In this application for a judicial review the Applicant asks for a review of three main aspects of the Officer’s decision: 1) the risk assessment of not staying in Canada, 2) the impact of his return on his children, and 3) procedural fairness.  This decision demonstrates how deferential the Court is towards the administrative tribunals and how carefully it approaches their decisions.  The Court determines that a deferential standard is applicable in this case and that the application should be dismissed.

Facts

The applicant, Mr. Fatai Ayinla Adetunji, is a Nigerian citizen who claims refugee status in Canada.  He formerly lived in the United States with a former spouse. The applicant has three children, two from his former spouse and one, a two year old, from his current spouse living in Canada.  His current spouse also has children, the youngest being 16 years old.

The Applicant lost his permanent residence status in the United States on account of several criminal convictions.  He was then deported to Nigeria.  Upon his return to Nigeria the Applicant’s father passed away because according to the Applicant he was poisoned by his wife, the Applicant’s stepmother.  The Applicant fled from Nigeria to Canada because he alleged that his stepmother threatened to kill him.

After his arrival to Canada in 2007, a departure order was issued against the applicant.  In October 2009, the Applicant filed an application for permanent residence based on humanitarian and compassionate grounds [H&C].  In May 2010, the Refugee Protection Division rejected his refugee protection claim.  On March 22, 2011, the Applicant submitted his Pre-Removal Risk Assessment [PRRA] application form and on May 3, 2011 the PRRA and the H&C applications were refused.

With respect to the H&C decision, the Officer indicated that the Applicant did not present sufficient evidence as to how his return to Nigeria would negatively affect his children.  By way of example he did not discuss alternative solutions for supporting his family other than staying in Canada.  Furthermore, while the Officer has acknowledged that the Applicant’s two-year old son requires care of both parents, she determined that the relative autonomy of the other children mentioned in the application bears minimal weight.  Finally, the Applicant’s criminal convictions in the US were awarded a significant weight in refusing the application.

With respect to the PRRA decision, the Officer concluded that the evidence fell short to establish on the balance of probabilities that the Applicant would be personally in danger in Nigeria.  With regards to the Applicant’s father’s death, the secondary cause of which was food poisoning according to the Medical Certificate, the Officer after consulting a health website concluded that food poisoning can result from factors other than a criminal act.  Therefore, the Certificate was insufficient to support the Applicant’s claim that his life would be at risk in Nigeria.  The Officer also concluded that general instability in Nigeria does not establish personalized risk to the applicant.  The Officer determined that an oral hearing was not necessary because the Applicant’s evidence did not raise serious issues of credibility.

On June 21, 2011, the Applicant filed an application for a judicial review of the PRRA and H&C refusals.

Issues

Did the Officer breach the principles of procedural fairness?

Did the Officer err in assessing the risk of returning to Nigeria?

Did the Officer properly assess the interests of the Children?

Did the Officer err in assessing the various factors submitted by the Applicant in support of his application?

Analysis

Did the Officer breach the principles of procedural fairness?

First, the Applicant argues that the Officer made a finding of credibility in determining that there was insufficient evidence of personalized risk.  Thus, the Applicant claims entitlement to a hearing, which was not granted.  Second, he alleges that the Officer breached procedural fairness by relying on extrinsic evidence by consulting an Internet source for a definition of food poisoning without proper disclosure of the information and without providing the Applicant an opportunity to respond.  The Court rejects the two claims.

The Court begins with the discussion of the standard.  The Court determines that although issues of procedural fairness require a less deferential standard of review, there is controversy about the standard for an Officer’s decision not to convoke an oral hearing in the context of PRRA.  The Court decides that a more deferential reasonableness standard is applicable in this case.  After examining s 113 of the Immigration and Refugee Protection Act, which states that the Minister may hold a hearing in the basis of the factors contained in s 167 of the Immigration and Refugee Protection Regulations, the Court holds that this is an issue of mixed fact and law.  Therefore, it requires deference and attracts a reasonableness standard.

With respect to the claim regarding credibility, the Court determines that there is a difference between not believing an applicant and not having sufficient evidence.  Trier of fact may consider the probative value of the evidence without considering its credibility.  The Court finds that the Officer found the evidence, the Medical Certificate in particular, to have been insufficient to support the Applicant’s claim that his life would be at risk if he were to return to Nigeria.  Therefore, the evidence is insufficient to raise a serious issue of the applicant’s credibility, which is a necessary factor for a hearing to take place according to s 167.

With respect to the claim about the use of extrinsic evidence, the Court finds that using a public website for a definition of food poisoning does not constitute extrinsic evidence.  The Court distinguishes this from the cases where the information obtained from an outside party was detrimental to an applicant.  Furthermore, since information on the website was also available to the Applicant and was in fact common knowledge, there was no breach of procedural fairness.

Did the Officer err in assessing the risk of returning to Nigeria?

The Applicant claims that the Officer required too much from him in terms of quantity and quality of evidence and that she took a compartmentalized approach to the evidence.  The Applicant relies on the presumption of veracity to substantiate his allegations.  The Court finds that the risk was assessed adequately.

The Court adopts the standard of reasonableness because, as reinforced in Dunsmuir v New Brunswick, evaluations of fact attract a deferential reasonableness standard and determinations of risk of returning to a particular country is a fact-driven inquiry.

The Court concludes that the Officer did not find that the Applicant discharged his burden of establishing that he would be at risk in Nigeria.  The Court notes that adopting a standard of reasonableness requires deference and would not substitute its own approach to assessing the evidence.  The decision by the Officer is found to be reasonable and fall within a range of possible, acceptable outcomes (Dunsmuir).  Furthermore, the Court notes that Personal Information Forms are not sworn statements and do not attract presumption of veracity.

Did the Officer properly assess the interests of the Children?

The Applicant alleges that the Officer did not evaluate correctly the hardship that his children would endure upon his return to Nigeria.  Moreover, he argues that the Officer’s conclusions about the autonomy of his wife’s children are based on conjecture.

The Court adopts a reasonableness standard for this issue as well.  The Court notes that previously H&C decisions have attracted the same standard.

The Officer noted that the Applicant did not provide sufficient evidence that his removal would create financial hardship for the children.  The Court does not find a reviewable error in this decision.  The Court disagrees that the Officer’s findings about the autonomy of his wife’s children are based on conjecture.  These children, the oldest being in late teenage years, would not suffer emotionally and financially from his removal.

Did the Officer err in assessing the various factors submitted by the Applicant in support of his application?

The Applicant claims that during the H&C analysis the Officer did not give enough weight to the positive elements of his application to offset the negative aspects of his criminality.  The Court determines that the Applicant’s argument would result in reweighing of the evidence that was before the Officer and the Court is not prepared to do so.

The Court notes that the Officer had complete discretion in her weighing of evidence and factual elements in her H&C analysis.  Therefore, the H&C decision attracts a high level of deference.  After reviewing the H&C decision, the Court determines that the Applicant’s arguments are insufficient to impugn the decision.

The Judgment

The applications for judicial review are dismissed.

The Author’s Comments

This recent case left a lot of unanswered questions for me, a first-year law student.  I am particularly interested in exploring further the area of H&C analysis as it relates to the best interest of children.

Several questions arise regarding the humanitarian and compassionate grounds decision by the Officer.  From the wording in this decision, the Officer weighed “the entirety of evidence on this matter” [para 50] and decided against granting his stay in Canada.  The Officer acknowledged that the Applicant’s two-year old would benefit from his father’s presence in Canada.  However, the Officer noted that generally there was insufficiency of evidence to show that his children would suffer from his absence.  Furthermore, in para 14, the Court notes that in considering H&C grounds, the Officer gave a significant weight to criminal convictions.

In this decision, the Court references Baker v Canada: the Officer must be “alert, alive and sensitive” and must give great weight to the interests of the children.  In spite of what was said in Baker, this decision suggests that criminal offences can weigh more in H&C decisions than a well being of a two-year old.  It is unclear what would happen if the Applicant presented more convincing evidence regarding the hardship that his child would undergo without his presence.  It is important to note that the Officer needed more convincing evidence even after it was accepted as a fact that the Applicant supports his family financially while his wife pursues a nursing degree.  Moreover, would the decision be different if the Applicant had several dependent children living in Canada?  Perhaps the Officer’s decision would not seem as confounding after reviewing Baker and other cases related to this matter.

Relevant Statutes and Caselaw

Immigration and Refugee Protection Act SC 2001, c 27, s 113: http://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-35.html#h-57

Immigration and Refugee Protection Regulations, SOR/2002-2007, s 167: http://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/page-63.html#docCont

Dunsmuir v New Brunswick, [2008] 1 SCR 190: http://scc.lexum.org/en/2008/2008scc9/2008scc9.html http://legallycanadian.wordpress.com/2012/06/29/correctness-and-reasonableness-are-the-two-standards-for-judicial-review-of-administrative-tribunal-decisions-dunsmuir-v-new-brunswick-2008-1-scr-190/

Baker v Canada, [1999] 2 SCR 817: http://scc.lexum.org/en/1999/1999scr2-817/1999scr2-817.pdf