Date: 20041014
Docket: IMM-9593-03
Citation: 2004 FC 1414
BETWEEN:
YAHOS SERGIO AGUILAR ZAMORA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARRINGTON J.
[1] Yahos Sergio Aguilar Zamora is his mother's son, a relationship which has put his standing in Canada in jeopardy. When she boarded the train "bound for glory" - the refugee track to Canada - he accompanied her as her minor child. Her claim for refugee status was denied. As his claim was grafted onto hers, his was also denied.
[2] Things worked out for her. She met a Canadian, married, and now resides here with her minor son. However, Mr. Aguilar Zamora is now too old to be sponsored.
[3] He returned to Venezuela and lived with his father. He became an anti-Chavez activist. Following various incidents, and fearing retribution from the non-governmental, but nevertheless pro-Chavez Bolivarian circle, came back to Canada.
[4] He was not entitled to claim status as a refugee notwithstanding he now alleged a well-founded fear of persecution in his own right. Pursuant to section 101(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 2 ("IRPA"), one can no longer claim refugee status here more than once if the claim has previously been rejected by the Board . Nevertheless, he was entitled to apply to the Minister for a pre-removal risk assessment, pursuant to section 112 and following of the IRPA. In essence, he was entitled at his PRRA "hearing" to invoke facts subsequent to his earlier unsuccessful claim which would substantiate a well-founded fear of persecution as a Convention refugee, or as a person otherwise in need of protection under sections 96 and 97 of the Act.
[5] The Regulations do not entitle him to a hearing in the sense of a face-to-face meeting with his adjudicator. Section 167 of the Immigration and Refugee Protection Regulations, SOR/2002 - 227, states:
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For the purpose of determining whether a hearing is required under paragraph 113(b) of the Act, the factors are the following:
(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;
(b) whether the evidence is central to the decision with respect to the application for protection; and
(c) whether the evidence, if accepted, would justify allowing the application for protection.
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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 :
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) l'importance de ces éléments de preuve pour la prise de la décision relative à la demande de protection;
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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[6] Mr. Aguilar Zamora's request for a hearing was turned down. The Agent went on to dismiss his claim for Canadian protection on the grounds that he lacked a subjective fear of persecution and that there was no objective basis for his claim in that state protection was available in Venezuela.
[7] Mr. Aguilar Zamora asserts three broad bases for his claim for judicial review:
1. There should have been a hearing.
2. The Agent made a patently unreasonable finding of fact which was material to her holding that he lacked subjective fear.
3. The rules of natural justice were not followed in that the Agent relied upon internet material pertaining to conditions in Venezuela which was not in the Board's data bank, and failed to give the applicant an opportunity to respond.
RIGHT TO A HEARING
[8] Mr. Sloan, on behalf of the applicant, submitted that Rule 167, cited above, does not meet the standard set out by Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177. The rule might meet the standard in the case of a failed refugee who has been previously heard by the Agent on basically the same facts alleged in the PRRA application. However, Mr. Aguilar Zamora was never heard.
[9] Neither Singh nor any other case, and I refer specifically to Suresh v. Canada (MCI), [2002] 1 S.C.R. 3, makes an oral hearing an absolute requirement in all situations. The context must be considered. There was nothing to suggest at the outset that there would be a serious issue as to the applicant's credibility. What was unfair in this case is that the Agent created issues pertaining to both the subjective and objective aspects of the fear of persecution and did not give Mr. Aguilar Zamora an opportunity to meet the case she herself created against him. Somewhat Kafkaesque, to say the least.
[10] Suresh had been granted Convention refugee status in Canada. He was later branded a terrorist and ordered deported to Sri Lanka where it was found he would likely face torture based on his Tamil terrorist activities. Nevertheless, the Minister was not required to conduct a full oral hearing or a complete judicial process. However, Mr. Suresh was entitled to be informed of the case he had to meet. The Court stated at paragraphs 122 and 123:
...Furthermore, fundamental justice requires that an opportunity be provided to respond to the case presented to the Minister. While the Minister accepted written submissions from the appellant in this case, in the absence of access to the material she was receiving from her staff and on which she based much of her decision, Suresh and his counsel had no knowledge of which factors they specifically needed to address, nor any chance to correct any factual inaccuracies or mischaracterizations. Fundamental justice requires that written submissions be accepted from the subject of the order after the subject has been provided with an opportunity to examine the material being used against him or her. The Minister must then consider these submissions along with the submissions made by the Minister's staff.
Not only must the refugee be informed of the case to be met, the refugee must also be given an opportunity to challenge the information of the Minister where issues as to its validity arise...
PATENTLY UNREASONABLE FINDING OF FACT
[11] The Minister properly conceded that the Agent made an error in finding that notwithstanding the defining incident which set Mr. Aguilar Zamora on leaving Venezuela, an incident which occurred in December 2002, he continued to live in the same place and continued the same work until the following July. He had in fact sworn that he was in hiding.
[12] The Minister submits that this erroneous finding is not relevant because even if Mr. Aguilar Zamora had a subjective fear of persecution, there is no objective basis for that fear. I cannot agree.
OBJECTIVE FEAR - COUNTRY CONDITIONS
[13] In determining current safety conditions in Venezuela, the PRRA Agent referred to the documents submitted by the applicant and to 15 documents she retrieved from the internet. None of these documents was in the bank of country conditions maintained at the Board's offices, and available to the public. It is not clear which documents were relied upon to justify the Agent's conclusion that Mr. Aguilar Zamora had not discharged the burden of proof against him and that the documentary evidence did not support his contentions.
[14] One might wonder whether the 15 documents cited, and website addresses given, were the only documents consulted. Certainly, some of the documents Mr. Aguilar Zamora submitted prior to the determination did not paint a very rosy picture. If one were to make use of a popular search engine, a search for "Venezuela" turned up 7,830,000 hits and a search for "Venezuela human rights" turned up 1,050,000 hits.
[15] The use of extrinsic evidence in situations such as these was considered by the Court of Appeal in Mancia v. Canada (MCI), [1998] 3 F.C. 461, [1998] F.C.J. No. 565 (Q.L.). Décary J., speaking for the Court, noted that each case had to be decided according to its own circumstances. Fairness did not require a post-claims determination officer, as they were then known, to disclose documents from public sources in relation to general country conditions which were available and accessible at Documentation Centres at the time submissions were made by the applicant. With respect to documents relied upon from public sources in relation to general country conditions which became available and accessible after the filing of the applicant's submissions, fairness required disclosure where they were novel and significant and where they evidenced changes in the general country conditions that may affect the decision. He agreed with MacKay J., in first instance who, in speaking of new documents which were not significant in themselves, said:
They introduce no new information that is not readily available from the other documents listed from published sources available to the public before the application was made.
[16] Décary J. said at paragraph 13:
The reasons of MacKay J. are irreproachable. They are in accord with the general principles applicable whenever the duty of fairness is bound to apply and with the more specific principles applicable to the content of that duty which relates to disclosure of evidence not within the knowledge of the person.
[17] Neither MacKay J., nor the Court of Appeal, addressed the issue of the internet. I cannot believe an applicant can anticipate what documents the officer may retrieve from the internet, some of which may be of doubtful validity, when there are over a million to choose from!
[18] The documents in question were not standard documents such as Human Rights Watch, Amnesty International or country reports issued under governmental authority, but rather the result of specific research on the internet carried out by the PRRA officer. That research, including such documents she may have found were beneficial to Mr. Aguilar Zamora, should have been disclosed and he should have been given an opportunity to respond. It cannot be said with any confidence that the documents were not novel, or significant.
[19] This case should be contrasted with Mittal (Litigation guardian of) v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 727 (Q.L.), a decision of Lutfy J., as he then was. Mittal was about a visa officer's refusal to issue student authorizations to young Indian students wishing to attend school in Canada. The visa officer was not satisfied that the students would return to India. She also addressed the availability of private schooling in India. Lutfy J. said at paragraph 12:
...even if the visa officer had access to such information and she were correct with respect to India's private school system, she should have provided the applicants' family with an opportunity to address her concerns which are based on information not proffered by the applicants.
In fact, such a course of action was suggested in the Guidelines.
[20] The privilege of being educated in Canada cannot compare with the risk of cruel or unusual punishment. To quote Suresh:
Fundamental justice requires that written submissions be accepted from the subject of the order after the subject has been provided with an opportunity to examine the material being used against him or her.
[21] I am concerned with unilateral use of the internet, and raised the point in Manvalpillai v. Canada (MCI), 2003 FC 1297, [2003] F.C.J. No. 1639 (Q.L.). That case was somewhat different in that it was an application for a stay. I said then that such unilateral use raised a serious issue. Of course, in such applications the threshold is fairly low. Today, I am prepared to go further and say that unilateral use is unfair.
[22] Consider the case of Porto Seguro Companhia de Seguros Gerais v. Belcan S.A. (C.A.), [1996] 2 F.C. 751, ("the Beograd"), reversed by the Supreme Court at [1997] 3 S.C.R. 1278. That case dealt with the then well-established rule in admiralty that a judge may sit with nautical assessors who give private advice on issues within their expertise.
[23] Based on precedent, the trial judge refused to hear evidence from an expert which one of the parties intended to call because the testimony would have fallen within the expertise of the assessor. That decision was maintained in appeal, with MacGuigan J.A. dissenting. He was of the view that the rule breached the first principle of natural justice which is that a party be given adequate notice and opportunity to be heard.
[24] The Supreme Court agreed with MacGuigan J.A. MacLachlin J., at paragraphs 29 and 36 said:
...the prohibition on expert evidence violates the principle of natural justice of the right to be heard, audi alteram partem. This principle confers the right on every party to litigation to bring forth evidence on all material points. Trial judges possess a discretion to limit evidence or exclude evidence where its relevance is outweighed by the prejudice it may cause to the trial process. But the principle that every litigant has a right to be heard goes against the exclusion of an entire category of evidence. To say that a litigant cannot call any expert evidence on matters that are at issue in the litigation is to deny the litigant's fundamental right to be heard.
....
...There is no longer any justification for assessors to advise judges on matters of fault without disclosure to, and opportunity for comment by, the parties. Nor is there justification for preventing the parties from calling expert witnesses. The case for reform of the rule on both counts is strong.
[25] By analogy, I equate the internet with the assessor. The PRRA officer was obliged to make disclosure before reaching her decision and was obliged to give Mr. Aguilar Zamora an opportunity to comment.
[26] In the circumstances, I am granting the application for judicial review. The matter is remanded back to be considered by a different PRRA officer. As credibility is clearly in issue, there should be a hearing under section 113 of the Act and section 167 of the Regulations.
[27] Both parties proposed that my reasons be circulated before a formal order be issued so as to give them an opportunity to pose a serious question of general importance, which I might certify to the Court of Appeal. Since the Minister might raise the issue of the internet, and be successful, Mr. Aguilar Zamora might in effect cross-appeal and take the position that I should have held that a minor who never had a hearing unique to him or her on a refugee claim, is automatically entitled, as a matter of right, to have a hearing on a PRRA application. Consequently, I give the parties until October 21, 2004, to pose questions, and until October 26, 2004, to respond to the questions, if any, posed by the other.
"Sean Harrington"
Judge
Ottawa, Ontario
October 14, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9593-03
STYLE OF CAUSE: YAHOS SERGIO AGUILAR ZAMORA
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: OCTOBER 6, 2004
REASONS FOR ORDER : HARRINGTON J.
DATED: OCTOBER 14, 2004
APPEARANCES:
William Sloan FOR APPLICANT
Suzon Létourneau FOR RESPONDENT
SOLICITORS OF RECORD:
William Sloan FOR APPLICANT
Montreal, Quebec
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec
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