Docket: IMM-5287-15
Citation:
2016 FC 1157
Ottawa, Ontario, October 18, 2016
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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ASSIYA FADIGA
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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]
This is a judicial review, pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [the Act], of a November 2, 2015 decision by an Immigration Officer (the
Officer) rejecting the Applicant’s Pre-Removal Risk Assessment (PRRA)
application.
[2]
The Applicant argues that the Officer erred in
his treatment of the corroborative evidence and in reaching the negative
credibility findings.
[3]
A review of the Officer’s decision reveals no reviewable
error and, as such, the application is dismissed.
I.
Background
[4]
The Applicant is a citizen of Guinea. She
alleges that in 2007 she became pregnant from relations with a Christian man
outside of wedlock. Her Muslim family considered this to be dishonourable and
allegedly forced her to marry an older man. She had a second child from this
relationship but it passed away after less than one month following a forced
excision. She also alleges mistreatment and death threats from her husband. She
alleges a fear of persecution from her aunt and uncle (her adoptive parents)
and her husband.
[5]
In January 2013, the Applicant left Guinea for
Canada using a false passport. After the minister intervened, it was determined
that the Applicant had made requests for temporary visas in the United States
in 2007 and Paris, France in 2009 using a different name and with different
dates of birth. The Refugee Protection Division (RPD) rejected her claim on
November 8, 2013. It found that she had not established her identity and that
her claim suffered from serious credibility deficiencies.
II.
The Impugned Decision
[6]
The Applicant’s PRRA application sought to rebut
the RPD’s credibility findings on her original claim and to raise two new
sources of risk: first, she has become pregnant, from a man who is not her
husband, while in Canada; and second, she would be at risk of contracting the
Ebola virus upon her return to Guinea. The Officer gave little weight to the
new evidence filed by the Applicant and rejected her PRRA application.
III.
Issues
[7]
This application raises the issue of whether the
Officer’s rejection of the new evidence and its assessment was reasonable.
IV.
Standard of Review
[8]
The standard of reasonableness applies to the
weighing of evidence by the Officer. The Court will not intervene unless the
credibility analysis falls outside the range of possible, acceptable outcomes
which are defensible in respect of the facts and law (Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47).
V.
Analysis
[9]
The Applicant submits three arguments: 1) that
the Officer erred in dismissing the Applicant’s sister’s affidavit; 2) that the
Officer erred in dismissing the expert report; and 3) that the Officer erred in
reaching a negative finding on credibility without conducting an oral hearing.
A.
The Applicant’s Sister’s Affidavit
[10]
The Applicant submits that the Officer’s
dismissal of the Applicant’s sister’s affidavit was unreasonable. First, the
Officer erred by relying on the RPD’s negative credibility findings to discredit
this new evidence. Second, it improperly found that the evidence was
self-serving as it came from the Applicant’s sister. Evidence cannot be
discounted because it comes from relatives or friends, especially when they are
in the best position to corroborate certain events (Abusaninah v Canada (Citizenship
and Immigration), 2015 FC 234, at paras 38-42). Furthermore, the Applicant
argues that the Officer’s other grounds for discrediting the affidavit, notably
its poor quality, are unfounded.
[11]
There are several valid grounds raised by the
Officer upon which to reject the sister’s declaration, or conversely, to give
it little weight. First, her declaration principally contains evidence that
could have been made available to the RPD and it raises the same issues that were
before the RPD. With respect to the authentication of the document (that the
document is what it is purported to be), given that the Applicant could not
establish her identity before the RPD or the Officer, the same disability
applies to the identification of the sister and her affidavit. Indeed, at the
hearing, Applicant’s counsel stated his understanding that the affidavit was
intended to establish her identity.
[12]
Similarly, the Officer did not err in pointing
out other problems with the affidavit’s authentication due to the absence of
any evidence as to how the affidavit came into the Applicant’s possession, the
illegibility of some parts of it, and errors in some of the dates contained in
it. The document itself is unreliable regardless of its contents.
[13]
The Officer also raised substantive problems
with the statements found in the affidavit: their being in large part
reiterations of allegations already judged not to be credible by the RPD; their
not being corroborated by other objective evidence; and the author being a
member of the Applicant’s family. For all these reasons, the Officer concluded
that it was “une preuve
intéressée”, which the Applicant has translated
to mean “self-serving”.
[14]
There is also no error in giving reduced weight
to evidence from the sister of an Applicant. When decision-makers in
immigration matters make reference to “self-serving” evidence, this usually relates,
for the most part, to the obvious partiality that family members have for each
other’s well-being normally resulting in a significant reduction in the weight
attributed to their evidence. This can be mitigated if the document is corroborated
by other objective evidence, or is rehabilitated by persuasive testimony before
the decision-maker.
[15]
The evidence is also self-serving in the sense
that this term bears in the law of evidence as the declarant receives some
benefit from the result. The best example is the situation where the supporting
documents authored by a party are declared inadmissible in civil proceedings
because the evidence is said to be self-serving. In immigration matters, a
reasonable apprehension may arise of some potential benefit to the
corroborating family member from the Applicant obtaining permanent resident
status in Canada. This would include such advantages as sponsorship possibilities,
assistance in an application for permanent residency, or future financial
assistance from the better economic situation of a successful applicant
presented in Canada. I find that it is not unreasonable to attribute some
degree of personal interest to the sister from the circumstances in this
matter. However, partiality is usually the nub of the issue in terms of the reliability
of evidence from family members.
[16]
The real problem, however, is that the sister’s
declaration is obviously hearsay, constituting an out-of-court statement where
the deponent is not subject to cross-examination. In most other truth-seeking
legal processes in Canada, the declaration of the sister would likely not be
admissible due to the hearsay rule.
[17]
This distinguishes the current circumstance with
the one in Maldonado v Canada (Employment and Immigration), [1980] 2 FC
302 [Maldonado]. In that case, the Applicant was before the RPD and had the
benefit of doubt concerning her evidence unless proven otherwise. The main
distinction is that in other truth-seeking legal processes in Canada, normally
what the principal party testifies to, is corroborated by other available
reliable evidence to bolster its weight. Maldonado is not really an
exception to ordinary evidence rules whereby persons testifying are considered
to be telling the truth until proven otherwise. But the point is that the Maldonado
principle applies only to an applicant whose evidence may be tested for
reliability.
[18]
For hearsay evidence to be admissible, the
evidence would normally have to comply with the requirements of the “principled
approach” by establishing its necessity and reliability:
R v Khan, [1990] 2 S.C.R. 531. These requirements balance the interests of
justice while maintaining the reliability of the evidence in order to ensure
the integrity of the truth-seeking legal process. Regardless of necessity, the
requirement to demonstrate the reliability of the evidence remains as a
separate factor. See for example the summary of these requirements from R v
Khelawon, [2006] 2 S.C.R. 787, in The Law of Evidence in Canada, Sopinka,
Lederman & Bryant [Sopinka], 4th edition, page 265 at para 6.92 as
follows:
When the optimal
test of contemporaneous cross-examination is not possible, rather than simply
losing the value of the evidence, it becomes necessary in the interests of
justice to consider whether it should nonetheless be admitted in its hearsay
form. The criterion of reliability is about ensuring the integrity of the trial
process. Although needed, the evidence will not be received unless it is
sufficiently reliable to overcome the dangers arising from the difficulty in
testing it.
[Emphasis added]
[19]
It has been recognized that exceptions to the
hearsay rule are necessary in immigration law because witnesses living abroad
are not available for examination. However, the common sense requirement
remains to ensure that the reliability principle has been complied with. Otherwise,
the integrity of the truth-finding functions of immigration administrative
tribunals will be undermined.
[20]
The fact that the statement is sworn or attested
to be true has very little or no bearing on the document’s reliability. It is
assumed that witnesses will tell the truth. An oath will not prevent dishonest
persons from misrepresenting the truth and is not necessary for honest
deponents. The truth-seeking function of hearings is to test for dishonesty and
to determine the reliability of the evidence. The purpose of swearing to the
truth is for its deterrent effect as a basis for a possible charge of perjury.
This has no application for statements made outside of Canada or, for that
matter, for applicants intentionally lying in immigration matters.
[21]
The Applicant in this case, as with applicants
in many other cases, is critical of the Officer diminishing the weight of
evidence from her sister on the grounds that it is “self-serving”. From my
comments above, the Court recognizes that the term is somewhat confusing, but
nevertheless probably appropriate as the catchall term to describe an outcome
of diminished reliability of a family member’s evidence.
[22]
The justification for permitting out-of-court
evidence of family members is on the basis of necessity. In these situations, there
is no other source of information available to corroborate an applicant’s
narrative. Family members may be witnesses to the conduct complained of or
involved in events, such as in this case of going to the police. In these
cases, they may be the only persons who can provide the evidence in the sworn
statements. See for example the recent decision in Shilongo v Canada (Citizenship
and Immigration), 2015 FC 86, at para 29 as follows:
[29] Part of
that finding was based on the Officer’s view that the sworn statements could
not be trusted because they were from the Applicant’s family members. In my
view, that was unreasonable. Although it is often better for such evidence to
be corroborated (Ferguson v Canada (Citizenship and Immigration), 2008
FC 1067 (CanLII) at para 27, 74 Imm LR (3d) 306), it was still sworn testimony,
and it is difficult to know what other evidence could reasonably be expected in
a situation like this. After all, a threat such as that alleged would never
have been made to someone completely uninterested in the Applicant’s life, and
if the sworn statements are true then the Applicant’s mother and brother were
the only witnesses; there could be no evidence of the incident of which they
are not the ultimate source. As Mr. Justice Russel Zinn observed in a similar
situation in Rendon Ochoa v Canada (Citizenship and Immigration), 2010
FC 1105 (CanLII) at para 10, 93 Imm LR (3d) 113, they were “uniquely placed to
provide evidence and are indeed the only people who could properly provide the
evidence that is sworn to in their statements.”
[23]
With respect, the rationale described in this
and other similar cases cited by the Applicant, speaks only to the necessity
requirement. There is no consideration of the overriding reliability
requirement. If the Applicant does not have sufficient evidence to support her
case in the first instance, it is the Court’s view that this cannot be a ground
to give other insufficient reliable evidence more weight in order to establish
an unreliable factual conclusion. Reliability must be an independent factor
from that of necessity. Otherwise, the result would be to lower the threshold
required to prove a fact, or a conclusion of mixed fact and law, below that of
a probability or likelihood.
[24]
It would be preferable if decision-makers
described the deficiencies of out-of-court evidence from partial or interested
witness in terms relating to its reliability, thereby requiring the weight
attributed to the evidence to be reduced to some described extent. This task
completed, the officer then may weigh the out-of-court evidence against the remaining
evidence in the matter to determine its effect on the outcome of the decision.
[25]
Courts reviewing these cases, on the other hand,
should not view an officer’s decision to diminish the weight placed on evidence
described as “self-serving” when uncorroborated as an incorrect attribution of weight
to the evidence or a reviewable ground to overturn the decision. With respect,
stated in this way the issue becomes merely one of semantics. There is an
unavoidable reliability issue in respect of any out-of-court evidence, and it
is usually significantly increased when its source is a family member or another
person with an interest in the outcome.
[26]
Necessity often gets the evidence admitted in
immigration matters without the need to demonstrate its reliability. This is
already a bonus for the Applicant in comparison with other truth-seeking legal
processes in Canada, where the statement would likely be rejected out of hand. If
corroborated by some objective evidence, the statement can be attributed more
weight. I am of the view that Ferguson v Canada (Citizenship and
Immigration), 2008 FC 1067 properly states the law that unless such
evidence is corroborated, it has little value (at para 27).
[27]
Moreover, in sending the matter back for a
review on this basis, there is a problem concerning what weight the Officer should
attribute to it. Are such statements from family members to have the same
probative value as statements made in a hearing that are subject to
cross-examination? Are they in fact, to have more probative value than
statements made by the Applicant, because the probative value of his or her
evidence can be diminished by questioning during the hearing, while the out-of-court
statements are to be taken at face value? Does the Officer avoid the problem by
saying a reduced weight is attributed to the evidence, without qualifying how
much weight is to be discounted? The bottom line is that one cannot pump up
reliability by necessity. The value of the evidence is what it is, and nothing
else, unless helped out by other evidence or probative considerations.
[28]
In this matter, the Officer pointed out problems
in relation to the authentication of the document and substantive qualitative issues
relating to the circumstances of the author and the corroboration of its
contents. There were also problems with the Applicant’s identity referred to by
the Officer. The Officer accorded little weight to the document and found that
it was not possible to arrive at a conclusion on its source and reliability. It
logically follows from these conclusions that the Officer found that the
sister’s declaration did not affect the Applicant’s negative credibility
assessment or alter the evaluation of risk from that determined by the RPD. I
find no reviewable error in this analysis, or its conclusions relating to the
sister’s statement.
B.
The Expert Report
[29]
The Applicant submits that the Officer erred by not
accepting the opinions expressed in the expert’s report. She argues that its
conclusions should have been accepted regardless of the fact that the report’s
underlying assumptions were discredited by the RPD or the fact that the expert
was not a witness to the events related in her report. In particular, it is
alleged that the Officer ignored the report’s key findings concerning the perilous
situation the Applicant would face upon retuning to Guinea having given birth out
of wedlock to children in Canada and in Guinea, findings which the Applicant
alleges are undisputed.
[30]
The expert describes her qualifications gained
over 10 years of residency work in various African countries including Guinea, focusing
primarily on religion, politics, civil conflict and violence in these countries.
No Curriculum vitae was attached to the expert opinion. In the
immigration and refugee law context, there is no formal process for vetting and
qualifying someone as an expert, as practised in other areas of law as a
safeguard to ensure that the person possesses the expertise claimed and can
speak to the specific issues before the decision-maker.
[31]
In this case, the expert offered opinions with
respect to adultery being seen as an extremely serious form of crime in these
societies, being subject to severe punishment by flogging and possibly even
death by stoning. She also gave evidence on civil marriages not being
considered proper or legitimate forms of marriage and the consequences of being
pregnant out of wedlock in these communities. Her opinions extended to issues
of domestic rape and violence against women, described as being common, in
addition to the practice of female genital mutilation, although illegal still
being extremely widespread. She also considered the Applicant’s account of past
abuse concluding that it was credible and entirely consistent with her
knowledge of social practices and the status of women in Guinea. She similarly
stated that upon returning to her home country, the Applicant would be seen as
an adulteress, punished violently, and subject to extreme social ostracism.
[32]
There are normally limitations on, or at least
concerns about experts opining on the ultimate issue, or determinative issues
to be decided by the decision-maker: see Sopinka, supra at para 12.150. The
underlying view is that an expert should not be able to usurp the functions of
the trier of fact. In addition, opinion evidence must be necessary, in the
sense that it provides information which is likely to be outside the experience
or knowledge of the decision-maker. The Sopinka text, supra, describes
this point at para 12.59 as follows:
In R v. Mohan,
([1994] 2 S.C.R. 9) the Supreme Court held that opinion evidence must be necessary
in the sense that it provides information “which is likely to be outside the
experience or knowledge of a judge or jury”. Thus, expert evidence must be
necessary to assist the fact-finder to appreciate the facts due to their
technical nature, or to form a correct judgment on a matter ordinary persons
are unlikely to do so without the assistance of persons with special knowledge.
[33]
In this matter, the expert is proffering
evidence on issues central to the decision and in matters where the Officer
would normally rely upon country condition documentation. She cites almost no
documentation in support of her opinions. Moreover, she offers an opinion as to
the credibility of the Applicant’s account of her treatment prior to leaving Guinea
and the near certainty of abusive treatment on return there.
[34]
It is trite law that the Court owes much deference
to the decisions of immigration administrative decision-makers because of their
acknowledged expertise in the subject matter risk of refoulement that they deal
with on a daily basis. Immigration officers follow a process adopted in
conformity with directions from the Courts by which they evaluate risk
situations following the established practice of consulting and citing country
condition documentation compiled from a broad spectrum of reliable and
independent sources as the objective foundation for their decisions.
[35]
Reflecting on the duties of immigration officers
and the manner whereby they discharge their functions, it would appear to the
Court that accepting the expert’s opinions in this matter would tend to usurp
the Officer’s statutory duties on matters that are not outside his experience
or knowledge. This is not a case where an expert opinion is necessary to assist
the Officer in appreciating the facts due to their technical nature or in forming
a correct judgment. In addition, as seen here, recourse to an expert introduces
subjective opinions where concerns arise about the partiality and self-serving
nature affecting forensic witnesses paid to provide assistance to a party by
the opinions they offer the Court. This is in contradiction to a well-established
process whereby independent and reliable documentary sources are consulted by
officers trained and having an extensive expertise in the field to consider
objective country condition evidence and apply it to determine the risk on
refoulement of the applicant.
[36]
In these circumstances, I conclude that the
Officer did not erred in exercising his discretion to deny the admissibility of
the expert report as unnecessary and tending to usurp his statutory functions.
[37]
The Officer, however, admitted the report and
thereafter critiqued it on various grounds. The Officer pointed out
inconsistencies with the country condition documentation, such as that marriage
between persons of different religions is common and generally well accepted in
Guinea. He also noted an absence of any particular risk or danger in the
documentation towards women bearing children outside of marriage, whether it
related to persecution, ostracism or corporal punishment. The Officer cites
other reports from the objective documentation that violent forced marriages have
become a marginal phenomenon, being almost non-existent except in rural areas.
He also noted the large number of associations springing up to defend the
rights of women in Guinea. From his review of objective documentation, the
Officer concluded that while there are difficulties with state protection in
Guinea, the protection is considered adequate for the purposes of the Applicant.
He also referred back to the essential problem that her narrative was rejected
as not being credible, meaning that her personal situation and identity
remained unknown for the specific application of the risk factors described in
the documentation.
[38]
In summary, I can find no reviewable error in
the Officer preferring an analysis based upon objective country condition
documentation in accordance with the practices of immigration officers, as
opposed to the opinions of an expert opining on the same subject matter.
VI.
Conclusion
[39]
The application is dismissed and no question is
certified for appeal.
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