Date: 20110708
Dockets: IMM-6403-10
IMM-6404-10
Citation: 2011 FC 845
Ottawa, Ontario, July 8,
2011
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
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DOREEN KINOBE
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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, Doreen Kinobe, is a citizen of Uganda. She is
seeking judicial review of two decisions issued on September 17, 2010
by the same Immigration Officer (the Officer). IMM-6403-10 is a challenge to
the refusal to grant her application for permanent residence in Canada based on
humanitarian and compassionate grounds (the H&C application) while
IMM-6404-10 concerns a negative Pre-Removal Risk Assessment (PRRA) decision.
The H&C application was primarily based on the same risk of return to Uganda as expressed
in her PRRA application.
[2]
The
applicant came to this country in July 2002. The heart of her claim centers on
a forced marriage with Byenkya Harrison (Harrison) a former resident of their
home village whom she met in December 2000 but resisted the arranged marriage
because she was already engaged. She claims that in January 2002, Harrison kidnapped
her, forced her to live with him over a five month period during which he
constantly abused and raped her.
[3]
Shortly
after being here, she made a refugee claim which the Refugee Protection
Division refused on January 17, 2005 for two reasons. First, it found
her testimony not credible because her responses to questions of
clarification were “often vague, hesitant and evasive”. These responses,
according to the RPD, were “not plausible or reasonable, but rather contrived
and lacking in persuasiveness.” Second, the RPD concluded the applicant’s claim
for refugee status lacked an objective basis finding it implausible she would
have been forced to submit to a forced marriage with Harrison in whom she had
no interest as a prospective husband as she already had a fiancé. Moreover, she
was a well-educated young woman who had recently found employment with a real
estate firm in Kampala. Preferring the documentary evidence, the RPD
concluded she did not belong to any community in Uganda which
practiced forced marriages. Leave to appeal was denied by a Judge of this
Court on June 14, 2005.
[4]
In
order to overcome the findings of the RPD, the applicant, through her counsel,
John Howorun,
submitted on March 11, 2010 new evidence in support oh her PRRA application
which consisted of:
a.
A
Police Crime Diary Extract from the Ugandan Police (the Police Extract). That
extract showed the applicant reported to the police the kidnapping and
assaults; that she was forced to enter into a common-law marriage with Harrison.
The police advised her, because her complaint concerned domestic issues, she
needed a letter of consent from the Local Council.
b.
A
copy of her marriage certificate to Harrison dated June 4, 2003 to
prove her forced marriage. This document had previously been submitted to the
PRRA officer.
c.
A
letter from the applicant’s aunt which states she had been threatened by Harrison
as he had paid “bride price” for his marriage to the applicant. The aunt asked
her to return to Uganda.
d.
A
death certificate dated December 15, 2009 indicating her aunt had died through
poisoning.
e.
A
December 21, 2009 document from the Local Council indicating that it was
investigating the blocking of an attempt by the aunt’s daughter to report the
poisoning.
[5]
In
April 2010,
the Officer sent the Police Extract, the marriage certificate and other documents
to the Canadian Embassy in Kampala for verification. In
June 2010, an official at the Embassy advised the Officer the Police
Extract (or police report) and the marriage certificate were both fraudulent.
[6]
I
set out below the substance of the e-mail which the Officer received:
As I suspected, the police report is
fraudulent.
Police reports in Uganda are hand written not typed.
Police stamp is forged. The stationery used is different from that used by
police in taking statements from complainants The style of statement
writing is wrong. Zana police post is called Kikumbi Police Post (as you
will see the scanned stamp on the letter from the police in response to our
verification request) not The Division Police Zana as stated in the forged
stamp. Original letter will be mailed to you tomorrow.
The Registrar of Marriages in Kampala confirms that they do not
have representation in Masindi and therefore there is no registrar of
marriages in Masindi.
With the above verifications so far, can
we consider the job completed on this case and not go after verification of the
death certificate and other docs issued in Masindi?
[7]
The
reference in the e-mail to the “letter from the police in Uganda in response
to our verification request was an attachment to the e-mail. It is handwritten
and dated April 25, 2011. It states the Police Crime Diary Extract dated
05/02/2002 is a forgery (See pg 309 of the CTR).
[8]
After
the receipt of the e-mail, the Officer decided to hold a credibility hearing
pursuant to section 167 of the Immigration and Refugee Protection
Regulations (IRPR) “for the purposes for this application and the
applicant’s application for permanent residence with regards to these
fraudulent documents.”
[9]
A
credibility hearing to decide a PRRA application is extremely rare and counsel
for both parties recognize this fact. Paragraph 113(b) of the Immigration
and Refugee Protection Act (IRPA) provides that “a hearing may be held if
the Minister, on the basis of prescribed factors, is of the opinion a hearing
is required.”
[10]
The
prescribed factors for the purpose of determining whether a hearing is required
are set out in section 167 of the IRPR which reads:
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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.
[Emphasis added]
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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.
[Notre soulignement]
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[11]
Section
168 spells out the provisions which a hearing under section 167 is subject to.
It reads:
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168. A
hearing is subject to the following provisions:
(a) notice shall be provided to the applicant of the
time and place of the hearing and the issues of fact that will be
raised at the hearing;
(b) the hearing is restricted to matters relating to
the issues of fact stated in the notice, unless the officer conducting
the hearing considers that other issues of fact have been raised by
statements made by the applicant during the hearing;
(c) the applicant must respond to the questions
posed by the officer and may be assisted for that purpose, at their own
expense, by a barrister or solicitor or other counsel; and
(d) any evidence of a person other than the
applicant must be in writing and the officer may question the person for the
purpose of verifying the evidence provided.
[Emphasis added]
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168. Si une audience est requise, les règles suivantes
s’appliquent :
a) un avis qui indique les date, heure
et lieu de l’audience et mentionne les questions de fait qui y seront
soulevées est envoyé au demandeur;
b) l’audience ne porte que sur les
points relatifs aux questions de fait mentionnées dans l’avis, à moins que
l’agent qui tient l’audience n’estime que les déclarations du demandeur
faites à l’audience soulèvent d’autres questions de fait;
c) le demandeur doit répondre aux
questions posées par l’agent et peut, à cette fin, être assisté, à ses frais,
par un avocat ou un autre conseil;
d) la déposition d’un tiers doit être
produite par écrit et l’agent peut interroger ce dernier pour vérifier
l’information fournie.
[Notre
soulignement]
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II. The
Credibility Hearing and Follow up
[12]
The
Officer held the credibility hearing on July 26, 2010 in the presence of
the applicant and her counsel. It is conceded by the respondent that the
Officer did not disclose prior to the hearing the fact she had received
a report from the Canadian Embassy in Uganda stating the Police
Extract and the marriage certificate were fraudulent. That information was
disclosed to them after the Officer had asked the applicant whether the
documents she had supplied in support of her PRRA application were bona fide
to which question the applicant answered “yes”. She also told the Officer that
the documents had been sent by her aunt in Uganda through
other family members and thought they were genuine. At the hearing, the
applicant also asserted the fraudulent documents were a plot to compel her
return to Uganda.
[13]
At
the credibility hearing, the applicant provided a copy of a newspaper dated April
9, 2010 from Kampala called the “Daily Paper” in which appeared an article
in the Officer’s words in her decision “regarding Harrison and the
disappearance of two women who have been in conflict with this man. The
article also makes reference to a woman identified as his wife whom Mr. Byenkya Harrison
kidnapped and forced into marriage and who later fled the country.”
[14]
Counsel
for the applicant asked the Officer for an opportunity to make written
submissions. The Officer stated in her affidavit in support of the
respondent’s position that she “gave the applicant and Mr. Howorun two weeks to
respond to my concerns and to submit any additional documentation if they so
wished.”
[15]
In
her affidavit, the Officer stated she read out loud the contents of the e-mail
from the Canadian Embassy to the applicant and her Counsel. She also deposed
as follows:
3. With respect to the allegations that
I declined to give the “report” to Mr. Howorun, I note that I never told the
Applicant and her counsel that there was an actual report. Neither the
Applicant nor her counsel asked me for a copy of the email. After I explained
to them why the police report and marriage certificate were fraudulent, they
moved on to present other documentary evidence. There is no record of a request
to see the email in my notes. It is my practice to note such a request in my
notes.
[16]
Mr.
Howorun took up that opportunity by making written submissions on the Daily Paper
as well as other points.
[17]
He
identified the author of the article in the Daily Paper and its editor. He
provided the Officer with a number of e-mails exchanged between himself and the
editor whose name is Mukasa Mack with his e-mail address at yahoo.com.
[18]
What
the e-mails and documents attached to those e-mails show is the following:
a.
The
person referred to as Harrison’s wife in the article in the Daily Paper dated
April 9, 2010 who later fled Uganda is a reference to the applicant.
The editor says this information was confirmed by the author of the article who
obtained the information from a local police station and the information was
verified later by one of the relatives. Mr. Howorun submitted to the Officer
the e-mail confirmed what the applicant had told the RPD in 2002. (Tribunal
Record (TR) p 103)
b.
A
further e-mail dated August 16, 2010 confirms that Harrison paid a
“bride price” for the applicant (TR p 105).
c.
A
further e-mail dated August 16, 2010 attaches a Medical Examination
Report and a letter of Acceptance to get Married and confirmation of the
marriage ceremony. The acceptance letter document lists the names of the
persons attending the ceremony at which the applicant was not present,
since it took place on May 15, 2003 when the applicant was in Canada. The
editor’s e-mail explains the police found the applicant’s file “with only the
medical report which she as supposed to use had the police case been filed” (TR
p 109).
[19]
In
his submissions, Mr. Howorun also stated the e-mails also showed that Harrison is now with
the Kibooka Squad “which apparently acts as an auxiliary force to the
recognized National Police Force in disbursing riots.
III. The Issues
[20]
The
applicant’s counsel raises one sole issue. The Officer breached the principles
of natural justice or procedural fairness, first by not complying with the
notice requirement in paragraph 168(a) of the IRPR which state that notice of
the credibility hearing shall be provided to the applicant including “the
issues of fact that will be raised at the hearing”. Counsel for the
applicant further argues the Officer breached natural justice by conducting on
internet search to determine whether the Daily Paper was a newspaper actually
published in Uganda as well as
reaching conclusions about the nature of the editor’s e-mail account. The
Officer’s findings on these two issues were:
Of the 15 newspapers identified, the Daily
Paper was not among them. Given the propensity for the availability of
fraudulent documents in Uganda, it is not unlikely that this
article was placed in the newspaper in an effort to assist the applicant with
her application.
The emails provided also originate with an account by yahoo.com and as such, no
country of origin can be provided. I note that given the nature of “yahoo”,
the account could be created by anyone and therefore its origin is uncertain.
I find the information provided in the emails to be of limited value and assign
it low weight in support of the applicant’s stated risk or as evidence to
disavow the tendering of fraudulent documents. [Emphasis added]
[21]
At
the hearing before this Court, counsel for the respondent conceded the Officer
breached the notice provisions of paragraph 168(a) of the IRPR but argued the
breach was cured by the Officer giving the applicant an opportunity to respond
to her concerns. He further argued the breach did not matter because Mr.
Howorun, in his submissions, did not challenge the finding the two documents
were in fact fraudulent (See AR p 80). Mr. Howorun had written “Even though
the documents have been proven to be fraudulent, Ms. Kinobe continues to maintain
the information contained in the police report is true”.
[22]
Counsel
for the applicant submits the Officer also breached procedural fairness when
dealing with the H&C application. At page 324 of the Tribunal Record there
is a letter entitled “withdrawal of sponsorship”. It was received on June 5,
2008. It is signed by the sender and states he and Doreen Kinobe are separated
and that the applicant, his ex-wife, “only got married to me for landed papers
as I discovered later on.”
[23]
Counsel
for the respondent acknowledges “the poison pen letter” was never disclosed to
the applicant and seeks to distinguish the applicant’s jurisprudence by
referring to the Officer’s affidavit which states that she never relied
on that letter in rendering her H&C decision. I note from the Officer’s
decision under review in the H&C file she indicates the applicant had first
made an application for permanent residence based on H&C grounds (not
sponsored) with risk on October 13, 2005, which she considered was the
outstanding application she had to deal with, and noted the applicant had made
a sponsored application on March 23, 2007 which was subsequently refused
on September 24, 2008 after sponsorship has been withdrawn.
[24]
The
Tribunal Record also shows at page 155 that on October 7, 2008 the
applicant made another application for permanent residence in Canada on H&C
grounds but without sponsorship.
IV. Analysis
The Standard of Review
[25]
The
standard of review depends on the questions to be decided by the Court. It is
settled law that the question of a breach of procedural fairness does not
engage a standard of review analysis. The Court simply reviews the record to
determine if there was a breach and if so, what is the appropriate remedy, if
any.
V. Conclusion
[26]
For
the following reasons, these two judicial review applications must be allowed
and the Officer’s PRRA and H&C decisions must be quashed. As noted, the
H&C decision is essentially based on the risk of return to Uganda.
[27]
It
is not disputed the Officer embarked upon an inquiry to determine the quality
of the evidence the applicant and her counsel submitted after the credibility
hearing. Based on her search she concluded the Daily Paper did not exist and
the e-mails exchanged between Mr. Mack and the applicant’s counsel and the
information they contained were of little or no value because Mr. Mack had an
e-mail address at yahoo.com. The Officer did not disclose to the applicant and
her counsel the evidence she had uncovered nor asked them to comment on that
evidence.
[28]
My
reading of her decision is that her findings as a result of her self-initiated
inquiry were central to her determination the applicant would not be at risk if
returned to Uganda because, in
effect, the post hearing evidence was fraudulent. She wrote the following in
her decision:
The onus lies on persons, such as the
applicant, who rely on documentary evidence originating in Uganda in support of their claim, to
be prepared to demonstrate the authenticity of the documentation
presented. The applicant has been unable to demonstrate the authenticity of
her documentation and I have obtained evidence that supports a conclusion
that much of the applicant’s supporting documents are not authentic and in fact
fraudulent. [Emphasis added]
[29]
Clearly,
the Officer’s inquiry was a breach of natural justice. I need only refer to
the Federal Court of Appeal’s decisions in Magnasonic Canada Limited v
Canada (Anti-Dumping Tribunal) [1972] FC 1239; Canadian National Railway
v Handyside (1994) 170 NR 353 for the principle that procedural fairness
requires that parties have an opportunity to comment on critical and relevant
material.
[30]
The
Officer may have been right in concluding that the post-hearing material was of
no value and may have been fraudulent but that is not the point. The point is
that the applicant and her counsel had no opportunity to comment on the
evidence which the Officer herself obtained and relied on to render the
decision she reached.
[31]
Counsel
for the respondent argued the matter should not be sent back on the basis of
the Supreme Court of Canada’s decision in Mobil Oil Canada Ltd. v Canada-Newfoundland
Offshore Petroleum Board [1994] 1 S.C.R. 203. In my view, the reference back
for reconsideration is not futile. The applicant must have an opportunity to demonstrate
the authenticity of the post hearing evidence.
[32]
In
the circumstances, the certified question suggested by the applicant has no
relevance. A copy of these reasons shall be placed on both files.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the judicial review application in IMM-6403-10 and
in IMM-6404-10 are granted; the underlying decision in each file is quashed and
the matter returned for redetermination by a different Officer.
“François Lemieux”
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