Ottawa, Ontario, July 12, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This application for judicial review concerns a Pre-Removal Risk Assessment (PRRA) decision rendered on July 14, 2005 by which it was determined that the Applicant, Magdi Yousef, would not be at risk if he was returned to Egypt. The Applicant's earlier claim to refugee protection was rejected by a decision of the Immigration and Refugee Board (Board) rendered on October 6, 2004.
Background
[2] The Applicant is 56 years of age. He is a Coptic Christian who arrived in Canada from Egypt in 2002 and immediately sought refugee protection.
[3] The Applicant offered very graphic testimony to the Board attesting to a history of violent attacks motivated by a belief in the community that he had attempted to convert a young Muslim to Christianity. Among other incidents, he said that his store had been attacked and burned, that his family had been threatened, and that he was the victim of two poisoning attempts and one deliberate hit-and-run. He also said that the brakes on his vehicle had been tampered with.
[4] Although the Applicant had an extensive medical history in Egypt, the Board was troubled by the fact that his medical records bore little resemblance to - or otherwise failed to corroborate - the incidents of persecution he described. The Board noted the Applicant's failure to produce Canadian medical or psychological evidence to corroborate his story of numerous traumatic injuries and their lingering psychological effects. It also noted the inconsistency between the Applicant's story that the Egyptian authorities were complicit in the attacks he claimed to have suffered, and his continued government employment.
[5] The Board's decision also identified numerous additional inconsistencies and implausibilities in the Applicant's story and the fact of his delay in leaving Egypt in the face of a long and horrendous campaign of alleged harassment and abuse. From all of this, the Board concluded that the Applicant was lacking in credibility and it wholly rejected his claims of persecution.
[6] In the alternative, the Board found that state protection was available to protect the Applicant as one of a population of six (6) million other Coptic Christians in Egypt.
[7] The Applicant's submission to the PRRA officer was, for the most part, a repetition of the story he had offered to the Board. However, the Applicant did tender several pieces of "new evidence" in support of his PRRA application.
[8] Included in the so-called new evidence was a seven (7) page report prepared by Reverend Maged El Shafie, the President and Founder of One Free World International (a Toronto based Christian Ministry). Reverend El Shafie is an Egyptian Christian with some apparent knowledge of the political and religious circumstances in that country. His report contained a page-by-page critique of the Board's decision based upon his personal knowledge of the general situation in Egypt facing Christians and it offered the following conclusions:
After reviewing the history and documents of Mr. Yousef and after questioning him quite intensively for a period of two hours, I am satisfied that his account of events is both credible and plausible.
In reading the negative refugee decision, I can see how the panel's plausibility and credibility findings are based on a misapprehension of the situation in Egyptand also some cultural and social misunderstandings. I will address those findings in detail.
[9] The Applicant also submitted a psychiatric report dated March 12, 2005 authored by Dr. Hung-Tat Lo. That report was based on a medical assessment carried out on March 11, 2005 and it recited much of the Applicant's story of abuse in Egypt. It also referred to the Applicant's personal and medical circumstances since his arrival in Canada, and it concluded with the following diagnosis:
In conclusion, I am of the opinion that Mr. Yousef has suffered a lot from his persecution and torture, to the extent that he may have an organic brain syndrome along with a moderately severe major depressive disorder and features of post-traumatic stress disorder. He is coping marginally but still tries to support himself with work and he cares deeply about his family. If he is to be returned to Egypt, I believe there would be adverse and severe consequences on his health and well-being. If he is to stay in Canada, he would be in need of much more active psychiatric intervention and rehabilitation.
[10] In an attempt to establish that the translation of his Personal Information Form (PIF) was badly done, the Applicant submitted the following letter from the translator:
I Mr. SAMUEL FANOUS, used to represent Magdi Yousef case, confessing that I give wrong information regarding his case.
I totally regret and apologies of my actions. Due of tiredness, stress and exausted I can't think straight.
I hope you will give him a second chance in his case. Thank you so much for your kind consideration.
[Quoted from original text]
[11] Although the Applicant now claims that the above-noted letter was new evidence, his legal counsel tied the translation problems back to the Board hearing. The Applicant's written submission to the PRRA officer described the significance of this evidence as follows:
Some of the discrepancies noted by the RPD are due to the inattentive and careless way in which Mr. Yousef's Personal Information Form was prepared. Samuel Fanous, an interpreter who worked with Rodney Woolf, Barrister and Solicitor, prepared Mr. Yousef's PIF and was meant to appear as a witness for Mr. Yousef at the Refugee hearing. Mr. Woolf did not meet with Mr. Yousef to prepare the PIF and therefore did not have any discussions with him regarding information omitted or incorrect. Mr. Fanous admits in a letter enclosed herewith that he was tired, stressed and exhausted during the time he represented Mr. Yousef, and as a result, failed to record information properly, and made errors which later caused serious problems for Mr. Yousef at his hearing. Mr. Yousef has told his current counsel that Mr. Fanous was falling asleep while preparing Mr. Yousef's PIF, and the claimant had to keep re-focusing Mr. Fanous' attention on the case.
In closely reviewing the file, current counsel discovered that Mr. Sam Fanous did not even sign the interpreter declaration when he prepared the claimant's PIF, and that he had to be called into the room during the hearing to sign the declaration. He signed it hurriedly without properly reading it because the hearing was already in progress. This shows the level of inattention and proper care which was paid to the case during the preparation stages.
Mr. Fanous did not end up appearing as a witness at the RPD. Instead, his lack of attention and care in this case created confusion in the mind of the panel member, and in no small way accounted for the problems in Mr. Yousef's story, which led to finding that he was not a Convention Refugee. However, at least he now has the courage to stand up and admit his mistake in his letter.
[Emphasis added]
[12] A further piece of "new" evidence relied upon by the Applicant in support of his PRRA application was an undated letter from his wife in which it was alleged that the Egyptian Secret Police had visited the family home looking for him. This letter did not indicate when the police visits occurred but the context indicates that some, if not all of them, took place before the Board hearing.
[13] The Applicant also submitted a letter from a priest describing, very generally, the conditions facing Christians in Egypt. That letter stated:
I would like to inform that there are a lot of trouble regarding to religions where the Christians suffer too much from the burning the houses, their businesses and detained a lot of them into jail. no reasons. one of those people the blessed son Magdi Yousef who sufferd from the S.S.I. and the Islamic groups.
[Signed] The priest Shenooda Sadk March 5, 2005
[Quoted from original text]
[14] Finally, the Applicant submitted to the PRRA officer a large volume of country condition materials describing the situation facing Christians in Egypt.
The PRRA Decision
[15] The PRRA decision contains a thorough review of the evidence considered by the Board in rejecting the Applicant's refugee claim. The PRRA decision also contains a detailed summary of the specific new documents submitted on the Applicant's behalf and addresses the probative value of each in the following paragraphs:
· A March 9, 2005 report by Rev. Majed El Shafie, President/Founder "One Free World International, El Shafie Ministries". This report gives the author's personal history which includes torture by Egyptian authorities after his conversion to Christianity and subsequent Christian activism in Egypt. The author states that "[a]fter reviewing the history and documents of [the applicant] and after questioning him quite intensively for a period of two hours, I am satisfied that his account of events is both credible and plausible." While I have read this report carefully, I award it little weight for several reasons, the first being that it is not new evidence. Although it post-dates the RPD decision, it does not contain new information and counsel does not give reason why this document (or something like it) could not have been available before the RPD (notwithstanding that the applicant has changed counsel). The purpose of the PRRA is to evaluate new evidence or risk developments which have arisen since the RPD decision, not to provide a rebuttal of the RPD decision or to disagree with the panel's comments on specific paragraphs of the decision. The applicant had an opportunity to apply for Leave to Commence Judicial Review of the RPD decision and did not do so.
Despite this, I have considered the report and find that it is of limited probative value because it is based entirely on what the applicant related to the author, the latter of whom does not have first-hand knowledge of the former's history. In terms of country conditions for Christians, I award more weight to the expert sources cited in section 9 of this assessment because they are more broad-based and unbiased.
· A March 12, 2005 letter to counsel from a psychiatrist who saw the applicant on March 11, 2005 and reviewed his PIF. The doctor restates the applicant's history as indicated in his PIF and states that the applicant "had difficulty relating the history" and that the applicant became distraught and could not recall dates and other details. He notes that the applicant has had trouble finding employment and that his family doctor prescribed an anti-depressant for him. He notes that the applicant's "memory was found to be quite impaired when tested" and that his "concentration was very poor" but that he was "oriented to place and person". The psychiatrist states "I am of the opinion that [the applicant] has suffered a lot from his persecution and torture, to the extent that he may have an organic brain syndrome along with a moderately severe major depressive disorder and features of post-traumatic stress disorder." The doctor states his belief that if returned to Egypt, the applicant would suffer "adverse and severe consequences on his health and well-being. If he is to stay in Canada, he would be in need of much more active psychiatric intervention and rehabilitation." While I have read this report, as noted in the point above, this is not new evidence. Again, as above, the author's knowledge of the applicant's situation comes from the applicant himself and while I do not dispute the medical findings, I do not find that the doctor is an expert in the country conditions in Egypt. I nevertheless note the medical findings indicating the applicant's conditions. The PRRA examines risk as set out in sections 96 and 97 of IRPA. As per sub paragraph 97(1)(b)(iv) the risk cannot be caused by the inability of that country to provide adequate health or medical care. The applicant has provided insufficient evidence that medical care to treat his conditions is available in Egypt but is inaccessible to him specifically for any reason.
· A March 10, 2005 handwritten note from interpreter Samuel Fanous stating that he "used to represent Magdi Yousef case, confessing that I give wrong information regarding this case.". The note then states that the author regrets his actions and that they happened because of stress and exhaustion. He states that he hopes the applicant will be given a second chance.
Counsel states in the PRRA submission letter that "[s]ome of the discrepancies noted by the RPD are due to the inattentive and careless way in which [the applicant's] Personal Information Form was prepared" and that the interpreter was stressed and exhausted when working with the applicant and therefore "failed to record information properly, and made errors which later caused serious problems for [the applicant] at his hearing." While I have considered this evidence, I find that it is not specific enough to resolve the numerous credibility concerns noted by the RPD panel. Further, counsel does not indicate that the applicant's basic history has now changed because of the interpreter admitting mistakes so I find that, although this might explain some confusion and account for some of the many discrepancies noted by the panel, it does not resolve the credibility issues nor does it present a new risk development.
· An undated letter from the applicant's wife (that has been translated) stating that the secret police still search for him and that they threaten to take their son if they cannot find the applicant by the end of June. I award this letter no weight because it is not from an unbiased source without interest in the outcome of the assessment. It is further contradicted by the fact that the applicant left Egypt with a valid passport and visa for Canadaand received an exit stamp in his passport. I find that someone wanted by Egyptian authorities would have been unable to leave the country in such a manner.
· A March 5, 2005 note from "The priest Shenooda Sadk" stating that Christians suffer and that the applicant "sufferd from the S.S.I. and the Islamic groups." I award this brief note no weight, as the relationship between author and applicant is unexplained, it is unverifiable, I have no further details on the author (i.e. where he lives, whether in Canadaor Egypt) and the note provides insufficient detail to be of significant probative value.
· Many internet news articles concerning the limits on religious freedom in Egypt. While I have read and considered these in the context of an assessment of country conditions, I give more weight to the sources I have cited, including the Department of State country report or International Religious Freedom report (both also provided by the applicant), because they are impartial sources which provide a comprehensive and broad-based picture of country conditions.
· A 1996 thesis written at Regent University in Virginia by Baheg Bistawros entitled The Coptic Christians of Egypt Today: Under threat of Annihilation. Counsel indicates that this document is a thesis that, although published in 1996, was not accessible on the internet until April 2005 and that is why it was not reasonably available before the RPD. While I accept this document as new evidence given the explanation provided by counsel, I award little weight to the document except as the author's opinion of the historical perspective of conditions for Coptic Christians. I find the information too dated to be of significant probative value, although I have read and considered the document in the context of a country condition assessment. As above, I prefer the current and broad-based sources cited in section 9 of this assessment.
[Quoted from original text]
[Emphasis added]
[16] The PRRA officer considered all of the country condition reports and found some of that material to be more persuasive than others. Her decision does, however, make note of the fact that she gave favourable consideration to some of the materials submitted on behalf of the Applicant. The conclusions she reached, after considering all of the evidence before her, were as follows:
I note that in perusing the general and widely available documentary evidence from reliable sources, it is clear that the government of Egypt views Muslim fundamentalist groups with suspicion. The applicant provides insufficient evidence that the state would ignore outright attacks by Muslim fundamentalists on its citizens. The documentary evidence does not indicate that the state itself persecutes, kills, or attempts conversion of its Coptic Christian citizens.
I do not find there is more than a mere possibility that the applicant would be at risk for any of the Convention grounds. I do not find it likely that the applicant would be subjected to torture or risk to life or risk of cruel and unusual treatment or punishment upon his return to Egypt. I acknowledge that incidents of torture and cruel and unusual treatment occur in Egypt but the evidence indicating that the applicant would be specifically targeted for torture or ill treatment is insufficient to conclude that it is likely to happen.
Issues
1. Did the PRRA officer err in her treatment of the evidence?
2. Did the PRRA officer breach her duty of fairness by failing to make inquiries to clarify evidence or by failing to convene an oral hearing?
Analysis
Standard of Review
[17] In Demirovic v. Canada(Minister of Citizenship and Immigration), [2005] F.C.J. No. 1560, 2005 FC 1284, Justice Eleanor Dawson considered several previous authorities which dealt with the standard of review applicable to PRRA decisions. I adopt her statement at paragraph 23 in that decision and apply it here:
23 As to the appropriate standard of review to be applied to a decision of a PRRA officer, in Kim v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 540 (T.D.) at paragraph 19, Mr. Justice Mosley, after conducting a pragmatic and functional analysis, concluded that "the appropriate standard of review for questions of fact should generally be patent unreasonableness, for questions of mixed law and fact, reasonableness simpliciter, and for questions of law, correctness". Mr. Justice Mosley also endorsed the finding of Mr. Justice Martineau in Figurado v. Canada (Solicitor General), [2005] F.C.J. No. 458 (T.D.) at paragraph 51, that the appropriate standard of review for the decision of a PRRA officer is reasonableness simpliciter when the decision is considered "globally and as a whole". This jurisprudence was followed by Madam Justice Layden-Stevenson in Nadarajah v. Canada (Solicitor General), [2005] F.C.J. No. 895 (T.D.) at paragraph 13. For the reasons given by my colleagues, I accept this to be an accurate statement of the applicable standard of review.
[18] With respect to the Applicant's process arguments that the PRRA officer had a duty to make further inquires to clarify evidence and a duty to conduct an oral hearing, no standard of review analysis is required. Such fairness questions are resolved on the sole basis of whether a breach of the duty of fairness has occurred: see Ha v. Canada(Minister of Citizenship and Immigration), [2004] 3 F.C.R. 195, [2004] F.C.J. No. 174, 2004 FCA 49 (F.C.A.).
[19] It bears repeating in this case that considerable deference is owed to the factual determinations made by the PRRA officer including her conclusions with respect to the proper weight to be accorded to the evidence placed before her. This point was made by Justice Edmond Blanchard in Selliah v. Canada(Minister of Citizenship and Immigration), [2004] F.C.J. No. 1134, 2004 FC 872 where he stated at paragraph 16:
16 PRAA officers have a specialized expertise in risk assessment. Their findings are usually fact driven and, in my view, warrant considerable deference from a reviewing Court.
In Augusto v. Canada(Solicitor General), [2005] F.C.J. No. 850, 2005 FC 673, the same point was made by Justice Carolyn Layden-Stevenson at paragraph 9:
9 In my view, in substance, this argument goes to the weight the officer assigned to the evidence. In the absence of having failed to consider relevant factors or having relied upon irrelevant ones, the weighing of the evidence lies within the purview of the officer conducting the assessment and does not normally give rise to judicial review. Here, the reasons reveal that the PRRA officer did consider the evidence tendered by Ms. Augusto, but gave it little weight. There was nothing unreasonable about the officer having done so.
Role of the PRRA Officer
[20] Some of the evidence-based arguments made here on behalf of the Applicant appear to misconstrue the role of the PRRA officer. It is not the role of the PRRA officer to re-examine evidence assessed by the Board, and it is not open to the officer to revisit the Board's factual and credibility conclusions. It is also not the duty of the PRRA officer to consider evidence that could have been put to the Board, but was not. The role of the PRRA officer, as defined by section 113 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (IRPA), is to examine "only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented". Here, the PRRA officer clearly and correctly defined her role in conformity with the above section 113 limitations.
