IMM-8156-04
2005 FC 714
Lul Mahamed Shafi (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Shafi v. Canada (Minister of Citizenship and Immigration) (F.C.)
Federal Court, Phelan J.--Ottawa, April 13 and May 18, 2005.
Citizenship and Immigration -- Immigration Practice -- Judicial review of dismissal of applicant's pre-removal risk assessment (PRRA) application -- Refugee Protection Division (RPD) dismissing applicant's refugee claim on basis not credible re: claimed nationality -- RPD so concluding despite granting applicant's sister refugee status a few years before -- PRRA officer finding evidence presented by applicant not new evidence pursuant to Immigration and Refugee Protection Act, s. 113(a), not establishing applicant's nationality -- Act, s. 113(a) providing only new evidence PRRA applicant not reasonably expected to have presented at time of rejection by RPD may be presented -- Here, affidavits, letter submitted by applicant re: nationality, clan/tribe membership not necessary before RPD in view of RPD's previous findings re: sister -- PRRA officer's conclusion evidence not new evidence in accordance with Act, s. 113(a) unreasonable -- As to applicant's national identity, PRRA officer finding applicant, witnesses not credible -- Act, s. 113(b), Immigration and Refugee Protection Regulations, s. 167 creating presumption in favour of oral hearing when enumerated factors arising -- Here, officer embarking on independent research, reaching conclusions without allowing applicant to address results -- Failure to conduct oral hearing breach of principle of natural justice, fairness -- Negative inference re: filing of letter instead of affidavit, failure to consider other sources of national identity, conclusions based on independent research all patently unreasonable -- Application allowed.
Administrative Law -- Judicial Review -- Grounds of Review -- Principles of natural justice and fairness -- Immigration and Refugee Protection Act, s. 113(b), Immigration and Refugee Protection Regulations, s. 167 creating presumption in favour of oral hearing when enumerated factors arising -- That presumption becoming obligation where decision maker embarking on independent research, rejecting applicant's submissions based on research results without giving applicant opportunity to address those results -- Failure to conduct oral hearing breach of principle of natural justice, fairness.
This was an application for judicial review of the dismissal of the applicant's pre-removal risk assessment (PRRA) application. The PRRA officer found that the applicant had not explained why new evidence had not been presented at her Refugee Protection Division (RPD) hearing.
The RPD denied the applicant's refugee claim on the basis that she was not credible with respect to her claimed nationality as a Somali, despite having granted the applicant's sister refugee status a few years earlier on the basis of her Somali nationality and her membership in the Somali clan or tribe Reer Baraawe. The PRRA officer found that the evidence presented by the applicant (statutory declarations and a letter from the Executive Director of the Somali Centre for Family Services confirming the applicant's tribe membership) was not "new evidence" pursuant to paragraph 113(a) of the Immigration and Refugee Protection Act, and that in any event, this evidence did not establish the applicant's Somali nationality or her membership in the Reer Baraawe tribe or clan.
Held, the application should be allowed.
The PRRA officer's decision was strongly influenced by the RPD's decision, a decision which was itself problematic as it was a clear effort to resile from the RPD's own finding in respect of the sister's positive refugee finding even though there was no evidence that efforts were made to reopen the findings with respect to the sister. Paragraph 113(a) of the Act provides that a PRRA applicant may present "only new evidence . . . that the applicant could not have reasonably been expected in the circumstances to have presented, at the time of rejection [by the RPD]." There was nothing to suggest that the applicant should have anticipated the RPD's attack on her sister's credibility and her own. The two affidavits and one letter submitted by the applicant to establish her nationality and her membership in the Reer Baraawe clan or tribe were not necessary before the RPD in view of the latter's previous findings in respect of the sister. The PRRA officer's conclusion that the new evidence did not meet the requirements of paragraph 113(a) of the Act was therefore unreasonable. The applicant could not have been expected in the circumstances to have presented the evidence to the RPD.
With regard to the question of national identity, the PRRA officer did not find the applicant and her witnesses credible. Paragraph 113(b) of the Act and section 167 of the Immigration and Refugee Protection Regulations, when read together, raise a presumption in favour of an oral hearing when the factors enumerated in section 167 arise. This presumption is strong where credibility of the type seen here is in issue. The PRRA officer, who did not consider the applicability of these provisions, embarked on independent research, concluded that there was no evidence of the existence of the applicant's clan or tribe, and did not allow the applicant to address the results of this independent research. The failure to conduct an oral hearing was a breach of the principle of natural justice and fairness. The PRRA officer also made patently unreasonable findings of fact. There was no basis for drawing a negative inference from the fact a witness filed a letter rather than an affidavit. The officer's decision to give little weight to the other witnesses' affidavit evidence because that evidence came from a close family friend and a cousin was arbitrary. Section 106 of the Act recognizes the difficulty in providing national identity with the usual documentation from countries having unstable civil administration. The officer failed to consider what other sources of national identity could or should have been produced. Finally, the officer's conclusions based on independent research were not supported by any evidence, and failed to consider evidence presented in the PRRA application.
statutes and regulations judicially
considered
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 106, 113(a),(b).
| Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 167, 178 (as am. by SOR/2004-167, s. 49). |
cases judicially considered
considered:
Said v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1854 (T.D.) (QL); Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; (2002), 208 D.L.R. (4th) 1; 37 Admin. L.R. (3d) 152; 90 C.R.R. (2d) 1; 18 Imm. L.R. (3d) 1; 281 N.R. 1; 2002 SCC 1.
APPLICATION for judicial review of the dismissal of the applicant's pre-removal risk assessment application on the basis that new evidence was not presented in accordance with paragraph 113(a) of the Immigration and Refugee Protection Act, and alternatively on the basis that this evidence did not establish the applicant's nationality. Application allowed.
appearances:
Jean Lash for applicant.
Lynn Marchildon for respondent.
solicitors of record:
South Ottawa Community Legal Services, Ottawa, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Phelan J.:
BACKGROUND
[1]The applicant is a refused refugee claimant; the Refugee Protection Division (RPD) having concluded that she was not credible with respect to her claimed nationality as a Somali.
[2]Her pre-removal risk assessment (PRRA) application was dismissed firstly on the ground that she had not produced "new evidence" in accordance with paragraph 113(a) of the Immigration and Refugee Protection Act [S.C. 2001, c. 27] (IRPA); secondly and in any event, her evidence did not establish her Somali nationality.
[3]The PRRA officer found that the applicant had not explained why the "new" evidence was not presented at the RPD hearing which had denied her claim for refugee protection. In finding against the applicant, the officer drew a negative inference as to credibility from the fact that one of the pieces of new evidence was a letter rather than an affidavit; held that the officer's own research did not provide evidence of the existence of the applicant's tribe; concluded that evidence of the applicant's nationality given by a close family friend and by a cousin held little weight because those individuals were not disinterested in the outcome. The officer reached these conclusions without conducting a hearing into this matter.
[4]The applicant sought judicial review of the PRRA decision. For the following reasons, this judicial review application will be granted.
FACTS
[5]The applicant is a 24-year-old single female who claimed that she is a citizen of Somalia. She has a sister in Ottawa who arrived in Canada a few years earlier and whose identity as a Somali and a refugee or person in need of protection had been accepted by the RPD.
[6]The applicant came to Canada in April 2001 via the U.S.A. The RPD concluded, despite the evidence of the applicant and her sister, that her claim to being a Somali national was not credible. A fair reading of this RPD decision is that the RPD did not accept the sister's evidence of their respective Somali nationality. This conclusion was reached despite the RPD previously having granted the sister refugee status on the basis of her Somali nationality, her membership in the Somali clan/tribe Reer Baraawe (or Brava) and the persecution of members of this clan/tribe in Somalia.
[7]In the PRRA decision, the officer dismissed the new evidence which consisted of:
-- A statutory declaration of Mr. Ouseman Haji Ibrahim, a Canadian citizen, who swore that he knew the applicant in Somalia, that she had lived in Somalia and he had visited her family from time to time when she was a baby. He also confirmed that she was a member of the Brava clan. He was a cousin of the applicant's mother and had last seen her in 1990 before seeing her again in Canada in 2001;
-- A statutory declaration of a Mr. Mohamed Rashid Haji, a Canadian citizen who attested to his own membership in the Brava clan, his knowledge that the applicant was from the same clan, acquainted with her father and her grandfather who also was a member of the Reer Baraawe minority in Somalia;
-- A letter from Mr. Abdinzak Kasod, Executive Director of the Somali Centre for Family Services in Ottawa stating that the applicant was a member of the Reer Baraawe minority tribe in Somalia.
[8]In rejecting the applicant's evidence, the officer made the following critical findings or reached the following conclusions:
-- The RPD decision turned on credibility and having reviewed it and the applicant's submission, the officer accepted the RPD's conclusion on credibility;
-- The new evidence did not meet the requirements of paragraph 113(a) of IRPA and should not be accepted;
-- Even considering the new evidence, it does not establish Somali or tribal/clan identity;
-- Mr. Karod should have been aware of the decision in Said v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1854 (T.D.) (QL) and therefore should have filed an affidavit rather than a letter; (the officer drew a negative inference from his failure to do so);
-- Mr. Karod failed to explain how he knew that the applicant was a member of the Reer Baraawe tribe and the officer's own independent research did not provide any information on such a tribe or clan in Somalia;
-- The two affidavits came from persons identified as a close family friend and a cousin each of whom are not disinterested in the outcome;
-- The documents filed were entitled to little weight.
ANALYSIS
[9]There are two key issues in this case:
(a) Whether the new documents meet the requirements of IRPA paragraph 113(a);
(b) Whether the decision on the facts should be subject to judicial review.
[10]The standard of review with respect to the first issue is correctness as to law and reasonableness simpliciter as to the application of the facts to the law. The standard of review with respect to the officer's factual analysis is patent unreasonableness.
PARAGRAPH 113(a) CONSIDERATIONS
[11]The relevant provision of IRPA reads as follows:
113. Consideration of an application for protection shall be as follows:
(a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection;
[12]The officer, in reaching the conclusion that the evidence did not fall within paragraph 113(a), was significantly influenced by the RPD decision. That RPD decision is itself problematic as it is a clear effort to resile from the RPD's own finding in respect of the sister's positive refugee finding that the sister was Somali, a member of the specific tribe and subject to persecution. That decision suggests an opaque finding that the two are not sisters. The RPD's decision raises a question of whether there was an issue of estoppel both with respect to the sister's and the applicant's nationality. There is no evidence that any efforts have been made to reopen the findings with respect to the sister. There was no finding that they were not in fact sisters. Therefore it must be taken that the two sisters, similarly situated, received very different treatment by the RPD.
[13]For purposes of this judicial review, the relevant phrase of paragraph 113(a) is the right of a PRRA applicant to present "only new evidence . . . that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of rejection [by the RPD]".
[14]It is difficult to contemplate a better witness as to the applicant's identity than her sister whose claim was almost identical to that of the applicant and whose claim had been accepted by the same decision making body. There is nothing before the Court which would suggest that the applicant should have anticipated the RPD's attack on the applicant and, more importantly, her sisters's credibility.
[15]The officer is critical of the applicant and her counsel for not explaining why the new evidence, two affidavits and a letter, was not before the RPD. With respect, the answer seems obvious: that there was no need for this type of evidence in view of the previous findings of the RPD in respect of the sister. At least on the point of national identity, if one sister was found to be Somali by birth, except for some unusual circumstances, the other sister would also be found to be Somali.
[16]Therefore, the Court finds that the officer's conclusion that the new evidence did not meet the requirements of paragraph 113(a) of IRPA is not reasonable because the applicant could not reasonably have been expected in the circumstances to have presented the evidence to the RPD.
FACTUAL CONSIDERATION--NATIONAL IDENTITY
[17]As the officer went on to consider the issue of whether national identity had been established, it is necessary to deal with that finding. While the standard of review of the factual finding is patent unreasonableness, where the process of reaching that conclusion involves issues of fairness, natural justice or law, the standard is correctness.
[18]The respondent argues that since the finding of national identity is based on sufficiency of evidence, there was no requirement to hold a hearing pursuant to IRPA paragraph 113(b) and section 167 of the Regulations [Immigration and Refugee Protection Regulations, SOR/2002-227]; each of which reads:
113. Consideration of an application for protection shall be as follows:
. . .
(b) a hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required;
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.
[19]The officer's finding of sufficiency of evidence cannot be divorced from the officer's credibility findings. The first of these findings is the officer's adoption of the RPD's credibility conclusions. While that conclusion alone may not be sufficient to trigger the need for a hearing, that conclusion combined with the officer's adverse inference about a letter in lieu of an affidavit and the comments about not finding any information about the clan or tribe, leads to the conclusion that the officer did not find the applicant and her witnesses to be believable.
[20]Paragraph 113(b) of IRPA and section 167 of the Regulations do not create a statutory obligation to conduct an oral hearing even where credibility is in issue.
[21]However, the two sections when read together raise a presumption in favour of an oral hearing where the enumerated factors arise. This is nothing more than a codification of some of the principles of natural justice and of fairness.
[22]In this case, the officer never considered the applicability of these provisions. Moreover where credibility of this type is in issue, the presumption in favour of an oral hearing is strong. It becomes more than a presumption where the decision-maker embarks on independent research, concludes in the negative as to the applicant's submission and never allows the applicant to address the results of this independent research.
[23]The Court is of the view that the failure to conduct an oral hearing was, at the very least, a breach of the principle of natural justice and fairness.
[24]The officer's factual conclusions can only be reviewed on a standard of patent unreasonableness which is defined as "unreasonable on its face, unsupported by evidence, or vitiated by failure to consider the proper factors or apply the appropriate procedures." The decision is said to be patently unreasonable where "it was made arbitrarily or in bad faith, it cannot be supported on the evidence, or the Minister failed to consider the appropriate factors." Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, at paragraphs 41 and 29.
[25]The first factual finding subject to attack is the negative inference drawn because a witness filed a letter rather than an affidavit. The officer based this conclusion on the premise that the witness should have known of the Court's decision in Said v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1854 (T.D.) (QL).
[26]There are two points to be made in regard to this conclusion. The first is that the decision does not hold that a letter is not acceptable evidence or that identity has to be established by affidavit. The second is that the decision is an unreported consent order of Justice Lutfy (as he then was) which the applicant said was, at that time, only available upon request to the Court. There is no sound basis for the officer's conclusion or the drawing of a negative inference. The officer might reject the letter for non-compliance with section 178 [as am. by SOR/2004-167, s. 49]of the Regulations but there is no basis for drawing a negative inference.
[27]The officer gives little weight to the other witnesses' affidavit evidence because it comes from a close family friend and a cousin. The officer fails to explain from whom such evidence should come other than friends and family. Section 106 of IRPA recognizes the difficulty in providing national identity with the usual documentation (birth certificates, passports, etc.) from countries having unstable civil administration.
[28]The officer failed to consider what other sources of national identity could or should have been produced when she rejected the sworn affidavit of two Canadian citizens. There must be a better basis for rejecting this evidence otherwise the decision is plainly arbitrary.
[29]Lastly, the officer engaged in independent research from which she concluded that there was no evidence of the Reer Baraawe tribe/clan. This conclusion clearly affects the officer's determination as to proof of national identity. It also goes to the officer's credibility findings.
[30]Assuming, without concluding, that a PRRA officer may conduct independent research, there are at least two further requirements. Firstly, it has to be full, fair and accurate research. Secondly, where it is to be used against a party, that party is entitled to notice and to an opportunity to be heard on the results of the research.
[31]The tribe/clan and its members are also referred to in evidence and other documents by various spelling similar to Reer Baraawe (i.e. Brava). The people are referred to as Bravanese or similar spellings. There are several references to the Bravanese clan in the documents listed under the heading "Summary of Supporting Documents" which was attached to the applicant's PRRA application. These are documents from such organizations as the UNHCR, Amnesty International and U.S. Department of State.
[32]Since there is no evidence of how or what was independently researched by the officer and yet there exists documents which refer to the applicant's tribe/clan (or a reasonable approximation), the officer's conclusions are not supported by any evidence and the officer failed to consider evidence presented in the PRRA application.
[33]For these reasons the Court finds that the officer's decision does not adhere to the principles of natural justice and fairness and is patently unreasonable.
CONCLUSIONS
[34]For these reasons, the application for judicial review will be granted. An order will be issued quashing the PRRA decision and remitting the matter back for a determination by a different officer.
[35]At the time of the hearing, the parties did not believe that there was a question for certification. In fairness to the parties, I will refrain from issuing the order for 14 days from the issuance of these reasons (subject to no enforcement action under the PRRA decision) to allow the parties to consider their position and make submissions on a certified question, if they have altered their position.