Docket: A-104-16
Citation: 2017 FCA 48
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CORAM:
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SCOTT J.A.
BOIVIN J.A.
DE MONTIGNY J.A.
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BETWEEN:
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Appellant
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and
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LAMINE YANSANE
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Respondent
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REASONS FOR JUDGMENT
DE MONTIGNY J.A.
[1]
This appeal comes before the Court from a
decision rendered by Madam Justice Gagné of the Federal Court (the judge),
whereby which she allowed the respondent’s application for judicial review of
the decision dismissing his application for a pre-removal risk assessment
(PRRA). The judge made this ruling, indexed as 2016 FC 277, not because the
contested decision was unreasonable, but because the PRRA officer did not
comply with the findings of fact made by the Federal Court in previous
decisions. The judge certified the following question:
[translation]
In the absence of a specific verdict, what impact do the Federal Court’s
findings of fact and directions have on an administrative decision-maker
assigned to re-determine the case?
[2]
For the following reasons, I am of the opinion
that the appeal should be allowed, because the judge erred in concluding that
she was bound by the findings of fact made previously by her colleagues in the
applications for judicial review of previous PRRAs.
I.
Background
[3]
The respondent, Mr. Lamine Yansane, is a citizen
of Guinea, and he arrived in Canada in October 2005. On the personal information
form with his claim for refugee protection, he noted his fear of his father,
the imam of his state, who is very well known in his native city. He stated his
family was very conservative, and that he was accused of apostasy for marrying
a Catholic woman in 1994. The respondent’s father reportedly initially
consented to the marriage on the condition that his spouse convert to Islam
afterwards. However, not only did she not convert, but the respondent grew
closer to her religion. After being pressured by his family to leave his wife
and marry his cousin, the respondent and his family left their native city in
October 2004 to live in Conakry, the capital, approximately 300 kilometers
away.
[4]
Hearing rumours that the respondent was
attending a Catholic church, his father and uncle reportedly came to his home
in September 2005. The respondent said his father hit him and threatened to
kill him when he admitted that he was thinking of converting to Christianity.
Fearing for his life, the respondent reportedly first sought shelter with his
wife’s brother; when his wife’s brother warned him that his father and other
members of the Muslim community were looking for him, he left the country, and
his wife and two children went to live in a remote village.
[5]
In August 2006, the Refugee Protection Division
(RPD) of the Immigration and Refugee Board of Canada denied the respondent’s
application for refugee protection on the ground of general lack of
credibility. The Federal Court denied the application for leave for judicial review
of this decision. The respondent then filed an initial PRRA application and an
application for permanent residency on humanitarian and compassionate (H&C)
grounds. These applications were both denied in November 2007. His application
for a stay was also denied, but the respondent was not deported because the
required travel documents could not be obtained.
[6]
In November 2008, the respondent filed a second
PRRA application supported by new evidence, including proof of his conversion
to Christianity since his arrival in Canada and of his father’s fatwa against
him. This application was also denied, but a stay of removal was granted in
January 2009 until the Court ruled on the application for leave and for
judicial review filed against the second PRRA decision (see Yansane v.
Canada (Citizenship and Immigration), 2009 FC 75, [2009] F.C.J. No. 78
(Justice Lemieux) [Yansane 1]). As Mr. Justice Lemieux saw it, the fact
that the immigration officer may have ignored the teachings of this Court in Raza
v. Canada (Citizenship and Immigration), 2007 FCA 385, 370 N.R. 344 [Raza]
or that she may have erred by giving too little weight to the new evidence was
a serious enough question for the stay. The application for judicial review was
then allowed by Mr. Justice Shore, on the grounds that the officer did not take
into account the new documentary evidence and considering the high risk of
persecution and death due to the respondent’s change of religion, as confirmed
by his baptism in April 2007 (see Yansane v. Canada (Citizenship and
Immigration), 2009 FC 1242 [Yansane 2]).
[7]
The second PRRA application was therefore
referred back to another officer, who also denied it on March 20, 2012.
However, with the parties’ consent, that decision was quashed.
[8]
On March 11, 2013, the PRRA application was
denied for a third time by a new immigration officer. She also refused to
consider the new evidence on the ground that the documents filed by the
respondent were self-serving and did not meet the criteria of “new evidence” under subsection 113(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). In a judicial review
of this decision, Shore J. once again quashed it in an unreported decision on
November 20, 2013 (Yansane 3). Since this decision is central to this
appeal, I am reproducing the most relevant excerpts:
…
[translation]
KNOWING that
the four previous decisions concerning the applicant discussed before this
Court were raised again in relation to the applicant’s current situation, this
Court still fully agrees with all paragraphs and citations from these previous
decisions. These decisions should be read in depth, knowing that there were
orders to implement them. In addition, the most recent evidence in the form of
letters before this Court is accepted as valid evidence.
…
KNOWING that,
without clear and convincing information from the Embassy of Canada in the
applicant’s country of origin (or other evidence provided on request by an
authority in the executive branch of the Canadian government) contradicting the
evidence on record, this Court can only rule what it has decided since the
beginning of this case with the evidence before it; that is, to have before
this Court clear and convincing assurance from a government authority in the
applicant’s country of origin about the state of the security or protection
available to the applicant given the most recent evidence. This type of
evidence is required to contradict the new evidence on file, as in certain
other cases before this Court where the Court accepted the assurances of the
country of origin in question to change its point of view on the current
evidence of record.
THIS COURT’S JUDGMENT is that this application for judicial review be allowed; therefore,
this Court overturns the most recent PRRA decision and orders a new
determination before another officer. No questions of general importance are
certified.
Obiter
It is not the Federal Court’s power to
decide the applicant’s fate; the PRRA officer is responsible for that decision
and has the power to make that decision. To contradict the new evidence
submitted each time to demonstrate that each time the case is revisited, the
previous danger remains or is renewed for the future without interruption, the
Embassy of Canada or another entity of the executive branch of the Canadian
government is responsible for clarifying the situation, if in fact the new
evidence may be contradicted. Information from a Canadian government source
could make the PRRA officer’s and this Court’s task easier if this matter were
to return before this Court.
Yansane 3,
Appeal book, vol. 2, at pages 378–379
[9]
After that decision, the immigration officer
responsible for the fourth PRRA application decided to hold a hearing and
assess the respondent’s credibility. After an interview that lasted nearly
three hours, the officer found (in a decision approximately 20 pages long) that
the respondent was not credible. The officer noted significant inconsistencies
and contradictions in the respondent’s testimony and significant irregularities
in the documents he offered in evidence, and therefore was of the opinion that
the evidence did not demonstrate that there was more than a simple possibility
of persecution within the meaning of section 96 of the IRPA, or that there were
substantial grounds to believe he would be exposed to a risk of torture, a risk
to his life, or cruel and unusual treatment or punishment within the meaning of
section 97 of the IRPA if he returned to Guinea.
[10]
The officer also examined the documentary
evidence about religious practice and freedom of religion in Guinea and noted that the only difficulties that can occur when a person converts to
Catholicism are with their family or neighbours. She then found that Christians
are free to practise their religion and that it was unlikely that an imam would
find support with political leaders, other imams, or even the general
population if he tried to apply Sharia and declare a fatwa against his son for
having converted to Catholicism. Finally, the officer noted the Federal Court’s
previous decisions involving the respondent and explained her process in the
following terms:
[translation]
In the most recent decisions, the Federal Court found, based on the new
evidence presented, that the applicant would be at risk if he returned to
Guinea, and it asked for clear and convincing assurances from the Embassy of
Canada in the applicant’s country of origin or other evidence provided on
request by an authority in the executive branch of the Canadian government
about the state of the security or protection available to the applicant. That being
said, before following the Court’s recommendations in this area, it was
important to ensure that the risks alleged by the applicant were real. …Given
the circumstances, I deemed it appropriate to meet with the applicant to assess
the credibility of his allegations before following the most recent Court
orders. [Citations omitted.]
PRRA officer’s decision, Appeal Book, vol. 2
at page 238
[11]
In the application for judicial review of this
fourth assessment of the second PRRA, the judge found that the officer’s
decision was “inherently reasonable” but must
still be set aside because it did not take into account the previous decisions
rendered by Shore J. in 2009 and in 2013 (Yansane 2 and Yansane 3).
[12]
In terms of the reasonableness of the decision,
the judge concluded that the officer could find that the respondent was
generally not credible given the many implausibilities and contradictions in
his testimony. The judge also agreed that it was plausible that the respondent
changed his testimony in response to the concerns and negative findings of the
RPD, and that the officer’s finding was reasonable on that point. The judge
also noted that most of the originals were missing from the record, and that
the officer noted certain discrepancies in the documents filed by the
respondent as new evidence. Overall, she considered that the officer assessed
all the evidence before her and that her findings were within the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.
[13]
Notwithstanding that conclusion, the judge
nevertheless allowed the application for judicial review because she was of the
opinion that it was unreasonable for the officer to ignore what she called the
findings of fact made by the Court in its previous decisions about the
documentary evidence. Although she expressed reservations about the merit of
such findings (see paragraph 38 of her Reasons, where she states that [translation] “it
is clear that it is not this Court’s duty to administer the evidence in support
of a PRRA application”), she still stated that these findings could not
be ignored by a subsequent decision-maker. The gist of her reasoning on this
matter is found in the following paragraph:
[translation]
[41] The PRRA officer was not required to follow the findings of the other PRRA
officers who ruled on the applicant’s application, but the findings of fact and
directions (in Yansane 2 and Yansane 3 but not the June 3, 2015,
direction) did need to be followed. I so conclude this despite the fact that
Mr. Justice Shore did not add to his order in Yansane 3 that he was
returning the file to the respondent for a redetermination in accordance
with his reasons or any other similar formulation. The absence of such a
statement in the decision of Shore J. does not allow an administrative
decision-maker assigned to redetermine the matter to ignore the reasons,
findings of fact, or directions of this Court. (emphasis added)
[14]
As mentioned above, the judge certified the
question reproduced above, providing the grounds for the appeal filed by the
Minister of Citizenship and Immigration under subsection 74(d) of the IRPA.
II.
Analysis
[15]
In general, the role of a superior court in a
judicial review of an administrative decision is not to replace the
administrative decision-maker’s decision with its own decision; rather, its
role is limited to verifying the legality and reasonableness of the decision
rendered, and to returning the file to the same decision-maker or another
decision-maker in the same organization if it finds that an error was made and
that the decision was illegal or not within the range of possible, acceptable
outcomes in respect of the facts and the law (Dunsmuir v. New Brunswick,
2008 SCC 9, at para. 47, [2008] 1 S.C.R. 190).
[16]
However, under paragraph 18.1(3)(b), the Federal
Court can exceptionally set aside a decision and refer it back for judgment in
compliance with the instructions it deems appropriate. The type of instructions
the Court may give depend on the circumstances, and the case law provides
several illustrations of directions or instructions issued as part of a
judgment allowing an application for judicial review. The Court may therefore
set a deadline to re-examine the file (see for example Lu v. Canada
(Citizenship and Immigration), 2016 FC 175); limit reconsideration to a
specific question and require the decision-maker to take certain documents into
account (see Bledy v. Canada (Citizenship and Immigration), 2012 FC 679;
Camargo v. Canada (Citizenship and Immigration), 2015 FC 1044); exclude
a piece of evidence (see M.A.O. v. Canada (Minister of Citizenship and
Immigration), 2003 FC 1406, [2003] F.C.J. No. 1799); or forbid a specific
result (Carroll v. Canada (Attorney General), 2015 FC 287).
