Docket: IMM-809-23
Citation: 2024 FC 2029
Ottawa, Ontario, December 13, 2024
PRESENT: Madam Justice Sadrehashemi
BETWEEN: |
KHADIJA JAHAN SUMI WASIF HASSAN TAMANNA NUR SANJANA |
Applicants |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicants are Ms. Khadija Jahan Sumi (“Principal Applicant”
) and her two minor children. The Applicants filed a Pre-Removal Risk Assessment (“PRRA”
) alleging that they were at risk of persecution and serious harm if they returned to Bangladesh. This PRRA was refused in October 2022. The Applicants are challenging the PRRA refusal on judicial review.
[2] The Applicants argue that the Officer dismissed their PRRA without considering key new evidence (“New Evidence”
). The New Evidence is not found in the Certified Tribunal Record (“CTR”
). The Applicants assert that even though this evidence is not in the CTR, it should have been before the Officer because it was submitted by their counsel to Immigration, Refugees and Citizenship Canada (“IRCC”
) by email in February 2022.
[3] I find that the Applicants have failed to establish, on a balance of probabilities, that the New Evidence was successfully filed with the Officer. I do find, however, that the Principal Applicant prepared relevant evidence in a timely way, which she understood counsel had filed with the PRRA office. This file is unusual in that it is clear on the face of the record before me that there are a number of irregularities in the manner in which the file has been handled. In light of the interests at stake, the nature of the New Evidence, and that Ms. Jahan’s evidence demonstrates the New Evidence was prepared and ready for submission in February 2022, I find that the matter must be sent back to be redetermined with the benefit of the New Evidence in order to prevent a further miscarriage of justice.
II. Preliminary Issue: No Respondent’s Memorandum at Leave
[4] Applicants’ counsel argued that their clients had been prejudiced by the Respondent not filing a memorandum at the leave stage. There is no merit to this submission. Applicants’ counsel argued that he only became aware of the Minister’s position when the Respondent’s Further Memorandum of Argument was filed on May 16, 2024. Applicants’ counsel argued that this prejudiced his clients because, at that point, he had already filed his Further Memorandum of Argument and the deadline to file further affidavits from the Applicants had passed.
[5] In accordance with the timelines set out in the Order granting leave, the Minister filed an affidavit that set out the Minister’s efforts to locate the New Evidence on April 18, 2024. The Order granting leave provided that the deadline to provide the Applicants’ further affidavits was April 8, 2024. Accordingly, this deadline had already passed by the time the Minister filed their evidence. The Applicants did not write to the Court seeking leave to file a responding affidavit.
[6] Eventually, on May 31, 2024, five days before the hearing, Applicants’ Counsel sought leave of the Court to file Supplementary Reply Submissions in response to the Respondent’s Further Memorandum. The Court accepted these submissions for filing.
[7] In spite of this, Applicants’ counsel continued to argue at the hearing that the Applicants had been prejudiced by the Respondent not filing a memorandum at the leave stage. Part of the contention, as I understand it, relates to Respondent’s Counsel stating in an email on May 27, 2024 that they would oppose a request from the Applicants to file a further affidavit at this late stage. Recall that at this point, Applicants’ counsel had been aware of the Minister’s unsuccessful efforts to locate the New Evidence in their records for approximately seven weeks, by way of the affidavit of David Rider filed by the Minister.
[8] In my view, the statement by Respondent’s counsel that it would oppose a request is beside the point. The Respondent does not decide whether a request can be made to the Court. If the Applicants wanted to file responding evidence to the Court, it was incumbent on the Applicants’ counsel to ask the Court to do so. They were certainly not barred from making the request. A remedy may have been available. No request was made and therefore there is no basis on which to argue that they suffered a prejudice.
III. Background Facts
[9] The Applicants are citizens of Bangladesh. The Principal Applicant and her husband, who is not an Applicant in this application, came to Canada in 2010. They made a claim for refugee protection alleging to be a target of the Awami League due to the Principal Applicant’s husband’s involvement with the Bangladesh Nationalist Party (“BNP”
). The refugee claim was refused on the basis of credibility. Leave to challenge the decision was denied by this Court. In 2013, the Applicants’ PRRA was also refused. The Applicants returned to Bangladesh in 2014.
[10] The Applicants allege that when they returned, Awami League members continued to harass and target them. Eventually, after years of being extorted for monthly payments, the Principal Applicant’s husband was detained and tortured. Following his release, the threats and attacks continued. The Applicants fled in March 2021 and went to the United States.
[11] In September 2021, the Principal Applicant’s husband returned to Bangladesh because he understood that a member of the Bangladesh Parliament had agreed to assist him in resolving the matter. The Principal Applicant did not believe Bangladesh would be safe and instead went to Canada with her children to claim refugee protection. The Applicants were found ineligible to have their refugee claims heard by the Refugee Protection Division because they had already made a refugee claim in 2010. In January 2022, the Applicants were offered a PRRA.
[12] The Applicants filed the PRRA forms and a narrative on January 20, 2022. Further submissions and evidence were due on February 10, 2022. The Applicants allege that they filed further evidence and submissions on February 13, 2022 by email.
[13] In May 2022 the Officer considered the application but refused it based on insufficient evidence to support the allegations made in the narrative, in light of the previous negative credibility finding by the Refugee Protection Division. This refusal was not issued as a decision to the Applicants at that time.
[14] The CTR includes a July 2022 letter from IRCC addressed to Applicants’ Counsel’s law firm (“July 2022 Notice”
). The July 2022 Notice indicated that, due to COVID-19 and some confusion on their website, they are allowing applicants to file further evidence for a 30-day period, and that the file will be continued to be processed thereafter. There is a letter in the CTR from Applicants’ Counsel’s law firm asking for an extension to file further submissions until September 19, 2022. No further submissions were filed by Applicants’ Counsel. On October 2022, the Officer refused the PRRA application. The refusal consists of the May 2022 notes for refusal and an addendum dated October 2022 explaining that no further submissions were received following the request in the July 2022 Notice for further submissions.
IV. Issues and Standard of Review
[15] The Applicants raise two procedural fairness issues: i) the New Evidence was not before the Officer even though it had been submitted; and ii) the Officer ought to have provided their May 2022 decision in a timely manner. Because these are procedural issues, on review, I need to ask whether the procedure was fair in all the circumstances (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54; Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para 35).
[16] The Applicants also raised arguments going to the merits of the decision. I have found it unnecessary to address these arguments.
V. Analysis
A. Timely Delivery of PRRA Decision
[17] The Applicants argue that, had the Officer issued the PRRA decision in May 2022, they would have known that the New Evidence had not been before the Officer when they were given the opportunity to file further submissions in July 2022.
[18] There are two foundational problems with the Applicants’ argument. First, I do not agree that the May 2022 notes of the Officer constituted a decision. Neither the May 2022 notes, nor the refusal letter, were issued in May 2022. This Court has found that until an applicant is informed of the PRRA decision, an officer is required to assess any updates made to the application. This obligation exists even where the officer has already written the substance of the decision but not issued it (Chudal v Canada (Minister of Citizenship and Immigration), 2005 FC 1073 at paras 18-19; Donarus v Canada (Citizenship and Immigration), 2021 FC 1457 at para 29).
[19] Second, the July 2022 Notice was not a notification of a re-opening of the PRRA application as argued by the Applicants. The term “re-opening”
is not referenced anywhere in the July 2022 Notice. Instead, throughout the notice, there is a reference to resuming processing of the application after the 30-day period. This again supports the view that there had yet to be a decision at that stage.
[20] There are no grounds to find that fairness was breached in these circumstances.
B. New Evidence before the Officer
[21] When an immigration decision is challenged in the Federal Court, the tribunal that made the decision must produce a record containing all documents relevant to the matter that are in its possession or control (Rule 17 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22). This record is the CTR.
[22] The Applicants argue the New Evidence should have been before the Officer because it was sent as an email attachment to IRCC in February 2022. The Minister disputes that the New Evidence was before the Officer and argues that the Applicants have not provided sufficient evidence to displace the presumption that the CTR is the complete record. Where a party wants to argue that a document was before the decision-maker but is not in the CTR, it is their onus to demonstrate this with evidence (Toor v Canada (Citizenship and Immigration), 2019 FC 1143 at para 15).
[23] The Principal Applicant provided an affidavit on judicial review. In it, she explains that the evidence and submissions for the PRRA were compiled in February 2022. She attached to her affidavit: i) a scanned copy of the email to IRCC dated February 13, 2022 from a law student at the Applicants’ counsel’s law firm which states that evidence and submissions for her PRRA are attached; and ii) an electronic copy of the New Evidence. I note that at least two of the affidavits in the New Evidence reference that they were requested to provide this information after speaking to the Principal Applicant over the phone in January 2022.
[24] The Minister has not argued that the New Evidence is not relevant to the Officer’s task. A brief review of the documents establishes that it consists of timely documents that go to the central question before the Officer, namely whether the Applicants face risk under section 96 or section 97 of the Immigration and Refugee Protection Act, SC 2001, C 27 if they are returned to Bangladesh. The New Evidence consists of the following:
- an affidavit from the Principal Applicant, dated February 4, 2022, explaining what has happened to her husband since he returned to Bangladesh in September 2021, information she learned in late January 2022;
- an affidavit from the Principal Applicant’s friend living in Bangladesh, dated September 2021;
- the Principal Applicant’s hospital records from January 2021 issued in January 2022;
- a Dhaka police report regarding January 2021 incident, dated January 16, 2021;
- an affidavit of the manager of the Applicants’ family business in Bangladesh, dated February 2, 2022;
- a letter from the Principal Applicant’s husband’s lawyer in Bangladesh, dated February 1, 2022;
- a news article from the Daily Janakantha, dated January 13, 2022 reporting on the disappearance of the Principal Applicant’s husband since September 2021 and the press conference that was held; and
- a number of documents relating to the proceedings that have now been initiated against the Principal Applicant’s husband in Bangladesh, including a copy of the police deposition, a copy of the First Information Report and the docket of the magistrate’s record, all dated September 2021.
[25] Unsurprisingly, the Principal Applicant’s affidavit does not explain anything about the sending of the email and its attachments to IRCC nor the search of the law office email system to confirm the email was sent. This would not be in her knowledge. The Minister did not cross-examine the Principal Applicant for this very reason. I also do not understand the Minister to dispute that the New Evidence was produced and compiled in February 2022 and that it was believed by the Applicants to have been submitted by their lawyer in support of their PRRA application.
[26] The Minister’s position is that there is not sufficient evidence to demonstrate that New Evidence was successfully sent due to the limited evidence provided by the Applicants about the sending of the email, and the Minister’s search of its records and its standard procedures.
[27] The Applicants failed to provide affidavit evidence from the person who sent the email with the New Evidence as an attachment in February 2022. Nor did they provide evidence from anyone at the law firm with an explanation for why this evidence could not have been provided or of any steps the law office took to search their email systems and records. The Applicants’ counsel argued that the Minister could have asked that a summons be issued to compel the then-law student who is alleged to have sent the email to IRCC to appear and give evidence. There is no merit to this submission. It is the Applicants’ onus to demonstrate that the CTR is not the complete record before the decision-maker – it is not the Minister’s job to seek to compel evidence from current or former staff of a law firm representing the Applicants.
[28] The Minister provided evidence of the unsuccessful search of their email system for the missing email that included the New Evidence as an attachment. The Minister’s evidence also states that when emails are sent to the IRCC email address in question, an automatic email acknowledging receipt is sent back. The Applicants did not provide this acknowledgment of receipt email, explain its absence, or their search for it in their records. The Applicants did not cross-examine the Minister on this evidence.
