Date: 20080923
Docket: IMM-1356-08
Citation: 2008
FC 1067
BETWEEN:
MITCHELL MARIE FERGUSON
(A.K.A.
MICHELLE MARIE FERGUSON)
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
ZINN
J.
[1]
The
Applicant says that the Pre-removal Risk Assessment (PRRA) Officer rejected her
application because he did not believe that she was lesbian. The Respondent
says that the PRRA officer rejected the application because there was
insufficient evidence presented to prove, on the balance of probabilities, that
the Applicant is lesbian. If the Applicant is correct, then the PRRA officer
ought to have held a hearing to determine her sexual orientation. If the
Respondent is correct then no hearing was required.
[2]
For
the reasons that follow, I am of the opinion that no hearing was required as
the decision was based solely on the weight of the evidence presented and did
not rest on the Applicant’s credibility.
BACKGROUND
[3]
Ms.
Ferguson has been in Canada since 1987. She lost her status as a
permanent resident of Canada and was ordered deported to Jamaica, her country
of nationality, after a criminal conviction for drug trafficking.
[4]
On
the PRRA application form under the heading “Reasons for Applying For Pre-Removal
Risk Assessment (PRRA)” Ms. Ferguson wrote “submissions to follow". Under
the heading “Supporting Evidence” where she is asked to provide a list of the
written documents included with the application that will “clearly act as
evidence in support of your application for a Pre-removal Risk Assessment",
two types of documents were listed, news articles and affidavits, which she
indicated would support her requests for protection by providing “objective
proof of risk". In fact, no affidavits were ever provided in support of
the application. The news articles that were provided dealt with the treatment
of lesbians in Jamaica but none specifically referenced Ms. Ferguson.
[5]
By
letter dated July 25, 2007, Ms. Ferguson's former counsel wrote to the PRRA
officer enclosing “the evidence being relied upon by the Applicant and
submissions in support of her application". In addition to enclosing news
articles, counsel provided a six-page document which appears to be the
submissions referenced in the covering letter. Counsel writes:
Ms. Ferguson is lesbian and is
very open about her sexual orientation. She believes that if removed to Jamaica, her life would be at risk,
as a result of well-known incidences of homophobia and hate-crime violence in
that country against members of her particular social group.
The only other reference to Ms. Ferguson’s sexual
orientation is found at the end of her former counsel’s submissions where she
writes:
Respecting the fact that the
objective documentary evidence reveals the persecution of members of the
Applicant's particular social group is commonplace in Jamaica, and the fact that Ms. Ferguson is very
openly lesbian, counsel respectfully submits that there is a very serious
possibility that the Applicant would be at risk should she return to her country
of nationality.
[6]
The
officer charged with evaluating Ms. Ferguson's claim agreed, without
reservation, on the basis of documentary evidence, that lesbians in Jamaica are
at risk of severe physical abuse on account of their sexual orientation. The
officer nonetheless dismissed the application on the basis that there was
insufficient evidence to establish that Ms. Ferguson is lesbian. The officer
wrote as follows:
Aside from the brief statement
that the applicant is a “lesbian and is very open about her sexual
orientation", I have not been provided with supporting evidence that
establishes, on the balance of probabilities that, the applicant is a
homosexual. Without sufficient evidence that the applicant is a lesbian, an
assessment of current country conditions does not establish that she is
personally at risk in Jamaica.
Thus, while independent
research confirms violence against homosexuals in Jamaica, there is insufficient objective
evidence before me to establish that the applicant is, on the balance of
probabilities, a lesbian.
[7]
Ms.
Ferguson submits that the basis for the PRRA officer’s determination rejecting
the application was her credibility and accordingly, pursuant to section 113 of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27, an oral
hearing should have been held. Subsection 113(a) provides that “a hearing may
be held if the Minister, on the basis of prescribed factors, is of the opinion
that a hearing is required”. The prescribed factors for determining whether a hearing
is to be held are set out in section 167 of the Immigration and Refugee Protection
Regulations, SOR/2002-227:
|
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.
|
[8]
It
is common ground between the parties that if all of the requirements of that
section are met, then a hearing should be held by the officer. It is also
common ground that the officer’s decision establishes that the requirements in subsections
(b) and (c) were met. The issue is whether the requirements set out in
subsection 167(a) were met. The Applicant's position is that they were; the
officer's rejection of her application was based on the rejection of her
evidence that she was openly lesbian, and thus the decision rested on her credibility.
The Respondent takes the position that the decision was not based on
credibility, but rather on a finding that there was insufficient evidence presented
to establish, on the balance of probabilities, that Ms. Ferguson was openly lesbian.
In fact, in her written submission, the Respondent’s counsel takes the position
that there was no evidence before the PRRA officer regarding Ms. Ferguson’s sexual
orientation to doubt or believe, as her counsel’s submission in this regard was
not evidence.
ISSUE
[9]
There
was an issue raised by the Applicant in the pleadings regarding an alleged breach
of the Canadian Bill of Rights, S.C. 1960, c. 44; however, it was not
pursued in oral argument and, in my view, was without merit. The sole issue in
this proceeding is whether the PRRA officer erred in failing to consider conducting
or in failing to conduct an oral hearing.
[10]
If
the officer’s determination was based on a “serious issue of the applicant’s
credibility” it is accepted that in Ms. Ferguson’s circumstances, as otherwise
found by the officer, he ought to have conducted an oral hearing. For the
reasons that follow, I am of the view that the officer made no error and an
oral hearing was not required under the Act or Regulations.
ANALYSIS
[11]
The
Applicant submitted that while the officer did not explicitly state that the decision
was one of credibility, it could not be anything other than credibility. In
the Applicant’s submission, the officer did not believe her counsel’s statement
that she is an open lesbian. Her counsel writes in the memorandum of argument:
“Whether because the Applicant had failed to produce sufficient evidence on the
balance of probabilities, or for any other reason, the PRRA officer has not
believed the statement that the Applicant is a lesbian”. This, it is submitted,
is essentially a finding of credibility that attracts the requirement to hold a
hearing under section 167 of the Regulations. The Applicant further submits
that the PRRA officer did not explain why the statement provided by the Applicant’s
former counsel was insufficient evidence or what evidence the officer did rely
on to refute the statement that she was lesbian.
[12]
The
Respondent submits that the legislative scheme makes it clear that applicants
who submit a PRRA application or any other application governed by the Act must
present evidence to support that application. It is submitted that bald
assertions in written submissions do not constitute evidence and ought not to
be given any weight. It is submitted that the officer, quite properly, gave no
weight to counsel’s submissions that his client was lesbian. In support of
this proposition the Respondent relies on Buio v. Canada (Minister of
Citizenship and Immigration), 2007 FC 157 at para 32; Canada (Minister of
Citizenship and Immigration)v. Sittampalam, 2004 FC 1756 at para
32; and Bressette v. Keetle and Stony Point First Nations Band Council
(1997), 137 F.T.R. 189.
[13]
In
response, the Applicant submitted that it is common practice for immigration counsel
to file written submissions on behalf of clients which include statements of
evidence, and that there is nothing in either the Act or Regulations or in the policy
and procedures of the Respondent that would indicate that such evidence is not
to be considered. It is further submitted that the letter from Citizenship and
Immigration Canada advising Ms. Ferguson of her right to apply for a Pre-removal
Risk Assessment states that information in written submissions will be
considered by the PRRA officer. That form letter contains the following paragraph:
You may send us written
submissions to support your application for protection. You may explain, in
the submissions, the reasons why you think your removal to your country of
nationality or habitual residence would put you at risk.
[14]
With
respect, in my view, that form letter makes it clear that the submissions are
to set out reasons and explanations –not evidence. Evidence to support the
application ought to be contained in or referenced in the application. In this
instance, the Applicant’s statement on the face of her application that
submissions were to follow may have been sufficient to alert the officer that
those submissions might also contain evidence in addition to reasons and
explanations. As will be discussed later, it is my view that there may be
instances when statements from counsel may be considered to be evidence.
[15]
Both
parties submitted numerous authorities to the Court in support of their
respective positions. The Applicant referred to Karimi v. Canada (Minister
of Citizenship and Immigration), 2007 FC 1010; Latifi v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1388; Lewis v. Canada
(Minister of Citizenship and Immigration), 2007 FC 778; Rizvi v. Canada
(Minister of Citizenship and Immigration), 2008 FC 717; Shafi v. Canada
(Minister of Citizenship and Immigration), 2005 FC 714; Suresh v. Canada
(Minister of Citizenship and Immigration), [2002] SCC 1; Tekei v. Canada
(Minister of Citizenship and Immigration), 2005 FC 27; and Zokai v.
Canada (Minister of Citizenship and Immigration), 2005 FC 1103. The Respondent
directed the Court’s attention to further authorities, including Demirovic
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1284; Gong
v. Canada (Minister of Citizenship and Immigration), 2008 FC 600; Iboude
v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No.
1595; Kim v. Canada (Minister of Citizenship and Immigration), [2003]
F.C.J. No. 452; Lake v. Canada (Minister of Citizenship and Immigration),
[2008] S.C.J. No. 23; Li v. Canada (Minister of Citizenship and Immigration),
[2005] F.C.J. No. 1; Ortiz Juarez v. Canada (Minister of Citizenship and
Immigration), [2006] F.C.J. No. 365; Owusu v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 158; Ray v. Canada
(Minister of Citizenship and Immigration), [2006] F.C.J. No. 927; Saadatkhani
v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 769;
Sen v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J.
No. 1804; and Yousef v. Canada (Minister of Citizenship and Immigration),
[2006] F.C.J. No. 1101.
[16]
Counsel
for both parties appeared to be of the same mind that, in the words of
Respondent counsel, there is no principled approach to the issue of credibility
versus sufficiency of evidence to be gleaned from these authorities. I do not
share that view. Most of the cases to which the Court was referred were
determined on the particular facts of the decision under review. In each
instance the Court was required to make a determination as to whether, in the
decision under review, “there is evidence that raises a serious issue of the
applicant’s credibility”, to use the words of section 167 of the Regulations.
That, in turn, required an examination of the evidence before the officer and
the officer’s assessment of that evidence. I accept the submission of
Applicant’s counsel that the Court must look beyond the express wording of the
officer’s decision to determine whether, in fact, the applicant’s credibility
was in issue.
[17]
In
my view, the approach to be taken by both the officer and this Court, sitting
in review, is to be guided by the principles set out by the Federal Court of
Appeal in Carrillo v. Canada (Minister of Citizenship and Immigration),
[2008] F.C.J. No. 399.
[18]
Ms.
Carrillo is a citizen of Mexico who sought refugee protection in Canada. She
claimed that she had been abused by her common-law spouse and that her spouse's
brother, a police officer, had helped her spouse find her when she hid after
the beating. The principal issue before the Immigration and Refugee Protection
Board was whether state protection was available to Ms. Carrillo in Mexico. Her
refugee claim was dismissed by the Board. It found that she was not a credible
or trustworthy witness with respect to her efforts to seek state protection in Mexico. Further,
the Board held that had it found her to be credible, she had nonetheless failed
to rebut the presumption of state protection with clear and convincing
evidence. The Federal Court set aside that decision on the basis that the Board
imposed too high a standard of proof on Ms. Carrillo regarding the lack of
state protection. An appeal to the Federal Court of Appeal was allowed.
[19]
The
Court of Appeal, in the course of its reasons, engaged in a detailed and
informative discussion of the concepts of burden of proof, standard of proof,
and quality of the evidence necessary to meet the burden of proof, all of which
I find to be very useful in the present case and which, in my view, ought to be
kept in mind by PRRA officers when considering applications.
[20]
In
every proceeding, whether judicial or administrative, one party has the burden
of proof. Where the existence of a particular fact is at issue,
uncertainty is resolved by asking whether or not the burden has been discharged
with respect to that fact . This was eloquently stated by Lord Hoffmann
in In re B (Children) (FC), [2008] UKHL 35 at
paragraph 2:
If a legal rule requires a fact to be
proved (a “fact in issue”), a judge or jury must decide whether or not it
happened. There is no room for a finding that it might have happened. The law
operates a binary system in which the only values are 0 and 1. The fact either
happened or it did not. If the tribunal is left in doubt, the doubt is resolved
by a rule that one party or the other carries the burden of proof. If the party
who bears the burden of proof fails to discharge it, a value of 0 is returned
and the fact is treated as not having happened. If he does discharge it, a
value of 1 is returned and the fact is treated as having happened.
[21]
In
PRRA applications, it is the applicant who bears the burden of proof: Bayavuge v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 111.
[22]
The
standard of proof in civil matters and in administrative processes is the
balance of probabilities. In this PRRA application the Applicant must prove,
on a balance of probabilities, that she would be subject to risk of
persecution, danger of torture, risk to life or risk of cruel and unusual
treatment or punishment if returned to Jamaica. That is
proved by presenting evidence to the officer. In this respect the Applicant
also has an evidentiary burden. The Applicant has the burden of presenting
evidence of each of the facts that has to be proved. One of those facts
involves her sexual orientation. As will be discussed below, I hold that she
did present some evidence of her sexual orientation and thus can be said to
have met her evidentiary burden – she presented evidence of each material fact
in issue.
[23]
As
the Court of Appeal pointed out in Carrillo not all evidence is of the
same quality. Accordingly, while an applicant may have met the evidentiary
burden because evidence of each essential fact has been presented, he may not
have met the legal burden because the evidence presented does not prove the
facts required on the balance of probabilities. The legal burden of proof is
met, in this case, when the Applicant proves to the officer, on the balance of
probabilities, that she is lesbian.
[24]
The
determination of whether the evidence presented meets the legal burden will
depend very much on the weight given to the evidence that has been presented.
[25]
When
a PRRA applicant offers evidence, in either oral or documentary form, the
officer may engage in two separate assessments of that evidence. First, he may
assess whether the evidence is credible. When there is a finding that the
evidence is not credible, it is in truth a finding that the source of the
evidence is not reliable. Findings of credibility may be made on the basis
that previous statements of the witness contradict or are inconsistent with the
evidence now being offered (see for example Karimi, above), or because
the witness failed to tender this important evidence at an earlier opportunity,
thus bringing into question whether it is a recent fabrication (see for example
Sidhu v. Canada 2004 FC 39). Documentary evidence may also be found to
be unreliable because its author is not credible. Self-serving reports may
fall into this category. In either case, the trier of fact may assign little
or no weight to the evidence offered based on its reliability, and hold that
the legal standard has not been met.
[26]
If
the trier of fact finds that the evidence is credible, then an assessment must
be made as to the weight that is to be given to it. It is not only evidence
that has passed the test of reliability that may be assessed for weight. It is
open to the trier of fact, in considering the evidence, to move immediately to
an assessment of weight or probative value without considering whether it is
credible. Invariably this occurs when the trier of fact is of the view that
the answer to the first question is irrelevant because the evidence is to be
given little or no weight, even if it is found to be reliable evidence. For
example, evidence of third parties who have no means of independently verifying
the facts to which they testify is likely to be ascribed little weight, whether
it is credible or not.
[27]
Evidence
tendered by a witness with a personal interest in the matter may also be examined
for its weight before considering its credibility because typically this sort
of evidence requires corroboration if it is to have probative value. If there
is no corroboration, then it may be unnecessary to assess its credibility as its
weight will not meet the legal burden of proving the fact on the balance of
probabilities. When the trier of fact assesses the evidence in this manner he
or she is not making a determination based on the credibility of the person
providing the evidence; rather, the trier of fact is simply saying the evidence
that has been tendered does not have sufficient probative value, either on its
own or coupled with the other tendered evidence, to establish on the balance of
probability, the fact for which it has been tendered. That, in my view, is the
assessment the officer made in this case.
[28]
The
only evidence presented concerning Ms. Ferguson’s sexual orientation was a
statement of her former counsel. There was no supporting or corroborative
evidence tendered. The officer found that her former counsel’s statement was
not probative. The Applicant raises two questions: “Was that, in effect, a
finding of credibility?” and “Was it a reasonable assessment?”.
[29]
I
take issue with the position of the Respondent in its memorandum of argument
that a statement made by counsel can never be evidence and thus, presumably,
can never be found to have any probative value. Legal counsel are officers of
the Court with well established duties and responsibilities, including the
responsibility not to misstate facts or mislead. In my view, statements of
fact made by counsel may constitute evidence in informal proceedings such as a
PRRA application and they may be given weight. In these instances, counsel is
not the witness, it is counsel’s client that is the effective witness – counsel
is merely making a statement on the client’s behalf.
[30]
If
the strict rules of evidence were imposed on informal administrative processes,
such as the PRRA determination process, their ability to function effectively
and promptly would be impaired. While counsel would be well-advised to tender
evidence through their client’s own mouths, circumstances may exist where this
is not possible or is impracticable. As Justice Rouleau observed in Rhéaume
v. Canada (Attorney General), 2002 FCT 98, at para 28,
"[p]arliament has seen fit to give administrative tribunals very wide
latitude when they are called on to hear and admit evidence so they will not be
paralyzed by objections and procedural manoeuvres. This makes it possible to
hold a less formal hearing in which all the relevant points may be put to the
tribunal for expeditious review".
[31]
Accepting
that counsel may submit evidence directly to the PRRA officer, the question
will always remain, as it does for all tendered evidence, as to the degree of
weight to be given to that evidence. As with all evidence tendered by an
applicant in an administrative proceeding, the weight to be given to statements
will depend very much on the nature of the statement, the materiality of the
fact stated to the matters in issue, and the nature of the proceeding itself.
A statement from counsel as to the client’s sexual orientation is entitled to
be given no more and no less weight than if it were made in an unsworn
statement by the Applicant herself.
[32]
When,
as here, the fact asserted is critical to the PRRA application, it was open to
the officer to require more evidence to satisfy the legal burden. Had the statement
been affirmed by the Applicant in a sworn affidavit submitted with her
application, it would have been deserving of somewhat greater weight than it
was given. Had it been supported by other corroborative evidence such as evidence
from her lesbian partner(s), public statements, and the like, it would have
attracted even more weight.
[33]
The
weight the trier of fact gives evidence tendered in a proceeding is not a
science. Persons may weigh evidence differently but there is a reasonable
range of weight within which the assessment of the evidence’s weight should
fall. Deference
must be given to PRRA officers in their assessment of the probative value of
evidence before them. If it falls within the range of reasonableness, it
should not be disturbed. In my view the weight given counsel’s statement in
this matter falls within that range.
[34]
It
is also my view that there is nothing in the officer's decision under review which
would indicate that any part of it was based on the Applicant's credibility. The
officer neither believes nor disbelieves that the Applicant is lesbian – he is
unconvinced. He states that there is insufficient objective evidence to
establish that she is lesbian. In short, he found that there was some evidence
– the statement of counsel – but that it was insufficient to prove, on the balance
of probabilities, that Ms. Ferguson was lesbian. In my view, that
determination does not bring into question the Applicant’s credibility.
[35]
Based
on the treatment homosexuals receive in Jamaica, as set out
in the officer’s decision, it is truly unfortunate if the Applicant is lesbian
that she will be returned to Jamaica. However, every
applicant for a Pre-removal Risk Assessment, and their counsel, must take
responsibility to ensure that all of the relevant evidence is before the
officer and, of equal importance, that they present the best evidence in
support of the application. Where that is not done, the consequences of a
failed application rest with the Applicant and counsel.
[36]
For
these reasons, this application is dismissed.
[37]
At
the hearing the parties requested an opportunity to consider their positions
and, if advised, make submissions on a certified question. Accordingly, within
15 days of the issue of these Reasons, either or both counsel may submit a
draft of any question proposed to be certified. The Court will reserve the
right to endorse any such question and incorporate it or them into the formal
Judgment.
“Russel W. Zinn”
Ottawa, Ontario
September
23, 2008
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