Date:
20130628
Docket:
IMM-9947-12
Citation:
2013 FC 726
Ottawa, Ontario,
June 28, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
|
|
RICHARD MARSHALL
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
A
supervisory court reviewing a decision of a tribunal does so with three
governing constructs in mind. First, judicial review is not, in the
language of the Supreme Court of Canada, a line-by-line search for error.
Reasons are to be read as an organic whole: Communications, Energy and
Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013
SCC 34, [2013] SCJ No 34 and not every fact or issue must be canvassed: Alberta
(Information and Privacy Commissioner) v Alberta Teachers’ Association,
2011 SCC 61, [2011] 3 S.C.R. 654. Second, while perfection in the analysis
is not the standard, the reasons are assessed against the criteria of
transparency, intelligibility and justification: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. Third, the
decision is read with a view to upholding it, not with a view to setting it
aside. In consequence, the court may use the record to supplement the
reasons to fill in gaps or lacunae in the reasoning process where
apparent from the record: Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708.
[2]
In
this case there are two omissions in the reasons, each of which is critical to an
analysis of a pre-removal risk assessment (PRRA), and neither of which can be
saved or remedied by a generous interpretation and application of the three
governing principles.
[3]
The
Officer made no conclusion as to the applicant’s credibility and made no
conclusion as to the threat or risk the applicant faces under section 97 of the
Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA). While the Officer
conducted a detailed analysis of the new evidence tendered, and identified serious
problems with respect to the applicant’s credibility and the authenticity of
the documents tendered by the applicant, there is no conclusion as to whether
the applicant’s story is accepted as credible or whether the allegations fall
within section 97, particularly paragraph 97(1)(b).
[4]
While
it may be reasonable for the Officer to disbelieve the applicant, that
conclusion was not drawn, and no ultimate decision made in respect of the risk
or threat. The Court is unable to infer that the Officer reached a
conclusion on credibility, in light of the Officer’s finding that the applicant
is a victim of crime and fears criminals in Trinidad. This implies that his
allegations are believed, at least in part. Otherwise there would have been no
state protection analysis required.
[5]
The
second problem arises in respect of the state protection analysis. The
review of the evidence simply does not support the conclusion. These are not
gaps in the analysis that can be supplemented by a review of the record or by
logical inference. They are essential aspects of the decision making process.
[6]
Therefore,
I grant this application for judicial review.
Background
[7]
The
applicant entered Canada in 2004 and unsuccessfully claimed refugee
protection. He testified that he had been shot by a policeman, “Robocop,”
for having broken ranks with a corrupt Muslim organization in Trinidad.
Robocop is said to have shot the applicant because he knew too much about the
organization’s criminal activities. The applicant’s claim for refugee
protection was dismissed based on the availability of state protection.
[8]
Since
then, the applicant has had four negative PRRAs. This Court granted his
application for judicial review from the first decision. The Minister
consented to a redetermination of the second. The Minister further
consented to the judicial review of the third decision being granted.
[9]
This
application relates to the applicant’s fourth negative PRRA. On October
18, 2012, Justice O’Keefe granted an order staying the applicant’s removal from
Canada pending the outcome of this judicial review.
The
Officer’s Conclusion on Risk
[10]
The
Officer considered the additional evidence in support of the PRRA application.
[11]
First,
in accordance with paragraph 113(a) of the IRPA, the Officer refused to
consider the statutory declaration from Kenny Fletcher, who stated that he
heard the 2004 shooting incident and assisted the applicant in reaching
safety. The Officer reasonably determined that there was no explanation
as to why this evidence would not have been available at the refugee hearing
and that it was not “new”. Evidence which is not new need not be considered: Raza
v Canada, 2007 FCA 385, para 13.
[12]
The
applicant also presented evidence which the Officer considered new. The key
evidence before the Officer was:
a. A letter from Sergeant
Steve Michael Moss, said to be a police officer, stating that police
intelligence indicates that should the applicant return to Trinidad and Tobago he would be in danger. The applicant’s assailant is said to be known
to the police and presently at large due to corruption in the police force.
b. A letter from Joseph
Saunders, said to be the superintendent of the prison service, containing similar
information and nearly identical language.
[13]
The
Officer noted that the previous decision maker had requested verification of
these letters. The Commissioner of Police for Trinidad and Tobago replied that
“a perusal of our employee’s data base reflects that there is no one employed
as a police officer or civilian by the name of Michael Moss.” The
Commissioner of Prisons wrote that “the Prison Service does not now nor at
anytime had, a Superintendent of Prisons by the name of Joseph Saunders.”
