Docket: IMM-5463-13
Citation:
2015 FC 272
Ottawa, Ontario, March 4, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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AHMED SHAWKI NEGM
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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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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant’s application for a pre-removal
risk assessment (PPRA) was denied by Citizenship and Immigration Canada. The
applicant now applies for judicial review of that decision pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [the Act].
[2]
The applicant seeks an order setting aside the
negative decision and returning the matter to a different officer for
redetermination.
I.
Background
[3]
The applicant is a citizen of Egypt, born on September 18, 1977. He left Egypt legally for the U.S.A. in November 2003 and came to
Canada in September 2004. He made a refugee claim under the fear of
persecution as a member of the Muslim Brotherhood.
[4]
The applicant’s refugee claim was rejected on
February 9, 2006 because the Refugee Protection Division (the Board) found his
claim was not credible. He sought leave for judicial review of the Board’s
decision and leave was dismissed by this Court on April 24, 2006.
[5]
The applicant’s father received a letter dated
June 25, 2011 from the Egyptian government, Ministry of Interior, Sector of
National Defense (the government letter). The government letter stated he and
his father would be arrested and charged if the applicant did not report to the
Egyptian authorities for his evasion of the military draft.
[6]
The applicant applied for a PRRA on May 14, 2012
on the basis that he now faced a heightened risk to his life and safety in Egypt as a military draft evader.
[7]
In his application, the applicant submitted current
country condition documentary evidence which post-dates the Board’s decision, a
certified translation of the government letter and a certified translation of a
copy of the notice of conscription issued by the Egyptian Ministry of Defence
whereupon he was conscripted for military service from September 1, 2002 until
August 1, 2005.
II.
Decision Under Review
[8]
A senior immigration officer rejected the
application in a decision dated April 23, 2013. The officer first examined the
statutory requirements for a successful PRRA application. He referenced
subsection 113(a) of the Act regarding the need for new evidence and subsection
161(2) regarding written submissions for the new evidence.
[9]
Then, the officer quoted the findings of the
2006 Board decision. The Board, in its reasoning of the negative decision,
found there is insufficient credible and trustworthy evidence to establish the
applicant’s refugee claim under the fear of persecution as a member of the
Muslim Brotherhood. For example, the Board found it was not credible that the
applicant would have been allowed to travel outside Egypt as alleged if his
allegations about being followed by security forces were credible. Also, the
Board found the allegations were not credible because the applicant had no
problems renewing his Egyptian passport in New York on August 30, 2004.
[10]
Next, the officer assessed the evidence
submitted by the applicant and made the following findings. The evidence
submitted includes: Egypt’s current country condition documentary evidence, a
government letter and a copy of the notice of conscription.
[11]
First, the officer found, based on the notice of
conscription, the issue of being considered a draft evader is not new evidence
under subsection 113(a) of the Act since the applicant knew he was required to
perform military service at the time of his refugee hearing.
[12]
Second, the officer cited multiple documents on
current country conditions and found penalties in Egypt are not
disproportionately severe or unlawfully imposed. He also found it is mere
speculation that the applicant would not be exempted for being over 30 years
old.
[13]
Third, the officer found since the applicant
left Egypt legally with no apparent difficulties and he provided no evidence
indicating he was reporting to the military prior to leaving, there is
insufficient evidence that the applicant would be arrested and charged if he
returned to Egypt. Further, the officer reasoned that the applicant’s refugee
claim was based upon his affiliation with the Muslim Brotherhood, not upon any
alleged difficulties due to evasion of military service. Therefore, the officer
gave the government letter no weight as corroborative evidence.
[14]
Last, the officer acknowledged that although he/she
is not bound by the Board’s findings, the officer gave considerable weight to
the findings of credibility. The officer concludes that based on reviewing all
the evidence, he/she found there is insufficient objective evidence to indicate
that the applicant’s situation in Egypt has changed since the Board decision. The
officer found the applicant does not meet the requirements of sections 96 and
97 of the Act.
III.
Issues
[15]
The applicant submits two issues for
consideration:
1.
Did the officer breach the duty of procedural
fairness owed to the applicant by not providing the applicant with an oral
hearing?
2.
Did the officer err in the assessment of the new
evidence presented by the applicant?
