Date: 20081008
Docket: IMM-1350-08
Citation: 2008 FC 1140
Ottawa, Ontario, October 8, 2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
TANIA-SUE
MARIE PARCHMENT
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
application for judicial review, of a decision made of an Immigration officer,
dated January 25, 2008, where the officer found that the Applicant would not
be subject to persecution, torture or risk of loss of life if returned to Jamaica,
is made pursuant to section 72 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA).
FACTUAL BACKGROUND
[2]
The
Applicant, a Jamaican citizen, landed in Canada in 1975 at
the age of 12. She is the mother of three daughters, born in 1984, 1988, and
1997 and of one son, born in 1986. She was convicted in Canada of the
following criminal offences:
a) assault with
a weapon, Burlington,
ON; sentence 2
years probation;
b) assault &
fraud, Toronto, ON; 3 years
probation;
c) possession
& drug trafficking, Toronto, ON; 11 months
plus 1 year probation;
d) failure to
officer in court, Toronto, ON; $100.00 fine.
[3]
The
Applicant claims that she is a lesbian since 1999 and fears persecution in Jamaica from
government officials because she is a lesbian. She has alleged that she would
produce evidence of her sexual orientation but she has not done so. On the
basis of documentary evidence, it was established that in Jamaica, lesbians
face a severe risk of discrimination and “unusual, undeserved and disproportionate
hardship”.
THE DECISION
[4]
The
officer noted that documentary evidence shows gays and lesbians are
discriminated against and persecuted in Jamaica. He also
writes that police agencies and jail conditions were deplorable and that the
judicial system is over burdened. He declared, however, that it had been established
that Jamaica was a
constitutional parliamentary democracy with a government which generally
respected the human rights of its citizens.
[5]
The
officer concluded that notwithstanding the above facts, the Applicant had not
provided sufficient evidence, of the standard required of the balance of
probabilities, that she was a homosexual.
[6]
In
her 2007 written statement, she alleged that she had evidence to corroborate
her same-sex relationship but she did not provide any beyond her own
affirmation. The officer wrote that because of her nine year relationship, it
would not be unreasonable to provide details to corroborate her claim.
[7]
The
officer also found that there was insufficient evidence to substantiate her
claim that she would be at the risk of cruel and unusual, unjustified
punishment or persecution, if she returned to Jamaica.
STANDARD OF REVIEW
[8]
The
Supreme Court of Canada in Dunsmuir v. New
Brunswick,
2008 1 S.C.R. 190, has established that there are two standards of judicial
review, correctness and reasonableness.
[9]
The
standard of correctness applies to questions of law, of procedural fairness, and
natural justice while the standard of reasonableness applies to assessment of
facts or mixed facts and law.
[10]
When
the issue involves matters of facts or law applied to facts, a judicial review
is not to be granted if the decision falls within the range of reasonable
assessments of these facts.
[11]
In
the present case, the standard of review is reasonableness since it involves
the application of law to a situation of fact only.
THE ISSUES
- Did the officer
breach the duty of procedural fairness by not holding an oral hearing
because he found the Applicant not credible?
- Is the decision
reasonable or did the officer ignore evidence?
ANALYSIS
- Did the officer
breach the duty of procedural fairness by not holding an oral hearing
because he found the Applicant not credible?
The Pertinent
Legislation
[12]
Section
167:
|
167. (1) Both a person who is the subject of Board
proceedings and the Minister may, at their own expense, be represented by a
barrister or solicitor or other counsel.
|
167. (1) L’intéressé peut en tout cas se faire
représenter devant la Commission, à ses frais, par un avocat ou un autre
conseil.
|
[13]
Section
113:
|
113. Consideration of an application for protection shall be
as follows:
(a) an applicant
whose claim to refugee protection has been rejected may present only new
evidence that arose after the rejection or was not reasonably available, or that
the applicant could not reasonably have been expected in the circumstances to
have presented, at the time of the rejection;
(b) a hearing may
be held if the Minister, on the basis of prescribed factors, is of the
opinion that a hearing is required;
(c) in the case of
an applicant not described in subsection 112(3), consideration shall be on
the basis of sections 96 to 98;
(d) in the case of
an applicant described in subsection 112(3), consideration shall be on the
basis of the factors set out in section 97 and
(i) in the case of an
applicant for protection who is inadmissible on grounds of serious
criminality, whether they are a danger to the public in Canada, or
(ii) in the case of any
other applicant, whether the application should be refused because of the
nature and severity of acts committed by the applicant or because of the
danger that the applicant constitutes to the security of Canada.
