Date:
20120814
Docket: IMM-8409-11
IMM-8412-11
Citation:
2012 FC 984
Ottawa, Ontario,
August 14, 2012
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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IMM-8409-11
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MICHAEL STRACHN
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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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AND BETWEEN:
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IMM-8412-11
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MICHAEL STRACHN
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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]
The
applicant seeks judicial review of a decision of Officer C. Ruthven (Officer),
dated October 13, 2011, refusing the applicant’s application for permanent
residence on humanitarian and compassionate (H&C) grounds (IMM-8409-11)
pursuant to section 25 of the Immigration and Refugee Protection
Act,
SC 2001,
c 27
(IRPA), and a decision
of the same Officer on the same date, refusing the applicant’s Pre-Removal Risk
Assessment (PRRA) application (IMM-8412-11). For the reasons that follow the
application in respect of the H&C decision is granted, and the application in
respect of the PRRA decision is dismissed.
Facts
[2]
The
applicant, Michael Strachn, is a citizen of Jamaica. He came to Canada several times between 1990 and 2001, working as a farm worker. He last entered Canada on July 20, 2001 and has remained in Canada since that time.
[3]
The
applicant states that he decided to flee Jamaica in 2001 because he had
informed police that a gang member was responsible for murdering a youth and he
feared retaliation from the gang. The applicant also alleges that he and his
wife face threats from another gang because they took over properties owned by
the applicant’s wife and wished to keep them for themselves.
[4]
The
applicant made a refugee claim in October 2001, which was rejected on June 24,
2003. The applicant then submitted an H&C application in July 2003, which
was approved in principle; however, the applicant was found inadmissible due to
criminality because of a conviction for assault occasioning bodily harm in Jamaica in 1980.
[5]
The
applicant states that the inadmissibility finding was erroneous because the conviction
resulted in a $30 fine and yet was found to be equivalent to an offence in Canada carrying a maximum sentence of 10 years’ imprisonment. Counsel for the applicant
asked Citizenship and Immigration Canada to reopen the H&C application as a
result of this information but that request was denied. The applicant
submitted a new H&C application in 2007. He also submitted a document from
the Jamaican Ministry of Justice indicating that the 1980 offence had been
expunged from his record.
[6]
The
applicant submitted a PRRA application in October 2010. Both the H&C and
PRRA decisions were made by the same officer on October 13, 2011 and were
delivered to the applicant on November 14, 2011.
H&C Decision
[7]
In
the Decision and Reasons, the Officer first considered the allegations of
hardship based on risk. The Officer noted that the applicant alleged a risk
from multiple gangs that had blamed him for the arrest of one of their members;
taken over his wife’s properties and attacked her; and killed his stepson in
the United States.
[8]
The
Officer reviewed the documentary evidence regarding gang violence and
acknowledged that gangs were a problem in Jamaica. However, the Officer found
that these documents did not establish that the applicant would be targeted but
rather were relevant to the general environment in Jamaica, to be considered in
the hardship analysis.
[9]
The
Officer also considered the applicant’s own statements, including in his 2003
H&C application, his 2007 H&C application, and his 2010 PRRA
application. The Officer noted that there was no evidence that any of the
applicant’s family members had gone to the police in response to the gang
threats they faced. The Officer also noted that the PRRA submissions stated
that the applicant did not report the gang shooting in 2001 to police which was
inconsistent with his other submissions that state he had informed police of
the identity of the shooter.
[10]
The
Officer noted the applicant’s allegation of several robberies that occurred in
his former store but found that this did not establish any forward-looking hardship
as the store had been sold several years ago. The Officer also found no
evidence from the applicant’s wife to support the allegations regarding the
2007 property dispute.
[11]
The
Officer then reviewed documentary evidence regarding the availability of state
protection in Jamaica. He placed significant weight on the 2010 US Department
of State report which stated that everyone who enrolled in the witness
protection program and followed the rules had been protected from serious
threats and harm. The Officer acknowledged the problems of corruption,
unlawful killings and the court system in Jamaica, but found insufficient
evidence that these challenges would cause the applicant problems in the
future. The Officer concluded that the applicant had not established that he
would suffer unusual and undeserved or disproportionate hardship based on his
risk in Jamaica.
[12]
Regarding
the applicant’s family ties, the Officer found little evidence of the
applicant’s relationship with his brother in Canada, or with his other
relatives. The Officer noted evidence that the applicant sent numerous
remittances to his wife and daughter five years earlier, but found no evidence
that he had supported them for the past four years.
[13]
Regarding
establishment in Canada, the Officer noted that the applicant had worked at the
same place of employment since November 2001. The Officer found insufficient
evidence of any other community involvement. The Officer found that the
evidence showed a bare minimum degree of establishment for an individual in Canada for ten years. The Officer gave little weight to the applicant’s length of time and
establishment in Canada and did not find that severing these ties would
constitute unusual and undeserved or disproportionate hardship.
