Date: 20080409
Docket: IMM-2802-07
Citation: 2008 FC 394
BETWEEN:
A.B.
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1]
These
reasons follow the hearing of an application for judicial review of a decision,
dated the 12th of June, 2007 made by a Pre-Removal Risk Assessment
Officer (the “Officer”), wherein the Officer determined that the Applicant
(“A.B.”) “…has not demonstrated more than a mere possibility that [A.B.] will
be at risk of persecution, and that [A.B.] has not demonstrated on the [sic]
balance of probabilities, that [A.B.] would be in danger of torture, or at risk
of cruel and unusual treatment or punishment or at risk to life, if [A.B.] is
returned to [A.B.’s country of citizenship].”
[2]
The
designation of the Applicant in the style of cause to these reasons and in
these reasons is not, of course, the designation in the style of cause on the
application for leave and for judicial review. The Applicant relies on very
sensitive personal information in seeking protection against his or her return
to his or her country of origin. To protect against disclosure of such
sensitive personal information, at the close of hearing of this application for
judicial review, the Court and counsel agreed to the re-designation of the
Applicant as “A.B.”. Throughout these reasons, where it is more convenient to
use personal pronouns than to repeat the designation “A.B.”, masculine personal
pronouns will be used. The use of such pronouns should not be interpreted to
indicate that the Applicant is male as opposed to female.
BACKGROUND
[3]
A.B.
is in his early fifties. He has been in Canada since
childhood. He experienced very difficult family circumstances both in his
country of origin and in Canada during his childhood. He has acquired a
very significant criminal record in Canada featuring fraud,
involving complex fraudulent schemes. He has used aliases and fraudulent
identification documentation. He has not been forthcoming and truthful in his
dealings with immigration officials and others.
[4]
In
a decision relating to A.B., the Immigration Appeal Division of the Immigration
and Refugee Board wrote:
The appellant is an
individual who has already been before the predecessor tribunal of the IAD
under an earlier removal order for criminality. This order was issued on July
27, 1976. [A.B.] was given a stay of the execution of the deportation order on
March 9, 1977. This stay was completed and the order quashed on June 29,
1978. Therefore, the appellant has had the benefit of the exercise of the
tribunal’s discretionary jurisdiction before. [A.B.] is aware that [he] would
have been required, at the very least, not to participate in further criminal
behaviour. [A.B.] did have further criminal convictions. [A.B.] would also
know that [he] would be expected to tell the truth in explaining [his] current circumstances
to the panel. Given the inconsistencies in [his] testimony, it is apparent
that [he] has not been credible. Therefore, the granting of another stay would
not be an appropriate application of the panel’s discretionary jurisdiction.
The foregoing conclusion led to A.B.’s
application for a Pre-Removal Risk Assessment, the decision on which is now
before this Court.
THE ISSUES
[5]
In
the Applicant’s Memorandum of Fact and Law filed before the Court on behalf of
A.B., the issues on this application for judicial review are set out in the
following terms:
A. The PRRA Officer
erred in law by making impermissibly vague credibility findings and taking into
account [a] series of irrelevant considerations during the decision making
process;
B. The PRRA Officer
erred in law by assigning minimal weight and ignoring highly probative evidence
provided by [A.B.] at the PRRA interview;
C. The PRRA Officer erred
in law by failing to fully inform [A.B.] of the case to be met and by failing
to provide [him] with an opportunity to respond to [the Officer’s concerns];
D. The PRRA Officer
erred in law by relying on conjecture and/or speculation with respect to [a
therapist on whom A.B. relied] reasons for not revealing [A.B.’s] [reference to
sensitive personal information deleted] at the IAD hearing; and
E. The PRRA Officer
erred in law by failing to conduct a proper analysis of the “country of
reference” evidence.
[6]
The
first four (4) issues quoted above relate to the Officer’s rather summary
dismissal of four (4) letters placed before the Officer by A.B. to corroborate
his fear of return to his country of origin based on sensitive personal
information. The last issue proved to be a non-issue before the Court. It was
acknowledged by counsel before the Court that, if A.B.’s claim to [sensitive
personal information] were accepted, there would be a real, though not
necessarily determinative, issue regarding return of A.B. to his country of
origin.
[7]
As
with all applications for judicial review before this Court, the issue of
standard of review here arises.
THE DECISION UNDER
REVIEW
[8]
The
Officer wrote in his letter convoking a hearing or interview with A.B. on his
application for a Pre-Removal Risk Assessment:
Please note that you may
provide written evidence of another person. If the officer wishes to verify
this information, he or she may later question this person.
It was not in dispute before the Court that
the Officer could equally have re-convoked the hearing or interview while
requiring the attendance at such re-convoked hearing or interview of A.B.’s
referees.
[9]
The
Officer adopted neither of the foregoing alternatives. Instead, he summarily
dismissed A.B.’s referees’ evidence in the following terms: first, with
respect to a letter from A.B.’s therapist:
According to a letter
from [the therapist] dated…, [the therapist] stated that he did not present the
applicant’s [sensitive personal information] to the IAD, nor did he encourage
[A.B.] to present this evidence to the I.A.D. He stated that he “as [A.B.’s]
therapist had no information that this would be a relevant area that would
impact on [his] possible deportation to [A.B.’s] [country of origin].” However,
in the same letter [the therapist] later states “the likely prospect of being
discovered as a [person of [sensitive personal information]] would present
serious threats to [A.B.’s] personal safety.” When this inconsistency was
raised with the applicant, [he] stated that [the therapist] must have become
aware of the risks faced by [[sensitive personal information] individuals in [A.B.’s
country of origin]] during his research after the IAD’s hearing.
However, [the therapist] states that his practice is “targeted at [persons of
the same heritage and ancestry” as A.B.] and as such, would have been familiar
with the treatment of [[sensitive personal information] individuals in A.B.’s
country of origin.]] I find that [A.B.] has not provided me with a reasonable
explanation why [his] evidence, in the form of [the therapist’s] letter,
contains such a significant inconsistency. As a result, I assign [the
therapist’s] letter dated … little weight.;
[emphasis in
original]
secondly,
with respect to a letter from A.B.’s spiritual community leader, the Officer
wrote:
The applicant has
provided a letter from [A.B.’s spiritual community leader…]. According to the
letter, [A.B.] disclosed to him that [he] is a [person of [sensitive personal
information]]. The writer of the letter has not provided me with sufficient
evidence to show when this disclosure was made to him. In addition, I find
that it is written by a person who may have an interest in the outcome of this
application. Specifically, the writer states that [A.B.] is a dedicated and
practising member of his church. I find that the writer does not show that it
is not in his interest for [A.B.] to continue attending his church. I find
that his statements regarding risks that [A.B.] may face in [A.B.’s country of
origin] are speculative. The writer of the letter has not shown me that he is
an expert on country conditions in [A.B.’s country of origin]. I also find
that the writer is simply repeating what [A.B.] told him. For these reasons, I
assign this letter little weight.;
thirdly, the Officer wrote with respect to
a letter provided by a long-term friend of A.B.:
[A.B.] has provided a
letter from [a friend]. [The friend] states that he has been [A.B.’s] friend
for the last 20 years. He states that he has always known [him] as a [sensitive
personal information]. However, I note [A.B.] did not state his name when
asked who is aware of [his] [sensitive personal information]. Considering that
they have been friends for two decades and have had “long discussion (sic) on
the subject” of [A.B.’s] [sensitive personal information], it is unreasonable
that [the friend] was not mentioned by [A.B.]. I find that [the friend] may
also have an interest in the outcome of this application; he is [A.B.’s]
friend. I also find that [the friend] has not shown me that his opinion of
[A.B.’s] [sensitive personal information] is based on more than just what
[A.B.] told him. For these reasons, I assign this evidence little weight.;
and finally, with respect to a letter provided
from a partner, or perhaps now former partner of A.B., the Officer wrote:
[A.B.] provided a letter
from [the partner]. [The partner] states that [he/she] has been in a
…relationship with [A.B.] since… . Considering that this evidence states that
[A.B.] and [the partner] have been “soul mates” for the last few years, it is
unreasonable that there is no mention of [the partner] during [A.B.’s] IAD
hearing, [A.B.’s] PRRA application or [his] original submissions. [A.B.] did
not present any evidence regarding [the partner] until the day of [his]
PRRA hearing. I note that [the partner] did not attend [A.B.’s] PRRA hearing.
I note that the letter does not show that [the partner] does not have an
interest in the outcome of this application. For these reasons, I assign this
letter little weight.
[emphasis in
original]
ANALYSIS
a) Standard of
Review
[10]
Until
very recently, it has been generally accepted that the standard of review of a
decision on a Pre-Removal Risk Assessment, when taken as a whole, is reasonableness
simpliciter.
Further, it has generally been accepted that conclusions of pure fact
drawn by a Pre-Removal Risk Assessment Officer are reviewed on a patent
unreasonableness standard.
[11]
On
Friday, the 7th of March, the world changed. In Dunsmuir v. New
Brunswick, the Supreme
Court merged the “patent unreasonableness” and reasonableness simpliciter
standards of review and reduced the standards from three (3) to two (2), those
being “correctness” and “reasonableness”. The Court further re-identified the
concept “pragmatic and functional analysis” with the same process now to be
referred to as “standard of review analysis”.
[12]
A
few paragraphs from the majority judgment delivered by Justices Bastarache and
Lebel are of interest here. At paragraph [51], the Justices wrote:
Having dealt with the
nature of the standards of review we now turn our attention to the method for
selecting the appropriate standard in the individual cases. As we will now
demonstrate, questions of fact, discretion and policy as well as questions
where the legal issues cannot be easily separated from the factual issues
generally attract a standard of reasonableness while many legal issues attract
a standard of correctness. Some legal issues, however, attract the more deferential
standard of reasonableness.
I read the foregoing paragraph as
justifying the continuation of the past practice of this Court in identifying
the standard of review of a pre-removal risk assessment decision, when viewed
generally, as “reasonableness”.
[13]
Justices
Bastarache and Lebel continued at paragraph [57] of their reasons:
An exhaustive review is
not required in every case to determine the proper standard of review. Here
again, existing jurisprudence may be helpful in identifying some of the questions
that generally fall to be determined according to the correctness standard…this
simply means that the analysis required is already deemed to have been
performed and need not be repeated.
I regard the foregoing paragraph as being
equally applicable in the determination of questions that generally fall to be
determined according to the “reasonableness” standard. Based on earlier
jurisprudence of this Court, I am satisfied that here the analysis generally
required has already been performed and therefore need not be repeated.
[14]
The Court did not address paragraph 18.1(4)(d)
of the Federal Courts Act.
The relevant portions of subsection 18.1(4) reads as follows:
|
18.1 (4) The Federal Court may grant relief under subsection
(3) if it is satisfied that the federal board, commission or other tribunal
|
18.1 (4) Les mesures prévues au paragraphe (3)
sont prises si la Cour fédérale est convaincue que l'office fédéral, selon le
cas :
|
|
…
|
…
|
|
( d)
based its decision or order on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard for the material before it;
|
d) a rendu
une décision ou une ordonnance fondée sur une conclusion de fait erronée,
tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont
il dispose;
|
|
…
|
…
|
I am satisfied
that it remains clear that, where this Court is called upon to review a finding
of a federal board, commission or other tribunal, the decision of which is
under judicial review by this Court, this Court is still entitled, and indeed
obliged, to grant relief if it determines that the finding is indeed a finding
of fact and that it was made in a perverse or capricious manner or without
regard for the material before the federal board, commission or other
tribunal. This “standard of review” has been interpreted as akin to the now
abolished standard of “patent unreasonableness”.
