Docket: IMM-281-18
Citation: 2018 FC 1207
Ottawa, Ontario, November 30, 2018
PRESENT: The Honourable Mr. Justice Norris
| BETWEEN:
|
| MOHAMMED FARUK AHMED
|
| Applicant
|
| and
|
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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| Respondent
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JUDGMENT AND REASONS
I.
OVERVIEW
[1]
The applicant is a citizen of Bangladesh. He arrived in Canada in April 2014. He made a claim for refugee protection here in February 2015. The claim was based on the applicant’s fear of persecution and mistreatment in Bangladesh because of the involvement of members of his family (in particular, his uncle Abul Khayer) in Jamaat-e-Islami, an opposition party in Bangladesh. The Refugee Protection Division [RPD] of the Immigration and Refugee Board of Canada rejected the claim in April 2015 because it found the applicant had failed to establish his identity as a national of Bangladesh. The applicant’s appeal to the Refugee Appeal Division [RAD] was dismissed in July 2015. Leave to seek judicial review of this decision was refused in November 2015.
[2]
Facing removal from Canada, the applicant submitted an application for a pre-removal risk assessment under section 112(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] (commonly known as a PRRA application). A Senior Immigration Officer rejected this application on September 12, 2017.
[3]
The applicant now applies for judicial review of this decision under section 72(1) of the IRPA. His principal submission is that the PRRA officer’s failure to hold a hearing before making a decision breached the duty of procedural fairness.
[4]
For the reasons that follow, I agree with the applicant. This application for judicial review must, therefore, be allowed and the matter reconsidered by another PRRA officer.
II.
BACKGROUND
[5]
The applicant was born in 1972. His father passed away when the applicant was in Grade 3. He was raised under the care of his mother and his maternal uncles.
[6]
The applicant states that, as he grew up, he was not involved in politics but other members of his family were. In particular, his mother’s brothers are active members of Jamaat-e-Islami. One of the applicant’s uncles, Abul Khayer, is especially prominent. He was elected the local chairman of the party, a position he continued to hold when the PRRA application was submitted.
[7]
Seeking better economic prospects than were available to him in Bangladesh, the applicant traveled to the United Kingdom three times: from 1996 until 2004, from March 2005 until August 2011, and then from August 2012 until February 2014. According to the applicant, during the last period, Abul Khayer was arrested and was tortured while in detention. He was eventually released but he was forced to close his business and his crops were burned. Abul Khayer urged the applicant not to return to Bangladesh. The applicant made a refugee claim in the United Kingdom but it was rejected. He returned to Bangladesh in February 2014 but, again at the urging of his uncle, left for Canada in April 2014. Assisted by an agent, the applicant traveled to Canada on false identity documents.
[8]
The applicant made a claim for refugee protection here on the same general grounds as he would rely on later in his PRRA application. The RPD rejected the refugee claim, however, solely because it found that the applicant had failed to establish his identity as a national of Bangladesh. As he would also do later in his PRRA application, the applicant had stated in his refugee claim that he was Mohammed Faruk Ahmed and that he was born in Bangladesh on May 15, 1972. The RPD was not satisfied that this was the case. The member summarized his reasons for so concluding as follows:
The panel has considered the identity documents presented in this claim and the claimant’s testimony as a whole. Material aspects of his testimony were not credible and as noted above, there were serious concerns with the documents presented. Of significance is his previous use of fraudulent documents and the fact that the claimant made a claim for refugee protection in another identity in Great Britain. As noted above, he presented no documentation relating to that claim and his explanations regarding that asylum claim were insufficient. Considering these concerns, the panel finds that the identity documents presented were insufficient to establish the claimant’s identity.
[9]
On this basis alone, the RPD could not find that the applicant was entitled to refugee protection under section 96 of the IRPA or that he was a person in need of protection under section 97 of the IRPA. The merits of the claim were not otherwise addressed. As noted, this determination was upheld by the RAD and an application for leave to seek judicial review was refused.
III.
DECISION UNDER REVIEW
[10]
The applicant’s PRRA application was based on both sections 96 and 97 of the IRPA. He sought protection on the basis of his fear of persecution or mistreatment by the Government of Bangladesh, the police and security forces, and members of the Awami League (the political party in power at the time of the application) as a result of his family’s political profile, especially that of his uncle, Abul Khayer.
[11]
In contrast to the position taken before the RPD, immigration authorities accepted that the applicant is who he said he is in his PRRA application. The record is silent as to the reason for this change of position.
[12]
Since the applicant had applied unsuccessfully for refugee protection, the evidence he could rely on in his PRRA application was governed by section 113(a) of the IRPA. This provision states that an applicant whose claim for refugee protection has been rejected “may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.”
[13]
The applicant relied on the following documentary evidence in his PRRA application:
A statutory declaration from Ahmed Sultan, a permanent resident of Canada, stating that he has known the applicant since childhood, that the applicant’s maternal uncle is a local leader for the Jamaat-e-Islami, and that on a trip to Bangladesh in September 2016 he learned about attacks on the applicant’s family.The statutory declaration was signed on April 27, 2017.
A statutory declaration from Tania Fardousi Begum, stating she knows the applicant’s uncle is a local leader of the Jamaat-e-Islami, that she had recently emigrated from Bangladesh to Canada, and that before she left Bangladesh the applicant’s wife and his mother asked her to convey a message to the applicant when she arrived in Canada.Ms. Begum identified an individual in a photograph as Abul Khayer.The statutory declaration was signed on May 2, 2017.
The applicant’s birth certificate as well as those of his mother and Abul Khayer, to establish the family connection.
Two letters from the Beanibazar Upazila Branch of the Jamaat-e-Islami confirming the role of Abul Khayer as the local leader of the party.One of the letters stated that many leaders of the party had been targets of government persecution.
Photocopies of posters in Bengali about the detention of members of the Jamaat-e-Islami (including Abul Khayer) by government authorities.
A letter from the applicant’s cousin Jalal Ahmed dated April 10, 2017, stating he had been attacked by activists from the Chhatra League at school on June 6, 2016.(The Chhatra League is a student branch of the Awami League.)
A letter from Kalsuma Begum, the applicant’s wife, stating that she was threatened and attacked by individuals from the governing party (i.e. the Awami League) in January 2016 when they came looking for other members of her family, that she had been hospitalized, and that she has taken her son out of school because she feared he would be kidnapped by her attackers.
Medical reports describing treatment received by Kalsuma Begum in January 2016 after she was attacked.
- Two statutory declarations from the applicant, describing the basis of his fear of persecution and mistreatment.He provided photographs of his uncle demonstrating that he is a prominent political figure and of his cousin Jalal Ahmed, who had been injured in a politically-motivated attack. The statutory declarations were signed on April 6, 2017, and May 2, 2017.
[14]
The PRRA officer did not raise any concerns about the admissibility of any of this evidence under section 113(a). However, the officer stated with respect to each item of evidence that it would be given “little weight.”
[15]
Specifically, the officer found as follows with respect to the evidence relied on by the applicant:
The officer gave “little weight”
to Ahmed Sultan’s statutory declaration because he did not refer to the applicant’s maternal uncle by name and because he mentions an event (the uncle’s shop being burned down) which is not mentioned elsewhere in the evidence.
The officer gave “little probative value”
and “little weight”
to Tania Fardousi Begum’s statutory declaration because the officer could not understand why members of the applicant’s family would seek out Ms. Begum, a relative stranger, to convey a message to the applicant when she arrived in Canada.As well, there was “little evidence”
demonstrating that Ms. Begum had actually met Abul Khayer, the applicant’s mother or the applicant’s wife.
The officer gave “little weight”
to the birth certificates because there were discrepancies in the spelling of two family names (Sharifa/Shorifa and Motosim/Motosin) between the documents.
The officer gave “little weight”
to the two letters from Jamaat-e-Islami because there were inconsistencies in both form and content between the two letters despite purporting to be from the same institution.
The officer gave “little weight”
to the posters because, while they had been translated into English, this was not done by an accredited translator.
The officer gave “little weight”
to the letter from Jalal Ahmed because it was not accompanied by the envelope it arrived in, it did not include any way to establish the identity of the author, and the letter and the photograph the applicant submitted were mutually inconsistent regarding the location of the alleged injury (Mr. Ahmed stated in the letter that his hand had been injured while the photograph depicted someone with a bandage on his lower arm).
The officer gave “little weight”
to the letter and medical reports from Kalsuma Begum, finding that while they did show that she was admitted to the hospital for a wound to her right leg, there was no corroboration that this was the result of an attack at the hands of the governing party who were looking for other family members, nor was there corroboration for her claim that her son was not attending school.
[16]
Finally, the officer stated as follows with respect to the applicant’s two statutory declarations:
I have read the two statutory declarations from the applicant, as well as the photographs that accompanied the second statutory declaration. I acknowledge the applicant states his uncle, Abul Khair (sometimes spelled Abul Khayer), is a prominent member of the opposing Jamat-E-Islami party and as a result he and his family members have been threatened, and in some instances, assaulted. I note that he states his uncles were/are members of the Bangladesh Jamaate Islami [sic] political group yet he has proffered little evidence indicating that any of his uncles, other than Abul Khair/Abul Khayer have been harassed by the government. Given the inconsistencies and contradictions with the evidence submitted, along with the RPD’s credibility findings, I give the statutory declarations little weight.
[17]
The officer’s overall conclusion about the evidence the applicant tendered was the following:
After assessing the evidence submitted I find that the applicant has not presented sufficient evidence to demonstrate that his uncle, Abul Khair or Abul Khayer, is a prominent figure within the Jamat-E-Islami political party to such an extent that he has garnered the attention of the Awami League party, the Awami League government of Bangladesh or any police/security forces in Bangladesh.
[18]
The applicant had also submitted several country condition documents describing current political and human rights conditions in Bangladesh. The officer consulted other publicly available sources as well. Given the officer’s findings concerning Abul Khayer, and considering the applicant’s own statement that he has tried to avoid any involvement in politics, the officer gave “little weight to the country condition documents presented as they pertain to Bangladesh’s repression of political dissent.”
[19]
In summary, the officer found as follows:
I have carefully reviewed the evidence that the applicant has submitted, as well as publicly available documents concerning current country conditions in Bangladesh. I find that there is little evidence to support the applicant’s claim that he will be persecuted by the Awami League, Government of Bangladesh or any police/security forces in Bangladesh as a result of his uncle’s involvement in [the] Jamat-E-Islami [sic] party.
[20]
Finally, the officer explained why a hearing had not been held as follows:
It has been established that in the context of a PRRA application, an oral hearing is warranted only in exceptional circumstances. For a hearing to be convened there must be a serious issue of credibility and this issue must be central to the PRRA application.
As my decision in this assessment was based on the insufficiency of the evidence provided and not on the applicant’s credibility, I find an oral hearing was not required in order for me to make my decision.
IV.
ISSUE AND STANDARD OF REVIEW
[21]
The central question in this application is whether the PRRA officer committed a reviewable error by not holding a hearing. The applicant contends that the officer breached the duty of procedural fairness and this is a question which should be determined on a correctness standard. The respondent maintains that a reasonableness standard should be applied in assessing the procedure the PRRA officer followed. Both positions find support in the jurisprudence because there has been a debate in this Court over this very issue. The debate has been summarized helpfully by Justice Boswell in Zmari v Canada (Citizenship and Immigration), 2016 FC 132 at paras 10-12, and, more recently, by Justice Gascon in Huang v Canada (Citizenship and Immigration), 2018 FC 940 at para 12 [Huang].
[22]
A court assessing a procedural fairness question “is required to ask whether the procedure was fair having regard to all the circumstances, including the Baker factors”
(Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54 [Canadian Pacific Railway], referring to Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at 837-41; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43). In the final analysis, a procedural choice which fails this test could be said to be both incorrect and unreasonable but, in my view, these adjectives would add little, if anything, to the fundamental conclusion that the procedure was unfair. As a result, I do not consider it necessary to join the debate over the standard of review. I must simply determine whether the procedure the PRRA officer followed was fair or not having regard to all the circumstances, including the statutory framework, the nature of the substantive rights involved, and the consequences of the decision for the applicant.
[23]
There may well be circumstances under which reviewing courts should show deference to the procedural choices of administrative decision makers (Maritime Broadcasting Systems Limited v Canadian Media Guild, 2014 FCA 59 at para 50). As discussed further below, a hearing before a PRRA officer is not automatic. Whether to hold a hearing is an exercise of discretion on the part of the PRRA officer that is guided by certain prescribed factors. This type of decision is quintessentially the sort of thing a reviewing court is expected to show deference towards. However, “[n]o matter how much deference is accorded administrative tribunals in the exercise of their discretion to make procedural choices, the ultimate question remains whether the applicant knew the case to meet and had a full and fair chance to respond”
(Canadian Pacific Railway at para 56).
V.
ANALYSIS
[24]
As the Federal Court of Appeal discussed recently in Canadian Pacific Railway, procedural review and substantive review serve different objectives in administrative law. “While there is overlap, the former focuses on the nature of the rights involved and the consequences for affected parties, while the latter focuses on the relationship between the court and the administrative decision maker”
(Canadian Pacific Railway at para 55). Under the Dunsmuir approach, substantive review pays close attention to “the reasonableness of the substantive outcome of the decision, and with the process of articulating that outcome”
(Canada (Attorney General) v Igloo Vikski Inc., 2016 SCC 38, [2016] 2 S.C.R. 80 at para 18). The reviewing court examines the decision for “the existence of justification, transparency and intelligibility within the decision-making process”
and determines “whether the decision falls within a 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). These criteria are met if “the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes”
(Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16).
[25]
The reasons offered by a decision maker can also be important for procedural review because they can reveal not only why but also how a tribunal made its decision. In the present case, the officer’s reasons disclose an underlying breach of the duty of procedural fairness because they demonstrate that the result could only have been reached through an adverse assessment of the applicant’s credibility yet no hearing was held.
[26]
Whether to hold a hearing concerning a PRRA application is a matter within the discretion of the officer who is considering the application. Section 113(b) of the IRPA provides that a hearing may be held “if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required.”
The prescribed factors are set out in section 167 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations]. They are:
| (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;
|
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;
|
| (b) whether the evidence is central to the decision with respect to the application for protection; and
|
b) l’importance de ces éléments de preuve pour la prise de la décision relative à la demande de protection;
|
| (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.
|
[27]
Section 167 codifies common law principles of procedural fairness. Each of the factors set out in section 167 raises questions of mixed fact and law and, as a result, a PRRA officer’s determinations are owed deference by a reviewing court. However, affirmative findings with respect to all three of these factors entails that a hearing must be held if an adverse decision is to pass procedural review. While the question of whether to hold a hearing is a matter of discretion, this discretion cannot lawfully be exercised in breach of the duty of procedural fairness.
[28]
As others have also observed, section 167 is worded awkwardly (Tekie v Canada (Citizenship and Immigration), 2005 FC 27 at para 15 [Tekie]). How, one may wonder, could an item of evidence raise a serious issue concerning an applicant’s credibility but at the same time be such that, if accepted, it would justify allowing the application for protection?
[29]
The awkwardness may be due to the ambiguity of the term “serious issue.”
Evidence capable of supporting an application can raise a serious issue concerning an applicant’s credibility which triggers section 167 in either of two ways. One is when the evidence contains material and important information but it also gives a decision maker a reason to doubt the applicant’s credibility. The other is when the decision maker simply does not know whether to believe the evidence or not but the evidence would support the application if it were to be believed. In the latter case, the evidence itself does not raise a serious issue in a negative sense concerning the applicant’s credibility; rather, a serious issue concerning the applicant’s credibility arises because an adverse credibility finding in relation to that evidence could be determinative of the application. In either case, the duty of procedural fairness entails that the decision maker cannot reject or simply not believe the evidence without first giving the applicant an opportunity to address the concern. As Justice Phelan put it in Tekie, “section 167 becomes operative where credibility is an issue which could result in a negative PRRA decision. The intent of the provision is to allow an Applicant to face any credibility concern which may be put in issue”
(at para 16).
[30]
In the present case, the officer stated that a hearing was not held because the decision was based on the insufficiency of the evidence provided and not on the applicant’s credibility. Part of this Court’s task on judicial review is to determine whether this is so. The question is complicated by the fact that the distinction between sufficiency and credibility is not as clear or categorical as the officer’s statement presumes.
[31]
Decision makers who are required to make findings of fact are often required to weigh the evidence presented and, against the backdrop of the burden and standard of proof, determine its sufficiency in relation to the matters in issue. Credibility assessments can be an important consideration when weighing evidence. However, a decision maker can also find evidence to be insufficient without any need to assess its credibility. One useful test in the present context is for the reviewing court to ask whether the factual propositions the evidence is tendered to establish, assuming them to be true, would likely justify granting the application for protection. If they would not, then the PRRA application failed, not because of any sort of credibility finding, but simply because of the insufficiency of the evidence. On the other hand, if the factual propositions the evidence is tendered to establish, assuming them to be true, would likely justify granting the application and, despite this, the application was rejected, this suggests that the decision maker had doubts about the veracity of the evidence. See Liban v Canada (Citizenship and Immigration), 2008 FC 1252 at paras 13-14; Haji v Canada (Citizenship and Immigration), 2009 FC 889 at para 16; Horvath v Canada (Citizenship and Immigration), 2018 FC 147 at paras 23-25 [Horvath].
[32]
Of course, doubts about the veracity of evidence do not necessarily amount to concerns about an applicant’s credibility that engage section 167 of the Regulations and trigger the right to a hearing (even if the other aspects of section 167 are satisfied). A decision maker may simply not be satisfied on the basis of an item of evidence that the proposition it is tendered to establish is true because there is no way to assess the reliability of the evidence (e.g. the source of a third-party’s knowledge of a certain fact is unknown). Even doubts about the truthfulness of an item of evidence do not necessarily lead to concerns about an applicant’s credibility. The doubts could relate to the authenticity of a document, for example, or to the credibility of a third-party. Still, it can be difficult to draw a bright line. If there were a basis to think that an applicant knew that a document he or she had tendered was a forgery, or that a third-party whose evidence was relied on was not telling the truth, this could well put the applicant’s credibility in issue in a way that would trigger the need for a hearing under section 113(b) of the IRPA. So too would attributing “little weight”
to documents containing material information that are exhibits to an affidavit sworn by an applicant (Sitnikova v Canada (Citizenship and Immigration), 2017 FC 1082 at para 19). Less direct connections between an item of evidence and an applicant may also suffice to raise a serious issue as to the applicant’s credibility (see, for example, Ruszo v Canada (Citizenship and Immigration), 2017 FC 788 at para 18, and El Morr v Canada (Citizenship and Immigration), 2010 FC 3 at para 24).
[33]
It is not necessary for me to explore this difficult issue further because, as I will explain, I have found that the officer’s reasons for rejecting the application are comprehensible only if the officer had doubts bearing directly on the applicant’s credibility – specifically, doubts about the truthfulness of statements in the applicant’s statutory declarations which, if accepted as true, would likely justify granting the application for protection. In such circumstances, the duty of procedural fairness required a hearing.
[34]
In his first statutory declaration, the applicant provided evidence that his uncle was an active and prominent member of the political opposition in Bangladesh; as a result of this he had been targeted for serious harassment, persecution, and physical attacks by the authorities and government-aligned individuals and groups; that the harassment, persecution and attacks had extended to other members of the applicant’s family; and that he himself was at risk of being so targeted in Bangladesh because of the family connection. The second statutory declaration provided some photographs in which the applicant identified his uncle and which he stated were indicative of his uncle’s prominence as a local politician. The applicant also provided a photograph of someone he identified as the cousin who had been injured in a politically motivated attack at school. If accepted as true, taken together these statements would likely justify granting the application for protection.
[35]
The PRRA officer gave two reasons for giving the applicant’s statutory declarations “little weight”
– “the inconsistencies and contradictions with the evidence submitted”
and “the RPD’s credibility findings.”
[36]
Looking first at the officer’s reliance on the RPD’s credibility findings, I accept that a PRRA officer can refer to credibility as the basis of a decision by the RPD without necessarily assessing credibility or triggering the need for a hearing under section 113(b) of the IRPA (Titkova v Canada (Immigration, Refugees and Citizenship), 2017 FC 691 at paras 15-16; Huang at para 39). Here, however, the officer did not simply mention the basis of the RPD’s adverse credibility findings when setting out the history of proceedings involving the applicant. The officer expressly relied on those negative credibility findings. What’s more, the RPD’s credibility findings were in relation to the applicant’s claims regarding his identity, a matter which was no longer in issue before the PRRA officer. Contrary to the position taken before the RPD, Canadian immigration authorities now accept that the applicant is who he says he is. This means that either the officer extrapolated from the RPD’s credibility findings and applied the result to the matters that were in dispute in the PRRA application, in which case a hearing was required, or the officer relied on an irrelevant matter, which in and of itself would be a reviewable error.
[37]
Turning to the “inconsistencies and contradictions with the evidence submitted,”
the officer does not elaborate on what inconsistencies or contradictions there were between the applicant’s statutory declarations, on the one hand, and the other evidence the applicant had submitted. Those that are mentioned in passing in the reasons – for example, with respect to whether the applicant’s uncle’s shop was destroyed and where his cousin was injured – are peripheral at best. The applicant does not say the shop was not destroyed; he does not say anything about the shop, one way or the other. In the English translation of his statement, the applicant’s cousin says his hand was bandaged after the attack but the photograph depicts someone with a bandage on his lower arm.
[38]
The officer gave various reasons for attributing “little weight”
to the other documentary evidence relied on by the applicant. Even assuming for the sake of argument that these determinations were reasonable, the only way the reasons as a whole make sense is if the officer sought out corroboration for the applicant’s account in his statutory declarations, found that this was lacking (because the potentially corroborative documents were all given little weight), and therefore did not believe what the applicant said about why he deserved protection (cf. Horvath at paras 23-25). Contrary to how the officer couched the language of the decision, this was not simply a determination about the sufficiency of the evidence. The applicant, however, was left unaware of a crucial aspect of the case he had to meet – the officer’s credibility concerns about his own evidence – and he did not have a full and fair chance to respond. This was a breach of the duty of procedural fairness. The officer’s rejection of the PRRA application, therefore, cannot stand.
VI.
CERTIFIED QUESTION
[39]
At the hearing of this application, counsel for the applicant did not propose any questions for certification. Counsel for the respondent proposed the following question: “What standard of review is applicable to judicial review of an officer’s determination of whether a hearing is required under section 167 of the Immigration and Refugee Protection Regulations?”
[40]
Following the hearing, counsel for the respondent wrote to advise the Court that she had proposed the same question for certification in Huang and that Justice Gascon had recently declined to certify it (see Huang at paras 57-59). While my approach here is not the same as that of Justice Gascon in Huang, I reach the same conclusion as my colleague did with respect to the proposed question: it should not be certified because it would not be dispositive of the appeal.
VII.
CONCLUSION
[41]
For these reasons, the application for judicial review is allowed and the matter is remitted for reconsideration by a different PRRA officer. No question of general importance is certified.
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