[14]
The
application was therefore refused.
PRRA Decision
[15]
The
Officer noted that the applicant’s refugee claim was rejected in 2003 as the
Refugee Protection Division (RPD) found that he had presented insufficient
credible or trustworthy evidence that he had a well-founded fear of
persecution. The RPD had identified several omissions and discrepancies in the
applicant’s evidence, including the dates on which he was threatened; how the
alleged shooting victim had died; and his visit to the police following the
shooting. The Officer noted that the Board also found that the general risk of
violence in Jamaica was not a personal risk and therefore could not give rise
to protection.
[16]
The
Officer reviewed the evidence submitted by the applicant, including evidence
submitted in his H&C application that was relevant to the question of risk.
The Officer found that the online articles submitted did not establish that
the applicant would be targeted by gangs in Jamaica. The Officer then quoted
extensively from the UK Home Office Operational Guidance Note on organized
crime in Jamaica.
[17]
The
Officer also reviewed the applicant’s own statements and found that none of the
applicant’s family had ever sought state protection. The Officer also found
that the applicant’s statements did not rebut the findings of the RPD. The Officer
also noted that the PRRA submissions stated that the applicant did not report
the gang shooting in 2001 to police, which is inconsistent with his other
submissions that state he had informed police of who shot the youth.
[18]
The
Officer noted the applicant’s allegation of several robberies that occurred in
his former store but found that this did not establish any forward-looking risk
as the store had been sold several years ago. The Officer also found no
evidence from the applicant’s wife to support the allegations regarding the
2007 property dispute.
[19]
Because
of the discrepancy between the various statements by the applicant the Officer
found insufficient evidence that state protection had ever been sought. The Officer
noted that the applicant was obligated to exhaust the avenues of protection
available to him.
[20]
The
Officer went on to consider the documentary evidence to determine if
circumstances had changed in Jamaica since the RPD’s decision. The Officer
concluded that there had been no significant change and therefore the
application was refused.
Standard of Review and Issue
[21]
These
applications raise the following issues:
a. Was the Officer’s
H&C decision reasonable?
b. Was the Officer’s
PRRA decision reasonable?
c. Did the Officer
breach procedural fairness by not convoking an oral hearing for the PRRA
decision?
[22]
The
parties agree that both decisions are to be reviewed on a standard of
reasonableness: Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190.
Analysis
Was
the Officer’s H&C decision reasonable?
[23]
In
my view, the Officer erred in failing to consider the arguments and evidence
presented by the applicant in support of his H&C application. While a
decision whether to grant an H&C exemption is discretionary and an
applicant is not entitled to a particular outcome, it is incumbent on the
decision-maker to consider the application in its entirety and base his or her
decision on the H&C factors raised, and the submissions made, by the
applicant.
[24]
The
Officer was preoccupied with the question of whether the applicant was in Canada for reasons beyond his control and therefore failed to consider the grounds for an
H&C exemption that were submitted to him.
[25]
One
example of the Officer’s failure to make his decision based on the material
before him was his failure to refer to the applicant’s previous H&C
application which was approved in principle based on the same allegations of hardship
made in this application. While it was open to the Officer to reach a
different conclusion than the previous decision-maker, the failure to mention
the past approval in principle and explain the different outcome in this case
creates the impression that the Officer ignored the first H&C application. The
applicant heavily emphasized that application and the approval in principle in
his submissions and therefore the Officer was obliged to consider it, even if
he ultimately exercised his discretion in a different manner.
[26]
Another
example arises from the Officer’s treatment of the applicant’s employment in Canada. The Officer notes that the applicant has been consistently employed at the same
place for ten years, progressing from assistant grower to full-time manager. He
gave this factor very little weight, none, to be precise, and concluded that
the applicant has shown only “a bare minimum degree of establishment”.
[27]
Further,
at no point did the Officer consider the applicant’s argument that he has no
skills other than farming. that he would not be able to farm in Jamaica because he owns no land and, therefore, removal to Jamaica would result in the loss of
income to him, his wife and his daughter. This was one of the central aspects
of the applicant’s submission that leaving Canada would cause him undue
hardship because of his establishment.
[28]
The
Officer’s failure to have regard to all the material presented to him in the
H&C application renders his conclusion unreasonable and the decision must
therefore be set aside.
Was
the Officer’s PRRA decision reasonable?
[29]
The
applicant impugns the Officer’s treatment of the documentary evidence regarding
gang violence in Jamaica and the inability of the state to protect its
citizens, particularly those in inner city slums. However, in my view, the Officer’s
consideration of state protection was not material to his conclusion because he
found that the applicant had not established that he faced a personal risk from
any gangs in Jamaica.
[30]
The
applicant alleged that he faced a risk from one gang because they blamed him
for the arrest of one of their members. This was the risk assessed by the RPD
in its decision. The RPD found the applicant not credible because of omissions
and inconsistencies in his evidence; in the PRRA decision, the Officer found
that the applicant had not presented sufficient evidence to rebut that finding.
This conclusion was reasonably open to the Officer.
[31]
The
applicant also alleged risk from a different gang because it had taken over
properties belonging to him and his wife. However, the Officer found that the
applicant adduced insufficient evidence to establish any forward-looking risk
based on this property dispute. Since the only evidence on this point was the
applicant’s own statement this finding was also wholly reasonable.
Did the Officer breach
procedural fairness by not convoking an oral hearing for the PRRA decision?
[32]
The
applicant argues that the Officer based his decision on credibility because he
pointed out an inconsistency between the applicant’s narrative in his PRRA and
H&C applications, and therefore an oral hearing should have been held. Whether
or not an oral hearing is warranted is governed by section 113(b) of the IRPA,
which states:
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Consideration
of application
113.
Consideration of an application for protection shall be as follows:
…
(b) a hearing may be held if
the Minister, on the basis of prescribed factors, is of the opinion that a
hearing is required;
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Examen de la demande
113. Il
est disposé de la demande comme il suit :
…
b) une
audience peut être tenue si le ministre l’estime requis compte tenu des
facteurs réglementaires;
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[33]
The
prescribed factors are found in section 167 of the Immigration and Refugee
Protection Regulations (SOR/2002-227) (Regulations):
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Hearing
— prescribed factors
167.
For the purpose of determining whether a hearing is required under paragraph
113(b) of the Act, the factors are the following:
(a)
whether there is evidence that raises a serious issue of the applicant's
credibility and is related to the factors set out in sections 96 and 97 of
the Act;
(b)
whether the evidence is central to the decision with respect to the
application for protection; and
(c) whether the evidence, if
accepted, would justify allowing the application for protection.
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Facteurs pour la tenue d’une
audience
167. Pour
l’application de l’alinéa 113b) de la Loi, les facteurs ci-après
servent à décider si la tenue d’une audience est requise :
a) l’existence
d’éléments de preuve relatifs aux éléments mentionnés aux articles 96 et 97
de la Loi qui soulèvent une question importante en ce qui concerne la
crédibilité du demandeur;
b) l’importance
de ces éléments de preuve pour la prise de la décision relative à la demande
de protection;
c) la
question de savoir si ces éléments de preuve, à supposer qu’ils soient admis,
justifieraient que soit accordée la protection.
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[34]
This
has been interpreted to be a conjunctive test: therefore, an oral hearing is generally
required if there is a credibility issue regarding evidence that is central to
the decision and which, if accepted, would justify allowing the application: Ullah
v Canada (Minister of Citizenship and Immigration), 2011 FC 221. While the
Court has acknowledged that there is a difference between an adverse
credibility finding and a finding of insufficient evidence, the Court has
sometimes found an officer to have improperly framed true credibility findings
as findings regarding sufficiency of evidence and therefore an oral hearing
should have been granted: Zokai v Canada (Minister of Citizenship and
Immigration), 2005 FC 1103 at para 12; Liban v Canada (Minister of
Citizenship and Immigration), 2008 FC 1252 at para 14; and Haji v Canada
(Minister of Citizenship and Immigration), 2009 FC 889 at paras 14-16.
[35]
I
agree with the applicant that the Officer raised a credibility concern about
whether or not the applicant had informed police of the shooter’s identity. The
Officer states:
In
contrast to the information provided by the applicant within the July 4, 2003 Supplementary
Information Humanitarian and Compassionate Considerations form, and
provided by counsel within the April 12, 2007 narrative, counsel presented
statements within the November 1, 2010 Pre-Removal Risk Assessment narrative
which indicated that the applicant did not make any reports to the police in
relation to a shooting by a gang member in the August Town district of Saint
Andrew’s Parish during the year 2001 [as the applicant was too afraid to go to
the police.]
[36]
The
Officer appears to be drawing a negative inference from this inconsistency. Thus,
the first criterion is met under section 167 of the Regulations. However,
the other criteria are not met. The evidence was not central to the decision
and would not have led to the acceptance of the PRRA if accepted because this
was the same evidence already found not credible by the RPD (i.e. the
applicant’s own testimony). In order to rebut the RPD’s findings the applicant
needed to present some other evidence to substantiate his allegations of risk. Otherwise,
the PRRA decision would become an appeal or re-determination of the refugee
claim. Since the Officer found that the applicant did not present any evidence
to rebut the RPD’s findings the application was reasonably dismissed on that
basis and there is no error warranting the Court’s intervention.
[37]
The
application for judicial review is granted in respect of the H&C decision
and dismissed in respect of the PRRA decision. There is no question for
certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review in respect of the H&C decision
(IMM-8409-11) is granted. The matter is referred back for
re-determination before a different officer at Citizenship and Immigration
Canada.
2.
The
application for judicial review in respect of the PRRA decision (IMM-8412-11) is
dismissed.
3.
There
is no question for certification.
"Donald J.
Rennie"
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