FACTS:
The applicant, L, is a citizen of Cuba. In July 2021, she participated in protests against the Cuban government. Months later, she was summoned to a local police station and questioned about her political views and views on the Cuban government.
Fearing persecution, L fled Cuba and travelled through Latin America and the US before arriving in Canada. Upon arrival, she made a refugee claim which was denied pursuant to the Safe Third Country Agreement. L was issued a one-year exclusion order and removed to the US on July 19, 2022. After later re-entering the country, L filed a second in-land refugee claim, which was not referred to the Refugee Protection Division because her first claim had been ineligible.
On January 18, 2024, L was interviewed by the CBSA and offered to submit a Pre-Removal Risk Assessment (PRRA) application.
On July 22, 2024, the PRRA Officer denied L’s application without providing her with an oral hearing. The Officer found that L’s statements were “vague” and did not provide enough information to establish that she was harassed for her political views. The Officer also found that L did not provide sufficient evidence that she faced a personalized, forward-looking risk from the Cuban authorities due to her political beliefs, and that L’s profile was “unlikely to attract the attention of Cuban authorities”.
DECISION: Application for judicial review granted (per Régimbald J.)
There were two issues: whether the PRRA Officer’s decision was reasonable and whether an oral hearing ought to have been granted.
On the first issue, the parties agreed that the reasonableness standard applied to the merits of the PRRA Officer’s decision.
The standard of review on the oral hearing issue was more unclear. As Régimbald J. noted, the Federal Court’s jurisprudence is “inconclusive” as to whether the standard of correctness or reasonableness applies. He referenced previous Federal Court decisions that found that reasonableness is more appropriate because the issue is fundamentally one of statutory interpretation of the Immigration and Refugee Protection Act.[1]
However, in Pacific Coast Terminals,[2] the Federal Court of Appeal treated the necessity of an oral hearing as an issue of procedural fairness where the enabling statute (in that case, the Canada Labour Code) did not require a hearing. In that case, the FCA found that a hearing was unnecessary so long as the parties could assert their rights and know the case against them, even where there were credibility issues and contradictory evidence.
As procedural fairness is typically reviewed on a correctness standard, this left the appropriate standard of review uncertain. Régimbald J. noted that to the extent a PRRA officer makes a credibility finding without a hearing, the decision may be quashed on either standard of review. As the PRRA Officer’s decision was unreasonable in substance, Régimbald J. did not conclusively rule on the applicable standard of review.
In any event, Régimbald J. concluded that the PRRA Officer did not actually make a negative credibility finding against L. There is a difference between finding an applicant to be uncredible and determining that their evidence is insufficient. Accepting the entirety of the applicant’s evidence does not mean that they’ve necessarily met the statutory requirements.
Nevertheless, the decision was substantively unreasonable. Contrary to the Officer’s suggestion, s. 96 of the IRPA does not require that an applicant establish a personalized risk. The objective country condition evidence demonstrated that individuals with similar profiles to the applicant had been imprisoned for lengthy periods. The PRRA Officer failed to engage with this contradictory evidence, causing the Federal Court to lose confidence in the outcome. The Officer’s reasons did not sufficiently distinguish the applicant’s situation from that of analogous individuals who had been imprisoned.
Furthermore, the Respondent could not buttress the Officer’s reasons by suggesting that since L had not been arrested, she was not sufficiently important to be of interest to the authorities. The Officer’s reasons did not make that finding of fact, and it was not open to the Respondent to fashion its own reasons.
The Federal Court granted the application for judicial review, set aside the decision, and remitted the matter for redetermination.
COMMENTARY:
Although the Federal Court ultimately resolved the matter on ordinary reasonableness grounds, the more interesting aspect of Cespedes Leon is its discussion of the standard of review applicable to the decision to deny an oral hearing. The case highlights continuing uncertainty over the relationship between procedural fairness and statutory interpretation in the post-Vavilov landscape of judicial review.
On the issue of whether the PRRA Officer’s decision was reasonable, this case offers a straightforward application of the Vavilov framework for reasonableness review. It illustrates in particular that decision-makers must meaningfully grapple with contradictory evidence of central importance to their decisions, and that respondents on a judicial review cannot advance post-hoc reasons to buttress a decision.
More interesting is the discussion of the appropriate standard on which to review the decision not to grant an oral hearing. The denial of an oral hearing under s. 113(b) of the IRPA raised issues of both statutory interpretation (which typically attracts a reasonableness review) and procedural fairness (generally reviewed on a correctness standard).
This gives rise to two questions, both left unresolved: How should courts classify the decision to deny an oral hearing for the purposes of judicial review? What is the appropriate standard of review for issues of procedural fairness?
This latter issue is soon to receive attention from the Supreme Court, which recently granted leave in Haggaï v. Loiselle.[3] At issue is the Quebec Court of Appeal’s application of the reasonableness standard to a procedural fairness issue. The QCCA is the only provincial appellate court that applies the reasonableness standard rather than correctness on these issues. Cespedes Leon points out that at least one line of cases at the Federal Court agrees with them, at least insofar as the procedural fairness issue relates to statutory interpretation. Régimbald J. seemed to favour this approach, where the reasonableness standard presumably applies to review of decision-makers’ statutory interpretation, including the decision to deny an oral hearing under the IRPA.
What remains unclear is whether the reasonableness standard is equally appropriate in procedural fairness cases that do not concern issues of statutory interpretation. The Court in Vavilov explicitly carved out the duty of procedural fairness from their general statement that the presumptive standard of review is reasonableness. This at minimum leaves open the possibility that correctness is the appropriate standard for these issues. Until the Supreme Court provides guidance, litigants should be prepared to argue both standards. Parties seeking oral hearings will likely want to characterize the issue as one of procedural fairness, while respondents may frame it as primarily one of statutory interpretation in order to attract a more deferential standard of review.
[1] Huang v. Canada (Citizenship and Immigration), 2018 FC 940.