Federal Court Decisions

Date: 20051108

Docket: IMM-2617-05

Citation: 2005 FC 1523

Vancouver, British Columbia, Tuesday, the 8^th day of November, 2005

Present:           THE HONOURABLE MADAM JUSTICE SNIDER

BETWEEN:

                                                                HAI TAO CHEN

                                                                                                                                            Applicant

                                                                         - and -

                                               THE MINISTER OF CITIZENSHIP

                                                          AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                The Applicant is a Chinese citizen who arrived in Canada as a stowaway on a ship travelling from Korea and made a refugee claim in June 2004. In a decision dated October 28, 2004, the Refugee Protection Division of the Immigration and Refugee Board (the "RPD") found that: (a) the Applicant was neither a Convention refugee nor a person in need of protection; and (b) pursuant to subsection 107(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), there was no credible basis to the claim.

[2]                As entitled pursuant to subsection 112(1) of the IRPA, the Applicant applied for a pre-removal risk assessment ("PRRA") on January 28, 2005. After a review of the documents provided in support of his PRRA application and a hearing, the PRRA Officer rejected the application in a decision dated March 24, 2005. The Applicant seeks judicial review of this decision.

ISSUES

[3]                This application raises the following issues:

1.          Did the Officer misapprehend or ignore evidence or reach a patently unreasonable conclusion with respect to the Applicant's claim that he would be at risk, if returned, due to Chinese authorities' treatment of persons who have left China illegally?

2.          Did the Officer breach the duty of fairness:

(a)         By failing to comply with paragraph 168(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations") that provides that notice of a PRRA hearing must set out "the issues of fact that will be raised at the hearing"?

(b)         By failing to permit the Applicant's counsel to intervene during the Officer's questioning of the Applicant, in violation of paragraph 168(c) of the Regulations that provides that the Applicant may be assisted by counsel?

[4]                In his written submissions, the Applicant also raised an additional issue with respect to findings by the Officer related to "new" evidence directed at the key findings of the RPD. The Applicant did not pursue this issue at the hearing.

ANALYSIS

Standard of Review

[5]                The parties do not dispute that the decision of the Officer on factual determinations - that is, the first issue - is reviewable on a standard of patent unreasonableness. The Officer erred only if her decision was based on a finding of fact that was made "in a perverse or capricious manner or without regard to the material before it" (Federal Courts Act, paragraph 18.1(4)(d)).

[6]                In contrast, when considering an allegation of a breach of procedural fairness, I need not assess the appropriate standard of review. "The content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standard of review is applied to the end product of his deliberations" (Ha v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C. 195 at para. 43, quoting Justice Binnie in C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 at para. 102). Stated differently, since the Officer is required to make each and every decision in accordance with procedural fairness, it is up to this Court to determine whether that was done in this case.

Issue #1:          Did the Officer misapprehend or ignore evidence or reach a patently unreasonable conclusion?

[7]                With his application, the Applicant submitted a number of documents which he described as "new evidence", being evidence that post-dated the RPD hearing. Of relevance to the submissions relied on by the Applicant in oral submissions, the Applicant submitted evidence related to a fear of being arrested and abused in detention for being an illegal migrant from China. Specifically, that evidence included documents related to two individuals - Ying Hua Lin and Chen En - who were allegedly detained and beaten in detention, after returning to China and being found by Chinese authorities to have illegally migrated from China. For Ying Hua Lin, the Applicant submitted:

·            a copy of a "Decision of Public Security Administration Punishment" indicating that, on December 4, 2004, he was given a detention of 7 days and a penalty of five thousand yuan for migrating illegally to Japan; and

·            a copy of a "Record of Conditions and Treatment" from the Fujian Provincial Hospital, indicating treatment, on December 11, 2004, for injuries reported to be due to "being assaulted".

[8]                For Chen En, the only evidence submitted was a hospital report.

[9]                The Officer reviewed the evidence submitted and accepted that it was genuine. However, the Officer concluded that she was "unable to determine that the medical treatment these individuals required can be attributed to assaults by public security officials using undue force or engaging in inhumane treatment". The Applicant submits that this conclusion was patently unreasonable. In his submission, the only reasonable conclusion to be drawn from the evidence related to Ying Hua Lin, in particular, was that he was assaulted by the detaining authorities.