[16]
The respondent replies that there is one issue: “whether the PRRA officer made a reviewable error on any of
the statutory grounds set out in section 18.1(4) of the Federal Courts Act,
R.S.C. 1985, c F-7.”
[17]
In my view, there are three issues:
A.
What is the standard of review?
B.
Was the officer’s finding based on sufficiency
or credibility of the evidence?
C.
Did the officer assess the new evidence
reasonably?
IV.
Applicant’s Written Submissions
[18]
The applicant submits there are two applicable
standards of review for the matters in this case. For his first issue, the
applicant cites section 167 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 [the Regulations] and argues the issue of an oral
hearing is a question of procedural fairness.
[19]
Pursuant to Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at paragraph 43, [2009] 1 S.C.R. 339 [Khosa],
issues of procedural fairness are questions of law and are reviewed on a
standard of correctness (see also Canadian Union of Public Employees (CUPE)
v Ontario (Minister of Labour), 2003 SCC 29 at paragraph 100, [2003] 1 SCR
539).
[20]
For the applicant’s second issue, he submits it
is a question of mixed fact and law, which is reviewable on a standard of
reasonableness (see Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph
47, [2008] SCJ No 9 [Dunsmuir]).
[21]
Insofar as the issue of an oral hearing is
concerned, the applicant submits the officer breached the duty of procedural
fairness because the officer made credibility findings without giving the
applicant an opportunity to attend an oral hearing and this is contrary to subsection
167(a) of the Regulations. He argues that the officer’s findings are based on
credibility as opposed to insufficiency of evidence. The applicant cites the
following cases for support: Cho v Canada (Citizenship and Immigration),
2010 FC 1299, [2010] FCJ No 1673 [Cho]; Zokai v Canada (Minister of
Citizenship and Immigration), 2005 FC 1103, [2005] FCJ No 1359 [Zokai];
and Hamadi v Canada (Citizenship and Immigration), 2011 FC 317, [2011]
FCJ No 396 [Hamadi].
[22]
The applicant submits in Cho at paragraph
24, this Court found an officer did not merely assess the probative value of
the applicant’s evidence without making a credibility finding to determine it
was insufficient. In Zokai, at paragraph 12, this Court found “[i]n refusing to accord weight to the applicant’s story
without corroborating evidence, the PRRA Officer, in effect, concluded that the
applicant was not credible” and given these credibility concerns, the
officer should have considered the request for an oral hearing. In Hamadi
at paragraphs 11 to 13, this Court overturned a decision of a PRRA officer who
made a veiled credibility finding and failed to conduct an oral hearing. The
officer in that case gave minimal probative value to a translated death
sentence because the translation was said to be unofficial and informal.
[23]
Here, the applicant argues the officer similarly
made veiled credibility findings. The document is sealed, signed and
translated. The applicant quotes part of page six of the officer’s decision: “I find that the information provided in this document does
not substantiate the evidence presented which indicated that the applicant was
to perform his military service from September 1, 2002 until August 1, 2005.”
The applicant argues this finding is based on credibility and reflects that the
officer did not believe him. Also, this evidence is central to the applicant’s
claim and if accepted, would have allowed the officer to conclude that the
applicant is in fact a target, which would have justified allowing the
application. This is further reinforced by the officer’s own words that he was
persuaded by the findings of the Board that the applicant’s claim had no
credible basis.
[24]
Insofar as the issue of the assessment of the
new evidence is concerned, the applicant submits the officer’s assessment was
unreasonable because he used the rejected evidence to compare with the new
evidence. For support, the applicant cites Thiyagarajah v Canada
(Citizenship and Immigration), 2013 FC 384 at paragraphs 7 and 10, [2013]
FCJ No 434, [Thiyagarajah] where in that case, this Court found “it was unreasonable for the officer to reject the evidence
in the lawyer’s letter that supported Mr. Thiyagarajah’s application while, at
the same time, using the portions of it that contradicted his version of events
to discredit Mr. Thiyagarajah’s evidence.”
[25]
Here, the applicant argues that the officer
committed a similar error because he used rejected evidence to discredit new
evidence. The officer rejected the notice of conscription as new evidence
because it predates the Board’s decision. However, the officer proceeded to use
this evidence in a comparison with the 2011 government letter and concluded
that this letter did “not substantiate the evidence
presented” in the notice of conscription. Therefore, the applicant
submits that the officer’s assessment of the evidence is entirely unreasonable.
V.
Respondent’s Written Submissions
[26]
The respondent submits for allegations of legal
errors and procedural unfairness, the applicable standard of review is
correctness (see Khosa at paragraph 43; and Canada (Attorney General)
v Sketchley, 2005 FCA 404, [2005] FCJ No 2056). Where the PRRA decision is
considered globally as a whole, the applicable standard of review should be
reasonableness (see Hassaballa v Canada (Minister of Citizenship and Immigration),
2007 FC 489 at paragraph 9, [2007] FCJ No 658; Federal Courts Act, RSC,
1985, c F-7, s 18.1(4)(d); Figurado v Canada (Minister of Citizenship and
Immigration), 2005 FC 347 at paragraph 51, [2005] FCJ No 458; and Thavachelvam
v Canada (Minister of Citizenship and Immigration), 2004 FC 1604 at paragraph
10, [2004] FCJ No 1944).
[27]
The respondent first provides a statutory
analysis. It cites subsection 113(a) of the Act which states that PRRA
applicants are permitted to submit only new evidence that arose after the
rejection of a refugee claim. Subsection 161(2) of the Regulations puts the
onus on applicants to establish the evidence satisfies the criteria for being
considered new evidence. Section 167 of the Regulations prescribes the factors
for determining whether an oral hearing is required.
[28]
Then, the respondent analyzes the oral hearing
issue. It argues there is no procedural unfairness and submits the central
issue before the officer was not credibility but sufficiency of the evidence.
In Sen v Canada (Minister of Citizenship and Immigration), 2006 FC 1435
at paragraphs 23 to 25, [2006] FCJ No 1804 [Sen], this Court found the
applicant’s credibility was not at issue and rather the officer determined that
the evidence taken as a whole was insufficient to reach a decision in the
applicant’s favour. The respondent argues that in the present case, the officer
assessed all the evidence and then made the insufficient evidence finding.
[29]
In contrast to the applicant’s argument, the
respondent submits the officer’s comment at page six of the decision that the
applicant “… had an opportunity to overcome these
credibility concerns however, he did not do so” is a mere summary of the
Board’s previous finding and it is made not in the context of assessing
credibility.
[30]
Further, the respondent submits the applicant’s
case law is distinguishable from the present case. First, in Aivani v Canada
(Minister of Citizenship and Immigration), 2006 FC 1231 at paragraph 35,
[2006] FCJ No 1559, Madam Justice Anne Mactavish distinguished Zokia
because a detailed request for an oral hearing was made with reference to the
credibility factor under section 167 of the Regulations. The respondent argues
the distinction also applies here, because there is no evidence that the
applicant requested an oral hearing and the issue is not based on credibility.
Second, Mr. Justice Sean Harrington found in the Hamadi decision that if
the two Hezbollah documents are legitimate, the applicant would clearly have
been at risk; so the letters should have been put to the applicant at a
hearing. Here, there was no issue about the legitimacy of the 2011 government
letter.
[31]
Next, the respondent analyzes the issue on the
assessment of new evidence. It argues the applicant’s argument is based on a
reweighing of evidence. Unlike the Thiyagarajah decision, the officer
made no credibility findings beyond those already made by the Board and the
officer’s assessment merely corroborates the Board’s finding that the refugee
claim has no credible basis. Also, the officer’s finding of fact concerning
this one piece of evidence does not raise a serious issue of credibility. This
finding is merely one factor supporting the officer’s overall conclusions,
among many other factors found on pages five and six of the decision. Here, the
applicant is asking this Court to reweigh the evidence.
VI.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[32]
The jurisprudence on the standard of review for
a decision granting an oral hearing pursuant to section 167 of the Regulations and
section 113 of the Act is mixed (see Bicuku v Canada (Minister of
Citizenship and Immigration), 2014 FC 339, [2014] FCJ No 346 [Bicuku]
). Mr. Justice Yves de Montigny in Ponniah v Canada (Minister of Citizenship
and Immigration), 2013 FC 386, [2013] FCJ No 411 [Ponniah] at
paragraph 24 presented the split of jurisprudence as follows:
The jurisprudence of this Court is divided
on the standard of review for oral hearings under paragraph 113(b). I recently
reviewed this question in Adetunji v Canada (Citizenship and Immigration),
2012 FC 708, and I can do no better than repeat what I wrote there (at para
24):
That being said, there is a
controversy in this Court as to the standard of review to be applied when
reviewing an officer's decision not to convoke an oral hearing, particularly in
the context of a PRRA decision. In some cases, the Court applied a correctness
standard because the matter was viewed essentially as a matter of procedural
fairness (see, for example, Hurtado Prieto v Canada (Minister of Citizenship
and Immigration), 2010 FC 253 (available on CanLII); Sen v Canada
(Minister of Citizenship and Immigration), 2006 FC 1435 (available on
CanLII). On the other hand, the reasonableness [standard] was applied in other
cases on the basis that the appropriateness of holding a hearing in light of a
particular context of a file calls for discretion and commands deference (see,
for example, Puerta v Canada (Citizenship and Immigration), 2010 FC 464
(available on CanLII); Marte v Canada (Minister of Public Safety and
Emergency Preparedness), 2010 FC 930, 374 FTR 160 [Marte]; Mosavat
v Canada (Minister of Citizenship and Immigration), 2011 FC 647 (available
on CanLII), [Mosavat]). I agree with that second position, at least when
the Court is reviewing a PRRA decision.
See also: Rajagopal v. Canada (Citizenship and Immigration), 2011 FC 1277; Silva v. Canada (Citizenship and
Immigration), 2012 FC 1294, Brown v. Canada (Citizenship and
Immigration), 2012 FC 1305.
[33]
I have mentioned in my prior cases that in my
view, the issue of an oral hearing is a question of procedural fairness (see Prieto
v Canada (Minister of Citizenship and Immigration), 2010 FC 253, [2010] FCJ
No 307 [Prieto]; Ullah v Canada (Minister of Citizenship and
Immigration), 2011 FC 221, [2011] FCJ No 275 [Ullah]). A review on
procedural fairness typically triggers the standard of correctness (see Mission
Institution v Khela, 2014 SCC 24 at paragraph 79, [2014] 1 S.C.R. 502; and Khosa
at paragraph 43). The Court must determine whether the process followed by the
decision-maker satisfied the level of fairness required in all of the circumstances
(see Khosa at paragraph 43).
[34]
Insofar as the assessment of new evidence is
concerned, it is a question of mixed fact and law, which is reviewable on a
standard of reasonableness (see Dunsmuir at paragraph 47). This means
that I should not intervene if the decision is transparent, justifiable,
intelligible and within the range of acceptable outcomes (see Dunsmuir
at paragraph 47; Khosa at paragraph 59). As the Supreme Court held in Khosa
at paragraphs 59 and 61, a court reviewing for reasonableness cannot substitute
its own view of a preferable outcome, nor can it reweigh the evidence.
B.
Issue 2 - Was the officer’s finding based on
sufficiency or credibility of the evidence?
[35]
Although a PRRA applicant is not generally
entitled to an oral hearing, paragraph 113(b) of the Act states “a hearing may be held if the Minister, on the basis of
prescribed factors, is of the opinion that a hearing is required.”
Section 167 of the Regulations prescribes the factors where a hearing is
required for the PRRA. In particular, section 167(a) indicates a hearing is
required where there is a serious issue of the applicant’s credibility.
[36]
The issues in the present case should be jointly
determined on the factor of credibility as well as the factor of its
seriousness. I could outline the analysis no better than I already did in Prieto:
29 In Tekie v. Canada (Minister of Citizenship and Immigration), 2005 FC 27, 50 Imm. L.R. (3d) 306, Mr. Justice
Phelan at paragraph 16, held that section 167 becomes operative where
credibility is an issue which could result in a negative PRRA decision and that
the intent of the provision is to allow an applicant to face any credibility
concern which may be put in issue. After reviewing Tekie above, I held
in Ortega v. Canada (Minister of Citizenship and Immigration), 2007 FC
601, [2007] F.C.J. No. 816 at paragraph 29, that an oral hearing was required
because in that case, “The officer found that absent the principal applicant’s
lack of credibility before the Board, the circumstances were such that the
state would not be able to protect the applicants.”
30 In my opinion, section 167
describes two types of circumstances where issues of credibility will require
an oral hearing. Paragraph (a) relates to the situation where evidence before
the officer directly contradicts an applicant’s story. Paragraphs (b) and (c),
on the other hand, essentially outline a test whereby one is to consider
whether a positive decision would have resulted but for the applicant’s
credibility. In other words, one needs to consider whether full and complete
acceptance of the applicant’s version of events would necessarily result in a
positive decision. If either test is met, an oral hearing is required.
[37]
As I previously stated in Ullah at
paragraph 29:
Applicants are required under subsection
10(1) of the Regulations to submit all information, documents and evidence
required by the Regulations and the Act. As such, it is open to an officer to
reject an application on the basis that the applicant has submitted
insufficient evidence. I agree with Mr. Justice Crampton's analysis in Herman
v. Canada (Minister of Citizenship and Immigration), 2010 FC 629, at
paragraph 17, where he states that the cases noted above regarding findings of
insufficiency of evidence:
... do not stand for the proposition
that a PRRA Officer in essence makes an adverse credibility finding every time
he or she concludes that the evidence adduced by an Applicant is not sufficient
to meet the Applicant's evidentiary burden of proof. In each of those cases, it
was clear to the Court that the PRRA Officer either had made a negative
credibility finding, or simply disbelieved the evidence presented by the
Applicant. This is very different from not being persuaded that an Applicant
has met his or her burden of proof on the balance of probabilities.
[38]
Further, Mr. Justice Peter Annis in Bicuku
at paragraph 22, laid out the steps involved in determining whether a finding
is based on sufficiency or credibility.
The determination of whether an interview is
required is the second of three steps in the PRRA process. The first is to
determine whether there is new evidence from that led before the RPD; the
second whether an interview is necessary; and the third to decide the matter.
The second step involves weighing the credibility evidence. This process
necessarily gives rise to counterpoints that come to mind, such as in this case
why the evidence failed to include mention of reporting the incidents to the
authorities, or attempts made by the applicant to reconcile the blood feud via
mechanisms established for this purpose by the state. The officer concluded
that for the evidence to have a sufficient probative value to require
interview, the evidentiary onus lay upon the applicant to either indicate that
he had taken the steps one would reasonably expect to have been followed, or
explain his failure to do so. As these obvious and important aspects of the
applicant's evidence were missing, his evidence failed to raise a serious
credibility issue.
[39]
In the present case, the officer determined
which evidence was accepted as new evidence. Then, the officer proceeded with
the analysis of this evidence and arrived at a negative decision.
[40]
The applicant alleges part of page 6 of the
officer’s decision is a veiled credibility finding: “I
find that the information provided in this document does not substantiate the
evidence presented which indicated that the applicant was to perform his
military service from September 1, 2002 until August 1, 2005.” The
applicant also argues this evidence is central to the applicant’s claim. On the
other hand, the respondent submits it was a finding based on insufficiency of
evidence rather than credibility.
[41]
To provide a comprehensive review, this part of
the decision cannot be read on its own; rather, it should be read in its full
context.
The applicant submitted a certified
translation of a letter from the Ministry of Interior, Sector of National
Defense dated 25/6/2011 which indicated that he and his father would be
arrested and charged if the applicant did not report to the Egyptian
authorities due to his evasion of the military draft. I have carefully analysed
this letter, and based upon the totality of the evidence before me, I do not
find that it provides sufficient objective evidence to indicate that the applicant
would be arrested and charged due to his evasion of the military draft upon
return to Egypt. I find that the information provided in this document does not
substantiate the evidence presented which indicated that the applicant was to
perform his military service from September 1, 2002 until August 1, 2005.
[42]
The rest of the decision shows the officer also
considered other evidence, for example, the document “War
Resisters’ International”.
[43]
In Ferguson v Canada (Minister of Citizenship
and Immigration), 2008 FC 1067, [2008] FCJ No 1308 [Ferguson], Mr. Justice
Russel Zinn wrote that an officer in making a PRRA decision, may either go on
to weigh evidence that he has found to be credible or may move directly to
weighing the evidence without making any credibility findings. Here, based on
the reasons of the decision in front of me, it shows the officer went directly
to the weight of evidence without first making any credibility findings.
