Docket: IMM-6797-20
Citation: 2022 FC 1412
Ottawa, Ontario, October 18, 2022
PRESENT: The Associate Chief Justice Gagné
| BETWEEN:
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| ZAKIR HUSSAIN (HOSSAIN)
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| Applicant
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| and
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| THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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| Respondent
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JUDGMENT AND REASONS
I.
Overview
[1] Mr. Zakir Hussain is a citizen of Bangladesh who arrived in Canada on a student visa in 2013. He filed for refugee protection in September of 2016 but was found inadmissible to Canada on security grounds pursuant paragraphs 34(1)(c) and (f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA]. This finding was not challenged and the issue of the Applicant’s inadmissibility is not before the Court.
[2] What is before the Court is the negative Pre-Removal Risk Assessment [PRRA] decision rendered by a Senior Immigration Officer who found that the Applicant had not adduced sufficient evidence to support a prospective risk to his life or security if he were to return to Bangladesh.
[3] The Applicant claims that the Officer breached his right to procedural fairness, that the limited PRRA Application that is offered to inadmissible refugee claimants under the IRPA violates sections 7 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter], and that overall, the Officer’s decision is unreasonable.
[4] For the reasons discussed below, this Application for judicial review is dismissed.
II.
Decision Under Review
[5] In his January 2020 PRRA Application, the Applicant relies on his Basis of Claim form [BOC] that supported his September 2016 refugee claim. Under section 45 of his PRRA Application form he adds that:
There may be an outstanding false charges against me in Bangladesh as of now. However, I have not had the chance to confirm. I will provide further information once I obtain confirmation.
[6] The PRRA decision was rendered in November 2020. The Officer determined that per subsection 113(d) of the IRPA, the Applicant’s risk would only be assessed under its section 97; the question was therefore whether the Applicant faced a forward looking risk of torture, a risk to his life or a risk of cruel and unusual treatment or punishment.
[7] The Officer first states that he carefully reviewed the Applicant’s narrative contained in his BOC and notes the lack of any corroborative evidence. Although he accepts that, as a Bangladesh Nationalist Party [BNP] member, the Applicant may have faced mistreatment in the past, he finds that the Applicant has not provided sufficient evidence to support a forward-looking risk upon return.
[8] To supplement the Applicant’s lack of evidence, the Officer consulted a report by the United Kingdom Home Office from 2018 which states that “opposition leaders and activists have faced harassment and intimidation in various forms”
and further notes that “there have also been allegations of politically-motivated torture, enforced disappearances and extrajudicial killings by state agents”
(the UK Home Office, Country Policy and Information Note: Bangladesh – Opposition to the government, January 2018, at para 2.2.4). The report also states that as the major political parties – including the BNP – reportedly have millions of members, “[i]n general, evidence does not indicate there is a real risk of state or non-state persecution or serious harm for ordinary party members or supporters.”
In the same paragraph, the report states “[d]epending on their circumstances and profile, opposition party leaders and activists may face harassment or arbitrary arrest and detention”
(at para 2.2.10).
[9] The Officer takes this to mean that the risk to the Applicant would be low because he is not a “high-profile member.”
The Officer determines that the Applicant had not demonstrated that his past involvement presents a forward-looking risk of torture, a risk to life, or a risk of cruel and unusual treatment or punishment.
III.
Issues and Standard of Review
[10] I agree with the parties that the standard of review applicable to the merits of the PRRA decision is one of reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65).
[11] With respect to the issue of whether an oral hearing is required for a PRRA, there is disagreement between the parties and in the case law as to whether the issue is one of procedural fairness or of interpretation of subsection 113(b) of the IRPA and section 167 of the Immigration and Refugee Protection Regulations, SOR/2002-227, [the Regulations]. If it is a question of procedural fairness, as the Applicant argues, it would be reviewable on a standard similar to correctness (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54). If it were a question of interpretation of the IRPA and the Regulations, as the Respondent argues, it would be reviewable on a standard of reasonableness. In my view, the latter approach conforms to the Supreme Court’s reasons in Vavilov, in which the Court emphasized the importance of giving effect to clear legislative intent. The IRPA and the Regulations provide immigration officers with instructions as to when an oral hearing is required in a PRRA application and the officers have to apply that scheme to the facts of specific cases.
[12] That said, this Application for judicial review raises the following issues:
Was there a breach of procedural fairness?
Is a PRRA applicant who is inadmissible on security grounds entitled to a risk examination under section 96 grounds?
If not, is the limited PRRA regime consistent with Canada’s international obligations?
Is the limited PRRA regime consistent with sections 7 and 15 of the Charter?
IV.
Analysis
A.
Was there a breach of procedural fairness?
[13] The Applicant argues that a higher degree of procedural fairness is owed to him. He sought international protection in Canada and the PRRA is the only opportunity for him to demonstrate the risks he would face upon return to his country of origin. The Applicant argues that his situation is different from a typical refugee claimant who had the opportunity to have their risks assessed by the Refugee Protection Division and Refugee Appeal Division and, if unsuccessful, to seek a possible judicial review before this Court. In addition, a negative PRRA decision prevents the Applicant from applying for another risk assessment for 12 months.
[14] The Applicant argues that while the PRRA is in practice an administrative procedure, the legislative framework allows for a complete quasi-judicial process including an oral hearing and the submission of evidence. He submits that Canada’s international obligations to refugee claimants should be considered. He further submits that in the context of the COVID-19 pandemic, he was entitled to a notification that his PRRA Application was being considered so that he could present additional submissions and evidence.
[15] The Applicant argues that it is well established that when credibility is at issue, an oral hearing is required. In his view, the Officer made a veiled credibility finding, which he tried to frame as a lack of evidence.
[16] I do not agree that the Officer made a veiled credibility finding.
[17] First, it was incumbent on the Applicant to submit a complete file to the PRRA Officer. The Applicant bore the burden of convincing the Officer that he had a forward-looking risk if he were to return to Bangladesh and he simply failed to do so. Although the Applicant was represented by counsel, he provided no written submissions nor documentary evidence in support of his Application. The only evidence was a dated narrative, which recounted facts that occurred from 2011 to 2015 when the Applicant was a student in Bangladesh.
[18] The Officer was entitled to examine the sufficiency and probative value of the evidence — that is whether the evidence adduced, if believed, is likely to satisfy the Applicant’s burden to prove his claim on the balance of probability — before engaging in an assessment of the Applicant’s credibility. Having reviewed what was before the Officer, I am of the view that he could reasonably find that there was insufficient evidence to demonstrate that the Applicant would still be actively pursued by the Awami League and authorities if he were to return to Bangladesh.
[19] The Officer was neither obliged to advise the Applicant of his concern, nor to ask whether the Applicant had additional evidence to file before he rendered his decision (see for example Borbon Marte v Canada (Public Safety and Emergency Preparedness), 2010 FC 930 at para 40; Ikeji v Canada (Citizenship and Immigration), 2016 FC 1422 at para 50, and; Garces Canga v Canada (Citizenship and Immigration), 2020 FC 749 at para 28).
[20] The Applicant filed his PRRA Application in January 2020. He argues that his right to know the case to meet was violated because the Officer did not notify him that his Application had been received and would be processed. The Applicant suggests, “it became uncertain whether [his] PRRA [Application] was in fact received by…IRCC”
. Yet he does not explain why he could not have enquired with IRCC to obtain confirmation as to whether his Application had been received. The Applicant’s Application was submitted by his counsel as an expedited parcel and a tracking number was provided by Canada Post for verification of receipt purposes.
[21] Most importantly, the decision was not rendered before November 2020; the Applicant had ten months to perfect his file or at least advise the Officer of his intention to perfect his file. He did neither. The only reference he made to additional evidence is the excerpt reproduced at paragraph 5 of these reasons. The Applicant states that there “may be an outstanding false charges against”
him in his country, but that he had “not had the chance to confirm”
. That is certainly not evidence of a false charge having been issued against the Applicant, nor a request to obtain a delay to file additional evidence. Furthermore, PRRA officers are not required to cite every single piece of country documentary evidence; again, the onus is on the Applicant to submit a clear, detailed, and complete application. He did not.
[22] Second, I believe the Officer was not required to hold an oral hearing.
[23] I agree with the Respondent that a PRRA application requires a relatively low degree of procedural fairness. The process followed in making a PRRA decision is not adversarial, it is administrative in nature and Parliament specifically decided that it would proceed, by default, based on written submissions. Parliament has not made a distinction for cases like the Applicant’s, where the risk has not previously been assessed because the Applicant is inadmissible on security grounds.
[24] Subsection 113(b) of the IRPA, in conjunction with Section 167 of the Regulations, provides that an oral hearing is generally required if there is a credibility issue regarding evidence that is central to the decision and which, if accepted, would justify allowing the application (Strachn v Canada (Citizenship and Immigration), 2012 FC 984 at para 34; Ullah v Canada (Citizenship and Immigration), 2011 FC 221 at para 25; Huang v Canada (Citizenship and Immigration), 2019 FC 1439 at para 41).
[25] The Applicant argues that the Officer made a veiled credibility finding under the cover of insufficiency or lack of probative value of the evidence. As indicated above, I disagree. Even if the Applicant’s evidence was taken at face value, it was reasonable for the Officer to find that it did not prove on the balance of probabilities that the Applicant would face a forward-looking risk.
[26] In my view, the Officer reasonably exercised his discretion not to hold an oral hearing and he properly interpreted the IRPA and the Regulations.
B.
Is a PRRA Applicant who is inadmissible on security grounds entitled to a risk examination under section 96 grounds?
[27] The Applicant submits that the Officer erred by only considering the Applicant’s risks under section 97 and not considering his section 96 risks. He argues that the specific wording of the IRPA clearly shows that the legislators only intended to exclude inadmissible individuals from refugee protection. According to him, the legislator did not clearly exclude inadmissible individuals from a risk assessment under section 96. Given this lack of clarity, the Applicant submits that the Court should adopt a broader interpretation of sections 112(3) and 113 of the IRPA, allowing a risk assessment under both sections 96 and 97.
[28] I respectfully disagree. In my view, there is no lack of clarity in the specific wording of sections 112(3) and 113 of the IRPA. Legislative interpretation is determined by a three-pronged analysis: textual, contextual, and purposive (Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 S.C.R. 27 at para 21). On plain reading, it is clear that a section 96 analysis is excluded for individuals in the Applicant’s position, as described in paragraph 112(3)(a) of the IRPA.
[29] Section 113(d) just as clearly states that a PRRA for individuals identified in subsection 112(3) will have their PRRA analyzed on section 97 grounds only (see for example Tapambwa v Canada (Citizenship and Immigration), 2019 FCA 34, at para 2).
[30] This becomes even clearer in light of the Clause-by-Clause Analysis presented by the Respondent. The document points to the fact that section 96 grounds are intended to satisfy Canada’s international obligations under the Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) [Refugee Convention], whereas section 97 aims at satisfying Canada’s obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 113 (entered into force 26 June 1987) [Convention Against Torture]. The individuals described in subsection 112(3) are excluded from the Refugee Convention definition of a refugee under Article 1F. The purpose of section 113 is therefore to ensure that these individuals retain rights to a risk assessment in accordance with Canada’s obligations under the Convention Against Torture.
[31] It follows that the Officer did not err in his interpretation of the IRPA and reasonably limited his analysis of the Applicant’s risk to section 97 grounds.
C.
If not, is the limited PRRA regime consistent with Canada’s international obligations?
[32] The Applicant submits that legislation must be interpreted with the presumption that Parliament intends to act in accordance with Canada’s international obligations.
[33] First, the principle of non-refoulement, from section 33(1) of the Refugee Convention, prevents a state from deporting a refugee to a place where they face persecution. The Applicant submits that the PRRA process violates the principle of non-refoulement for inadmissible claimants by failing to give them a fair and full risk assessment process and removing the asylum seeker to a place where they have a well-founded fear of persecution.
[34] The Applicant further submits that Canada’s finding of inadmissibility due to his membership in the BNP is not consistent with the exclusion of refugee protection under Article 1F of the Refugee Convention. He argues that the Supreme Court in Ezokola v Canada (Citizenship and Immigration), [2013] 2 S.C.R. 678, 2013 SCC 40 stated that a finding that the claimant made a “significant and knowing contribution”
to an organization’s crime is required before a claimant can be excluded under Article 1F(a). The Applicant therefore submits that his exclusion from any risk assessment under section 96 is inconsistent with Canada’s international obligations.
[35] I once again disagree. Pursuant to the doctrine of Parliamentary supremacy, an unambiguous provision must be given effect even if it is contrary to Canada’s international obligations or international law (Németh v Canada (Justice), [2010] 3 S.C.R. 281, 2010 SCC 56 at para 35; Gitxaala Nation v Canada, 2015 FCA 73 at para 16). However, absent contrary indication, legislative provisions are presumed to observe the values and principles of customary and conventional international law (B010 v Canada (Citizenship and Immigration), [2015] 3 S.C.R. 704, 2015 SCC 58, at para 47; Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed., (Markham: LexisNexis Canada Inc., 2014) at §18.6).
[36] That said, I agree with the Respondent that the restricted PRRA scheme is consistent with Canada’s international obligations.
[37] Both the Refugee Convention and the IRPA recognize that there is no absolute right to a section 96 risk analysis. Article 33(2) of the Refugee Convention clearly allows individuals to be excluded from the protection against refoulement in the case of refugee claimants where there are reasonable grounds for regarding as a threat to public security. Article 1F states that its provisions shall not apply to any person with respect to whom there are serious reasons for considering that he has committed a war crime, crime against humanity, or serious non-political crime outside the country of refuge; it also excludes he who has been guilty of acts contrary to the purposes and principles of the United Nations. These exclusions are clearly reflected in section 98 of the IRPA.
[38] The Immigration Division is also bound by the Immigration Refugee Protection Regulations, SOR/2002-227, to accept the factual determinations of the Refugee Protection Division with respect to exclusion under Article 1F of the Refugee Convention in determining whether applicants are inadmissible under paragraph 34(1)(c) of the IRPA.
[39] Finally, the Applicant’s inadmissibility is neither before me nor could it have been revisited by the Officer at the PRRA stage (Tapambwa at para 41).
[40] For these reasons, I am of the view that the limited PRRA assessment provided to the Applicant is not contrary to Canada’s international obligations.
D.
Is the limited PRRA regime consistent with sections 7 and 15 of the Charter?
[41] The Applicant submits that his case can be distinguished from the Federal Court of Appeal’s decision in Tapambwa. In that decision, the Court determined that a restricted PRRA did not violate section 7 of the Charter. The Applicant believes his case is different because he is asking for a risk assessment under section 96 grounds, and is not claiming that his denial of refugee protection was unconstitutional. The Applicant submits that his argument is that the lack of procedural fairness and the restrictive PRRA violate Canada’s obligation of non-refoulement, which is different from the arguments presented in Tapambwa.
[42] The Applicant argues that deportation triggers section 7 rights (Suresh v Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1; Seklani v Canada (Public Safety and Emergency Preparedness), 2020 FC 778). The PRRA Officer accepted that he was a member of the BNP, but still did not consider his section 96 risk. Consequently, the Applicant is facing a risk of persecution and deprivation of his fundamental human rights upon return to Bangladesh.
[43] In my view, the Applicant’s section 7 arguments have been considered and rejected by the Federal Court of Appeal in Tapambwa, where the Court could not be clearer:
[82] It follows that the appellants’ argument that they must have their risks assessed against section 96 criteria runs contrary to the jurisprudence of the Supreme Court. As the determination of exclusion or inadmissibility does not engage section 7, it necessarily follows that section 7 is not engaged by the denial of a section 96 risk assessment. This is the consequence of the trilogy of SCC decisions (Suresh, Febles, B010). Exclusion removes the appellants from the refugee determination process, and, as a direct consequence, from a section 96 risk assessment.
[44] The Federal Court of Appeal leaves no place for distinguishing the present case and for a finding that the Applicant’s section 7 Charter rights were violated due to the fact that his risk of returning to Bangladesh was not assessed on section 96 grounds at the PRRA stage.
[45] In addition to a section 7 violation, the Applicant claims that the restricted PRRA regime discriminates against inadmissible individuals. The Applicant argues that section 113 creates a differential treatment between inadmissible applicants and other ineligible applicants, who are eligible to have their risks assessed under both sections 96 and 97. The Applicant contends that he does face a risk of persecution based on his political opinion but that section 113 requires him to also establish a personal substantial risk to life or risk of torture, cruel and unusual treatment or punishment under section 97 of the IRPA.
[46] The Supreme Court of Canada recently reiterated the test for a section 15 Charter violation in R. v C.P., 2021 SCC 19 (citing Fraser v Canada (Attorney General), 2020 SCC 28 at para 27):
[56] … To prove a prima facie violation of s. 15(1), a claimant must demonstrate that the impugned law:
on its face or in its impact, creates a distinction based on enumerated or analogous grounds; and
imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage.
[47] The Supreme Court has previously explained the criteria to identify analogous grounds in Corbiere v Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203:
[13] What then are the criteria by which we identify a ground of distinction as analogous? The obvious answer is that we look for grounds of distinction that are analogous or like the grounds enumerated in s. 15 — race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It seems to us that what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. This suggests that the thrust of identification of analogous grounds at the second stage of the Law analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law. To put it another way, s. 15 targets the denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable, like religion. Other factors identified in the cases as associated with the enumerated and analogous grounds, like the fact that the decision adversely impacts on a discrete and insular minority or a group that has been historically discriminated against, may be seen to flow from the central concept of immutable or constructively immutable personal characteristics, which too often have served as illegitimate and demeaning proxies for merit-based decision making.
[48] Inadmissibility to Canada on security grounds is not an enumerated ground of discrimination under section 15(1) of the Charter. The Applicant did not cite any jurisprudence, or indeed provide any argument, indicating why being inadmissible on security grounds should be considered an analogous ground. I fail to see how inadmissibility to Canada is, as the Supreme Court stated in Corbiere, a distinction on the “basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity”
(para 13).
[49] It follows that this ground of contestation must also fail.
V.
Proposed questions for certification
[50] The Applicant proposes the following questions for certification by the Court:
1. Whether on PRRA applications by inadmissible applicants, risks assessment can be conducted without conferring refugee protections under sections 96, 97 and 112 of the IRPA and whether an immigration officer has the obligation to do so notwithstanding that the applicants are excluded from refugee protection under section113 of the IRPA.
2. Whether the inadmissible PRRA applicants who have never had their credibility determined by any judicial, quasi-judicial or administrative body, should benefit from a presumption of a right to an oral hearing during the PRRA process.
3. Whether Canada’s international obligations under Refugee Conventions, Conventions Against Torture and other international treaties and its commitment to non-refoulement require that inadmissible PRRA claimants be given a higher degree of procedural fairness than ordinary PRRA claimants and impose a positive obligation on Canada to grant basic procedural fairness to them including a meaningful opportunity to know their case, appear before an independent judicial or quasi-judicial body to make pleadings and provide evidence with respect to their claims.
4. Whether Canada is in breach of its international obligations especially the principle of non-refoulement by failing to ensure that it established a fair and meaningful risk assessment system prior to removal for individuals who are excluded from refugee protection through its domestic legislation.
[51] Pursuant to paragraph 74(d) of the IRPA, an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, a judge of this Court certifies that a serious question of general importance is involved and states the question. The Federal Court of Appeal confirmed that the certification requirement serves an important gatekeeping function and serves as control on the types of cases that can be placed before the Federal Court of Appeal (Canada (Citizenship and Immigration) v Galindo Camayo, 2022 FCA 50 at paras 37, 42). In order for a question to be properly certified under section 74 of the IRPA, the question must be dispositive of the appeal, it must transcend the interests of the parties, and it must raise an issue of broad significance or general importance (Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para 36; Varela v Canada (Citizenship and Immigration), 2009 FCA 145 at para 28. For a question to be one of general importance, it cannot have been previously settled by the decided case law (Lewis at para 39; Mudrak v Canada (Citizenship and Immigration), 2016 FCA 178 at para 36.
[52] That said, I believe that the answers to the first and second questions are clearly found in the IRPA. The clear and unambiguous wording in subsections 112(3) and 113(d) of the IRPA, prohibiting the conferring of refugee protection and a risk assessment on Convention refugee grounds per section 96 of the IRPA, must prevail. The same can be said of the clear language in subsection 113(b), combined with section 167 of the Regulations, which prescribe the factors to be considered in assessing whether an oral hearing is warranted.
[53] As for question 3, it is not dispositive of this case and would not be dispositive of an appeal. This case turns on its own facts and as indicated above, the determinative issue is the Applicant’s failure to substantiate his case and provide sufficient evidence of a forward-looking risk.
[54] Finally, I agree with the Respondent that question 4 is substantially addressed by existing Supreme Court of Canada and Federal Court of Appeal jurisprudence (Németh at para 51; Febles v Canada (Citizenship and Immigration), [2014] 3 S.C.R. 431, 2014 SCC 68 at para 64; Singh v Minister of Employment and Immigration, [1985] 1 S.C.R. 177 at paras 207-210; Atawnah v Canada (Public Safety and Emergency Preparedness); Suresh, at paras 113-127; and Tapambwa at paras 76-88). In Németh, the Supreme Court of Canada stated that the “Refugee Convention does not contain specific procedural provisions…it does not bind the contracting states to any particular process for either granting or withdrawing refugee status. Thus, Canada’s international undertaking with respect to non-
refoulement does not commit it to any particular procedural scheme for its application in extradition matters”
[para 51]. In Febles, the Supreme Court held that the Charter does not provide a positive right to refugee protection. In consequence, Parliament has the power to pass legislation that complies with Canada’s obligations under the Convention, or to pass legislation that either exceeds or falls short of the Convention’s protections (Febles, at para 64).
[55] Therefore, I am of the view that this Application for judicial review does not raise any question of general importance that would justify certification.
VI.
Conclusion
[56] For the above reasons, this Application for judicial review is dismissed. The Officer did not make a veiled credibility finding and had no obligation to conduct an oral hearing pursuant to subsection 113(b) of the IRPA and section 167 of the Regulations.
[57] The Applicant was found inadmissible for his membership in the BNP; he did not challenge that finding nor did he ask for ministerial relief. As a result, he was only offered a limited PRRA assessment. Even then, he failed to perfect his file.
[58] This limited PRRA assessment is compliant with Canada’s international’s obligations but even if it was not, the IRPA shall prevail as the source of internal law.
[59] Finally, there are no violations under sections 7 or 15. With respect to the section 7 claim, the Federal Court of Appeal found in Tapambwa that the restricted PRRA regime did not violate section 7. With respect to section 15, the Applicant failed to establish the existence of an analogous ground.
[60] The Applicant’s name is written Hossain is his Bangladesh passport, in his PRRA Application and in the PRRA decision letter. Therefore, the style of cause will be modified to refer to him as Zakir Hussain (Hossain).
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