Date: 20020412
Docket: IMM-6373-00
Neutral citation: 2002 FCT 425
Ottawa, Ontario, this 12th day of April, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
ALIREZA MAHROOZADEH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review under subsection 82.1(1) of the Immigration Act R.S.C. 1985, c. I-2 of the decision of the immigration officer (the "officer") dated November 27, 2000, wherein the officer decided that the applicant is not a member of the Post-Determination Refugee Claimants in Canada ("PDRCC") class as defined in subsection 2(1) of the Immigration Regulations, 1978, SOR/78-172 (as amended).
[2] The applicant seeks an order setting aside the decision and referring the matter back for redetermination by a different officer in accordance with such directions as the Court considers to be appropriate.
Background
[3] The applicant is a citizen of Iran. The applicant has a wife and a five year old son living in Tehran, Iran.
[4] The applicant arrived in Canada on January 3, 1998 and initiated a Convention refugee claim on that day. The Convention Refugee Determination Division ("CRDD") on September 17, 1999, determined that the applicant is not a Convention refugee. The Federal Court dismissed the application for leave and for judicial review of that decision.
[5] A PDRCC review was requested by the applicant but the applicant did not provide any new submissions. In the decision dated November 27, 2000, the officer decided that the applicant was not a member of the PDRCC class. This is the judicial review of the PDRCC decision.
Applicant's Submission
[6] The applicant submits that the Supreme Court of Canada held in Baker v. Canada [1999] 2 S.C.R. 817 that the appropriate standard of review for section 114(2) humanitarian and compassionate grounds applications is reasonableness simpliciter.
[7] The applicant submits that the standard of review at least reasonableness simpliciter if not correctness. The applicant submits that the regulations define legal criteria and involve a determination of whether an applicant would be subject to extreme risk or inhumane sanctions or treatment and thus, the decision should be subject to the correctness standard of review.
[8] The applicant submits that the officer breached principles of natural justice by using the applicant's risk assessment submissions from a section 114(2) application and applying them to the PDRCC decision without providing a post-claim determination officer ("PCDO") report to the applicant. The applicant submits that this is circumventing the rule in Haghighi v. Canada (Minister of Citizenship and Immigration) [2000] 4 F.C. 407.
[9] The applicant submits that the officer breached principles of fairness by relying on independent information provided in the response to information requested dated March 3, 2000, without providing the applicant with a copy before submissions were provided. The applicant submits that by so doing, the duty of fairness described in Mancia v. Canada (Minister of Citizenship and Immigration) [1998] 3 F.C. 461 was violated.
[10] The applicant submits that the reasons were not adequate. The applicant submits that the reasons do not demonstrate a careful analysis. The applicant submits that the officer is obligated to comment on the evidence, and if the evidence is accepted or rejected, the applicant should be advised of the reasons why.
Respondent's Submissions
[11] The respondent submits that the officer provided more than sufficient reasons for the decision. The respondent submits that the officer's decision followed a very lengthy summary of the documentary evidence and the applicant's evidence before the officer.
[12] The respondent notes that the applicant did not provide any PDRCC submissions. The officer relied upon the applicant's risk submissions included in his H & C application. The date of those submissions is March 20, 2000. That date post-dates the date of the response to the applicant's information request, which is March 3, 2000. The respondent submits that as a result, the document was available to the applicant prior to making his risk submissions for his H & C application. The respondent submits that there was no evidence that the applicant was treated unfairly.
[13] The respondent submits that the Federal Court of Appeal in Haghighi, supra found that the H & C officer's reliance on the PDRCC officer's risk opinion without first disclosing that information to the person concerned was a breach of fairness. Here, the PDRCC officer out of an abundance of fairness to the applicant, who did not make any PDRCC submissions, considered the applicant's risk submissions made in the context of his H & C application. The respondent submits that this does not constitute any unfairness to the applicant. The only purported "extrinsic" evidence or information relied upon by the PDRCC officer is the applicant's own submissions. The respondent submits that Haghighi, supra is distinguishable in this manner and that there was no breach of fairness owing to the applicant.
[14] Issues
1. What is the standard of review?
2. Did the officer commit a reviewable error by:
(a) Considering the applicant's risk submissions filed with the applicant's H & C application?
(b) Considering public information that was published on March 3, 2000 without giving a copy to the applicant?
(c) Failing to give sufficient reasons for the decision?
Relevant Statutory Provisions
[15] The following definition appears in subsection 2(1) of the Immigration Regulations, 1978, supra:
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2. (1) In these Regulations, . . . "member of the post-determination refugee claimants in Canada class" means an immigrant in Canada (a) who the Refugee Division has determined on or after February 1, 1993 is not a Convention refugee, other than an immigrant (i) who has withdrawn the immigrant's claim to be a Convention refugee, (ii) whom the Refugee Division has declared to have abandoned a claim to be a Convention refugee, pursuant to subsection 69.1(6) of the Act, (iii) whom the Refugee Division has determined does not have a credible basis for the claim, pursuant to subsection 69.1(9.1) of the Act, (iv) who has left Canada at any time after it was determined that the immigrant is not a Convention refugee, (v) who, as a result of a determination by the Refugee Division, is considered to be a person referred to in section F of Article 1 of the United Nations Convention Relating to the Status of Refugees, set out in the schedule to the Act, (vi) who is a person described in paragraph 19(1)(c), subparagraph 19(1)(c.1)(i), paragraph 19(1)(e), (f), (g), (j), (k) or (l) or subparagraph 27(1)(a.1)(i) of the Act, or |
2. (1) Dans le présent règlement, . . . « demandeur non reconnu du statut de réfugié au Canada » Immigrant au Canada: a) à l'égard duquel la section du statut a décidé, le 1er février 1993 ou après cette date, de ne pas reconnaître le statut de réfugié au sens de la Convention, à l'exclusion d'un immigrant, selon le cas: (i) qui a retiré sa revendication du statut de réfugié au sens de la Convention, (ii) à l'égard duquel la section du statut a, en vertu du paragraphe 69.1(6) de la Loi, conclu au désistement de la revendication du statut de réfugié au sens de la Convention, (iii) à l'égard duquel la section du statut a déterminé, en vertu du paragraphe 69.1(9.1) de la Loi, que sa revendication n'a pas un minimum de fondement, (iv) qui a quitté le Canada à tout moment après qu'il a été déterminé qu'il n'est pas un réfugié au sens de la Convention, (v) qui est, par suite d'une décision de la section du statut, considéré comme une personne visée à la section F de l'article premier de la Convention des Nations Unies relative au statut des réfugiés figurant à l'annexe de la Loi, (vi) qui est une personne visée à l'alinéa 19(1)c), au sous-alinéa 19(1)c.1)(i), à l'un des alinéas 19(1)e), f), g), j), k) ou l) ou au sous-alinéa 27(1)a.1)(i) de la Loi, |
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(vii) who has been the subject of a removal order, has left Canada and has, since the date of execution of the removal order, stayed in the United States or St. Pierre and Miquelon for a period of not more than six months, and (b) [Repealed, SOR/97-182, s. 1] (c) who if removed to a country to which the immigrant could be removed would be subjected to an objectively identifiable risk, which risk would apply in every part of that country and would not be faced generally by other individuals in or from that country, (i) to the immigrant's life, other than a risk to the immigrant's life that is caused by the inability of that country to provide adequate health or medical care, (ii) of extreme sanctions against the immigrant, or (iii) of inhumane treatment of the immigrant; |
(vii) qui a été l'objet d'une mesure de renvoi, a quitté le Canada et est demeuré depuis la date de l'exécution de la mesure de renvoi soit aux États-Unis, soit à Saint-Pierre-et-Miquelon, pendant une période maximale de six mois; b) [Abrogé, DORS/97-182, art. 1] c) dont le renvoi vers un pays dans lequel il peut être renvoyé l'expose personnellement, en tout lieu de ce pays, à l'un des risques suivants, objectivement identifiable, auquel ne sont pas généralement exposés d'autres individus provenant de ce pays ou s'y trouvant : (i) sa vie est menacée pour des raisons autres que l'incapacité de ce pays de fournir des soins médicaux ou de santé adéquats, (ii) des sanctions excessives peuvent être exercées contre lui, (iii) un traitement inhumain peut lui être infligé. |
Analysis and Decision
[16] Issue 1
What is the standard of review?
The standard of review to be applied to the PCDO's decision is reasonableness simpliciter.
[17] Issue 2(a)
Did the officer commit a reviewable error by:
(a) Considering the applicant's risk submissions filed with the applicant's H & C application?
The applicant did not file any submissions with his PDRCC application but did make submissions with respect to risk in his subsequently filed H & C application. The officer considered the materials filed with the H & C application when the officer was reaching a decision on the PDRCC application. The applicant argued that the officer breached the duty of fairness owed to the applicant as set out in Haghighi, supra. In Haghighi, supra, an immigration officer, when dealing with an H & C application, requested and received a risk assessment from a PCDO. That is not the situation in the present case. In Haghighi, supra, the PCDO did not disclose the report to the applicant prior to rendering a decision. The Court held that the duty of fairness required that the applicant be given a copy of the risk assessment report and be allowed to respond to it. The PCDO, in this application, reviewed the risk information supplied by the applicant and his solicitor, for the H & C application. I do not see how this could be unfair to the applicant as he already had submitted this information with his H & C application. It is his own information package. This is not a Haghighi, supra situation. I do not agree that there has been a breach of the duty of procedural fairness.
[18] Issue 2(b)
2. Did the officer commit a reviewable error by:
(b) Considering public information that was published on March 3, 2000 without giving a copy to the applicant?
The PCDO referred to IRN33937.FE, a document dealing with Iran which was dated March 3, 2000. The applicant submits that this report was not available when he made his risk submissions for his H & C application on March 20, 2000. I have reviewed the remarks of the PCDO concerning this report and I cannot see where the remarks contain any information that was not already before the PCDO from earlier reports. The Court of Appeal in Mancia v. Canada (Minister of Citizenship and Immigraiton) [1998] 3 F.C. 461 (F.C.A.) stated as follows at page 473:
These decisions are based, it seems to me, on the two following propositions. First, an applicant is deemed to know from his past experience with the refugee process what type of evidence of general country conditions the immigration officer will be relying on and where to find that evidence: consequently, fairness does not dictate that he be informed of what is available to him in documentation centres. Secondly, where the immigration officer intends to rely on evidence which is not normally found, or was not available at the time the applicant filed his submissions, in documentation centres, fairness dictates that the applicant be informed of any novel and significant information which evidences a change in the general country conditions that may affect the disposition of the case.
And at page 475:
. . . generally prepared by reliable sources. They can be repetitive, in the sense that they will often merely repeat or confirm or express in different words general country conditions evidenced in previously available documents. The fact that a document becomes available after the filing of an applicant's submissions by no means signifies that it contains new information or that such information is relevant information that will affect the decision. It is only, in my view, where an immigration officer relies on a significant post-submission document which evidences changes in the general country conditions that may affect the decision, that the document must be communicated to that applicant.
[19] The document dated March 3, 2000 does not contain any new or novel information or give information that shows changes in the general country conditions in Iran that may have affected the officer's decision. It repeated earlier information that by the test in Mancia, supra be used by the PCDO without prior disclosure to the applicant.
[20] Thus, based on my findings, I do not find that the PCDO made a reviewable error in these respects.
[21] Issue 2(c)
2. Did the officer commit a reviewable error by:
(c) Failing to give sufficient reasons for the decision?
I am also of the view that the PCDO gave sufficient reasons for the decision. The available information was summarized and a conclusion formulated. A reading of the risk assessment report shows why the PCDO reached the decision.
[22] The application for judicial review is therefore dismissed.
[23] I have reviewed the proposed serious questions of general importance submitted by the applicant and I am not prepared to certify any of the questions as I am not satisfied that the questions are questions which contemplate "issues of broad significance or general application that are felt to warrant resolution by a higher level of judicial authority" (see Chu v. Canada (Minister of Citizenship and Immigration (1996) 116 F.T.R. 68).
ORDER
[24] IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
April 12, 2002
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-6373-00
STYLE OF CAUSE: ALIREZA MAHROOZADEH v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 21, 2001
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE O'KEEFE DATED: April 12, 2002
APPEARANCES:
Mr. Micheal Crane FOR THE APPLICANT
Mr. Jeremiah A. Eastman FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Micheal Crane FOR THE APPLICANT Toronto, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada