Docket: IMM-494-14
Citation:
2015 FC 425
Toronto, Ontario, April 8, 2015
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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N.R.
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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 is a young Tamil male who came to Canada from Sri Lanka on board the MV Sun Sea. In accordance with a confidentiality order
issued by Prothonotary Aalto, he is to be referred to as N.R.
[2]
N.R. seeks judicial
review of the Refugee Protection Division’s decision denying him refugee
protection. The Board did not believe N.R.’s claim of past persecution at the
hands of Sri Lankan authorities who, he says, wrongly perceived him to have
connections to the Liberation Tigers of Tamil Eelam (LTTE). The Board also
rejected N.R.’s sur place claim, finding that the Sri Lankan government
would not now perceive N.R. to be a member or supporter of the LTTE, simply by
virtue of his travel to Canada on the MV Sun Sea.
[3]
The Board provided lengthy, detailed and careful
reasons for disbelieving N.R.’s story of past persecution at the hands of the
Sri Lankan authorities, and N.R. does not challenge the Board’s negative credibility
assessment. He argues, however, that he was denied procedural fairness in this
matter because the Minister failed to disclose information regarding the fate
of other MV Sun Sea passengers who had returned to Sri Lanka. He also says that the Board erred by failing to deal with his motion to adduce
post-hearing evidence regarding the experiences of these individuals, and that
the Board’s assessment of his sur place claim was unreasonable.
[4]
It is not necessary for me to deal with N.R.’s
argument regarding the Minister’s alleged failure to comply with his disclosure
obligations. This is because I have concluded that the Board erred in its
treatment of N.R.’s motion to adduce post-hearing evidence, and that this error
undermined the reasonableness of the Board’s sur place finding.
I.
Chronology of Events
[5]
N.R.’s refugee hearing commenced on June 13,
2013, although the hearing was not completed that day. The Minister
participated fully in the hearing, opposing N.R.’s claim for refugee
protection.
[6]
The Minister produced some evidence regarding
the fate of two MV Sun Sea passengers who had returned to Sri Lanka, individuals known as B005 and B016. This evidence consisted of two statutory
declarations of a CBSA officer. According to these declarations, B005 and B016
were detained upon their return to Sri Lanka because of their past criminal activities.
However, B005 remained in good health and had not been mistreated in detention,
and B016 had since been released from detention.
[7]
On September 6, 2013, this Court’s decision in B135
v. Canada (Minister of Citizenship and Immigration), 2013 FC 871, 438
F.T.R. 128 was made public. In B135, Justice Harrington found that the
Minister had treated the claimants in that case unfairly by failing to disclose
additional information that had come into his possession concerning the
treatment that B005 and B016 had experienced on their return to Sri Lanka.
[8]
Noting that refugee claims are forward-looking, Justice
Harrington observed that the experiences of similarly-situated individuals are “the best predictor” of what might happen to claimants
returning to their homeland: at para. 19. He thus concluded that it was “most important to have as much information as possible as to
the treatment of others on board the ship ‘Sun Sea’ who have been
returned to Sri Lanka in order to consider their risk of persecution”: at
para. 28.
[9]
The Board completed the evidentiary portion of
N.R.’s refugee hearing on September 16, 2013, and set a schedule for counsel to
file their written submissions. In his submissions, the Minister asked the
Court to disregard the evidence regarding B016, as B016 had recently been
killed in Sri Lanka in circumstances that were not, as yet, clear.
[10]
Counsel for N.R. submitted that the evidence
regarding the treatment of B016 while he was in detention should be considered
by the Board, as it was highly relevant to the risk faced by returnees to Sri Lanka who had come to Canada on the MV Sun Sea.
[11]
Counsel for N.R. also referred to Justice
Harrington’s discussion of B005’s experience in the B135 decision,
observing that although B005 had been accused of LTTE-related criminality in Sri Lanka, the Chief Magistrate’s Court in Sri Lanka had subsequently cleared him of all charges.
Counsel noted Justice Harrington’s observation that “if
anyone would not be considered by the Sri Lankan authorities as being associated
with the LTTE, it was B005”, yet he was still detained on his arrival in
Sri Lanka: at para. 22.
[12]
With her reply submissions, counsel for N.R. also
sought leave to file post-hearing evidence in the form of two news reports. The
first report described the torture and other forms of mistreatment that B016
had endured at the hands of Sri Lankan authorities during the year that he was
in detention. This article also suggested that B016’s death may not have been
accidental. The second article discussed the B135 decision and the fact
that even though the Sri Lankan courts had cleared B005 of all allegations of
LTTE-related criminality, the Sri Lankan authorities had nevertheless detained
him on his return to Sri Lanka, and neither his family nor his lawyer had any
information regarding his whereabouts.
[13]
The Board released its decision on December 24,
2013. Nowhere in it its reasons does the Board deal with N.R.’s request to
adduce post-hearing evidence, nor does it reference the B135 decision or
the experiences of either B005 or B016.
II.
The Board’s Failure to Deal with N.R.’s
Application to Adduce Post-hearing Evidence
[14]
Rule 43 of the Refugee Protection Division
Rules, S.O.R./2012-256 provides that a party who seeks
to introduce a document into evidence after the completion of a refugee hearing
must apply to the Board for leave to do so. The respondent does not dispute
that the applicant made such an application in this case, and that the Board
made no reference to that application in its reasons.
[15]
Citing the Supreme Court’s decision in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury
Board), 2011 SCC 62 at paras. 14-16, [2011] 3 S.C.R. 708, the respondent
argues that the Board had no obligation to make an express finding with respect
to the post-hearing evidence application, as “a decision-maker is not required to make an explicit finding on
each constituent element, however subordinate, leading to its final conclusion”. Rather, the respondent says that we should
assume that the Board admitted the post-hearing evidence, particularly in light
of the fact that N.R.’s application was not opposed by the Minister.
[16]
The respondent further submits that recent
decisions of the Federal Court of Appeal in cases such as Re:Sound v. Fitness Industry Council of Canada, 2014 FCA 48 at paras. 34-42, 455 N.R. 87, and Maritime
Broadcasting System Limited v. Canadian Media Guild, 2014 FCA 59 at paras.
50-56, 373 D.L.R. (4th) 167, suggest that the Courts
should show deference to the procedural choices made by administrative
tribunals such as the Board.
[17]
I accept this as a general proposition. However,
the procedural choice that the Board has made as to how applications to adduce
post-hearing evidence are to be dealt with has been codified in Rule 43 of the Refugee Protection Division Rules. This
Rule provides that in deciding such an application, the
Board must consider any relevant factor, including, but not limited to the
relevance and probative value of the documents in question, any new evidence
that the document brings to the proceeding, and whether the party could have
provided the document sooner with the exercise of reasonable diligence. There
is nothing in the Board’s decision that indicates that it considered these or
any other factors in arriving at a decision with respect to the application to
adduce post-hearing evidence. Indeed, we cannot even determine from the Board’s
reasons whether the application was granted or refused.
[18]
The jurisprudence of this Court has established
that once a proper Rule 43 application has been made, the Board must
deal with it: Nagulesan v. Canada (Minister of Citizenship and Immigration), 2004 FC 1382 at para.
17, [2004] F.C.J. No. 1690. This remains the case after Newfoundland Nurses, above: see, for example, Cox
v. Canada (Minister of Citizenship and Immigration), 2012 FC 1220 at para.
24, 420 F.T.R. 68. The Board’s failure to deal with a
properly constituted application to adduce post-hearing evidence constitutes a
breach of procedural fairness: Howlader v. Canada (Minister of Citizenship
and Immigration), 2005 FC 817 at paras. 3-4, [2005] F.C.J. No. 1041.
[19]
The fact that the Board did not even mention the
application to adduce post-hearing evidence in its reasons means that we have
no way of knowing whether the request was considered, and if it was, whether it
was granted or refused. For this reason, the Board’s decision cannot stand.
III.
The Reasonableness of the Finding Regarding Sur Place Claim
[20]
If the Board did in fact admit the post-hearing
evidence, it committed a further error in assessing N.R.’s sur place claim.
[21]
As noted earlier, Justice Harrington observed in B135
that the experiences of similarly-situated individuals are “the best predictor” of what might happen to a claimant
returning to his country of origin. He thus found it important to have as much
information as possible about the experience of the MV Sun Sea
passengers who have returned to Sri Lanka.
[22]
N.R. sought to adduce relevant post-hearing
evidence that the Sri Lankan authorities had detained the two MV Sun Sea
passengers who had returned to Sri Lanka, and had tortured at least one of them. However, the Board never mentions the experiences of either B005
or B016 in its reasons.
[23]
The respondent seeks to distinguish N.R.’s
profile from that of B005 and B016, arguing that he is not in fact
similarly-situated to these individuals and is thus not at risk in Sri Lanka. With respect, it is not this Court’s role to make a factual determination of
this sort when sitting in review of a Board decision – that the Board’s job.
[24]
On its face, the post-hearing
evidence adduced by N.R. was
probative evidence that ran directly contrary to the Board’s central finding
regarding his sur place claim. While it was open to the Board to
distinguish the profile of N.R. from that of B005 and B016, it was not open to
the Board to ignore the evidence indicating that at least some returning Sun
Sea passengers are at risk in Sri Lanka: Cepeda-Gutierrez v. Canada
(Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, at paras.
14-17, [1998] F.C.J. No. 1425 (F.C.T.D.).
IV.
Conclusion
[25]
For these reasons, the application for judicial
review is allowed. I agree with the parties that the case does not raise a
question for certification.
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