[17]
Indeed, the Court often simply directs that
reconsideration take place in accordance with its reasons; I will discuss the
impact of such a direction later on. Conversely, the Court may require a
specific verdict of the administrative organization to which the file is being
returned; however, this is a power that the Court will use only in the most
clear-cut cases, for example when there can only be one possible outcome when
the law is interpreted correctly (see Wihksne v. Canada (Attorney General),
2002 FCA 356, 299 N.R. 211). On the other hand, if the assessment of the
evidence may affect the outcome, even if the applicable law has been clarified,
it is better to let the administrative decision-maker make a decision, though
the decision may need to be reviewed again for reasonableness if one of the
parties is not satisfied with the decision:
[13] On an application for judicial review,
the role of the Court with respect to a tribunal’s findings of fact is strictly
circumscribed. In the absence of an error of law in a tribunal’s fact-finding
process, or a breach of the duty of fairness, the Court may only quash a
decision of a federal tribunal for factual error if the finding was perverse or
capricious or made without regard to the material before the tribunal: Federal
Court Act, paragraph 18.1(4)(d). Hence, if, as a result of an error of law,
a tribunal has omitted to make a relevant finding of fact, including a factual
inference, the matter should normally be returned to the tribunal to enable it
to complete its work. Accordingly, in our opinion, the judge would have erred
in law if, having set aside the decision of the Board, she had remitted the
matter with a direction that the Board grant Mr. Rafuse leave to appeal.
Canada
(Minister of Human Resources Development) v. Rafuse,
2002 FCA 31, 286 N.R. 385
[18]
In my view, the same caution is warranted for
the directions and instructions that this Court may issue when it allows an
application for judicial review. We must never lose sight of the fact that such
directions or instructions depart from the logic of a judicial review, and that
their abusive or unjustified use would go against Parliament’s desire to give
specialized administrative organizations the responsibility for ruling on
questions that often require expertise that common law panels are lacking. This
is especially the case for eligibility and weighing of evidence, which are
central to the mandate of administrative decision-makers.
[19]
According to that logic, I believe it is
essential to interpret the possibility of issuing directions or instructions
restrictively, such that only those explicitly stated in the judgment may bind
the administrative decision-maker responsible for re-examining a case. This
must be the case not only so that Parliament’s decision not to allow appeals is
respected, but also so that the law is predictable and appropriately guides
those who must re-examine a question when the first decision was set aside.
Consequently, I am of the opinion that only instructions explicitly stated in
the judgment bind the subsequent decision-maker; otherwise, the comments and
recommendations made by the Court in its reasons would have to be considered
mere obiters, and the decision-maker would be advised to consider them
but not required to follow them.
[20]
For this reason, I believe that the judge erred in
concluding that it was unreasonable for the PRRA officer to ignore the findings
of Shore J. concerning the documentary evidence before her. In his two previous
decisions, Shore J. seemed to find that the new evidence about the respondent’s
personal risk if he returned to Guinea, due to his change of religion and the
threats uttered against him by his father, was credible and had not been reasonably
assessed. In addition, he indicated that only clear and convincing evidence
from the Canadian Embassy in Guinea or another Canadian authority would allow
the respondent’s evidence to be quashed and convince the Court that he could
safely return to his country.
[21]
These arguments of Shore J. seem, at the very
least, questionable. On the one hand, the precise meaning of those warnings is
not entirely clear. By pointing out that the respondent’s new evidence was not
only eligible based on the criteria listed by our Court in Raza, but
also undisputed, did Shore J. mean to imply that the respondent’s credibility
had been confirmed? In holding a new hearing, could the officer not find that
the respondent was not credible, despite the documentary evidence? By
indicating that the Court could not change its opinion on the protection the
respondent could have in his country except with evidence from the Canadian
Embassy, did Shore J. merely state his personal point of view or did he intend
to restrict the latitude of future decision-makers and even other Federal Court
judges?
[22]
On the other hand, the Federal Court is not
responsible for administering the evidence supporting a PRRA application, as
the judge noted more than once in her judgment. The officer in charge of
reviewing such an application is the one responsible for determining the
admissibility and weight of the evidence; there may be more than one way to
determine that a country has the resources and will to protect its citizens in
general and an individual in particular. The immigration officer, who faces
such questions on a regular basis, has more expertise than the Court and is
entitled to more deference in that field (Raza v. Canada (Citizenship and
Immigration), 2006 FC 1385, 58 Admin L.R. (4th) 283).
[23]
Be that as it may, Shore J. did not review these
comments in his formal order. He merely set aside the PPRA decision and ordered
a new determination by another officer. Moreover, he explicitly labelled as an obiter
his recommendation that the Canadian Embassy or another Canadian government
entity clarify the situation if the respondent’s new evidence was to be
contradicted. Under these circumstances, it seems clear to me that the
immigration officer responsible for re-examining the PRRA application was not
required to comply with the wish expressed by Shore J. It was clearly an obiter
dictum and not binding.
[24]
The situation faced by the officer assigned to
re-examine the PRRA application in this case was entirely different from that
referred to by Madam Justice Gleason, then of the Federal Court, in Burton
v. Canada (Citizenship and Immigration), 2014 FC 910, 30 Imm L.R. (4th)
294 [Burton], which the judge cites to support her reasons. In that
case, a PRRA officer had held that the applicant would be at risk if he
returned to his country, but denied his application because he had failed to
demonstrate the inability or lack of will of his country to protect him. A
first judge set aside that decision because the applicant’s personal situation
was not taken into account in the analysis of whether his country was able to
protect him. The PRRA officer to whom the case was referred then found that the
applicant would not be at risk if he returned to his country, despite the fact
that the first judge cast doubt on that finding. Discussing the reasonableness
of this finding in a second application for judicial review, Gleason J. stated
the following:
[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 (CanLII), [2013] 3 S.C.R. 125 at paragraph 46
and Canada (Commissioner of Competition) v Superior Propane Inc, 2003
FCA 53 (CanLII), 223 DLR (4th) 55 at paragraph 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 that the
first PRRA officer did.
[25]
Strictly speaking, the first judge’s judgment
did not, in my opinion, contain any directions or instructions. By referring
the case to another immigration officer for reconsideration “in accordance with these reasons,” the first judge
was not giving instructions within the meaning of paragraph 18.1(3)(b), but
merely reiterating the well-known principle that an administrative
decision-maker must comply with the decision of a superior court in applying
the principle of stare decisis. In fact, it matters little whether the
judgment allowing an application for judicial review contains such a statement;
it goes without saying that an administrative tribunal to which a case is
referred back must always take into account the decision and findings of the
reviewing court, unless new facts call for a different analysis. In the Burton
case the Court determined that there was a risk, and the immigration officer
had to take this finding into account; this scenario is quite different from
the situation in the current case, where Shore J. did not determine the risk to
which the respondent was exposed if he returned to Guinea but specified the
type of evidence the PRRA officer needed to obtain to exclude the new evidence
submitted by the respondent in his second PRRA application. Such an
instruction, which departs from the very nature of a judicial review proceeding
and infringes upon the expertise of the officers in charge of assessing PRRA
applications, cannot bind the administrative decision-maker unless it is
explicitly part of the formal judgment. Such was not the case here.
[26]
For the above-mentioned reasons, I would allow
the appeal and would set aside the decision of the Federal Court. Rendering the
judgment that should have been handed down by the Federal Court, I would
dismiss the application for judicial review.
[27]
I would reword the question certified by the
judge to remove the reference to findings of fact, and I would answer as
follows:
Question: In the absence of a specific verdict, what impact do the
Federal Court’s directions have on an administrative decision-maker assigned to
re-determine the case?
Answer: The administrative decision-maker to whom the case is
returned must always comply with the reasons and findings of the judgment
allowing the judicial review, as well as with the directions and instructions
explicitly stated by the Federal Court in its judgment.
“Yves de Montigny”
“I agree.
A.F.
Scott J.A.”
“I agree.
Richard Boivin, J.A.”
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