Brown v. Canada (Citizenship and Immigration)

Brown v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2012-11-08
Neutral citation
2012 FC 1305
File numbers
IMM-3364-12
Decision Content
Federal Court
Cour fédérale
Date: 20121108
Docket: IMM-3364-12
Citation: 2012 FC 1305
Ottawa, Ontario, November 8, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
DONAVAN DERRICK BROWN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, SC­ 2001, c 27 (Act) for judicial review of the decision of a Senior Immigration Officer (Officer), dated 24 February 2012 (Decision), which refused the Applicant’s application for a Pre-Removal Risk Assessment (PRRA).
BACKGROUND
[2] The Applicant is a 36-year-old man from Jamaica. The first time he came to Canada was in 2008, as a Farm Worker on a Temporary Foreign Worker program. He returned to Jamaica in 2008 once the season was over. The Applicant came back to Canada in 2009 on the same type of visa. This time, he stayed in Canada once his visa expired. Based on his overstay, the Applicant was barred from making a refugee claim. He applied for a PRRA on 30 November 2011 on the basis that he is bisexual and risks serious harm if returned to Jamaica.
[3] To help him prepare his PRRA, as well as an In-Canada Spousal Sponsorship application (which is still underway), the Applicant hired Mr. Vernal Pinnock. Mr. Pinnock is an immigration consultant and member of the Immigration Consultants Regulatory Council of Canada (ICCRC). The Applicant says that Mr. Pinnock had him sign blank PRRA forms, and that he only spoke to Mr. Pinnock for 20-25 minutes on the phone before submitting the PRRA. The Applicant also claims that when he asked Mr. Pinnock if he needed to gather any supporting documents, Mr. Pinnock told him that none would be necessary.
[4] The Applicant filed a complaint to the ICCRC against Mr. Pinnock on 12 April 2012. A Further Affidavit of Kathryn Lynch was filed on 20 August 2012 detailing this complaint. On 11 May 2012, ICCRC wrote to the Applicant requesting further details about his complaint. The Applicant replied on 11 June 2012. On 14 June 2012, ICCRC wrote to Mr. Pinnock advising him of the complaint. On 17 August 2012, ICCRC informed the Applicant that the complaint had been closed because the Applicant was “unable to corroborate [his] allegations.” The Applicant was informed by way of email on 20 August 2012 that he would be unable to see Mr. Pinnock’s reply because the matter was confidential. The Applicant also submitted a letter to Citizenship and Immigration Canada (CIC) on 30 May 2012 advising them of the complaint against Mr. Pinnock, and asking them to replace his existing Sponsorship Application with new sponsorship forms and supporting evidence.
[5] The Applicant’s PRRA includes the requisite forms, an unsworn letter from the Applicant, and a letter from Mr. Pinnock. The Certified Tribunal Record (CTR) includes a 2011 United States Department of State Country Report on Jamaica, which the Applicant says in his Memorandum of Argument was not submitted by Mr. Pinnock. The portion of the Department of State Report relevant to the Applicant is found on pages 44-45 of the CTR. It details many incidences of violence against homosexuals in Jamaica, including some perpetrated by the police. The document states that conditions in Jamaica are such that homosexual people suffer prejudice and are offered little to no protection by the state.
[6] The unsworn letter from the Applicant is found on page 15 of the CTR. In it, the Applicant states that he is bisexual and that in Jamaica homosexuals are targeted by the general population, as well as the police. The letter states that the Applicant was in a secret same-sex relationship for a number of years, but in 2007 he was caught on a beach with his partner and they were beaten up and threatened. In the Applicant’s Affidavit submitted in support of this Application (pages 11-26 of the Application Record), the Applicant states that the incident on the beach never happened, and it was made up by Mr. Pinnock.
[7] The Applicant’s letter goes on to say that while he was working in Canada in 2008, his partner was shot and killed. When the 2008 season was over he returned to Jamaica. The Applicant states that in December 2008, he was shot at by two men, and then he stayed underground until coming back to Canada in 2009. The Applicant says he went to the police in Simcoe, Ontario, to tell them his story while working in the summer of 2009 and was told that an officer would come to see him within 4 days, but no one ever showed up. He says that soon after this some of the other Jamaicans in his bunk started teasing him and leaving notes about how homosexuals have AIDS and must die. The Applicant says he started staying away from his job for days at a time, and eventually stopped going altogether. He states that he regrets not making a refugee claim earlier, but cannot go back to Jamaica because he fears he will be killed.
[8] The letter from Mr. Pinnock included with the PRRA application is found on pages 22-23 of the CTR. It states that there “is no way of showing new evidence” and that the Applicant is “relying on the nature of the harm.” No other evidence was included, and a hearing was not conducted. The Officer rejected the Applicant’s PRRA application on 24 February 2012.
DECISION UNDER REVIEW
[9] The Decision in this case consists of a letter the Officer sent the Applicant on 24 February 2012, along with the Officer’s notes on the file. The Officer rejected the PRRA application because she determined the Applicant had provided insufficient evidence to establish the risk asserted.
[10] The Officer started her Decision by reviewing the events described by the Applicant in his letter. She then stated that the Applicant had not provided sufficient evidence to establish his claim, nor did it appear he made any efforts to do so. The Officer found it unreasonable that the Applicant had not provided more detailed information on:
• His homosexual relationship and partner;
• How and why his partner was killed in Jamaica, and specifically what this had to do with his partner’s sexual orientation;
• The 2007 beating and 2008 shooting: whom he thinks may be responsible, how they are connected to his sexual orientation, and whether the two incidences are connected;
• Why he felt he could not approach the police to report the shooting;
• The report filed with the Canadian police in Simcoe.
[11] The Officer stated that in assessing the Applicant’s overall statements she found it unreasonable that he did not make a refugee claim while on a valid work permit, and even more unreasonable that he did not submit any supporting documentation whatsoever. The Officer found the Applicant had provided insufficient evidence to establish the risk alleged, and though conditions may be unfavourable for bisexuals in Jamaica, the Applicant had not established a risk against which to weigh these conditions. The Officer found the Applicant did not face a risk as described in section 96 or 97 of the Act, and rejected his PRRA application.
ISSUES
[12] The Applicant raises the following issues:
1) Did the Officer err by failing to make an adverse credibility finding against the Applicant, and then failing to conduct an analysis of the risk of returning a bisexual man to Jamaica?
2) Was the Applicant denied a fair hearing due to the incompetence of Mr. Pinnock?
STANDARD OF REVIEW
[13] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.
[14] The first issue goes to the Officer’s evaluation of evidence and credibility in regards to the PRRA. In Hnatusko v Canada (Minister of Citizenship and Immigration), 2010 FC 18 at paragraph 25, Justice John O’Keefe held the standard of review applicable to a PRRA Officer’s decision is reasonableness. Justice Maurice Lagacé made a similar finding in Chokheli v Canada (Minister of Citizenship and Immigration), 2009 FC 35 at paragraph 7, as did Justice André Scott in Ahmad v Canada (Minister of Citizenship and Immigration), 2012 FC 89 at paragraph 19. The Applicant agrees, at paragraph 18 of the Applicant’s Memorandum of Argument, that the standard of review applicable to the first issue is reasonableness.
[15] Although not presented as a separate issue, the Applicant argues at page 187 of the Applicant’s Memorandum of Argument that the Officer used the excuse of “insufficiency of evidence” to avoid holding an oral hearing in accordance with subsection 113(b) of the Act and section 167 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations). Views have differed in the Federal Court as to whether the core of the issue is procedural fairness (see Prieto v Canada (Minister of Citizenship and Immigration), 2010 FC 253; Sen v Canada (Minister of Citizenship and Immigration), 2006 FC 1435) or an evaluation of facts requiring deference (see Puerta v Canada (Citizenship and Immigration), 2010 FC 464; Marte v Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 930). Justice Judith Snider dealt with this issue in Mosavat v Canada (Minister of Citizenship and Immigration), 2011 FC 647, where she said at paragraph 9:
In my view, the applicable standard of review is reasonableness. The Officer's task is to analyze the appropriateness of holding a hearing in light of the particular context of a file and to apply the facts at issue to the factors set out in s.167 of the Regulations. Thus, the question is one of mixed fact and law. As the Supreme Court held at paragraph 53 of Dunsmuir v New Brunswick, 2008 SCC 9, questions of mixed fact and law attract deference and are reviewable on the reasonableness standard.
This was cited with approval by Justice Roger Hughes in Rajagopal v Canada (Minister of Citizenship and Immigration), 2011 FC 1277 [Rajagopal] and Justice Yves de Montigny in Adetunji v Canada (Minister of Citizenship and Immigration), 2012 FC 708. The Applicant seems to agree; he included his arguments in regards to the oral hearing as part of the first issue dealing with credibility, and advanced Justice Hughes’ decision in Rajagopal in support of his case. Thus, this issue will be reviewed on a standard of reasonableness.
[16] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph 47, and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
[17] The second issue goes to the Applicant’s right to fully present his case, which is an issue of procedural fairness (see Xu v Canada (Minister of Citizenship and Immigration), 2006 FC 718, Baker v Canada (Minister of Citizenship and Immigration, [1999] 2 SCR 817 [Baker] at paragraph 22). In Canadian Union of Public Employees (C.U.P.E.) v Ontario (Minister of Labour), 2003 SCC 29, the Supreme Court of Canada held at paragraph 100 that it “is for the courts, not the Minister, to provide the legal answer to procedural fairness questions.” Further, the Federal Court of Appeal in Sketchley v Canada (Attorney General), 2005 FCA 404 at paragraph 53 held that the “procedural fairness element is reviewed as a question of law. No deference is due. The decision-maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this duty.” The Respondents agree that the standard of review applicable to the second issue is correctness.
STATUTORY PROVISIONS
[18] The following provisions of the Act are applicable in this proceeding:
Convention refugee
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political
opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries;
[…]
Person in Need of Protection
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning ­ of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care
[…]
112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in
accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1).
[…]
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;
[…]
Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
[…]
Personne à protéger
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
[…]
112. (1) La personne se trouvant au Canada et qui n’est pas visée au paragraphe 115(1) peut, conformément aux règlements, demander la protection au ministre si elle est visée par une mesure de renvoi ayant pris effet ou nommée au certificat visé au paragraphe 77(1).
[…]
113. Il est disposé de la demande comme il suit:
[…]
b) une audience peut être tenue si le ministre l’estime requis compte tenu des facteurs réglementaires;
[…]
[19] The following provisions of the Regulations are applicable in this proceeding:
Hearing – prescribed factors
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.
Facteurs pour la tenue d’une audience
167. Pour l’application de l’alinéa 113b) de la Loi, les facteurs ci-après servent à décider si la tenue d’une audience est requise :
a) l’existence d’éléments de preuve relatifs aux éléments mentionnés aux articles 96 et 97 de la Loi qui soulèvent une question importante en ce qui concerne la crédibilité du demandeur;
b) l’importance de ces éléments de preuve pour la prise de la décision relative à la demande de protection;
c) la question de savoir si ces éléments de preuve, à supposer qu’ils soient admis, justifieraient que soit accordée la protection.
ARGUMENTS
The Applicant
The Officer’s Credibility and Risk Assessment
[20] The Applicant states that the Officer failed to make a credibility finding in regards to the Applicant’s bisexuality, and then having not made a negative credibility finding declined to conduct a state protection analysis. Even if the Officer did not believe the details of the Applicant’s story, she did not specifically dispute his sexual orientation. The Applicant submits that his undisputed membership in this group – bisexual men – is enough to ground refugee protection under s. 97 of the Act based on the risks associated with returning a member of this group to Jamaica.
[21] The Applicant points out that the word “credibility” does not specifically appear anywhere in the Decision. The Applicant characterizes the Officer’s complaint as a lack of detail or corroborating proof of the events recounted in the PRRA, but argues that even if the Officer discounted all these events it was still possible to find that he is bisexual. The Applicant argues that though the Officer rejected the PRRA on the basis that the Applicant failed to provide sufficient evidence to corroborate the stories in his claim, this does not mean the Officer made a credibility finding in regards to the Applicant’s bisexuality.
[22] The Applicant’s sexual orientation is the core of the claim, and as Justice Sean Harrington stated in John Doe 2004 v Canada (Minister of Citizenship and Immigration), 2004 FC 360 at paragraph 13, in this situation the Officer has a duty to identify adverse credibility findings in “clear and unmistakeable terms.” The Officer failed to make any clear finding in regards to the Applicant’s sexuality, and thus it must be concluded that she accepted that the Applicant is bisexual. The Applicant contrasts this Decision to that in Ferguson v Canada (Minister of Citizenship and Immigration), 2008 FC 1067 [Ferguson] at paragraph 6, where a “clear and unmistakable” finding was made when the Officer stated “there is insufficient objective evidence before me to establish that the applicant is, on the balance of probabilities, a lesbian.” No finding of this nature was made; the Applicant’s statements in regards to his sexual orientation were unchallenged by the Officer, and thus presumed to be true (see Maldonado v Canada (Minister of Employment and Immigration), [1980] 2 FC 302 (CA) at paragraph 5).
[23] The Applicant submits that once it is established that he is a member of a group whose members are, by sole virtue of their membership in the group, likely to suffer persecution, a risk analysis must be conducted. This is because section 97 of the Act does not require a subjective basis for the fear. As demonstrated by Odetoyinbo v Canada (Minister of Citizenship and Immigration), 2009 FC 501 [Odetoyinbo] at paragraphs 6-8, Alemu v Canada (Minister of Citizenship and Immigration), 2004 FC 997 at paragraphs 45-46 [Alemu], and Bastien v Canada (Minister of Citizenship and Immigration), 2008 FC 982 [Bastien] at paragraphs 8-12, notwithstanding negative credibility findings in regards to events in the Applicant’s claim, if objective evidence establishes that a certain group is at risk, and the Applicant is a member of that group, then a claim will be made out under section 97. As Justice Luc Martineau said at paragraph 8 of Odetoyinbo:
In the case at bar the Board did not explicitly state in its reasons that it did not believe that the applicant was bisexual. Accordingly, it could not ignore compelling objective evidence on record demonstrating the abuses which gay men are subjected to in Nigeria. Therefore, even if the Board rejected the applicant’s account of what happened to him in Nigeria, it still had a duty to consider whether the applicant’s sexual orientation would put him personally at risk in his country.
This point was also made in Alemu, where Justice Carolyn Layden-Stevenson said at paragraph 45: “Whether or not an applicant was a credible witness does not prevent him from being a refugee if his political opinions and activities are likely to lead to his arrest and punishment.” The Applicant asserts that the Officer had a duty to consider whether his bisexuality would put him personally at risk if returned to Jamaica.
[24] The Applicant argues that there is clear evidence that bisexual men face persecution in Jamaica. He submitted three documents in support of this risk as part of this Application, including the US Department of State Report that forms part of the CTR. The Applicant also states that the Officer had an independent duty to consult publicly available resources concerning country conditions (see Hassaballa v Canada (Minister of Citizenship and Immigration), 2007 FC 489; Jessamy v Canada (Minister of Citizenship and Immigration), 2009 FC 20; Lima v Canada (Minister of Citizenship and Immigration), 2008 FC 222). The Applicant concludes that the sum of the lack of an adverse finding in regards to his bisexuality combined with general knowledge on country conditions in Jamaica renders the Officer’s Decision unreasonable. The failure of the Officer to conduct a risk analysis under section 97 was erroneous, and the Decision ought to be quashed on this ground.
The Lack of an Oral Hearing
[25] The Applicant also states that it was unreasonable for the Officer not to hold an oral hearing, as per subsection 113(b) of the Act and section 167 of the Regulations. He says that the Officer used the finding of insufficient evidence as an excuse to get around holding an oral hearing, a practice that was condemned by Justice Roger Hughes in Uddin v Canada (Minister of Citizenship and Immigration), 2011 FC 1289. Justice Hughes said at paragraph 3 of that decision:
The Court is concerned about decisions of PRRA Officers in which there is an endeavour to avoid the use of the word “credibility” in the hopes of avoiding a hearing. The intent of IRPA, its Regulations and attendant jurisprudence is clear; if credibility is an issue central to the matter before the Board and likely to lead to a result unfavourable to the applicant, a hearing should be held. It is not for a PRRA Officer to finesse these requirements by endeavouring to couch what are, in reality, credibility concerns, in language suggesting lack of evidence or contradictory evidence.
The Applicant alleges that the Officer was engaging in this practice. In cases where the risk is based on sexual orientation credibility will almost always be an issue, and it was unreasonable for the Officer not to hold an oral hearing.
[26] The Applicant submits that the Officer’s failure to conduct an oral hearing, as well as her failure to conduct a risk and state protection analysis in light of the Applicant’s unchallenged statement that he is bisexual, renders the Decision unreasonable.
The Negligence of Mr. Pinnock
[27] The Applicant further submits that he did not have proper representation, and thus he was unable to participate effectively in the determination of his PRRA (see Hillary v Canada (Minister of Citizenship and Immigration), 2011 FCA 51 at paragraph 34). The Applicant’s right to representation is essential to his right to be heard, and is a fundamental principle of natural justice (Canada (Minister of Citizenship and Immigration) v Panahi-Dargahloo, 2010 FC 647 at paragraph 27). The Applicant submits that he was denied a fair hearing due to the incompetence of his immigration consultant, and this amounts to a breach of procedural fairness. Had he been properly represented he would have included a detailed narrative like the one included with this application, as well as other supporting materials.
[28] The Applicant states that he is an uneducated man from Jamaica, and cannot be expected to know anything about Canada’s immigration system. He did not even know the difference between criminal law and immigration law and this is why he went to the local police station to try and make a refugee claim. Mr. Pinnock approached the Applicant while he was in immigration detention and the Applicant accepted his help. When Mr. Pinnock told the Applicant that he would take care of everything in regards to the PRRA, the Applicant accepted it. Mr. Pinnock was negligent in holding himself out to be a lawyer when he was not, in failing to instruct the Applicant to obtain supporting documentation, in only speaking with the Applicant briefly over the phone, and in not having the Applicant review the PRRA before submitting it.
[29] The Applicant submits that the incompetence of Mr. Pinnock denied him a fair hearing. In Shirwa v Canada (Minister of Employment and Immigration), [1994] 2 FC 51 [Shirwa], Justice Pierre Denault said at paragraph 12: “…where the incompetence or negligence of the applicant's representative is sufficiently specific and clearly supported by the evidence such negligence or incompetence is inherently prejudicial to the applicant and will warrant overturning the decision…” The Applicant lists numerous other cases that have followed this reasoning. As established by Cove v Canada (Minister of Citizenship and Immigration), 2001 FCT 266 (CA) [Cove], immigration consultants are held to the same standards as counsel.
[30] The Applicant submits there are three requirements that must be met for negligence of counsel to establish a breach of procedural fairness (see Memari v Canada (Minister of Citizenship and Immigration), 2010 FC 1196; Shakiban v Canada (Minister of Citizenship and Immigration), 2009 FC 1177 [Shakiban]; Nizar v Canada (Minister of Citizenship and Immigration), 2009 FC 557; Rodrigues v Canada (Minister of Citizenship and Immigration), 2008 FC 77; Yang v Canada (Minister of Citizenship and Immigration), 2008 FC 269 [Yang]; Bedoya v Canada (Minister of Citizenship and Immigration), 2007 FC 505; M.R.A. v Canada (Minister of Citizenship and Immigration), 2006 FC 207). The three requirements are:
1. The Applicant must establish actual incompetence based on a “precise factual foundation” and sufficient evidence to establish the “exact dimensions of the problem”;
2. The Applicant must demonstrate that the incompetence resulted in prejudice. That is, but for the alleged incompetence, the result of the original hearing would have been different;
3. The Applicant must prove that his former counsel had an opportunity to respond to the complaint, or the matter has been referred to the proper governing body.
[31] The Applicant submits that he has met all three prongs of the test. Firstly, Mr. Pinnock’s conduct and the submitted PRRA establish the factual basis to demonstrate incompetence. Specifically, Mr. Pinnock approached the Applicant’s common-law wife while she was in an especially vulnerable state, he had the Applicant sign a blank PRRA form, he told the Applicant supporting documentation was not needed, he enclosed a cover letter with the PRRA mistakenly inferring that a refugee claim was made, he failed to include readily available corroborating evidence, he only ever contacted the Applicant for approximately 20 minutes on the phone, and he never showed the Applicant a copy of the completed PRRA before submitting it. Considered as a whole, these incidences meet the first requirement.
[32] In regards to the second requirement, the Applicant submits that the Officer rejected the PRRA based on insufficiency of evidence, and this insufficiency was caused by Mr. Pinnock’s negligence. The PRRA was rejected before even evaluating the Applicant’s credibility. The Officer listed specific things she found lacking in the PRRA application, and these insufficiencies would have been addressed had the Applicant had proper representation. It would have been easy for Mr. Pinnock to include things such as an affidavit by the Applicant, police reports, affidavits by people who knew about the Applicant’s bisexuality, and photos of the Applicant’s scars from an anti-gay attack. An affidavit by the Applicant providing many of the details mentioned by the Officer has been included with this Application, as well as photos of his scars, an affidavit from his common-law wife detailing the Applicant’s bisexuality, and a copy of the report to the Simcoe police. The Applicant points out that the last two documents listed are dated in 2009 – two years before his PRRA application. But for Mr. Pinnock’s negligence in not including these materials with the PRRA application, it is impossible to say whether the Officer would have come to the same conclusion.
[33] The Applicant also points out that the Respondents have not challenged the allegations of Mr. Pinnock’s negligence, though there were many opportunities to do so. Affidavit evidence from Mr. Pinnock was not provided, nor was the Applicant cross-examined on his affidavit. The Applicant has also filed a formal complaint with the ICCRC. The Applicant requested a copy of Mr. Pinnock’s reply to the complaints from ICCRC, but they would not provide it. The details of this complaint were provided in the Further Affidavit of Kathryn Lynch included with this Application, and are summarized above. Having met all the branches of the test, the Applicant submits that he was denied his right to procedural fairness, and the decision of the Officer ought to be quashed.
The Respondents
The Officer’s Credibility and Risk Assessment
[34] The Respondents remind the Court that the onus is on the Applicant to provide evidence in support of his PRRA Application. The Applicant provided virtually no detail about every allegation he made; nor did he provide any supporting documentation. The only thing before the Officer was the Applicant’s unsworn statement, and it was reasonable for the Officer to afford little weight to it. The Respondents cite Ferguson, above, at paragraph 32:
When, as here, the fact asserted is critical to the PRRA application, it was open to the officer to require more evidence to satisfy the legal burden. Had the statement been affirmed by the Applicant in a sworn affidavit submitted with her application, it would have been deserving of somewhat greater weight than it was given. Had it been supported by other corroborative evidence such as evidence from her lesbian partner(s), public statements, and the like, it would have attracted even more weight.
The Respondents cite numerous cases that state that a written statement alone is not sufficient to discharge the Applicant’s burden of proof in a PRRA application: see Parchment v Canada (Minister of Citizenship and Immigration), 2008 FC 1140; Buio v Canada (Minister of Citizenship and Immigration), 2007 FC 157; Carrillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94.
[35] The Respondents say that the Officer did make a finding in regards to the Applicant’s sexual orientation, and that the Odetoyinbo decision relied on by the Applicant can be distinguished from the one at hand. In Odetoyinbo, there was an oral hearing and the Applicant gave “elaborate testimony” in regards to his homosexuality, yet the Refugee Protection Division Panel was “totally silent” on the issue. In the present case, the Officer was not silent on the issue of the Applicant’s sexual orientation; she found that bisexual people faced risks in Jamaica, but the Applicant had not proven that he would face such a risk. In other words, the Officer found that the Applicant had not proven that he is bisexual.
[36] The Respondents submit that the Applicant’s reliance on the decision in Bastien, above, is misplaced. In that case, the applicant was a member of a particular social group and it was required that a risk assessment be conducted on this ground despite credibility concerns. The present case is distinguishable because there was insufficient evidence of the Applicant’s membership in a particular social group before the Officer.
[37] As the Officer was unconvinced of any of the Applicant’s claims, she was not obliged to conduct an analysis of the risks he would face if returned to Jamaica. This is supported by the Ferguson decision, at paragraph 6, where the finding by the Officer that “Without sufficient evidence that the applicant is a lesbian, an assessment of current country conditions does not establish that she is personally at risk in Jamaica” was upheld. The Applicant did not meet his burden of proof in this case, and there was nothing unreasonable about the Officer’s decision.
The Lack of an Oral Hearing
[38] The Respondents submit that considering the lack of evidence provided, it was open for the Officer to decide there was no need to hold an oral hearing to determine the issue of credibility. As stated by Justice Russel Zinn at paragraph 26 of Ferguson: “It is open to the trier of fact, in considering the evidence, to move immediately to an assessment of weight or probative value without considering whether it is credible.” The Officer gave little weight to the Applicant’s allegations of risk based on the lack of detail and supporting documentation provided, and thus it was unnecessary to assess the Applicant’s credibility.
[39] The jurisprudence makes clear that Officers do not have a duty to hold an oral hearing when sufficiency of evidence is the central issue; see Iboude v Canada (Minister of Citizenship and Immigration), 2005 FC 1316 at paragraph 14; Kazmi v Canada (Minister of Citizenship and Immigration), 2004 FC 1375 at paragraphs 9-11; Abdou v Canada (Solicitor General), 2004 FC 752 at paragraphs 3-8; Malhi v Canada (Minister of Citizenship and Immigration), 2004 FC 802 at paragraphs 7-9; Kim v Canada (Minister of Citizenship and Immigration), 2003 FCT 321 at paragraph 6. These cases establish that it is open to an Officer to determine there is not enough objective evidence to justify holding an oral hearing.
[40] The Respondents point out that the Applicant has submitted additional evidence and a detailed affidavit with this Application for Judicial Review, but the reasonableness of the Officer’s decision must be assessed based on the limited evidence that was before her at the time. The Respondents submit that the Officer’s Decision fell within the range of possible acceptable outcomes, and was reasonable.
The Negligence of Mr. Pinnock
[41] The Respondents submit that the bar for demonstrating that the Applicant was denied a fair hearing through the incompetence of his former counsel is very high. The first part of the test in Shirwa, above, requires “…sufficient evidence to establish the exact dimensions of the problem” so that the review is based on a “precise factual foundation”.” See also Betesh v Canada (Minister of Citizenship and Immigration), 2008 FC 173 at paragraph 16. This sort of evidence has not been adduced by the Applicant.
[42] In R v GDB, 2000 SCC 22 [GBD], the Supreme Court of Canada held at paragraphs 27-29 that for incompetence of counsel to result in a breach of procedural fairness an applicant must establish that: (1) counsel’s acts or omissions constituted incompetence; and (2) a miscarriage of justice resulted from the incompetence. The Court also stated that the onus is on the applicant to establish both branches of the test, and “the wisdom of hindsight has no place in this analysis.”
[43] GBD states that there is a wide range of reasonable professional judgment, and the Applicant bears a heavy onus in establishing misconduct. The brevity of the PRRA application does not render Mr. Pinnock incompetent. As stated in Cove, above, at paragraphs 5-6, applicants are bound by their choice of counsel. If the Applicant chooses to hire an immigration consultant rather than a member of the immigration bar, he has to deal with the consequences. In the same vein, the Applicant is also responsible for the choices he made in dealing with his counsel.
[44] The Applicant is fluent in English and appeared in person to obtain his PRRA application, so he should have known the importance of looking it over before it was submitted. It is reasonable to expect the Applicant to have made more of an effort to ensure his complete story was put forward to the Officer. The Applicant did not act diligently in this regard, and he must bear the responsibility for not acting when he found Mr. Pinnock’s actions troubling.
[45] The Respondents also point out that though the Applicant has now submitted some of the missing details in support of his story as part of this Application, he has still not provided some of the evidence which the Officer noted was missing. For example, the Applicant has still not provided letters from anyone who knew of his bisexuality in Jamaica, or the incident of shots being fired at him. There remains a serious lack of supporting evidence that the Applicant is bisexual. The Applicant has not demonstrated that had he provided the Officer with the details and documents provided in this Application, the Officer’s determination would have been different (see Shirvan v Canada (Minister of Citizenship and Immigration), 2005 FC 1509).
[46] As the Supreme Court of Canada said in GDB, complaints about counsel are best dealt with by the appropriate governing body. The Applicant has filed a complaint with ICCRC, and thus has a forum to address his concerns. The Respondents point out that the Affidavit of Kathryn Lynch states that Mr. Pinnock did respond to the Applicant’s complaint, but the ICCRC found that the Applicant was unable to corroborate his allegations. This constitutes evidence that Mr. Pinnock was not incompetent. The test from Shirwa is conjunctive, and the Applicant has not met all three branches. The Respondents submit that there has not been a breach of procedural fairness in this case.
The Applicant’s Reply
The Officer’s Assessment of the Applicant’s Sexual Orientation
[47] The Applicant further states that the Respondents’ arguments are contradictory: on the one hand the Officer was entitled to dismiss the PRRA application based entirely on insufficiency of evidence, but on the other hand Mr. Pinnock did an adequate job of preparing the materials to be submitted with the PRRA. The Applicant submits that both statements cannot be true.
[48] The Applicant reiterates the Odetoyinbo decision, and states that when country conditions such as those in Jamaica are established, it is mandatory that an Officer make a clear and unambig