[29] Ultimately, I am not satisfied that the Applicants have met their onus of showing that, on a balance of probabilities, the New Evidence was before the Officer. There is insufficient evidence to establish that the documents were properly sent to the IRCC and the CTR is incomplete (El Dor v Canada (Citizenship and Immigration), 2015 FC 1406 at para 32).
[30] At one point in the judicial review hearing, Applicants’ counsel acknowledged that it is difficult to know what happened with the filing of the New Evidence, and that one possibility is that it could have been his office’s fault. During the course of this judicial review, I became aware of a number of irregularities in the handling of the judicial review and underlying application apparent on the face of the record that caused me concern.
[31] For example, Applicants’ counsel argued in written submissions, and maintained at the hearing, that his office did not receive the July 2022 Notice from IRCC that provided the Applicants a further 30 days to file submissions. This position was maintained despite there being a letter in the CTR from Applicants’ counsel’s law firm responding to the July 2022 Notice, asking for an extension of time to file submissions. Applicants’ counsel suggested in written materials and orally before the Court that the existence and sending of this extension request letter may have been due to a mix-up with another file. After the hearing, Applicants’ counsel advised in writing that he was withdrawing the argument about there being a mix-up with another file. The assertion that the July 2022 Notice was never received nor responded to by Applicants’ counsel’s office has not been withdrawn.
[32] The Principal Applicant’s affidavit affirms that she was advised by Applicants’ counsel that their office did not receive the July 2022 Notice, and that no request for an extension of time to file submissions was made. While I accept that Ms. Jahan was advised as such by her lawyer, I cannot accept that the July 2022 Notice was not received or that a request for an extension of time was not made by Applicants’ counsel’s office. The evidence of this is in the record. No serious explanation, or even an attempt to investigate this discrepancy of accounts, has been provided.
[33] I further note that despite asking for an extension to file submissions until September 2022, no further submissions were received and the Officer made their final decision in October 2022. It is clear from the evidence in the record before me that the Principal Applicant was never made aware that IRCC had provided a further opportunity to file submissions and evidence in advance of a decision in October 2022.
[34] Further, as I have already explained, despite the onus being on the Applicants to establish that the documents missing from the CTR, the New Evidence, had been sent, Applicants’ counsel chose not to file evidence from their own law firm about the submission of the email beyond the scanned email itself.
[35] Based on the limited evidence before me, and the Minister’s unchallenged evidence, I have found that there is insufficient evidence to establish that the CTR is incomplete. It is clear, however, from the record before me that the Applicants produced relevant evidence in a timely manner, and that they understood their lawyer sent said evidence to the PRRA office.
[36] I observe that these events took place during a period of administrative confusion that caused the Respondent to issue the July 2022 Notice to allow extra time to file submissions. While I cannot determine that this had a direct impact on the successful receipt of the New Evidence, it is another unusual contextual element of this case.
[37] In the totality of these unusual circumstances, I find that the Applicants’ right to be heard has been compromised. The undisputed evidence from the Principal Applicant is that she participated in the compiling of the New Evidence for submission to the Officer in a timely way. It is also undisputed that she understood that the New Evidence would form part of what the Officer would consider in evaluating the risk facing herself and her children in Bangladesh. The New Evidence is directly relevant to the risk assessment task of the Officer. Further, there have been a number of irregularities in the management of this file that are apparent in the record before me, including: i) that the Applicants were not informed of the July 2022 Notice or the request for extension of time filed by their counsel, and ii) that no direct evidence was filed by the law firm itself about the sending of the New Evidence to IRCC.
[38] Given the rights that are at stake in a PRRA, “the performance of a risk assessment before removal is the mechanism by which effect is given to section 7 of the Charter and various international human rights instruments to which Canada is a party”
(Ragupathy v Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 1370 at para 27), I find, in the circumstances in this case, the only solution to prevent a further miscarriage of justice is to have an officer re-consider the Applicants’ risk with the benefit of the New Evidence.
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