Docket:
IMM-5952-12
Citation: 2013 FC 821
Ottawa, Ontario, July 29,
2013
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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ELVIS PACIFIQUE BIZIMA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This judicial review of the PRRA decision is
related to IMM-5955-12 (a Humanitarian and Compassionate decision). The basic
facts are set forth in the decision in IMM-5955-12 (Bizima v Canada (Minister of Citizenship and Immigration and Minister of Public Safety and Emergency
Preparedness), 2013 FC 822).
II. BACKGROUND
[2]
The Immigration Officer [Officer] concluded that
the Applicant’s proof of membership in the Mouvement pour la Solidarité et la
Démocratie [MSD] was not sufficient to establish that the Applicant would be
perceived as an enemy of the Burundian government. The Officer dismissed the
evidence from a third party that the Applicant was on a list of MSD members in
exile. The Officer considered it speculative that the government even has such
a list.
[3]
The Officer ultimately concluded that, despite
evidence of government sanctioned human rights abuses, the self-imposed exile
of MSD members and the brief detentions for illegal political meetings, there
was insufficient proof of the Burundian government imprisoning and torturing
members of the MSD.
III. ANALYSIS
[4]
The Applicant has raised as issues breach of
procedural fairness – breach of s 167 Immigration and Refugee Protection Regulations,
SOR/2002-227 [Regulations]. As such, this issue is subject to the correctness
standard of review (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190). The relevant provision is set out below:
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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.
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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.
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[5]
The Applicant has also challenged the decision
on its merits which, being an issue of mixed law and fact, is subject to the
reasonableness standard of review (Kheloufi v Canada (Minister of
Citizenship and Immigration), 2013 FC 481, 2013 CarswellNat 1335).
[6]
With respect to the issue of alleged breach of
procedural fairness of s 167 of the Regulations, the Applicant says that he
should have a hearing because the Officer questioned his credibility concerning
the list of MSD members in exile held by the Burundian government.
[7]
The membership list certainly meets the
criterion of s 167(b) and arguably s 167(c). The real issue is
whether the Officer’s finding is one based on the credibility of the Applicant
or on the sufficiency of the evidence. This Court in Shafi v Canada (Minister of Citizenship and Immigration) 2005 FC 714, 48 Imm LR (3d) 283,
acknowledged that frequently credibility and sufficiency cannot be easily
separated.
[8]
To the extent that credibility was in issue, it
was the credibility of the third party not the Applicant on which the Officer
assessed the evidence. As such, s 167(a) is not directly in play.
Moreover, s 167(a) does not mandate a hearing where credibility is in
issue but merely provides that where credibility of an applicant is in issue,
it is a factor in determining whether a hearing is required.
[9]
I need not decide whether a hearing was required
because the Applicant is entitled to succeed on the second issue. Whether a
hearing would be required may be influenced by a proper consideration of the
evidence which will be the result of this judicial review.
[10]
On the matter of the reasonableness of the
Officer’s decision, the overriding error was the failure to consider
significant evidence which runs counter to the Officer’s determination. That
evidence was more current and cogent than that relied on by the Officer.
[11]
The Officer relied on evidence from 2010
notwithstanding the existence of 2011 evidence available before the May 3, 2012
decision. There had obviously been significant changes over the course of a
year.
[12]
There was evidence as of September 2011 that the
Burundian government had commenced a campaign to methodically eliminate
opposition supporters and that this had involved widespread killings.
[13]
The 2011 US Department of State [DOS] Report
outlines human rights abuses, intimidation and executions committed against
those opposed to the current regime. As reported by the United Nations High
Commissioner for Refugees (UNHCR) and described in the 2012 DOS Report, the
victims in many cases were members of the opposition parties, the National
Liberation Front (FNL) and the MSD. In addition, there were a significant
number of detentions of members of opposition political parties.
[14]
Given the failure to consider relevant, current
evidence in respect of a PRRA application, it was unreasonable to dismiss the
PRRA application without regard for this evidence.
IV. CONCLUSION
[15]
Therefore, this judicial review will be granted,
the PRRA decision quashed and the matter remitted to a different official for a
new determination.
[16]
There is no question for certification.
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