Date: 20011003
Docket: IMM-6573-00
Neutral citation: 2001 FCT 1090
BETWEEN:
HAMIDA KHANAM, UZMA SHEHZAD,
MADIHA SHEHZAD, SAIMA SHEHZAD,
NAUSHEEN SHEHZAD, NAUREEN SHEHZAD
and ALIABBAS SHEHZAD
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMIGRATION
Respondent
[1] The applicants seek judicial review of a decision of the Post Claim Determination Officer ("PCDO") dated October 26, 2000, in which the officer determined that the applicants are not members of the Post Determination Refugee Claimants in Canada (PDRCC) class.
[2] The issue is whether the PCDO breached the duty of fairness owed to the applicants by relying on the 1999 DOS Report, which post-dated the application and written submissions, without providing an opportunity to respond.
FACTS:
[3] The relevant facts are short. The applicants had a refugee hearing before the Immigration and Refugee Board wherein it made a finding of a general lack of credibility and denied the applicants' claims for the grant of Convention Refugee Status. The application for leave was dismissed. The applicants then made a PDRCC application and filed written submissions and documentation in support of their claim. The PCDO conducted an assessment of risk of the applicants and concluded that although eligible for inclusion in the PDRCC class, the applicants are not at risk.
[4] In its assessment of risk, the PCDO set out extracts from the CRDD decision and reasons as follows:
The claim failed on credibility issues. They go on to address the sectarian violence and quote documentary evidence indicating that it is the extremist fringe of both communities who target high-ranking members of the respective extremist groups. They did not find that the applicants would be of interest to the Sipah-Sahaba. The panel found little evidence that a campaign of persecution is being perpetrated against all Shias by state authorities. Pakistani authorities have offered cash awards for the capture of those involved in religious violence as well as a general crack down on violence.
[5] The PCDO then stated:
The 1999 DOS states at page 43 that the Prime Minister is addressing sectarian terrorism and religious dissension in the country and that after the coup, sectarian violence decreased.
[6] The PCDO in its decision then dealt with Extracts from the Pakistan Country Assessment dated 2 November 1998. The PCDO stated in part:
Preemptive action has been taken by the Pakistani authorities on occasion to detain leaders of one group who they believed were contemplating violent action against members of the other group. The Pakistani Government has been quick to respond to outbursts of sectarian violence, although their action has not effectively curtailed sectarian murders. ...
Later the PCDO stated:
Where Shias have been the targets of Sunni violence, the perpetrators are generally members of extremist Sunni organizations such as Sipah-I-Sahaba-I-Pakistan.
The officer then did the analysis which reads as follows:
I have carefully examined the information before me and I do not find that the applicants would be at risk should they be removed to Pakistan. An analysis has identified credibility and plausibility issues. I note that these same issues have been identified at the CRDD hearing. The PDRCC submission has not adequately addressed these issues and they remain outstanding.
However, setting aside credibility, I still do not find that the applicants would be at risk. Documentary evidence indicates that the state does not condone sectarian violence and addresses the rights of the minorities. It is my finding that on balance, it is high profile individuals and militants who are at risk. There is insufficient compelling evidence that the family would be at risk due to their religious beliefs.
[7] The 1999 DOS Report cited by the PCDO post-dated the applicants' application and submissions.
[8] The applicants submit that the PCDO's findings and conclusion in his evaluation of risk of return were based on and may have been affected by the 1999 DOS Report which post-dated the applicants' PDRCC application and written submissions. The applicants further submit that the information referenced to the Report, that after the recent coup, the Prime Minister is addressing sectarian terrorism and religious dissension, and that sectarian violence decreased, was a novel and significant development evidencing a change in country conditions. Furthermore, the failure to advise and to provide an opportunity to respond to that information constituted a breach of the duty of fairness owed to the applicants.
[9] In my view, Mancia v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 461 (F.C.A.) sets out the proper criteria for judging whether the PCDO breached the duty of fairness in this case by referring to the 1999 DOS Report. As in the Mancia, case, it is common ground that the DOS Report was "in the public domain and available at the IRB Documentation Centre".
[10] Décary J.A. discussed previous decisions and stated they were based 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.
He continued at paragraph 26:
The documents are in the public domain. They are general by their very nature and are neutral in the sense that they do not refer expressly to an applicant and that they are not prepared or sought by the Department for the purposes of the proceeding at issue.
These comments are applicable in the case at bar. He then continues:
... 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 the applicant.
[11] The certified question in Mancia read as follows:
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, [See Note 2 below] when he or she fails to disclose, in advance of determining the matter, documents relied upon from public sources in relation to general country conditions? [Note 2: Shah v. Canada (Minister of Employment & Immigration) (1994), 29 Imm. L.R. (2d) 82 (F.C.A.); affg (1992), 55 F.T.R. 87 (F.C.T.D.).]
Décary J.A. then answers the certified question as follows and points out that it is assumed that the documents at issue are of a general nature as pointed out in the foregoing paragraphs:
(a) with respect to documents relied upon from public sources in relation to general country conditions which were available and accessible at Documentation Centres at the time submissions were made by an applicant, fairness does not require the post claims determination officer to disclose them in advance of determining the matter;
(b) with respect to documents relied upon from public sources in relation to general country conditions which became available and accessible after the filing of an applicant's submissions, fairness requires disclosure by the post claims determination officer where they are novel and significant and where they evidence changes in the general country conditions that may affect the decision.
[12] In the case at bar, the parties differ on whether the 1999 DOS Report is novel and significant. In my view, the 1999 DOS Report does not evidence changes in the general country conditions that may affect the decision. The PCDO found that the applicants had failed to adequately address the credibility and plausibility issues which had been initially raised by the Refugee Division and thus found there was no credible evidence that the applicants would be of interest to the Sipah-Sahaba, an extremist Sunni organization in Pakistan. Furthermore, in my view, the statement from the 1999 DOS Report has no application to the applicants since there was no credible evidence that they would be victims of sectarian terrorism. The PCDO found that it was high profile individuals and militants that were at risk and the applicants do not fall within this category.
[13] Furthermore, the 1999 Report does not contain any evidence that is novel and significant since the Pakistan Country Assessment Report had already reported that the government of Pakistan was responding to sectarian violence. Where the PCDO refers to the Country Assessment, the PCDO summarizes the evidence on this issue as follows:
The Pakistani government has been quick to respond to outbursts of sectarian violence although their action has not effectively curtailed sectarian murders.
[14] Thus, since there is no novel and significant evidence in the 1999 DOS Report nor changes in the general country conditions that may affect the decision, there is no breach of the duty of fairness by the PCDO.
[15] Counsel for the Minister brought before the Court the case of Chu v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 554 (F.C.A.), as an officer of the Court. In my view Chu is distinguishable from Mancia for the following reasons. In Chu, Rothstein J.A. had to answer the following certified question:
Does consideration by a decision maker of documentary evidence, regarding country information, that has been neither specifically identified for [sic] nor a copy provided to the convention refugee, who is the subject of a "danger to the public" opinion pursuant to s. 70(5) of the Immigration Act, offend the principals [sic] of natural justice, procedural fairness or fundamental justice?
In the decision, Rothstein J.A. reviews Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 341 (C.A.), another danger opinion case. He then goes on to state at paragraph 8:
While the Ministerial Opinion Report in this case appears to be more carefully prepared and better balanced than similar documents in Bhagwandass, the duty of fairness requires disclosure because of the adversarial nature of the danger opinion process itself. In adversarial proceedings of this nature, fairness requires that documents submitted to a decision maker by one party be disclosed to the other.
However, the PDRCC process is not an adversarial one. The courts have looked for some time to the question of whether the process is adversarial to determine the amount of fairness required. In Canada (Minister of National Revenue - M.N.R.) v. Coopers & Lybrand Ltd, [1979] 1 S.C.R. 495 at page 505, Dickson J.A. states:
The existence of something in the nature of a lis inter partes and the presence of procedures, functions and happenings approximating those of a court add weight to (3). But again, the absence of procedural rules analogous to those of courts will not be fatal to the presence of a duty to act judicially.
There is no lis inter partes in the PDRCC process. Unlike in the danger process where you have people in the Department making the reports to the decision-maker, the PDRCC officer did not go to any other person to get adverse arguments to the applicants'.
[16] In the notice to applicants on how to apply for Post Determination Refugee Class, number 5, the last paragraph reads as follows:
With regard to the information on current conditions in the country of return, the officer may refer to the most recent material available at Immigration and Refugee Board documentation centres, as well as to information available from other public sources. ... The officer may also use other annually published material such as the U.S. Department of State Country Reports on Human Rights Practices, ...
Thus the applicant is informed about the most recent material and the DOS Report in particular. This is a totally different process from the danger opinion process where there are people within the Department supplying information to the writer of the opinion.
[17] I will now look at the Baker v. Canada, [1999] 2 S.C.R. 817 case where Justice L'Heureux-Dubé set out the factors affecting the content of the duty of fairness. The first factor is:
One important consideration is the nature of the decision being made and the process followed in making it.
The PDRCC decision is highly discretionary by statute. Secondly, she stated:
A second factor is the nature of the statutory scheme and the "terms of the statute pursuant to which the body operates".
The Immigration Act does not set out a statutory scheme with respect to the PDRCC decisions.
[18] Thirdly:
A third factor in determining the nature and extent of the duty of fairness owed is the importance of the decision to the individual or individuals affected. The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated.
The danger opinion results in the subject being deprived of certain rights. In this case the PDRCC application is another step in the process. The refugee will have had a full hearing before the Immigration and Refugee Board and the subject can also apply to have humanitarian and compassionate consideration, but the PDRCC application is designed to provide the applicant with another opportunity to have an assessment of risk done subsequent to the hearing before the Refugee Board.
[19] Fourthly:
... legitimate expectations of the person challenging the decision may also determine what procedures the duty of fairness requires in given circumstances.
In the PDRCC process the applicant has no expectation of a certain type of process or outcome. The PCDO makes its decision based on the applicants' submissions and the publicly available documents listed in the notice to applicants on how to complete a PDRCC application.
[20] Fifthly:
... the analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances: ... important weight must be given to the choice of procedures made by the agency itself and its institutional constraints: ...
As stated earlier, the statute left the choice of procedure to the Minister. A duty of fairness does not require disclosure of publicly available information as stated in paragraph 26 of Mancia, supra. It is up to the applicant to update their submissions with respect to recent public documents.
[21] The third matter to be discussed with respect to distinguishing the Chu case is the fundamental differences of the PDRCC and danger contexts. The PDRCC decision does not facilitate the removal of the subject as does the danger opinion. The applicants should be familiar with the IRB document centre as they have had to go through these documents in the refugee hearings prior to being able to apply under the PDRCC class.
[22] For these reasons, I distinguish the Chu case from the Mancia case which is on point.
[23] The application for judicial review is dismissed.
[24] In my view the following question should be certified:
Is a Post Claim Determination Officer assessing an application for membership in the Post-Determination Refugee Claimants in Canada Class under ss. 2(1) and 11.4 of the Immigration Regulations, 1978 required to disclose publicly available country conditions documentation, which are only released after the applicant has made its submission, to the applicant, and provide the applicant with an opportunity to respond to the documentation, prior to making a final decision on the application?
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
October 3, 2001