Date: 20011023
Docket: IMM-5421-00
Neutral citation: 2001 FCT 1150
BETWEEN:
SAMSU MIA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant seeks judicial review of a decision of a Post Claim Determination Officer (PCDO) dated September 26, 2000, in which the PCDO determined that the applicant was not a member of the Post Determination Refugee Claimants in Canada (PDRCC) class.
[2] The primary issue is whether the PCDO was clearly wrong or unreasonable in finding that the applicant was not at risk if returned to Bangladesh. A second issue is whether the PCDO breached the rules of fairness by not interviewing the applicant and by not providing the applicant with an opportunity to respond to his concerns. This issue includes the question as to whether the PCDO should have provided the applicant with a copy of his notes prior to issuing his decision. The third issue is whether the PCDO fettered his discretion by relying upon the CRDD decision.
[3] The PCDO, in his notes with respect to the question of whether the applicant was eligible for a PDRCC review and whether the applicant was at risk, dealt with certain points as follows:
The assessment is to determine whether the applicant faces an objectively identifiable risk to his/her life, of extreme sanctions, or inhumane treatment if removed from Canada.
A. RISK(S) IDENTIFIED BY THE APPLICANT(S)
The applicant's counsel states that the Deputy High Commissioner from Bangladesh here has threatened the applicant in Canada. Mr. Ul Alam's associates have also threatened his family in Bangladesh. Counsel states: "If Mr. Mia is removed to Bangladesh he fears that he would be harmed or even killed by Mr. Ul Alam or his associates in that country. He also fears for his family's safety. Mr. Ula Alam is a very powerful man who has close ties to the military, the current governing party and to the police in his area." He states that the applicant has no social standing or monetary resources to protect himself physically or through the courts whether a Convention refugee or not.
Under "B. Analysis: 'Extracts from the CRDD Decision and Reasons' ", the PCDO states:
The applicant testified that he feared a personal vendetta by Mr. Alam because he exposed his treatment by the Deputy High Commissioner from Bangladesh.
In my view, the PCDO has not misconstrued the applicant's fear, since it was only when the applicant publicly complained about his treatment by Mr. Alam that the threats commenced. The PCDO goes on to state:
The panel did not find that this matter did not fit the refugee definition as it was a personal vendetta rather than a political opinion.
This is an inadvertent misstatement by the PCDO since the panel did find that the applicant did not come within the refugee definition. The PCDO then states:
They note that he did not approach the High Commissioner in Canada asking for protection for himself or his family.
As Tremblay-Lamer J. stated in refusing the application for judicial review, this is clearly an error since the applicant did approach the High Commissioner in Canada. However, it only relates to the issue of state protection and if the PCDO is correct in saying that there is no risk to the applicant if he is returned to Bangladesh, then the question of state protection is inapplicable. Tremblay-Lamer J. accordingly did not find that this was a reviewable error and it is not a reviewable error in the context of this application for judicial review before me.
[4] The PCDO then states the following with respect to the evaluation of risks of return:
The applicant alleges that he and his family have received threats from a well-placed Bangladeshi citizen due to his exposure of his alleged mistreatment by the government representative here in Canada. I note that the official's reputation has not been harmed by the exposure and that there is no evidence that the applicant and his family have come to physical harm as threatened.
Given the fact that the government official has been promoted and is currently serving outside of his country, it is my finding that it is implausible that the applicant and his family would be physically harmed in Bangladesh
There is insufficient credible information to find that the applicant would be at risk should he be removed to Bangladesh.
[5] The applicant submits that there was no evidence that the official had been promoted but there is a statement in the Refugee Board's decision that he had become the ambassador to another country. The applicant submits that there was no evidence before the Board to this effect. However, the statement stands and it has not been contradicted in any of the material before me. Tremblay-Lamer J. did not deal with this piece of evidence in the application for judicial review.
[6] While there is evidence in the Department of State Reports that people in the lower social class in Bangladesh are oppressed by the rich and the powerful, there is no evidence that would contradict anything that is stated in the first two paragraphs of the PCDO's evaluation of the risk of return. I also note that the applicant states in his own affidavit that he was well treated in his other embassy postings over a period of years prior to being assigned to the High Commission for Bangladesh in Canada.
[7] The applicant submits that there was no finding of credibility against the applicant at the Refugee Board hearing and that it is therefore wrong for the PCDO to say:
There is insufficient credible information to find the applicant would be at risk should he be removed to Bangladesh.
In my view it is an unfortunate use of the word "credible" in this sentence but I am unable to find any information before me, credible or otherwise, upon which I could say the applicant would be at risk should he be removed to Bangladesh. There is no doubt that there were two letters from one of his sons in Bangladesh stating that he and his family had been threatened and also a letter from the applicant's employer in Canada stating that he was aware of threats against the applicant. However, the PCDO acknowledged that the applicant and his family had been threatened but felt that because there was no physical harm, the applicant would not be at risk in Bangladesh. The applicant was physically harmed while he worked for the High Commission in Canada but there has been no harm to the applicant or his family in the two years since he exposed the treatment of himself by the Deputy High Commissioner, Mr. Alam. In my view, the PCDO was not clearly wrong or unreasonable in finding that the applicant would not be at risk if he was returned to Bangladesh. Furthermore, there has been no threat against the applicant or his family between May of 1999 and September 22, 2000, the date of the decision.
[8] The PCDO did not violate the rules of fairness by not providing an interview to the applicant. Baker v. MCI, [1999] 2 S.C.R. 817, states that an interview is not always required in administrative decisions. Other case law suggests that where credibility is an issue, it is a requirement (see Khan v. University of Ottawa (1997) 34 O.R. (3d) 535 (Ont. C.A.)). However, credibility is not an issue in this case. Further, in the case of Azerbaijani v. MCI, [1998] F.C.J. No. 882 (T.D.), it was held that the failure to grant an interview did not breach the duty of fairness. There has already been a full hearing in this matter before the Refugee Board. There is no requirement that an additional hearing be held at every stage of the process even where credibility is an issue.
[9] In my view, also, the PCDO did not fail to provide the applicant with an opportunity to respond to his concerns. The applicant made submissions on this matter and he was well aware of the Board's decision and the Department of State Report. There is no evidence that the PCDO relied on any new evidence.
[10] I will now proceed to deal with the issue as to whether the PCDO should have shown his reasons to the applicant prior to releasing his decision.
[11] Counsel for the Respondent, as an officer of the court, brought to my attention a recent decision of this Court, Soto v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1207, in which it was held that a PCDO is required to disclose the risk assessment to the applicant and provide an opportunity to comment on it, prior to making the final decision. Lemieux J. relied on the case of Haighighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407 (F.C.A.) and stated:
In my view, Haghighi, supra, is directly on point. In this case, the Federal Court of Appeal upheld Justice Gibson's ruling that because of the Supreme Court of Canada's decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the duty of fairness now includes the disclosure of a risk assessment report by a PCDO so that an applicant may attempt to correct errors or to point out omissions in the report, even when the report or risk assessment was based on material supplied by the applicant as part of his PDRCC application and other publicly available information that was reasonably available to the applicant.
With respect, I disagree that the principles of fairness require a PCDO conducting a risk assessment to determine if the applicant is a member of the PDRCC class to disclose the risk assessment prior to making his decision. In my view, this would be tantamount to a decision-maker being required to provide its reasons for the decision for comment prior to making the final decision. This is a case where the person who reviewed the evidence made the decision. No one else was involved. This is not a case where the decision maker is receiving input from other persons than the applicant. Further, I note that Haghighi dealt with an application under humanitarian and compassionate grounds. Thus there was no reviewable error on this issue.
[12] I am also of the view that the PCDO did not fetter his discretion by relying upon the CRDD decision. The case law establishes that the PCDO is entitled to rely on the Board decision and come to the same conclusion so long as the PCDO does not feel obliged to follow the same decision but forms his or her own conclusions.
[13] The application for judicial review is dismissed.
[14] There were two certified questions submitted to me. In my view, the applicant's proposal was fact driven and is not a question of general importance. In my view, the question that should be certified in this matter reads as follows:
When deciding whether a person is a member of the post-determination refugee claimants in Canada class, is a PCDO required, by the principles of procedural fairness, to disclose his reasons for the decision to the person concerned for comment prior to his decision being considered final?
"W. P. McKeown"
JUDGE
TORONTO, ONTARIO
October 23, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5421-00
STYLE OF CAUSE: SAMSU MIA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, OCTOBER 3, 2001
PLACE OF HEARING: OTTAWA, ONTARIO
REASONS FOR ORDER BY: MCKEOWN J.
DATED: TUESDAY, OCTOBER 23, 2001
APPEARANCES: David Morris, and
Felipe Quiroz-Borrero
For the Applicant
Marie Crowley
For the Respondent
SOLICITORS OF RECORD: Bell Unger Morris
Barristers & Solicitors
114 Argyle Avenue
Ottawa, Ontario
K2P 1B4
For the Applicant
Morris Rosenberg
Deputy Attorney General
For the Respondent
FEDERAL COURT OF CANADA
Date: 20011023
Docket: IMM-5421-00
Between:
SAMSU MIA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER