Date: 20140923
Docket: IMM-6595-13
Citation:
2014 FC 910
Ottawa, Ontario, September 23, 2014
PRESENT: The
Honourable Madam Justice Gleason
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BETWEEN:
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RAOUL ANDRE BURTON
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant, Raoul Burton, is a Jamaican
citizen who came to Canada as a permanent resident when he was ten years old.
He settled in Toronto with his family and as a teenager became involved with the
Malvern Crew, a criminal street gang.
[2]
In 2004, Mr. Burton was arrested and questioned
by police in connection with the murder of a rival gang member. He agreed to
become an informant and pled guilty to a charge of participating in a criminal
organisation. He was eventually subpoenaed to testify for the Crown in the
high-profile trial of a fellow gang member, Warren Abbey, who was charged with
the murder of a rival gang member. Mr. Abbey was convicted in 2011 following a
trial during which Mr. Burton gave an eye-witness account of the murder. Mr.
Burton’s participation in the trial was reported by the media, in violation of
a court-ordered publication ban.
[3]
By reason of the widespread publicity
surrounding his testimony, Mr. Burton claims that if he were returned to Jamaica he would be at risk of harm due to the prevalence of gangs and gang-related violence
in that country and to the gangs’ determination to root out informants. He is
in particular concerned that several other members of the Malvern Crew, who know
of his role in Mr. Abbey’s conviction, have been deported from Canada to Jamaica.
[4]
Mr. Burton made a Pre-Removal Risk Assessment
[PRRA] application in 2011 after he lost his permanent resident status due to
his criminal conviction. His PRRA application was dismissed on June 29, 2012.
In dismissing the application, the PRRA officer “acknowledge[d]
that [Mr. Burton] may face risk of harm from gang members in Jamaica”
but determined that Mr. Burton had not rebutted the presumption of adequate
state protection in that country.
[5]
In Burton v Canada (Minister of
Citizenship and Immigration), 2013 FC 549, [2013] FCJ No 583 [Burton], my colleague, Justice Anne Mactavish, set aside the June 29, 2012 PRRA decision.
She determined that the first PRRA officer had accepted that Mr. Burton would
be at risk from gangs in Jamaica due to his having been a police informant. In
light of this determination, she held that it was unreasonable for the PRRA
officer to have looked at the issue of state protection generally as opposed to
focussing on the ability of the Jamaican authorities to protect those who
provide police information about gang-related crimes. Justice Mactavish held in
this regard that “these omissions [were] of real concern
in light of the country condition information” that contained several
indications that the Jamaican police were unable or perhaps unwilling to
protect former gang members who become informants.
[6]
Rather than merely setting aside the June 29,
2012 PRRA decision, as is often done, Justice Mactavish instead specifically
provided directions as to the conduct of the re-determination. Her disposition in
Burton was as follows: “This Court orders and
adjudges that [the] application for judicial review is allowed, and the matter
is remitted to a different immigration officer for re-determination in
accordance with these reasons”. A review of her Reasons indicates that
the issue Justice Mactavish envisioned would be addressed on re-determination
was the adequacy of state protection in Jamaica in light of Mr. Burton’s
profile of being a former gang member, who had turned informant and who had played
a key role in Mr. Abbey’s murder conviction.
[7]
In accordance with Justice Mactavish’s decision,
Mr. Burton’s PRRA application was remitted to another PRRA officer for
redetermination. However, in his August 29, 2013 decision, the second PRRA
officer did not carry out the analysis Justice Mactavish envisioned would occur
and instead concluded that Mr. Burton would not face a risk from gang members if
he were returned to Jamaica. In so deciding, the second PRRA officer did not
discuss either the first PRRA decision or Justice Mactavish’s decision in Burton.
[8]
In the present Application for Judicial Review,
Mr. Burton seeks to set aside the second negative PRRA assessment, arguing that
the decision is either an abuse of process or an unreasonable determination
because it flies in the face of Justice Mactavish’s decision in Burton. Thus, the issues that arise in this Application for Judicial Review are the
following:
1.
Does the doctrine of abuse of process provide a
basis for setting aside the second PRRA decision?
2. Is the second PRRA decision unreasonable?
3. What remedy is appropriate?
I review each of
these issues, in turn, below.
I.
Does the doctrine of abuse of process provide a
basis for setting aside the second PRRA decision?
[9]
Mr. Burton’s primary argument is that the second
PRAA officer’s decision constitutes an abuse of process and should be set aside
on this basis. He submits in this regard that the doctrine of abuse of process,
as articulated by the Supreme Court of Canada in Toronto (City) v CUPE, Local
79, 2003 SCC 63, [2003] 3 S.C.R. 77 [City of Toronto], British
Columbia (Workers’ Compensation Board) v Figliola, 2011 SCC 52, [2011] 3
SCR 422 [Figliola] and Penner v Niagara (Regional Police Services
Board), 2013 SCC 19, [2013] 2 S.C.R. 125 [Penner], is a flexible one
and ought to be applied here. In those cases, the Supreme Court indicated that
the doctrine of abuse of process may be applied to prevent a party from re-arguing
an issue before an administrative tribunal in circumstances where that issue
has been finally decided in another proceeding.
[10]
While fairly conceding that it would be an
extension of the doctrine to apply it to this case, counsel for Mr. Burton
argues that the policy concerns that were noted as reasons for the doctrine in City
of Toronto, Figliola and Penner also apply with full force
and effect in the present situation. He asserts that the need to prevent
duplicative proceedings and re-litigation of decided issues (and the consequent
negative impact on the administration of justice of conflicting decisions) arises
here because Justice Mactavish’s decision in Burton essentially left the
risk determination of the first PRRA officer intact and remitted only the issue
of state protection for redetermination. Mr. Burton thus submits that the
second PRRA officer’s reconsideration of the issue of risk is akin to the sort
of re-litigation that has been found to be abusive. He notes that the two PRRA
officers reached opposite conclusions on the risk issue on identical facts and argues
that “this type of schizophrenic decision-making is
precisely the type of outcome that the Supreme Court was guarding against in
expanding the role of abuse of process” (at para 48 of the Applicant’s
Further Memorandum of Argument). He thus says that the second negative PRRA
decision should be set aside as being an abuse of process.
[11]
The respondent, on the other hand, resists both
the possibility of the application of the doctrine to the second PRRA decision,
as a matter of principle, and argues in the alternative that, even if it is
possible to apply the abuse of process doctrine to a case such as this, there
is nothing abusive about the second PRRA officer’s reaching a different result
in this case.
[12]
The respondent points in this regard to the
recent decision of my colleague, Justice Cecily Strickland, in Muhammad v
Canada (Minister of Citizenship and Immigration), 2014 FC 448, [2014] FCJ
No 477 [Muhammad] as support for the proposition that it was open to the
second PRRA officer to reach a different result. In Muhammad, a ministerial
delegate, acting under subsection 113(d) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the IRPA] and section 172 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 [the Regulations], reached
an opposite risk conclusion to that reached earlier by a PRRA officer in Mr. Muhammad’s
case. The respondent argues that, as in Muhammad, the statutory scheme
here contemplates that a second PRRA officer may reach a different risk
determination, particularly in light of changed facts, which may well include
the passage of time as an important factor mitigating risk that was previously
found to exist.
[13]
The respondent also says that one of the
essential elements for the application of the doctrine of abuse of process,
namely, the presence of a prior final decision, is absent here as Justice
Mactavish quashed the first PRRA decision. The respondent argues that the
effect of Justice Mactavish’s decision is to set the first PRRA decision aside
in its entirety and therefore there is no decision that was re-litigated before
the second PRRA officer.
[14]
I agree with the respondent that, as a matter of
principle, the doctrine of abuse of process is inapplicable in this case by reason
of both the nature of the inquiry conducted by PRRA officers and by reason of Justice
Mactavish’s Judgment quashing the first PRRA decision.
[15]
Turning, first, to the nature of a PRRA inquiry,
the fact that a PRRA officer exercises a decision-making power conferred by
statute is not sufficient to render the doctrine of abuse of process
inapplicable as the doctrine has been determined to be applicable to administrative
tribunals and their decisions.
[16]
In the first of the cases relied on by Mr.
Burton, the City of Toronto case, Justice Arbour, writing for the
majority of the Supreme Court, noted that the doctrine of abuse of process flows
from the inherent power of a court to prevent proceedings that would bring the
administration of justice into disrepute. In that case, a labour arbitrator
found that, while a criminal conviction for sexual assault was prima facie evidence
that the grievor had sexually assaulted a child, the presumption created by the
conviction had been rebutted by the grievor in his testimony. The arbitrator
thus held that the assault had not occurred and therefore found the grievor to
have been dismissed from his employment without cause. The Supreme Court set
aside the arbitrator’s decision and held that permitting the grievor to
re-litigate whether he had committed the crime for which he had been convicted amounted
to an abuse of process as the matter of the grievor’s guilt had been finally
determined by a court of competent jurisdiction.
[17]
In the subsequent decision in Figliola, the
Supreme Court noted in obiter dicta, or non-binding comment, that the
doctrine of abuse of process could likewise be applied by a court to quash the
award of one tribunal – there the British Columbia Human Rights Tribunal – if
it allows a party to re-litigate an issue previously decided by another
administrative tribunal – the British Columbia Workers’ Compensation Board in
that case.
[18]
Similarly, the doctrine of issue estoppel
(which is akin to abuse of process) is applicable to prevent re-litigation of
final decisions made by administrative decision-makers (see e.g. Danyluk v
Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, at paras 21-22
and New Brunswick (Executive Director of Assessment) v Ganong Bros. Ltd., 2004
NBCA 46, [2004] NBJ No 219, at para 48. Thus, the doctrine of abuse of process may
be applied to administrative decision-makers and their decisions.
[19]
Where the doctrine is invoked, it operates to
prevent a party from raising and re-arguing an issue that has already been
finally decided in another forum.
[20]
This type of re-argument did not occur in this
case as the respondent did not seek to re-litigate the issue of risk before the
second PRRA officer because the inquiry before a PRRA officer is inquisitorial
in nature. Thus, it was the second PRRA officer, himself, who decided to
re-examine the issue of risk.
[21]
Mr. Burton has not been able to point to any
case where the doctrine of abuse of process has been applied to bind an
administrative decision-maker in a non-adversarial proceeding to a previous
decision-maker’s decision. While this may not necessarily be fatal to his
argument, the relevant statutory provisions in this case do contemplate
re-examination of risk by a PRRA officer in a second or subsequent PRRA inquiry
in appropriate circumstances and thus, in my view, foreclose the application of
the doctrine.
[22]
In this regard, by virtue of sections 112 to 115
of the IRPA and sections 160 to 168 of the Regulations, PRRA officers are
tasked with assessing risks that have not been previously assessed. The
jurisprudence recognises that this requires that PRRA officers consider new
facts or evidence that were not available for consideration in the previous
risk assessment (see e.g. Raza v Canada (Minister of Citizenship and
Immigration), 2007 FCA 385, 162 ACWS (3d) 1013 at para 13). This
requirement has been partly enshrined in section 113 of the IRPA.
[23]
By virtue of paragraph 112(2)(c)of the IRPA,
individuals who have remained in Canada after a first PRRA assessment was
completed may now make a subsequent PRRA application if more than 12 months or,
in the case of a person who is a national of a country that is designated under
subsection 109(1)(1), more than 36 months have passed since the earlier
assessment. (Prior to June 28, 2012, no such time limits existed to forestall
subsequent PRRA applications. Thus, when Mr. Burton’s case was decided, the
legislation afforded him the opportunity to request a second PRRA determination).
[24]
The IRPA therefore clearly contemplates that more
than one risk assessment may be made and requires PRRA officers to assess new
risks that have arisen after a previous assessment was undertaken either by the
Refugee Protection Division of the Immigration and Refugee Board [RPD] or by a
previous PRRA officer.
[25]
In my view, these provisions render the
application of the abuse of process doctrine inapplicable to risk assessments
by PRRA officers because the doctrine operates so as to prevent an issue being
raised by a litigant where it has been previously finally settled. The issue of
risk for a refugee claimant, however, is not finally settled by an RPD or PRRA
ruling because the IRPA and the Regulations specifically contemplate that risk will
be assessed more than once where there is a second PRRA assessment or where a
PRRA is undertaken following a risk assessment by the RPD. The case law,
moreover, teaches that the requisite risk analysis is always forward-looking and
involves determining whether, at the point the assessment is conducted, the
applicant faces risk if returned to his or her country of origin in the future
(see e.g. Sanchez v Canada (Minister of Citizenship and Immigration),
2007 FCA 99, 155 ACWS (3d) 937 at para 15; Fernandopulle v Canada (Minister
of Citizenship and Immigration), 2005 FCA 91, 253 DLR (4th) 425 at para 23;
Yusuf v. Canada (M.E.I.) (1995), 179 NR 11, [1995] FCJ No 35 (FCA) at
para 2; Pour-Shariati v Canada (Minister of Employment & Immigration),
[1995] 1 FC 767, [1994] FCJ No 1928, at para. 17). Thus, the result of a risk assessment
may well differ over time as circumstances evolve or as new evidence becomes
available.
