Docket: IMM-3591-11
Citation: 2011 FC 1462
Toronto, Ontario, December 12,
2011
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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WAYNE ANTONY
HILLARY
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant Wayne Antony Hillary is an adult male citizen of Jamaica. He came to Canada as a
permanent resident in October 1981. He suffers from schizophrenia, and is HIV
positive. He is receiving medical treatment in Canada for these
conditions.
[2]
The
Applicant has an extensive criminal record in Canada. For that
reason, he was ordered to be deported to Jamaica. That order
was upheld by the Immigration Appeal Division and leave to apply for judicial
review was denied by this Court by an Order dated July 3, 2007.
[3]
The
Applicant sought a pre-removal risk assessment (PRRA). He alleged that he would
not be able to receive proper medical treatment in Jamaica and, being
HIV positive, he would wrongly be perceived as a gay man and would likely be in
danger of being killed due to social stigma. Evidence to support these
allegations was submitted. In a written decision dated 31 October 2007, the
PRRA Officer rejected this application. The Applicant did not apply to this
Court for leave to seek judicial review.
[4]
The
Applicant was not removed immediately as he was facing further criminal charges,
thus section 50(b) of the Immigration and Refugee Protection Act (IRPA),
SC 2001, c 27, as amended, precluded removal. However, the Applicant filed a
request for a second PRRA assessment on April 28, 2009. The grounds asserted
were the same as in respect of the first PRRA assessment, but this time they
were supported by more extensive and more forceful evidence. His Counsel’s letter
to the PRRA Office dated August 10, 2009 candidly states:
Mr. Hillary’s first PRRA application, a
copy of which is enclosed, was completed by his own hand and with no
submissions and only one document of country condition evidence. While
there have been no new risk developments since the first PRRA, we are now
enclosing considerable evidence which clearly demonstrates he faces persecution
in Jamaica on account of both his HIV status and his mental health problems.
[5]
The
second PRRA application was rejected in a written decision dated April 28,
2011. That decision is the subject of this judicial review. For the reasons
that follow, I find that the application is dismissed.
[6]
The
decision under review is carefully written and considers whether the evidence
submitted on the second PRRA application was “new”; it was determined that it
was not “new” and, in any event, even if the evidence was “new” it was
determined that the Applicant would not be at risk. Thus, the application was
refused on two grounds: the material was not “new”, and, if it were, there was
no “risk”.
[7]
The
Applicant raises these issues in respect of the decision under review:
a.
What
is the appropriate standard of review?
b.
Did
the Officer err by applying the incorrect legal test when she excluded evidence
on the basis it was available at the time that a previous application for
refugee protection was denied?
c.
If
not, did the Officer err when she concluded that it would be in the interests
of justice to apply issue estoppel as a matter of discretion in this case?
[8]
I
will add a fourth issue as raised by the Respondent and ignored by the
Applicant:
4. Was the Officer, nonetheless,
correct in rejecting the application even when all the evidence, new or not,
was considered?
ISSUE #1: What
is the appropriate standard of review?
[9]
The
Applicant submits that the exclusion of evidence as not being “new” by the
Officer was based on an interpretation of section 113(a) of the IRPA and
common-law principles of estoppel; therefore, a correctness standard should
apply. The Applicant further submits that, in applying the principles of
estoppel, the standard is reasonableness as considered in Dunsmuir v New
Brunswick, [2008] SCR 190. For the purposes of this judicial review, I will
accept these standards.
[10]
The
Applicant does not make any submissions as to the standard of review to be
applied to the decision of the Officer in which all of the evidence submitted
in the second PRRA application, whether it was “new” or not, was taken into
consideration. It is clear that the standard of review in this respect is
reasonableness.
ISSUE #2: Did the Officer err
by applying the incorrect legal test when she excluded evidence on the basis it
was available at the time that a previous application for refugee protection
was denied?
ISSUE#3: If not, did the
Officer err when she concluded that it would be in the interests of justice to
apply issue estoppel as a matter of discretion in this case?
[11]
I
will consider Issues #2 and #3 together, since the result in Issue #4 is
dispositive, and any remarks made in respect of Issues #2 and #3 would be obiter.
[12]
Applicant’s
Counsel has raised a number of issues as to the meaning and effect of
subsection 113(a) of the IRPA and the interplay of that subsection with the
doctrine of estoppel as developed by the Courts. It is clear from the decision
under review that the PRRA Officer recognized that subsection 113(a) of the
IRPA came into consideration only in dealing with a prior decision of a
Convention Refugee application and not a prior PRRA decision. The Officer was
correct in so doing.
[13]
The
Officer applied the principles of estoppel as developed by the Courts.
Applicant’s Counsel argues, in effect, that those principles must be modified
by or at least informed by the jurisprudence respecting section 113(a) of IRPA.
My views in this respect are unnecessary, since the Officer’s decision taking
into account all of the evidence is dispositive; and therefore, the matter is
moot. While undoubtedly there are many aspects of IRPA and immigration and
refugee jurisprudence more generally that would benefit from clarification by
this or a higher Court, the Court should avoid unnecessary determinations and
avoid simply making findings in obiter.
ISSUE #4: Was the Officer,
nonetheless, correct in rejecting the application even when all the evidence,
new or not, was considered?
[14]
This
issue is determinative. The Officer, as a basis for the decision under review,
found that, even taking into account all the evidence in the record, the
application should be rejected. Within the scope given in respect of such
decisions by Dusmuir, supra, the decision was reasonable and will not be
set aside.
CONCLUSIONS
[15]
The
application for judicial review will be dismissed. Given that this matter is
dismissed with respect to Issue #4, there is no question for certification.
There are no special grounds upon which to
award costs.
JUDGMENT
FOR THE
REASONS PROVIDED:
THIS COURT’S JUDGMENT
is that:
1.
This
application is denied;
2.
No
question is certified; and
3.
No
Order as to costs.
“Roger
T. Hughes”
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