[10]            Beyond hearsay references in a letter from his mother, the Applicant submitted no evidence of when or why Chen En was detained. Accordingly, for Chen En, the Officer's conclusion was not unreasonable. For Ying Hua Lin, the link between the detention and the assault is stronger. I accept that the combination of the detention record and the hospital record show that the assault most likely took place during Ying Hua Lin's detention. However, the connection in time between the assault and the detention does not necessarily mean that he was assaulted by the authorities while in detention. There are many possible explanations for an assault during detention. I do not find that the Officer's conclusion on this issue was patently unreasonable or made without regard to the evidence.

[11]            The Applicant also argues that the Officer erred by failing to consider the letter from the Applicant's mother that was submitted as evidence. In her letter, the mother refers to the assaults upon Ying Hua Lin and Chen En. Failure to refer to important corroborative evidence constitutes a reviewable error (Cepeda-Gutierrez (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (T.D.)). In this case, the Applicant concedes that the letter from the mother was based on hearsay information only; it does not provide reliable corroboration that the individuals were assaulted by the authorities. The Board did not err by failing to refer to the letter in the context of the treatment of Ying Hua Lin and Chen En.

Issue #2:          Was there a breach of procedural fairness?

[12]            The consideration of PRRA applications is set out in a number of provisions of IRPA and the Regulations. Those provisions are as follows:

IRPA

Regulations

161. (1) A person applying for protection may make written submissions in support of their application and for that purpose may be assisted, at their own expense, by a barrister or solicitor or other counsel. (2) A person who makes written submissions must identify the evidence presented that meets the requirements of paragraph 113(a) of the Act and indicate how that evidence relates to them. 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.

161. (1) Le demandeur peut présenter des observations écrites pour étayer sa demande de protection et peut, à cette fin, être assisté, à ses frais, par un avocat ou un autre conseil. (2) Il désigne, dans ses observations écrites, les éléments de preuve qui satisfont aux exigences prévues à l'alinéa 113a) de la Loi et indique dans quelle mesure ils s'appliquent dans son cas. 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.

[13]            In brief, the default position is that a PRRA application is dealt with on the basis of the written submissions of a claimant. An officer may hold a hearing if that officer is satisfied that one is required based on the three factors set out in section 167. As described in the Procedures Manual PP 3 of Citizenship and Immigration Canada ("CIC"), at 12.2:

The purpose of the hearing is to assess the credibility of the applicant. . . . In most cases, officers will be able to determine through documentary evidence what the true facts are and then assess what potential exists in a situation which indicates an applicant is or is not likely to be harmed as defined in the protection grounds. . . .

The conduct of a hearing will be contemplated where the officer is confronted with new evidence on an issue that is central to the decision, evidence that would lead to a positive decision were it not for the fact that the officer has doubts on the applicant's credibility.

[14]            All factors set out in section 167 of the Regulations must be present to indicate that an Officer may hold a hearing. In this case, no one is disputing whether the Officer acted reasonably in calling for a hearing. Accordingly, I need not interpret the exact requirements for deciding to hold a hearing and whether they were met; I may assume that they were. The questions before me in this application deal with the procedure to be followed once an officer decides that a hearing will be held.

[15]            The CIC Manual describes how a hearing is to be conducted at 12.3 of the Manual. In summary form:

·            A notice will be sent indicating the time and place of the hearing and the general issues of fact that will be raised;

·            The hearing is restricted to the issues raised in the notice;

·            The hearing is informal and non-adversarial with the applicant given the opportunity to answer questions raised by the officer;

·            The applicant may be represented by counsel whose role, at the hearing, "is not to make representations, present legal arguments or new evidence; it is to be supportive in assisting their client in the clarification of issues raised".

·            It is not appropriate for the applicant or counsel to raise new issues or submit new evidence not related to the issues;

·            It is not appropriate to use the hearing to make legal representations or present argument;

[16]            Two issues arise out of the procedure followed by the Officer in this case - the adequacy of the notice and the role of counsel at the hearing. I will consider each of these.

