Docket: IMM-2116-09
Citation: 2009 FC 1167
BETWEEN:
LEMLEM
YIREFU BEGASHAW
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
HENEGHAN J.
Introduction
[1]
Ms. Lemlem
Yirefu Begashaw (the “Applicant”) seeks judicial review of the decision made by
Pre-Removal Risk Assessment Officer M. Campbell (the “Officer”) on March 23,
2009, refusing the Applicant’s application to be found a person in need of
protection pursuant to the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the “Act”).
Background
[2]
The
Applicant, a citizen of Ethiopia, came to Canada in 2004, following a period of residence
in the United
States of America.
In 1995, she had won a diversity visa lottery that granted her entry to the United States and had been given a “green
card”. She returned to Ethiopia in 1998 because she was ill
and homesick. During her stay in Ethiopia,
the Applicant was diagnosed with a depressive disorder.
[3]
The
Applicant returned to the United
States in October
2000. In February 2002, she lost her status in the United States but she
remained there until she entered Canada
in January 2004. She claimed refugee protection immediately.
[4]
The
hearing of the Applicant’s claim was held on October 20, 2004. Her claim was
rejected in a decision dated October 27, 2004, on the grounds that the Board
did not believe the Applicant’s family were members of the All Amhara People’s
Organization (“AAPO”) in Ethiopia nor were family members persecuted for their
political activities. The Board also found that the Applicant’s return to Ethiopia in 1998 and receipt of exit
visas on two occasions from the Ethiopian Government showed that she did not
have a subjective fear of returning to Ethiopia. The Applicant sought leave for judicial
review of the Board’s decision but leave was denied on January 11, 2005.
[5]
In filing
her application for a Pre-Removal Risk Assessment, the Applicant again alleged
that her family were politically active with the AAPO, that both her mother and
a brother were imprisoned, and that another brother died from political
persecution. She also alleged that she had herself been persecuted for
allegedly providing financial assistance to the AAPO.
[6]
The
Applicant also submitted evidence about her health, in particular her mental
health at the time she appeared before the Board for the hearing of her refugee
claim. The medical evidence included a report from Dr. Lo, a psychiatrist who
assessed the Applicant in 2006; a letter from Dr. Chisvin, a psychiatrist who
began treating the Applicant in October 2004; and a statement from Ms. Khadija
Abdi, a mental health worker with a community centre in Toronto. The thrust of this
medical evidence was that the Applicant had been suffering from untreated
mental illness at the time of her refugee hearing and that she had subsequently
recovered memories of imprisonment and of rape while imprisoned in Ethiopia,
facts that were not presented during her refugee hearing nor in her Personal
Information Form (“PIF”).
[7]
The
written submissions that were filed by the Applicant’s Counsel in support of
the PRRA application characterized the medical reports and the statement from
Ms. Abdi as “new evidence” that would “plausibly” support the Applicant’s
delayed memory recovery of having been imprisoned and sexually assaulted in Ethiopia.
[8]
The PRRA
Officer determined the Applicant would not be at risk of persecution for her
political activities if returned to Ethiopia.
The Officer also found that the Applicant had not presented objective evidence
to show that she had the profile of a person at risk in Ethiopia.
[9]
The
Officer further gave little weight to the evidence regarding the Applicant’s
mental health, noting that the Applicant was the source of the information upon
which the psychiatrists and the mental health worker based their opinions.
[10]
The
Applicant raises several issues in this application for judicial review, as
follows:
1.
Did the
Officer err by failing to conduct an oral hearing?
2.
Did the
Officer err in her treatment of the medical evidence?
3.
Did the
Officer err in her consideration of the exemption in subsection 108(4) of the
Act?
Discussion and Disposition
[11]
The first
matter to be addressed is the applicable standard of review, having regard to
the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190. Questions of law
and of procedural fairness are reviewable on the standard of correctness and
questions of fact, mixed fact and law and of the exercise of discretion are
reviewable on the standard of reasonableness.
[12]
The Applicant submits
that the Officer made credibility findings in rejecting her PRRA application.
Relying on subsection 113(b) of the Act and of section 167 of the Immigration and Refugee
Protection Regulations,
SOR/2002-227 (the “Regulations”), she argues that she was entitled to an oral
hearing when her credibility was engaged.
[13]
The
Minister of Citizenship and Immigration (the “Respondent”) takes the position
that the Applicant had no right to an oral hearing because the Officer
based the decision upon the insufficiency of the evidence, not the credibility
of the Applicant.
[14]
Subsection
113(b) of the Act and section 167 of the Regulations provide as follows:
|
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;
…
|
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;
…
|
|
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.
|
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.
|
[15]
The
language of subsection 113(b) makes it clear, in my opinion, that the
availability of an oral hearing in the PRRA context lies solely in the
discretion of the Respondent, having regard to the “prescribed factors” that
are identified in section 167 of the Regulations. The fact that those
prescribed factors exist in a given case does not lead to the inevitable
conclusion that an oral hearing must be held. In this regard, I respectfully
depart from the approach taken in the decision of Tekie v. Canada (Minister of
Citizenship and Immigration), 50 Imm. L.R. (3d) 306 (F.C.).
