Date: 20091124
Docket: IMM-2476-09
Citation: 2009 FC 1207
Ottawa, Ontario, November 24, 2009
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
CESAR PEREZ ARIAS
MARIA ANGELICA RODRIGUEZ JEMIO
KAREN VALERIA PEREZ RODRIGUEZ
ERLAN AUGUSTO PEREZ RODRIGUEZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
Mr.
Cesar Perez Arias (the “Principal Applicant”), his wife, Ms. Maria Angelica
Rodriguez Jemio and their children Karen Valeria Perez Rodriguez and Erlan
Augusto Perez Rodriguez (collectively “the Applicants”) seek judicial review of
the decision of Pre-Removal Risk Assessment Officer, P.A. Bassi (the
“Officer”), dated March 30, 2009. In that decision, the Officer rejected the
Applicants’ claim to be found persons in need of protection pursuant to section
97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the
“Act”).
Facts
[2]
The
Applicants are citizens of Bolivia. The Principal Applicant
arrived in Canada in March
2000 and his wife and children arrived in August of the same year.
[3]
The
Applicants sought Convention refugee protection in Canada on the basis
of the Principal Applicant’s political activities, that is active involvement
with the teachers’ union in La Paz. The claim was rejected by a decision made
on June 13, 2003 on the basis that the Immigration and Refugee Protection
Division found that the Principal Applicant’s evidence lacked plausibility and
further, that an objective basis for fear of persecution was lacking. An
application for leave and judicial review was dismissed on October 31, 2003.
[4]
The
Applicants submitted a Pre-Removal Risk Assessment (“PRRA”) application. This
was rejected on January 6, 2005, on the grounds of implausibility and lack of
credibility. The Applicants did not seek leave for judicial review and they
were deported to Bolivia on February 8, 2005. They returned to La Paz.
[5]
According
to the affidavit filed by the Principal Applicant in support of this
application for judicial review, he participated on February 18, 2005 in a
march that had been organized by the teachers’ union. Three days later he went
to inquire about a teaching position. He was reportedly told that there would
be no new teaching positions.
[6]
On
the same day, according to the affidavit filed by the Principal Applicant’s
wife, she was sexually assaulted in her home by agents of the Ministry of the
Interior. The Applicants submit that this attack was a result of the Principal
Applicant’s political activities with the Union.
[7]
The
Applicants did not report the attack to the police because they believed the
perpetrators were agents of the state. Instead, the Applicants fled La Paz on the night
of the attack and went to the town of Huarina. The Principal
Applicant’s wife was examined by a doctor on February 22, 2005. The results of
that examination were recorded in the hospital’s records. A medical certificate
attesting to the contents of the hospital’s records was submitted by the
Applicants in support of their second PRRA application.
[8]
The
Applicants left Bolivia on March 16, 2005 and went to the United
States.
They remained in that country until entering Canada again on
September 29, 2008. During their sojourn in the United States, the Principal
Applicant was employed as a labourer in construction demolition. He suffered
an injury to his hand that required several surgeries. In the affidavit filed
in this proceeding, the Principal Applicant says that his entry into Canada with his
family was delayed because he was undergoing medical treatment in the United
States.
[9]
Upon
returning to Canada, the
Applicants were ineligible to present a claim for refugee protection as a
consequence of the fact that they had previously been deported from this country.
[10]
The
basis of the Applicants’ second PRRA application remained the Principal
Applicant’s political activities with the teachers’ union. They submitted new
evidence consisting of a medical certificate from the hospital where the wife
of the Principal Applicant was examined and notarized statements from a parish
priest in the town of Huarina, from a neighbour of
the Applicants’ family and from the father-in-law of the Principal Applicant.
[11]
As
well, the Applicants submitted a psychosocial assessment that had been carried
out in Toronto upon the
Principal Applicant, his wife and their eldest child. The Principal Applicant
was assessed as having a major depressive disorder. His wife was assessed as
having Post Traumatic Stress Disorder.
[12]
The
Officer, in refusing the PRRA application, found the new evidence to be less
then persuasive and found that the Applicants had not provided sufficient
evidence to show that they would be at risk of harm from any person or group in
Bolivia. The Officer
also found that there was adequate state protection available to the Applicants.
The Officer made his decision upon reviewing the material submitted, as well as
his personal research upon country conditions and without an oral hearing.
[13]
Now,
in this application for judicial review, the Applicants argue that the lack of
an oral hearing gave rise to a breach of procedural fairness. The Applicants
rely upon subsection 113(b) of the Act and section 167 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the “Regulations”) in
making this argument.
[14]
Alternatively,
the Applicants submit that the Officer committed reviewable errors in the
manner in which he weighed the evidence and further erred in his finding that
state protection was available.
Discussion and Disposition
[15]
The first
matter to be addressed is the applicable standard of review, having regard to
the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190. Questions of law
and of procedural fairness are reviewable on the standard of correctness and
questions of fact, mixed fact and law and of the exercise of discretion are
reviewable on the standard of reasonableness.
[16]
The Applicants submit
that the Officer made credibility findings in rejecting their PRRA applications.
Relying on subsection 113(b) of the Act and on section 167 of the Immigration and Refugee
Protection Regulations,
SOR/2002-227 (the “Regulations”), they argue that they were entitled to an oral
hearing when their credibility was engaged.
[17]
The
Minister of Citizenship and Immigration (the “Respondent”) takes the position
that the Applicants had no right to an oral hearing because the Officer
based the decision upon the insufficiency of the evidence, not the credibility
of the Applicants.
[18]
Subsection
113(b) of the Act and section 167 of the Regulations provide as follows:
|
113. Consideration of an application
for protection shall be as follows:
…
(b) a hearing may be held if the
Minister, on the basis of prescribed factors, is of the opinion that a
hearing is required;
…
|
113. Il est disposé de la demande comme
il suit:
…
b) une audience peut être tenue si le
ministre l’estime requis compte tenu des facteurs réglementaires;
…
|
|
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.
|
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.
|
[19]
The
language of subsection 113(b) makes it clear, in my opinion, that the
availability of an oral hearing in the PRRA context lies solely in the
discretion of the Respondent, having regard to the “prescribed factors” that
are identified in section 167 of the Regulations. The fact that those prescribed
factors exist in a given case does not lead to the inevitable conclusion that
an oral hearing must be held. In this regard, I respectfully depart from the
approach taken in the decision of Tekie v. Canada (Minister of
Citizenship and Immigration), 50 Imm. L.R. (3d) 306 (F.C.).
[20]
I am
mindful that the principle of judicial comity must be taken into account when a
judge of the Court purports to depart from a prior decision of the Court. In
this regard, I refer to the decision in Almrei v. Canada (Citizenship and
Immigration)
(2007), 316 F.T.R. 49 at paras. 61 and 62 where Justice Lemieux said the
following about judicial comity:
(3)
The principle of judicial comity
61
The principle of judicial comity is well-recognized by the judiciary in Canada. Applied to decisions rendered by judges of the Federal
Court, the principle is to the effect that a substantially similar decision
rendered by a judge of this Court should be followed in the interest of
advancing certainty in the law. I cite the following cases:
-
Haghighi v. Canada (Minister of Public Safety and Emergency
Preparedness), [2006] F.C.J. No. 470, 2006 FC 372;
-
Benitez v. Canada (Minister of Citizenship and
Immigration) [2006] F.C.j. No. 631, 2006 FC 461;
-
Pfizer Canada Inc. v. Canada (Minister of Health), [2007] F.C.J. No.
596, 2007 FC 446;
- Aventis Pharma Inc. v. Apotex Inc.,
[2005] F.C.J. No. 1559, 2005 FC 1283;
-
Singh v. Canada (Minister Citizenship and Immigration)
[1999] F.C.J. No. 1008;
-
Ahani v. Canada(Minister Citizenship and Immigration),
[1999] F.C.J. No. 1005;
-
Eli Lilly & Co.v. Novopharm Ltd. (1996), 67 C.P.R. (3d) 377;
-
Bell v. Cessma Aircraft Co. (1983) 149 D.L.R. (3d) 509 (B.C.C.A.)
-
Glaxco Group Ltd. et al. v. Minister of National Health and Welfare et al. 64
C.P.R. (3d) 65;
-Steamship Lines Ltd. v.M.N.R., [1966]
Ex. CR 972.
62
There are a number of exceptions to the principle of judicial comity as
expressed above they are:
1. The existence of a different
factual matrix or evidentiary basis between the two cases;
2.
Where the issue to be decided is different;
3. Where the previous condition
failed to consider legislation or binding authorities that would have produced
a different result, i.e., was manifestly wrong; and
4.
The decision it followed would create an injustice.
[21]
In
my opinion, the third exception identified by the Court in Almrei
applies here.
[22]
In Tekie,
Justice Phelan focused on the language of section 167 of the Regulations and
not the language of subsection 113(b) of the Act in concluding that an oral
hearing was required.
[23]
The
language of subsection 113(b), with the words “may” and “of the opinion”
suggests to me the availability of a hearing will always be a matter of
discretion, not a matter of right. The Applicants were not deprived of a right
nor did they suffer from a breach of procedural fairness when they did not have
an oral hearing before the Officer.
[24]
However,
the manner in which the Officer purported to reject the Applicants’ applications
on the basis of insufficiency of evidence is problematic. I agree with the
Applicants’ submission that the Officer in fact made the decision on
credibility grounds but failed to disclose and identify those grounds. In
short, the Officer did not believe the evidence presented by the Applicants but
he did not express that disbelief. The Officer purported to reject the PRRA
applications on one ground, that of insufficient evidence, but in reality, he
rejected the applications on the basis of credibility concerns.
[25]
Surely
this is improper and in my opinion, a breach of the obligation to provide
adequate reasons for the decision. “Adequate reasons” means the “real” reasons
for a decision. In this regard, I refer to the decision in Hilo v. Canada (Minister of Employment
and Immigration),
15 Imm. L.R. (2d) 199 (F.C.A.) where the Federal Court of Appeal said the
credibility findings must be expressed in “clear and unmistakable terms”. In my
opinion, it is open to the Officer to make credibility findings, even on a
paper hearing. However, when an Officer makes a credibility finding he must be
honest, forthright and transparent. The problem here is that the Officer in
fact cloaked the credibility concerns in the language of sufficiency of
evidence. That is a breach of procedural fairness and does not meet the
legal requirements.
[26]
This
breach of procedural fairness is the dispositive issue in this case. Therefore,
it is not necessary to dispose of the other issues that were raised.
[27]
The
application for judicial review is allowed, the decision of the PRRA Officer is
set aside and the matter is remitted to another officer for determination.
[28]
Counsel
were given the opportunity to submit a proposed question for certification by Thursday,
November 26, 2009. Counsel for each party has advised that no question for
certification is proposed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is allowed. There is no question for
certification arising.
“E.
Heneghan”
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