Secret Evidence Used Against Me? (On Extrinsic Evidence) [Updated]

Where immigration officers have extrinsic evidence particular to an applicant, and that applicant is unaware that the immigration officer has that evidence, then procedural fairness requires that immigration officers disclose this evidence to the applicant.
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When an Administrative Delay is an Abuse of Process

The subject of an unreasonable delay often arises in the immigration context.  In one case that I am involved with, an individual was in Canada for 11-years before the Canada Border Services Agency expressed concerns that the might be inadmissible to Canada for previous involvement in a group accused of terrorism.  In another case, an individual who had been in and out of Canada numerous times was suddenly denied entry to Canada because of a criminal conviction that occurred eight years ago.  In both cases, the client asked whether the delay amounted to an abuse of process.

Blencoe

The leading court decision on this issue is Blencoe v. British Columbia (Supreme Court of Canada, 2000).  There, three women filed complaints of sexual harassment to the British Columbia Human Rights Council.  Due to delays the tribunal hearings were not resolved for 30 months after the first filing.  The Cabinet Minister challenged that the 30 month delay was an abuse of process, an argument which the Supreme Court of Canada ultimately rejected and that the Charter was not engaged.  Importantly, the Court found that a state caused delay, without more, does not warrant a stay as an abuse of process at common law, and that there must be significant prejudice.

The following principles emerged from that decision:

  • The administrative process must be conducted in a manner entirely consistent with the principles of natural justice and procedural fairness.
  • Unreasonable delay is a possible basis on which to raise questions of natural justice, procedural fairness, abuse of process and abuse of discretion.
  • Delay, without more, will not warrant a stay of proceedings as an abuse of process.
  • Administrative delay may impugn the validity of the proceedings where it impairs a party’s ability to answer the complaint against him or her – where memories have faded, essential witnesses are unavailable, or evidence has been lost.
  • Where the fairness of the hearing has not been compromised, delay may nevertheless amount to an abuse of process, but few lengthy delays will meet this threshold.
  • The court must be satisfied that, “the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted.
  • If the delay has directly caused significant psychological harm to a person, or attached a stigma to a person’s reputation, such that the [administrative] system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process.
  • Determination of whether the delay is unreasonable is, in part, a relative exercise in which one compares the length of delay in the case at bar with the length of time normally taken for processing in the same jurisdiction and in other jurisdictions in Canada.

The Immigration Context

Beltran v. Canada (2011 FC 516) provides an example of the application of Blencoe in the immigration context.  There, the Canadian Security Intelligence Services had determined that an individual was not a threat to Canada’s national interest.  Fourteen years later, without any explanation, and without any explanation, a new individual expressed concerns, causing delays.  The court also found that a new investigation caused undue prejudice to Mr. Blencoe.  The Court was also critical of the government’s decision not to reveal certain information that it had kept confidential for twenty years, only to use it later.

S. 11(b) of the Charter

Section 11 of the Canadian Charter of Rights and Freedoms provides that any person charged with an offence has the right to be tried within a reasonable time. The Federal Court has ruled, however, that this does not apply to immigration proceedings, and in Montoya v. Canada even ruled that it does not apply to citizenship revocation.


Mobil Oil

A breach of procedural fairness will generally result in a reviewing tribunal or court remitting the matter back for reconsideration.

There is, however, an extremely narrow exception to this known as the Mobil Oil principle.  In Mobil Oil, the Supreme Court of Canada decided not to send a case back for redetermination because the matter that would have been the subject of redetermination was not the subject of the remedies sought, and it was determined to be impractical to send it back.  The reason was that the Court had already decided on cross appeal, and that the plaintiffs would thus necessarily lose upon redetermination.

The Mobil Oil principle is thus that while ordinarily an apparent futility of remedy will not bar its recognition, there are cases in which no relief will be offered in the face of breached administrative law principles, such as those which have an inevitable answer.   Where a tribunal must decide according to law, it may be justifiable to disregard a breach of natural justice where the demerits of the claim are such that it would in any case be hopeless.

As noted in Persuaid v. Canada, the principle is not that a reviewing tribunal or court can refuse to send a case back because it supposes that the case would be found to be futile.  Rather, it may only do so where the remedy sought would not be relevant in the context of the matter presently before the Court.  If the remedy sought by the applicant is precisely the remedy affected by the lack of natural justice and procedural fairness, then the reviewing panel or judge should not presume what the result would be nor should it prejudge a case as hopeless.


PRRA Officer Did not Consider Important Country Report

On June 7, the Federal Court released its decision in Ariyaratnam v. Canada (Citizenship and Immigration), 2010 FC 608 (“Ariyaratnam“) The case involved a 28 year old from Sri Lanka whose Pre-Removal Risk Assessment (“PRRA“) and Humanitarian & Compassionate applications were refused.

The appellant argued in Federal Court that the assessing officer (the “Officer“) had a duty to consider a UNHCR report that would have bolstered the applicant’s claim (the “Report“). The Report was released a few weeks before the Officer released her decision, and the Officer did not consider it.

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When The Same Immigration Officer Keeps Rejecting Your Case

On June 7, the Federal Court released its decision in Delos Santos v. Canada (Citizenship and Immigration), 2010 FC 614. The applicant argued that it was a breach of procedural fairness that the same officer heard determined both the applicant’s humanitarian & compassionate (“H&C“) application as well as  applicant’s Pre-Removal Risk Assessment (“PRRA“).

The Federal Court found that there was no inherent bias arising from the fact that the same officer dealt with both a H&C application and a PRRA application for the same individual.

This decision was based on the Federal Court of Appeal’s (the “FCA“) decision in Oshurova v. Canada (Minister of Citizenship and Immigration), 2006 FCA 301, where the FCA answered the following certified question in the negative:

Is there an appearance of bias, in this case, because the same officer decided the application for a visa exemption on humanitarian and compassionate grounds as well as the Pre-Removal Risk Assessment?

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Implausibility

One issue that applicants, and in particular refugee claimants, face is that their stories just sound implausible to the third party observer.

A tribunal is entitled to make reasonable findings based on implausibilities, common sense and rationality.  The courts have been clear that the Immigration and Refugee Board is entitled in assessing credibility to rely on criteria such as rationality and common sense.  In order to finding an applicant’s or claimant’s story to be implausible,  it must be clearly out of line with known facts or known norms of behavior.

Of course, it is not sufficient for a tribunal to simply state that a claimant’s story is “implausible” without explaining further the reasoning behind that finding.  In other words, as the Federal Court ruled in Vodics v Canada (Minister of Citizenship and Immigration), 2005 FC 783, adverise findings of credibility must be based on reasonably drawn inferences and not conjecture or mere speculation.

Of course, considerable caution is required when assessing the norms and patterns of different cultures and the practices and procedures of different police, political, and social systems.


Translating Errors Lead to Successful Judicial Review

In a previous post I introduced some judicial principles regarding the role of translators in proceedings before the Immigration and Refugee Board.

There, I wrote that:

Section 14 of the Charter of Rights and Freedoms provides that a party or witness to any proceeding who does not understand or speak the language in which the proceeding is conducted or who is deaf has the right to the assistance of an interpreter. This section applies to immigration and other administrative proceedings. (Umubyeyi v. Canada). Accordingly, the IRB and the courts take the right to proper interpretation seriously.

A person appearing before the IRB has a right to an interpretation that is continuous, precise, competent, impartial, and contemporaneous (Mohammadian). An applicant does not have the burden to show that a determinative prejudice arises from a breach of his Charter right to such interpretation.

Singh v Canada (Minister of Citizenship and Immigration), 2010 FC 1161,  provides a more comprehensive summary of the common law principles governing translation.  These principles are that:

a.         The interpretation must be precise, continuous, competent, impartial and contemporaneous.

b.         No proof of actual prejudice is required as a condition of obtaining relief.

c.         The right is to adequate translation not perfect translation. The fundamental value is linguistic understanding.

d.         Waiver of the right results if an objection to the quality of the translation is not raised by a claimant at the first opportunity in those cases where it is reasonable to expect that a complaint be made.

e.         It is a question of fact in each case whether it is reasonable to expect that a complaint be made about the inadequacy of interpretation.

f.         If the interpreter is having difficulty speaking an applicant’s language and being understood by him is a matter which should be raised at the earliest opportunity.

Was the Issue Raised?

A defense that is often used in response to arguments about inadequate translation is that the argument cannot result in a decision being set aside if the applicant did not sufficiently raise the translation issue at the hearing.

However, where a review of the audio recording from a hearing reveals serious interpretation errors, the failure to raise the issue of interpretation at the hearing does not preclude it from being raised in a judicial review proceeding: Khalit Ahamat Djalabi v. Canada (Minister of Citizenship and Immigration), 2007 FC 684

Where an applicant has raised the issue of inadequate translation at a hearing, the Federal Court has been flexible in terms of what it considers to be “sufficient raising of the issue.”  In Neheid v. Canada, 2001 FC 846, the claimant’s daughter had attempted to raise the issue, however, the Board Member “ordered [her] to be quiet”.  The Department of Justice appears to have argued that the claimant should have done more to raise the issue, although the judgment does not specify exactly what the Respondent suggested the claimant do.  Justice Phelan disagreed.  In a particularly interesting passage he stated that:

[g]iven the dependent position an applicant is in before the Board, and the total dependency of counsel on the translation, it is not reasonable to expect the Applicant to have done more.

Finally, a Board Member’s statement that the translation was adequate will be given very little weight if that Board Member does not speak the language that was being translated: Coya v. Canada (Citizenship and Immigration).

Was the Mis-Translation Material 

In order for a translating error to cause a breach of natural justice the mistranslation must be material.  For example, mistranslating “evidence” as “proof” is not sufficient to cause a breach of natural justice.


Consistency on Findings of Credibility

Flickr photo by Jeff Sari (writer)

A huge concern amongst applicants who have previously submitted applications or documentation to a decision maker is whether their further submissions will contradict what they previously submitted, and whether this will materially negatively impact their credibility.

In short, the existence of contradictions or inconsistencies in the evidence of an individual or witness is a well-accepted basis for a finding of lack of credibility.  However, the discrepancies must be sufficiently serious and must concern matters that are relevant to warrant an adverse finding.

In Sheikh, Asad Javed v. Canada (Minister of Citizenship and Immigration), the Federal Court stated the following regarding the factors that should be considered when assessing inconsistencies or discrepancies:

The discrepancies relied on by the Refugee Division must be real. The Refugee Division must not display a zeal “to find instances of contradiction in the [claimant’s] testimony … it should not be over-vigilant in its microscopic examination of the evidence”. The alleged discrepancy or inconsistency must be rationally related to the [claimant’s] credibility. Explanations which are not obviously implausible must be taken into account.

Moreover, another line of cases establishes the proposition that the inconsistencies found by the Refugee Division must be significant and be central to the claim and must not be exaggerated.

[Citations removed.]

Finally, the Federal Court has cautioned, however, that, as between different cases, “[t]here can be no consistency on findings of credibility.” Credibility cannot be prejudged and is an issue to be determined by tribunal members in each case based on the circumstances of the individual claimant and the evidence.

Given the jurisprudence, it is generally far better to provide the supporting documentation than it is to be concerned about impacts on credibility.