Date:
20121218
Docket:
IMM-1735-12
Citation:
2012 FC 1483
Ottawa, Ontario,
December 18, 2012
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
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ARSHAD MUHAMMAD
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision made by a Minister’s
Delegate rejecting the applicant’s Pre-Removal Risk Assessment (PRRA)
application. The applicant is identified under subsection 112(3) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act]. Therefore, his
application for protection was examined under the structure set out in section
172 of the Immigration and Refugee Protection Regulations, SOR/2002-227
[the Regulations].
[2]
For
the following reasons, the application for judicial review will be allowed.
Factual
Background
[3]
Mr.
Arshad Muhammad (the applicant) is a citizen of Pakistan and a Sunni Muslim. He
arrived in Canada on August 2, 1999, at Pearson International Airport in Toronto, using a false Italian passport (Applicant’s Application Record, Vol 1,
Affidavit of Humera Ahsan, Exhibit “A”, p 72). The applicant was interviewed
at the Port of Entry by immigration officials where he declared having been a
member of a Sunni party in Pakistan.
[4]
Upon
arriving in Canada, the applicant initially resided in Montreal (Applicant’s
Application Record, Vol 1, p 72). He claimed refugee status, but his claim was
denied on October 16, 2001 (Applicant’s Application Record, Vol 2, pp 488-501).
The Board held that the applicant should be excluded from the definition of a
“Convention Refugee” pursuant to Articles 1F(a) and (c) of the UNHCR 1951
Convention Relating to the Status of Refugees (the Refugee Convention)
because of his membership to a terrorist organization banned by the Pakistani
government (Applicant’s Application Record, Vol 2, pp 497 and 880). The Board
based its decision on the applicant’s declarations at the Port of Entry and
statements he made in his Personal Information Form (PIF) about being a member
of a terrorist group for a brief period of time (Applicant’s Application
Record, Vol 1, Affidavit of Humera Ahsan, Exhibit “A”, p 73). The applicant
sought judicial review of the decision on his refugee claim to this Court, but
application for leave was denied on February 6, 2002 (Applicant’s Application
Record, Vol 2, p 881). The applicant is the subject of a removal order which
became effective on February 5, 2002 (Applicant’s Application Record, Vol 2, p
514).
[5]
The
applicant now claims that the declarations he made at the Port of Entry and on
his PIF were untrue – he claims to have been coached to say he was a member of
this organization in order to have his refugee claim accepted (Applicant’s
Application Record, Vol 2, p 881).
[6]
The
applicant subsequently applied for permanent residence on humanitarian and
compassionate grounds, which was refused on November 5, 2002. He submitted a
first PRRA application on October 30, 2002, which was also refused on March 19,
2003 (Applicant’s Application Record, Vol 2, p 881). Prior to receiving these
two (2) negative decisions, the applicant allegedly wrote to his former counsel
advising that he was leaving Montreal and going back to Pakistan; however, he relocated to Toronto (Tribunal Record, Vol 1, p 5).
[7]
The
applicant was told to attend an interview with CBSA in January 2003 but did
not, claiming he was afraid he would be jailed and returned to Pakistan if he went to the interview (Applicant’s Application Record, Vol 2, p 881). A
warrant for his removal was issued on July 3, 2003.
[8]
The
applicant worked in the construction industry in Toronto until his arrest in
July 2011. The applicant was apprehended a few days after the Canada Border
Services Agency (CBSA) had released his name, photograph, and last known
whereabouts, along with that of twenty-nine (29) other individuals, on its
website under the heading “Wanted by the CBSA” (hereafter, “CBSA’s list”). The
website description stated: “These individuals are the subject of an active
Canada-wide warrant for removal because they are inadmissible to Canada. It has been determined that they violated human or international rights under the Crimes
Against Humanity and War Crimes Act, or under international law.”
(Applicant’s Application Record, Vol 2, p 881). The applicant is currently
detained at the Toronto West Detention Centre.
[9]
The
applicant claims that his case has received a significant amount of publicity
after having been on the CBSA’s list and as a result of Canadian officials
publicly stating that the applicant was linked to an Islamist organization
involved in terrorist attacks in Pakistan. According to the applicant, this
media attention is widespread in Canada, but also in Pakistan (Applicant’s
Application Record, Vol 2, p 882).
[10]
The
applicant submits that his family was threatened in Pakistan. On July 28, 2011,
individuals allegedly went to the applicant’s family home and threatened to
kill him. On August 23, 2011, the applicant’s brother was allegedly attacked
and asked about the applicant’s whereabouts (Applicant’s Application Record,
Vol 2, p 882).
[11]
The
applicant submitted a second PRRA application on August 3, 2011, claiming that
new facts had arisen since July 2011. He submitted that he was a person in need
of protection because of the publicity surrounding his case (Applicant’s
Application Record, Vol 1, pp 34 and 45).
[12]
The
following new facts were alleged in the applicant’s 2011 PRRA application
(Applicant’s Application Record, Vol 1, p 45):
1. CBSA identified the
applicant as an individual who was the subject of an active Canada-wide warrant
for removal for violating human or international rights under the Crimes
Against Humanity and War Crimes Act, and Canadian officials publicly stated
that he was a member of an Islamist group that has committed terrorist acts in
Pakistan;
2. These allegations have
been widely disseminated in the media, in Canada and internationally, along
with the applicant’s photograph and personal information;
3. The applicant’s family
in Pakistan has received death threats and has filed a police report pertaining
to death threats made against the applicant himself; and
4. On August 2, 2011, the
Board member presiding over the applicant’s detention review found that there
was a serious possibility of risk upon the applicant’s removal to Pakistan.
[13]
The
applicant submits that possible risks in Pakistan include extreme physical
abuse while in custody (Tribunal Record, Vol 2, p 101-04), unlawful detention
and extrajudicial killings (Applicant’s Application Record, Vol 2, p 883). The
applicant also alleges risks from sectarian groups or vigilantes.
[14]
The
applicant’s 2011 PRRA application (Tribunal Record, Vol 2, pp 97-109) received
a positive outcome: on October 7, 2011, the PRRA Officer found that the
applicant would be subject to risk should he be removed to Pakistan because he would be of interest to the Pakistani authorities. The Officer assessed the
applicant’s PRRA on the basis that he would be perceived as a member of
a terrorist organization, since the applicant now claimed that he was not
actually a member of such a group and lied to Canadian authorities, thinking it
would aid his refugee claim. The PRRA Officer examined objective documentary
evidence identifying human rights abuses at the hands of state authorities and
law enforcement. The Officer found that the applicant’s case had been widely
reported in Canada and somewhat in English-language media in Pakistan, and concluded that the Pakistani authorities are likely aware of the allegations
made against the applicant. Given the consensus from objective documentation on
the mistreatments of Pakistani citizens at the hands of the Pakistani police
and security forces, the Officer found that it was more likely than not that
the applicant would face risk if returned. The PRRA Officer found that there
was an internal flight alternative (IFA) with respect to the threat by
vigilante groups, but not with respect to the threat by state authorities.
[15]
As
required by subparagraph 113(d)(ii) of the Act, on December 15, 2011,
the CBSA produced an assessment of the nature and severity of the acts
committed by the applicant and the danger that he constitutes to the security
of Canada (Applicant’s Application Record, Vol 2, pp 514-27). It determined
that it had insufficient information to establish that the applicant is a
danger to the security of Canada and that he was “complicit by association” in
the acts committed by the terrorist group (Applicant’s Application Record, Vol
2, p 526). The CBSA wrote that it was not established that the applicant was
directly involved in the perpetration of international crimes, and that “this
may not be sufficient to justify his removal from Canada should he be found at
risk” (Applicant’s Application Record, Vol 2, p 527).
[16]
The
PRRA outcome and the CBSA’s security assessment were disclosed to the applicant
in December 2011 for comment before being sent to the Minister’s Delegate. The
applicant provided written submissions on January 17, 2012 (Applicant’s
Application Record, Vol 2, pp 533-56). The submissions included the following
arguments: (i) the Minister’s Delegate should only weigh and balance the PRRA
and CBSA’s security assessment and not re-evaluate the risk assessment; (ii)
the Minister’s Delegate should not reassess risk because he/she is not
sufficiently independent to do so; (iii) the Minister’s Delegate is biased in
the assessment of risk because the concerned Ministers have a vested interest
in the outcome of the case; (iv) the PRRA should not be reversed because it was
correct.
[17]
The
Minister’s Delegate considered both the positive PRRA and CBSA’s assessment and
rendered a negative decision on February 16, 2012, rejecting the applicant’s
PRRA (Tribunal Record, Vol 1, pp 1-27). The Minister’s Delegate’s decision is
the one under review before this Court.
[18]
On
February 17, 2012, the applicant was served with a Notification for Removal
Arrangements following the Minister’s Delegate’s decision. Removal was
scheduled for February 28, 2012. This Court granted a motion for stay of removal
on February 27, 2012, pending the outcome of the present application
(Applicant’s Application Record, Vol 2, p 888).
The Impugned
Decision
[19]
The
Minister’s Delegate rendered a decision in which it determined that the
applicant would not be at risk of torture, risk to life or risk of cruel and
unusual treatment or punishment should he be returned to Pakistan. Having concluded that the applicant would not be facing the risks identified in
section 97 of the Act, the Minister’s Delegate did not balance this finding
with CBSA’s assessment of the seriousness of the applicant’s actions and the
danger he poses to Canada (Tribunal Record, Vol 1, p 25).
[20]
The
Minister’s Delegate examined the PRRA Officer’s risk assessment and cited
excerpts from it. In response to the applicant’s counsel’s written submissions,
the Minister’s Delegate noted that the PRRA Officer’s risk assessment is only
an opinion, not a decision, as he or she does not have the delegated authority
over this matter. The Minister’s Delegate also explained the staffing procedure
for her position, stating that she is an officer working for CIC, not CBSA;
that delegates are not personally chosen by the Minister; and that the process
that named her in this position is the same as the one used to choose a PRRA
officer (involving a competition, examination and interview). The Minister’s
Delegate indicated that this process is free from ministerial involvement
(Tribunal Record, Vol 1, pp 7-9).
[21]
With
regards to the applicant’s concerns as to bias, the Minister’s Delegate
affirmed that her mandate is neither to confirm nor contest the political
validity of the CBSA’s list. She noted that media interest in the applicant’s
case has diminished over time, and that lately it was the applicant’s counsel
himself who attracted media attention with his client’s case. The Minister’s
Delegate indicated that her decision was based solely on her interpretation of
the evidence before her and is free from political influence (Tribunal Record,
Vol 1, p 9).
[22]
In
her assessment of risk, the Minister’s Delegate did not agree that the
Pakistani authorities would be as interested in a person with alleged links to
a terrorist organisation as the Canadian authorities are when such a person
arrives in Canada because terrorist organizations are more prevalent in Pakistan (Tribunal Record, Vol 1, p 12). She noted that although it is a known practice to
have government representatives enquire with relatives as to an individual’s
whereabouts in Pakistan, this has not been alleged in this case. The Minister’s
Delegate considered that it was reasonable to believe that, given the sheer
number of supporters of the group the applicant allegedly belongs to in Pakistan, the applicant would practically have gone unnoticed were it not for CBSA’s list.
After consulting objective evidence, she found it reasonable to believe that
the applicant would be of interest to the authorities, would be questioned and
may be labelled as a member of a terrorist group and suffer discrimination. She
noted that there was no report of ill treatment by the authorities in the
evidence she consulted, but that it was not “ruled out” (Tribunal Record, Vol
1, p 19). The Minister’s Delegate found that, although the applicant could be
subjected to questioning upon arrival, he might be detained if he mentioned his
allegiance to the group or was recognized from the media reports. Although
there are gross violations of human rights in Pakistan, this did not constitute
sufficient grounds for determining that the applicant faced a danger of being
tortured (Tribunal Record, Vol 1, p 21).
[23]
With
regards to the risk from non-state actors, the Minister’s Delegate found it
hard to believe that with only a photograph, date of birth and name, the
applicant’s family was found and threatened (Tribunal Record, Vol 1, p 23).
[24]
The
Minister’s Delegate concluded that former members of the group to which the
applicant allegedly belongs are not currently targeted by authorities in Pakistan, that the evidence does not show that the applicant occupied a high rank in the
group, or that he has maintained links with it. Although discrimination, arrest
and questioning upon return to Pakistan are likely in the applicant’s case, the
Minister’s Delegate concluded that the applicant did not establish a connection
between him being recognized in the media reports and risks as described in
section 97 of the Act.
[25]
Having
made a negative determination on risks, the Minister’s Delegate did not engage
in a balancing exercise of the PRRA and CBSA’s security assessment and denied
the applicant’s application for protection (Tribunal Record, Vol 1, p 26).
Issues
[26]
Several
issues are raised in the present case:
1. Is the affidavit of
Jillan Sadek filed by the respondent admissible?
2. Did the Minister’s
Delegate breach the principles of natural justice by relying on extrinsic
evidence that was not disclosed to the applicant?
3. Did the Minister’s
Delegate err in her assessment of the evidence?
4. Did the Minister’s
Delegate have the jurisdiction to override the PRRA Officer’s conclusions with
respect to risk of return to torture?
5. Did the Minister’s
Delegate lack independence to render a decision in relation to risk of return
to torture?
6. Was there an
apprehension of bias with respect to the Minister’s Delegate due to the direct
involvement of the Minister of Citizenship and Immigration in the case and the
close proximity of the decision-maker to the Minister?
Statutory
Provisions
[27]
The
relevant statutory provisions are included in Annex to the judgment. The
statutory scheme particular to this case is set out in both the Act and
Regulations.
Standard of Review
[28]
The
parties do not disagree on the proper standard of review to apply to each issue
raised in the present case. Issues that pertain to procedural fairness and
natural justice are reviewable on a standard of correctness (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]; Geza v Canada
(Minister of Citizenship and Immigration), 2006 FCA 124, [2006] 4 FCR 377; Benitez
v Canada (Minister of Citizenship and Immigration), 2006 FC 461 at para 44,
[2007] 1 FCR 107). Therefore, the issues of whether the Minister’s Delegate
breached procedural fairness by relying on extrinsic evidence and lack of
independence are reviewable on a standard of correctness. Similarly, the issue
of whether or not the Minister’s Delegate could re-assess the PRRA is a
question of jurisdiction involving the interpretation of the Act and its
Regulations, and is reviewable on a standard of correctness (Dunsmuir,
above, at paras 50 and 59). The parties agree that the standard of review
applicable to the Minister’s Delegate’s assessment of the evidence is
reasonableness (Dunsmuir, above; John v Canada (Minister of
Citizenship and Immigration), 2012 FC 688, [2012] FCJ No 657 (QL)).
Analysis
[29]
As
a preliminary comment, the Court finds it useful to recall the process involved
for removal in cases like the one at bar, where the applicant is identified
under subsection 112(3) of the Act. According to paragraph 112(3)(c) of
the Act, a person whose refugee claim is rejected on the basis of section F of
Article 1 of the Refugee Convention, as is the case with the applicant,
cannot obtain refugee protection.
[30]
As
such, a PRRA for someone described in subsection 112(3) of the Act will only
consider factors set out in section 97 of the Act, and not section 96.
Paragraph 113(d) of the Act sets out the factors to consider for persons
identified under subsection 112(3). In this case, the factors set out in
section 97 must be considered along with the nature and severity of acts committed
by the applicant or the danger he constitutes for Canada’s security
(subparagraph 113(d)(ii) of the Act).
[31]
Furthermore,
pursuant to paragraph 114(1)(b) of the Act, a positive PRRA decision in
such a case would only result in staying the removal order against that person,
not refugee protection. Subsections 172(1) and (2) of the Regulations provide
that before allowing or rejecting the application of someone identified in
subsection 112(3) of the Act, the Minister (or his delegate) shall consider the
written assessment on the section 97 factors (the PRRA), a written assessment
on the factors set out in subparagraph 113(d)(i) or (ii), whichever the
case may be (in this case, CBSA’s assessment on nature and severity of the acts
and danger to Canada), and any written response from the applicant. This is the
process that was undertaken in the case at bar.
[32]
The
Court now turns to the issues raised by the parties.
First Issue: Is the affidavit of
Jillan Sadek admissible?
[33]
As
a general principle, hearsay is a statement provided for the truth of its
content, but which cannot be tested through cross-examination. It is presumed
inadmissible, unless it is shown to be necessary and reliable (R v Khelawon,
2006 SCC 57 at paras 2-3 and 35, [2006] 2 S.C.R. 787).
[34]
In
the present case, the respondent submitted an affidavit by Jillan Sadek, who is
not the Minister’s Delegate who rendered the final PRRA decision in the
applicant’s case. Ms. Sadek, Director of Case Review with Citizenship and
Immigration Canada, provided evidence of her knowledge of staffing procedures
for the Minister’s Delegate’s position (Director, Case Determination) and
attached as Exhibit “A” to her affidavit a Public Service Staffing
Advertisements and Notifications which outlines the necessary qualifications
for the said position. She also provided questions and answers, asked and
responded to by email, between herself and the Minister’s Delegate who decided
on the applicant’s PRRA. Both parties agree that this evidence is hearsay. The
Minister’s Delegate did not swear the affidavit herself because she was on bed
rest due to her pregnancy when the affidavit was sworn (August 10, 2012), on
vacation from August 16, 2012 to August 31, 2012, and expecting a child in
September and thus was expected to be on maternity leave.
Applicant’s Position
[35]
The
applicant submits that the affidavit of Ms. Sadek, filed by the respondent on
August 14, 2012, contains hearsay and is therefore inadmissible. The applicant
submits that, if the Minister’s Delegate herself had sworn the affidavit, he
would have cross-examined her on certain answers in order to obtain further
evidence on the structure of the Minister’s Delegate’s office, the assignment
of files and how work is distributed in order to establish whether there is an
independent, impartial system in place. Although the respondent agrees that the
affidavit contains hearsay, the respondent contends that the affidavit is
necessary and reliable and thus should be admissible.
Analysis
[36]
The
criterion for necessity were set out in R v F (WJ) (WJF), [1999] 3 SCR
569, 178 DLR (4th) 53. At paragraph 36, the Court stated that necessity “is a
matter of whether, on the facts before the trial judge, direct evidence is not
forthcoming with reasonable effort” and that “reasons for necessity may be
diverse”. In the present case, the Minister’s Delegate is unavailable for
medical reasons. In Farzam v Canada (Minister of Citizenship and
Immigration), 2005 FC 1432, 143 ACWS (3d) 308, the person susceptible of
giving evidence was in another country and unwilling to give evidence or
participate in the procedures in any way. The Court was not satisfied that
reasonable efforts were made to obtain direct evidence.
[37]
In
the present case, the Minister’s Delegate was not unwilling, but unavailable
for medical reasons, holidays, and maternity leave. The Court notes that the
Certified Tribunal Record was produced on July 23, 2012, thus reducing the
window of time during which the respondent could reasonably file an affidavit.
The Court also notes that the Minister’s Delegate was away in August on bed
rest. The affidavit presents relevant and reliable information, consistent with
previous statements made by the Minister’s Delegate prior to litigation. While
the applicant could have cross-examined the affiant on the matters for which
she had personal knowledge – namely, the accuracy of the reproduced answers, as
well as organizational structure and case assignment – the Court notes that the
applicant chose not to do so. The case of Ka’a’Gee Tu First Nation v Canada
(Attorney General), 2012 FC 297 at para 85, [2012] FCJ No. 327 (QL), cited
by the applicant, states that the Federal Court “may strike all or portions of
affidavits in circumstances where they are abusive, clearly irrelevant, or
contain opinion, argument or legal conclusion”. The Court is of the view that,
in the circumstances, the respondent’s affidavit is neither abusive nor
irrelevant, and does not contain opinions or arguments.
[38]
Therefore,
it is difficult for the Court to agree with the applicant that the filing of
this affidavit was prejudicial. In light of the Minister’s Delegate’s
unavailability, the relevance and reliability of the information presented in
the affidavit (as corroborated by Exhibit “A” and the Minister’s Delegate’s
previous similar statements), the Court finds the affidavit admissible.
Second
Issue: Did the Minister’s Delegate breach the principles of natural justice by
relying on extrinsic evidence that was not disclosed to the applicant?
Applicant’s Position
[39]
The
applicant submits that the Minister’s Delegate breached the principles of
natural justice by conducting her own research into the issue of risk of return
to torture and relying on extrinsic documents. The applicant alleges that this
is a breach of natural justice for two (2) reasons: (i) because the Minister’s
Delegate is not entitled to do her own research; and (ii) because the said
research did not involve recent, generally available documents which the
applicant would reasonably have assumed would be considered. The applicant
submits that at the first stage of the PRRA, the PRRA officer can consider
generally available country condition documents that were accessible at the
time submissions were made without disclosing them to the applicant (the test
outlined in Mancia v Canada (Minister of Citizenship and Immigration)
(CA), [1998] 3 FC 461, 161 DLR (4th) 488 [Mancia]). However, the
applicant alleges that, because the Minister’s Delegate is undertaking the
“second step” of the PRRA process for applicants described in subsection 112(3)
of the Act, she was not entitled to do further research without disclosing all
of it.
[40]
The
applicant argues that because section 7 of the Canadian Charter of Rights
and Freedoms, Part I of the Constitution Act, 1982, being Schedule B
to the Canada Act 1982 (UK), 1982, c 11 [Charter] is
engaged, the case is akin to Suresh v Canada (Minister of Citizenship and
Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 [Suresh] in that full
disclosure to the applicant was required, and the Minister’s Delegate had to
base her decision solely on the disclosed record. The applicant submits that
the Mancia test does not apply in the case at bar, but rather a full
disclosure pursuant to Suresh, above, is required. Alternatively, the
applicant submits that even if the Minister’s Delegate could undertake her own
research without disclosing all documents, the particular documents she relied
on would not be subject to the disclosure exemption outlined in Mancia,
above, because they are not general country conditions evidence and were not
part of the IRB documentation package at the time of the decision.
Respondent’s Position
[41]
Citing
Placide v Canada (Minister of Citizenship and Immigration), 2009 FC
1056, 359 FTR 217 [Placide], the respondent submits that the Minister’s
Delegate is entitled to conduct her own research and to consult publicly
available documents that have not been disclosed to the applicant. The
respondent submits that the applicant himself in his own PRRA submissions
referred to documents similar to and published in the same year as the ones
with which he now takes issue. The respondent further notes that the documents
relied upon by the Minister’s Delegate are publicly available from the UNHCR
website. The respondent also submits that the disclosure requirements under Suresh,
above, do not apply in this case because in Suresh, the information
required to be disclosed did not pertain to country conditions and was not
publicly available – rather, the documents were directly relevant to Mr. Suresh
personally. The respondent also adds that it is inaccurate to say that the
Minister’s Delegate had to make full disclosure in Suresh, above.
Indeed, the Minister’s Delegate was under no duty to disclose a memorandum that
contained materials that were generally known to the applicant and information
that was publicly available (Suresh v Canada (Minister of Citizenship and
Immigration) (1999), 173 FTR 1, 50 Imm LR (2d) 183 (FCTD); Suresh v
Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 SCR
3).
Analysis
[42]
As
this Court has already stated in Placide, above, a Minister’s Delegate
deciding on an application for protection is entitled to conduct her own
research. She is entitled to do so because she is not engaging in a review of
the PRRA Officer’s assessment, and need not limit herself to the information
that was considered at that level. Furthermore, the documents concerned in the
present case are quite different than the ones at issue in Suresh,
above. They are publicly available documents pertaining to country conditions
and do not specifically and personally relate to the applicant. Therefore, the
decision in Mancia, above, applies to the present case. As indicated in Guzman
v Canada (Minister of Citizenship and Immigration), 2004 FC 838, 131 ACWS
(3d) 1124, and cited in Placide, above at para 39, IRB documents are not
extrinsic documents. They are from a public source and are available online and
at IRB documentation centres.
[43]
In
this case, the applicant objects to the use of three (3) documents: (i)
“Project Thread” document, PAK42394.E, dated March 3, 2004; (ii); United States
Department of State Report, July-December, 2010 International Religious
Freedom Report – Pakistan, dated September 13, 2011 [Religious Freedom
Report]; and (iii) Jamestown Foundation Report, Islamist Reaction to the
NATO Airstrike on the Pakistani Border, dated December 9, 2011 (Tribunal
Record, Vol 1, pp 68-94). The documents are available online through the
Immigration and Refugee Board of Canada and on the UNHCR’s Refworld website.
However, the Court notes that the applicant himself has used a document from
that same website and same year in his PRRA submissions (Tribunal Record, Vol
2, pp 266-67; Vol 3, pp 348-62). It is therefore difficult to establish that
the applicant was not cognizant of such documents. While the weight that should
be attributed to these documents is a distinct matter that will be examined in
the following section of the present judgment, the question here is whether
they should have been disclosed.
[44]
Having
regard to the criteria outlined in Mancia, above, the Court finds no
error in the Minister’s Delegate’s use of these documents without prior
disclosure. The applicant is at the stage of a second PRRA application, and
thus has experience with the general process of decision-makers relying on such
documents, having already undergone the refugee application process as well as
another PRRA (Mancia, above, at para 25). The documents are available to
the public, are general and neutral because they do not refer to the applicant
personally, nor were they prepared specifically for his case (Mancia,
above, at para 26). Finally, as was the case in Mancia, above, at para
24, the Regulations do not impose a duty upon the Minister’s Delegate to
disclose the information on which she relies. The sole procedural right
afforded to the applicant under subsection 172(1) of the Regulations is to make
written submissions which must be considered by the Minister’s Delegate. While
the Regulations do not expressly allow the Minister’s Delegate to conduct her
independent research, neither do the provisions pertaining to the PRRA officer
in a regular (i.e., non-subsection 112(3)) case (sections 161 and 162 of the
Regulations).
[45]
The
applicant references a number of cases which are distinguishable from the one
at bar. For instance, in Fi v Canada (Minister of Citizenship and
Immigration), 2006 FC 1125, [2007] 3 FCR 400, the PRRA officer had used
many documents from the Internet which were not available among the standard
documents found in the IRB documentation centres, and in particular, a document
from the Wikipedia website. In the present case, all documents used were
available from IRB documentation centres or the UNHCR’s website, Refworld. The
quality and reliability of these documents cannot be compared to an article
sourced from Wikipedia.
[46]
Also,
in Zheng v Canada (Minister of Citizenship and Immigration), 2011 FC
1359, 2011 FCJ No 1659 (QL) [Zheng], the applicant was before the
Refugee Board for the first time, a situation where all information relied on
must be disclosed to the applicant. The Board had used a document that had been
removed from the national information request package because its conclusions
were no longer accurate, and replaced with a different, more accurate and
recent document. The Court had considered this a breach of procedural fairness.
In the present case, there is no indication that the documents relied on by the
PRRA Officer are no longer accurate. The present situation is not one where an
old version of a document is replaced with a newer, significantly different
version that establishes the earlier version as being erroneous. The case of Zheng,
above, is a case where the document used was superseded by another one and is
therefore clearly distinguishable from the case at bar.
[47]
Nothing
in the jurisprudence allows the Court to conclude that all documents must be
disclosed in a situation like the applicant’s. The Court finds that there was
no breach in procedural fairness because the Minister’s Delegate engaged in her
own research and did not disclose documents that were general in nature and
publicly available from sources used by the applicant himself (the IRB
documentation centres and the UNHCR’s Refworld website). The Court reiterates
that the burden of demonstrating a breach in procedural fairness lies with the
applicant (Wang v Canada (Minister of Citizenship and Immigration), 2003
FC 833, 124 ACWS (3d) 776). The applicant has not discharged himself of that
burden.
Third Issue: Did the Minister’s
Delegate err in her assessment of the evidence?
Applicant’s Position
[48]
The
applicant submits that it is an error for a tribunal to engage in a selective
reading of the documentary evidence (citing Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35, 83 ACWS (3d) 264).
He argues that the Minister’s Delegate in this case ignored an important amount
of objective documentation supporting the fact that individuals held in custody
are tortured and mistreated, only to favor a few selective and irrelevant
excerpts that supported her negative conclusion on risks. The applicant cites
several recent documents that were before the Minister’s Delegate but were
ignored and claims that the Minister’s Delegate did not provide an analysis as
to why she preferred the documents she chose over the other evidence before
her. The applicant reiterates that section 7 of the Charter is engaged
in the present case because he faces the possibility of deportation despite the
presence of risk of torture or mistreatments.
Respondent’s Position
[49]
The
respondent submits that the Minister’s Delegate’s consideration of the evidence
was reasonable and that the Minister’s Delegate did not ignore documents, but
weighed them against the totality of the evidence. The respondent notes that a
decision-maker is not required to refer to all items of evidence before him or
her (citing Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16, [2011] 3 S.C.R. 708).
The respondent submits that the Minister’s Delegate’s decision is based on the lack
of evidence of the use of torture and abusive techniques with persons in
situations similar to that of the applicant and that the applicant failed
to establish that his profile was such that he would be of particular interest
to the Pakistani authorities. The respondent claims that the documents cited by
the Minister’s Delegate were particularly relevant to the applicant’s personal
circumstances, and that the Minister’s Delegate preferred more specific
evidence, which she was entitled to do.
[50]
The
respondent submits that the Minister’s Delegate was aware of the situation in
Pakistan with regards to human rights, but a poor human rights record is not
sufficient – a connection must be established between the applicant and these
conditions (Ventura v Canada (Minister of Citizenship and Immigration),
2010 FC 871 at paras 24-25, 90 Imm LR (3d) 264) and the evidence does not
support a finding that detainees of the applicant’s profile would be subject to
abuses.
Analysis
[51]
The
Court recalls that the standard of review for the present issue is that of
reasonableness, deference being owed to a decision-maker for the evaluation of
the evidence. However, for the reasons that follow, the Court is of the view
that the Minister’s Delegate’s assessment of the documentary evidence before
her was unreasonable.
[52]
The
Minister’s Delegate referred to a Country of Origin Information Report from the
United Kingdom Home Office, dated September 29, 2011 (Tribunal Record, Vol 1,
pp 52-67), in which it is stated that failed refugees are detained and
interviewed if they “are alleged to have violated any law in respect of
travel/visit to a foreign country, e.g. traveled on fake travel documents”
(Tribunal Record, Vol 1, p 19). This is applicable to the applicant, having
traveled with a false Italian passport. The same document stated that all
deportations are inquired into, and that “if a failed applicant for refugee
status is handed over by the country concerned to Pakistani authorities,
Pakistani FIA/relevant authorities would question such a person.” (Tribunal
Record, Vol 1, p 20). Finally, that same report states that “[i]f a person’s
refugee status gets a lot of media publicity, the government will inquire into
it.” (Tribunal Record, Vol 1, p 21). From this document, the Minister’s
Delegate concluded that detention and questioning at arrival were reasonably
possible if the applicant was recognized from the media reports.
[53]
The
Minister’s Delegate consulted another document dealing with the “Project
Thread”, PAK42394.E, dated March 3, 2004 (Tribunal Record, Vol 1, pp 68-71).
The applicant takes issue with the use of this document, which is older (the
events having occurred in 2003) but somewhat relevant, as it illustrates what
happens when the Canadian government labels Pakistani citizens as suspected
terrorists, and returns these individuals to Pakistan – a situation very
similar to the one at bar. From this document, the Minister’s Delegate
concluded that the applicant would be of interest to the authorities, that he
would be questioned, and that he might be labeled as a member of a terrorist
organization. She also concluded that he might be discriminated against, and
that ill treatment by the authorities was not “ruled out” (Tribunal Record, Vol
1, p 19)
[54]
The
Minister’s Delegate then cites excerpts from the PRRA Officer’s report that
illustrate the problems with torture and mistreatment of individuals by state
authorities while in custody (Tribunal Record, Vol 1, pp 21-23). She then
states that she has researched information pertaining to the particular
treatment of individuals with links to the same group as the applicant, and
cites (i) a September 13, 2011 report by the US Department of State (July-December,
2010 International Religious Freedom Report – Pakistan; Tribunal Record,
Vol 1, pp 72-91) [Religious Freedom Report] and (ii) a Jamestown Foundation
Report, dated December 9, 2011 (Islamist Reaction to the NATO Airstrike on
the Pakistani Border; Tribunal Record, Vol 1, pp 92-94). The applicant
takes issue with these two (2) reports, arguing that they are irrelevant.
[55]
The
Jamestown Foundation Report recounts reactions from Islamist groups and
Pakistani authorities following a hit by NATO air strike on two (2) Pakistani
Army check posts in November 2011. Following this air strike, the group with
which the applicant is linked organized anti-NATO protests in various cities.
The Minister’s Delegate relies on this document because it does not expressly
mention that there were detentions or ill treatments of the protesters.
However, the Court notes that the scope of this article was cross-border
militancy and not human rights or treatment of protesting individuals. Given
the nature of this report, the Court remains unconvinced that the article would
have mentioned detention or ill treatment even if they had occurred. The
Minister’s Delegate does not provide any distinction or any explanation in that
respect and there is no information to the contrary.
[56]
The
Religious Freedom Report contains information on blasphemy laws and other
discriminatory legislation. It indicates that the government is taking some
steps to improve religious freedom, and that 95% of the population is Muslim
(of which 75% are Sunni, like the applicant, and 25% are Shia). The report
mainly focuses on mistreatments that religious minorities endure. It
does speak of religious prisoners and detainees, indicating that “[n]on-Muslim
prisoners generally were accorded poorer facilities than Muslim inmates”
(Tribunal Record, Vol 1, p 81). When noting attacks on holy places of religious
minorities, the report did indicate that no arrests had been made yet
(indicating that this report might include this type of information if it was
available; Tribunal Record, Vol 1, p 83). However, the scope of the report is
aimed at religious freedoms and various mistreatments that religious minorities
suffer in Pakistan. The applicant is not a member of a religious minority – he
is a Sunni Muslim. Furthermore, while the document might report on arrests, it
does not report on treatment within prisons or otherwise at the hands of
authorities.
[57]
The
Minister’s Delegate uses these reports to support the notion that members of
the applicant’s group are not necessarily arrested, tortured or subjected to
ill treatment by the authorities because the said reports are silent on the
subject. The Court takes issue with the use by the Minister’s Delegate of the
Jamestown Foundation Report and the Religious Freedom Report: these two (2) documents,
which are narrow in scope, are weak in comparison to all the other documentary
evidence pointing to mistreatment and torture while detained.
[58]
The
objective country conditions evidence clearly demonstrates poor prison
conditions, torture and ill treatment by the police and security forces for
individuals in custody. However, the Court is cognizant that this is
insufficient: it remains incumbent on the applicant to show how this evidence
relates to him. The applicant was reported in the media, including mid-eastern
media, as being linked to a terrorist organization. The Minister’s Delegate
states that the applicant would have gone unnoticed in Pakistan, given the sheer number of supporters of the applicant’s group, were it not for
CBSA’s list. It follows that the Minister’s Delegate believes that the
applicant will not go unnoticed. This is therefore the profile of the applicant
– a failed refugee claimant who will be returned to Pakistan by Canadian
authorities, who is said to be linked with a terrorist organization, and who
will not go unnoticed.
[59]
The
Minister’s Delegate uses the Religious Freedom Report and the Jamestown
Foundation Report to discount recent information about mistreatments at the
hands of officials, police officers and security forces towards detainees. The
Court finds that the reliance on absence of information in two (2) very narrow
documents to rebut the information that is present in a significant amount of
other recent and relevant documents is, in these circumstances, unreasonable.
[60]
The
Minister’s Delegate also considered recent information that states that all
deportations are inquired into. It logically follows that Pakistani authorities
would inquire as to the reason for the applicant’s deportation. The Minister’s
Delegate concluded that, should the Pakistani authorities discover the
applicant’s link to the banned group, there was a reasonable possibility that
he would be detained and questioned, but nonetheless concluded that there was
no risk. Given the evidence of mistreatment of persons in custody, the Court
finds that the Minister’s Delegate’s conclusion that the applicant would not
likely face risk of torture or mistreatments is unreasonable and contradictory
to her analysis.
[61]
The
Minister’s Delegate recognized a risk of questioning and possible detention
upon arrival in Pakistan. She was in possession of the initial PRRA, which had
concluded to the presence of risk and extremely difficult conditions for
detained persons. Given the use of insufficient documentation to justify her
conclusions which were contrary to the initial PRRA assessment, and contrary to
the bulk of country conditions evidence, the Court finds that the Minister’s
Delegate’s treatment of the evidence was unreasonable. Furthermore, the
Minister’s Delegate’s statement that ill treatment was “not ruled out” raises a
doubt with regards to the reasonableness of her assessment. While she is not
required to show that ill treatment is “ruled out” in order to dismiss a PRRA,
the test being whether it is more likely than not that the applicant would
experience ill treatment (Li v Canada (Minister of Citizenship and
Immigration), 2005 FCA 1, [2005] 3 FCR 239), the Minister’s Delegate fails
to adequately justify, on the basis of the evidence, why she concludes that the
applicant will likely not be at risk. The Court’s intervention is therefore
warranted.
[62]
The
Court’s conclusion on this issue is determinative of the application for
judicial review and there is no need to address the other issues.
The Proposed
Questions for Certification
[63]
The
applicant has proposed three (3) questions for certification in the present
application:
1. Is the Minister’s
Delegate required to provide full disclosure to the PRRA applicant of all
material considered by him/her prior to rendering a decision on the application
for protection made pursuant to section 112(3) and 113(d) of the Act?
2. Can the Minister’s
Delegate, when assessing an application for protection pursuant to sections
112(3) and 113(d) of the Act, go behind the conclusion of the PRRA
Officer that the applicant is at risk pursuant to section 97 and make a finding
that the applicant is not at risk?
3. Does the Minister’s
Delegate possess sufficient independence and impartiality to render decisions
pursuant to section 112(3) and 113(d) when section 7 Charter
rights are engaged?
[64]
Given
the Court’s finding that the Minister’s Delegate’s decision was unreasonable,
and the ensuing consequence that this application for judicial review will be
granted, none of the proposed questions are determinative of the application (Liyanagamage
v Canada (Secretary of State) (1994), 176 NR 4, 51 ACWS (3d) 910; Zazai
v Canada (Minister of Citizenship and Immigration), 2004 FCA 89 at para 12,
318 NR 365). Therefore, the Court will not certify the proposed questions in
light of its conclusion on the reasonability of the Minister’s Delegate’s
decision.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
allowed. The Minister’s Delegate’s decision dated February 16, 2012 is set
aside and the matter is remitted back to a different Minister’s Delegate for
re-determination. No question is certified.
“Richard Boivin”
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