[21] In Kaybaki v. Canada(Solicitor General), [2004] F.C.J. No. 27, 2004 FC 32, Justice Michael Kelen very succinctly confirmed the limited role of a PRRA officer at paragraph 11:
... For this reason, the PRRA officer should not have considered these letters. The PRRA application cannot be allowed to become a second refugee hearing. The PRRA process is to assess new risk developments between the [IRB] hearing and the removal date.
I would also add to Justice Kelen's remarks that it is not the role of a PRRA officer to act as a court of appeal from a prior refugee/protection decision.
[22] Notwithstanding the above authorities, the Applicant asserts that it was open to the PRRA officer to reconsider the Board's credibility findings and that she should have done so on the strength of the documentary evidence submitted.
[23] The Applicant's argument on this point is difficult to follow. It was asserted on his behalf that this "new" material was not intended to rehabilitate his credibility, but only to counter the Board's conclusions "regarding the plausibility of the Applicant's story when placed in the appropriate cultural and political context". It seems to me that however one wants to "dress up" this evidence, it amounts to the same thing - it was offered to the PRRA officer for the purpose of undermining the Board's adverse credibility findings. The PRRA officer saw this attempt for what it was and, for the most part, correctly rejected or discounted the evidence as irrelevant to the exercise of her limited mandate.
[24] The Applicant asserts that because the psychiatric report was written after the refugee hearing, it, therefore, met the definition of "new evidence". The failure by the PRRA officer to see this is said to be an error. This argument has no merit. There is nothing in the psychiatric report which was "new" in the sense that it arose subsequent to the Board hearing. Only the date of the letter is new, but not its content. Indeed, the Applicant's written argument correctly observes that the psychiatric opinion simply described the continuation of a medical condition that had been persistent since he had left Egypt. The Applicant's affidavit also concedes that he was under constant psychological stress before he left Egypt. This was, accordingly, evidence that was readily available at the time of the Board hearing, and the absence of such evidence at that time was duly noted by the Board. The PRRA officer was, therefore, correct in her characterization of this letter.
[25] The Applicant also criticizes the PRRA officer's rationale for rejecting his wife's letter and, in particular, the comment that it did not come from an unbiased source. If that had been the sole basis for rejecting the letter it might have warranted some concern. Here, though, the PRRA officer observed that the letter was undated (and hence had no historical context) and its content was inconsistent with the ease with which the Applicant was able to leave Egypt. This was a plausibility finding that was reasonable and open to the PRRA officer to make. The authorities relied upon by the Applicant on this point can be distinguished because they turned solely on the unfair rejection of evidence simply because it came from a family source. Here, the PRRA officer had other reasons for rejecting the letter and it was well within her discretion to do so.
[26] The Applicant argued that the PRRA officer's negative treatment of the letter from Father Sadk was inconsistent with her treatment of the wife's letter. This criticism does not stand up because the probative value of the former correspondence was discounted for entirely different reasons. The PRRA officer gave Father Sadk's letter little weight because the author provided no background information with respect to the source of his supposed knowledge or with respect to his relationship to the Applicant. This was an entirely proper approach to a piece of evidence that had virtually no probative value due to its lack of detail and content.
[27] The Applicant also contends that the report prepared by Reverend El Shafie should have been given considerable weight as an expert opinion on the situation of Christians in Egypt. It is further argued that this letter offered evidence of cultural and social context in Egypt which was "new" evidence that was not before the Board when it made findings that the Applicant's account was not plausible. This argument, too, is unmeritorious. There is nothing in the report from Reverend El Shafie which could be characterized fairly as new evidence. Instead, it seems to me to fall clearly within the kind of evidence which was considered in the Selliah case, above, and where Justice Blanchard held at paragraphs 38 and 39:
38 The information which does post-date the applicants' PRRA submissions consists primarily of articles that deal with ongoing difficulties incurred in instituting the peace process and the resettlement in Jaffha, and though new, it is not significant or significantly different from information contained in the applicants' September 5, 2002, PRRA submissions. The new articles such as "Rebels Continue to Detain Seven Soldiers in Sri Lanka" (Deutsche Presse-Agentur, September 30, 2002,) "Amnesty International urges Sri Lankan Government to Stop Torture" (Associated Press, Nov. 2, 2002,) and "Resettlers Protest Planned Colonization of Tamil Village" (Tamilnet, December 13, 2002,) merely echo articles previously submitted by the applicants, as well as problems that the Officer herself recognized and identified in her reasons. Thus the new materials, do not, in my view, evidence significant changes in general country conditions that may, if considered, have affected the decision. As indicated above the Officer considered similar information and noted in her reasons the challenges facing the peace process in Sri Lanka. It is not for this Court to re-weight this evidence.
39 I therefore conclude that the information filed by the applicants on January 20, 2003, for the most part, does not constitute new evidence, and that information which is new, is not significant to the extent that it may have affected the decision.
The PRRA officer was correct in saying that Reverend El Shafie's letter contained nothing of substance that was not otherwise available at the time of the Board hearing. To the extent that this letter was an attempt to undermine the Board decision, it clearly fell outside of the PRRA officer's proper mandate and was, therefore, not relevant.
[28] The above-noted comments by Justice Blanchard in Selliah have equal application to the country condition reports which were submitted by the Applicant to the PRRA officer. It was within her mandate to discount those materials and to favour other documents which she found more persuasive. Indeed, her conclusions with respect to the country conditions in Egypt, and the treatment of Christians generally, are well supported by the documentary record and were, therefore, reasonable. It is also noteworthy that some of this evidence relied upon by the officer came from the Applicant.
[29] Finally, the Applicant's criticism of the PRRA officer's treatment of the 1996 university thesis is also unfounded. It was open to the PRRA officer to give this evidence "little weight" because the information it conveyed was stale. It bears repeating that this kind of information is not new evidence simply because it is dated after the Board hearing. The proper question for the PRRA officer was whether the document contained new and material information that was generally not available at the time of the Board hearing. If such a document simply summarizes other earlier and readily available evidence, it would generally be of only limited value to a subsequent PRRA assessment.
[30] For all of these reasons, I do not find that the Applicant's criticisms of the PRRA officer's treatment of the documentary evidence to be meritorious.
Duty of Fairness
[31] The Applicant's second argument concerns the duty of fairness and seeks to impose an obligation upon the PRRA officer to "clarify issues that were unclear prior to rendering her decision". This argument is based upon the PRRA officer's treatment of the letter from the translator. The Applicant says that this evidence was sufficiently troubling that it ought to have caused the PRRA officer to seek further explanations about what had taken place before the Board with regard to translated evidence.
[32] The PRRA officer did consider this evidence and held that it was "not specific enough to resolve the numerous credibility concerns noted by the RPD panel". This willingness to consider the translator's letter was generous to the Applicant because clearly it did not constitute new evidence. The Applicant was aware of the translation issues which arose prior to and during the Board hearing but chose to do nothing about it at that time. The letter that was subsequently obtained from the translator says absolutely nothing about the significance of the points which were supposedly translated in error. For all that anyone could tell, these were minor points of interpretation which would have had no significance whatsoever to the outcome of the Board hearing. On the other hand, if the translation problems vaguely alluded to in the translator's letter were of great significance, presumably they would have been clearly identified in a supporting affidavit. The failure by the Applicant to provide any specifics on this issue allowed the PRRA officer to draw a perfectly reasonable inference that the referenced translation difficulties were insignificant or immaterial.
[33] I also reject the argument that the PRRA officer was under a duty to search out additional clarifying evidence on the strength of this vague allusion to translation difficulties. The burden of proof with respect to the PRRA application rested throughout upon the Applicant, and no such duty to make inquires rested upon the officer. This point was conclusively addressed by Justice Blanchard in the Selliah decision, above, in the following passages:
20 The applicants argue that it was important to clarify these facts to ensure that the decision was not founded on an erroneous factual basis. The applicants maintain this was significant since the Officer stated in her reasons that "... even if I were to consider all the elements of evidence as accepted, it would not justify allowing the application for protection, ...".
21 The issue of whether there is an obligation on a visa officer to make further inquiries when an application is ambiguous was considered in Lam v. Canada(Minister of Citizenship and Immigration) (1998), 152 F.T.R. 316 (F.C.T.D.). At paragraph 4 of his reasons Mr. Justice Rothstein wrote:
A visa officer may inquire further if he or she considers a further enquiry is warranted. Obviously, a visa officer cannot be wilfully blind in assessing an application and must act in good faith. However, there is no general obligation on a visa officer to make further inquiries when an application is ambiguous. The onus is on an applicant to file a clear application together with such supporting documentation as he or she considers advisable. The onus does not shift to the visa officer and there is no entitlement to a personal interview if the application is ambiguous or supporting material is not included.
22 I agree with the above reasons of Justice Rothstein in Lam. In the case before me the onus was on the applicants to make their case and adduce the necessary evidence to meet this onus. The evidence adduced was ambiguous and in some instances contradictory. There is no evidence to suggest that the Officer was wilfully blind in the circumstances and I find that she was acting in good faith. There was no obligation on the Officer to gather or seek additional evidence or make further inquiries. The Officer was required to consider and decide on the evidence adduced before her. In my view, there was no duty to further clarify the evidence. (See also: Ly v. Canada [2000] F.C.J. No. 1965, online: QL; and Tahir v. Canada (Minister of Citizenship and Immigration) (1998), 159 F.T.R. 109 (F.C.T.D.).
[34] The Applicant's final fairness argument is based upon the PRRA officer's failure to convene an oral hearing before rendering her decision.
[35] The grounds which a PRRA officer must consider in deciding whether to hold an oral hearing are established by section 167 IRPA which reads:
| 167. (1) Both a person who is the subject of Board proceedings and the Minister may, at their own expense, be represented by a barrister or solicitor or other counsel.
(2) If a person who is the subject of proceedings is under 18 years of age or unable, in the opinion of the applicable Division, to appreciate the nature of the proceedings, the Division shall designate a person to represent the person.
|
167. (1) L'intéressé peut en tout cas se faire représenter devant la Commission, à ses frais, par un avocat ou un autre conseil.
(2) Est commis d'office un représentant à l'intéressé qui n'a pas dix-huit ans ou n'est pas, selon la section, en mesure de comprendre la nature de la procédure. |
[36] The Applicant relies upon the decision in Tekie v. Canada ((Minister of Citizenship and Immigration), [2005] F.C.J. No. 39, 2005 FC 27 where Justice Michael Phelan held that where an applicant's credibility is in issue and where credibility is potentially material to the outcome of a PRRA application, an oral hearing should be allowed. I accept this point in principle but it has no application to this case. Here, the PRRA officer's decision was based on the insufficiency of the evidence submitted by the Applicant in support of his contention that he faced new or heightened risks if he returned to Egypt.
[37] Although the PRRA officer referred to the Board's credibility conclusions, she did not purport to adopt those findings in weighing the very limited evidence placed before her which was relevant to her assessment of the present risk faced by the Applicant should he return to Egypt. On the facts of this case, I would endorse and apply the following remarks by Justice Blanchard in Selliah decision, above, at paragraph 27:
27 Upon reviewing the above-noted factors set out in section 167 of the Regulations I am satisfied that the prescribed circumstances were not present in the instant case that would warrant the holding of an oral hearing. The applicants' credibility was not the determining issue of the decision, rather the officer found that the risks to the applicants had not been established on the objective evidence, such as the advances made with the peace process and the existence of an internal flight alternative (IFA) for the applicants. The Officer clearly indicated that even if she had accepted all the evidence adduced by the applicants, it would have been insufficient to warrant a positive finding. As the sufficiency of evidence was the central issue, and no serious issue of credibility was raised, there was no obligation on the part of the officer to hold an oral hearing: Kim v. Canada(MCI), [2003] F.C.J. No. 452, online: QL.
[38] In conclusion, I can find nothing in the PRRA officer's decision, or in the process she adopted, which would justify the quashing of her decision; accordingly, this application is dismissed.
[39] I will give both parties the opportunity to propose a certified question within seven (7) days of this decision, with a right of reply within the following three (3) days.
JUDGMENT
THIS COURT ADJUDGES that this application is dismissed.
THIS COURT FURTHER ADJUDGES that both parties shall have the opportunity to propose a certified question within seven (7) days of this Judgment, with a right of reply within the following three (3) days.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5608-05
STYLE OF CAUSE: MAGDI YOUSEF
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, JUNE 1, 2006
AND JUDGMENT: The Honourable Mr. Justice Barnes
APPEARANCES:
Melissa Melvin FOR THE APPLICANT
Janet Chisholm FOR THE RESPONDENT
SOLICITORS OF RECORD:
Green & Spiegel
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT