IMM-197-96
B E T W E E N:
SHPETIM DERVISHI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON, J.:
These reasons arise out of an application for judicial review of a decision of a Post-claim Determination Officer (the "Officer") wherein the Officer determined the Applicant not to be a member of the post-determination refugee claimants in Canada class ("PDRCC class") as defined in ss. 2(1) of the Immigration Regulations, 1978.1 The Officer's decision is dated the 6th day of September, 1995.
The Applicant is a citizen of Albania. In all other respects, save one, the relevant facts are virtually identical to those in Garcia v. The Minister of Citizenship and Immigration2.
As in Garcia, counsel for the applicant defined the single issue before me as whether or not the Officer denied the Applicant procedural fairness by considering extrinsic evidence without giving the Applicant the opportunity to respond to it. The evidence in question concerned current country conditions in Albania. That evidence was drawn from Country Reports on Human Rights Practices for 1994, U.S. Department of State, a published work available for review at the Immigration and Refugee Board's Documentation Centre.
The single feature distinguishing this matter from Garcia is the following. The Applicant made submissions to the Officer on 14th January, 1995 with respect to his PDRCC review. In those submissions reliance was placed on Country Reports on Human Rights Practices for 1993. As indicated earlier, the Officer's decision is dated the 6th day of September, 1995. Between the date the Applicant's submissions were made and the date of the decision, Country Reports on Human Rights Practices for 1994 was published. The Officer relied on the latest version, not on the version relied on by the Applicant which was the latest version available to the Applicant and his counsel at the time the submissions were made.
The question then, reduces itself to this: while a number of my colleagues and I have concluded that reliance on publicly available documentation regarding country conditions does not amount to a reliance on extrinsic evidence and therefore a breach of the duty of fairness owed in matters such as this, does reliance on such documentation published after the Applicant has made his or her submissions to a Post-claim Determination Officer, and which was therefore obviously not available for consideration when those submissions were made, amount to a reliance on extrinsic evidence?
In Nadarajah v. The Minister of Citizenship and Immigration3, Mr. Justice Rothstein wrote:
| Generally, extrinsic evidence is evidence of which the applicants are unaware because it comes from an outside source. But the scope of extrinsic evidence for purposes of determinations under subsection 114(2) of the Immigration Act or in PDRCC risk assessments is not without limitation. In Minister of Citizenship and Immigration v. Dasent, a January 18, 1996 decision of the Federal Court of Appeal, Court File A-18-95, Strayer J. found that the evidence given by a spouse in a separate spousal interview in a humanitarian and companionate [sic] case under subsection 114(2) of the Immigration Act, was not extrinsic evidence. In the context of information on country conditions, if the information relied upon by the Post-claim Determination Officer is information to which the applicants could not have had access, and it is material to the decision made, I think the information might well constitute extrinsic evidence. Here, however, the country conditions information was within the ambit of the subject matter the applicants knew would be considered, and there is no indication in the record that it was not available to the applicants had they taken steps to obtain it. I do not think it is extrinsic evidence as that term is used in Shah v. M.E.I... [1994], 170 N.R. 238. [underlining added by me for emphasis] |
In Xavier v. The Minister of Citizenship and Immigration4 a case in which Heald D.J. reached the same conclusion as that reached by Justice Rothstein in Nadarajah and by myself in Garcia, Justice Heald wrote:
| This issue has been considered by the Trial Division of this Court in several other cases. In Quintanilla v. Canada (Minister of Citizenship and Immigration) (January 22, 1996) Court File No. IMM-1390-95 (F.C.T.D.) documentary evidence of country conditions in Guatemala, not previously disclosed to the Applicants' was relied upon in making a P.D.R.C.C. assessment. Rouleau J. concluded that this material was publicly available and that the Applicants were well aware of the reliance placed upon documentary evidence of country conditions. He also concluded that the Applicants "cannot be said to have been unaware that standard evidence on current country conditions would be relevant to their claims". [underlining added by me for emphasis] |
With reference to the underlined sentence quoted from Nadarajah, is it more appropriate to read in following the words "... to which the Applicants could not have had access," the words "at the time the Applicants made their submissions to the Post-claim Determination Officer" or the words "at all times up to the time the Post-claim Determination Officer reached her or his decision"? I conclude on the facts before me that it is more appropriate to read in the former words. I conclude that it is simply too great a burden to place on persons such as the Applicant to require them to maintain a constant watch, following their submissions, on newly published country conditions information that a Post-claim Determination Officer might choose to rely on in reaching, at an indeterminate date which may be close or as in this case almost nine months after the date of the submissions, her or his decision. Thus, I conclude that here, the Officer relied on extrinsic evidence as that term is used in Shah.
Counsel for the Respondent quite properly pointed out that, in relation to Albania and to the fears of the Applicant against his particular background, the changes from the 1993 document relied upon on behalf of the Applicant to the 1994 document relied on by the Officer were not significant. While that may be so, it is irrelevant to the fact that the Officer relied on information to which the Applicants could not have had access at the time they made their submissions. As such, he relied on extrinsic evidence and breached the duty of fairness owed to the Applicant in a matter such as this by not disclosing that reliance to the Applicant and providing the Applicant with an opportunity to respond to the extrinsic evidence.
Based upon the foregoing analysis, this application for judicial review will be allowed, the decision of the Officer will be set aside and the matter will be referred back to the Respondent for reconsideration and redetermination.
The following question will be certified:
| Does an Immigration Officer conducting a review pursuant to the PDRCC regulations violate the principle of fairness as enunciated by the Federal Court of Appeal in Shah, when he or she considers documentary evidence about general country conditions not contained in the applicant's immigration file and which post-dates in terms of publication the date of the submissions by or on behalf of the person in respect of whom the review is being conducted, without advising that person of the intention to consider that evidence, and without providing that person an opportunity to respond to same? |
"Frederick E. Gibson"
Judge
Toronto, Ontario
November 7, 1996
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-197-96
STYLE OF CAUSE: SHPETIM DERVISHI
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: NOVEMBER 6, 1996
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR ORDER BY: GIBSON, J. |
DATED: NOVEMBER 7, 1996
APPEARANCES:
Ms. Marie-Claude Regaud
For the Applicant
Ms. Sadian Campbell
For the Respondent
SOLICITORS OF RECORD:
Lorne Waldman
Barrister & Solicitor
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Applicant
Sadian Campbell
Department of Justice
2 First Canadian Place
Suite 3400, Exchange Tower, Box 36
Toronto, Ontario
M5X 1K6
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-197-96
Between:
SHPETIM DERVISHI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 S.O.R./78-172 (as amended)
2 7 November, 1996, Court File IMM-149-96 (unreported), (F.C.T.D.)
3 14 May, 1996, Court File IMM-3384-95 (unreported) (F.C.T.D.)
4 1 October, 1996, Court File IMM-550-96 (unreported) F.C.T.D.