[14]
The
applicant was interviewed on May 28, 2012 to address credibility concerns arising
from this information. The applicant insisted that the letters were
authentic. He noted that the first letter was not written by Michael Moss
but rather by Steve Michael Moss; therefore the response from the Commissioner
of Police related to the wrong person. With regards to Joseph Saunders,
the applicant stated that he is retired and may have needed to protect his
life. The Officer rejected these explanations. The decision to do so is
unassailable.
[15]
The
applicant claimed to have spoken with Sgt Moss on the phone after Sgt Moss fled
to the United States. The applicant did not provide any phone records or
a further letter from Sgt Moss to substantiate these allegations, despite
stating that he requested a letter. The Officer considered this unbelievable,
particularly as eight months had passed since this conversation was said to
have taken place.
[16]
The
applicant showed the Officer numerous threatening text messages on his
phone. The applicant stated that he deleted additional voice and text
messages. The Officer did not believe that the applicant would have
deleted threatening messages in light of his circumstances. Though the
applicant provided a phone number which he states the messages originated from,
the Officer noted that there was no evidence as to whom this number belonged.
[17]
The
applicant stated that he was threatened in Canada in February 2012 and that his
tires were slashed in April 2011 by unknown assailants. The Officer was
not satisfied that these events took place or that they were connected with his
alleged risk in Trinidad and Tobago.
[18]
The
applicant provided a doctor’s report confirming that he has a bullet lodged in
his right upper body. The Officer noted that this evidence did not establish
when the applicant was shot, or by whom.
[19]
The
applicant provided several letters and declarations in support of his
application. The applicant’s cousin, Paul Marshall, wrote that he and his
family have been harassed by the applicant’s assailant. The Officer
assigned this letter “minimal weight” because there were no details regarding
the nature of the alleged harassment or how Mr. Marshall knew it was the same
individual who had shot the applicant.
[20]
The
applicant’s friend, Kenson King, wrote that the applicant would be killed if he
returned and that his cousin had been killed in relation to the 2004
incident. The Officer also gave this “minimal weight” because there was
no death certificate to substantiate the allegation or details as to how the
alleged murder related to the applicant’s shooting.
[21]
The
statutory declaration from Daniel Lewis stated that the applicant’s assailant
was at large and that the applicant’s safety would not be a police priority,
according to “Intelligence and Classified Information.” The Officer
assigned this “minimal weight” because there was no indication of the writer’s
position or how he accessed “classified” information. At the oral
hearing, the applicant stated that Mr. Lewis is a private investigator.
The Officer considered this statement insufficient due to the lack of
corroboration.
[22]
The
applicant submitted a statement from Joseph Saunders. Mr. Saunders also
stated that the applicant is in danger, based on “Intelligence and Classified Information”. According to Mr. Saunders, the applicant’s safety “would in no way be a priority”
should he return. The Officer considered this letter to be vague on many
crucial points, including the author’s position and ability to access
“Intelligence and Classified Information.” The Officer determined that
the letter had little probative value.
[23]
Having
reviewed the evidence, the Officer concluded:
Upon review of the evidence
before me I find that the applicant fears a criminal and or criminals in Trinidad. The applicant’s fear in this case is not linked to race, religion, nationality,
political opinion, or membership in a particular social group. I find the
applicant is a victim of crime and this does not provide him with a link to a
Convention ground.
[24]
The
Officer concluded that the applicant’s allegations were not linked to a
Convention ground, as required by section 96. Notably absent, however, is any
conclusion on whether the applicant’s allegations would fall within section
97. The Officer also found that state protection was available as “authorities
in Trinidad and Tobago, pursue, investigate, charge and prosecute individuals
who contravene the laws of the country.”
Approach
to the Evidence
[25]
The
Officer’s treatment of the evidence and findings of fact are entitled to
deference and are reviewable on the standard of reasonableness: Dunsmuir,
para 47.
[26]
The
applicant argues that certain findings of fact are perverse and capricious,
made without regard to the evidence. The majority of these arguments are
without merit. For example, the applicant points to the Officer’s comment
that the applicant may have been shot in Canada, noting that is was purely
speculative and contrary to the evidentiary basis on which a judge of the Court
disposed of the stay motion. Closer review of the record indicates that the Officer
made no explicit finding on this question and dealt only with state protection.
[27]
The
Officer had concerns regarding the applicant’s credibility. These
concerns are reasonable in light of statements from the authorities in Trinidad and Tobago which indicate that certain letters may be inauthentic.
[28]
There
are problems with the Officer’s apparent conclusion that there was insufficient
evidence to establish that Robocop is a former police officer. There is
an article in the record which states, “Just days after being freed of a murder
charge, former police officer, Selwyn “Robocop” Alexis has been re-arrested…”
[29]
The
Officer considered this report, but preferred “to give greater weight to the
preponderance of the objective evidence” which did not specifically identify Robocop’s
prior occupation. This may have been reasonable if the other newspaper
articles specifically stated that Robocop had never been a member of the police
force. However, at best those articles are silent on the subject.
[30]
The
Officer subsequently writes “…I do find that the applicant presented sufficient
objective evidence to establish on a balance of probabilities that Robocop was
a former police official.” In light of the previous paragraph, it appears that
there may be a typographical error in this sentence. It is problematic
that the Officer’s conclusion on this critical point is ambiguous.
State
Protection
[31]
The
Officer’s decision ultimately turns on the question of state protection. This
is necessarily the case, as there is no analysis as to whether the applicant’s
allegations fall within section 97 of the IRPA. Despite the above
noted frailties in the decision, state protection is an independent basis on
which his claim could nevertheless be rejected as claimants will not be persons
in need of protection if they are able to avail themselves of the protection of
their country. However, the Officer’s analysis of state protection falls
short of what is required.
[32]
The
Officer’s analysis on this issue includes the following evidence:
a. The president declared
a state of emergency from August to December of 2011 due to a sudden spike in
killings;
b. There was a perception
of police impunity;
c. The police killed
suspects during apprehension and custody;
d. The criminal justice
system proceeded at a slow pace and investigations were “open-ended”;
e. Public confidence in
the police force was low due to high crime rates and perceived corruption; and
f. The Police Complaints
Authority had a backlog of more than 11,000 complaints.
[33]
Other
than the recital that Trinidad and Tobago is a democratic state with effective
control of its territory, the Officer’s analysis contains no examples or
indicators of effective policing. The Officer’s finding on state
protection is disassociated from the analysis that precedes it. I see no
line of evidence which supports the conclusion that state protection is
adequate.
[34]
The
Court is unable to supplement the reasoning from the record. In this case,
doing so would require this Court to substitute its view of the evidence for
that of the Officer. Accordingly, the decision is unreasonable.
Procedural
Fairness
[35]
As
the decision fails to satisfy the requirement of reasonableness, it is not
necessary to address the question of procedural fairness. However, some
comments are in order.
[36]
As
previously mentioned, the Officer had evidence that the applicant presented a
letter purporting to be from police authorities in Trinidad and Tobago. Should
the Officer rely on this document in reaching a negative credibility finding,
procedural fairness would, in the circumstances of this case, require
disclosure of the outgoing communication between the Canadian High Commission
in Port-of-Spain to the Trinidadian authorities. The reason for this
follows.
[37]
There
is a discrepancy in the name of the witness as given by the applicant in his evidence,
Steve Michael Moss, and the name referenced by the Commissioner of Police in
his reply to the High Commission, Michael Moss. The outgoing communication,
should it exist, from the Canadian High Commission may be of assistance to the
applicant in responding to the concern that his document is not authentic. For
example, it may be that the High Commission provided the authorities with the
incorrect name. Simply put, what question was asked of the Commissioner of
Police? Did the High Commission ask if Michael Moss had been a member or did
it ask if Steve Michal Moss had been a member?
[38]
Should
an officer accept the authenticity of the documents, such disclosure would not
be required. It may also be reasonable for an officer to assess the
applicant’s credibility without reliance on this contested evidence.
Abuse
of Process and Reasonable Apprehension of Bias
[39]
Finally,
there is no merit in the applicant’s bare assertion that the Officer “engaged
in a contemptuous disregard and/or an abuse of process” and demonstrated a
reasonable apprehension of bias.
[40]
The
existence of a reviewable error falls far short of establishing contempt or mala
fides. A reasonable and right minded person would not consider a
decision maker biased without some evidence: Committee for Justice and Liberty v Canada (National Energy Board), [1978] 1 S.C.R. 369.
Remedy
[41]
I
do not accept the applicant’s submission that he is entitled to an order
directing that the respondent grant him protection. As I have mentioned,
there are serious concerns regarding the authenticity of the applicant’s
evidence and therefore his credibility. These findings of fact are
entitled to deference.
[42]
The
appropriate remedy is that the matter be referred back for redetermination.
With the consent of the respondent, this matter is remitted to a PRRA
office other than Toronto.
[43]
I
see no basis for the awarding of costs. While the decision does not
adhere to the guidance of this Court in earlier decisions, particularly regarding
the out-bound request from the Canadian High Commission in Port-of-Spain
to the Trinidadian police in respect of Steve Michael Moss, I do not see this
as egregious conduct that would warrant an award under Rule 22 of the Federal
Courts Immigration and Refugee Protection Rules, SOR/93-22.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
granted. The matter is referred back to Citizenship and Immigration
Canada for reconsideration before a different Pre-Removal Risk
Assessment officer (at an office other than Toronto). There is no
question for certification.
"Donald J.
Rennie"
Email this Content