RAPHAEL NORMAN REID, BY HIS LITIGATION GUARDIAN, CONSTANCE NAKATSU Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2020 FC 371

Date: 20200312 Docket: IMM-4686-19 Citation: 2020 FC 371 Toronto, Ontario, March 12, 2020 PRESENT: The Honourable Mr. Justice Fothergill BETWEEN:RAPHAEL NORMAN REID, BY HIS LITIGATION GUARDIAN, CONSTANCE NAKATSUApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS I. Overview [1] Raphael Norman Reid is a citizen of Jamaica. He seeks judicial review of a pre-removal risk assessment [PRRA] conducted by aSenior Immigration Officer [Officer] with Citizenship and Immigration Canada. The Officer concluded that Mr.

Reid would not face aforward-looking, personalized risk to his life, or a risk of cruel and unusual treatment or punishment, if he returns to Jamaica. [2] The PRRA was communicated to Mr. Reid on January 17, 2019. His application for leave and judicial review was filed on July 29,2019, more than six months later. Mr. Reid therefore requires an extension of time.

The Minister does not oppose an extension of time,except on the ground that the application is without merit (Canada (Attorney General) v Hennelly, (FCA), [1999] 167FTR 158, 244 NR 399 (FCA)). [3] For the reasons that follow, the Officer’s decision was procedurally fair and reasonable. The applications for an extension of timeand for judicial review are dismissed. II. Background [4] Mr. Reid arrived in Canada on November 7, 2018 with a fraudulent passport. An exclusion order was issued against him.

He appliedfor leave and judicial review, but this was dismissed (Reid v Canada (Citizenship and Immigration), 2020 FC 222 [Reid]). [5] Mr. Reid then requested a PRRA. This was decided against him on December 7, 2018, but the file was re-opened to permitadditional submissions. The adverse decision was confirmed on January 17, 2019. [6] According to Mr. Reid, in 2009 he heard that his friend Christopher had been killed by the Stone Crusher Gang in Jamaica. Hereported this to the police, but had no further contact with them.

He says that he then heard from a friend that he had been labelled a"“snitch”" who "“had to die”". He moved from St. James to St. Ann. [7] Mr. Reid says that in early 2015, he and a friend known as OCP were at a carwash. Mr. Reid claims he was targeted by the StoneCrusher Gang. OCP was shot and killed, but Mr. Reid managed to escape to his aunt’s house. The shooting was reported, but theperpetrators were never found. Mr. Reid says that the police later killed some members of the Stone Crusher Gang, and more people diedat the carwash.

He continued to move between different cities until November 2018, when he arrived in Canada. III. Decision under Review [8] The Officer found that Mr. Reid had failed to establish a nexus between his alleged persecution by the Stone Crusher Gang and anyof the grounds enumerated in s 96 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. The Officer therefore limitedhis consideration to whether Mr.

Reid was a person in need of protection pursuant to s 97 of the IRPA. [9] The Officer found that the death of Christopher by gunfire was established by copies of his death certificate and a letter from thepolice dated December 7, 2018. However, this did not prove that Christopher was killed by members of the Stone Crusher Gang. Mr.Reid claimed to have reported Christopher’s killing by the Stone Crusher Gang to the police, but no copy of the police report wasproduced. [10] The Officer found that Mr. Reid’s other claims were uncorroborated.

These included the assertions that he had been labelled a"“snitch”", that he had moved to St. Ann, that his friend OCP was killed at the carwash, that the police later killed members of the StoneCrusher Gang, or that the violence was connected to his own circumstances.

[11] The Officer acknowledged Mr. Reid’s limited cognitive capacity, and that he may not have realized what documents were required.However, the Officer held that any challenges Mr. Reid might have faced were mitigated by his representation by legal counsel. [12] Mr. Reid submitted documentary evidence proving the existence of crime and violence in Jamaica, but this did not satisfy theOfficer that Mr. Reid faced a personalized risk. The Officer also found that Mr. Reid had failed to rebut the presumption of stateprotection. The Officer therefore concluded that Mr.

Reid would not face a forward-looking, personalized risk to his life, or a risk ofcruel and unusual treatment or punishment, if he returned to Jamaica. IV. Issues [13] The Minister makes a preliminary objection that some of the evidence submitted by Mr. Reid in support of his application forjudicial review was not before the Officer, and therefore cannot be relied upon to challenge his decision (citing Dayebga v Canada(Citizenship and Immigration), 2013 FC 842 at para 25). Mr.

Reid agrees that this evidence should be struck from the record. [14] The remaining issues raised by this application for judicial review are: A. What is the standard of review? B. Was the Officer’s decision procedurally fair? C. Was the Officer’s decision reasonable? D. Should an extension of time be granted? V. Analysis A. What is the standard of review? [15] The merits of the Officer’s decision are subject to review by this Court against the standard of reasonableness (Canada (Minister ofCitizenship and Immigration) v Vavilov, 2019 SCC 65 at para 16).

Questions of procedural fairness are generally understood to besubject to review against the standard of correctness (Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12). [16] The parties disagree on whether the Officer’s refusal to hold an oral hearing is a question of procedural fairness, and hencereviewable against the standard of correctness, or a question of the Officer’s

interpretation and application of the statute, and hencereviewable against the standard of reasonableness.

There is jurisprudence that supports the application of either standard (see, forexample, Khan v Canada (Minister of Citizenship and Immigration), 2019 FC 1515 at para 37; Huang v Canada (Minister of Citizenshipand Immigration), 2018 FC 940 at paras 14-17; AB v Canada (Citizenship and Immigration), 2017 FC 629 at para 15). [17] In AB v Canada (Minister of Citizenship and Immigration), 2019 FC 165 [AB], Justice William Pentney declined to apply eitherstandard, opting instead to apply the factors discussed in Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 at para 20. [18] As the Federal Court of Appeal observed in Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 atpara 55 [CP Railway], attempting to shoehorn the question of procedural fairness into a standard of review analysis is an unprofitableexercise.

The ultimate question is whether the applicant knew the case to meet, and had a full and fair chance to respond (CP Railway atparas 41, 56, citing Mission Institution v Khela, 2014 SCC 24 at para 79). B. Was the Officer’s decision procedurally fair? [19] Mr. Reid says the Officer made veiled credibility findings under the guise of requiring more objective evidence, and should haveconvened an oral hearing. The Minister replies that the Officer did not reject Mr.

Reid’s credibility, but attributed little weight to hisuncorroborated evidence. [20] As Justice Pentney observed in AB at paras 26-27: It can be difficult to distinguish between a finding of insufficiency of evidence and a veiled credibility finding […] Thisrequires a careful consideration of the decision of an officer, in light of the record. In undertaking this analysis, it is helpful to recall the useful guidance provided by Justice Russel Zinn in [Ferguson vCanada (Citizenship and Immigration), 2008 FC 1067 [Ferguson]].

In that case Justice Zinn found that the applicant bearsthe burden of proof in a PRRA, and that an officer could either assess the credibility of the evidence submitted and thendetermine the weight to be attributed to it, or simply move to examine the probative value or weight of the evidence, withoutmaking a determination as to credibility. Where the evidence tendered by the applicant is to be given little or no weight, itmay not be necessary to assess its credibility. [21] The only assertion of Mr. Reid that was corroborated by other evidence was the death of Christopher by gunfire.

There was noevidence to corroborate his claims that the Stone Crusher Gang was responsible for the killing, or that Mr. Reid had reported the matterto the police. Mr. Reid said he was told by a friend that he had been labelled a "“snitch”" and that he "“had to die”". There was nothingto corroborate Mr. Reid’s account of the killing of OCP and others at the carwash, or who was responsible.

[22] While some of the Officer’s observations, read in isolation, may be perceived as adverse credibility findings, in my view the Officerwas agnostic about Mr. Reid’s truthfulness. Even if Mr. Reid’s narrative was believed in its entirety, the only evidence linking theincidents to the Stone Crusher Gang was hearsay, which may or may not have been accurate. [23] The Officer did not make veiled credibility findings, but reasonably found that key aspects of Mr. Reid’s narrative wereinsufficiently supported by objective evidence.

The Officer’s decision not to convene an oral hearing did not render his decision unfair. C. Was the Officer’s decision reasonable? [24] Mr. Reid says that the Officer unreasonably required corroborating documents, unreasonably found him to face only a generalizedrisk of violence, and unreasonably found that he had not rebutted the presumption of state protection. [25] The burden was on Mr. Reid to prove his case on the balance of probabilities. This included an evidentiary burden of proving eachof the facts on which he relied (Ferguson at paras 23-27). [26] As discussed above, most of Mr.

Reid’s narrative was unsupported by corroborating evidence, and much of it was hearsay. Therewas little in the way of convincing evidence to establish that Mr. Reid faced a personalized risk in Jamaica that was not faced by thepopulation as a whole. [27] The presumption of state protection is strong, and may be rebutted only with clear and convincing confirmation of a state’s inabilityto protect.

Except in situations of complete breakdown of the state apparatus, it should be assumed that the state is capable of protectingits nationals (Canada (Attorney General) v Ward, (SCC), [1993] 2 SCR 689 at 724-726); Mudrak v Canada(Citizenship and Immigration), 2016 FCA 178 at paras 29, 31). Given the insufficiency of objective evidence to establish that Mr. Reidwas personally at risk in Jamaica, the Officer reasonably found that the presumption of state protection was not displaced. D. Should an extension of time be granted? [28] In light of my conclusions above, Mr.

Reid’s application for judicial review does not have sufficient merit to justify an extension oftime. VI. Conclusion [29] The applications for an extension of time and for judicial review are dismissed. Neither party proposed that a question be certifiedfor appeal. JUDGMENT THIS COURT’S JUDGMENT is that: 1. The applications for an extension of time and for judicial review are dismissed. 2.

At the request of the Minister, the Minister of Citizenship and Immigration is substituted for to the Minister of Public Safety andEmergency Preparedness as Respondent. “Simon Fothergill” Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-4686-19 STYLE OF CAUSE: RAPHAEL NORMAN REID, BY HIS LITIGATION GUARDIAN, CONSTANCENAKATSU v THE MINISTER OF CITIZENSHIP AND IMMIGRATIONPLACE OF HEARING: Toronto, Ontario DATE OF HEARING: February 25, 2020JUDGMENT AND REASONS: FOTHERGILL J.DATED: mARCH 12, 2020 APPEARANCES: Nastaran Roushan For The ApplicantSuzanne Bruce For The Respondent SOLICITORS OF RECORD:

Nastaran Roushan Barrister and Solicitor Toronto, Ontario For The Applicant The Attorney General of Canada Toronto, Ontario For The Respondent