(a)         Adequacy of the Notice

[17]            By notice dated March 9, 2005, the PRRA Officer dealing with the Applicant's file requested the attendance of the Applicant at a hearing. The Notice included a statement that:

The purpose of this hearing is with regard to the evidence provided in support of his application for protection, specifically the new evidence you have adduced as proof regarding the allegations of risk.

[18]            In a letter dated March 9, 2005, counsel for the Applicant sought clarification of the issues of fact to be addressed at the hearing as follows:

I am writing further to our conversation and your FAX of today's date to request clarification of the issues of fact to be addressed at the hearing, as per Reg. 168(a) and to forward to you the originals of documents referred to in my submissions as requested. Although you have indicated that the purpose of the hearing is with regard to the new evidence submitted, it is not clear to me if you intend to question him about these documents only, or what precise issues of fact will be addressed.

The Officer did not respond to this letter.

[19]            The Applicant argues that the failure of the Officer to set out the facts in issue was in breach of the Regulations. Further, and more importantly, the failure prevented the Applicant from knowing the case to be met at the hearing.

[20]            The Respondent submits that the Applicant clearly knew or should have known that credibility was at issue and would be the focus of the oral hearing. In effect, the Respondent asserts that the reliability and credibility of all the evidence submitted for the purposes of the PRRA was the issue of fact before the Officer. On this basis, the Respondent is of the view that the Notice was adequate and that the Applicant was not prejudiced in his preparation for the PRRA hearing.

[21]            Paragraph 168(a) of the Regulations sets out a requirement that the Notice identify the facts in issue to be addressed at the hearing. The purpose of this Regulation is to ensure that a person appearing at this hearing is aware of the facts in issue so that he or she can prepare adequately.

[22]            Knowing the case to be met is a fundamental requirement of procedural fairness. The question in this case is whether, on the basis of the Notice dated March 9, 2005, the Applicant was aware of and could prepare to address the issues of fact that were of concern to the Officer.

[23]            The most serious problem with this Officer's Notice is her failure to respond to a specific request from the Applicant's counsel for clarification. Had there been no request for clarification, I might have concluded that the Officer's general statement was understood by the Applicant to be notice that the reliability and credibility of all the documents submitted as "new" evidence were to be the issues of fact to be addressed. However, with the request for clarification, the Officer was alerted to the fact that the Applicant did not understand what was meant by the very general statement in the Notice.

[24]            The Officer's statement that the hearing was being held "with regard to the evidence" is not particularly helpful. The Applicant submitted many documents as new evidence. Surely, the Officer had some idea of what issues arose from her initial review of the documents. A decision to hold a hearing cannot be made lightly and must have been based on some identifiable concerns. Did the Officer doubt the authenticity of the hospital records? Or the mother's letter? Did she question the documentary evidence? One fact in issue that is apparent from her decision is whether the assault on Lin while he was in detention came at the hands of the border authorities. Had the Applicant been aware that this was a "fact in issue" perhaps he could have been better prepared for the hearing questions.

[25]            On the basis of the facts in this case, I conclude that the Officer failed to identify the facts in issue as required by paragraph 168(a) of the Regulations. In the circumstances of this case, the failure amounted to a breach of procedural fairness.

(b)         Role of Counsel

[26]            As noted, paragraph 168(c) of the Regulations provides that, at a hearing, an applicant must respond to the questions posed by the officer and may be assisted for that purpose by counsel. In this case, the Applicant states in his affidavit that his counsel was not allowed to intervene during the questioning by the Officer or to question him. It is submitted that, given the serious consequences flowing from the hearing, the Applicant was entitled to be questioned by his own counsel (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817) and that the Officer's failure to allow counsel's intervention was a breach of the Regulations and of procedural fairness.

[27]            I accept, on the basis of the Applicant's uncontradicted affidavit, that the Applicant's counsel was advised by the Officer that she should not intervene during the Officer's questioning. However, I do not accept that the Applicant has demonstrated that there has been a reviewable error. In effect, the Applicant submits that the only way in which the Officer could satisfy paragraph 168(c) and the requirements of procedural fairness would be to allow ongoing intervention by counsel during the questioning and a right to question the Applicant. This, in my view, goes beyond the requirements set out in the Regulation or by procedural fairness.

[28]            First, we must look at the context of the PRRA hearing. A PRRA hearing is not the same as an RPD hearing and, in my view, has a restricted scope. The PRRA decision in this case was ancillary to the primary refugee determination made by the RPD; as indicated in section 113 of the IRPA, the purpose of a PRRA is to respond only to new evidence which may alter that RPD's conclusion that the claimant does not require Canada's protection. It is also important to note that it is within the Officer's discretion to grant an oral hearing. Additionally, s. 168 of the Regulations sets out the procedure of that hearing, in which it is clear the scheme is designed to have the officer present questions and the Applicant provide answers. While paragraph 168(c) of the Regulations grants the Applicant the right to be assisted by counsel in responding to the Officer's questions, it does not specify that the Applicant has a right to be examined by counsel.

[29]            It is not clear from the Applicant's affidavit what he means by saying that his counsel could not "intervene." If the Officer prevented the Applicant's counsel from assisting him in answering questions, that may, depending on the level of assistance, constitute a breach of fairness (the Applicant may be entitled to advice before replying, for instance, but not to have counsel effectively answer for him). However, if the Officer prevented counsel from questioning the Applicant at length, that would not, in my opinion, constitute a breach of the duty of fairness.

[30]            In this case, the Officer's notes from the hearing do not indicate that the Applicant had difficulty answering the questions that were posed by the Officer. The Applicant's affidavit does not set out any problems. Further, while counsel may have been requested not to intervene during questioning by the Officer, counsel was permitted to make concluding remarks. This certainly would have assisted the Applicant in his responses to the questions, albeit after the questioning was completed. Finally, counsel submitted further documents after the hearing, which documents were considered by the Officer. In my view, this was another opportunity for counsel to assist. Neither the Officer's notes nor the Applicant's affidavit indicate that counsel sought to intervene as the questioning proceeded. In short, the Applicant has not persuaded me that he did not obtain the assistance that he required to be able to respond to the questions at the hearing.

[31]            In conclusion, there is no one way in which the requirements of paragraph 168(c) are to be met. In my view, the Officer, by her actions during and after the hearing, provided ample opportunity for counsel to assist the Applicant in responding to the questions. With respect to the alleged breach of procedural fairness, the onus is on the Applicant to satisfy this Court that the Officer's choice of procedure resulted in unfairness; he has failed to do so.

CONCLUSION

[32]            For these reasons, I conclude that the Officer erred by failing to provide adequate notice of the PRRA hearing. Although the Applicant has not been successful on all issues before me, the breach of natural justice in failing to provide adequate notice of the hearing is determinative. It is impossible to determine whether the Applicant would have been able to provide adequate responses to the Officer's concerns had the Officer not erred. The decision of the Officer will be quashed and the matter remitted for re-consideration by a different PRRA Officer.

[33]            To be clear on the basis for remitting this matter, I wish to point out that the officer who deals with the PRRA application will be commencing the assessment of the Applicant's application as though a review had never been conducted. In that context, it will be up to the new officer to determine the process to be followed in assessing that application, including whether a hearing is required.

[34]            Although the parties were provided with an opportunity to make written submissions on whether a question of general importance should be certified, neither party proposed a question for certification. No question will be certified.

                                               ORDER

THIS COURT ORDERS that:

1.          The application is allowed, the decision of the Officer is quashed and the Applicant's PRRA Application remitted to a different PRRA officer for consideration and determination;

2.          No question of general importance is certified.

(Sgd.) "Judith A. Snider"

Judge                      

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  IMM-2617-05

STYLE OF CAUSE: HAI TAO CHEN

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING:                                 Vancouver, BC

DATE OF HEARING:                                   November 1, 2005

REASONS FOR ORDER AND ORDER: SNIDER J.

DATED:                                                          November 8, 2005

APPEARANCES:

Brenda J. Wemp                                               FOR APPLICANT

R. Keith Reimer                                                 FOR RESPONDENT

SOLICITORS OF RECORD:

Brenda J. Wemp                                               FOR APPLICANT

Barrister & Solicitor

Vancouver, BC

Mr. John H. Sims, Q.C.                                                 FOR RESPONDENT

Deputy Attorney General of Canada