Further, similar to Prieto, the officer here neither made any express
finding that the applicant’s story was untrue, nor did the officer allude to
any evidence that contradicted the applicant’s evidence.
[44]
Also, I agree with the respondent’s distinction
of case law. In Cho, the officer erroneously rejected a piece of
evidence due to the lack of collaborating evidence. Such is not the case here.
In Zokia, an oral hearing was made with reference to the credibility factor
under section 167 of the Regulations. Here, no request for an oral hearing is
made. In the Hamadi decision, the officer had concerns with the
legitimacy of the evidence but failed to conduct a hearing to address these
credibility issues. Here, the officer did not have concerns regarding the
legitimacy of the 2011 government letter. I find the case at bar is similar to Sen,
where in that case, the officer did not mention any doubt pertaining to the
credibility of the evidence and rather, the negative decision was made because
the officer was not persuaded in the applicant’s favour due to the
insufficiency of evidence.
[45]
Therefore, I find the officer’s finding was
based on sufficiency of the objective evidence, rather than a finding of
credibility. No oral hearing was owed to the applicant.
[46]
Here, the applicant also argues that the finding
is based on credibility because the officer was persuaded by the findings of
the Board that the applicant’s claim had no credible basis. The officer’s
decision stated:
Furthermore, the RPD found “the applicant
not to be a Convention Refugee and not a person in need of protection and the
claim does not have credible basis”, due to the considerable adverse
credibility findings on issues central to his claim. The applicant had an
opportunity to overcome these credibility concerns however, he did not do so. While
I am not bound by these findings, the RPD is a decision making body who are
experts in the determination of refugee claims, I therefore give considerable
weight to their findings. Nonetheless, I have carefully read and considered
the materials submitted by the applicant, the reasons for the Refugee
Protection Division (RPD) decision, and have conducted research regarding
current country conditions.
[Emphasis added]
[47]
Since the officer made the findings on the new
evidence separately from the Board findings, in my view, this is better examined
under the second issue to determine the overall reasonableness of the decision.
C.
Issue 3 - Did the officer assess the new
evidence reasonably?
[48]
Here, the applicant relies on Thiyagarajah
for support. In that case, “[w]hile the officer
rejected the letter from the human rights lawyer because it was not new
evidence, the officer nonetheless used the letter to discredit Mr Thiyagarajah’s
version of events.” This Court found “it was
unreasonable for the officer to reject the evidence in the lawyer's letter that
supported Mr Thiyagarajah’s application while, at the same time, using the
portions of it that contradicted his version of events to discredit Mr
Thiyagarajah’s evidence.”
[49]
The applicant argues the case at bar is
analogous to Thiyagarajah in that the officer used the rejected notice
of conscription in a comparison with the 2011 government letter and concluded
the letter “did not substantiate the evidence presented”
in the notice of conscription. On the other hand, the respondent argues Thiyagarajah
can be distinguished because the officer made no credibility findings beyond
those already made by the Board and the assessment merely corroborates the Board’s
finding that the refugee claim has no credible basis.
[50]
I agree with the applicant and find the officer was
unreasonable in using a piece of rejected evidence to compare with the new
evidence. Although there is no credibility finding in the present case, I find
the ratio of Thiyagarajah is not limited to credibility, rather it
stands for the proposition that it is unreasonable for an officer to reject a
piece of evidence and then use it again later in the officer’s assessment.
[51]
Further, insofar as the issue of the Board’s
credibility finding is concerned, I find the officer assessed the new materials
and conducted research separately from it.
[52]
However, it is unclear to me how the
considerable weight given to the Board’s credibility concerns factor into the
officer’s findings from the new evidence. Unlike what the respondent argues, in
my view, the officer’s finding is not merely corroboration of the Board’s finding.
Therefore, the reasoning in this part of the officer’s decision is not
transparent to me.
[53]
Therefore, the officer’s assessment of evidence
was unreasonable. The application for judicial review is therefore allowed and
the matter is remitted to a different officer for redetermination.
[54]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
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