon by Dawson J. in Bovar Waste Management, supra, the Federal Court of Appeal concluded, at page 145:
. . . The Court will not entertain new evidence in these circumstances.
(Emphasis is mine.)
[7] As I have indicated earlier, the new evidence in question (an affidavit of Shayana Kadidal and an affidavit of Donald Duran, and their exhibits) was considered in the context of the applicant's interim motion for a stay for the sole purpose of determining the issue of irreparable harm. Having thus found that the applicant would suffer such irreparable harm, in the nature of persecution, serious risk to his life and/or his security, I consider that it would now be irresponsible for me to dismiss this application for judicial review without allowing the new evidence to be properly weighed and assessed together with the rest of the evidence. It is the applicant's life and security of the person which is at stake here. The PRRA Officer's decision is determinative in that regard and, absent bad faith or gross negligence on the part of the applicant, I am of the opinion that the latest relevant and significant evidence available must be considered prior to the removal of the person from Canada.
[8] It seems to me that these very exceptional circumstances justify an exception to the general principle of exclusion of evidence extrinsic to the record before the decision-maker and constitute circumstances which are clearly distinguishable from the circumstances in Gitxsan, supra. I am therefore prepared to intervene, and that, in spite of the omission by counsel for the applicant to formally seek leave to have the new evidence considered at the stage of judicial review, which I consider would have been a more appropriate (and more prudent) way to proceed.
[9] Consequently, the application for judicial review is granted and the matter sent back to a different PRRA Officer for new determination.
[10] Counsel for the applicant proposed four questions for certification, which seek consideration of section 24 of the Canadian Charter of Rights and Freedoms, Canada's international obligations, the Convention Against Torture and the situation in the West Bank or the Occupied Territories. Counsel for the respondent filed written submissions opposing certification of the questions proposed by counsel for the applicant and further informed the Court that she is not proposing any question for certification.
[11] I generally agree with the submissions made by counsel for the respondent. Furthermore, in light of the above reasons, the proposed questions cannot be considered to be questions of general importance within the meaning of paragraph 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. Therefore, there will be no certification.
JUDGE
OTTAWA, ONTARIO
December 17, 2004
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3628-04
STYLE OF CAUSE: OSAMA FI SALEH OMAR v. SOLICITOR GENERAL OF CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 9, 2004
REASONS FOR ORDER BY: PINARD J.
DATED: December 17, 2004
APPEARANCES:
Me Stewart Istvanfy FOR THE APPLICANT
Me Michèle Joubert FOR THE RESPONDENT
SOLICITORS OF RECORD:
Stewart Istvanffy FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec