Date: 20081110
Docket: IMM-5062-07
Citation: 2008 FC 1252
Ottawa, Ontario, November 10,
2008
PRESENT: The Honourable Mr. Justice O’Reilly
BETWEEN:
MEFITHU
LIBAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Mefithu Liban requested an assessment of the
risk that would face him if he were returned to his country of citizenship, Ethiopia. An immigration officer considered
the question and, without a hearing, found that Mr. Liban had not shown more
than a mere possibility of persecution or serious harm.
[2]
Mr. Liban argues that the officer’s decision
should be overturned because the officer had given an undertaking to hold a
hearing, a hearing was required by law in the circumstances, and the officer
erred in his consideration of the evidence. He asks me to order a new
assessment by a different officer. I have concluded that the officer was
obliged to hold a hearing in the circumstances. Accordingly, I will grant this
application for judicial review and order a different officer to conduct a
reassessment of the risk to Mr. Liban.
[3]
Given my conclusion that a hearing was required by law, I will confine
my reasons to this single issue.
I.
Factual Background
[4]
Mr. Liban has been in Canada since 1995. He became a permanent resident
based on his wife’s sponsorship. They have since divorced. Mr. Liban was ordered
to be removed from Canada based on his criminal record. His appeal of that
order was denied. At that point, he requested a pre-removal risk assessment. He
specifically requested a hearing.
[5]
The officer conducting the assessment contacted Mr. Liban’s lawyer to
try to arrange a convenient time for a hearing. Various dates were discussed.
However, before a date was agreed on, the officer rendered his decision.
II. The
Officer’s Decision
[6]
The officer began by noting that Mr. Liban was found not to be a
credible witness by the Immigration Appeal Division on the appeal of his
removal order. He also noted that a hearing was not required by law in the
circumstances.
[7]
Mr. Liban had identified his fear of removal to Ethiopia as being
connected to his bisexuality and alcohol addiction. The officer reviewed Mr.
Liban’s evidence relating to his relationships with other men, particularly a
man named “Jimmy”, and concluded that “the applicant has not provided me with
sufficient objective evidence to support his statements regarding his
relationship with ‘Jimmy’”. The officer also discounted the possibility that
members of the Ethiopian community in Toronto, who knew about Mr. Liban’s
sexuality, would transmit that information back to Ethiopia.
[8]
Regarding Mr. Liban’s alcoholism, the officer found that Mr. Liban had
not provided sufficient objective evidence to support his fear of mistreatment
in Ethiopia. The officer purported not to make a credibility finding on this
issue. He stated: “I note that I am not making a credibility finding. I have
not determined that the applicant is not addicted to some substance(s); I have
determined that he has not provided me with sufficient objective evidence to
persuade me that he is an addict.”
[9]
The officer accepted that homosexuality is a criminal offence in Ethiopia
and, according to the Quran, punishable by death. He also appeared to accept
that addicts are mistreated in Ethiopia.
[10]
In the end, the officer found that Mr. Liban faced no more than a mere
possibility of harm.
III. Was
a Hearing Required?
[11]
Mr. Liban argues that the officer undertook to convene a hearing.
Accordingly, he had a legitimate expectation that a hearing would be held before
his risk assessment was completed. In their respective affidavits, the officer
and Mr. Liban’s previous counsel express different recollections of their
communications on this subject. It seems to me that the officer, at least, gave
the impression that he would be holding a hearing but this is not enough to
create a legitimate expectation.
[12]
However, in my view, a hearing was required by law. Under the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, a hearing should be held
where certain factors, prescribed by regulation, are present (s. 113(b);
see Annex; see also Tekie v. Canada (Minister of Citizenship
and Immigration), [2005] F.C.J. No. 39 (QL)). In essence, the factors are
whether (a) there is evidence raising a serious issue of the applicant’s
credibility; (b) the evidence is central to the application for protection; and
(c) the evidence, if accepted, would justify allowing the application (Immigration
and Refugee Protection Regulations, SOR/2002-227, s. 167; see Annex).
[13]
The officer’s reasons persuade me that a hearing was required here.
First, the officer seemed to place considerable emphasis on the credibility
findings of the Immigration Appeal Division. Second, the officer found that
there was insufficient objective evidence to support Mr. Liban’s claim that he
had a relationship with Jimmy. Third, the officer found that there was
insufficient objective evidence to support Mr. Liban’s claim to be an
alcoholic. Fourth, the officer seemed to accept that homosexuals and alcoholics
would be subjected to mistreatment in Ethiopia. Therefore, if Mr. Liban’s
evidence relating to his sexuality and alcoholism had been accepted, the
officer would likely have allowed the application.
[14]
In my view, when the officer stated that there was “insufficient objective
evidence” supporting Mr. Liban’s assertions, he was really saying that he
disbelieved Mr. Liban and, only if Mr. Liban had presented objective evidence
corroborating his assertions, would the officer have believed them. To my mind,
these findings are conclusions about Mr. Liban’s credibility. They were central
to his application. If the officer had believed Mr. Liban, the officer, in
light of the documentary evidence he accepted, would likely have found that Mr.
Liban was at risk.
[15]
Accordingly, the officer was obliged to hold a hearing.
IV. Conclusion
and Disposition
[16]
In the circumstances the officer was bound to hold a hearing. I would
order another officer to reassess the risk to Mr. Liban if he is removed to Ethiopia.
The officer conducting the reassessment should conduct a hearing. Neither party
proposed a question of general importance for certification, and none is
stated.
JUDGMENT
THIS COURT’S JUDGMENT IS
that
1.
The
application for judicial review is allowed and a reassessment of the risk to Mr.
Liban should be conducted by another officer after a hearing.
2.
No question of general importance is stated.
“James
W. O’Reilly”
Annex
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Immigration and Refugee Protection Act, S.C. 2001,
c. 27
Consideration of application
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;
Immigration and Refugee Protection Regulations,
SOR/2002-227
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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Loi sur l’immigration et la protection des réfugiés,
L.C. 2001, ch. 27
Examen de la demande
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;
Règlements sur l’immigration et la protection des
réfugiés, DORS/2002-227
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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