Chen v. Canada (Minister of Citizenship and Immigration), 2002 FCT 266

Date: 20020308

Docket: IMM-3950-00

                                                                                                  Neutral Citation: 2002 FCT 266

BETWEEN:

ZHU XIAN CHEN

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

                                                    REASONS FOR ORDER

HANSEN J.

[1]                 The applicant, Zhu Xian Chen, seeks judicial review of the decision of Post Claim Determination Officer Neeta Sandhu (the "PCDO"), dated July 5, 2000. The PCDO determined that the applicant was not a member of the Post-Determination Refugee Claimants in Canada ("PDRCC") class.

[2]                 The relevant facts can be summarized briefly. The applicant fled the Peoples Republic of China ("PRC") by boat on July 29, 1999. She was one of a number of individuals who arrived on the shores of British Columbia from the Fujian province of China in the summer of 1999. The applicant's Convention refugee claim was rejected on March 23, 2000. The applicant subsequently applied for consideration as a member of the PDRCC class.

[3]                 The applicant's submissions state that she faces a potential risk to her life, inhumane treatment or extreme sanctions if returned to the PRC because she illegally exited China. She notes that there are penalties in place in the PRC for persons who exit the country illegally, including incarceration for extended periods of time under deplorable conditions, beatings and fines. Her submissions emphasize the point that, while these penalties may not have been strictly enforced in the past, they will be enforced in her case because the Chinese government suffered international embarrassment over the "boat people" incident. She states that since it is the central Chinese government that will be punishing her upon her return, there is no internal flight alternative. She submits that she faces further risks because of her and her family's practice of Christianity and because she has had more than one child.

[4]                 The PCDO found that the applicant is not a member of the PDRCC class as defined in section 2(1) of the Immigration Regulations, SOR/78-172, because the applicant would not be subjected to serious risk to her life, extreme sanctions or inhumane treatment if she were returned to China. Her decision states that she relied on the following sources:

PDRCC submissions and Documentary Evidence submitted by counsel;

1)         Personal Information Form;

2)         CRDD Decision and Reasons;

3)         Heaven is High and the Emperor is Far Away: Report from the Fuzhou Metropolitan Counties of Lianjiang, Mawei, Fuqing, and Changle by Dr. Charles Burton - site visit January 25-30, 2000;

4)         U.S. Department of State 1999 Country Reports on Human Rights Practices in China, February 25, 2000; and

5)         IRB Research Directorate, Response to Information Request #CHN32869.EX22, September 22, 1999.

[5]                 In the written reasons for rejecting the application, the PCDO found the evidence to indicate that the applicant would not be at risk because she is Catholic. She cites extensively to the U.S. Department of State 1999 Country Reports on Human Rights in China ("the Country Reports 1999") and also to a more recent report entitled Heaven is High and the Emperor Far Away: Report from the Fuzhou Metropolitan Counties of Lianjiang, Mawei, Fuquing, and Changle by Dr. Charles Burton (the "Burton Report").

[6]                 With respect to the issue of the applicant's illegal exit from China, the PCDO found that there was insufficient persuasive evidence that she would face punishment upon her return. Here the PCDO relied heavily on the Burton Report. The PCDO also noted that although the applicant argued that the extensive media coverage of the "boat people" arriving on Canadian shores caused great embarrassment to the Chinese government, she found that the policies and punishments that exist "on the books" are generally not implemented.

[7]                 And finally, with respect to the applicant's argument that she faces risk associated with her violation of China's one-child policy, the PCDO relied on the Burton Report and the fact that the applicant had already been subjected to a forced tubal ligation and had already paid the fines for having two "extra" children, to find that the applicant could be returned to China without concern.

[8]                 The PCDO concluded as follows:

I note that documentation on China indicates that human rights conditions are not very favourable, but this in itself is not sufficient to find the applicant at risk. There must be a link between the individual's case and above. There is insufficient information between her own particular situation and China's country conditions to support that she would be specifically targeted or subjected to an objectively identifiable risk if she returned to China.

DECISION:

Based on the evidence before me, I do not see a reasonable possibility the applicant would be at risk should she be removed to China. The applicant is not a member of the PDRCC class.

Issues

[9]    The applicant raises the following issues:

1)         Did the PCDO breach the duty of fairness by failing to disclose to the applicant her risk analysis prior to reaching her decision?

2)         Did the PCDO breach the duty of fairness by failing to disclose to the applicant the documents relied on in her risk analysis, thereby depriving the applicant of the opportunity to respond to the materials in question prior to reaching her decision? and,

3) Did the PCDO fetter her discretion in by relying on the CRDD's assessment of the applicant's credibility instead of making her own independent determination?

The third issue was not pursued in oral argument, therefore, I will focus exclusively on the first two issues raised.

Analysis

Issue # 1

Did the PCDO breach the duty of fairness by failing to disclose to the applicant her risk analysis prior to the PCDO reaching her decision?

[10]            The applicant relies on the recent decision of the Federal Court of Appeal in Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 854 for the proposition that the PCDO had a duty to disclose her risk analysis report to the applicant and to allow the applicant an opportunity to respond to the findings contained therein prior to rendering a decision.

[11]            Lemieux J. has held that the duty of fairness does require disclosure in these situations. In Soto v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1207 Lemieux J. held that the PCDO is required to provide the applicant with an opportunity to comment on the risk assessment and address any possible errors before the final determination is made. He stated at paragraph 19:

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.

[12]            Subsequently, McKeown J. faced the same issue in Mia v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. 1854. McKeown J., however, was of the opinion that the duty of fairness does not require disclosure of the risk assessment by the PCDO. He addressed the holding in Soto, supra, as follows at paragraph 11:

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.

[13]            With respect, I agree with McKeown J.. In Haghighi, the Federal Court of Appeal considered the decision of an immigration officer on a humanitarian and compassionate ("H & C") application. In assessing the application, the immigration officer relied on a risk assessment opinion prepared by a PCDO at the request of the immigration officer. The risk assessment in Haghighi was not the decision under review. The issue was whether the report prepared by the third party, the PCDO, should have been disclosed to the applicant for comment before the immigration officer made a final determination on the H & C application. The Court held that the duty of fairness requires that the applicant be provided with an opportunity to fully and fairly present his case. The Minister had breached this duty because the applicant had not been afforded an opportunity to respond to the PCDO's report before the final H & C determination was made.

[14]            Therefore, while Haghighi held that the PCDO's risk assessment should have been disclosed to the applicant even though it contained no facts, or allegations of fact, that were not within the knowledge of the applicant (by virtue of being publicly available to him), this holding must be limited to the facts upon which it was based. Disclosure was required, in the Court's view, because immigration officials are likely to give "decisive weight" to the opinions of PCDOs as a result of their relative expertise in assessing risk.

[15]            Otherwise, Evans J. notes in Haghighi, supra, at paragraph 36, "... the influence on the decision maker of the submissions that [the applicant] made in support of their application is likely to be greatly diminished by the [PCDO's] report".

[16]            On the facts before me, the PCDO's "risk analysis" comprises the reasons for the decision under review. I share McKeown J.'s concern that to accept the applicant's argument on this point would be to require administrative decision-makers to issue draft reasons to applicants prior to releasing their decisions.

[17]            For these reasons, I conclude that the duty of fairness was not breached when the PCDO failed to disclose the risk assessment to the applicant before making her determination.

Issue # 2

Did the PCDO breach the duty of fairness by failing to disclose to the applicant the documents relied on in her risk analysis, thereby depriving the applicant of the opportunity to respond to the materials in question prior to the PCDO reaching her decision?

[18]            The applicant submits that recent jurisprudence has expanded the duty of fairness to require the disclosure of all documents regarding general country conditions, regardless of when they became publicly available, on which the PCDO intends to rely prior to reaching a decision.   

[19]            The applicant complains that, in the present case, the PCDO put undue weight on the Burton Report. This report was prepared by political counsellor Dr. Charles Burton based on a four-day fact-finding mission to Fujian at the end of January 2000. During his visit, Dr. Burton met with officials from Fuzhou and interviewed several "illegal emigrants who had been returned from abroad".

[20]            The applicant disputes the reliability of the findings contained in this report. The applicant submits that she was entitled to receive notice that the PCDO intended to rely on the Burton Report and the duty of fairness requires that she be afforded the opportunity to point out the weaknesses of the Burton Report prior to the PCDO reaching her decision.

[21]            The respondent maintains that all the documents relied upon by the PCDO were either submitted by the applicant or were publicly available at the time the applicant filed her submissions. Accordingly, the duty of fairness did not require disclosure of the documents prior to a decision being reached. The respondent is correct with respect to the factual assertion. Although there was some confusion about the exact date the Burton Report became available to the public, it is clear that it was made available after the date the applicant's refugee claim was rejected and before the dates the applicant filed her application and submissions for consideration as a member of the PDRCC class.

[22]            The Federal Court of Appeal decision in Mancia v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 461 established a framework for approaching this issue. With respect to documents regarding general country conditions relied upon by the PCDO that were publicly available at the time the applicant's submissions were made, the duty of fairness does not require the PCDO to disclose the documents to the applicant in advance of rendering a decision. The onus is on the applicant to canvass the documentary evidence and to address any concerns in the submissions filed with the application.

[23]            With respect to documents relied upon by the PCDO that became publicly available after the filing of the applicant's submissions, the Court in Mancia identified two criteria that, if satisfied, would require disclosure. The duty of fairness would require the disclosure of the documents to the applicant "... where they are novel and significant and where they evidence changes in the general country conditions that may affect the decision".

[24]            Therefore, if I were to apply the framework developed in Mancia to the facts in this case, the duty of fairness would not require the PCDO to disclose to the applicant the documents she intended to rely on in her determination. All of the documents, including the Burton Report, were publicly available at the time the applicant filed her submissions.

[25]            The applicant submits, however, that the Federal Court of Appeal in Chu v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 554 overruled its earlier decision in Nadarajah v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 283. Since the Federal Court of Appeal in Nadarajah applied Mancia, the applicant argues that, by extension, Mancia is also overruled. The applicant relies on the following statement by Rothstein J.A. in the Federal Court of Appeal case of Chu, supra at paragraph 10:

As noted earlier, the certified question in this case related to whether there was a duty to disclose country information documents to the appellant that had been neither specifically identified nor previously provided to him. The answer with respect to the Ministerial Opinion Report is equally applicable to other documents submitted by Ministry officials to the Minister's delegate. Any documents submitted to the Minister's delegate by Ministry officials acting in an adversarial role to the appellant must generally be disclosed to the appellant, or at least must be specifically identified if the documents are generally available. In this respect, prior decisions such as Chu (T.T.) v. Canada (Minister of Citizenship and Immigration) (1998), 225 N.R. 378 (F.C.A.), leave to appeal refused by Supreme Court of Canada, [1998] S.C.C.A. No. 330, (1998), 236 N.R. 387, and Nadarajah v. Canada (MCI) (1996), 33 Imm. L.R. (2d) 234 (F.C.T.D.), have been overtaken by Baker and Bhagwandass.

[26]            McKeown J. has recently had occasion to consider the impact of the Chu decision in Khanam v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1497. The decision under review before McKeown J. was that of a PCDO who had relied on a document regarding general country conditions that post-dated the applicant's submissions. McKeown J. considered the decision in Chu and distinguished it from the matter before him. He noted that Chu concerned the duty of fairness within the context of the danger opinion process. He then contrasted the PDRCC process with the danger opinion process noting the adversarial nature of the latter and that there is no lis inter partes in the PDRCC process. As well, unlike the danger opinion process where ministry officials submit reports to the decision maker, the PCDO does not obtain reports from third parties adverse in interest to the applicant. He remarked that in the PRDCC context applicants are informed at the outset what documents will be relied upon in the decision-making process. He also noted the fundamental difference between the PDRCC and danger opinion contexts in that a PDRCC decision does not necessarily facilitate the removal of an applicant. Therefore, having distinguished the danger opinion process from the PDRCC process, McKeown J. held that, with respect to the duty of fairness owed by the PCDO, the approach articulated in Mancia still applies.

[27]            However, it would appear from the reasons in Khanam that a narrower argument put forward by the applicant in the present case was not advanced in that case. The applicant maintains that Rothstein J.A.'s statement in Chu that Nadarajah has been overtaken by Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 and Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 341 means that the earlier jurisprudence of the Federal Court of Appeal, including Mancia has been overruled.

[28]            I do not accept this argument. First, as argued by the respondent, the decision in Chu is limited on its facts to the danger opinion process. Second, Rothstein J.A. referred to the Federal Court, Trial Division, decision in Nadarajah and not to the subsequent decision of the Federal Court of Appeal in the same case. In the Trial Division reasons in Nadarajah v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 649 the Court framed the issue as follows:

The issue in this judicial review is whether information on country conditions that was not in the applicants' immigration files, but is considered in a PDRCC risk assessment, constitutes extrinsic evidence requiring the Post-claim Determination Officer to inform the applicants that such information would be considered, and provide them with an opportunity to respond.

[29]            The focus was on whether information on country conditions constituted extrinsic evidence. The Court concluded that having regard to the minimal duty of fairness according to Shah v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1299 unless the country conditions information is not public and is material to the decision, the PCDO's failure to disclose the material prior to reaching a decision did not amount to a breach of the rules of procedural fairness.

[30]            In Bhagwandass, a danger opinion case, Sharlow J.A.applied the reasoning of the Federal Court of Appeal in Haghighi stating at paragraph 22:

Haghighi also establishes that, in considering whether the duty of fairness requires advance disclosure of an internal Ministry report on which a decision maker will rely in making a discretionary decision, the question is not whether the report is or contains extrinsic evidence of facts unknown to the person affected by the decision, but whether the disclosure of the report is required to provide that person with a reasonable opportunity to participate in a meaningful manner in the decision-making process...

[31]            For these reasons, Rothstein J.A's comments in Chu, in my opinion, cannot be taken as having overruled Mancia but instead reflect Rothstein J.A's view that the analysis has changed. The test is no longer whether the evidence at issue is extrinsic evidence but whether disclosure is required to provide an individual with a meaningful opportunity to participate in the process.

[32]            The applicant argues, however, that since Mancia predates the Supreme Court of Canada decision in Baker, which expanded the duty of fairness, it is no longer good law. In essence, the applicant submits that the duty of fairness now requires the disclosure to the applicant of the general country conditions documentation to be relied on in the PDRCC determination.

[33]            The broad principle I take from Mancia is as follows. Extrinsic evidence must be disclosed to an applicant. Fairness, however, will not require the disclosure of non-extrinsic evidence, such as general country conditions reports, unless it was made available after the applicant filed her submissions and it satisfies the other criteria articulated in that case.

[34]            In my view, both of these "rules" share a single underlying rationale. Fairness requires that documents, reports, or opinions of which the applicant is not aware, nor deemed to be aware, must be disclosed.

[35]            The underlying rationale for the rule established in Mancia, in my opinion, survives Haghighi and Bhagwandass. The principle of those cases, generally stated, is that the duty of fairness requires disclosure of a document, report or opinion, if it is required to provide the individual with a meaningful opportunity to fully and fairly present her case to the decision-maker.

[36]            Therefore, while it is clear that the distinction between extrinsic and non-extrinsic evidence is no longer determinative of whether the duty of fairness requires disclosure, the rationale behind the rule in Mancia remains. I arrive at this conclusion because even in recent jurisprudence, applying the post-Baker framework for defining the duty of fairness, the overriding concern with respect to disclosure is whether the document, opinion, or report is one of which the individual is aware or deemed to be aware.

[37]            For example, in Haghighi, the Federal Court of Appeal held that an officer making a decision on an H & C application had an obligation to disclose that a risk opinion was obtained from a PCDO because the applicant did not know that such an opinion was being sought from another officer and did not have an opportunity to respond. Sharlow J.A. in Bhagwandass adopts the language from Haghighi to note that whether disclosure is required should be centred around the goal of ensuring that the person affected by the decision is afforded "... a reasonable opportunity to participate in a meaningful manner in the decision-making process ...".

[38]            Was the applicant in the present case afforded an opportunity to fully and fairly present her case to the PCDO? The applicant submits that she was denied this opportunity. In essence, the applicant wishes to challenge the reliability of the findings in the Burton Report. She argues that the report is not consistent with the other documentary evidence which was available to the PCDO and should not have been accorded the weight it was in her determination.

[39]            Therefore, while the applicant framed her argument in the language of disclosure, her complaints with respect to the reliability of the documents and the inconsistencies among them are related to the degree of weight accorded to them by the PCDO, not to their disclosure.

[40]            For example, the applicant's written submissions state as follows:

The reliability of the sources of Dr. Burton's information is highly questionable as are the other means by which he draws the conclusions reached in his report. We therefore submit that the report itself is unreliable and should not have been accorded the weight it was by the PCDO in the Decision.

[41]            The applicant was offered an opportunity to address her concerns with the Burton Report in her submissions to the PCDO. The report was available both in public IRB documentation centres and on the IRB website. On the "Application for Consideration Under the Post-Determination Refugee Claimants in Canada Class", the applicant is informed that:

With regard to the information on current conditions in the country of return, the officer may refer to the most recent material available at the Immigration and Refugee Board documentation centres, as well as to information available from other public sources. ...

[42]            Therefore, the document that the applicant argues should have been disclosed to her is one of which she is deemed to have been aware. If the applicant was concerned about the unreliability of the Burton Report, she could have made submissions to the PCDO outlining those concerns and submitting that the PCDO should place little weight on the document.

[43]            I cannot find, in these circumstances, that the applicant was denied a full and fair opportunity to present her case. The applicant was provided with the opportunity to make submissions in support of her application. The material in question was reasonably available to the applicant at the time she made her submissions.

[44]            Therefore, as stated earlier, I do not accept the applicant's argument that Chu overrules Mancia, however, I do accept the argument that the approach to disclosure as articulated in the earlier jurisprudence has been altered by the Supreme Court of Canada decision in Baker and subsequent decisions of this Court. However, I am not satisfied that the principles of fairness as enunciated in Baker, Haghighi andBhagwandass extend so far as to require disclosure in the circumstances of this case. In other words, the PCDO was not obligated to disclose publicly available documents describing general country conditions of which the applicant is deemed to have been aware in advance of rendering her decision.

[45]            Accordingly, the application for judicial review is dismissed.

[46]            The following questions submitted by counsel for the respondent, are certified as questions of general importance:

1.         Is a Post Claim Determination Officer assessing an application for membership in the Post-Determination Refugee Claimants in Canada class under subsections 2(1) and 11.4 of the Immigration Regulations, SOR/78-172 required to disclose his or her risk assessment decision to the applicant, and provide the applicant with an opportunity to respond to the decision, prior to making a final decision on the application?

2.         Is a Post Claim Determination Officer assessing an application for membership in the Post-Determination Refugee Claimants in Canada class under subsections 2(1) and 11.4 of the Immigration Regulations, SOR/78-172 required to disclose publicly available country conditions documentation to the applicant, and provide the applicant with an opportunity to respond to the documentation, prior to making a final decision on the application?

                                                                                "Dolores M. Hansen"            

                                                                                                      J.F.C.C.                      

OTTAWA, ONTARIO

March 8, 2002