|
113. Il est disposé de la demande comme il suit :
a) le demandeur d’asile débouté ne peut
présenter que des éléments de preuve survenus depuis le rejet ou qui
n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il
n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les
ait présentés au moment du rejet;
b) une audience peut être tenue si le ministre
l’estime requis compte tenu des facteurs réglementaires;
c) s’agissant du demandeur non visé au
paragraphe 112(3), sur la base des articles 96 à 98;
d) s’agissant du demandeur visé au paragraphe
112(3), sur la base des éléments mentionnés à l’article 97 et, d’autre part :
(i) soit du
fait que le demandeur interdit de territoire pour grande criminalité
constitue un danger pour le public au Canada,
(ii) soit,
dans le cas de tout autre demandeur, du fait que la demande devrait être
rejetée en raison de la nature et de la gravité de ses actes passés ou du
danger qu’il constitue pour la sécurité du Canada.
|
[14]
The
Applicant submits that the officer failed to consider all the facts listed in
section 167 of IRPA to determine whether an oral hearing was required as
permitted by section 113 (h) of the IRPA.
[15]
The
Applicant alleges that she affirmed in her statement that she is a lesbian and
this “evidence” was uncontradicted, this fact being established on a balance of
probabilities and thus became a credibility finding requiring an oral hearing.(Zokai v. Canada (Minister of Citizenship
and Immigration), 2005 FC 1103, 141 A.C.W.S. (3d) 809; Tekie
v. Canada (Minister of Citizenship and Immigration), 2005 FC 27, 136
A.C.W.S. (3d) 884; Kim
v. Canada (Minister of Citizenship and Immigration), 2003 FCT 321, 121 A.C.W.S. (3d) 919; Shafi
v. Canada (Minister of Citizenship and Immigration), 2005 FC 714, 139
A.C.W.S. (3d) 914)
[16]
The
Respondent contests this argument based upon the lack of sufficient evidence to
support her claim that being a lesbian, she was subject to severe risks if
returned to Jamaica.
[17]
The
Respondent relies heavily on the reasoning of Justice Russel Zinn in Ferguson,
involving the case of a Jamaican woman, convicted of a criminal offence in
Canada in drug trafficking and being ordered deported and claiming to be
subject to risk as a lesbian. (Ferguson v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1067).
[18]
Justice
Zinn found that there was no requirement to hold an oral hearing because the
decision was not based on credibility but rather on a finding that there was
insufficient evidence to establish, on the balance of probabilities, that Ms.
Ferguson was openly a lesbian (Ferguson, above, para. 8).
[19]
In
my view, Justice Zinn’s reasoning is well-founded in law and the near identical
facts with the present case supports to the conclusion that the officer was
correct in not holding an oral hearing.
2. Is the
decision reasonable or did the officer ignore evidence?
[20]
The
Applicant argues that in her written application, she wrote that she was a
lesbian since 1999 and this affirmation was sufficient to establish that fact
since it was uncontradicted.
[21]
The
Respondent answers that the simple unsworn affirmation does not constitute
“evidence”, or if so, it was not beyond the balance of probabilities.
[22]
In
my view, the answer lies in the Federal Court of Appeal decision in Carillo
v. Canada (MCI), 2008 FCA 94, paras. 14 to 16, where the Court elaborated
the distinctions between “burden of proof, standard of proof and quality of
evidence”.
[23]
As
recalled by Justice Zinn in Ferguson, the PRRA officer must
engage in two separate assessments of the 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
credible…” at para. 25:
[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.
and at paragraph 26:
[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.
[24]
In
the Ferguson case,
Justice Zinn took that last step and because the only “evidence” of Ms.
Ferguson’s sexual orientation was a statement of her former counsel, without
supporting evidence, he confirmed the officer’s decision that the former
counsel’s statement was not probative. (Ferguson, above,
para. 28)
[25]
In
my opinion, this reasoning applies exactly on the facts of the present case.
[26]
There
is no “evidence”, except an affirmation of an unsworn and unsupported
declaration of the Applicant as to her sexual orientation.
[27]
The
officer was therefore correct in considering there was no “evidence” of this
fact beyond the balance of probabilities.
[28]
Besides
the fact that the Applicant had a personal interest in the outcome of the case,
the fact that she had a criminal record and was facing deportation, the officer
had to consider all other factors, including the fact that she was the mother
of four children, and notwithstanding the declaration in this application that
she would provide corroborative evidence as to her relationship, she had not done
so.
[29]
The
officer did not ignore evidence. The officer correctly decided that the
Applicant had not satisfied the burden of proof required, this decision must
therefore stand. The decision falls within the range of acceptable stand as
directed by the Supreme Court of Canada in Dunsmuir, where the following
dictum was written: “In judicial review, reasonableness is concerned
mostly with the existence of justification, transparency and intelligibility
within the decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, above, para.
47).
[30]
The decision in this case satisfies this test.
[31]
Wherefore
all of these reasons, the application must be dismissed.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1. This
application is dismissed without costs.
2. No questions
are certified.
"Orville
Frenette"
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