[16]
I am
mindful that the principle of judicial comity must be taken into account when a
judge of the Court purports to depart from a prior decision of the Court. In
this regard, I refer to the decision in Almrei v. Canada (Citizenship and
Immigration)
(2007), 316 F.T.R. 49 at paras. 61 and 62 where Justice Lemieux said the
following about judicial comity:
(3)
The principle of judicial comity
61
The principle of judicial comity is well-recognized by the judiciary in Canada. Applied to decisions rendered by judges of the Federal
Court, the principle is to the effect that a substantially similar decision
rendered by a judge of this Court should be followed in the interest of
advancing certainty in the law. I cite the following cases:
-
Haghighi v. Canada (Minister of Public Safety and Emergency
Preparedness), [2006] F.C.J. No. 470, 2006 FC 372;
-
Benitez v. Canada (Minister of Citizenship and
Immigration) [2006] F.C.j. No. 631, 2006 FC 461;
-
Pfizer Canada Inc. v. Canada (Minister of Health), [2007] F.C.J. No.
596, 2007 FC 446;
- Aventis Pharma Inc. v. Apotex Inc.,
[2005] F.C.J. No. 1559, 2005 FC 1283;
-
Singh v. Canada (Minister Citizenship and Immigration)
[1999] F.C.J. No. 1008;
-
Ahani v. Canada(Minister Citizenship and Immigration),
[1999] F.C.J. No. 1005;
-
Eli Lilly & Co.v. Novopharm Ltd. (1996), 67 C.P.R. (3d) 377;
-
Bell v. Cessma Aircraft Co. (1983) 149 D.L.R. (3d) 509 (B.C.C.A.)
-
Glaxco Group Ltd. et al. v. Minister of National Health and Welfare et al. 64
C.P.R. (3d) 65;
-Steamship Lines Ltd. v.M.N.R., [1966]
Ex. CR 972.
62
There are a number of exceptions to the principle of judicial comity as
expressed above they are:
1. The existence of a different
factual matrix or evidentiary basis between the two cases;
2.
Where the issue to be decided is different;
3. Where the previous condition
failed to consider legislation or binding authorities that would have produced
a different result, i.e., was manifestly wrong; and
4.
The decision it followed would create an injustice.
[17]
In
my opinion, the third exception identified by the Court in Almrei
applies here.
[18]
In Tekie,
Justice Phelan focused on the language of section 167 of the Regulations and
not the language of subsection 113(b) of the Act in concluding that an oral
hearing was required. As well, it appears that in Almrei, an oral
hearing had been requested. That is not the situation here.
[19]
The
language of subsection 113(b), with the words “may” and “of the opinion”
suggests to me the availability of a hearing will always be a matter of
discretion, not a matter of right. The Applicant was not deprived of a right
nor did she suffer from a breach of procedural fairness when she did not have
an oral hearing before the Officer. I note that Counsel who filed the PRRA
submissions did not request an oral hearing.
[20]
However,
the manner in which the Officer purported to reject the Applicant’s application
on the basis of insufficiency of evidence is problematic. I agree with the
Applicant’s submission that the Officer in fact made the decision on
credibility grounds but failed to disclose and identify those grounds. In
short, the Officer did not believe the evidence presented by the Applicant but
she did not express that disbelief. The Officer purported to reject the PRRA
application on one ground, that of insufficient evidence, but in reality, she
rejected the application on the basis of credibility concerns.
[21]
Surely
this is improper and in my opinion, a breach of the obligation to provide
adequate reasons for the decision. “Adequate reasons” means the “real” reasons
for a decision. In this regard, I refer to the decision in Hilo v. Canada (Minister of Employment
and Immigration),
15 Imm. L.R. (2d) 199 (F.C.A.) where the Federal Court of Appeal said the
credibility findings must be expressed in “clear and unmistakable terms”. The
problem here is that the Officer in fact cloaked the credibility concerns in
the language of sufficiency of evidence. That does not meet the legal
requirements.
[22]
Further,
the Officer was dismissive of the medical evidence that was presented,
assigning it little weight because the source of the Applicant’s medical
history was the Applicant herself.
[23]
In
my opinion, this was an unreasonable conclusion by the Officer. The two
psychiatrists addressed the issue of the Applicant’s mental health. It was
entirely reasonable and appropriate for them to rely on the factual history
provided by the Applicant, insofar as that history provided a framework for the
medical doctors to provide their opinion as to the existence of mental health
illness and their views as to appropriate care.
[24]
The
Officer erred in her treatment of the medical evidence.
[25]
It
is not necessary for me to address the Applicant’s arguments relative to
subsection 108(4) of the Act.
[26]
The
application for judicial review is allowed, the decision of the PRRA Officer is
set aside and the matter is remitted to another officer for determination.
[27]
Counsel
may submit a proposed question for certification by Monday, November 23, 2009.
Judgment will issue thereafter.
“E.
Heneghan”
Email this Content