[15]
Justices
Bastarache and Lebel also commented at some length on the concept of the
deference owed by Courts to administrative boards, commissions and other
tribunals with specialized expertise. I am satisfied that Pre-Removal Risk Assessment
Officers are specialized administrative “tribunals” with decision-making
responsibilities and that significant deference is owed to their decisions, and
in particular, their decisions regarding the weight to be given to evidence
presented before them.
b) The
Officer’s Analysis and Conclusions Regarding the Reference Letters that were
Before Him or Her
[16]
As
earlier noted, the Officer, in convoking the hearing or interview with A.B.,
assured A.B. that, at the Officer’s discretion, he or she might choose to
verify information provided by third parties or to question third parties.
A.B. was not requested to ensure that the persons on whose reference letters he
relied would be available at the convoked hearing or interview. Thus, it was
not surprising that A.B. did not bring those who provided letters on his behalf
to the hearing or interview.
[17]
The
Officer found that the therapist’s letter contained a significant inconsistency
and on that basis alone the Officer gave little weight to the therapist’s
letter.
[18]
In
the case of the letter from the spiritual advisor, the Officer found that the
adviser might have a conflict of interest, that is to say, an interest in A.B.
remaining in Canada. He further
found portions of the advisor’s letter speculative and to be merely a repeating
of what A.B. had told the advisor. Once again, on these grounds, the Officer
assigned the advisor’s letter little weight.
[19]
With
respect to the letter from A. B.’s friend of long standing, once again, the
Officer was concerned about the friend’s interest “…in the outcome of this
application…” as a friend of the Applicant. Further, the Officer once again
expressed concern that the friend might merely be repeating what A.B. had told
him. For these reasons, once again, the Officer assigned the friend’s letter
little weight.
[20]
For
essentially the same reasons adopted with respect to the letter from A.B.’s friend
of longstanding, the Officer assigned little weight to the partner’s or former
partner’s letter.
[21]
Finally,
the Officer had good reason to be concerned about the honesty of A.B. in
dealing with him or her. Those concerns could well have extended to a concern
that A.B. might have manipulated his therapist, his spiritual advisor, his
friend of longstanding and his partner or former partner in the provision of
supportive letters. But for the Officer to so summarily dismiss those letters
after A.B. was essentially invited to provide them, with an assurance that the
Officer might well wish to verify information provided in the letters or to
otherwise question the letter-writers, constitutes, I am satisfied a reviewable
error. The Officer’s decision is of great significance to A.B. It is essentially
the last step prior to removal of A.B. from Canada after many, many years in
this country and with the removal being to a nation with which A.B. apparently
has had very little, if any, connection since his childhood. Violence is
apparently endemic in that nation. Persons who are or are alleged to have a
particular characteristic of A.B. are apparently at particular risk in that
country.
[22]
In
all of the circumstances of this matter, I am satisfied that the Officer owed
A.B. a more thorough review of the support in the form of letters that he had
accumulated.
CONCLUSION
[23]
For
the foregoing reasons, this application for judicial review will be allowed and
A.B.’s application for a pre-removal risk assessment will be referred back to
the Respondent for reconsideration and redetermination by a different Officer.
[24]
A
draft of these reasons was distributed to counsel only and an opportunity was
provided to counsel to comment on the formatting of the reasons for the
protection of sensitive personal information and on whether a question for
certification arises. Neither counsel expressed any concern about the
formatting of the reasons and neither counsel recommended certification of a
question. The Court itself is satisfied that no serious question of general
importance here arises that would justify certification of a question.
Accordingly, these reasons, somewhat modified from those distributed to
counsel, will now issue. At the same time, an order will issue allowing this
application for judicial review. The Order will direct the registry, for
privacy reasons, to seal the Court’s file herein and to maintain it sealed
unless and until a judge of this Court orders otherwise.
“Frederick
E. Gibson”
Ottawa,
Ontario
April
9, 2008
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