Date: 20090408
Docket: IMM-4436-08
Citation: 2009 FC 357
Ottawa, Ontario, April 8,
2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
SOPHIA
CLARKE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is the judicial review of a PRRA decision affecting a Jamaican citizen and
permanent resident since 1986. The PRRA decision held that the Applicant was
not at risk upon return to Jamaica despite her role as a
“drug mule” for which she was convicted in 1992.
II. BACKGROUND
[2]
The
Applicant is not only a Canadian permanent resident but is married to a
Canadian and has a Canadian born son as well. She has a spousal sponsorship
application outstanding, which has been delayed because she has not yet been
pardoned for her 1992 drug importation conviction. The pardon process could not
be started because the Applicant was wanted on an immigration warrant which was
not executed until the Applicant surrendered herself in June 2008 and applied
for a PRRA.
[3]
With
respect to the 1992 drug importation conviction, the Applicant claimed that she
had been forced to carry drugs between Jamaica and Canada. When
arrested, she mentioned the drug dealers’ names to police. She claims that
since then she has been threatened with death if she returned to Jamaica and has had
to change telephone numbers several times.
[4]
As
part of this claim of risk upon return to Jamaica, the
Applicant relied on the fact that Sharon Vessel, a person affiliated with
dealers she named, assaulted her and was convicted in 1992. Vessel has since
died.
[5]
The
Applicant was issued a deportation order in May 1993, the appeal was dismissed
in October 1994, and leave for judicial review denied in May 1995. A warrant
for her arrest was issued in August 1995 for failure to appear for a
pre-removal interview.
[6]
The
Applicant’s surfacing in June 2008 would indicate an intent to regularize her
immigration status.
[7]
In
the PRRA decision, the Officer found firstly that there was insufficient evidence
of a present risk upon return. Secondly, the Officer found that state
protection was available. Lastly, the Officer made a number of comments as to
the weight to be given, or the relevance of, various documents including
psychological evidence.
[8]
The
Applicant says that she was denied procedural fairness because of adverse
credibility findings, that the state protection finding was unreasonable, and
that there was a breach of procedural fairness in that the decision was made on
an incomplete Certified Record.
III. ANALYSIS
[9]
The
first issue, that of the adverse credibility findings, is not a procedural
fairness matter but an evidentiary issue. It is reviewable on a standard of
reasonableness (Aleziri v. Canada (Minister of
Citizenship and Immigration), 2009 FC 38), as is the PRRA decision
itself. The state protection finding is also reviewable on a standard of
reasonableness (Huerta v. Canada (Minister of
Citizenship and Immigration), 2008 FC 586). Lastly, the issue of an
incomplete record is one that is reviewable on a standard of correctness or is
not subject to the standard of review analysis (Dunsmuir v. New
Brunswick,
2008 SCC 9).
[10]
The
Applicant claims that she should have been accorded an oral hearing because
credibility was in issue. However, a proper reading of the PRRA decision is
that the Applicant failed because she did not produce sufficient evidence of
risk. Findings of sufficiency do not require, absent other factors, an oral
hearing (Selliah v. Canada (Minister of
Citizenship and Immigration), 2004 FC 872).
[11]
The
Applicant’s reliance on Justice Zinn’s decision in Ferguson v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1067, is misplaced in trying to
establish that counsel’s submissions should be taken as evidence. Justice Zinn
was not establishing some new principle of evidence but merely noting that in
limited circumstances counsel’s submissions as to a state of affairs (in that
case, that the applicant was a lesbian) may be considered evidence, the weight
of which may be questionable.
[12]
The
finding on state protection was an alternative finding. As the finding on
sufficiency was reasonable and was determinative, the state protection finding
becomes irrelevant even if it can be argued that the Officer’s focus on
“efforts” in Jamaica rather than
“adequacy” was in error.
[13]
The
last issue deals with the fact that the record on which the decision was made
did not include the Jamaican police abstract regarding Vessel’s assault
conviction in respect of the Applicant. That abstract was received after the
decision was made.
[14]
For
an item so critical to the Applicant’s case, it is surprising that the Applicant
never sought to adduce it.
[15]
In
any event, there is no breach of procedural fairness because the Officer
accepted, for purposes of the decision, that the Applicant had been assaulted
by Vessel.
[16]
This
situation is distinguishable from my decision in Ortega v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1407, where the missing records
went to the very basis of the claim and the reasons for denying the PRRA. Had
the Officer in the present case not accepted that the assault occurred, the
result here might have been different.
[17]
While
an incomplete record may be a basis for a breach of procedural fairness; that
is not always so, especially where there was no actual unfairness, as is the
case here.
IV. CONCLUSION
[18]
Therefore,
this judicial review will be dismissed. There is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“Michael
L. Phelan”
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