Date:
20121129
Docket:
IMM-4599-12
Citation:
2012 FC 1394
Vancouver,
British Columbia, November 29, 2012
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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SAMIR FAWAZ
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
Applicant, a Syrian citizen, seeks judicial review of a Pre-Removal Risk
Assessment [PRRA] decision, wherein he was found not to be a Convention refugee
or a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA]. The Applicant
argues that the PRRA Officer should have held an exceptional oral hearing under
paragraph 113(1) of the IRPA and gave insufficient weight to his father
and brother’s statutory declarations.
II. Judicial Procedure
[2]
This
is an application under subsection 72(1) of the IRPA for judicial review
of a PRRA decision, dated February 9, 2011.
III. Background
[3]
The
Applicant, Mr. Fawaz, was born in Syria in 1956.
[4]
Since
January 30, 1989, the Applicant has resided in Vancouver but has traveled
abroad several times in the intervening years and to Syria more than once.
[5]
On
April 26, 1989, the Applicant made his first claim for refugee protection
[first claim], alleging a well-founded fear of persecution arising from his
involvement with the Muslim Brotherhood [MB] and his Sunni religion.
[6]
In
his first claim, the Applicant alleged that he had been a member of the MB
since 1976, had trained for six months, had contributed financially to the MB,
had been imprisoned and tortured by Syrian authorities in November 1977 at Maza
and in May 1980 at Tadmore, his friend was killed under torture for MB
membership, and Syrian authorities detained and tortured his father and brother
while seeking him in 1989.
[7]
On
August 29, 1990, the Applicant’s first claim was rejected because the
decision-maker did not believe he was a member of the MB or that he had been
imprisoned.
[8]
On
March 1, 1991, the Applicant married a Canadian citizen, who sponsored his
application for permanent residency [first PR application].
[9]
On
January 17, 1992, the first PR application was denied because the
decision-maker deemed the marriage a bad faith marriage.
[10]
Since
December 1992, the Applicant remained in Canada on the basis of renewed work
permits, the last of which expired on July 26, 1998.
[11]
On
May 29, 1998, another application for permanent residence [second PR
application] sponsored by his spouse was denied because the decision-maker
deemed the MB a terrorist organization and the Applicant inadmissible on
security grounds.
[12]
On
appeal to the Immigration Appeal Division [IAD] of the Immigration and Refugee
Board, the Applicant claimed that he was not a member of the MB but only
associated in a period limited to 1976-1977 when he contributed financially to
it.
[13]
On
November 4, 1999, the IAD determined that there were no reasonable and probable
grounds to find that the MB was a terrorist organization, that the Applicant’s
involvement in the MB fell short of membership, and that there were sufficient
humanitarian and compassionate grounds to allow his appeal [IAD Decision].
[14]
On
October 11, 2000, this Court refused the Minister of Citizenship and
Immigration’s application for judicial review of the IAD decision [2000 JR
decision].
[15]
In
the fall of 2002, the Applicant’s marriage collapsed and he used a passport
issued in the name of David McCrae [forged passport] to travel outside Canada.
[16]
On
October 27, 2002, he sought re-entry to Canada with the forged passport.
[17]
On
October 28, 2002, an exclusion order was made against the Applicant but he
could not be removed due to outstanding tax charges against him.
[18]
In
an October 28, 2002 interview with an immigration officer, the Applicant stated
that he was associated with (but not a member of) the MB from 1975 to 1985 or
1986.
[19]
In
this interview, he alleged that the Canadian embassy leaked information about
his refugee claim to the Syrian authorities and that he would be executed if he
were to return.
[20]
The
forged passport had Syrian visas and stamps suggesting that he visited Syria.
[21]
The
Applicant made a third refugee claim but was found ineligible under paragraph
101(1)(b) of the IRPA.
[22]
On
September 12, 2005, the Applicant was convicted and fined $82,537 under
paragraph 327(1)(a) of the Excise Tax Act, RSC, 1985, c E-15 for
making, or participating in, assenting to or acquiescing in the making of,
false or deceptive statements in a return, application, certificate, statement,
document or answer.
[23]
On
March 2, 2010, the Applicant was found guilty of the offense of having in his
possession a forged passport under subsection 57(3) of the Criminal Code,
RSC, 1985, c C-46. He was sentenced to nine months imprisonment with $100 fine.
[24]
The
Applicant alleges that his father and brother were detained by Syrian
authorities in 2001, when they became aware of the 2000 JR decision, and in
2003, when they became aware that he was charged with possessing a forged
passport. In statutory declarations, dated January 31, 2010, the Applicant’s father
and brother stated that the Syrian authorities questioned them on both
occasions regarding the Applicant and his application for refugee protection in
Canada.
[25]
On
February 2, 2010, the Applicant applied for a PRRA.
[26]
On
February 8, 2011, the PRRA Officer dismissed the PRRA application, determining
that the Applicant would not be subject to risk of persecution, torture, risk
to life or risk of cruel and unusual treatment or punishment if returned to
Syria.
IV. Decision under Review
[27]
According
to the PRRA Officer, the Applicant did not demonstrate that he would face more
than a mere possibility of risk of persecution if he was removed to Syria. It
was also unlikely that, should the Applicant be removed to Syria, he would face
a risk to life, a risk of torture, or of cruel and unusual treatment or
punishment.
[28]
The
PRRA Officer found that the determinative issue was the perception of the
Applicant's membership in (or association with) the MB by Syrian authorities.
The PRRA Officer recognized that if the Syrian authorities perceive the
Applicant to be a member of (or associated with) the MB, he may be at serious
risk in Syria.
[29]
The
PRRA Officer accepted that individuals with present, past, or familial
connections to the MB are at risk of harassment, intimidation, arbitrary
imprisonment, torture, and death in Syria and that Syrian authorities were
intolerant of dissent and had committed a range of human rights abuses.
[30]
The
PRRA Officer also considered documentary evidence on the risk of persons who
had applied for refugee protection and/or departed from Syria illegally. While
sources conflicted on whether applying for refugee protection would, in itself,
lead to persecution in Syria, unsuccessful applicants with a particular profile
(for example, membership in the MB) had been tortured on removal to Syria. The
documentary evidence also showed that persons may face prosecution and
imprisonment for illegal departure from Syria but that illegal departure is not
considered a serious crime unless a person is suspected of terrorist activities
or trafficking.
[31]
The
PRRA Officer concluded that there was only a speculative risk that the Syrian
authorities would perceive the Applicant as being associated with the MB or
would consider him an opponent of the regime. On a balance of probabilities,
the evidence did not establish that the Syrian authorities would so perceive
him.
[32]
The
PRRA Officer concluded that the Syrian authorities did not consider the
Applicant to be associated with the MB or an opponent of the regime before
1989. In support, the PRRA Officer cited: (i) previous negative credibility
findings made in the course of his first claim; (ii) his ability to obtain
passport renewals in Syria in light of documentary evidence that members of the
MB would not be able to obtain a passport or renewal in Syria; and, (iii) his
ability and willingness to travel in and out of Syria under his own name.
Adverse credibility findings on the Declarations also suggested that Syrian
authorities did not consider him an associate of the MB before 1989.
[33]
According
to the PRRA Officer, the evidence also did not establish that the Syrian
authorities considered the Applicant associated with the MB or an opponent of
the regime after 1989. The PRRA Officer reasoned that the Applicant did not
provide evidence of media reports showing active engagement in activities in
Canada that might be perceived as opposition to the Syrian government. Nor
could he substantiate his allegation that the Canadian Embassy leaked
information to the Syrian authorities. Moreover, the publicly-available
information on his refugee claims only demonstrated that the Applicant had a
speculative risk because he did not produce evidence of media reports drawing
attention to his case. Given the adverse credibility finding on the Declarations,
the Applicant did not provide persuasive evidence that Syrian authorities had
contacted his family in relation to his citizenship and immigration
proceedings.
[34]
Visits
to Syria after 1989 by the Applicant under the name of David McCrae with the forged
passport were also inconsistent with his alleged fear of being identified and
persecuted by Syrian authorities. Although the Applicant did not travel under
his own name, the PRRA Officer reasoned that “if he were caught in Syria using
a false passport and thought to be a member of the Muslim Brotherhood, the
consequences surely would have been severe. Nevertheless, [the Applicant]
thought any risk was far outweighed by whatever rewards he sought over the
course of multiple trips” (PRRA Decision at p 25).
[35]
According
to the PRRA Officer, an oral hearing was not required because the determinative
issue was the Syrian authorities’ perception of the Applicant. The Applicant
did not and could not have had knowledge of this issue but could only speculate
on it. Thus, there was no need to test his credibility in oral proceedings.
[36]
The
PRRA Officer found that the Applicant's general credibility was impugned
because: (i) he had alleged, in his first claim, that five family members
were imprisoned or murdered but did not repeat this allegation in subsequent
statements; (ii) his claim that his father was arrested and tortured for three
days was unsupported; (iii) other decision-makers also made negative
credibility findings in rejecting his applications for refugee protection and
permanent residence; (iv) he had procured and used a forged passport; (v) he
had been convicted of making, or participating in, assenting to or acquiescing
in the making of false or deceptive statements under the ETA; (vi) he gave
inconsistent accounts of the level and duration of his involvement with the MB
in his statements before various decision-makers; and, (vii) the Declarations
did not discuss the incidents that the Applicant alleged occurred in 1989.
[37]
The
PRRA Officer also did not consider the Declarations credible and probative
evidence of the Applicant's alleged association with the MB. The PRRA Officer
reasoned that the Declarations did not address questioning by Syrian
authorities on the Applicant's association with the MB and did not support his
allegation that they suspected him of membership. The credibility of the
Declarations was also suspect because neither included an Arabic original, a
certified translation, or copies of passports to confirm authorship and
because it was impossible to identify the name of the Jordanian notary who
signed the Declarations. The arrest of the Applicant described in the
Declarations, moreover, had been subject to an adverse credibility finding in
his first claim. Finally, the Applicant’s history of preparing fraudulent
documents supported the conclusion that the Declarations were not genuine.
[38]
The
PRRA Officer found that the Applicant's actual level of membership or
association with the MB was “probably impossible to determine” because the
Applicant had “misrepresented his level of membership when it served his
purpose” (PRRA Decision at p 23).
V. Issues
[39]
(1)
Did the PRRA Officer err in finding that an oral hearing was not necessary?
(2)
Did the PRRA Officer err in finding that the Declarations were not credible and
to accord them little weight?
VI. Relevant Legislative
Provisions
[40]
The
following legislative provisions of the IRPA are relevant:
Consideration
of application
113. Consideration of an
application for protection shall be as follows:
(a) an applicant whose
claim to 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;
(b) a hearing may be
held if the Minister, on the basis of prescribed factors, is of the opinion
that a hearing is required;
(c) in the case of an
applicant not described in subsection 112(3), consideration shall be on the
basis of sections 96 to 98;
(d) in the case of an
applicant described in subsection 112(3), consideration shall be on the basis
of the factors set out in section 97 and
(i) in the case of an applicant
for protection who is inadmissible on grounds of serious criminality, whether
they are a danger to the public in Canada, or
(ii) in the case of any other
applicant, whether the application should be refused because of the nature
and severity of acts committed by the applicant or because of the danger that
the applicant constitutes to the security of Canada.
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Examen
de la demande
113. Il est disposé de
la demande comme il suit :
a) le demandeur d’asile débouté
ne peut présenter que des éléments de preuve survenus depuis le rejet ou qui
n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il
n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les
ait présentés au moment du rejet;
b) une audience peut être tenue
si le ministre l’estime requis compte tenu des facteurs réglementaires;
c) s’agissant du demandeur non
visé au paragraphe 112(3), sur la base des articles 96 à 98;
d) s’agissant du demandeur visé
au paragraphe 112(3), sur la base des éléments mentionnés à l’article 97 et,
d’autre part :
(i) soit du fait que le
demandeur interdit de territoire pour grande criminalité constitue un danger
pour le public au Canada,
(ii) soit, dans le cas de tout
autre demandeur, du fait que la demande devrait être rejetée en raison de la
nature et de la gravité de ses actes passés ou du danger qu’il constitue pour
la sécurité du Canada.
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[41]
The
following provisions of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [Regulations] are relevant:
Hearing
— prescribed factors
167. 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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Facteurs
pour la tenue d’une audience
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 :
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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VII. Position of the Parties
[42]
The
Applicant submits that the PRRA Officer's decision to not hold a hearing under
section 113 of the IRPA is reviewable on a correctness standard. Adverse
credibility findings in the absence of an oral hearing, the Applicant argues,
violate procedural fairness. The Applicant cites Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 for the
proposition that questions of procedural fairness are reviewable on this
standard.
[43]
According
to the Applicant, the following prescribed factors under section 167 of the Regulations
required the PRRA Officer to hold an oral hearing under section 113 of the IRPA:
(i) there was evidence raising a serious issue of his credibility related
to the factors set out in sections 96 and 97 of the IRPA; (ii) the
evidence was central to the decision with respect to the application for
refugee protection; and, (iii) the evidence, if accepted, would justify
allowing the application for refugee protection.
[44]
The
Applicant argues that the PRRA Officer's adverse credibility finding impacted
the assessment of how the Syrian authorities perceived his association with the
MB. This, the Applicant infers, undermines the PRRA Officer's reasoning that an
oral hearing was not necessary since the Syrian perception of his association
with the MB (and not the credibility of his alleged association itself) was
determinative.
[45]
The
Applicant observes that the PRRA Officer assessed the credibility of his alleged
involvement with the MB even though the PRRA Officer had stated that this
assessment was not necessary to dispose of his PRRA application. Citing
Liban v Canada (Minister of Citizenship and Immigration), 2008 FC 1252, the
Applicant submits that an oral hearing was required because the PRRA Officer
emphasized the credibility findings of another decision-maker. The Applicant
also takes the position that the PRRA Officer did not accept the Applicant's
evidence that the Canadian Embassy divulged information to Syrian authorities,
that there were media reports bringing the Applicant to the attention of the
Syrian authorities, or that the Declarations were genuine because the PRRA
Officer found that the Applicant lacked credibility. Citing Liban, Wilson
v Canada (Minister of Citizenship and Immigration), 2011 FC 1044, and Zokai
v Canada (Minister of Citizenship and Immigration), 2005 FC 1103, the
Applicant contends that the PRRA Officer's finding that the Applicant failed to
support his allegations with corroborating objective evidence (for example,
media reports showing that the attention of the Syrian authorities had been
drawn to his case) amounts to a negative credibility finding.
[46]
The
Applicant argues that the adverse credibility findings engage paragraph 167(b)
of the Regulations as these findings were central to the disposition of
the PRRA application. According to the Applicant, concluding that the Syrian
authorities were not aware of him and did not consider him to be an opponent of
the regime would not have been possible if the PRRA Officer had not made an
adverse credibility finding.
[47]
Finally,
the Applicant contends that paragraph 267(c) of the Regulations
applies because the PRRA Officer would have allowed the PRRA application had he
accepted the Applicant's allegations. In support, the Applicant points to
several documentary sources reviewed by the PRRA Officer showing human rights
abuses committed by Syrian authorities against persons associated with the MB
and against unsuccessful claimants for refugee protection suspected of
associating with the MB.
[48]
The
Applicant also challenges the PRRA Officer's adverse credibility findings on
the Declarations. The Applicant submits that the PRRA Officer did not bring
these concerns to his attention and did not provide him with an opportunity to
respond. Citing Olorunshola v Canada (Minister of Citizenship and
Immigration), 2007 FC 1056, 318 FTR 142 and Nabin v Canada (Minister of
Citizenship and Immigration), 2008 FC 200, the Applicant argues that
decision-makers should raise concerns on the veracity of documents with an
applicant before making an adverse credibility finding.
[49]
The
Respondent argues that the PRRA application did not turn on the Applicant's
credibility but rather on whether he could provide sufficient evidence to show
that he was of current interest to the Syrian authorities. The Respondent
argues that the PRAA Officer did not make any finding on the Applicant's
personal credibility in his testimony in the PRRA application.
[50]
In
light of this, the Respondent reasons that an oral hearing was not required
under section 113 of the IRPA because the factors in section 167 of the Regulations
are not engaged. Citing Adetunji v Canada (Minister of Citizenship and
Immigration), 2012 FC 708, the Respondent argues that an oral hearing
should be held only if the PRRA decision is premised on an applicant's personal
credibility, as opposed to a finding that the applicant's evidence is
insufficient to establish on a balance of probabilities that the Applicant is a
Convention refugee or a person in need of protection. Since the present case
involves the latter situation and not the former, an oral hearing was not
required.
[51]
The
Respondent submits that the PRRA Officer's decision cannot be construed as an
adverse credibility finding. According to the Respondent, any testimony that
the Applicant could offer on the perception of Syrian authorities would be
speculative and not probative of the determinative issue, whether or not the
Applicant was considered credible. As a result, the Respondent submits that the
Applicant’s argument that the PRRA Officer would have allowed the PRRA
application had he accepted the Applicant’s allegations and evidence is not
cogent. The Respondent distinguishes Liban, Wilson and Zokai,
above, on the basis that they involved the credibility of personal testimony;
by contrast, the Applicant’s evidence only speculates on the perception of the
Syrian authorities and is unsupported by sufficiently probative evidence.
[52]
Finally,
the Respondent cites Sayed v Canada (Minister of Citizenship and
Immigration), 2010 FC 796 for the proposition that the PRRA Officer was
entitled to rely on adverse credibility findings by other decision-makers and
that PRRA Officers are only required to hold an oral hearing if an applicant
adduces further evidence and testimony.
[53]
The
Respondent also argues that the PRAA Officer was entitled to give little weight
to the Declarations because they were self-serving and essentially restated
allegations already subject to adverse credibility findings by other
decision-makers. The Respondent argues that the PRRA Officer was not required
to provide the Applicant with an opportunity to make submissions on the
veracity of the Declarations. Citing Adetunji, above, and Augusto v Canada (Solicitor General), 2005 FC 673, the Respondent claims that
this duty arises only if a decision-maker’s assessment of a document is based
on extrinsic evidence.
[54]
Moreover,
the Respondent argues that the PRRA Officer was reasonable in giving the
Declarations little weight due to their technical defects and limited probative
value. The Respondent submits that the Declarations do not discuss questioning
by the Syrian authorities showing they suspected the Applicant of association
with the MB.
[55]
In
his Reply, the Applicant argues that Liban, Wilson and Zokai,
above, are not distinguishable because they also involve situations where a
decision-maker found that an applicant had not produced sufficient evidence. In
those cases, this Court held that requiring corroborative evidence was
tantamount to an adverse credibility finding. The Applicant asks this Court to
draw a similar inference in the present case. The Applicant also argues that
the Respondent’s characterization of his evidence as speculative is inaccurate because
the Declarations did not speculate on the detention and questioning of the
Applicant’s father and brother by Syrian authorities.
VIII. Analysis
Standard of Review
[56]
The
grounds for judicial review alleged by the Applicant are both questions of
procedural fairness reviewable on a standard of correctness. The question of
whether the Applicant should have received an oral hearing is a question of
procedural fairness that must be answered with regard to the requirements of
the IRPA and the Regulations (Ahmad v Canada (Minister
of Citizenship and Immigration), 2012 FC 89). The Applicant objects to the
PRRA Officer’s finding on the Declarations on the basis that the PRRA Officer
had a duty to give him an opportunity to respond; this ground is also a question
of procedural fairness (Li v Canada (Minister of Citizenship and
Immigration), 2012 FC 1099).
(1) Did the
PRRA Officer err in finding that an oral hearing was not necessary?
[57]
The
first factor under section 167 of the Regulations asks if there is
evidence that raises a serious issue of the Applicant’s credibility that is
related to the factors set out in sections 96 and 97 of the IRPA.
[58]
The
Applicant alleges that he has a risk of persecution under section 96 and that
he is a person in need of protection under section 97 of the IRPA because
there is evidence that Syrian authorities would perceive him to be a member of
(or associated with) the MB. The Applicant is correct that the PRRA Officer’s
decision that the Applicant had not produced sufficient corroborating evidence
(of the perception of him by Syrian authorities, of the alleged leak by the
Canadian Embassy, and of media reports suggesting that his immigration
proceedings had been brought to the attention of Syrian authorities), is an
implicit adverse credibility finding. Although this Court accepted in Strachn
v Canada (Minister of Citizenship and Immigration), 2012 FC 984 that there
is a distinction “between an adverse credibility finding and a finding of
insufficient evidence”, it also accepted that a PRRA officer may “have
improperly framed true credibility findings as findings regarding sufficiency
of evidence”; in such a situation, an oral hearing under section 113 of the IRPA
may be required (at para 34). In the present case, the PRRA Officer considered
the Applicant’s evidence to be insufficient because it did not consider the
Applicant to be credible.
[59]
The
PRRA Officer’s adverse credibility decision on the Declarations also raises a
serious issue of the Applicant’s credibility that is related to the factors set
out in sections 96 and 97 of the IRPA. The PRRA Officer’s conclusion
that the Declarations were not genuine was partly premised on the Applicant’s
history of preparing fraudulent documents and on previous adverse credibility
findings of other decision-makers on some of the factual allegations in the
Declarations. Since the adverse credibility finding on the Declarations was
premised on the Applicant’s own credibility, it also engages the first factor
under section 167 of the Regulations.
[60]
Adetunji,
above, is distinguishable because, in the prsent case, the PRRA decision was
premised on the Applicant’s personal credibility and not on the sufficiency of
evidence. Although it is true that the central issue was the perception of the
Syrian authorities, the PRRA Officer gauged that perception with reference to
the Applicant’s personal credibility on incidents that would give rise to that
perception.
[61]
The
second factor of section 167 of the Regulations asks if the evidence is
central to the decision with respect to the application for protection.
[62]
It
is questionable whether the Declarations are central to the decision because,
as the PRRA Officer found, they do not state that Syrian authorities actually
questioned the Applicant’s brother and father in 2001 and 2002 regarding his
involvement with the MB (Applicant’s Record at pp 64 - 69). This suggests that
the Declarations do not lead inexorably to the conclusion that the Syrian
authorities were interested in him because they suspected that he was a member
of the MB. If they had been found credible, the Declarations would only have
shown that the Syrian authorities were aware of the Applicant’s immigration
proceedings and conviction for passport fraud. Nonetheless, the Declarations,
if accepted, would show that the Syrian authorities were aware of a legal
history in which the Applicant gave varying accounts on his membership in (or
association with) the MB. As a result, they are central to the question of
whether Syrian authorities might have perceived him to be a member of the MB.
[63]
The
Applicant’s submissions on the Syrian perception of him, the leaking of
information by the Canadian Embassy, and the awareness of Syrian authorities of
his immigration proceedings were, however, central to the question of how the
Syrian authorities perceived him.
[64]
The
third factor under section 167 of the IRPA asks if the evidence, if
accepted, would justify allowing the application for protection. On this
ground, the Applicant fails.
[65]
Even
if the PRRA Officer had accepted the Applicant’s allegations, this Court is not
convinced that the PRRA application would have been decided in his favour.
There were several factors that led against concluding that Syrian authorities
perceived the Applicant to be a member of (or associated with) the MB. These
include the Applicant’s return to Syria under the name of David McCrae and previous adverse credibility findings by other decision-makers. The former
suggests that, even though the Applicant did not travel to Syria under his own
name, he did not believe that the Syrian authorities considered him a member of
(or associated with) the MB. The latter suggests that, even if the Syrian
authorities were aware of the Applicant’s immigration proceedings, they had no
reason to believe that the Applicant was a member of the MB. Indeed, the
adverse credibility findings in the first claim and the IAD’s finding that the
Applicant was not a member of the MB would lead the Syrian authorities to
believe he was not a member of (or associated with) the MB. Under Sayed,
above, the Applicant was entitled to rely on the adverse credibility findings
of the other decision-makers.
[66]
In
asking if the Declarations, if accepted, would justify allowing the application
for protection, one must observe that the PRRA Officer must read the
Declarations in light of factors that would not justify allowing the
application for protection. In light of the adverse credibility findings of
other decision-makers, it is unlikely that the Declarations would suggest that
the Syrian authorities were interested in the Applicant because they perceived
him to be a member of (or associated with) the MB. The adverse credibility
findings suggest that, even if they were aware of the Applicant’s legal
history, that legal history could not lead them to perceive he was a member of
(or associated with) the MB.
[67]
Finally,
even if the technical requirements of section 167 of the Regulations
were met, ordering an oral hearing under section 113 of the IRPA would
prove a futile remedy and should not be granted in these particular and
exceptional circumstances. In Mobil Oil Canada Ltd v Canada-Newfoundland
Offshore Petroleum Board, [1994] 1 S.C.R. 202, Justice Frank Iacobucci held
that it may be justifiable to disregard a breach of procedural fairness “‘where
the demerits of the claim are such that it would in any case be hopeless’” (at
para 53, citing Professor Wade, Administrative Law 6th ed (Oxford: Clarendon
Press, 1988).
[68]
In
these particular and exceptional circumstances, this Court observes, in
obiter, that the record is replete with many credibility problems arising
from the Applicant’s forged passport, previous adverse credibility findings,
and inconsistencies in previous representations of the Applicant. These
problems occur to such an extent that it is extremely unlikely that the PRRA
Officer would have come to an opposite conclusion on the Applicant’s
credibility and Declarations, even if an oral hearing under section 113 of the IRPA
did take place.
(2) Did the PRRA Officer err
in finding that the Declarations were not credible and to accord them little
weight?
[69]
The
PRRA Officer did not err in finding that the Declarations were not credible.
The PRRA Officer would have been required to raise concerns about the veracity
of the document had he relied on extrinsic evidence (Adetunji, above, at
para 37). The PRRA Officer did not rely on extrinsic evidence in rejecting the
authenticity of the documents. Rather, he found that they were not genuine on
the basis of previous credibility findings, the Applicant’s history of
preparing fraudulent documents, and technical defects appearing on the face of
the Declarations themselves.
[70]
Olorunshola,
above, is distinguishable because the decision-maker provided no justification
for his negative credibility findings on the documents. Nabin, above, is
distinguishable because the decision-maker in that case was concerned with the
adequacy or completeness of the information and what conclusions should be
drawn.
IX. Conclusion
[71]
For
all of the above reasons, the Applicant’s application for judicial review is
dismissed.
JUDGMENT
THIS
COURT ORDERS that the Applicant’s application for
judicial review be dismissed. No question of general importance for
certification.
“Michel M.J. Shore”