Dockets: IMM-5896-13
IMM-6271-13
Citation:
2015 FC 234
Toronto, Ontario, February 23, 2015
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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ATEF ALI ABUSANINAH
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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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JUDGMENT AND REASONS
I.
Overview
[1]
This case revolves around a unique set of
facts. Unique facts often give rise to unique case law, as one learns in law
school. This case is no different.
[2]
This judicial review [JR] was filed pursuant to
section 72(1) of the Immigration and Refugee Protection Act, SC 2001, c
27 [IRPA, the Act]. For the purposes of these written reasons, it
combines two applications for judicial review (IMM-5896-13 and IMM-6271-13),
which were filed in response to three negative pre-removal risk assessment
[PRRA] decisions dated July 23, August 6 and August 12, 2014. These three
decisions were all made in respect of the same Applicant, the August decisions
being rendered due to subsequent evidence that was filed by the Applicant in
support of his original PRRA application.
[3]
As a preliminary issue, counsel for both the
Applicant and Respondent agreed at the hearing to argue the two applications
simultaneously, due to similar underlying facts, evidence and legal issues.
Copies of these reasons will be placed in both files.
II.
The Facts
[4]
The Applicant originally came to Canada to study in 2010 from his native country, Libya. His family, perceived Gadhafi supporters,
has suffered tremendously in the aftermath of regime change. His father, who
owned a car dealership, sold vehicles to the army through one of the
Applicant’s uncles, who had been a high-ranking military official in Gadhafi’s
army. Both that uncle, as well as another uncle, were killed in post-2011
revolution violence. The car dealership was burned and destroyed. The
Applicant's father was arrested, and currently remains imprisoned without
trial.
[5]
The Applicant returned to Libya in 2012, to see if he could assist his family in light of the violence enveloping his home,
and specifically to assist his mother and sisters given his father’s arrest.
However, the Applicant was kidnapped upon entry to Libya at Tripoli’s
international airport, where he was interrogated, beaten, and ultimately only
released after the payment of a significant amount of money. He quickly
returned to Canada to escape what he feared would be continued torture, or even
death, due to his family’s relationships and perceived ties to the former
government of Colonel Gadhafi.
[6]
Once in Canada, the Applicant became involved in
a fight in a restaurant. While no one was hurt, he was found guilty on four of
nine counts, including assault, and spent 76 days in pre-trial custody.
[7]
At trial, the Applicant was given a suspended
sentence of 18 months. This led to a finding of inadmissibility for serious
criminality under paragraph 36(1)(a) of IRPA, resulting in ineligibility
to continue with his claim for refugee status. His allegations of persecution
and fear of torture in Libya were therefore never heard by the Immigration and
Refugee Board [IRB].
[8]
It was for this reason that the Applicant filed
his PRRA application and subsequent evidence, which were decided negatively in
the three decisions mentioned above. A deportation date was assigned, and the
Applicant received a stay of deportation order from Justice Snider of this
court on October 1, 2013 (under IMM-5896-13).
III.
Decisions Under Review
[9]
The three decisions under review as noted above
are as follows.
[10]
First, an initial PRRA officer [First PRRA
Officer] reviewed and refused the PRRA application decision on July 23, 2013
[First PRRA Decision] (Certified Tribunal Record for IMM-6271-13 [CTR], pp
35-45). The First PRRA Officer retired at the end of July, 2013, and the file
was transferred to another officer.
[11]
Second, the subsequent PRRA Officer [Second PRRA
Officer] issued an undated decision (CTR, p 14), which, for the purposes of
these Reasons, I will refer to as “Addendum No. 1”,
as that is how CIC referred to it in internal correspondence (CTR, p 15).
Addendum No. 1 appears to have been decided on August 6, 2013 - since that is
the date entered into CIC’s information system, the Field Operations Support
System [FOSS] (CTR, p 172).
[12]
Third, the Second PRRA Officer then issued a
second decision one week later, on August 12, 2013 (CTR pp 2-3), which I will
refer to as Addendum No. 2, as this is the title of the form on which the
decision is written. Both Addendums upheld the negative decision by the First
PRRA Officer.
IV.
Issues
[13]
Three issues were raised in these JRs:
- Did the Second
PRRA Officer fetter his discretion in the two “Addenda”
decisions by relying on the First PRRA Officer’s decision?
- Was there a
denial of procedural fairness when the First PRRA Officer failed to afford
the Applicant an oral hearing?
- Did the Second
PRAA Officer unreasonably give little weight to the Affidavits filed after
the First PRRA Decision?
V.
Positions of the Parties
A.
Issue 1: Fettering of Discretion
[14]
The Applicant argues that the decision maker
must consider the totality of evidence before coming to a decision, and cannot
rely on another decision as a starting point. This is not to say that the
Second PRRA Officer cannot place some reliance or weight on the earlier
decision, but that he must ultimately come to his own decision after having considered
the entirety of the record before him.
[15]
The Applicant argues that the Second PRRA
Officer did not undertake such a complete review. In fact, the mere labelling
of the decision as an “addendum” is problematic,
as Burton’s Legal Thesaurus defines addendum as “an
addition to a completed written document”: Burton’s Legal Thesaurus,
4th ed.
[16]
The Respondent, on the other hand, contends that
while the Second PRRA Officer’s choice to refer to the documents as addenda was
awkward, he had nonetheless reviewed the entire file, and therefore in no way
fettered his discretion. Furthermore, there was absolutely no way around
having a second officer involved, given that the First PRRA Officer retired in
the midst of the process.
B.
Issue 2: Opportunity for an Oral Hearing
[17]
The Applicant contends that procedural fairness
required an oral hearing, as did the relevant legal provisions (IRPA, s
113; Immigration and Refugee Protection Regulations, SOR/2002-227
[Regulations], s 167), due to the fact that the Officer made various “insufficiency of evidence” findings, which were
rather veiled credibility findings. The Respondent, on the other hand, argues
that there was simply a lack of sufficient objective evidence to prove the
Applicant’s fear, and that the findings were not based on credibility.
Therefore, all the procedural requirements for the PRRA were met.
C.
Issue 3: Improper Treatment of Affidavits
[18]
The Applicant further argues that the Second
PRRA Officer committed a reviewable error in giving affidavits from the Applicant's
mother and uncle little or no weight. The Respondent counters by emphasizing
that it was up to the Second PRRA Officer to decide the weight to give the
evidence, and it is not the role of this court to reweigh the facts or the
evidence.
VI.
Standard of Review
[19]
The appropriate standard of review for whether a
PRRA officer has had a proper regard to all the evidence in coming to their
decision is reasonableness (Selduz v Canada (Citizenship and Immigration),
2009 FC 361 at para 9; Alvarez v Canada (Citizenship and Immigration),
2014 FC 564 at paras 19-20).
[20]
The parties differ with respect to whether the
denial of an oral hearing in this circumstance was a breach of natural
justice. The Applicant argues that due to the veiled credibility findings, a
correctness standard should be applied. The Respondent counters that the
reasonableness standard governs because the case law holds that a deferential
standard applies where a PRRA officer addresses the request for an oral
hearing.
[21]
Although there has been some disagreement in the
treatment of the standard of review with respect to whether the PRRA Officer
erred by failing to conduct an oral hearing, the recent jurisprudence of this
Court has held that it is judged on the deferential standard of reasonableness
(Ibrahim v Canada (Minister of Citizenship and Immigration), 2014 FC 837
at para 6; Bicuku v Canada
(Minister of Citizenship and Immigration), 2014 FC 339 at paras
16-20; Ponniah v Canada (Minister
of Citizenship and Immigration), 2013 FC 386 at para 24; Mosavat v Canada (Minister of
Citizenship and Immigration), 2011 FC 647 at para 9).
VII.
Analysis
[22]
I am of the view that the decisions under review
were unreasonable due to errors in the treatment of each of the three issues
raised by the applicant. The problems inherent in them are explained below.
A.
Issues 1 and 3: Fettering of Discretion and
Improper Treatment of Affidavits
[23]
I will address these two issues together,
because in my view, they are inextricably linked.
[24]
As I will explain below, an officer cannot
simply adopt another officer’s decision, but must make their decision on the
totality of the evidence and after having considered all of the facts. The
Applicant points out that the mere use of the word addendum to describe the
decisions reflects the fact that the Second PRRA Officer fettered his
discretion. While I accept that the choice of “Addendum”
as a title in both the email to CBSA and the August 12 PRRA decision was not
ideal, that choice does not in and of itself negate the validity of the
outcome. Ultimately, “Addendum” is just a label.
What counts is what the administrative decision maker does in fulfilling his or
her function, and if she or he provides a fair hearing, whether written or
oral.
[25]
I have serious doubts as to whether the Second
PRRA Officer properly fulfilled his function, due to the reasons given in his
two Addenda - both in terms of form (sufficiency of reasons) and content.
[26]
Specifically, the Second PRRA Officer wrote in
Addendum No. 1:
Further submissions were received dated 31
July 2013 in the form of an e-mail and attachment. Therefore, this file is
being re-opened in order to assess what, if any, impact these new submissions
will have had on the previous negative PRRA decision by [the First PRRA
Officer].
(CTR, p 14)
[27]
After reviewing the new materials, namely (i)
submissions from counsel and (ii) his uncle’s affidavit, the Second PRRA
Officer concluded:
I do not find that the original decision by
[the First PRRA Officer] to be affected by these submissions and that the negative
decision still stands.
(CTR, p 14)
[28]
There is nothing to suggest that the Second PRRA
Officer read the file. Indeed, it is unclear what materials he looked at
before he came to this conclusion. All that his decision suggests is that he
had read the First PRRA Officer’s decision.
[29]
About one week later, on August 12, 2013, after
having received an affidavit from the Applicant's mother, the Second PRRA
Officer essentially repeated the last quotation in Addendum No. 2:
I do not find that the original decision by
[the First PRRA Officer] to be affected by these submissions and that the
negative decision still stands.
(CTR, p 2)
[30]
Again, the Second PRRA Officer provided the
Applicant cold comfort in showing that he properly considered the Applicant’s
danger of returning to Libya, particularly with regard to the new evidence
before him, namely affidavits from, his mother and uncle, who were in the midst
of the Libyan maelstrom. This is especially disturbing precisely because of
the First PRRA Officer’s conclusions, which read:
In addition, I note that the applicant
stated that his other uncle, Ismail was kidnapped and shot in May 2012. I also
note that the applicant stated Ismail was killed. However, I find that the
applicant has provided little objective evidence, such as a medical report or
death certificate, in regards to Ismail’s death. In addition, I note that the
applicant has provided little evidence or information as to when or how he
became aware of his uncle's death.
Furthermore, I also find that the applicant
has provided little evidence or information that he was imprisoned and beaten
upon his return to Libya in January 2012. I note that the applicant stated that
he was beaten extensively during his stay in prison in Libya. However, I find that there is little other evidence or information that during the time he
was in Libya in January 2012 until he returned to Canada in April 2012 that he
was put in prison in Libya, and was beaten.
I also note that the applicant has provided
little evidence or information that his father is currently imprisoned due to
the fact that he is being perceived as a supporter of the Gaddafi regime.
...
… I find that there is little evidence or
information provided by the applicant to support the fact that he or any of his
family members were perceived to be or [sic] currently perceived to be a
pro-Gaddafi supporter.
(CTR, p 44)
[31]
Without going into all the details of his
mother’s and uncle's affidavits that were properly before the Second PRRA
Officer, suffice it to say that they addressed all of the above-cited gaps
identified by the First PRRA Officer. Yet, the Second PRRA Officer gives the
two affidavits little weight, dismissing their relevance as follows in Addendum
No. 2:
Additional submissions received dated 07
August 2013. The submissions are an affidavit from his mother and from the
applicant's uncle.
Regarding the affidavit from the applicant's
mother I find, as previously, that the applicant's mother is a person who has a
vested interest in the final outcome of this application and therefore I give
this affidavit little probative value.
Included also in this submission is an
affidavit by the applicant's uncle. Similarly [sic] to the finding of the
applicant's mother, I find that this submission as written by the applicant's
family member is someone who has a vested interest in the applicant and
therefore I also give this affidavit little probative value.
(CTR, p 2)
[32]
In addition, in Addendum No. 1, the Second PRRA
Officer states, “I find that this is an affidavit
written by the applicant's mother; and more likely than not at the request of
the applicant” (CTR, p 14).
[33]
This conclusion is curious. First, who else
should have requested the affidavit, other than the Applicant? No oral hearing
was offered to probe any concerns (wrongly, in my view, as is discussed below).
Second, in submissions to the officer, counsel unequivocally stated that the
Applicant went through great trouble to request these affidavits from his
family in Libya, and described the difficulties in finding an interpreter (CTR,
p 62). Indeed, the Second PRRA Officer specifically noted submissions from
counsel in Addendum No. 1 (CTR, p 14). These submissions, in the form of an
eight page July 2, 2013 letter (CTR, pp 55-63), provided detailed new country
condition evidence, and also explained in great detail why (because of a 2
month immigration hold at Metro-West Detention Center), it was difficult for
the Applicant to coordinate obtaining sworn statements from Libya, but that the
affidavits would be forthcoming.
[34]
The delay and the course of events leading to
the affidavits appear to be completely legitimate explanations. Applicant’s
counsel provided detailed and timely reasons about why these affidavits were
important to the application, namely to corroborate the incidents alleged by
the Applicant. Counsel’s cover submissions of July 2, 2013 also outlined, in
great detail, new objective evidence of country conditions, showing that there
would be no state protection for Mr. Abusaninah.
[35]
While an officer’s assessment of the significance
and weight of evidence is to be given deference, this is only the case where
the officer’s assessment is acceptable and defensible (Somasundaram v Canada (Citizenship and Immigration), 2014 FC 1166 at para 41). In this case, I cannot
accept the Second PRRA Officer’s blanket dismissal of the new evidence, due to
a “vested interest”, as acceptable and
defensible, particularly in light of the fact that all that this officer relied
on to undertake his analysis was the First PRRA Officer’s decision, which had
specifically commented on a lack of corroborating evidence.
[36]
The Respondent, in rebuttal, argues that the
Applicant had the benefit of the file being considered afresh by the Second
PRRA Officer, a remedy normally only granted upon a successful judicial review.
[37]
I am not convinced by the Respondent’s
argument. Indeed, if one is to characterize the Second PRRA Officer’s decisions
as “reconsiderations”, this implies a critical
re-examination of the application, rather than an out-of-hand rejection of all new
evidence because it came from close family members.
[38]
In my view, no one could have given better
evidence than the mother and uncle at the heart of these incidents of violence.
The first PRRA Officer criticized the Applicant for failing to provide corroborating
evidence from them. The Applicant’s uncle, who swears to having picked up the
Applicant at Tripoli airport, witnessed the detention first-hand, and then
facilitated the Applicant’s release from incarceration through a payment of
five thousand Dinars (CTR, p 8). The Applicant’s mother, not only corroborated
this event, but also the fact that the Applicant's father, her husband, was “kidnapped on 03/09/2011 and is missing to date” (CTR,
p 10).
[39]
The case law is supportive of the principle that
the Board cannot reject evidence simply because it comes from family members
who have a close relationship with the claimant. As Justice de Montigny held
in Ugalde v Canada (Minister of Public Safety and Emergency Preparedness),
2011 FC 458:
[28] … Presumably, the Officer would have
preferred letters written by individuals who had no ties to the Applicants and
who were not invested in the Applicants’ well-being. However, it is not
reasonable to expect that anyone unconnected to the Applicants would have been
able to furnish this kind of evidence regarding what had happened to the
Applicants in Mexico. The Applicants’ family members were the individuals who
observed their alleged persecution, so these family members are the people
best-positioned to give evidence relating to those events. In addition, since
the family members were themselves targeted after the Applicants’ departure, it
is appropriate that they offer first-hand descriptions of the events that they
experienced. Therefore, it was unreasonable of the Officer to distrust this
evidence simply because it came from individuals connected to the Applicants.
See also Ndjizera v Canada (Citizenship and Immigration), 2013
FC 601 at paras 32-33; Shilongo v Canada (Citizenship and Immigration),
2015 FC 86 at para 29.
[40]
Turning back to the Respondent’s position
regarding reconsideration, I wholeheartedly agree with the Respondent that a
second (and third) review of a previously refused PRRA application would be
beneficial to an Applicant. However, that holds true if it is a legitimate
reconsideration. In this case, the CTR points to the fact that these “reconsiderations” by the Second PRRA Officer were
illusory. While it is possible that the Second PRRA Officer reviewed the entire
file, the reasons provided in the two addenda do not indicate that this was the
case.
[41]
Even if the Second PRRA Officer did truly review
the entire record and did not just affirm decision of the First PRRA Officer,
what is beyond any doubt is that he unreasonably gave little weight to the
fresh, corroborating evidence from the Applicant’s close family members.
[42]
The Respondent cites the following passage from
Justice de Montigny in Zhang v Canada (Minister of Citizenship and
Immigration), 2006 FC 1381 [Zhang], for the principle that “he who hears must decide” does not apply to
administrative decisions.
[26] I would also reject Mr. Zhang’s
submissions regarding the principle that “he who hears must decide.” As I said
in Kniazeva v. Canada (Minister of Citizenship and Immigration), 2006 FC 268,
the case law is clear that this principle does not apply to administrative
decisions, especially visa officers’ decisions. The same is true for
immigration officers. Having said this, it is far from clear what weight
Officer Maekawa gave to his fellow officer’s notes, or to Officer Ng’s decision
in Mr. Zhang’s extension application.
[43]
However, I believe this case can be
distinguished in several respects. Firstly, Zhang was decided in the
context of a visa application, not a PRRA. Secondly, Kniazeva v Canada (Minister
of Citizenship and Immigration), 2006 FC 268 at 19, cited within the
passage above, dealt with the whether the party making inquiries needed to be
the party making the decision. That is not in dispute in this case – the
question, rather, is whether the Second Officer was required to take a fulsome
look at the record before coming to an independent conclusion on the matter.
Framed in this way, Zhang appears to support this proposition:
[31] However, the question of whether
Officer Ng’s decision was reasonable given the information she had at the time
is not the issue here. Officer Maekawa was presented with evidence countering a
number of Officer Ng’s findings, in particular her conclusion that Mr. Zhang
would not leave the country at the end of his authorized period. While he could
take the extension decision into consideration, he also had to assess Mr.
Zhang’s new evidence in support of his claim that Officer Ng’s decision was
mistaken or did not reflect his true intentions.
[44] While it may have been perfectly
acceptable for Officer Maekawa to refuse the restoration application, that
could not excuse him from providing Mr. Zhang with some sort of an explanation.
[44]
In this case, all indications are that the
Second PRRA Officer simply adopted the reasons of the First PRRA Officer, and
added some comments about the weakness of the new evidence, without considering
the full context, reviewing the background evidence that was before the
original decision-maker, and considering the impact of the new evidence on the
foundation for the original decision.
[45]
The law is clear that decision makers must
consider all the evidence, lest their discretion be fettered. In the PRRA
context, this includes “an obligation to consider the
latest relevant and significant evidence available” (Chudal v Canada (Minister of Citizenship and Immigration), 2005 FC 1073 at para 11 [Chudal]). In
Chudal, Justice Hughes concluded:
[21]…I will make an Order quashing the
decision apparently dated 23 September 2004 and require that the matter be
considered by a different Officer having regard not only to the material
submitted 8 October, 2004, but all other material that was before the original
Officer, since the material must be considered as a whole and not simply as
a rebuttal to the decision ultimately revealed on 10 November 2004.
[Emphasis added]
[46]
Similarly, in Jie v Canada (Minister of Citizenship and Immigration) (1998), 158 FTR 253 at para 7 [Jie], Justice
Rothstein, then of this Court, underscored the importance of reconsiderations
being unconstrained by the thoughts of previous decision makers :
[7]….There is nothing wrong with a visa
officer having regard to information in prior applications and interviews of
the applicant provided the visa officer decides the case on the basis of the evidence
before him or her and does not consider himself or herself bound or fettered by
previous decisions.
[47]
Finally, in Huang v Canada (Minister of
Citizenship and Immigration), 2009 FC 135, Justice Zinn wrote:
[21] It may well be that the officer
examining these applications, even with the new evidence, will arrive at the
same conclusion as the officer whose decision is under review.
Nonetheless, fairness requires that the decision be made with all the evidence
before the officer.
[48]
The imperative for a new PRRA Officer to
thoroughly canvass the original contents of a file which has been transferred
to him and for which new evidence has been adduced is obvious. The Second
Officer must situate the new evidence in the context of the Applicant’s
circumstances. The importance of considering matters in their full context is
aptly demonstrated by this Court’s jurisprudence in Chudal, Jie and Huang.
[49]
Instead, the Second PRRA Officer in this case
appears to have relied on the First PRRA Officer’s decision as a starting
point, without considering the totality of the materials filed earlier, which
indicates that he fettered his discretion.
[50]
The final point on this issue which must be
addressed is the Respondent’s attempt to introduce an affidavit from the Second
PRRA Officer. I cannot accept this evidence, at least with respect to
explanations of how he approached the file, and what evidence he looked at in
making his two PRRA Addendum decisions. To do so would amount to an effort to “remedy a defect in the decision by filing further and better
reasons in the form of an affidavit” (Sellathurai v Canada (Minister
of Public Safety and Emergency Preparadeness), 2008 FCA 255 at paras 46-47.
See also: Barboza v Canada (Minister of Citizenship and Immigration),
2011 FC 1420 at paras 27-28; Kaba v Canada (Minister of Citizenship and
Immigration), 2013 FC 1201 at para 9; Eshraghian v Canada (Minister of Citizenship and Immigration), 2013 FC 828 at para 22). In these cases,
similar attempts to bootstrap administrative decisions by the subsequent filing
of affidavits by decision makers have been blocked.
[51]
To conclude on the first issue, the Second PRRA
Officer’s two addenda decisions are unreasonable. The evidentiary record before
me does not indicate that he considered all of the evidence. Accordingly he
fettered his discretion in arriving at what should have been his own,
independent decision.
B.
Issue #2: Failure to Conduct an Oral Hearing
[52]
As I have already found errors with respect to
the issue raised above, I shall keep my comments succinct on whether an oral
hearing was required, albeit with the hope that they are heeded when this
matter is reconsidered.
[53]
The First PRRA Officer concluded that there was
insufficient evidence of the Applicant’s claims regarding his risk in Libya. I have already discussed in detail why there was indeed corroborating evidence for
the “reconsideration” decisions that should have
been properly considered in the context of all the evidence. Likewise, I have
already noted that in his counsel’s July 2, 2013 letter, the Applicant provided
ample additional country documentation, highlighting the concerns about Libya (CTR, pp 55-62).
[54]
Once the Second PRRA Officer had this
significant evidence upon which a section 97 risk could be founded, I find that
his rejection of the PRRA on the basis of “insignificant
evidence” was a veiled credibility finding. This court has, on many
occasions, ruled that veiled credibility findings are not acceptable (Liban
v Canada (Citizenship and Immigration), 2008 FC 1252 at para 14; Yakut v
Canada (Citizenship and Immigration) at para 13).
[55]
In this case, the ramifications of a veiled
credibility finding were significant, because the law provides that an oral
hearing may be held where credibility is determinative, pursuant to subsection
113(b) of IRPA and section 167 of the Regulations (Ibrahim v Canada
(Minister of Citizenship and Immigration), 2014 FC 837 at para 15).
[56]
The Respondent points out, and is entirely
correct, that holding such an oral hearing for PRRA proceedings lies at the
discretion of the Minister. However, what is also clear is that there is a
spectrum of procedural fairness, and the requirement for an oral hearing
increases with the impact on the individual’s life, liberty and security.
[57]
Here, the stakes are particularly high, because
the Applicant’s risk is one of torture of cruel and unusual punishment, or
death. He has never had an opportunity to have his fears heard in Canada, given that he was found ineligible to make a refugee claim due to his conviction.
[58]
While there is no doubt that committing a crime
has grave consequences, particularly for foreign nationals without status in
Canada, the role of a PRRA officer is still to assess the risk to the
individual upon return to his country. (Febles v Canada (Citizenship and Immigration),
2014 SCC 68 at para 67).
[59]
In the key decision of Singh v Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177, the Supreme
Court of Canada emphasized the importance of oral hearings:
58. Do the procedures set out in the
Act for the adjudication of refugee status claims meet this test of procedural
fairness? Do they provide an adequate opportunity for a refugee claimant to
state his case and know the case he has to meet? This seems to be the question
we have to answer and, in approaching it, I am prepared to accept Mr. Bowie's
submission that procedural fairness may demand different things in different
contexts: see Martineau, supra, at p. 630. Thus it is possible
that an oral hearing before the decision‑maker is not required in every case
in which s. 7 of the Charter
is called into play. However, I must confess to some difficulty in reconciling
Mr. Bowie's argument that an oral hearing is not required in the context of
this case with the interpretation he seeks to put on s. 7 . If "the
right to life, liberty and security of the person" is properly construed
as relating only to matters such as death, physical liberty and physical
punishment, it would seem on the surface at least that these are matters of
such fundamental importance that procedural fairness would invariably require
an oral hearing. I am prepared, nevertheless, to accept for present purposes
that written submissions may be an adequate substitute for an oral hearing in
appropriate circumstances.
59. I should note, however, that even
if hearings based on written submissions are consistent with the principles of
fundamental justice for some purposes, they will not be satisfactory for all
purposes. In particular, I am of the view that where a serious issue of
credibility is involved, fundamental justice requires that credibility be
determined on the basis of an oral hearing. Appellate courts are well aware of
the inherent weakness of written transcripts where questions of credibility are
at stake and thus are extremely loath to review the findings of tribunals which
have had the benefit of hearing the testimony of witnesses in person: see Stein
v. The Ship "Kathy K", [1976] 2 S.C.R. 802, at pp. 806‑08 (per
Ritchie J.) I find it difficult to conceive of a situation in which compliance
with fundamental justice could be achieved by a tribunal making significant
findings of credibility solely on the basis of written submissions.
[60]
The First PRRA Officer addressed the request for
an oral hearing made in the original June 7, 2013 PRRA submissions. After
reviewing the PRRA Policy Manual PP3, the First PRRA Officer concluded in his
decision:
I note that the purpose of the hearing is to
“address the complicated issue of credibility of the applicant, where the
evidence raises a serious issue of credibility, the evidence is central to the
decision to be rendered, and the evidence, if accepted would justify allowing
the application.” I note that I am not questioning the applicant's credibility
in this decision. Therefore, I find that an oral hearing will not be necessary
in rendering a decision.
…
Furthermore, I also find that the
applicant has provided little evidence or information that he was imprisoned
and beaten upon his return to Libya in January 2012. I note that the
applicant stated that he was beaten extensively during his stay in prison in Libya. However, I find that there is little other evidence or information during the time
he was in Libya in January 2012 until he returned to Canada in April 2012 that
he was put in prison in Libya, and was beaten.
(CTR, pp 42 and 44) [Emphasis added]
[61]
The First PRRA Officer did not explain why it is
that the detailed evidence contained in the Applicant’s affidavit was
insufficient to establish the above. Unlike the circumstances of Ferguson v
Canada (Citizenship and Immigration), 2008 FC 1067 at para 4, for example,
wherein the Applicant did not provide sworn evidence of the critical facts, here,
the Applicant provided a sworn affidavit, which was very specific regarding the
details of his kidnapping and the beating he received in prison. However, the
First PRRA Officer then proceeded to make the following finding:
I accept that those who are viewed as
Gaddafi supporters or pro-Gaddafi may be targeted by various groups in Libya, and that the treatment they receive may amount to persecution, torture, risk to life
or cruel and unusual treatment or punishment. I note that in his affidavit the
applicant stated that he and his family are perceived as Gaddafi supporters.
However, I find that there is little evidence or information provided by the
applicant to support the fact that he or any of his family members were
perceived to be or [sic] currently perceived to be a pro-Gaddafi supporter.
(CTR, p 44)
[62]
This demonstrates the same error in reasoning as
Justice O’Keefe pointed out in Prieto v Canada (Minister of Citizenship and
Immigration), 2010 FC 253 at paras 39-43, where the Officer’s conclusion
that the evidence did not support that the applicant’s fear could only have
been reached with a negative credibility finding.
[63]
The First PRRA Officer accepted that those who
are viewed as Gadhafi supporters are persecuted. If the Applicant is believed
(ie. he is credible), then he and his family, as persons who are viewed as
Ghadafi supporters, would be at risk. Since the First PRRA Officer found “that there is little evidence or information provided by the
applicant to support the fact that he or any of his family members were
perceived to be or [sic] currently perceived to be a pro-Gaddafi supporter”
(CTR, p 44), it is clear that his conclusion that the Applicant had not
established he was at risk, could only have been reached with a negative
credibility finding.
[64]
As such, it was unreasonable, in the
circumstances of this case, for the both the First PRRA Officer, and the Second
PRRA Officer, who was further equipped with fresh affidavit evidence, not to
grant an oral hearing.
VIII.
Conclusion
[65]
This application for judicial review is allowed
and will be sent back for reconsideration by a new decision maker.
[66]
No questions were proposed for certification,
and none arose.
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