Docket: IMM-5741-23
Citation: 2024 FC 1869
Toronto, Ontario, November 22, 2024
PRESENT: Madam Justice Go
BETWEEN: |
Abu HURAIRA |
Applicant |
and |
The Minister of Citizenship and Immigration |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant, a citizen of Pakistan, was granted refugee protection in 2015 based on fear of persecution due to his sexual orientation. The Applicant travelled to Pakistan twice in 2017 and 2018 for a total of 88 days to visit his ill mother.
[2] On July 22, 2022, the Minister of Public Safety and Emergency Preparedness [Minister] made an application for the cessation of the Applicant’s refugee protection pursuant to subsection 108(2) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] and Rule 64 of the Refugee Protection Division Rules, SOR/2012-256 [RPD Rules].
[3] The Applicant indicated that while in Pakistan, he took precautionary measures by hiring private security and remaining in the basement of his friend’s home. Bowing to pressure from his mother, the Applicant married in Pakistan and later sponsored his wife to Canada. The Applicant and his wife have since separated.
[4] The Refugee Protection Division [RPD] found the Applicant had voluntarily reavailed himself of the protection of his country of nationality pursuant to paragraph 108(1)(a) of the IRPA [Decision]. Consequently, the RPD ceased the Applicant’s protected status and deemed his refugee claim to be rejected.
[5] The Applicant seeks a judicial review of the Decision. I grant the application because I find the RPD breached procedural fairness.
II. Preliminary Issue
[6] The Respondent raised a preliminary issue at the hearing asking the style of cause to be amended to reflect the correct Respondent as the Minister of Citizenship and Immigration. I so order.
III. Analysis
[7] The Applicant raises several arguments, most of them centered on the reasonableness of the Decision. I find most of the Applicant’s arguments unpersuasive. However, I agree with the Applicant that the RPD breached procedural fairness by relying on either extrinsic evidence or specialized knowledge when assessing whether to grant the Minister’s application, without providing the Applicant with an opportunity to respond.
[8] There are three requirements for the cessation of refugee protection as a result of reavailment, as provided for by the United Nations High Commission on Refugees Handbook on Procedures and Criteria for Determining Refugee Status and as affirmed in Canada (Citizenship and Immigration) v Galindo Camayo, 2022 FCA 50 at para 18:
voluntariness – whether the refugee acted voluntarily;
intention – whether the refugee intended by their actions to reavail themselves of the protection of their country of nationality; and
actual reavailment – whether the refugee actually obtained such protection.
[9] In this case, the RPD found the Applicant acted voluntarily when he travelled to Pakistan and that he had not been compelled to return as his presence was not required to assist his mother. The RPD also found that the Applicant’s voluntary travel indicated that he lacked subjective fear and demonstrated his intention to reavail himself of Pakistan’s protection. Finally, after noting the principle that returning on the passport of the country of origin constitutes reavailment per Abadi v Canada (Citizenship and Immigration), 2016 FC 29, the RPD concluded that the Applicant failed to rebut the presumption of reavailment because his actions demonstrated a lack of subjective fear; his return to Pakistan was voluntary and not necessary, and the Applicant travelled to Pakistan with no incident or obstacles using two Pakistani passports despite his fear of persecution.
[10] In making these findings, the RPD questioned the Applicant’s credibility and drew a negative inference from the evidence, or the lack thereof, based in part on previous hearings the RPD conducted regarding similar cases involving Pakistan. In particular, the RPD relied on its “specialized knowledge”
in assessing the Applicant’s failure to produce certain evidence with respect to two relevant issues.
[11] The first was the lack of medical documents regarding the Applicant’s mother’s health condition. The RPD noted that the Applicant testified that he returned to Pakistan in 2017 and 2018 to see his mother at a hospital in Lahore. When the Minister asked the Applicant at the RPD hearing why he had not provided any corroborative medical documentation, the Applicant replied that he had provided an affidavit from his uncle. The RPD found the affidavit “sparse”
and “not a reasonable substitution for objective medical records.”
The RPD went on to state:
Having conducted numerous hearings from Pakistan, the panel has routinely received detailed medical records from a variety of hospitals in Pakistan including from Lahore. The [Applicant] failed to obtain corroborative evidence which would be reasonably accessible since he became aware of this cessation application in July 2022. Furthermore, he had legal counsel who could have assisted him with procuring the relevant documents. The panel has drawn a negative inference from the lack of medical documents which is highly relevant since the [Applicant] testified that it was the sole purpose for his return to Pakistan in 2017 and 2018, to visit his ill mother.
[Emphasis added]
[12] The second instance where the RPD utilized its specialized knowledge was in the context of assessing the evidence concerning the Applicant’s hiring of security services while in Pakistan. The Applicant provided a letter from a security company indicating that the Applicant retained their services in 2017 and 2018. However, the RPD noted that the Applicant did not include a copy of the contract for security services or an invoice for services provided, and proof of payment. On this point, the RPD noted:
The panel has received several copies of letters from security services from Pakistan during similar hearings and they are routinely accompanied with a detailed written contract, an invoice for services provided, and proof of payment. The panel finds this letter lacks probative value since it is deficient in integral aspects. The panel questions the authenticity and validity of the letter.
[Emphasis added]
[13] I pause to note that the above findings of the RPD were directly related to the first two requirements for the test for cessation: voluntariness and intention.
[14] The Applicant submits that the RPD erred by relying on its experience of other similar cases to infer that the Applicant should have provided evidence that was missing. The Applicant further submits this was problematic, given that he was unaware that the RPD routinely received such documents. Therefore, the Applicant argues, the RPD should have notified him of its “specialized knowledge”
according to paragraph 170(i) of the IRPA and Rule 22 of the RPD Rules.
[15] I agree.
[16] As the Court confirms in Nadarajah v Canada (Citizenship and Immigration), 2012 FC 670 [Nadarajah] and Gonzalez Chaves v Canada (Citizenship and Immigration), 2005 FC 1598 [Gonzalez Chaves], a panel breaches its duty of procedural fairness when it fails to notify a claimant of its intention to take cognizance of facts that were not included in the record and rely on its specialized knowledge. While the facts in Nadarajah and Gonzalez Chaves differ from the case at hand, the underlying procedural fairness issue remains the same.
[17] Here, as the Decision made clear, the RPD was not relying on either country condition documents or the evidence the parties submitted when it found the Applicant failed to provide relevant medical documents and when it questioned the authenticity of the letter from the security company. Further, the transcript confirms that the RPD never notified the Applicant of its intention to rely on its specialized knowledge, thus depriving the Applicant of the opportunity to address the RPD’s intent, or seek further clarification of its specialized knowledge.
[18] The Respondent cites Juma v Canada (Citizenship and Immigration), 2015 FC 844 [Juma] to argue that the RPD was not relying on specialized knowledge, but rather, that it relied on common sense and rationality. I do not find Juma assists the Respondent. In Juma, the Court disagreed with the applicant’s argument that the RPD relied on specialized knowledge, and determined that the RPD based its conclusion on common sense and rationality because the Board’s finding “is couched in terms of rationality, not specialized knowledge:”
Juma at para 30.
[19] In contrast, the RPD in this case specifically couched its findings in reference to “similar hearings”
it conducted in the past and the documents it “routinely”
received when it made its negative credibility findings.
[20] At the hearing before the Court, the Respondent made two additional arguments. First, the Respondent noted that at the RPD hearing, the Minister asked the Applicant if he had any documents other than the uncle’s affidavit with regard to his mother’s medical conditions. Thus, the Respondent argued, the Applicant was questioned on the issue, and it does not matter whether the question came from the RPD or the Minister. Second, the Respondent submitted that the issue ultimately was about insufficiency of evidence, and that the Applicant simply did not submit sufficient evidence to rebut the presumption of reavailment.
[21] I reject the Respondent’s arguments. First, the Minister’s question did not put the Applicant on notice about the RPD’s reliance on its own specialized knowledge. Second, the Decision made clear that the RPD framed its findings as issues of credibility, not sufficiency. The Respondent’s argument was an attempt to buttress the Decision after the fact.
[22] I also note that in Isakova v Canada (Citizenship and Immigration), 2008 FC 149 [Isakova] where a similar issue was addressed, the RPD declared its specialized knowledge about the availability of police reports in Armenia and counsel asked the RPD about the source of its specialized knowledge. The RPD advised its knowledge was based on past hearings involving claimants from former Soviet countries. Nevertheless, the Court found the RPD’s reliance on specialized knowledge to be unreasonable, noting that the RPD’s reliance on past experience, without providing any specific details, did not allow the applicant to test the reliability of such knowledge: Isakova at para 35.
[23] At least in Isakova, the RPD declared its specialized knowledge to the applicant. Here, the RPD did no such thing.
[24] In conclusion, by relying on its past experience dealing with similar cases, and by failing to provide the Applicant an opportunity to respond before making its credibility findings, the RPD breached procedural fairness. The RPD’s negative credibility findings ultimately led it to conclude that the Applicant failed to rebut the presumption of reavailment. For these reasons, the Decision must be set aside.
IV. Conclusion
[25] The application for judicial review is allowed.
[26] There is no question to certify.
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