[26]
When the role of a PRRA officer is properly
understood, it is clear that the doctrine of abuse of process cannot be applied
to bind a PRRA officer to previous risk assessments as those prior assessments
are not final.
[27]
In essence, Mr. Burton is seeking not to prevent
re-examination of risk in the second PRRA but, rather, is arguing that the same
result ought to have been reached by the second PRRA officer as the facts were
the same as those before the first PRRA officer. The abuse of process doctrine,
however, operates to protect the integrity of the adjudicative process by
preventing re-litigation, not by guaranteeing a particular result on
re-litigation. It therefore does not serve to provide the result Mr. Burton
seeks.
[28]
In sum, because the IRPA and Regulations
specifically task PRRA officers with re-examining the issue of whether an
applicant faces a forward-looking risk based on facts that have not been
previously assessed, the abuse of process doctrine does not prevent a PRRA
officer from re-examining the issue of risk. Mr. Burton’s concerns with the
appropriateness of the second risk determination are rather more properly
addressed by considering whether the second PRRA decision should be set aside
as being unreasonable. Thus, the nature of the PRRA inquiry renders the
doctrine of abuse of process inapplicable in this case.
[29]
In the second place, the nature of Justice
Mactavish’s decision in Burton also renders the abuse of process doctrine
inapplicable. In this regard, I agree with the respondent that the effect of a
judgment setting a decision aside is to extinguish the decision for all
purposes. Such a judgment is in the nature of an order for certiorari,
which renders a decision void ab initio (see L. Waldman, Immigration
Law and Practice, 2nd ed., loose-leaf (Markham, ON: LexisNexis, 2005) at 11.321).
[30]
This Court has often commented on the impact of judgments
setting aside administrative decisions and has confirmed that the effect of
such judgments is to extinguish the decision being set aside for all purposes.
For example, in Hernandez Rodriguez v Canada (Minister of Citizenship and Immigration),
2012 FC 1331, my colleague, Justice Luc Martineau, indicated at para 4 that a
quashed decision cannot give rise to stare decisis or res judicata
as it is quashed for all purposes. Similarly, in Zacarias v Canada (Minister
of Citizenship and Immigration), 2012 FC 1155, [2012] FCJ No 1252, I noted at
para 3 that, in the context of a redetermination of a refugee claim, it was
open to the RPD to reach a different
conclusion from the first member on the issue of credibility as the first
decision was quashed for all purposes when it was set aside by order of this
Court. (See also to similar effect Miah v Canada (Minister of Citizenship
and Immigration), 2007 FC 2005, [2007] FCJ No 1439 at para 8 and Lee v Canada (Minister of Citizenship and Immigration, 2003 FCT 743, [2003] FCJ No 977 at
para 11).
[31]
Thus, the impact
of Justice Mactavish’s decision in Burton was to set aside the first
PRRA decision in its entirety. The first PRRA decision, therefore, no longer
exists and accordingly cannot provide the basis for application of the doctrine
of abuse of process.
[32]
Thus, for these reasons, the second PRRA
decision cannot be set aside under the doctrine of abuse of process.
II.
Is the second PRRA decision unreasonable?
[33]
As noted, Mr. Burton argues in the alternative that
the second negative PRRA decision should be set aside as it is unreasonable. I
agree and believe that the decision cannot stand both because the reasoning
process undertaken by the second PRRA officer does not withstand scrutiny and
because the result reached is unreasonable.
[34]
The reasonableness standard of review, which
applies to the review of risk assessments undertaken by PRRA officers, requires
this Court to consider both the reasoning process undertaken and the result
reached. In the oft-quoted passage at para 47 of Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir], Justices
Bastarache and LeBel make clear that both issues are part of the reasonableness
review. The need for a reviewing court to consider both the reasoning and
result has been confirmed in numerous subsequent cases (see, for example, Agraira
v Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC
36, [2013] 2 S.C.R. 559 at paras 51-52; N.L.N.U. v Newfoundland & Labrador
(Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland Nurses]
at paras 13-16).
[35]
The case law also firmly establishes that in
assessing the reasonableness of an administrative decision-maker’s decision,
the reviewing court must be deferential and cannot intervene merely if it does
not agree with the decision. Rather, a decision must be upheld under the
reasonableness standard if the tribunal’s reasoning is “justified, transparent,
intelligible” and if the result reached falls within the range of acceptable
alternatives open to the tribunal on the facts before it in light of the
applicable law (Dunsmuir at para 47).
[36]
This deferential approach requires, as Justice Abella
noted at paras 11-12 in Newfoundland Nurses, that the reviewing court give
respectful attention to both the reasons given and those that could have been
given by the tribunal. Thus, the reasons need not be perfect nor need they cite
all of the evidence or consider all of the arguments made before the tribunal (see
e.g. Construction Labour Relations v Driver Iron Inc, 2012 SCC 65, [2012]
3 SCR 405 at para 3; Cape v Library of Parliament, 2013 FCA 237, [2013]
FCJ No 1107 at para 33); and Herrera Andrade v Canada (Citizenship and
Immigration), 2012 FC 1490, [2012] FCJ No 1594 at para 12).
[37]
That said, the invitation to consider the
reasons that could have been given by a tribunal is not a carte blanche
invitation to the reviewing court to rewrite the defective reasons as Justice
Stratus, writing for the Federal Court of Appeal, recently noted in Lemus v
Canada (Citizenship and Immigration), 2014 FCA 114, [2014] FCJ No
439 [Lemus]. There, he held that where a tribunal (especially in
the immigration context) fails to address an issue that it was specifically
required to address, it is not for the reviewing court to “cooper up” the
reasons and decide the issue that the tribunal failed to consider. In that
case, an immigration officer assessing a humanitarian and compassionate
[H&C] claim misinterpreted recent amendments to subsection 25(1) of the IRPA
and, as a result, failed to consider whether the risk the applicants claimed
they would face if required to apply to immigrate from abroad amounted to
undue, undeserved or disproportionate hardship justifying the grant of H&C
relief. Justice Stratus held that it was not for this Court to determine this
issue on judicial review (which, indeed, would have resulted in the Court’s
usurping the discretionary decision-making authority of the H&C officer).
The decision was therefore found to be unreasonable, set aside and the H&C
claim remitted to another H&C officer for reconsideration.
[38]
The holding in Lemus applies by analogy
here because in this case, just as in Lemus, the officer failed to
address a key issue that needed to be addressed. More specifically, by virtue
of the Judgment and Reasons in Burton, the second PRRA officer was
required, at a minimum, to fully explain why he was departing from the previous
risk determination; the decision in Burton contemplated that the only
issue that would be reconsidered was the availability of state protection for
Mr. Burton in light of his profile of being a former gang member who turned
informant and testified against another gang member. Thus, the decision in Burton required the assessment to remain unchanged, unless there were new facts that
mandated a different conclusion.
[39]
Nowhere in the second negative PRRA decision
does the officer address why it was necessary for a second risk assessment to
be conducted nor how a different result from that in the first PRRA was reached.
The absence of such explanation means that the decision lacks justification,
transparency and intelligibility as there is no explanation for how or why a
different result was reached on the key issue.
[40]
Similar failures to explain why a different
result has been reached in a second assessment of a question previously ruled
upon have been found to be unreasonable in several contexts under the IRPA.
[41]
For example, in Canada (MCI) v Thanabalasingham,
2004 FCA 4, [2004] FCJ No 15 [Thanabalasingham] at para 10, Kippax v
Canada (MCI), 2013 FC 655, [2013] FCJ No 700 at para 34 and Muhammad v
Canada (MCI), 2013 FC 203, [2013] FCJ No 207 at para 6, this Court and the Federal
Court of Appeal have held that the Immigration Division must provide clear and
compelling reasons for departing from previous detention review decisions in a
subsequent review. In the words of Justice Rothstein in Thanabalasingham
at para 10, “[w]hile… prior decisions are not binding on
a Member … if a Member chooses to depart from prior decisions to detain, clear
and compelling reasons for doing so must be set out”.
[42]
Likewise, where determinations on issues such as
identity, the availability of state protection or the terrorist nature of an
organisation have been previously made on identical facts, there is a need for
subsequent decision-makers dealing with the identical issue to provide clear
and compelling reasons for departing from the earlier findings (see e.g. Siddiqui
v Canada (MCI), 2007 FC 6, [2007] FCJ No 9 at paras 17-19; Osagie v
Canada (MCI), 2007 FC 852, [2007] FCJ No 1111 at paras 31-32; Alexander
v Canada (MCI), 2009 FC 1305, [2009] FCJ No 1682 at para 8; and Rusznyak
v Canada (MCI), 2014 FC 255, [2014] FCJ No 281 at paras 55-58).
[43]
Such reasoning is entirely absent in the second
negative PRRA assessment made in this case and, for this reason, the second
PRRA decision is unreasonable as the Court cannot write the decision for the
PRRA officer and determine what compelling reasons might exist for departing from
the previous risk assessment. As was held in Lemus, this task is not one
for this Court to undertake in a judicial review application. Thus, the absence
of adequate reasoning renders the second negative PRRA decision unreasonable.
[44]
This, however, is not the only reason why the
second PRRA decision must be set aside. In addition, the result reached by the
second PRRA officer is also unreasonable in light of the facts before the
second PRRA officer and in light of the terms of Justice Mactavish’s decision
in Burton.
[45]
Because she remitted the matter for
redetermination in accordance with her Reasons, and because those Reasons at
least implicitly endorsed the risk determination of the first PRRA officer and
contemplated that the issue of risk would not be reassessed if circumstances
remained unchanged, the second PRRA officer in my view could not depart from
the previous risk assessment unless there were new facts or circumstances that could
reasonably give rise to a different risk conclusion.
[46]
In this regard, it is clear that the second PRRA
officer was bound by Justice Mactavish’s direction as the principle of stare
decisis requires administrative tribunals to follow directions given by the
reviewing court (see e.g. Régie des rentes du Québec v Canada Bread Company
Ltd, 2013 SCC 46, [2013] 3 S.C.R. 125 at para 46 and Canada (Commissioner
of Competition) v Superior Propane Inc, 2003 FCA 53, 223 DLR (4th) 55 at
para 54). Thus, unless there were new facts which could have reasonably given
rise to a different risk conclusion, the second PRRA officer was required to
adopt the same risk conclusion as the first PRRA officer made.
[47]
Contrary to what the respondent argues, the
decision in Muhammad does not support an opposite conclusion for two
principal reasons. First, and most importantly, in that case no Court order was
made or ignored as was done in this case. Secondly, the relevant statutory
framework there was different; the case concerned risk assessment by a
ministerial delegate under paragraph 113(d) of the IRPA and section 172 of the
Regulations, which contemplate that the delegate will make a fresh risk
determination and is not bound by the ruling on risk made by a PRRA officer, even
if the facts are the same before the two decision-makers. This sort of
provision is entirely absent in this case. Rather, under the case law and section
113 of the IRPA, a PRRA officer is bound to only consider new facts that have
arisen since the previous risk assessment. The ruling in Muhammad is
therefore inapplicable here.
[48]
In this case, due to Justice Mactavish’s
decision, the second PRRA officer required compelling reasons – in the form of
new relevant facts—to depart from the risk assessment made by the first PRRA
officer.
[49]
No such facts were present in this case as the
only new relevant evidence that was before the second PRRA officer that was not
before the first concerned threats that Mr. Burton’s father had received in Jamaica from gang members after the first PRRA decision. This fact further supports the conclusion
that Mr. Burton faces risk from gangs in Jamaica, as the threats were claimed
to have been made by gang members. Rather than giving weight to this issue, the
second PRRA officer instead focussed on the fact that Mr. Burton had not
received further threats in Canada after the first PRRA decision. I agree with Mr.
Burton that the lack of any such threats is irrelevant to the potential risk he
may face in Jamaica. In short, such risk is not influenced by what has happened
(or not happened) in Canada, where law enforcement is much more effective than
in Jamaica particularly where, as here, the source of potential risk – the former
Malvern Crew gang members – are in Jamaica.
