Nnabuike Ozomma v. Canada (Citizenship and Immigration)

Nnabuike Ozomma v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2012-10-02
Neutral citation
2012 FC 1167
File numbers
IMM-8406-11
Notes
Reported Decision
Decision Content
Federal Court
Cour fédérale
Date: 20121002
Docket: IMM-8406-11
Citation: 2012 FC 1167
Ottawa, Ontario, October 2, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
MICHAEL-MARY NNABUIKE OZOMMA
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 28 October 2011 (Decision), which rejected the Applicant’s Pre-Removal Risk Assessment (PRRA).
BACKGROUND
[2] The Applicant is a 28-year-old citizen of Nigeria. He is subject to a removal order, which Justice Sean Harington stayed on 28 November 2011 pending the outcome of this application.
[3] The Applicant lived in the United States of America (USA) from 1999 until 2008, when he was deported to Nigeria. He fled Nigeria to Canada in December 2008 and arrived in Canada on 16 February 2009. The Applicant claimed refugee protection on 18 February 2009. The RPD heard his claim on 5 May 2010 and rejected it the same day. It found the Applicant was excluded by Article 1F(b) of the Convention Relating to the Status of Refugees (Convention) from claiming refugee status. While he was in the USA, the Applicant was convicted of several offences, including robbery and sexual assault. These were serious, non-political crimes which precluded his claim for protection. The RPD refused his claim on that basis.
[4] After his refugee claim was refused, the Applicant applied for a PRRA. He made written submissions on 18 February 2011. These submissions include a copy of the Personal Information Form (PIF) the Applicant had submitted to support his refugee claim. In his written submissions, the Applicant said his credibility was central to the determination of his PRRA, so he asked the Officer for an oral hearing.
[5] The Applicant asserted three grounds of risk in his PRRA. First, he faced prosecution in Nigeria for bringing Nigeria into disrepute based on his convictions in the USA. Second, he faced prosecution in Nigeria because he had escaped from prison there before he went to the USA. After his escape from prison, the Nigerian authorities sought to arrest him and were still looking for him. Third, the Applicant faced prosecution in Nigeria because he is a member of the Movement for the Actualization of the Sovereign State of Biafra (MASSOB), a group dedicated to creating an independent state for Igbo people in Nigeria. Prosecution on any one of these three grounds would mean he would be incarcerated in Nigeria, where conditions are terrible in prisons.
[6] The Officer considered the Applicant’s request for a hearing and the merits of his PRRA application on 28 October 2011. She refused both requests the same day.
DECISION UNDER REVIEW
[7] The Decision in this case consists of the letter the Officer sent to the Applicant on 28 October 2011 and the completed PRRA decision template.
Hearing Request
[8] The Officer rejected the Applicant’s request for an oral hearing because the factors set out in section 167 of the Immigration and Refugee Protection Regulations SOR 2002-227 (Regulations) were not met.
Preliminary Issues
[9] Before considering the merits of the PRRA, the Officer noted the RPD had not assessed the merits of the Applicant’s refugee claim. Section 113 of the Act allowed her to consider all the evidence he had put before both her and the RPD. The Officer also found the Applicant’s claim fell under paragraph 112(3)(c) of the Act because the RPD had rejected his claim under Article 1F(b) of the Convention. Therefore, subsection 113(d) required the Officer to consider only section 97 of the Act.
Merits of the PRRA
[10] The Officer rejected the Applicant’s PRRA because he did not face a risk to his life, a risk of cruel and unusual treatment or punishment, or a risk of torture if he returned to Nigeria.
[11] The Applicant alleged the Nigerian authorities had issued an arrest warrant for him based on his membership in MASSOB. He also said that going to prison in Nigeria amounted to cruel and unusual treatment or punishment and this would put his life at risk. The Officer found the Applicant was not a member of MASSOB because he had not provided any evidence to prove he was a member. His statements in the written submissions were insufficient to establish his membership and the associated risk. The Officer referred to the Immigration and Refugee Board’s Response to Information Request (RIR) NGA103196.FE, which said that MASSOB had been banned in Nigeria in 2001 and that members faced arrest and detention. The Officer also pointed to a report from the United States’ Department of State, the Country Report for Nigeria (2009), which said that MASSOB members who are arrested and do not have money or influence to bribe their way out of prison remain in detention.
[12] The Applicant was not at risk in Nigeria because he was not being sought by the authorities there. He said the authorities in Nigeria were after him, but he did not provide any objective evidence to corroborate this allegation. The Applicant’s testimony was not enough to convince the Officer the Nigerian authorities wanted to arrest him.
[13] The Officer gave little weight to a report from Amnesty International, Nigeria: Prisoners’ Rights Systemically Flouted, because the Applicant had not provided evidence that he had been or would be incarcerated. The Applicant had not provided probative material evidence to corroborate his allegations and his testimony alone was not sufficient.
[14] Although the evidence suggested Nigeria faces problems with violence, any risk to the Applicant from violence was faced by the rest of the population as well. The government apparatus in Nigeria had not broken down entirely.
[15] The Officer concluded there was no credible basis to establish the risk the Applicant alleged. He had provided little evidence other than his own statements that he had been in prison or had escaped from prison.
ISSUES
[16] The Applicant raises the following issues in this proceeding:
a. Whether the Officer breached his right to procedural fairness by not conducting an interview;
b. Whether the Decision was reasonable;
c. Whether the Officer’s reasons were adequate.
STANDARD OF REVIEW
[17] 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.
[18] On the first issue, the Officer’s conclusion that the factors in section 167 of the Regulations were not met is an issue of mixed fact and law. Accordingly, the standard of review is reasonableness. See Dunsmuir, above, at paragraph 53. Whether the process as a whole was fair is subject to the correctness standard. See Matano v Canada (Minister of Citizenship and Immigration) 2010 FC 1290 at paragraph 11.
[19] The second issue in this case will be analysed on the reasonableness standard. In Figurado v Canada (Solicitor General) 2005 FC 347, Justice Luc Martineau held at paragraph 51 that the standard of review applicable to a PRRA decision was reasonableness simpliciter. Justice Yves de Montigny followed Figurado in Lai v Canada (Minister of Citizenship and Immigration) 2007 FC 361, but noted at paragraph 55 that the standard must be adjusted according to the question being decided. In this case, the Officer was called on to decide whether the Applicant faced a risk under section 97, which is clearly an issue to be evaluated on the reasonableness standard. See Kaleja v Canada (Minister of Citizenship and Immigration) 2010 FC 252, and Guerilus v Canada (Minister of Citizenship and Immigration) 2010 FC 394.
[20] In Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) 2011 SCC 62 the Supreme Court of Canada held at paragraph 14 that the adequacy of reasons is not a stand-alone basis for quashing a decision. Rather, “the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.” The adequacy of the Officer’s reasons will be analysed along with the reasonableness of the Decision as a whole.
[21] 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.”
STATUTORY PROVISIONS
[22] The following provisions of the Act are applicable in this proceeding:
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).
[…]
(3) Refugee protection may not result from an application for protection if the person
[…]
(c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention;
[…]
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;
[…]
(d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and
[…]
(ii) in the case of any other applicant, whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada.
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).
[...]
(3) L’asile ne peut être conféré au demandeur
dans les cas suivants :
[…]
c) il a été débouté de sa demande d’asile au titre de la section F de l’article premier de la Convention sur les réfugiés;
[…]
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;
[…]
d) s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à l’article 97 et, d’autre part :
[…]
(ii) soit, dans le cas de tout autre demandeur, du fait que la demande devrait être rejetée en raison de la nature et de la gravité de ses actes passés ou du danger qu’il constitue pour la sécurité du Canada.
[23] The following provisions of the Regulations are also applicable in this proceeding:
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.
167. Pour l’application de l’alinéa 113 b) 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
Breach of Procedural Fairness
[24] The Applicant says that his case is one of the exceptional cases in which an oral hearing was required to assess his credibility and determine his PRRA. His testimony, which has never been found not credible, was entitled to the presumption of truthfulness established by Maldonado v Canada (Minister of Employment and Immigration), [1980] 2 FC 302 (FCA). In Cho v Canada (Minister of Citizenship and Immigration) 2010 FC 1299, Justice Danièle Tremblay-Lamer held at paragraph 29 that
Furthermore, I note that because the Board refused to hear the applicant’s refugee claim, the applicant has never had his credibility assessed in the context of an oral hearing. The Supreme Court of Canada in Singh, above at para. 20, indicated that, “where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing.” For these reasons, in failing to grant the applicant’s request for an oral hearing, I find that the PRRA officer breached the duty of procedural fairness that was owed to the applicant.
[25] The Officer was obligated to hold a hearing to assess the Applicant’s credibility because all the factors in section 167 of the Regulations were met.
167(a) – Serious Issue of Credibility
[26] The Officer concluded that, although the Applicant said that Nigerian authorities are looking for him, the lack of an arrest warrant or other corroborating document meant he had not shown he faced a risk in Nigeria. In a similar situation, Justice Harrington said in S.A. v Canada (Minister of Citizenship and Immigration) 2010 FC 549 at paragraph 20 that:
In my view, the PRRA officer could not have made the decision he did unless he did not believe the claimant. That lack of belief is inherent in his analysis (Liban v. Canada (Minister of Citizenship and Immigration), 2008 FC 1252, 76 Imm. L.R. (3d) 227). It seems extraordinary that S.A.’s story was not subjected to an oral examination.
See also Zokai v Canada (Minister of Citizenship and Immigration) 2005 FC 1103 at paragraph 12.
[27] The Officer said that “[in] the absence of any probative, material evidence to corroborate his allegation, I find his statement to be insufficient in order to establish that he is a member of MASSOB and that he will be persecuted by Nigerian authorities upon return to Nigeria.” The Officer did not find any inconsistencies in the Applicant’s story of membership in MASSOB, his description of conditions in Nigerian prisons, or his story about his escape from prison. The Applicant’s evidence was uncontradicted, which means the Officer was required to assess his credibility. As Justice James O’Reilly said in Liban v Canada (Minister of Citizenship and Immigration) 2008 FC 1252 at paragraph 14:
In my view, when the officer stated that there was "insufficient objective evidence" supporting Mr. Liban’s assertions, he was really saying that he disbelieved Mr. Liban and, only if Mr. Liban had presented objective evidence corroborating his assertions, would the officer have believed them. To my mind, these findings are conclusions about Mr. Liban’s credibility. They were central to his application. If the officer had believed Mr. Liban, the officer, in light of the documentary evidence he accepted, would likely have found that Mr. Liban was at risk.
[28] The Applicant declared that the information in his PIF was complete, true, and correct. As such, his story of arrest, detention, and escape in Nigeria was a sworn statement which was entitled to the presumption of truthfulness.
[29] There was no distinction between the Applicant’s credibility and the sufficiency of the evidence in this case. The Officer was therefore obligated to allow the Applicant the opportunity to address the lack of corroborating documents in an interview. See Amarapala v Canada (Minister of Citizenship and Immigration) 2004 FC 12. There was no valid reason to doubt the Applicant’s credibility, so the absence of corroborating documents was not a valid reason to deny his claim. It was also not demonstrated that the Applicant would be able to obtain an arrest warrant or other type of corroborating document from the Nigerian Government.
167(b) – Evidence of Central Relevance
[30] The Applicant’s story was central to the determination of his PRRA: he said he was a member of MASSOB and had escaped from prison. These assertions were crucial to the Decision and depended on the Applicant’s credibility.
167(c) – Evidence Justifies Accepting the PRRA
[31] Had the Officer accepted the Applicant’s assertion that the Nigerian authorities were looking for him and would detain him, this would have justified accepting his PRRA. She referred to evidence supporting the Applicant’s assertion that conditions in Nigerian prisons are deplorable. Imprisonment in Nigeria would amount to cruel and unusual treatment or punishment regardless of the legal basis for it. If the Applicant’s story is true, he is at risk under section 97, so his PRRA would have to be accepted.
Decision Unreasonable
[32] The Officer also unreasonably refused the Applicant’s PRRA because he did not produce corroborating documents. In Ahortor v Canada (Minister of Employment and Immigration), [1993] FCJ No 705, Justice Max Teitelbaum said, at paragraph 45, that
The Board appears to have erred in finding the Applicant not credible because he was not able to provide documentary evidence corroborating his claims. As in Attakora, supra, where the F.C.A. held that the applicant was not required to provide medical reports to substantiate his claim of injury, similarly here the Applicant is not expected to produce copies of an arresting report. This failure to offer documentation of the arrest, while a correct finding of fact, cannot be related to the applicant’s credibility, in the absence of evidence to contradict the allegations.
[33] There was no evidence to contradict the Applicant’s story, so it was an error to require him to produce corroborating documents.
Reasons Inadequate
[34] The reasons show the Officer cloaked her negative credibility finding in the sufficiency of the evidence. As Justice Elizabeth Heneghan held in L.Y.B. v Canada (Minister of Citizenship and Immigration) 2009 FC 1167 at paragraph 21, this is a reviewable error. The Applicant cannot tell from the reasons whether or not the Officer accepted the truth of his story. For this reason, the reasons are inadequate.
The Respondents
[35] The Respondents say the Officer was not obligated to call the Applicant for an interview, so there was no breach of procedural fairness. It was reasonable for the Officer to conclude that the Applicant’s statements in his PIF were an insufficient basis on which to grant him protection.
No Breach of Procedural Fairness
[36] The Officer’s decision not to hold a hearing was discretionary and is subject to the reasonableness standard. Section 167 of the Regulations guides officers in the exercise of their discretion under subsection 113(b). In this case, the requirements of section 167 were not met, so there was no obligation to hold a hearing.
[37] The Officer assessed the PRRA on the basis of the sufficiency of the evidence, not the Applicant’s credibility. She rejected his claim that he was a member of MASSOB and was wanted by the Nigerian authorities because he did not provide corroborating evidence to support it. This was a reasonable conclusion. In Pulaku v Canada (Minister of Citizenship and Immigration) 2011 FC 1048, Justice David Near upheld a PRRA officer’s decision not to hold an interview when the only evidence available was Pulaku’s testimony. Justice Near pointed out that “The Applicant only presented his subjective belief that a blood feud existed, and this was not sufficient to convince the Officer given the other documentary evidence.”
[38] Where a PRRA is determined on the sufficiency of the evidence, there is no need to conduct an oral hearing. A PRRA officer may reject assertions which are not supported by corroborating evidence. See Ferguson v Canada (Minister of Citizenship and Immigration) 2008 FC 1067 at paragraph 27, I.I. v Canada (Minister of Citizenship and Immigration) 2009 FC 892 at paragraphs 20 to 24 and Manickavasagar v Canada (Minister of Citizenship and Immigration) 2012 FC 429 at paragraphs 28 to 31. It was open to the Officer to require corroborating evidence to support the Applicant’s story. It was also open to the Officer to find the Applicant’s sworn statements in his PIF were insufficient to prove the facts in issue. See I.I., above at paragraphs 20 to 24.
[39] The Applicant is not entitled to an oral hearing simply because the RPD did not assess the risk he faces. The absence of a risk assessment by the RPD is not one of the factors listed in section 167 of the Regulations. Further, the Court has held that a PRRA officer is not required to hold an oral hearing where the RPD did not assess credibility.
[40] Pulaku, I.I., and Manickavasagar show that the lack of corroborating evidence does not mean that an oral hearing is required to assess credibility. This goes to a PRRA applicant’s failure to produce enough evidence to prove the facts in issue. If the Court held that a lack of corroborating evidence always requires an oral hearing, PRRA applicants would be motivated to submit bare applications to trigger the hearing requirement. This would be contrary to Parliament’s expressed intent to limit oral hearings in PRRA applications to exceptional cases.
Decision Reasonable
[41] It was open to the Officer to take the lack of corroborating evidence into account and conclude that the Applicant’s PRRA should be rejected. Ahortor, above, is distinguishable because there was evidence in that case which suggested it was unreasonable to expect Ahortor to produce a copy of an arrest report. There was no such evidence before the Officer in the instant case. The Applicant simply failed to meet the onus on him to prove his case.
Reasons Adequate
[42] The Officer set out her findings of fact and the evidence on which those findings were based. She also addressed the major points in issue when she said the Decision was based on the sufficiency of the evidence rather than credibility. Newfoundland Nurses, above, establishes, the adequacy of reasons is not an aspect of procedural fairness but is part of the reasonableness inquiry.
ANALYSIS
[43] This is one of those cases where the jurisprudence of the Court, ostensibly at least, appears to point in different directions. The Applicant says that the Officer’s decision, purportedly based upon insufficiency of evidence, is a cloaked credibility finding that satisfied the criteria in section 167, and so required an oral interview with the Applicant or reasons for not granting such an interview.
[44] The Applicant says that the evidence in his PRRA submissions — i.e. his PIF narrative from two years before — attracts the presumption of truthfulness established in Maldonado, above, so that by requiring more objective evidence to corroborate what he said about the risks he faces in Nigeria the RPD had to disbelieve what he said in his PIF and his PIF declaration.
[45] The Applicant places his case on the same footing as Cho, above, where Justice Tremblay-Lamer had the following to say on point at paragraph 29:
Furthermore, I note that because the Board refused to hear the applicant’s refugee claim, the applicant has never had his credibility assessed in the context of an oral hearing. The Supreme Court of Canada in Singh, above at para. 20, indicated that, “where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing.” For these reasons, in failing to grant the applicant’s request for an oral hearing, I find that the PRRA officer breached the duty of procedural fairness that was owed to the applicant.
[46] Similar things were said by Justice Harrington in S.A., above, at paragraph 20:
In my view, the PRRA officer could not have made the decision he did unless he did not believe the claimant. That lack of belief is inherent in his analysis (Liban v. Canada (Minister of Citizenship and Immigration), 2008 FC 1252, 76 Imm. L.R. (3d) 227). It seems extraordinary that S.A.’s story was not subjected to an oral examination.
[47] Further support for the Applicant’s case is found in Zokai, above, at paragraph 12, where Justice Michael Kelen said:
Furthermore, it is clear, despite the respondent’s submissions to the contrary, that credibility was central to the negative PRRA decision. In refusing to accord weight to the applicant’s story without corroborating evidence, the PRRA Officer, in effect, concluded that the applicant was not credible. In my view, given these credibility concerns, it was incumbent on the Officer to consider the request for an oral hearing and to provide reasons for refusing to grant the request. The Officer’s failure to do so in this case constitutes a breach of procedural fairness. Moreover, in view of the special circumstances of this case with respect to credibility, the Court is of the view that a hearing is appropriate.
[48] Justice O’Reilly took a similar position in Liban, above:
In my view, when the officer stated that there was “insufficient objective evidence” supporting Mr. Liban’s assertions, he was really saying that he disbelieved Mr. Liban and, only if Mr. Liban had presented objective evidence corroborating his assertions, would the officer have believed them. To my mind, these findings are conclusions about Mr. Liban’s credibility. They were central to his application. If the officer had believed Mr. Liban, the officer, in light of the documentary evidence he accepted, would likely have found that Mr. Liban was at risk.
[49] There are also cases going the other way, and which suggest that evidence can be weighed for sufficiency without the need for a credibility finding. Justice Russel Zinn provided a full discussion of how this might occur in Ferguson , above, at paragraphs 16 to 28 and 32 to 34:
Counsel for both parties appeared to be of the same mind that, in the words of Respondent counsel, there is no principled approach to the issue of credibility versus sufficiency of evidence to be gleaned from these authorities. I do not share that view. Most of the cases to which the Court was referred were determined on the particular facts of the decision under review. In each instance the Court was required to make a determination as to whether, in the decision under review, “there is evidence that raises a serious issue of the applicant’s credibility”, to use the words of section 167 of the Regulations. That, in turn, required an examination of the evidence before the officer and the officer’s assessment of that evidence. I accept the submission of Applicant’s counsel that the Court must look beyond the express wording of the officer’s decision to determine whether, in fact, the applicant’s credibility was in issue.
In my view, the approach to be taken by both the officer and this Court, sitting in review, is to be guided by the principles set out by the Federal Court of Appeal in Carrillo v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J. No. 399.
Ms. Carrillo is a citizen of Mexico who sought refugee protection in Canada. She claimed that she had been abused by her common-law spouse and that her spouse's brother, a police officer, had helped her spouse find her when she hid after the beating. The principal issue before the Immigration and Refugee Protection Board was whether state protection was available to Ms. Carrillo in Mexico. Her refugee claim was dismissed by the Board. It found that she was not a credible or trustworthy witness with respect to her efforts to seek state protection in Mexico. Further, the Board held that had it found her to be credible, she had nonetheless failed to rebut the presumption of state protection with clear and convincing evidence. The Federal Court set aside that decision on the basis that the Board imposed too high a standard of proof on Ms. Carrillo regarding the lack of state protection. An appeal to the Federal Court of Appeal was allowed.
The Court of Appeal, in the course of its reasons, engaged in a detailed and informative discussion of the concepts of burden of proof, standard of proof, and quality of the evidence necessary to meet the burden of proof, all of which I find to be very useful in the present case and which, in my view, ought to be kept in mind by PRRA officers when considering applications.
In every proceeding, whether judicial or administrative, one party has the burden of proof. Where the existence of a particular fact is at issue, uncertainty is resolved by asking whether or not the burden has been discharged with respect to that fact. This was eloquently stated by Lord Hoffmann in In re B (Children) (FC), [2008] UKHL 35 at paragraph 2:
If a legal rule requires a fact to be proved (a “fact in issue”), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.
In PRRA applications, it is the applicant who bears the burden of proof: Bayavuge v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 111.
The standard of proof in civil matters and in administrative processes is the balance of probabilities. In this PRRA application the Applicant must prove, on a balance of probabilities, that she would be subject to risk of persecution, danger of torture, risk to life or risk of cruel and unusual treatment or punishment if returned to Jamaica. That is proved by presenting evidence to the officer. In this respect the Applicant also has an evidentiary burden. The Applicant has the burden of presenting evidence of each of the facts that has to be proved. One of those facts involves her sexual orientation. As will be discussed below, I hold that she did present some evidence of her sexual orientation and thus can be said to have met her evidentiary burden -- she presented evidence of each material fact in issue.
As the Court of Appeal pointed out in Carrillo not all evidence is of the same quality. Accordingly, while an applicant may have met the evidentiary burden because evidence of each essential fact has been presented, he may not have met the legal burden because the evidence presented does not prove the facts required on the balance of probabilities. The legal burden of proof is met, in this case, when the Applicant proves to the officer, on the balance of probabilities, that she is lesbian.
The determination of whether the evidence presented meets the legal burden will depend very much on the weight given to the evidence that has been presented.
When a PRRA applicant offers evidence, in either oral or documentary form, the officer may engage in two separate assessments of that evidence. First, he may assess whether the evidence is credible. When there is a finding that the evidence is not credible, it is in truth a finding that the source of the evidence is not reliable. Findings of credibility may be made on the basis that previous statements of the witness contradict or are inconsistent with the evidence now being offered (see for example Karimi, above), or because the witness failed to tender this important evidence at an earlier opportunity, thus bringing into question whether it is a recent fabrication (see for example Sidhu v. Canada [2004] F.C.J. No. 30, 2004 FC 39). Documentary evidence may also be found to be unreliable because its author is not credible. Self-serving reports may fall into this category. In either case, the trier of fact may assign little or no weight to the evidence offered based on its reliability, and hold that the legal standard has not been met.
If the trier of fact finds that the evidence is credible, then an assessment must be made as to the weight that is to be given to it. It is not only evidence that has passed the test of reliability that may be assessed for weight. 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. Invariably this occurs when the trier of fact is of the view that the answer to the first question is irrelevant because the evidence is to be given little or no weight, even if it is found to be reliable evidence. For example, evidence of third parties who have no means of independently verifying the facts to which they testify is likely to be ascribed little weight, whether it is credible or not.
Evidence tendered by a witness with a personal interest in the matter may also be examined for its weight before considering its credibility because typically this sort of evidence requires corroboration if it is to have probative value. If there is no corroboration, then it may be unnecessary to assess its credibility as its weight will not meet the legal burden of proving the fact on the balance of probabilities. When the trier of fact assesses the evidence in this manner he or she is not making a determination based on the credibility of the person providing the evidence; rather, the trier of fact is simply saying the evidence that has been tendered does not have sufficient probative value, either on its own or coupled with the other tendered evidence, to establish on the balance of probability, the fact for which it has been tendered. That, in my view, is the assessment the officer made in this case.
The only evidence presented concerning Ms. Ferguson’s sexual orientation was a statement of her former counsel. There was no supporting or corroborative evidence tendered. The officer found that her former counsel’s statement was not probative. The Applicant raises two questions: “Was that, in effect, a finding of credibility?” and “Was it a reasonable assessment?”.
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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 weight the trier of fact gives evidence tendered in a proceeding is not a science. Persons may weigh evidence differently but there is a reasonable range of weight within which the assessment of the evidence’s weight should fall. Deference must be given to PRRA officers in their assessment of the probative value of evidence before them. If it falls within the range of reasonableness, it should not be disturbed. In my view the weight given counsel’s statement in this matter falls within that range.
It is also my view that there is nothing in the officer's decision under review which would indicate that any part of it was based on the Applicant’s credibility. The officer neither believes nor disbelieves that the Applicant is lesbian -- he is unconvinced. He states that there is insufficient objective evidence to establish that she is lesbian. In short, he found that there was some evidence -- the statement of counsel -- but that it was insufficient to prove, on the balance of probabilities, that Ms. Ferguson was lesbian. In my view, that determination does not bring into question the Applicant’s credibility.
[50] Justice Leonard Mandamin took a similar approach in Manickavasagar, above, at paragraphs 25 and 28 to 31:
The Applicant submits that the Officer disbelieved the Applicant's account of past mistreatment because the Applicant had not provided documentary evidence to corroborate the mistreatment notwithstanding the Officer did not expressly say he disbelieved the Applicant. The Applicant argues the Officer made a negative credibility finding without explicitly stating that the Applicant was not credible. The Applicant submits that the Officer failed to contact the Applicant to provide him with an opportunity to clarify his fears in light of this disbelief.
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In this case, the Applicant did not provide documentary evidence corroborating his account of mistreatment by Sri Lankan officials. This is not a case as in Alimard where the credibility of the Applicant's supporting evidence was questioned - there simply was no evidence other than the Applicant's statements.
The lack of corroborating documentary evidence did not bring the Applicant’s