Docket: IMM-548-17
Citation:
2017 FC 780
St. John's, Newfoundland and Labrador, August 29, 2017
PRESENT: The
Honourable Madam Justice Heneghan
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BETWEEN:
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KENRICK KIRK
HOWARD
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
[1]
Mr. Kenrick Kirk Howard (the “Applicant”) seeks
judicial review of the decision of a Pre-Removal Risk Assessment Officer (the
“Officer”) dismissing his application to be found a person in need of
protection pursuant to subsection 97 (1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the “ Act”).
[2]
The Applicant is a citizen of Barbados. He has a
chequered history of residence in Canada, punctuated by deportations and
re-entries. He first arrived in Canada in 1978 as a permanent resident. He was convicted
of criminal offences in Canada which led to his first deportation from Canada
in 1989.
[3]
The Applicant returned and was again deported
from Canada in April 2011.
[4]
The Applicant re-entered the country, at an unknown
port of entry, on an unknown date. He came to the attention of the Canada
Border Services Agency (the “CBSA”) in February 2016 and was detained. He
remains in detention.
[5]
In 2016, the Applicant submitted a Pre Removal
Risk Assessment (“PRRA”), claiming to be at risk of persecution in Barbados on
the basis of his status as a bisexual man with AIDS/HIV who will not get
adequate medical treatment in his country of origin due to his health status.
The submissions filed by Counsel requested an oral hearing.
[6]
The Applicant submitted an affidavit with his
PRRA application in which he deposed that he had begun dating and living with a
man in Barbados in 2010. He deposed that his companion died of AIDS in 2012.
After the death of his friend, the Applicant was required to move. A woman told
other people in the house about the Applicant’s sexual orientation and status
as a person with AIDS. The Applicant deposed that he was attacked and
threatened with being thrown into the sea. According to the Applicant, the threat
was made because he was bisexual and suffered from AIDS.
[7]
The Applicant deposed that the day after
receiving this threat, a friend drove him to the airport and he left Barbados.
[8]
The Applicant did not provide information about
his intended destination at that time.
[9]
The Applicant did not seek police protection
while in Barbados; he said that since “bi-sexual acts
are illegal in Barbados”, police protection would not be forthcoming. He
expressed a fear, in his affidavit, that he would be at risk from the police
force in Barbados if returned to that country.
[10]
The Officer determined that the Applicant had
failed to establish that he is bi-sexual or afflicted with AIDS/HIV.
Accordingly, the Officer did not give much weight to the documentary evidence
submitted about discrimination and violence in Barbados against LGBT
individuals nor those persons suffering from AIDS/HIV.
[11]
The Officer noted a discrepancy in the dates of
the Applicant’s bi-sexual relationship with a man in Barbados, said to begin in
2010. The Officer recorded that when questioned by the CBSA in February 2016,
the Applicant had said he had returned to Canada in 2014. The record shows that
the Applicant was deported from Canada in April 2011. The Officer concluded
that the Applicant had failed to provide “sufficient
evidence to establish, on a balance of probabilities, that he is a bisexual and
I afford his submission to that effect little weight”.
[12]
The Officer considered the country condition
documents and concluded that Barbados is a functioning, if imperfect, democracy
and that the state tries to protect its citizens.
[13]
The Applicant argues in this application for
judicial review that the Officer breached his right to procedural fairness by
failing to hold an oral hearing to allow him to address issues of credibility,
as allowed by section 167 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (the “Regulations”). He submits that the Officer
made veiled credibility findings when using the language of insufficiency of
evidence.
[14]
The Applicant further argues that the Officer
unreasonably assessed the country condition documents and unreasonably concluded
that state protection is available to him in Barbados.
[15]
The Minister of Immigration, Refugees and
Citizenship (the “Respondent”) submits that the Officer reasonably determined
that credibility was not an issue and reasonably decided that no oral hearing
was required. As well, he submits that the Officer reasonably concluded that
the Applicant is not a person in need of protection. Finally, he argues that
the state protection finding is reasonable.
[16]
In short, the Respondent submits that the
Officer committed no reviewable error.
[17]
The first question to be addressed is the
applicable standard of review.
[18]
The Applicant characterized the lack of an oral
hearing, where credibility was in issue, as an issue of procedural fairness,
reviewable on the standard of correctness. The Respondent submits that this
issue of procedural fairness can be reviewed on the standard of reasonableness,
relying on the decision in Majali v. Canada (Minister of Citizenship and
Immigration), 2017 FC 275.
[19]
I prefer the orthodox view that issues of
procedural fairness are reviewable on the standard of correctness, as discussed
by the Supreme Court of Canada in Mission Institution v. Khela, [2014] 1
S.C.R. 537 at paragraph 79.
[20]
The conclusion of the Officer on the issue of
state protection is reviewable on the standard of reasonableness; see the decision
in Omid v. Canada (Citizenship and Immigration), 2016 FC 202 at paragraph
3.
[21]
The next question for determination is whether
the Officer made a “veiled” credibility finding
when using the language of insufficient evidence in concluding that the
Applicant had failed to establish the basis of his claim for protection.
[22]
The Applicant focuses on the Officer‘s remarks
about the discrepancy in the timeline for his bisexual relationship in Barbados
that supposedly began in 2010, when the Applicant was in Canada. The Certified
Tribunal record contains a “Certificate of Departure”
signed by the Applicant on April 15, 2011, referencing his deportation from
Canada.
[23]
The Officer found the evidence of the Applicant,
as set out in his affidavit that he submitted with his PRRA application, to be
inconsistent with other evidence available about the presence of the Applicant
in Canada up to April 15, 2011. On the basis of this discrepancy, the Officer
rejected the Applicant’s claim to be bisexual, the root of his claim for
protection in Canada against Barbados.
[24]
The Officer also found that the Applicant
had failed to provide sufficient evidence about his status as a person with
HIV/AIDS, noting that letters submitted from the College of Physicians and
Surgeons of Ontario spoke only of “immunity related
concerns” and “chronic immune deficiency
condition”. The Officer was “not satisfied that
the applicant (sic) has provided sufficient evidence to establish , on a
balance of probabilities, that he has HIV/AIDS and I afford his submissions to
that effect little weight.”
[25]
Section 167 of the Regulations provides as follows:
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167 For the
purpose of determining whether a hearing is required under paragraph 113(b)
of the Act, the factors are the following:
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167 Pour
l’application de l’alinéa 113b) de la Loi, les facteurs ci-après servent à
décider si la tenue d’une audience est requise:
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(a) whether there is evidence that raises a serious issue of the
applicant’s credibility and is related to the factors set out in sections 96
and 97 of the Act;
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a) l’existence d’éléments de preuve relatifs aux éléments mentionnés
aux articles 96 et 97 de la Loi qui soulèvent une question importante en ce
qui concerne la crédibilité du demandeur;
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(b) whether the evidence is central to the decision with respect
to the application for protection; and
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b) l’importance de ces éléments de preuve pour la prise de la
décision relative à la demande de protection;
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(c) whether the evidence, if accepted, would justify allowing the
application for protection.
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c) la question de savoir si ces éléments de preuve, à supposer qu’ils
soient admis, justifieraient que soit accordée la protection.
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[26]
Relying on the decision in Zmari v. Canada
(Minister of Citizenship and Immigration), 2016 FC 132, the Applicant
submits that the Officer should have given him an opportunity to answer
concerns about the discrepancy between his affidavit evidence and the record of
his deportation on April 15, 2011. He argues that he should have been given an
oral hearing.
[27]
In light of the decision in Zmari, supra,
I am satisfied that the Applicant has shown that the Officer made a “veiled” credibility finding and this application for
judicial review will be allowed. It is not necessary to address the other
issues that were raised.
[28]
In the result, this application for judicial
review is granted, the decision of the Officer is set aside and the matter
remitted to a different officer for re-determination. There is no question for
certification arising.
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