Date: 20010720
Docket: IMM-1014-00
OTTAWA, ONTARIO, FRIDAY, JULY 20, 2001
Present: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
CRISTIAN MARCEL VERGARA SOTO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
O R D E R
For the reasons given, this judicial review application is allowed, the decision of the PCDO is set aside, and the applicant's PDRCC application is to be reconsidered by a different officer. No certified question was raised.
"François Lemieux"
J U D G E
Date: 20010720
Docket: IMM-1014-00
Neutral Citation: 2001 FCT 818
BETWEEN:
CRISTIAN MARCEL VERGARA SOTO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
INTRODUCTION
CRISTIAN Marcel VERGARA Soto (the "applicant"), a citizen of Chile, in this judicial review application, challenges a February 1, 2000 decision by Post-Claim Determination Officer B. Sachs-Syer (the "PCDO ").
The PCDO found the applicant would not be subjected to a serious risk to his life, extreme sanctions or inhumane treatment if he were required to leave Canada and return to Chile. As a result, the PCDO ruled the applicant was not a member of the Post-Determination Refugee Claimants in Canada Class ("PDRCC") as defined in subsection 2(1) of the Immigration Regulations.
The applicant raises two grounds in support of his judicial review application:
(1) the negligence or incompetence of his previous counsel, an immigration consultant, who failed to make any submissions to the PCDO in support of the PDRCC application; and
(2) a breach of the duty of fairness because, prior to making the impugned decision, there was no disclosure by the PCDO to the applicant of the risk assessment made and no opportunity afforded to the applicant to comment on that risk assessment and correct any errors, omissions or other deficiencies, a matter of importance because the applicant alleges the PCDO made certain fundamental errors of fact and did not consider the totality of the evidence.
THE FACTS
The material facts in this judicial review application are not in dispute.
The applicant fled Chile in December 1995 arriving in Canada on December 26 of that year.
He made a refugee claim based on his fear of persecution from the Chilean Intelligence Police ("CNI") because of his political activities. The Refugee Division of the Immigration and Refugee Board (the "Refugee Division"), after holding a hearing at which the applicant was represented by a member of the B.C. Law Society, (who argued his judicial review application before me), rejected his claim in a July 14, 1998 decision.
The Refugee Division stated the major element of the applicant's refugee claim was his alleged involvement with a church called Capilla Cristo Roto and a group called the Jovenes which assisted the families of the disappeared, held peaceful protests, organized soup kitchens for the poor and painted political graffiti, an involvement which the applicant said resulted in his being detained twice, beaten and subjected to threats from Chile's security service because he was related to three brothers who had been killed in 1987 and 1989 during a raid by the CNI on the group which they belonged to in the case of two brothers and during a protest in the case of the other. The Refugee Division found the applicant's evidence was not credible because it was not sufficiently supported or corroborated.
The applicant, on July 28, 1998, retained the services of Universal Immigration Services for his PDRCC application. He signed that application on July 28, 1998 and on August 4 of that year, gave the immigration consultant, a Mr. Iraj Rezaei, a cheque for $3,000 as payment for a post-claim (PDRCC) submission which the applicant, in an affidavit in support of this application, said Mr. Rezaei indicated would be written up and would be submitted to Citizenship and Immigration Canada within the 30-day deadline.
In fact, Mr. Rezaei made no PDRCC submission to the PCDO on Mr. Soto's behalf. The PCDO's notes and decision record acknowledge no such submissions were received.
THE PCDO'S DECISION
The PCDO's notes and decision record reveal the officer considered the following documentation:
(a) the personal information form which the applicant had filed with the Refugee Division;
(b) the Refugee Division's decision;
(c) four Immigration and Refugee Board responses to information request documents; and
(d) United States Department of State Country Reports on human rights practices in Chile for 1996, 1997 and 1998.
The PCDO noted as a conclusion that "credibility issues, as noted in the crdd reasons, were not alleviated in the absence of any new information/
evidence". The PCDO also wrote this: " -- insufficient persuasive evidence to afford the conclusion that the Chilean authorities, the police authorities, the military or anyone else in Chile has a current interest in pc [claimant], his whereabouts or in seeking reprisals against him. -- insufficient persuasive/ objective evidence to afford the applicant's inclusion in the pdrcc class". I should add, the PCDO reviewed the extensive documentary evidence on current country conditions in Chile.
ANALYSIS
In my view, this judicial review application can be resolved by determining the second issue, namely, whether the respondent breached a duty of fairness when the PCDO did not, prior to making her decision, provide the applicant with a copy of the risk assessment so that Mr. Soto could comment on it.
Counsel for the applicant referred me to the recent Federal Court of Appeal's decision in Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407. That case dealt with the non-disclosure of a risk assessment made by a PCDO officer in the context of the inland processing of a permanent residence application based on humanitarian and compassionate grounds.
Recently, the Federal Court of Appeal in Minister of Citizenship and Immigration v. Bhagwandass, [2001] F.C.J. No. 341, commented extensively on Haghighi, supra. This case dealt with the non-disclosure of a report to the Minister's delegate to the effect the respondent was a danger to the public (the danger opinion). Justice Sharlow, on behalf of the Federal Court of Appeal, applied the Haghighi rationale to the circumstances before her.
Counsel for the respondent interprets the applicant's ground as raising whether the PCDO, in making her decision, relied on any extrinsic evidence that was not disclosed to the applicant and, in particular, reliance on a USDOS Country Report of 1998 for Chile which became available only after the PDRCC application was filed.
Counsel for the respondent points out the Federal Court of Appeal has held a PCDO does not breach the duty of fairness in relying on documents that are in the public domain and contain information as to general country conditions citing Mancia v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 461 (C.A.).
In addition, counsel for the respondent rightly points out, based on Mancia, supra, the Federal Court of Appeal has also held a PCDO does not breach the duty of fairness in relying on such documents even if they became available after a PDRCC applicant has filed his or her submissions, unless the applicant demonstrates the document contains evidence of a relevant change in general country conditions.
If the applicant had framed his challenge on the non-disclosure of recently acquired evidence by the PCDO, counsel for the respondent would be correct. However, the applicant's challenge is not aimed at the non-disclosure of recently acquired evidence by the PCDO but on her failure to disclose the risk assessment itself in order to provide the applicant an opportunity to comment on alleged errors, omissions or other deficiencies in it.
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.
Evans J.A.'s conclusion and rationale are expressed in the following words at paragraphs 37 and 38 of the reported case:
In my opinion, the duty of fairness requires that inland applicants for H & C landing under subsection 114(2) be fully informed of the content of the PCDO's risk assessment report, and permitted to comment on it, even when the report is based on information that was submitted by or was reasonably available to the applicant. Given the often voluminous, nuanced and inconsistent information available from different sources on country conditions, affording an applicant an opportunity to comment on alleged errors, omissions or other deficiencies in the PCDO's analysis may well avoid erroneous H & C decisions by immigration officers, particularly since these reports are apt to play a crucial role in the final decision. I would only add that an opportunity to draw attention to alleged errors or omissions in the PCDO's report is not an invitation to applicants to reargue their case to the immigration officer.
In view of the potentially grave consequences for an individual who is returned to a country where, contrary to the PCDO's report, there is a serious risk of torture, the increased accuracy in the decision likely to result from affording the respondent the procedural right sought here justifies whatever administrative delays might thereby be occasioned. In order to minimize delay, it would be appropriate for immigration officers to give to applicants a relatively short time within which to submit written comments on the report.
My finding on this issue is determinative of their judicial review application. I need not deal with the applicant's first submission concerning the negligence or incompetence of the immigration consultant he retained.
DISPOSITION
For all of these reasons, this judicial review application is allowed, the decision of the PCDO is set aside, and the applicant's PDRCC application is to be reconsidered by a different officer. No certified question was raised.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
JULY 20, 2001
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