[50]
Thus, the result reached by the second PRRA
officer is unreasonable and does not fall within the scope of acceptable
outcomes in light of the decision in Burton and the facts before the second
PRRA officer.
[51]
As the second PRRA decision both lacks adequate
reasoning and reached an unacceptable result, it follows that it must be set
aside.
III.
What remedy is appropriate?
[52]
I turn, finally, to the issue of remedy, which
requires consideration of two points, namely, whether I should provide
directions for the third redetermination of Mr. Burton’s PRRA application and
whether a question should be certified under section 74 of the IRPA to allow
for an appeal in this case.
[53]
In terms of the former point, this Court possesses
jurisdiction under paragraph 18.1(3)(b) of the Federal Courts Act, RSC
1985, c F-7 to set aside administrate decision-makers’ decisions and to remit
them with “such directions as [the Court] considers appropriate”. While the
power to issue such directions should be used sparingly, I believe this is a
case where direction is warranted given the disregard of Justice Mactavish’s
earlier direction. I have accordingly determined that I will direct that the redetermination
be conducted in accordance with these Reasons. To recap, they require the PRRA
officer to whom this matter is remitted to do the following:
1.
Consider the availability of adequate state
protection for Mr. Burton in Jamaica in light of his profile as a former gang
member, turned informant, whose testimony led to a murder conviction of a
fellow gang member. Such consideration shall involve review of all relevant
evidence, including any new evidence Mr. Burton may wish to submit; and
2.
Not depart from the determination of risk made
by the first PRRA officer who examined Mr. Burton’s case unless there are clear
and compelling reasons for doing so, which must be explained in the new PRRA
decision. Such reasons may deal with changed circumstances, including the
passage of time, that are relevant to the assessment of risk and that have
taken place subsequent to June 29, 2012.
[54]
Finally, in terms of the certification of an
issue for purposes of appeal, Mr. Burton argues that no issue should be
certified as he believes that application of the abuse of process doctrine is a
fact-specific exercise and thus no suitable question of general importance
arises in this case. The respondent, on the other hand, argues that were I to
agree with Mr. Burton and find the second PRRA decision to have constituted an
abuse of process, I ought to certify the following question:
Can the abuse of process doctrine preventing
re-litigation (as explained in CUPE Local 29, 2003 SCC 63) apply to a
decision that was ordered to be redetermined on judicial review which might
have involved a finding of fact that survives expungement of the decision which
could be of weight when the matter is reconsidered?
[55]
The respondent, however, contends that if I
reach the opposite conclusion, and decline to apply the abuse of process
doctrine, no question should be certified under section 74 of the IRPA as any
question relating to abuse of process would not meet the requirement for
certification that the issue be dispositive of an appeal.
[56]
I agree that no question should be certified in
this case, but not precisely for the reasons given by the parties.
[57]
The Federal Court of Appeal has outlined the
test for certification of issues for purposes of appeal under section 74 of the
IRPA several times (Liyanagamage v
Canada (Secretary of State) (1994),
176 NR 4, [1994] FCJ No 1637 (FCA) at para 4, Zazai v Canada (Minister of
Citizenship and Immigration), 2004 FCA 89, [2004] FCJ No 368 at para 11,
Varela v Canada (Citizenship and Immigration), 2009 FCA 145, [2009] FCJ No
549 at para 28, and Zhang v Canada (Citizenship and Immigration), 2013
FCA 168, [2013] FCJ No 764 at para 9). Based on these authorities, it is
well-established that this Court may certify a question only if it transcends
the interests of the parties, has broad significance or general application and
is determinative of an appeal. To be determinative of an appeal, the issue must
have been decided by the applications judge so that it arises before the Court
of Appeal in its examination of the appeal.
[58]
Here, the availability of the doctrine of abuse
of process does not raise a certifiable question because it is not one that
would be dispositive of an appeal as I have not based my decision on it. Accordingly,
it need not necessarily be addressed by the Court of Appeal. Nor does any other
certifiable question arise as my conclusions regarding the unreasonableness of
the decision are tied to the facts of this case, the scope and content of
Justice Mactavish’s decision in Burton and to the way in which the second
PRRA decision was drafted. Therefore, this case does not raise a question that
is appropriate for certification under section 74 of the IRPA.
[59]
For these reasons the second PRRA decision is
set aside, with directions, but no question is certified under section 74 of
the IRPA.
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