Haji v. Canada (Citizenship and Immigration), 2009 FC 889

 

 

 

 

Date: 20090910

Docket: IMM-5696-08

Citation: 2009 FC 889

OTTAWA, Ontario, September 10, 2009

PRESENT:     The Honourable Louis S. Tannenbaum

 

 

BETWEEN:

Muhammad Maner HAJI

 

Applicant

and

 

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

 

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application for judicial review of the October 22, 2008 decision of Pre-Removal Risk Assessment (“PRRA”) Officer M.C. Bennett.

 

Background

[2]               The Applicant is a 71-year-old citizen of Pakistan. He left Pakistan in December 1991 for the United States and entered Canada in July 1992. His application for refugee protection was rejected in 1994. The Applicant was removed to the United States in April 1997, but returned to Canada later that year and made a second refugee claim. This claim was based largely upon the same facts as the first, and was dismissed on July 30, 1999. On judicial review however, Justice Pelletier (as he then was) set this decision aside. Following a re-hearing by the Immigration and Refugee Board (“IRB”), the Applicant’s claim was again rejected because the Applicant lacked credibility. On April 29, 2003, Justice Kelen dismissed the Applicant’s application for leave and judicial review in respect of the third decision.

 

[3]               The Applicant filed his PRRA application on August 21, 2007. He based his claim upon four grounds. He stated first that he feared persecution or death at the hands of the Pakistan Peoples Party (“PPP”) due to his affiliation with the Jamiat Ulema-e-Islam (“JUI”) party. He next claimed that his return would result in continued persecution at the hands of the Pakistani police. Third, he feared persecution at the hands of the Pakistani military and the militant Sipah-e-Sahaba and Lashkar-e-Jhangvi groups. This fear stemmed from threats made by his daughter-in-law, whom he claimed has ties to these organizations. Finally, he alleged that his brother, who resides in Pakistan, had also threatened his life.

 

[4]               While the Applicant requested an oral hearing in order to permit the Officer to properly assess his credibility, the Officer declined this request, finding it unnecessary in the circumstances. In rejecting the PRRA application, the Officer concluded that the Applicant had failed to present sufficient objective evidence in support of his claim that he faced a personalized risk in Pakistan.

 

Issues

[5]               The issues are as follows:

1.   Did the Officer err by failing to acknowledge the presumption of truth in respect of the Applicant’s sworn evidence?

2.   Did the Officer err by basing his decision upon the issue of credibility without affording the Applicant an oral hearing?

 

Standard of Review

[6]               Credibility findings are at the heart of a PRRA officer’s decision. As a result, the standard of patent unreasonableness has in the past been applied to the review of such findings: Tekie v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 39 at para. 6 (F.C.). The standards of patent unreasonableness and reasonableness simpliciter were collapsed into the single standard of reasonableness following the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190. I therefore conclude that the appropriate standard of review for this issue is reasonableness.

 

[7]               In Karimi v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 1289 (F.C.), Justice Beaudry found that the issue of whether an officer should have ordered a hearing pursuant to paragraph 113(b) of the Immigration and Refugee Protection Act was a question of mixed fact and law, reviewable on the standard of reasonableness.

 

Law and Argument

Did the Officer err by failing to acknowledge the presumption of truth in respect of the Applicant’s sworn evidence?

 

[8]               The Applicant contends that the Officer failed to assess whether the Applicant’s evidence was itself probative and instead proceeded directly to the conclusion that corroboration was required. The Applicant submits that the sworn testimony of a person claiming protection enjoys a presumption of truth absent a valid reason to doubt it: Maldonado v. Canada (Minister of Employment and Immigration) (1979), 31 N.R. 34 at para. 5 (F.C.A.).

 

[9]               The Respondent submits that the presumption of truth may be rebutted upon a lack of corroborating evidence, when such corroboration might reasonably be expected: Adu v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 114 (F.C.A.); Khan v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 520 (F.C.T.D.). The Respondent argues that the Applicant failed to provide any such corroborating evidence and that the Officer’s decision was therefore reasonable.

 

[10]           In my view, it was reasonable in the circumstances to expect the Applicant to have provided objective evidence in support of his allegations of risk. Such evidence could have been in the form of third party affidavits sworn by his political colleagues and family members. The Applicant also could have submitted a copy of the charges allegedly filed against him by his daughter-in-law with the Toronto police. Absent this evidence, which one would reasonably expect to find filed in support of his application, it was open to the Officer to conclude that the Applicant’s unsubstantiated statements were insufficient to warrant the granting of his PRRA.

 

Did the Officer err by basing his decision upon the issue of credibility without affording the Applicant an oral hearing?

[11]           The Applicant submits that the Officer’s conclusion that he failed to provide sufficient objective evidence reveals that the Officer’s decision was rooted in the belief that the Applicant lacked credibility. An officer’s sufficiency findings may amount to credibility findings: Liban v. Canada (Minister of Citizenship and Immigration) (2008), 76 Imm. L.R. (3d) 227 at para. 14 (F.C.). The Applicant submits that a hearing must be held if credibility is “at the heart” of a PRRA decision: Karimi, supra.

 

[12]           The Respondent submits that a hearing is only held in exceptional circumstances and only where credibility is central to the PRRA decision.  It argues that such was not the case here, as the Officer did not take issue with the Applicant’s credibility. Rather, the Officer based his decision on the lack of objective evidence demonstrating both the risks previously considered by the IRB and the new risks put forward by the Applicant.

 

[13]           Section 167 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 sets forth the factors that must be considered when an officer is determining whether to hold a hearing:

 

 

[14]           It is clear on the face of the decision that the Officer was critical of the lack of objective evidence because he took issue with the Applicant’s credibility. At page four of his decision, the Officer states:

I find that [the Applicant] has not provided sufficient reliable or trustworthy evidence to address the credibility concerns raised by the IRB and I am not persuaded to arrive at a different conclusion on the basis of the evidence presented in this PRRA application.

 

 

[15]           Nonetheless, the Officer acknowledged the existence of political violence, extrajudicial killings, the increasing number of disappearances of political opponents and corruption within the police forces in Pakistan.

 

[16]           The Officer’s findings respecting the Applicant’s credibility were central to his application.  Given the Officer’s conclusions respecting the documentary evidence, it follows that if the Officer had believed the Applicant, he would likely have granted the PRRA. I am satisfied that the circumstances of this case are such that the factors under section 167 were met. Consequently, it was contingent upon the Officer to hold a hearing. His failure to do so constitutes a reviewable error.

JUDGMENT

 

THIS COURT ORDERS AND ADJUDGES that for the reasons given, the application for judicial review is allowed and the matter referred back to a different PRRA Officer for redetermination. No question of general importance has been submitted for certification.

 

 

 

"Louis S. Tannenbaum"

 

AUTORITIES CONSULTED BY THE COURT

 

