Date: 19990317
Docket: IMM-850-98
BETWEEN:
LEDCHUMANAN PACKIRSAMY
RAJAVANY PACKIRSAMY
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS J.:
| A. INTRODUCTION |
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 [as amended] by the applicants Ledchumanan Packirsamy and Rajavany Packirsamy ("the applicants"). In their application the applicants request the Court to review and set aside a decision dated February 10, 1998 in which an immigration counsellor refused their application to be granted permanent residence status from within Canada on humanitarian and compassionate ground, pursuant to subsection 114(2) of the Immigration Act , R.S.C. 1985, c. I-2 [as amended].
| B. FACTUAL BACKGROUND |
[2] The applicants, who are husband and wife, are both in their 60s. They are citizens of Sri Lanka and are of Tamil ethnicity. In June 1994 they left their home in the war-torn northern region of Sri Lanka and fled to Colombo. In August of that year they arrived in Canada and claimed recognition as refugees. The Refugee Division rejected their claim in October 1995; in July 1996 they were deemed not to be members of the Post-Determination Refugee Claimants in Canada ("PDRCC") class.
[3] In a letter dated December 23, 1996 the applicants" counsel, Mr. Waldman, who also represented them in this application for judicial review, submitted an application to Citizenship and Immigration Canada on behalf of the applicants requesting that they be granted permanent residence status from within Canada on humanitarian and compassionate grounds "based on the sponsorship by their son." I should note here that their son, who has had permanent residence status in Canada since 1995, is their only child.
[4] Mr. Waldman"s letter briefly set out the applicants" immigration history, and the relatives that they have in Canada and Sri Lanka. The following is the only reference in the letter to the potential risks to which the applicants would be exposed if their subsection 114(2) application were refused and their sponsorship application for permanent residence status had to be processed while they were in Sri Lanka:
| "The situation in Sri Lanka, especially for Tamils is extremely dangerous and they are fearful of returning there." |
No documentary evidence of the country conditions prevailing as of December 1996 was submitted with the application to support this statement.
[5] The applicants were interviewed by the immigration counsellor on December 1, 1997, nearly a year after the humanitarian and compassionate application had been submitted. Mr. Packirsamy swore an affidavit for this application for judicial review stating that Tamils were routinely harassed and detained by the police in Colombo on suspicion that they were associated with the Tamil Tigers. He stated also that he believed that the situation in Colombo had changed for the worse since their refugee claims were refused in October 1995 and their PDRCC claims were rejected in July 1996. The applicant further stated that he requested the immigration counsellor to conduct an independent assessment of the risks that they might face on their return to Colombo in light of current country conditions.
[6] It is apparent from the immigration counsellor"s notes to file that he followed up this latter request by asking the visa officer in Colombo for his opinion on the prevailing conditions there for Tamils. In two communications to the applicants" counsel in January 1998 the immigration counsellor stated that he was not willing to make a final decision on their subsection 114(2) application until he had received comments from the visa officer in Colombo in response to his request.
| C. THE IMMIGRATION COUNSELLOR"S DECISION |
[7] In his internal note setting out the basis of the decision to refuse the applicants" subsection 114(2) application, the immigration counsellor did not accept that they had reason to fear for their safety in Sri Lanka, on the ground that this claim had been put forward and rejected by the Refugee Division. He added that no further evidence had been submitted to provide a credible basis for their claimed fear and concluded:
| "Two elderly small business people who were not political advocates are unlikely to be considered a threat to national security or to separatist forces." |
[8] The note also addressed the applicants" claim that there was no safe place for Tamils in Sri Lanka, a claim that the counsellor stated had been rejected earlier by both the Refugee Division and the Post-Determination Claims Officer ("the PDCO"). The immigration counsellor then added:
| "As well, the visa officer in Colombo advised on January 28, 1998 that a Tamil population of some 300,000 people go about their daily lives in that city with little difficulty, although there remains some fighting between the government and separatist factions who are still of concern." |
[9] The immigration counsellor"s decision to reject the claim was put on the basis that the applicants had not satisfied him that they would suffer undue hardship if they were required to leave Canada. Accordingly, there were insufficient humanitarian and compassionate considerations to justify the exceptional measure of processing from within Canada their application for permanent residence status as the sponsored parents of their Canadian-resident son.
| C. ANALYSIS |
[10] The principal ground on which the applicants challenged the validity of the immigration counsellor"s decision was that he committed a breach of the duty of procedural fairness by relying on the communication received from the visa officer in Colombo without first disclosing it to the applicants and giving them an opportunity to respond to it.
[11] It was common ground between the parties that, in determining the applicants" claim under subsection 114(2), the immigration counsellor was subject to the duty of procedural fairness, which normally includes a duty on decision-makers to make reasonable disclosure of any material on which they propose to rely, so that those potentially adversely affected may comment on it. There was also consensus on the proposition that any analysis of the duty owed by the immigration counsellor in this case must start with Shah v. Canada (Minister of Employment and Immigration) (1995), 29 Imm. L.R. (2d) 82 (F.C.A.).
[12] In this well known case, Hugessen J.A. stated that, because of the discretionary nature of decisions made under subsection 114(2), the procedural content of the duty of fairness with which officers must comply is minimal. However, he also said (at pages 83-84) that if the officer "is going to rely on extrinsic evidence not brought forward by the applicant, she must be given a chance to respond to such evidence."
[13] The question in this case is whether the communication received by the immigration counsellor about conditions in Colombo is "extrinsic evidence" for the purpose of the rule in Shah . At first blush, the answer would seem to be that it is, because it was "not brought forward by the applicant". However, subsequent case law has narrowed in two respects the apparent breadth of what counts as "extrinsic evidence" for this purpose.
[14] First, it has been held that information obtained from either the Documentation Centre of the Immigration and Refugee Board, or other publicly accessible sources, that pertains to general country conditions is not "extrinsic evidence" that the officer must disclose for comment by the applicant before relying upon it in the decision: Mancia v. Canada (Minister of Citizenship and Immigration) , [1998] 3 F.C. 461 (F.C.A.).
[15] The basis of this limitation is that since the material was available to the applicant, who could reasonably have anticipated that the decision-maker was likely to resort to it, it could have been included in the applicant"s submissions. In other words, material that applicants under subsection 114(2) could reasonably have included in their submissions, is equated to evidence that was "brought forward by the applicant", and hence is not "extrinsic evidence" within the rule in Shah .
[16] However, the visa officer"s opinion was obtained in this case after the applicants had made their submissions, and was not as such available to them at any time. It therefore cannot be excluded from the category of extrinsic evidence on the ground that it was reasonably available at the time that the applicants made their submissions.
[17] The second limitation on the scope of extrinsic evidence is also contained in Mancia, where the Court held that it was not procedurally unfair for the officer to rely on documentary evidence that was published after the applicant made his submissions because, to use the words of MacKay J. which the Court of Appeal approved (at page 469), the documents in question
| "introduce no new information that is not readily available from the other documents listed from published sources available to the public before the application was made." |
[18] Counsel for the Minister contended that the above proposition was applicable to the case at bar. The fact that Colombo has a substantial Tamil community is well known and the further information that members of that community are not as such subject to persecution simply confirmed the findings made earlier by the Refugee Division and the PDCO, when rejecting the applicants' claims.
[19] However, the facts of this case differ from those in Mancia in two respects. First, the documents relied on by the officer in Mancia were, when published, all in the public domain and available in public libraries and the Documentation Centre. It can hardly be said that the opinion given by the visa officer to the immigration counsellor was itself in the public domain in the same sense, regardless of the sources on which he may have based his opinion.
[20] Second, while the visa officer"s opinion was consistent with the earlier findings made by the Refugee Division and the PDCO respecting the applicants" safety in Colombo, it also added a significant new element: his opinion that the situation had not deteriorated in the 18 months since the applicants" claim to be members of the PDRCC class had been rejected. It will be recalled that Mr. Packirsamy stated in his affidavit that he had told the immigration counsellor at the interview that he believed that conditions had deteriorated for Tamils in Colombo, and asked for an updated risk assessment. This was the genesis of the immigration counsellor"s request to the visa officer.
[21] Further guidance may be provided by Mancia, supra, where (at page 473) Décary J.A. said:
"... where the immigration officer intends to rely on evidence which is not normally found ... 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." [emphasis added]
The non-availability in documentation centres of the visa officer"s opinion would indicate that in Décary J.A."s view fairness requires its prior disclosure. On the other hand, the fact that the visa officer"s opinion evidences, not a change, but a continuity in the general country conditions takes it outside the category of information that Décary J.A. stated that fairness requires to be disclosed.
[22] In my opinion, therefore, the decision in Mancia does not apply to the facts before me, and I have concluded that it was a breach of the duty of fairness for the immigration counsellor to rely on the visa officer"s opinion without first giving the applicant an opportunity to respond to it. The enhanced reliability and legitimacy of the decision to be made by the immigration counsellor by disclosing the opinion outweigh any costs in terms of delay that would be required to enable the applicants to make submissions in response to the opinion. In reaching this conclusion I have taken the following considerations into account.
[23] First, while applicants under subsection 114(2) bear the burden of satisfying the decision-maker that there are sufficient humanitarian and compassionate grounds to justify processing from within Canada their application for permanent residence, it seems to me unreasonable to expect them to provide on an ongoing basis additional evidence of changing country conditions that they acquire after they made their submissions until they are informed of the decision. The length of time taken to render the PDRCC and the subsection 114(2) decisions in this case was undoubtedly part of the problem that has arisen in this case. Moreover, given the volatility of the human rights situation in countries plagued by civil war, it is surely appropriate to require the immigration counsellor, when all the material for the decision has been assembled, to disclose material information received after the interview with the applicants.
[24] Second, although no documentary evidence was submitted to the immigration counsellor on behalf of the applicants to show that conditions in Sri Lanka had deteriorated for Tamils since their applications for refugee status and for membership in the PDRCC class had been decided, Mr. Packirsamy did advise the immigration counsellor in 1996 that this was his belief. This evidence was flatly contradicted by the information subsequently received by the immigration counsellor from the visa officer.
[25] In this respect, the case at bar seems to me analogous to Lovo v. Canada (Minister of Citizenship and Immigration) (F.C.T.D.; IMM-2694-94; September 22, 1995), where it was held that it was a breach of procedural fairness for an officer not to disclose evidence from Ottawa about medical services available in El Salvador which contradicted evidence submitted by the applicant.
[26] Third, the opinion of the visa officer was likely to be particularly influential with the immigration counsellor, and for this reason, and because it was not available to the public, fairness required that the applicant be offered an opportunity to attempt to rebut it before the immigration counsellor relied upon it in making the decision to reject their applications. The fact that the immigration counsellor deferred a final decision on the applicants" file until he received a reply from the visa officer in Colombo is further evidence of the importance that he attached to the visa officer"s opinion.
[27] In conclusion, the visa officer's opinion in the circumstances of this case constituted "novel and significant" evidence which fairness required the immigration counsellor to disclose to the applicants for comment before he relied on it in rejecting their claim under subsection 114(2).
[28] For these reasons the application for judicial review is granted and the subsection 114(2) application is remitted to be decided by another officer.
"John M. Evans"
J.F.C.C.
TORONTO, ONTARIO
March 17, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-850-98
| STYLE OF CAUSE: LEDCHUMANAN PACKIRSAMY |
RAJAVANY PACKIRSAMY
- and -
DATE OF HEARING: TUESDAY, FEBRUARY 23, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER: EVANS J.
DATED: WEDNESDAY, MARCH 17, 1999
APPEARANCES: Mr. Lorne Waldman
For the Applicant
Mr. Jeremiah Eastman
For the Respondent
SOLICITORS OF RECORD: Jackman, Waldman & Associates
Barristers & Solicitors
| 281 Eglinton Ave. East |
| Toronto, Ontario |
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990317
Docket: IMM-850-98
Between:
LEDCHUMANAN PACKIRSAMY
RAJAVANY PACKIRSAMY
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER