Docket: IMM-11798-23
Citation: 2024 FC 1832
Ottawa, Ontario, November 18, 2024
PRESENT: The Honourable Madam Justice Ngo
BETWEEN: |
BENI NZIMBU KIBALA |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant seeks judicial review of a decision by an officer of Immigration, Refugees and Citizenship Canada [Officer] dated August 30, 2023 refusing his Pre-Removal Risk Assessment [PRRA] application [Decision]. The Applicant states there was a breach of procedural fairness when the Officer issued the Decision despite being advised that the Applicant was attempting to obtain additional supporting evidence from the Democratic Republic of Congo [DRC]. Further, the Applicant states that the Officer erred in concluding that he failed to demonstrate a forward-looking personalized risk of harm upon return to the DRC as he would not be subjected to a risk of persecution, torture, a risk to his life or a risk of cruel and unusual treatment or punishment if he were to be removed.
[2] For the reasons that follow, this application for judicial review is granted. I agree with the Applicant’s submissions that in the circumstances of his case, he was denied procedural fairness.
II. Background and Decision under Review
[3] The Applicant, Beni Nzimbu Kibala [Applicant] is a citizen of the DRC. He arrived in Canada on December 24, 2015 as an international student. On February 23, 2023, the Applicant was convicted of an offence under paragraph 320.14(1)(b) of the Criminal Code of Canada (operation of a vehicle while impaired), which carries a maximum sentence of up to 10 years of imprisonment, for events that occurred on July 1, 2019, and January 29, 2020. The Applicant was sentenced to two $2,000 fines and a period of twelve months of driving probation.
[4] On March 2, 2023, a deportation order was issued against the Applicant on grounds of serious criminality. On March 15, 2023, an exclusion order was issued against the Applicant on grounds of serious criminality pursuant to paragraph 36(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[5] On March 31, 2023, Immigration, Refugee and Citizenship Canada received the Applicant’s PRRA application. Because paragraph 36(1)(a) of the IRPA applies to the Applicant, he was entitled to a consideration of risk pursuant to subsection 113(e) of the IRPA. This is commonly referred to as a “Restricted PRRA.”
[6] The Applicant included with his PRRA application a letter from his legal counsel dated March 29, 2023 [Counsel Letter] as well as other documentation in support of his application. The Counsel Letter explained that the Applicant was in the process of obtaining additional evidence from the DRC of threats against him and his family. Legal counsel explained that they were in contact with an individual in the DRC and that he will submit the documents as soon as they are received.
[7] On August 30, 2023, the Officer rejected the Applicant’s PRRA application. In the Decision, the Officer noted that four months had passed since the application was filed and that there were no updates. The Officer then concluded based on the record that the Applicant failed to demonstrate that he could be subjected to a danger of torture, a risk to his life or a risk of cruel or unusual treatment or punishment within the meaning of section 97 of the IRPA, if he were to return to his country of origin.
III. Issues and Standard of Review
[8] The issues in the present case are whether the Officer breached procedural fairness and whether the Decision is unreasonable.
[9] The parties submit that the applicable standard of review on the merits of the Decision is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 10, 25). I also agree that the applicable standard of review is reasonableness.
[10] To avoid intervention on judicial review, the decision must bear the hallmarks of reasonableness – justification, transparency and intelligibility (Vavilov at para 99). A reasonable decision will always depend on the constraints imposed by the legal and factual context of the particular decision under review (Vavilov at para 90). A decision may be unreasonable if the decision-maker misapprehended the evidence before it (Vavilov at paras 125-126). The party challenging the decision bears the onus of demonstrating that the decision is unreasonable (Vavilov at para 100).
[11] A claim of procedural fairness is determined on a standard of review more akin to the standard of correctness. The Court must analyze whether the proceedings were fair in light of all the circumstances (Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 [Baker] at paras 21-28; Canadian Pacific Railway Limited v Canada (Attorney General), 2018 FCA 69 at paras 54-56; Lipskaia v Canada (Attorney General), 2019 FCA 267 at para 14).
[12] The fundamental question remains whether the Applicant knew the case to be met and whether he had a full and fair opportunity to respond to it. The duty to act fairly is twofold: (1) the right to a fair and impartial hearing before an independent decision-maker, and (2) the right to be heard (Fortier v Canada (AG), 2022 FC 374 at para 14; Therrien (Re), 2001 SCC 35 at para 82). Everyone is entitled to a full and fair opportunity to present his or her case (Baker at para 28).
[13] The nature and extent of the duty will vary with the specific context and the different factual situations dealt with by the administrative decision-maker, as well as the nature of the disputes it must resolve. The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated (Baker, at paras 25–26).
IV. Analysis
[14] The Applicant submits that having advised the Officer that he was obtaining additional evidence, it was unfair to proceed to a Decision without issuing at least a notice or a procedural fairness letter with a firm deadline (citing Khwaja v Canada (Minister of Citizenship and Immigration), 2006 FC 522 at para 17 [Khwaja]). The Respondent states that an applicant has to put their best foot forward to establish their case on a PRRA application and that an officer cannot be faulted for considering information that the Applicant did not submit (citing Iwekaeze v Canada (Citizenship and Immigration), 2022 FC 814 at para 22).
[15] On a preliminary basis, the Applicant submitted two exhibits in the Applicant’s Record. These two exhibits were police reports of incidents that occurred in the DRC in July 2022 and August 2023. The Applicant received the documents after the Decision was issued. At the hearing, the Applicant underlined that the Court should consider these documents as the additional evidence mentioned in the Counsel Letter, and not evaluate them “for the truth of their contents.”
The Applicant submits these documents should have been part of his submissions in support of his PRRA application.
[16] The Respondent objected to their admissibility as they were not before the decision-maker (citing A.B. v Canada (Citizenship and Immigration), 2013 FC 134 at para 17 [A.B.]). The Respondent alleges that the Applicant seeks to tender the exhibits to buttress his section 97 of the IRPA risk submissions.
[17] New evidence can be properly considered by the Court when considering allegations of breach of procedural fairness (Khwaja at para13, citing Ontario Assn of Archictects (Ont.) v Assn of Architectural Technologist of Ontario (C.A.), 2002 FCA 218; see also Association of Universities and Colleges of Canada and the University of Manitoba v The Canadian Copyright Licensing Agency operating as “Access Copyright”
, 2012 FCA 22 at para 20). As Justice Noël stated, any information not before a decision-maker cannot be accepted except to address an argument based on a breach of procedural fairness. Where the Applicant’s two exhibits were filed for that purpose, they may be relied upon (A.B. at paragraph 17, citing Khwaja at para 13). I accordingly consider the two exhibits for this limited purpose.
[18] The Applicant submits that the Officer ought to have considered (and would have been aware of) the legitimate challenges and delays associated with obtaining evidence from the DRC. The two exhibits demonstrate that the Applicant had been diligently seeking this evidence. Given the timing between the PRRA application was received on March 31, 2023 to the date that the exhibits were received in October 2023, there was no undue delay on the Applicant’s part.
[19] The Officer was not obliged to hold the Decision in abeyance simply because the Applicant indicated he was in the process of obtaining further evidence or even if he had difficulty obtaining evidence. The onus is on an applicant to prove their case in a PRRA application, including a fulsome record. However, in the particular circumstances of the Applicant’s case, I agree that fairness required a notice from the Officer mentioning that he was proceeding with a decision, which would afford an opportunity to make final submissions. The particular circumstances also include the nature and objectives of a PRRA. Here, the lack of any response to the Counsel Letter before the Decision was issued gives rise to a breach of procedural fairness (Sarissky v Canada (Citizenship and Immigration), 2022 FC 1014 at para 53 [Sarissky], citing Goodman v Canada (Public Safety and Emergency Preparedness), 2019 FC 1569 at paras 62-65).
[20] Even though I find that the Applicant did not have a fair and meaningful opportunity to present his PRRA application and to have it fully and fairly considered (Baker at para 26), there is no requirement to find fault on the part of the Officer (Sarissky at para 58), nor do I make such a finding.
[21] I cannot also speculate on the outcome of the Decision had the Officer reviewed the two exhibits. The principles of fairness do not generally allow the Court to speculate on what might have happened in a fair proceeding (Tshisumpa v Canada (Citizenship and Immigration), 2022 FC 191 at para 25, citing Lin v Canada (Minister of Citizenship and Immigration, 1999 CanLII 8444 (FC), [1999] FCJ No 1148 (QL) at paras 21-23, citing Cardinal v Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643 at p 661). The appropriate remedy in this case would therefore be to allow the Applicant’s PRRA entire application to be considered anew by a different officer (Sarissky at para 58).
V. Conclusion
[22] The application for judicial review is granted. Given my finding on the breach of procedural fairness with respect to the Decision, I need not address the Applicant’s arguments regarding the reasonableness of the Decision.
[23] The parties did not submit any question for certification and I agree that none arises in this case.
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