Date: 20020830
Neutral citation: 2002 FCT 922
BETWEEN:
MICHAEL IFEANYI OJINMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of a decision by an immigration officer, dated September 20, 2001, dismissing the applicant's application for landing within Canada on humanitarian and compassionate ("H & C") grounds.
Background
[2] The applicant, a citizen of Nigeria, arrived in Canada on January 14, 1997, and claimed refugee status. His claim was refused at the conclusion of the Convention Refugee Determination Division ("CRDD") hearing on March 25, 1999. Written reasons were issued on April 21, 1999.
[3] On January 7, 2000, the applicant filed an application for landing within Canada on humanitarian and compassionate grounds ("an H & C application"). He was subsequently contacted by immigration authorities and attended meetings respecting arrangements for his removal from Canada. Following these meetings, the applicant was scheduled to be removed from Canada on September 5, 2000.
[4] The applicant failed to appear for that scheduled removal, and a warrant was issued for his arrest. On November 7, 2000, counsel for the applicant sent extensive submissions to immigration officials, concerning the risk the applicant would face if he were removed from Canada.
[5] On December 12, 2000, the applicant was arrested, and held in detention until December 19, when authorities tried to deport him, by plane, back to Nigeria. However, he resisted immigration authorities to such a degree that the airline concerned would not allow him to board the plane.
[6] On December 22, 2000, the applicant's counsel made further submissions against the return of his client to Nigeria.
[7] On January 3, 2001, immigration officials again attempted to deport the applicant. Again, he resisted so much that the airline refused to accept him as a passenger.
[8] In response to the applicant's alleged fear of returning to Nigeria, the removal office requested a risk assessment by a Post Claim Determination Officer ("PCDO"). By letter dated January 5, 2001, the PCDO informed the applicant's counsel that she was of the opinion that the applicant would be at risk if returned to Nigeria, but the risk opinion itself was not then provided to the applicant. It specified, in part, as follows:
I am aware that the applicant has been refused boarding twice on aircraft that would take him to Nigeria. The reason for the pilots' refusals of the applicant has to do with his personal opposition to his removal. He has indicated in a variety of ways that he is afraid to return to Nigeria. While it is my opinion that he may be misinformed about the present situation in Nigeria, it appears from his behaviour that this fear is very real to him. This fear has led to his strongly opposing his removal, to the point where he would have to be forced to board the plane. It is my opinion that if the applicant is forced to board a flight, perhaps in restraints, and escorted to Nigeria, it will be apparent to the authorities that he is a person of interest. They may believe that he is dangerous or become aware that he is a failed refugee claimant. This will be sufficient to result in his detention....It is my opinion that the applicant would be at risk, as I believe that the only way that he will be placed upon an airplane to Nigeria is by force and in restraints.
[9] On February 27, 2001, counsel for the applicant sent a third package of submissions in support of the applicant's outstanding H & C application to the immigration officer, regarding why the applicant would be at risk if he returned to Nigeria. The applicant was granted an interview on July 19, 2001, to further present his case.
[10] By letter dated September 20, 2001, the immigration officer refused the applicant's H & C application for landing within Canada.
[11] The applicant submits the following issues for consideration:
1) Did the immigration officer improperly fetter her discretion?
2) Was the immigration officer biased against the applicant?
3) Did the immigration officer err by failing to disclose the PCDO's risk assessment opinion to the applicant?
[12] I consider each of these issues in turn, after commenting upon the standard of review applicable in this case.
Standard of review
[13] The law is settled regarding the standard of review which should be applied in the judicial review of H & C decisions. In Tartchinska v.Canada (Minister of Citizenship and Immigration) (2000), 185 F.T.R. 16, [2000] F.C.J. No. 373, Nadon J. (as he then was) commented, at paras. 18-19:
It is clear that exemptions for humanitarian and compassionate reasons are discretionary and that an applicant is not entitled to a particular outcome. In order to successfully attack a negative decision, an applicant must show that the decision-maker erred in law, acted in bad faith, or proceeded on an incorrect principle: Baker v. Canada (Minister of Citizenship & Immigration) (1999), 174 D.L.R. (4th) 193 (S.C.C.); Shah v. M.E.I. (1994), 29 Imm. L.R. (2d) 82 (F.C.A.); Ogunfowora v. M.C.I., 41 Imm. L.R. (2d) 75 (F.C.T.D.).
The Supreme Court in Baker, supra, made it clear that the standard of review in humanitarian and compassionate grounds applications is reasonableness. Accordingly, if the impugned decision is based on reasons that can withstand somewhat probing examination, this Court is not empowered to alter that decision.
[14] In reviewing the immigration officer's decision to refuse the applicant's H & C application, I apply the standard of reasonableness.
Issues
Did the immigration officer improperly fetter her discretion?
[15] The applicant submits that the immigration officer improperly fettered her discretion. In her reasons for decision, the immigration officer commented:
I have analyzed the elements of the CRDD member's reasons for decision, as well as the elements of the risk opinion of the PCDO, combined with the contents of the entire case. I conclude that the positive risk opinion does not outweigh the negative factors of this case.
[16] The applicant submits that the passage quoted above indicates that the immigration officer, when deciding the H & C application on the merits, improperly relied upon the analysis and reasoning of previous decisions, by the CRDD and the PCDO, rather than independently considering the evidence, as she was required to do.
[17] I am not persuaded by the applicant's argument on this point. In her reasons, which comprise 12 single-spaced pages, the immigration officer considered all the evidence before her prior to arriving at her decision. The mere fact that the immigration officer made reference to elements of the decisions of the CRDD and the PCDO does not indicate that the officer did not independently consider the evidence before her in this case.
Was the immigration officer biased against the applicant?
[18] The applicant submits that the immigration officer was biased against him. He urges that bias is evident in the immigration officer's reasons, which, he claims, attach unmerited significance to facts adverse to the applicant's claim, and cursorily review evidence favourable to him.
[19] The applicant's submission on this point is, in essence, an argument that the immigration officer improperly weighed the evidence before her. However, it is not the function of this Court on judicial review to assess the weighing of evidence by an immigration officer. Rather, in reviewing an H & C decision, this Court will only intervene if it can be shown that the immigration officer's decision is unreasonable because she erred in law, acted in bad faith, or proceeded on an incorrect principle (see Tartchinska, supra). I am not persuaded that the officer's decision was unreasonable in this case.
Did the immigration officer err by failing to disclose the PCDO's risk assessment to the applicant?
[20] In her reasons for decision, the immigration officer referred to the PCDO's risk assessment, and then declined to follow its result. The applicant submits that the immigration officer breached the duty to act fairly by failing to disclose the PCDO's risk assessment, or that it would not be accepted, thereby denying him an opportunity to know and to comment on that document or a predisposition to ignore its result. In support of this submission, the applicant relies on Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, where Madam Justice L'Heureux-Dubé, writing for the majority, commented, at para. 32:
Balancing these factors, I disagree with the holding of the Federal Court of Appeal in Shah, supra, at p. 239, that the duty of fairness owed in these circumstances is simply "minimal". Rather, the circumstances require a full and fair consideration of the issues, and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered.
[21] The applicant submits that by failing to disclose the PCDO risk opinion, or that it would not be followed, the immigration officer breached his right to a "meaningful opportunity" to present evidence relevant to his case, and to have that evidence "fully and fairly considered".
[22] While the applicant in this case was not provided with a copy of the risk opinion, he had been informed of its existence and its result. On January 5, 2001, the PCDO wrote the applicant's counsel to inform him of her opinion that the applicant would be at risk if he were to be removed to Nigeria. That letter further provided, in part:
The Risk Opinion will be sent to the Enforcement office and to CIC Vancouver for consideration by the officer making a decision on your client's application for permanent residence from within Canada on humanitarian and compassionate grounds. Please direct any questions regarding continued detention, status of removal, or final consideration of the H & C application to the most appropriate of the two offices.
[23] After the applicant learned of the existence of the PCDO risk assessment, he had further opportunities to comment in regard to that assessment. On January 29, 2001, an immigration officer wrote the applicant, inviting him to make further submissions, which he did on February 27, 2001. Some months later, on July 19, 2001, the applicant attended a personal interview with the immigration officer, where he was given a further opportunity to argue his case. In the circumstances, I find that the immigration officer did not err by failing to provide the applicant with a copy of the PCDO's risk opinion. In my view, the applicant had ample opportunity to present evidence relevant to his case, and to have that evidence fully and fairly considered.
[24] The applicant further relies on Haghighi v. Canada (Minister of Citizenship and Immigration) (1999), 174 F.T.R. 123 (F.C.T.D.), where Mr. Justice Gibson quashed the H & C decision there under review. However, the facts in this case are distinguishable from the facts in Haghighi. In Haghighi, the applicant filed an H & C application, which was referred by the immigration officer to the PCDO. In reaching a negative risk assessment, the PCDO relied on a 1997 U.S. Department of State report ("the 1997 DOSS Report") which was not among the materials submitted by the applicant in support of his H & C application. The immigration officer then relied on the negative risk opinion in deciding to refuse the applicant's H & C application. At para. 11, Mr. Justice Gibson commented:
...(N)either the PCDO recommendation and the analysis on which it was based nor the 1997 DOSS Report and the fact that it was relied on were disclosed to the applicant. In the result, he was given no opportunity to respond to either.
[25] In this case, unlike Haghighi, the applicant was informed of the existence and the result of the PCDO opinion, and was invited to direct any questions regarding continued detention, status of removal, or final consideration of the H & C application to immigration authorities. Furthermore, in this case, unlike Haghighi, there is no allegation that the PCDO officer relied on any material which was not known by the applicant in considering the H & C application. The claim to unfairness in this case rests upon the inclusion of the risk opinion in materials considered in regard to the applicant's H & C application. The applicant was aware of the existence of that opinion, and of its outcome, and that it would be considered in the assessment of his H & C application. In the circumstances there was not unfairness in the process of the H & C decision.
Conclusion
[26] The application for judicial review will be dismissed.
[27] Immediately following the hearing I indicated to counsel that upon filing of these Reasons I would provide opportunity for them to consider and propose any serious question of general importance for certification under s-s. 83(1) of the Immigration Act, R.S.C. 1985, c. I-2 as then amended. I invite counsel to consult and to advise the Court, through the Registry in Vancouver, on or before September 12, 2002, of any question they may agree upon, or failing agreement, any question either party may propose.
(signed) W. Andrew MacKay
_____________________________
JUDGE
OTTAWA, Ontario
August 30, 2002.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-4662-01
STYLE OF CAUSE: MICHAEL IFEANYI OJINMA
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA
DATE OF HEARING: JUNE 12, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE MACKAY
DATED: AUGUST 30, 2002
APPEARANCES:
MR. GREGORY P. BRUCE FOR THE APPLICANT
MS. BRENDA CARBONELL FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
GREGORY P. BRUCE, Barrister & Solicitor FOR THE APPLICANT
VANCOUVER, BRITISH COLUMBIA
MR. MORRIS ROSENBERGFOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA