Docket: IMM-2225-11
Citation: 2012 FC 274
Toronto, Ontario, February 28, 2012
PRESENT: The
Honourable Mr. Justice Hughes
BETWEEN:
|
|
HAFEEZ
OMAR PERSAUD
|
|
|
|
Applicant
|
|
and
|
|
|
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The Applicant is an adult male citizen of Guyana. He came to Canada when he was twelve years old and unsuccessfully applied for refugee
protection. He was ordered to be deported. He then applied for a pre-removal
risk assessment (PRRA). That application was determined, without a hearing, and
rejected in a decision dated the 26th day of February 2011. This is
an application for a judicial review of that decision. For the reasons that
follow I am dismissing that application. Neither counsel requested certification
of a question and I will not do so.
[2]
Briefly, the Applicant arrived in Canada from Guyana when he was twelve years old. Except to attend his grandmother’s
funeral, he has never returned. In his late teens the Applicant had a stormy
relationship with a girlfriend. While arguing in an automobile he struck her
with a rear view mirror causing injury to her. At a later time he struck her
with a mobile phone. He was convicted of assault. There were subsequent
convictions for criminal harassment and uttering threats against the same
person.
[3]
The Applicant’s submissions to the PRRA Officer
were essentially that, as a criminal deportee to Guyana, he would suffer harassment and cruel and unusual punishment in the
community and in the hands of the Guyanese police. He also asserted that as a
person of Indian ethnicity he feared discrimination. Except for a letter from a
lawyer representing a relative in Guyana stating that the relative did not want
the Applicant to live with her should he return to Guyana because of the
possibility of excessive police surveillance, none of the evidence was personal
to the Applicant and much of it was eight to ten years old.
[4]
The PRRA Officer rejected the application on a
number of grounds including the adequacy of state protection. The Officer found
that the Applicant had not presented any clear and convincing evidence to rebut
the presumption of state protection. Applicant’s counsel in his written
submissions, which he touched on only briefly in his oral submission before me,
said very little about this except to argue that the Officer should have
analyzed the Applicant’s credibility and the plausibility of his assertions.
[5]
Nowhere did the Officer question the Applicant’s
credibility. Credibility is not mentioned in the decision. Simply because an
Applicant requests a hearing anticipating that credibility may be an issue does
not mean that a hearing must be held. While it is true that in some cases a
PRRA Officer has in reality made credibility findings in the guise of something
else and should have held a hearing, that is not the case here. Credibility was
not an issue. The PRRA Officer simply, and I find reasonably, found that the
Applicant had not rebutted the presumption of state protection. That is the end
of the matter.
[6]
I will, however, go on to discuss the principal
issue raised by the Applicant in his Counsel’s Memorandum and by his Counsel at
the hearing. The issue was stated as:
“Did the
Officer err by ignoring probative evidence and thereby rendering an
unreasonable decision?”
[7]
This is an issue, stated in one way or another,
often raised in a judicial review of this nature. What follows in Counsel’s written
and oral argument is often a microscopic, detailed, lengthy review of every
piece of evidence in the record that may possibly be considered as supportive
of Counsel’s client’s case. The written evidence is often presented in bold
type and in Counsel’s oral argument presented with great forensic skill so as
to emphasise and elevate its importance. The conclusion a Court is urged to
reach is that such “important” evidence was overlooked by the Officer or not
stated in the reasons thus the decision must be considered “unreasonable”.
Often reliance is placed on the decision of Evans J (as he then was) in Cepeda-Gutierrez
v Canada
(Minister of Citizenship and Immigration), [1998]
FCJ No 1425, 157 FTR 35, or quotations from that decision in later cases.
[8]
What must be remembered is that the omitted piece
of evidence referred to by Evans J in Cepeda-Gutierrez was a
psychological report specific to the Applicant, it was not some general country
condition report or other document non-specific to the Applicant. This is what
caused Evans, J to write at paragraphs 14 to 17:
[14] It is well
established that section 18.1(4)(d) of the Federal Court Act does not authorize
the Court to substitute its view of the facts for that of the Board, which has
the benefit not only of seeing and hearing the witnesses, but also of the
expertise of its members in assessing evidence relating to facts that are
within their area of specialized expertise. In addition, and more generally,
considerations of the efficient allocation of decision-making resources between
administrative agencies and the courts strongly indicate that the role to be
played in fact-finding by the Court on an application for judicial review
should be merely residual. Thus, in order to attract judicial intervention
under section 18.1(4)(d), the applicant must satisfy the Court, not only that
the Board made a palpably erroneous finding of material fact, but also that the
finding was made "without regard to the evidence": see, for example, Rajapakse
v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 649
(F.C.T.D.); Sivasamboo v. Canada (Minister of Employment and Immigration),
[1995] 1 F.C. 741 (F.C.T.D.).
[15] The Court may infer
that the administrative agency under review made the erroneous finding of fact
"without regard to the evidence" from the agency's failure to mention
in its reasons some evidence before it that was relevant to the finding, and
pointed to a different conclusion from that reached by the agency. Just as a
court will only defer to an agency's interpretation of its constituent statute
if it provides reasons for its conclusion, so a court will be reluctant to
defer to an agency's factual determinations in the absence of express findings,
and an analysis of the evidence that shows how the agency reached its result.
[16] On the other hand,
the reasons given by administrative agencies are not to be read hypercritically
by a court (Medina v. Canada (Minister of Employment and
Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies
required to refer to every piece of evidence that they received that is
contrary to their finding, and to explain how they dealt with it (see, for
example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147
N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon
administrative decision-makers who may be struggling with a heavy case-load and
inadequate resources. A statement by the agency in its reasons for decision
that, in making its findings, it considered all the evidence before it, will
often suffice to assure the parties, and a reviewing court, that the agency
directed itself to the totality of the evidence when making its findings of
fact.
[17] However, the more
important the evidence that is not mentioned specifically and analyzed in the
agency's reasons, the more willing a court may be to infer from the silence
that the agency made an erroneous finding of fact "without regard to the
evidence": Bains v. Canada (Minister of Employment and Immigration)
(1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden of
explanation increases with the relevance of the evidence in question to the
disputed facts. Thus, a blanket statement that the agency has considered all
the evidence will not suffice when the evidence omitted from any discussion in
the reasons appears squarely to contradict the agency's finding of fact.
Moreover, when the agency refers in some detail to evidence supporting its
finding, but is silent on evidence pointing to the opposite conclusion, it may
be easier to infer that the agency overlooked the contradictory evidence when
making its finding of fact.
[9]
This view as to adequacy of reasons is to be
contrasted with the opposite approach sometimes taken that the reasons are too
long and too zealous. In this regard the views of Hugessen JA (sitting as he
then was in the Federal Court of Appeal) are frequently cited. In Attakora v
Canada (Minister
of Employment and Immigration), [1984] FCJ No 444,
99 NR 168 he said in the second paragraph of his decision, concurred in by the
other panellists:
At first
blush, the Board’s decision appears to turn entirely on questions of
credibility and therefore to be beyond review by the Court on section 28
proceedings. In particular the Board identified three aspects of the
applicant’s tale of arrest, beating and escape from his native Ghana which it said “lacked
credibility”. Upon analysis, however, it appears that in its zeal to find the
applicant unbelievable the Board itself has strayed into error.
And later:
I have
mentioned the Board’s zeal to find instances of contradiction in the
applicant’s testimony. While the Board’s task is a difficult one, it should not
be over-vigilant in its microscopic examination of evidence of persons who,
like the present applicant, testify through an interpreter and tell tales of
horror in whose objective reality there is reason to believe.
[10]
Hugessen JA wrote in the same vein in Canadian
Union of Public
Employees (CUPE) v Canadian Broadcasting Corp (CBC),
[1985] FCJ No 26 in concurring reasons:
Before
concluding, I shall add one comment. The Board’s decision is lengthy, very
lengthy. In its French version alone it comprises two hundred and seventy-two
pages. It is full of statements and digressions whose relevance and accuracy
are doubtful. It leaves itself open, unnecessarily, in my view, to challenges
such as those litigated before us. Perhaps the Board feels it has a duty to
perform some sort of educational and political function, in the broad sense of
these terms, vis-à-vis its clientele. This is entirely to its credit. However,
it must not be forgotten that the primary duty of the Board, as of this Court,
is to decide precisely and concisely the cases presented to it. I shall quote
without further comment the dictum of Chancellor Bacon:
A
much talking Judge is like an ill tuned cymbal.
[11]
It is almost a damned if you do and damned if
you don’t situation for a tribunal writing a decision. These are, however,
early cases and more recent cases help clarify the matter.
[12]
The issue to the adequacy of reasons and whether
detailed evidence must be mentioned in a tribunal’s reasons has been more
recently reviewed. Evans JA (as he now is) has written that much depends on the
significance of the evidence and failure to mention a piece of evidence does
not mean that it was overlooked. In Ozdemir v Canada (Minister of Citizenship and
Immigration), 2001 FCA 331 he wrote at paragraphs 9
to 11:
[9] As
for the second point, which was based on the inadequacy of the reasons, if the
PCDO was required by the duty of fairness to give reasons for her decision, her
reasons sufficed to discharge that duty. Decision-makers are not bound to
explain why they did not accept every item of evidence before them. Much
depends on the significance of that evidence when it is considered in light of
the other material on which the decision was based: see Cepeda-Gutierrez v. Canada (Minister
of Citizenship and Immigration) (1998),
157 F.T.R. 35.
[10]
Nor will a reviewing court infer from the failure of reasons for decision
specifically to address a particular item of evidence that the decision-maker
must have overlooked it, if the evidence in question is of little probative
value of the fact for which it was tendered, or if it relates to facts that are
of minor significance to the ultimate decision, given the other material
supporting the decision.
[11] In
this case, the new evidence was not of sufficient importance or probative value
that the duty of fairness required the PCDO to deal with it expressly in her
reasons. Further, it would be inappropriate to require PCDOs, as administrative
officers, to give as detailed reasons for their decisions as may be expected of
an administrative tribunal that renders its decisions after an adjudicative
hearing. In our opinion, the reasons given by the PCDO adequately explain the basis
of her decision and do not support an inference that she failed to consider all
the material before her.
[13]
Most recently the Supreme Court of Canada in Newfoundland
Labrador Nurses Union v Newfoundland Labrador (Treasury Board), 2011 SCC
62, in relying on another decision of Evans JA has stressed that reasons must
be adequate, not perfect; they do not have to be comprehensive. Abella J for
the Court wrote at paragraphs 16 to 18:
[16]
Reasons may not include all the arguments, statutory provisions, jurisprudence
or other details the reviewing judge would have preferred, but that does not
impugn the validity of either the reasons or the result under a reasonableness
analysis. A decision-maker is not required to make an explicit finding on
each constituent element, however subordinate, leading to its final conclusion
(Service Employees’ International Union, Local No. 333 v. Nipawin District
Staff Nurses Assn., [1975] 1 S.C.R. 382, at p. 391). In other words, if
the reasons allow the reviewing court to understand why the tribunal made its
decision and permit it to determine whether the conclusion is within the range
of acceptable outcomes, the Dunsmuir criteria are met.
[17] The
fact that there may be an alternative interpretation of the agreement to that
provided by the arbitrator does not inevitably lead to the conclusion that the
arbitrator’s decision should be set aside if the decision itself is in the
realm of reasonable outcomes. Reviewing judges should pay “respectful
attention” to the decision-maker’s reasons, and be cautious about substituting
their own view of the proper outcome by designating certain omissions in the
reasons to be fateful.
[18]
Evans J.A. in Canada Post Corp. v. Public Service Alliance of Canada, 2010 FCA
56, [2011] 2 F.C.R. 221, explained in reasons upheld by this Court (2011 SCC
57) that Dunsmuir seeks to “avoid an unduly formalistic approach to judicial
review” (para. 164). He notes that “perfection is not the standard” and
suggests that reviewing courts should ask whether “when read in light of the
evidence before it and the nature of its statutory task, the Tribunal’s reasons
adequately explain the bases of its decision” (para. 163). I found the
description by the Respondents in their Factum particularly helpful in explaining
the nature of the exercise:
When
reviewing a decision of an administrative body on the reasonableness standard,
the guiding principle is deference. Reasons are not to be reviewed in a vacuum
– the result is to be looked at in the context of the evidence, the parties’
submissions and the process. Reasons do not have to be perfect. They do not
have to be comprehensive. [para. 44]
[14]
It must be remembered that the Federal Court in
cases such as the one under consideration here is conducting a judicial review,
not a re-hearing, not an appeal. The Court is to determine whether natural
justice and procedural fairness was observed, whether the decision was correct
in law and whether the decision was reasonable within the broad boundaries
established by the Supreme Court of Canada in Dunsmuir v New Brunswick
[2008] 1 S.C.R. 190. That decision was referred to in the Newfoundland case, supra, at
paragraph 15:
[15] In assessing whether
the decision is reasonable in light of the outcome and the reasons, courts must
show “respect for the decision-making process of adjudicative bodies with
regard to both the facts and the law” (Dunsmuir, at para. 48). This means
that courts should not substitute their own reasons, but they may, if they find
it necessary, look to the record for the purpose of assessing the
reasonableness of the outcome.
[15]
Thus, as a Court of judicial review, this Court
may look at the record before the tribunal to determine whether important
evidence having a specific bearing on the individual in question, was clearly
overlooked. The Court should not engage in a detailed review of any piece of
evidence, and any passage of a document in evidence, having no direct or
specific reference to the individual in question. In the absence of clear
evidence to the contrary, the tribunal is presumed to have considered all of
the evidence and weighed it appropriately.
[16]
In the present case I find no reviewable error
has been committed by the PRRA Officer in respect of an assessment of the
relevant evidence.
JUDGMENT
FOR THE REASONS PROVIDED:
THIS COURT’S JUDGMENT is that:
1.
The application is dismissed;
2.
No question is certified; and
3.
No Order as to costs.
“Roger T. Hughes”
Email this Content