Federal Court Decisions

Date: 20051221

Docket: IMM-3554-05

Citation: 2005 FC 1732

Ottawa, Ontario, December 21, 2005

PRESENT:    THE HONOURABLE MR. JUSTICE BLAIS

BETWEEN:

NAEL ASMELASH

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision rendered by an officer of the Canadian High Commission, Nairobi, Kenya (the officer), dated March 24, 2005, which rejected the application for a permanent resident visa in Canada as a member of the Convention Refugee Abroad Class or as a member of the Humanitarian-Protected Persons Abroad Designated Class of Mr. Nael Asmelash (the applicant).

FACTS

[2]                 The applicant was born on December 5, 1983, in Amsara, Eritrea, then a part of Ethiopia. On August 20, 2000, the applicant was forcibly removed from Eritrea after Eritrea and Ethiopia went to war.

[3]                 After a brief period of detention the applicant moved to the city of Addis Ababa in Ethiopia instead of staying in a refugee camp.

[4]                 With the assistance of his relatives in Canada the applicant applied for a permanent residence visa in Canada as a member of the Convention Refugee Abroad Class or as a member of the Humanitarian-Protected Persons Abroad Designated Class.

[5]                 The applicant was interviewed for his application for permanent residence on January 19, 2005, by the officer and his application was denied on March 24, 2005.

ISSUE

[6]                 Did the officer's decision constitute a breach of procedural fairness for failing to inform the applicant of the existence of the Ethiopian government's directive?

ANALYSIS

[7]                 The central issue in the present case is whether or not a breach of procedural fairness occurred. Questions surrounding the interpretation of the Regulations of the Act and the application of those Regulations to the facts are also mentioned. The latter two issues relate to the officer's assessment of a visa application and are therefore questions of mixed fact and law. As such, the appropriate standard of review is reasonableness simpliciter (Bharaj v. Canada(Minister of Citizenship and Immigration)2005 FC 1462, [2005] F.C.J. No. 1821).

[8]                 The pertinent legislative provisions of the Regulationsregarding the present matter are as follows:

[9]                 The applicant submits that during the interview for his application for permanent residence, the officer never informed him of a directive issued by the Ethiopian government wherein the said government agreed to provide resident permits and or travel documents to persons of Eritrean origin living within its borders; as well as the right to own housing, rural farm land and to have access to social services.

[10]            The applicant claims that the directive is extrinsic evidence and that based on this evidence the officer was able to conclude that he has a reasonable possibility, within a reasonable period of time, of a durable solution in a country other than Canada. The applicant submits that the officer breached the rules of procedural fairness in failing to inform him of the directive and as a result he was unable to provide proper information relating to his experiences vis-à-vis the issues brought up by the extrinsic evidence.

[11]            In Kaur v. Canada(Minister of Citizenship and Immigration) 2005 FC 1192, [2005] F.C.J. No. 1469, Justice Hughes, at paragraph 20, discusses in detail how this Court has interpreted the concept of extrinsic evidence:

The term "extrinsic evidence" is usually used in respect of specific evidence of which the applicant was not aware that is used to rebut evidence already before the tribunal. As stated by Rothstein J. (as he then was) in Dasent v. Canada (MCI), [1995] 1 F.C. 720 (T.D.) at paragraph 22:

The term "extrinsic evidence" is normally used with reference to ambiguous documents. In that context, extrinsic evidence is evidence of statements, facts or circumstances that do not appear on the face of the document or that are not referred to in the document, but which serve to explain, vary or contradict the document. The introduction of such evidence is not often allowed. In the case at bar, having regard to the words "not brought forward by the applicant" used by Hugessen J.A. to qualify the term "extrinsic evidence," and his reference to Muliadi, I interpret the term "extrinsic evidence" not brought forward by the applicant" as evidence of which the applicant is unaware because it comes from an outside source. This would be evidence of which the applicant has no knowledge and on which the immigration officer intends to rely in making a decision affecting the applicant.

[12]            The applicant claims to have gone to the Ethiopian Department for Immigration and National Affairs in October of 2004:

In my quest to obtain recognition from the Ethiopian Government I and others attended the Main Department for Immigration and National Affairs in the month of October, 2004 and enquired as to whether an Eritrean was forcibly removed and deported to Ethiopia by the Eritrean Government could apply for residence in Ethiopia.

(applicant's record, applicant's affidavit at page 12)

[13]            The applicant was subsequently informed of the requirements found in an "immigration proclamation" (see applicant's memorandum of argument at page 22) and he also admitted having received a copy of the proclamation when he had gone to the Ethiopian Department for Immigration on October 2004. Due to this admission, I find that the applicant did in fact know about the content of the government directive and as such the directive cannot be considered extrinsic evidence.

[14]            In Mancia v. Canada (Minister of Citizenship and Immigration), (1997) 125 F.T.R. 297, [1997] F.C.J. No. 120, Justice MacKay, at paragraph 13, confirmed that there is no obligation on the part of the officer to disclose information that is available from a public source prior to the date of any submission by the applicant:

I note that in Nadarajah, Rothstein J. considered the documentary evidence there in question to be from sources available to the public and he referred to the decision of Mr. Justice Rouleau in Quintanilla v. The Minister of Citizenship and Immigration, unreported, Court file IMM-1390-95, January 22, 1996 (F.C.T.D.), [1996] F.C.J. No. 84.    In the latter case, where documentary evidence of country conditions considered in a PDRCC assessment is material that is publicly available, Rouleau J. held there was no obligation to inform the applicant, in advance of a decision, of specific documents concerning country conditions that are being considered.    That same principle was applied in Nadarajah by Rothstein J., and in my view it is applicable here, at least with reference to documents published and available from public sources prior to the date of any submission by the applicant.

[15]            In Chen v. Canada (Minister of Citizenship and Immigration), (2003) F.T.R. 297, [2002] 4 F.C. 193, Justice Hansen, at paragraphs 33-36, takes the analysis regarding extrinsic versus non-extrinsic evidence one step further by concluding that the distinction between the two is no longer determinative of whether the duty of fairness requires disclosure. She adopts the position that when dealing with matters of procedural fairness, the overriding concern with respect to the disclosure of evidence is whether the document, opinion, or report is one of which the individual is aware or deemed to be aware:

The broad principle I take from Mancia is as follows. Extrinsic evidence must be disclosed to an applicant. Fairness, however, will not require the disclosure of non-extrinsic evidence, such as general country conditions reports, unless it was made available after the applicant filed her submissions and it satisfies the other criteria articulated in that case.

In my view, both of these "rules" share a single underlying rationale. Fairness requires that documents, reports, or opinions of which the applicant is not aware, nor deemed to be aware, must be disclosed.

The underlying rationale for the rule established in Mancia, in my opinion, survives Haghighi and Bhagwandass. The principle of those cases, generally stated, is that the duty of fairness requires disclosure of a document, report or opinion, if it is required to provide the individual with a meaningful opportunity to fully and fairly present her case to the decision maker.

Therefore, while it is clear that the distinction between extrinsic and non-extrinsic evidence is no longer determinative of whether the duty of fairness requires disclosure, the rationale behind the rule in Mancia remains. I arrive at this conclusion because even in recent jurisprudence, applying the post-Baker framework for defining the duty of fairness, the overriding concern with respect to disclosure is whether the document, opinion, or report is one of which the individual is aware or deemed to be aware.

[16]            In the present matter, the government directive was clearly a public document that was available to the applicant prior to his submissions. The applicant must have known about the content of the directive as early as the month of October 2004 seeing as he made enquiries with the Ethiopian Department for Immigration and National Affairs as to the process he must undertake in order to acquire Ethiopian residency. As such, the officer was under no obligation to disclose information contained in the government's directive.The failure of the officer to disclose the information contained in the directive was not a breach of procedural fairness because the applicant was aware or deemed to be aware of its content.

[17]            In Gedeon v. Canada (Minister of Citizenship and Immigration), 2004 FC 1245, [2004] F.C.J. No. 1504, Justice Russell confirms that this Court has established that the onus is upon the applicant to satisfy the officer of the existence of all the positive ingredients of his or her application. He states the following at paragraph 79:

Therefore, in all categories, an applicant must present all the relevant facts and documents to support his or her application. This Court has, on many occasions, confirmed the Respondent's arguments in this regard:

It is well established the onus is on the applicant to fully satisfy the visa officer of the existence of all of the positive ingredients in his or her application. Accordingly, provided the visa officer does not act unfairly, and/or makes an error of law apparent on the face of the record in arriving at his or her decision (such as considering extraneous criteria not contained in the CCDO definition), that decision is entitled to a significant amount of curial deference (see Hajariwala v. Canada, [1989] 2 F. C. 79 (F. C. T. D.)).

Cai v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 55 (T.D.) Rani v. Canada (Minister of Citizenship and Immigration) 2002 FCT 1102 (T.D.)

[18]            In the present matter I conclude that the officer did not act unfairly or make an error of law in arriving at her decision. The government directive was not extrinsic evidence, and its content was known by the applicant prior to his submissions. As a result, the officer was under no obligation to disclose the existence of the directive to the applicant. Further, the applicant was not totally open at his interview, as reflected by the CAIPS notes attached to Ms. Noella Nincevic's affidavit as exhibit "A".

If you have an Ethiopian father, why can't you get Ethiopian citizenship?

I was born in Eritrea, my culture is from there.

Have you asked if you can get an Ethiopian PPT?

No.

[my emphasis]

[19]            Further, the burden rested upon the applicant to illustrate to the officer how his particular situation was not positively influenced by the government directive and that consequently he did not have a reasonable possibility, within a reasonable period of time, of a durable solution in a country other than Canada pursuant to paragraph 139(1)(d) of the Regulations.

[20]            I find that the officer assessed the applicant's situation in accordance with the provisions of the Act and that she did not breach the duty of procedural fairness for failing to bring the directive to the attention of the applicant. Further, based on the facts before her, the officer's decision to reject the applicant's application was not unreasonable.

[21]            The applicant's counsel suggests a question for certification:

Whether or not a decision under section 139, subsection 1)d) of the Immigration and Protection Act is to be made with reference to conditions or reasonable standards of Canada or conditions or reasonable standards of the country which the applicant is a resident at the time?

[22]            In my view, an officer has to decide whether a permanent resident visa shall be issued pursuant to paragraph 139(1)d) of the Regulations. Following an examination, this officer has to establish that:

The foreign national is a person in respect of whom there is a reasonable prospect, within a reasonable period of a durable solution in a country other than Canada namely

i)          voluntary repatriation or settlement in their country of nationality or habitual residence, or

       ii)     resettlement or an offer of resettlement in another country.

[23]            To achieve his or her duty, the officer has to refer to standards and conditions of both Canada and the country of nationality or any other country; it seems to be obvious, given the wording of section 139.

[24]            In my view, this question could be easily responded by a yes to the two options which demonstrate clearly that it is not a question of general importance deserving certification.

ORDER

            THIS COURT ORDERS that

• The application for judicial review be dismissed;
• No question for certification.

"Pierre Blais"

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-3554-05

STYLE OF CAUSE:                         Nael Asmelash v. MCI

PLACE OF HEARING:                    Winnipeg, Manitoba

DATE OF HEARING:                       December 12, 2005

REASONS FOR ORDER AND ORDER:             BLAIS J.

DATED:                                              December 21, 2005

APPEARANCES:

Paul V-Shawa	FOR THE APPLICANT
Derwin Petri	FOR THE RESPONDENT

SOLICITORS OF RECORD:

Paul V-Shawa Barrister & Solicitor Winnipeg, Manitoba	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada Winnipeg, Manitoba	FOR THE RESPONDENT