This
is an interersting PRRA decision from the Federal court. In this case
the applicant and counsel did not put forth enought evidence to
convince the PRRA officer that the applicant was a lesbian. The officer
agreed that their is homophobia in Jamaica and that lesbians
are at risk. Unfortunately other than a statement saying she was an
open lesbian the applicant did not put forward evidence to convince the
officer of this
Date:
20080923
Docket:
IMM-1356-08
Citation:
2008 FC 1067
BETWEEN:
MITCHELL MARIE FERGUSON
(A.K.A.
MICHELLE MARIE FERGUSON)
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS
FOR JUDGMENT
ZINN J.
[1]
The Applicant says
that the Pre-removal Risk Assessment (PRRA) Officer rejected her
application because he did not believe that she was lesbian. The
Respondent says that the PRRA officer rejected the application because
there was insufficient evidence presented to prove, on the balance of
probabilities, that the Applicant is lesbian. If the Applicant is
correct, then the PRRA officer ought to have held a hearing to
determine her sexual orientation. If the Respondent is correct
then no hearing was required.
[2]
For the reasons
that follow, I am of the opinion that no hearing was required as the
decision was based solely on the weight of the evidence presented and
did not rest on the Applicant’s credibility.
BACKGROUND
[3]
Ms. Ferguson has
been in Canada
since 1987. She lost her status as a permanent resident of Canada and was ordered deported to Jamaica,
her country of nationality, after a criminal conviction for drug
trafficking.
[4]
On the PRRA
application form under the heading “Reasons for Applying For
Pre-Removal Risk Assessment (PRRA)” Ms. Ferguson wrote “submissions to
follow". Under the heading “Supporting Evidence” where she
is asked to provide a list of the written documents included with the
application that will “clearly act as evidence in support of your
application for a Pre-removal Risk Assessment", two types of
documents were listed, news articles and affidavits, which she
indicated would support her requests for protection by providing
“objective proof of risk". In fact, no affidavits were ever provided
in support of the application. The news articles that were
provided dealt with the treatment of lesbians in Jamaica
but none specifically referenced Ms. Ferguson.
[5]
By letter dated
July 25, 2007, Ms. Ferguson's former counsel wrote to the PRRA officer
enclosing “the evidence being relied upon by the Applicant and
submissions in support of her application". In addition to
enclosing news articles, counsel provided a six-page document which
appears to be the submissions referenced in the covering letter.
Counsel writes:
Ms. Ferguson is lesbian and is very open about her sexual
orientation. She believes that if removed to Jamaica,
her life would be at risk, as a result of well-known incidences of
homophobia and hate-crime violence in that country against members of
her particular social group.
The
only other reference to Ms. Ferguson’s sexual orientation is found at
the end of her former counsel’s submissions where she writes:
Respecting the fact that the objective documentary evidence
reveals the persecution of members of the Applicant's particular social
group is commonplace in Jamaica,
and the fact that Ms. Ferguson is very openly lesbian, counsel
respectfully submits that there is a very serious possibility that the
Applicant would be at risk should she return to her country of
nationality.
[6]
The officer
charged with evaluating Ms. Ferguson's claim agreed, without
reservation, on the basis of documentary evidence, that lesbians in
Jamaica are at risk of severe physical abuse on account of their sexual
orientation. The officer nonetheless dismissed the application on
the basis that there was insufficient evidence to establish that Ms.
Ferguson is lesbian. The officer wrote as follows:
Aside from the brief statement that the applicant is a “lesbian
and is very open about her sexual orientation", I have not been
provided with supporting evidence that establishes, on the balance of
probabilities that, the applicant is a homosexual. 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.
Thus, while independent research confirms violence against
homosexuals in Jamaica,
there is insufficient objective evidence before me to establish that
the applicant is, on the balance of probabilities, a lesbian.
[7]
Ms. Ferguson
submits that the basis for the PRRA officer’s determination rejecting
the application was her credibility and accordingly, pursuant to
section 113 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, an oral hearing
should have been held. Subsection 113(a) provides that “a hearing
may be held if the Minister, on the basis of prescribed factors, is of
the opinion that a hearing is required”. The prescribed factors
for determining whether a hearing is to be held are set out in section
167 of the Immigration and Refugee
Protection Regulations, SOR/2002-227:
|
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 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.
|
[8]
It is common
ground between the parties that if all of the requirements of that
section are met, then a hearing should be held by the officer. It
is also common ground that the officer’s decision establishes that the
requirements in subsections (b) and (c) were met. The issue is
whether the requirements set out in subsection 167(a) were met.
The Applicant's position is that they were; the officer's rejection of
her application was based on the rejection of her evidence that she was
openly lesbian, and thus the decision rested on her credibility.
The Respondent takes the position that the decision was not based on
credibility, but rather on a finding that there was insufficient
evidence presented to establish, on the balance of probabilities, that
Ms. Ferguson was openly lesbian. In fact, in her written
submission, the Respondent’s counsel takes the position that there was
no evidence before the PRRA officer regarding Ms. Ferguson’s sexual
orientation to doubt or believe, as her counsel’s submission in this
regard was not evidence.
ISSUE
[9]
There was an issue
raised by the Applicant in the pleadings regarding an alleged breach of
the Canadian Bill of Rights,
S.C. 1960, c. 44; however, it was not pursued in oral argument and, in
my view, was without merit. The sole issue in this proceeding is
whether the PRRA officer erred in failing to consider conducting or in
failing to conduct an oral hearing.
[10]
If the officer’s determination was
based on a “serious issue of the applicant’s credibility” it is
accepted that in Ms. Ferguson’s circumstances, as otherwise found by
the officer, he ought to have conducted an oral hearing. For the
reasons that follow, I am of the view that the officer made no error
and an oral hearing was not required under the Act or Regulations.
ANALYSIS
[11]
The Applicant submitted that while
the officer did not explicitly state that the decision was one of
credibility, it could not be anything other than credibility. In
the Applicant’s submission, the officer did not believe her counsel’s
statement that she is an open lesbian. Her counsel writes in the
memorandum of argument: “Whether because the Applicant had failed to
produce sufficient evidence on the balance of probabilities, or for any
other reason, the PRRA officer has not believed the statement that the
Applicant is a lesbian”. This, it is submitted, is essentially a
finding of credibility that attracts the requirement to hold a hearing
under section 167 of the Regulations. The Applicant further
submits that the PRRA officer did not explain why the statement
provided by the Applicant’s former counsel was insufficient evidence or
what evidence the officer did rely on to refute the statement that she
was lesbian.
[12]
The Respondent submits that the
legislative scheme makes it clear that applicants who submit a PRRA
application or any other application governed by the Act must present
evidence to support that application. It is submitted that bald
assertions in written submissions do not constitute evidence and ought
not to be given any weight. It is submitted that the officer,
quite properly, gave no weight to counsel’s submissions that his client
was lesbian. In support of this proposition the Respondent relies
on Buio v. Canada (Minister of Citizenship and
Immigration), 2007 FC 157 at para 32; Canada (Minister of
Citizenship and Immigration)v. Sittampalam, 2004 FC 1756 at
para 32; and Bressette v. Keetle and
Stony Point First Nations Band Council (1997), 137 F.T.R.
189.
[13]
In response, the Applicant submitted
that it is common practice for immigration counsel to file written
submissions on behalf of clients which include statements of evidence,
and that there is nothing in either the Act or Regulations or in the
policy and procedures of the Respondent that would indicate that such
evidence is not to be considered. It is further submitted that
the letter from Citizenship and Immigration Canada advising Ms.
Ferguson of her right to apply for a Pre-removal Risk Assessment states
that information in written submissions will be considered by the PRRA
officer. That form letter contains the following paragraph:
You may send us written submissions to support your application
for protection. You may explain, in the submissions, the reasons
why you think your removal to your country of nationality or habitual
residence would put you at risk.
[14]
With respect, in my view, that form
letter makes it clear that the submissions are to set out reasons and
explanations –not evidence. Evidence to support the application
ought to be contained in or referenced in the application. In
this instance, the Applicant’s statement on the face of her application
that submissions were to follow may have been sufficient to alert the
officer that those submissions might also contain evidence in addition
to reasons and explanations. As will be discussed later, it is my
view that there may be instances when statements from counsel may be
considered to be evidence.
[15]
Both parties submitted numerous
authorities to the Court in support of their respective
positions. The Applicant referred to Karimi v. Canada (Minister of Citizenship and Immigration),
2007 FC 1010; Latifi v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1388; Lewis
v. Canada (Minister of Citizenship and Immigration), 2007 FC
778; Rizvi v. Canada (Minister of
Citizenship and Immigration), 2008 FC 717; Shafi v. Canada (Minister of Citizenship and
Immigration), 2005 FC 714; Suresh
v. Canada (Minister of Citizenship and Immigration), [2002]
SCC 1; Tekei v. Canada (Minister of
Citizenship and Immigration), 2005 FC 27; and Zokai v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1103. The Respondent directed
the Court’s attention to further authorities, including Demirovic v. Canada (Minister of Citizenship
and Immigration), 2005 FC 1284; Gong v. Canada (Minister of Citizenship and Immigration),
2008 FC 600; Iboude v. Canada
(Minister of Citizenship and Immigration), [2005] F.C.J. No.
1595; Kim v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 452; Lake v. Canada (Minister of Citizenship and
Immigration), [2008] S.C.J. No. 23; Li v. Canada (Minister of Citizenship and
Immigration), [2005] F.C.J. No. 1; Ortiz Juarez v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 365; Owusu v. Canada (Minister of Citizenship and
Immigration), [2004] F.C.J. No. 158; Ray v. Canada (Minister of Citizenship and
Immigration), [2006] F.C.J. No. 927; Saadatkhani v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 769; Sen v. Canada (Minister of Citizenship and
Immigration), [2006] F.C.J. No. 1804; and Yousef v. Canada (Minister of Citizenship and
Immigration), [2006] F.C.J. No. 1101.
[16]
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.
[17]
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.
[18]
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.
[19]
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.
[20]
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.
[21]
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.
[22]
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.
[23]
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.
[24]
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.
[25]
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 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.
[26]
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.
[27]
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.
[28]
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?”.
[29]
I take issue with the position of the
Respondent in its memorandum of argument that a statement made by
counsel can never be evidence and thus, presumably, can never be found
to have any probative value. Legal counsel are officers of the
Court with well established duties and responsibilities, including the
responsibility not to misstate facts or mislead. In my view,
statements of fact made by counsel may constitute evidence in informal
proceedings such as a PRRA application and they may be given
weight. In these instances, counsel is not the witness, it is
counsel’s client that is the effective witness – counsel is merely
making a statement on the client’s behalf.
[30]
If the strict rules of evidence were
imposed on informal administrative processes, such as the PRRA
determination process, their ability to function effectively and
promptly would be impaired. While counsel would be well-advised
to tender evidence through their client’s own mouths, circumstances may
exist where this is not possible or is impracticable. As Justice
Rouleau observed in Rhéaume v.
Canada (Attorney General),
2002 FCT 98, at para 28, "[p]arliament has seen fit to give
administrative tribunals very wide latitude when they are called on to
hear and admit evidence so they will not be paralyzed by objections and
procedural manoeuvres. This makes it possible to hold a less formal
hearing in which all the relevant points may be put to the tribunal for
expeditious review".
[31]
Accepting that counsel may submit
evidence directly to the PRRA officer, the question will always remain,
as it does for all tendered evidence, as to the degree of weight to be
given to that evidence. As with all evidence tendered by an applicant
in an administrative proceeding, the weight to be given to statements
will depend very much on the nature of the statement, the materiality
of the fact stated to the matters in issue, and the nature of the
proceeding itself. A statement from counsel as to the client’s
sexual orientation is entitled to be given no more and no less weight
than if it were made in an unsworn statement by the Applicant herself.
[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.
[33]
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.
[34]
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.
[35]
Based on the treatment homosexuals
receive in Jamaica,
as set out in the officer’s decision, it is truly unfortunate if the
Applicant is lesbian that she will be returned to Jamaica.
However, every applicant for a Pre-removal Risk Assessment, and their
counsel, must take responsibility to ensure that all of the relevant
evidence is before the officer and, of equal importance, that they
present the best evidence in support of the application. Where
that is not done, the consequences of a failed application rest with
the Applicant and counsel.
[36]
For these reasons, this application
is dismissed.
[37]
At the hearing the parties requested
an opportunity to consider their positions and, if advised, make
submissions on a certified question. Accordingly, within 15 days
of the issue of these Reasons, either or both counsel may submit a draft
of any question proposed to be certified. The Court will reserve
the right to endorse any such question and incorporate it or them into
the formal Judgment.
“Russel W. Zinn”
Ottawa,
Ontario
September
23, 2008
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
IMM-1356-08
STYLE OF CAUSE:
MITCHELL MARIE FERGUSON
(A.K.A. MICHELLE MARIE FERGUSON) v.
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
PLACE OF HEARING:
Toronto,
Ontario
DATE OF HEARING:
September 16, 2008
REASONS FOR JUDGMENT: ZINN J.
DATED:
September 23,
2008
APPEARANCES:
|
Ronald Poulton
|
FOR THE APPLICANT
|
|
Amina Riaz
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
RONALD POULTON
Barrister and Solicitor
Toronto,
Ontario
|
FOR THE APPLICANT
|
|
JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada
Toronto,
Ontario
|
FOR THE RESPONDENT
|
|
Recent Comments