1.                  Maldonado v. Canada (M.E.I.) (1979), 31 N.R. 34 (F.C.A.)

2.                  Ward v. Canada (A.G.), [1993] 2 S.C.R. 689, at 713-14

3.                  Ahortor v. Canada (M.E.I.) (1993), 21 Imm. L.R. (2d) 39

4.                  Attakora v. Canada (M.E.I.), [1989] F.C.J. No. 444 (F.C.A.)

5.                  Zheng v. Canda (M.C.I.), 2007 FC 974

6.                  Naqvi v. Canada (M.C.I.), 2008 FC 779

7.                  Nilam v. Canada (M.C.I.), 2004 FC 1037

8.                  Adu v. Canada (M.E.I.), [1995] F.C.J. No. 114 (F.C.A.)

9.                  Liban v. Canada (M.C.I.), 2008 FC 1252

10.              Latifi v. Canada (M.C.I.), 2006 FC 1388

11.              Komahe v. Canada (M.C.I.), 2006 FC 1521

12.              Zokai v. Canada (M.C.I.), 2005 FC 1103

13.              Shafi v. Canada (M.C.I.), 2005 FC 714

14.              Fernandez Ortega v. Canada (M.C.I.), 2007 FC 601

15.              Karimi v. Canada (M.C.I.), 2007 FC 1010

16.              Tekie v. Canada (M.C.I.), 2005 FC 27

17.              Ferguson v. Canada (M.C.I.), 2008 FC 1067

18.              Pachment v. Canada (M.C.I.), 2008 FC 1140

19.              Jasim v. Canada (M.C.I.), [2003] F.C.J. No. 1290

20.              Krishnapillai v. Canada (M.C.I.), 2005 FC 244

21.              Mobarekeh v. Canada (M.C.I.), 2004 FC 1102

22.              Rolfe v. Canada (M.C.I.), 2005 FC 1514

23.              Pankou v. Canada (M.C.I.), 2005 FC 203

24.              Alam v. Canada (M.C.I.), 2005 FC 4

25.              Hassan v. Canada (M.C.I.), 2005 FC 601

26.              Bains v. M.E.I. (1990), 109 N.R. 239 (F.C.A.)

27.              Kurniewicz v. M.E.I. (1974), 6 N.R. 225 (F.C.A.)

28.              Wu et al v. M.E.I., [1989] 2 F.C. 175 (T.D.)

29.              Virk v. M.E.I. (1991), 13 Imm. L.R. (2d) 119 (F.C.T.D.)

30.              Khan v.Canada (M.C.I.), 2002 FCT 400

31.              Ortiz Juarez v. Canada (M.C.I.), [2006] F.C.J. No. 365

32.              Selliah v. Canada (M.C.I.), 2005 FCA 160

33.              Gerardo Chavarria Gonzalez v. Canada (M.C.I.), (IMM-3659-03, May 30, 2003)

34.              Li v. Canada (M.C.I.), 2005 FCA 1

35.              Canada (M.C.I.) v. Flores Carillo, 2008 FCA 94

36.              Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817

37.              Owusu v. Canada (M.C.I.), 2004 FCA 38

38.              Lewis v. Canada (M.C.I.), 2007 FC 778

39.              Gong v. Canada (M.C.I.), 2008 FC 600

40.              Kim v. M.C.I. (2003), 33 Imm. L.R. (3d) (F.C.)

41.              Kazmi v. M.C.I., 2004 FC 1375

42.              Younis v. M.C.I., 2004 FC 266

43.              Sylla v. M.C.I., 2004 FC 475

44.              Abdou v. S.G.C., 2004 FC 752

45.              Malhi v. M.C.I., 2004 FC 802

46.              Iboud c. M.C.I., 2005 CF 1316

47.              Ray v. M.C.I., 2006 FC 731

48.              Saadatkhani v. M.C.I., 2006 FC 614

49.              Yousef v. M.C.I., 2006 FC 864

50.              Sen v. M.C.I., 2006 FC 1435

51.              Lake v. Canada (Minister of Justice), 2008 SCC 23

52.              Mehterian v. Canada (M.E.I.), [1992] F.C.J. No. 545

53.              Via Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25

54.              Ghavidel v. Canada (M.C.I.), [2007] F.C.J. No. 1205

 

 

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-5696-08

 

STYLE OF CAUSE:                          Muhammad Maner HAJI v.

                                                            THE MINISTER OF CITIZENSHIP

                                                            AND IMMIGRATION

 

PLACE OF HEARING:                    Toronto, Ontario

 

DATE OF HEARING:                      June 23, 2009

 

REASONS FOR JUDGMENT:       TANNENBAUM D.J.

 

DATED:                                             September 10, 2009

 

 

 

APPEARANCES:

 

Mr. Douglas Lehrer	FOR THE APPLICANT
Ms. Sharon Stewart Guthrie	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

VanderVennen Lehrer Barristers and Solicitors	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT