Muhammad v. Canada (Citizenship and Immigration)

Muhammad v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2014-05-09
Neutral citation
2014 FC 448
File numbers
IMM-3681-13
Decision Content
Date: 20140509
Docket: IMM-3681-13
Citation: 2014 FC 448
Vancouver, British Columbia, May 9, 2014
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
ARSHAD MUHAMMAD
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
TABLE OF CONTENTS
I. PROCEDURAL BACKGROUND.. 3
A. Overview.. 3
B. First Restricted PRRA Decision. 4
C. Second Restricted PRRA Decision (Decision under Review) 6
D. Related Procedural Matters. 7
II. LEGISLATIVE BACKGROUND.. 9
III. DECISION UNDER REVIEW... 10
IV. ISSUES. 16
V. ANALYSIS. 17
Issue 1: What is the standard of review?. 18
Issue 2: Is the Minister’s Delegate bound by the PRRA Officer’s conclusions with respect to risk of return to torture?. 21
Issue 3: Were the principles of procedural fairness violated, more specifically: 34
(i) Is the structure of the decision-making process pursuant to section 112(3) independent and impartial; and, is the Minister’s Delegate an independent decision-maker?. 34
(ii) Was there a reasonable apprehension of bias or an abuse of process? 34
Summary of Relevant Evidence. 43
(i) Minister’s Delegate and CMB.. 43
(ii) Interest in the CBSA Wanted List 45
(iii) Meeting between CBSA and CIC.. 46
Analysis. 47
(i) Structural Independence or Impartiality, Individual Independence. 47
(ii) Reasonable Apprehension of Bias or an Abuse of Process?. 56
Issue 4: Did the Minister’s Delegate reasonably conclude that the Applicant would not be at risk if returned to Pakistan?. 59
VI. CONCLUSION.. 74
[1] This is an application for judicial review of a negative decision made by Ms. Karine Roy-Tremblay, a Director of Case Determination [Minister’s Delegate] of Citizenship and Immigration Canada [CIC], dated May 17, 2013. The Applicant is identified under subsection 112(3)(c) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the IRPA]. His application for protection was therefore examined under the structure set out in section 172 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [the IRPA Regulations]. This judicial review is brought pursuant to subsection 72(1) of the IRPA.
I. PROCEDURAL BACKGROUND A. Overview [2] The Applicant is a citizen of Pakistan and a Sunni Muslim. He arrived in Canada in August 1999 using a false Italian passport and claimed refugee protection. His claim was denied on October 16, 2001, because he was determined to be excluded from consideration as a Convention refugee pursuant to section 98 of the IRPA (which incorporates Articles 1F (a) and (c) of the UNHCR 1951 Convention Relating to the Status of Refugees [the Refugee Convention]) as a result of his membership in a terrorist organization. His application for judicial review of that decision was denied on February 6, 2002.
[3] The Applicant subsequently applied for permanent residence in Canada on humanitarian and compassionate grounds. This was refused on November 5, 2002. He submitted a first Pre-Removal Risk Assessment [PRRA] application on October 30, 2002, which was refused on March 19, 2003. Prior to receiving these two negative decisions, the Applicant allegedly wrote to his former counsel advising that he was leaving Montreal to go back to Pakistan, but he actually relocated to Toronto. The Applicant received notice that he was to attend an interview with CBSA in January 2003. He did not attend and claimed that he feared that if he had presented himself, he would have been jailed and returned to Pakistan. A warrant for his removal was issued on July 3, 2003.
[4] The Applicant was arrested in July of 2011 after the Canadian Border Services Agency [CBSA] released his name, photograph and last known whereabouts on its website along with the details of twenty-nine other individuals, under the heading “Wanted by the CBSA” [CBSA wanted list]. The website description stated: “These individuals are the subject of an active Canada-wide warrant for removal because they are inadmissible to Canada. It has been determined that they violated human or international rights under the Crimes against Humanity and War Crimes Act, or under international law.”
B. First Restricted PRRA Decision [5] On August 3, 2011, the Applicant submitted a second PRRA application, claiming that new facts had arisen since July 2011. He submitted that he was now a person in need of protection because of the publicity surrounding his case and that the possible risks to him in Pakistan included extreme physical abuse while in custody, unlawful detention and extrajudicial killing. On October 7, 2011, the PRRA Officer found that the Applicant would be at risk if returned to Pakistan [PRRA assessment].
[6] The PRRA Officer assessed the Applicant’s risk on the basis that he would be perceived as a member of a terrorist organization. The Applicant had originally claimed to have joined, or expressed interest in joining, such an organization but was no longer relying on that assertion as a basis for refugee status. He now claimed that he had not actually been a member of such a group and had lied to Canadian authorities, believing that it would aid his refugee claim. His new PRRA submissions were thus based upon his belief that he would be perceived to be a member of a terrorist organization.
[7] The PRRA Officer examined objective documentary evidence identifying human rights abuses at the hands of state authorities and law enforcement in Pakistan. The PRRA Officer found that the Applicant’s case had been widely reported in Canada and somewhat reported in English-language media in Pakistan, he concluded that the Pakistani authorities were likely aware of the allegations made against the Applicant. Given the consensus within objective documentation concerning the mistreatment of Pakistani citizens at the hands of the Pakistani police and security forces, the PRRA Officer found that it was more likely than not that the Applicant would face risk if returned. The PRRA Officer found that there was an internal flight alternative [IFA] with respect to the threat by vigilante groups, but not with respect to the threat by state authorities.
[8] Next, as was required by subsection 113(d)(ii) of the IRPA, on December 15, 2011, CBSA produced an assessment of the nature and severity of any acts committed by the Applicant and the danger that he constituted to Canadian security [security assessment]. It concluded that there was no information that linked him directly to any of the terrorist organization’s crimes against humanity or terrorist acts and that there was insufficient information to establish that the Applicant was a danger to the security of Canada. CBSA wrote that while the Applicant was presumed to be complicit by association in the acts of the terrorist group, the jurisprudence regarding complicity by association required credible evidence of actions furthering the perpetration of crimes for the purposes of section 113(d)(ii). It was not established that the Applicant was directly involved in perpetrating international crimes, and thus his complicity by association “may not be sufficient to justify his removal from Canada should he be found at risk.”
[9] The PRRA and CBSA’s security assessments were disclosed to the Applicant in December 2011 for comment before being sent to a Minister’s delegate who would render the final decision. The Minister’s Delegate rejected the PRRA assessment on February 16, 2012 [first restricted PRRA]. The Applicant sought judicial review of that decision, which was granted by Justice Boivin on December 18, 2012 (Arshad Muhammad v Canada (Minister of Citizenship and Immigration), 2012 FC 1483 [Muhammad]). Justice Boivin found that the Minister’s Delegate had failed to adequately justify, on the basis of the evidence, why she had concluded that the Applicant would likely not be at risk.
C. Second Restricted PRRA Decision (Decision under Review) [10] The Minister’s delegate who conducted the redetermination was Ms. Roy-Tremblay. On May 17, 2013, she also found that the Applicant had not established that he would face a risk of torture, a risk to life, or a risk of cruel and unusual treatment or punishment should he be returned to Pakistan [second restricted PRRA or the Decision]. That Decision is the subject of the present proceeding. The Applicant filed his application for judicial review on May 24, 2013.
[11] Subsequently, on May 28, 2013, the Applicant learned through the affidavit of Reg Williams, a former Director of Enforcement with CBSA, that on February 3, 2012, a meeting had been held between Ms. Glenda Lavergne, the former Director General, Border Operations, CBSA; Ms. Susan Kramer, Director, Case Management Division at CIC; and, Mr. Michel Dupuis, Director General of Case Determination at CIC, to discuss the Applicant’s case. As a result, and pursuant to an Order of Justice Noël dated June 26, 2013, the Applicant cross examined Ms. Lavergne, Ms. Kramer, Mr. Dupuis and Ms. Roy-Tremblay during the period July to September 2013 on affidavits they had sworn concerning that meeting and the relationships between CBSA and CIC.
[12] The Applicant’s removal from Canada to Pakistan, which was scheduled for June 2, 2013, was stayed by order of Justice Gleason on June 1, 2013, until a decision is made on the present application for leave and judicial review. The Applicant applied for release from immigration detention on numerous occasions. However, following reviews by the Immigration and Refugee Board [the Board], his detention was continued as he was determined to be unlikely to appear for removal.
D. Related Procedural Matters [13] There have been many procedural matters related, in one way or another, to this application for judicial review. Only those with an immediate bearing on this matter are noted below.
[14] On June 26, 2013, Justice Noël also ordered disclosure of any documents relating to an allegation by the Applicant of an abuse of process and failure to observe the duty of candour by CBSA and CIC. At a detention review in September 2013, the Applicant presented new, recently discovered information which had been obtained as a result of those disclosures. This included email exchanges between CBSA and CIC during October 2011. In those exchanges CBSA expressed concern about the PRRA assessment, which it considered could have an impact on the detention review scheduled for October 21, 2011, and CBSA’s decision that it would not be disclosed to the detention review hearing member prior to the upcoming detention review.
[15] In response to a subsequent allegation by the Applicant that CBSA had breached its duty of candour by withholding the PRRA assessment, the Board concluded on September 26, 2013, that the non-disclosure was not an abuse of process. However, on October 16, 2013, in Court file IMM-6232-13, Justice Beaudry allowed the Applicant’s application for judicial review of that decision by the Board and found that CBSA had made a conscious decision to withhold the information from the detention review hearing member which did amount to a breach of the duty of candour.
[16] As a result of Justice Beaudry’s decision, the detention decision was remitted back for redetermination. Upon reconsideration, the Board determined on October 25, 2013, that continued detention was still warranted. On October 28, 2013, the Applicant applied for judicial review of that detention decision. On November 21, 2013, Justice McVeigh dismissed his application for review of the redetermination, finding that the Board had reasonably denied release from detention.
[17] On September 9, 2013, the Applicant filed a notice of a constitutional question in the present application for judicial review. He alleged that the Minister’s Delegate was not independent and impartial and, therefore, could not make decisions on a risk of torture, a subject matter which engages section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the Charter] and thus requires an independent decision-making process.
II. LEGISLATIVE BACKGROUND [18] In this matter, the process involved for removal is governed by subsection 112(3) of the IRPA. Pursuant to subsection 112(3)(c), a person whose refugee claim is rejected on the basis of section F of Article 1 of the Refugee Convention, as is the case with the Applicant, cannot obtain refugee protection. Section F (a) is contained in a Schedule to the IRPA and states that the provisions of the Refugee Convention shall not apply to any person with respect to whom there are serious reasons for considering that they have committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes.
[19] A PRRA for someone described in subsection 112(3)(c) is often referred to as a “restricted PRRA”. Subsection 113(d) states that, in the case of a subsection 112(3) applicant, consideration shall be on the basis of factors set out in section 97 of the IRPA, and, the factors described in that subsection. In this case, the section 97 factors must be considered along with whether the application should be refused because of the nature and severity of acts committed by the Applicant or because of the danger he constitutes to the security of Canada (subsection 113(d)(ii)).
[20] Further, pursuant to subsection 114(1)(b), a positive restricted PRRA decision in such a case would only result in the staying of a removal order against an applicant with respect to the country in respect of which he or she was determined to be in need of protection. It would not result in the granting of refugee protection. Subsections 172(1) and (2) of the IRPA Regulations provide that before making a decision to allow or reject the application of someone identified in subsection 112(3) of the IRPA, the Minister (or the Minister’s delegate) shall consider the written assessment on the basis of the section 97 factors (the PRRA assessment), a written assessment on the basis of the factors set out in subsection 113(d)(i) or (ii) of the IRPA (the security assessment), whichever the case may be (in this case, subsection 113(d)(ii)), and any written response to the assessments from the applicant. This is the process which was undertaken in this case.
III. DECISION UNDER REVIEW [21] As noted above, on May 17, 2013, the Minister’s Delegate rendered the Decision in which she determined that the Applicant would not be at risk of torture, death, or cruel and unusual treatment or punishment should he be returned to Pakistan. Having concluded that the Applicant would not face the risks identified in section 97 of the IRPA, the Minister’s Delegate found that it was not then necessary to balance her assessment of the situation he would face in Pakistan against CBSA’s assessment of the seriousness of any crimes committed by the Applicant and of any danger he posed to Canada.
[22] The Minister’s Delegate stated that in making her Decision she had considered the PRRA Officer’s risk assessment, CBSA’s security assessment, and the Applicant’s response to both.
[23] She provided a description of the appointment process for her role and position. In that regard, she noted that CIC’s Immigration Legislation Operational Manual IL3 – Designation of Officers and Delegation of Authority [IL3 Manual], defines the designation of officers and the delegation of authority as contained in the Instrument of Designation and Delegation signed by the Minister pursuant to subsections 6(1) and 6(2) of the IRPA.
[24] The Minister’s Delegate described the IL3 Manual and provided a table of delegated authorities. With respect to subsections 112, 113, and 113(d)(ii) of the IRPA and section 172 of the IRPA Regulations, she stated that authority had been delegated to her by the Minister pursuant to subsection 6(2) of the IRPA and that only such delegated persons can determine an application for protection from a person whose claim was rejected on the basis of subsection 112(3)(c) of the IRPA. The designated positions listed, including herself as the Director, Case Determination, have the delegated authority to consider, and allow or reject, an application for protection from a person who has been found to be inadmissible on grounds of security, violating human or international rights, organized criminality, whose refugee claim was rejected on the basis of section F of Article 1 of the Refugee Convention, or, who is named in a certificate under subsection 77(1) of the IRPA. Officials in these positions can assess 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.
[25] The Minister’s Delegate stated that the PRRA officer who prepared the risk assessment does not have such delegated authority and does not have the jurisdiction to make a decision concerning a person described in subsection 112(3) of the IRPA. She referred to Placide v Canada (Minister of Citizenship and Immigration), 2009 FC 1056 [Placide] in which Justice Shore found that a PRRA officer’s assessment under section 97 cannot constitute a decision but instead is a “form of advice or suggestion”. She stated that for her to be bound by the PRRA or security assessments would be a fettering of her discretion.
[26] With respect to the Applicant’s allegations of a reasonable apprehension of bias, she stated that once a delegation of authority is granted to a person as described in the IL3 Manual, that decision-maker is fully independent and impartial in the decision-making process. Her appointment to the position of Director, Case Determination was a merit based selection process in accordance with the Public Service Employment Act and was based on her experience and knowledge of the IRPA and IRPA Regulations. Such processes are free from any Ministerial intervention given that the Public Service of Canada is independent of the executive branch of government.
[27] The Minister’s Delegate also stated that she had never been involved in the “Most Wanted List” program which falls within the CBSA’s mandate along with removals. Further, that the restricted PRRA process is impartial, independent and free of intervention of any kind, especially by the Minister, his office, or other senior officials. Case Determination Directors are officials from CIC and not from CBSA, and they are not close to the Minister of CIC or to senior officials in charge of removals and enforcement. Even if one part of the Case Management Branch works on high profile cases, her role is entirely separate and she is not involved in any of their discussions. She reports to the Director General who, in turn, reports to an Associate Assistant Deputy Minister. The Director General never interferes with her cases or decisions.
[28] The Minister’s Delegate then set out the required analysis under section 97 of the IRPA in the context of Article 1 of the Convention Against Torture and the concept of “cruel and unusual treatment or punishment” in section 12 of the Charter. She noted that Pakistan is a federal republic where democratic rule was restored in 2008 and that the Pakistan People’s Party (PPP), which the Applicant joined in 1996, was elected in February 2008 and is now the governing party in Pakistan in coalition with smaller parties.
[29] The Minister’s Delegate considered the documentary evidence, specifically citing two reports: the US Department of State Country Report on Human Rights Practices 2011 [USSD 2011] which identifies the presence of human rights abuses including extrajudicial killings, torture and disappearances, and a 2012 UK Border Agency report, Pakistan Country of Origin Information (COI) Report [UKBA 2012], which noted some positive achievements in the area of human rights. She stated that other, unspecified, reports mentioned that despite the work that still needs to be done in Pakistan with respect to human rights, some important progress had been made.
[30] The Minister’s Delegate concluded that the risk faced by the Applicant was generalized. As well, since he is an adult man from Punjab and a Sunni Muslim, this profile placed him at a lower risk than the general population in Pakistan.
[31] As to the security situation in Pakistan, while it has improved since 2011, she acknowledged that more was still required to be done. The risk of fatality is one that is faced generally by everyone in Pakistan, however, that the evidence before the Minister’s Delegate indicated that Punjab is one of the most secure areas in the country. She found that there was insufficient evidence to indicate that the Applicant would become a target for non-state actors in Pakistan due to being perceived as associated with a terrorist group because of having been on CBSA’s wanted list. On a balance of probabilities, she was not satisfied that the risk that the Applicant would be associated with a terrorist group by state or non-state actors put him at risk pursuant to section 97.
[32] The Minister’s Delegate concluded that the Applicant would be at very low risk of being of interest, being arrested, or being detained once he was in Pakistan and then went on to consider the risks he might face when entering Pakistan.
[33] She considered each of the Applicant’s alleged grounds for risk including: that he is a failed refugee claimant; that he used a fraudulent document to travel to Canada; that his name and likeness were made public through CBSA’s wanted list; and, that he was identified as being linked to a terrorist organization.
[34] She noted that May 2005 correspondence from the Human Rights Commission of Pakistan, cited in UKBA 2012, stated that failed Pakistani refugee claimants were not usually detained upon return to Pakistan. With respect to the use of a fraudulent passport, the Minister’s Delegate noted that traveling with a fraudulent document is unlawful in Pakistan and there was therefore a possibility that the Applicant could face charges, and that this would increase the chances that he would spend time in detention.
[35] While acknowledging that he would be exposed to difficult conditions if detained, such as “overpopulated prisons, few doctors available for medical examination of detainees and reported acts of mistreatments including beating, prolonged isolation, or denial of food or sleep”, she also noted that the USSD 2011 report indicated that if he was charged with a criminal offence, he would be brought before a judge within 24 hours and would be able to apply for bail. She found that it was speculative to say that he would likely be tortured or exposed to cruel or unusual treatment while in prison, as there was insufficient evidence to establish that he would personally be at any greater risk of those treatments than other prisoners. She also found that the documentary evidence indicated that such situations occurred in specific cases and were mostly reported as occurring in the provinces of Balochistan and Khyber Pakhtunkhwa (KP), and the Federally Administered Tribal Areas (FATA).
[36] With respect to being placed on CBSA’s wanted list for connections with a terrorist organization, the Minister’s Delegate found that the subject terrorist organization’s name had never been made public. Therefore, she concluded that the Pakistani authorities would not be able to link the Applicant to a specific organization. The documentation pertaining to arrest and detention of suspected members of terrorist organizations showed that, in most cases, the arrested persons were linked to specific terrorist acts. Further, as the Applicant had resided in Canada since 1996, the Minister’s Delegate considered that Pakistani authorities would be unable to link him to any specific terrorist organization or specific terrorist acts committed in Pakistan. Based on this, it was more likely than not that the Applicant would be released quickly from any initial detention that was based on suspected links to a terrorist organization.
[37] The Minister’s Delegate noted that the UKBA 2012 report quoted the Asian Human Rights Commission as commenting on a speech by Pakistan’s foreign minister to the effect that the government of Pakistan had encountered difficulty in prosecuting militants linked to either terrorist organizations or terrorist acts on Pakistani soil.
[38] The Minister’s Delegate concluded that while the documentary evidence indicated that Pakistan is in a difficult situation for the respect of human rights and security conditions, and while the Applicant might be administratively detained and questioned upon his arrival, the evidence did not support the allegation that he would be at a risk of torture, risk to life or cruel and unusual punishment pursuant to section 97.
[39] Having made a negative determination on risk, the Minister’s Delegate stated that she was therefore not required to balance the risk identified by the PRRA assessment against CBSA’s security assessment, pursuant to subsection 172(4) of the IRPA Regulations. She denied the application for protection.
IV. ISSUES [40] I would frame the issues in this application for judicial review as follows:
1. What is the standard of review?
2. Is the Minister’s Delegate bound by the PRRA Officer’s conclusions with respect to risk of return to torture?
3. Were the principles of procedural fairness violated, and, more specifically:
i. Is the structure of the decision-making process pursuant to section 112(3) independent and impartial; and, is the Minister’s Delegate an independent decision-maker?
ii. Was there a reasonable apprehension of bias as a result of interest in the CBSA’s wanted list or an abuse of process?
4. Did the Minister’s Delegate reasonably conclude that the Applicant would not be at a risk if returned to Pakistan?
[41] The Respondent submits that it is unnecessary to consider the Charter where a case can be determined on the basis of administrative law and statutory interpretation (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at para 11 [Baker]; Chieu v Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 84 at para 19; Tran v Canada (Public Safety and Emergency Preparedness), 2010 FC 175 at para 36).
[42] I agree that this Court does not have an obligation to respond to a constitutional question if it is possible to answer the questions posed by applying principles of administrative law. As Justice L’Heureux Dubé stated in Baker, above:
[11] Because, in my view, the issues raised can be resolved under the principles of administrative law and statutory interpretation, I find it unnecessary to consider the various Charter issues raised by the appellant and the interveners who supported her position.
[43] In my view, the procedural fairness aspect of the present application can be decided by applying certain of those principles. Therefore, the Charter argument need not be addressed.
V. ANALYSIS Issue 1: What is the standard of review? Applicant’s Submissions
[44] The Applicant submits that aside from the issue of the reasonableness of the Decision, all issues relating to independence, bias and abuse of process are to be reviewed on a correctness standard as they relate to procedural fairness (Kastrati v Canada (Citizenship and Immigration), 2008 FC 1141 at paras 9-10).
[45] In terms of the reasonableness of the Decision, the Applicant submits that Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 [Newfoundland Nurses] is not a direction for the Court to abandon its supervisory function in relation to judicial review (Alberta Information and Privacy Commissioner v Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 SCR 654 at para 54) [Alberta Teachers]).
Respondent’s Submissions
[46] The Respondent submits that the standard of review for the assessment of the evidence is reasonableness. Significant deference is warranted on judicial review of a Director, Case Determination’s assessment of risk (Muhammad, above, at para 28; Placide, above, at para 92; Sing v Canada (Minister of Citizenship and Immigration), 2011 FC 915 at para 39 [Sing]).
[47] So long as the Minister’s Delegate took into account the relevant considerations and came to a conclusion reasonably supported on the evidence, it is not open to the Applicant to invite the Court to reweigh the evidence, regardless of whether the evidence might also support a different conclusion (Dunsmuir, above, at para 47; Canada (Minister of Citizenship and Immigration v Khosa, 2009 SCC 12, [2009] 1 SCR 339 [Khosa]). A decision-maker need not refer to every item of evidence and is presumed to have considered all of the evidence before her (Newfoundland Nurses, above, para 16; Florea v Canada (Minister of Employment and Immigration), [1993] FCJ No. 598 (CA) (QL)).
[48] The Respondent does not make submissions on the applicable standard of review for the remaining issues.
Analysis
[49] An exhaustive analysis is not required in every case to determine the proper standard of review. Rather, courts must first ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded to a decision-maker with regard to a particular category of question (Khosa, above, at para 53; Dunsmuir, above, at paras 57 and 62).
[50] For the second issue, being whether the Minister’s Delegate is bound by the PRRA assessment, this was before Justice Boivin in Muhammad, above. There, Justice Boivin found that it was a question of jurisdiction involving the interpretation of the IRPA and the IRPA Regulations reviewable on a standard of correctness (Dunsmuir, above, paras 50 and 59; Muhammad, above, at para 28). In my view it could also, however, be reviewable on the reasonableness standard as “[d]eference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” (Dunsmuir, above, at para. 54; McLean v British Columbia (Securities Commission), 2013 SCC 67 at paras 19-23; Alberta Teachers, above, at para 34).
[51] The third issue pertains to procedural fairness and natural justice and is to be reviewed on a standard of correctness (Kozak v Canada (Minister of Citizenship and Immigration), 2006 FCA 124, [2006] 4 FCR 377 at para 44). More specifically, whether the structure of the subsection 112(3) decision making process, and whether the Minister’s Delegate is independent and impartial, are issues of procedural fairness (Douglas v Canada (Attorney General), 2014 FC 299 at para 71; Bell Canada v Canadian Telephone Employees Association, 2003 SCC 36, [2003] 1 SCR 884 at para 21 [Bell Canada]). Institutional bias and independence are also reviewed on a correctness standard (Singh v Canada (Citizenship and Immigration), 2008 FC 669 at para 25 [Singh]). Issues of abuse of process also concern procedural fairness and are reviewed on a correctness standard (Pavicevic v Canada (Attorney General), 2013 FC 997 at para 29; Herrera Acevedo v Canada (Minister of Citizenship and Immigration), 2010 FC 167 at para 10). On a standard of correctness, no deference is afforded and the Court will undertake its own analysis of the questions (Dunsmuir, above, at para 50).
[52] As to the fourth issue, the standard of review applicable to the Minister’s Delegate’s assessment of the evidence is reasonableness (Muhammad, above, at para 28; Dunsmuir, above). In reviewing the Decision on the standard of reasonableness, the Court should not intervene unless the Board came to a conclusion that is not transparent, justifiable and intelligible and within the range of acceptable outcomes based on the evidence before it (Dunsmuir, above, at para 47; Khosa, above, at para 59). It is not the role of a reviewing court to substitute its own view of a preferable outcome or to reweigh the evidence (Khosa, above, at para 59).
Issue 2: Is the Minister’s Delegate bound by the PRRA Officer’s conclusions with respect to risk of return to torture? Applicant’s Submissions
[53] The Applicant submits that the role of the Minister’s Delegate is not to conduct a new risk assessment. Rather, that the role is restricted to the weighing and balancing of the positive risk assessment already made by the PRRA Officer against the CBSA security assessment. This interpretation is supported by a plain reading of the legislation including subsections 112(3) and 114 of the IRPA and subsection 172 of the IRPA Regulations.
[54] The Applicant refers to Chapter PP3, Pre-removal Risk Assessment (PRRA), of CIC’s Operational Manual (PRRA Operations Manual) which he interprets as follows:
Step 1: PRRA Officer assesses the application and either finds no risk, in which case application is dismissed right then and there is no further processing, or the officer finds there is risk, in which case she writes up her reasons and sends them to the removals officer. This is the same as for any PRRA application, except that the PRRA officer’s positive assessment is not dispositive of the application, as only a MD [minister’s delegate] can render a final decision to allow a s.112(3) PRRA. Instead the applicant goes to Step 2.
Step 2: An analyst at National Security Division prepares an assessment, in accordance with R172(2)(b), with respect to whether the applicant’s presence in Canada is a danger to the country’s security, or the nature or severity of the acts committed by the applicant are such that the application should be refused.
At Step 3, both assessments are disclosed to the applicant for comment,
Finally, at Step 4, the minister’s delegate is provided with the 2 assessments and the applicant’s comments, and renders a decision based upon them, either refusing the application, or allowing it and granting a stay of removal.
[Applicant’s Emphasis]
[55] The Applicant submits that the PRRA Officer’s risk assessment is final and that the Minister’s Delegate cannot disregard it and come to her own conclusion. This interpretation is consistent with section 172(4) of the IRPA Regulations, the PRRA Operations Manual and jurisprudence which has described the role of the Minister’s Delegate as one of a “weighing exercise” (Li v Canada (Minister of Citizenship and Immigration), 2010 FCA 75 at paras 10 and 54 [Li]).
[56] The PRRA Officer’s expertise in determining risk and assessing credibility has been confirmed (Raza v Canada (Minister of Citizenship and Immigration), 2006 FC 1385 at para 10; Kim v Canada (Minister of Citizenship and Immigration), 2005 FC 437; Hassan v Canada (Minster of Citizenship and Immigration), [1992] FCJ No 946 (CA) (QL)), and it was not intended that the Minister’s Delegate can go behind a PRRA Officer’s assessment.
[57] The Applicant submits that this Court should not follow Placide, above (followed in Delgato v Canada (Minister of Citizenship and Immigration), 2011 FC 1131 [Delgato]) because it was based on a wrong statement made in obiter. Justice Shore relied on the wrong delegated authority in finding that the Minister’s Delegate is not bound by a PRRA Officer’s opinion. He relied on section 101, but it is actually section 55, which, the Applicant submits, by its express wording makes it clear that the role of the Minister’s Delegate is merely to do the balancing with the positive PRRA assessment.
[58] The Applicant also submits that Justice Shore’s analysis failed to appreciate that the decision of whether or not to allow the PRRA only arises after the PRRA Officer has made a positive determination, meaning that the Minister’s Delegate is only permitted to balance what is to be done after the positive PRRA. Therefore, Placide should not be followed, in accordance with the exceptions to judicial comity (Almrei v Canada (Minister of Citizenship and Immigration), 2007 FC 1025 at paras 61-62). Furthermore, the authority and independence of the Minister’s Delegate is directly before this Court which was not the situation in Placide.
Respondent’s Submissions
[59] The Respondent also refers to the PRRA Operations Manual; however, its interpretation of that document differs from that of the Applicant. The Respondent explains it as follows:
Step 1 – the Risk Assessment – A CIC officer (titled “PRRA Officer”) prepares an opinion on whether the applicant is at risk based on s. 97 grounds, if removed. If the PRRA Officer is of the opinion that there is no risk, the Restricted PRRA application is rejected and the applicant is removed from Canada according to ss. 172(4) of the Immigration and Refugee Protection Regulations (the “Regulations”). If the PRRA Officer is of the opinion that there is a risk, the Restricted PRRA application is not yet finalized and moves to the next steps.
Step 2 – the Restriction Assessment – A CBSA officer prepares an opinion, called the Restriction Assessment, as to whether the Restricted PRRA application should be refused notwithstanding the risks identified due to the nature and severity of the acts committed, or because the applicant is a danger to the security of Canada, according to ss. 113 (d) of the IRPA.
Step 3 – the Applicant’s submissions – the Risk Assessment and the Restriction Assessment are provided to the applicant for comments according to ss. 172(2) of the Regulations. For reasons of administrative efficiency, the assessments are given to the applicant together after they are both completed.
Step 4 – Minister’s Delegate decision – the Risk Assessment, Restriction Assessment and the applicant’s submissions are provided to a CIC Minister’s Delegate, (e.g. Director, Case Determination). The Minister’s Delegate uses this information, in addition to his/her own research, to make the final Restricted PRRA decision. The final decision determines whether the application is allowed or rejected – i.e. whether or not the applicant can be removed to the country of removal (per ss 114(1) of the IRPA).
[Respondent’s Emphasis]
[60] The Respondent submits that at step 4, according to section 172(1) of the IRPA Regulations, the Minister’s Delegate is bound to consider the materials submitted, but is not bound by the initial PRRA assessment. This interpretation is consistent with the jurisprudence (Placide, above; Muhammad, above, at paras 29-31, 42; Delgato, above, at para 6). The Respondent states that Li, above, does not support the argument that the jurisdiction of the Minister’s Delegate is limited to weighing the assessments before her. Further, the Federal Court of Appeal’s statement that the Minister’s Delegate conducts a “weighing exercise” does not mean that the Minister’s Delegate’s jurisdiction is limited as the Applicant suggests.
[61] The Respondent refers to the Minister’s Instrument of Designation and Delegation and CIC’s IL3 Manual in support of its position that the PRRA Officer does not have the delegated authority to render a final PRRA decision. This can only be made by the persons holding the positions listed in the IL3 Manual, which permits the Director, as the Minister’s Delegate, to “consider, allow or reject, an application for protection (PRRA) from a person…whose claim was rejected on the basis of section F or Article 1” (Placide, Delgato, both above; Say v Canada (Solicitor General), 2005 FC 739, aff’d 2006 FCA 422 [Say]). Say concerned the jurisdiction of a Minister’s delegate involving a person described in subsection 112(3), were based on a rational reading of the relevant statutes, regulations, manuals and Instruments of Delegation. The Applicant has not demonstrated that this jurisprudence is manifestly wrong (Bell v Cessna Aircraft Co, [1983]149 DLR (3rd) 5