Khan v. Canada (Minister of Citizenship and Immigration), 2002 FCT 431

Date: 20020415

Docket: IMM-2483-01

Neutral citation: 2002 FCT 431

OTTAWA, ONTARIO this 15th day of April, 2002

Present:           The Honourable Mr. Justice Beaudry

BETWEEN:

   KANAK KHAN

        Applicant

   and

   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

    Respondent

                          REASONS FOR ORDER AND ORDER

[1]                 This is a judicial review under subsection 82.1 of the Immigration Act, R.S.C. 1985,        c. I-2 (the "Act") of a decision of the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board (IRB) dated May 1, 2001, in which the CRDD found that Kanak Khan (the "Applicant") is not a Convention refugee. The Applicant requests that the Court set aside the decision of the tribunal and refer the matter back to the tribunal for a de novo hearing.

[2]                 In my view, the failure of the Minister to provide the Applicant with a copy of the reports of the bone age determination tests denied the Applicant a full and fair opportunity to respond to important evidence, which in turn led to a negative credibility finding by the CRDD. As this credibility finding forms the basis for the CRDD's decision, the decision must be set aside, and a new hearing will be ordered.

FACTS

[3]                 The Applicant is a citizen of Bangladesh. Her passport indicates that she is currently 19 years old (date of birth: May 14, 1982), although this is very much in dispute. Her mother was admitted to Canada as a Convention refugee on the basis of domestic violence suffered at the hands of the Applicant's father, and currently resides in Montréal as a landed immigrant. The Applicant's father and brother still live in Bangladesh. The Applicant claims Convention refugee status on the basis of her membership in a particular social group. Specifically, she alleges a fear that her father will forcibly marry her to someone against her will as a means of absolving his financial debts.

CRDD DECISION

[4]                 The CRDD found that the Applicant was not 18 years old as she claimed to be at the hearing. In this respect, the CRDD accepted a memorandum by a visa officer in Singapore referring to the results of a bone age determination test conducted in 1999 that placed the Applicant's age at approximately 22 years. The CRDD emphasized that, despite the Applicant being aware of these test results for approximately two (2) years, and despite her counsel having a copy of the visa officer's memorandum for four (4) months prior to the hearing, no attempt had been made to contradict the findings. The CRDD rejected the Applicant's argument that a visa officer was not competent to interpret the medical report and found no valid reason to discount the test results.

ARGUMENT

[5]                 The Applicant submitted that the CRDD breached its duty to be fair per s. 68(2) of theAct by failing to rule on her solicitor's request that the actual bone scan test results be made available to the CRDD. When asked at the CRDD hearing why the request for the original medical report had not been made earlier, counsel for the Applicant stated that the Applicant's case had been evaluated at an Accelerated Hearing Process on October 18, 2001, after which the Applicant was asked to file additional identification documents. The Applicant subsequently filed her Bangladeshi passport and her student card with the CRDD. The Applicant alleged that her counsel had been led to believe that the filing of the additional documents would dispense with the need to dwell on the findings of the visa officer.

[6]                 However, during the pre-hearing conference it was made clear by the CRDD that, as the findings were not those of the visa officer but rather the reported results of a medical test, they would be considered. Counsel then requested an opportunity to examine the actual test results prior to the CRDD rendering a decision. The CRDD took the matter under reserve and promised to make a ruling on the request "a little later". Counsel at the CRDD hearing reiterated his concerns about the medical evidence in closing arguments, arguing that the CRDD should not base its decision on that evidence as it was hearsay, it was incomplete and it was unreliable in the absence of the actual medical report. According to the Applicant, no ruling was ever made on the motion.

[7]                 The Respondent argued that it is clear from the face of the Decision that the motion is the first item on which the CRDD renders reasons. In this regard, the Respondent cited the following passage from the Decision:

Based on the evidence before me, I do not believe that the claimant is 18 years old, as she alleges. Counsel for the claimant argues that I should not accept the contents of Exhibit M-3, in which the Visa Office in Singapore provides a report that says the results of the medical tests undertaken on the claimant show that the claimant was approximately 22 years old, as opposed to the 16 years of age the claimant alleged at the time the tests were taken. The claimant had been aware of these results for approximately two years prior to the date of the hearing. She has been in Canada since July of 2000. Counsel was sent copies of these exhibits four months prior to the hearing, in November of 2000. No attempt has been made to contradict the original medical findings. I reject counsel's argument that a visa officer would be incompetent to interpret the findings of a medical report which states that the claimant was more likely 22 years old than 16. I find no valid reason to discount the contents of Exhibit M-3.

[8]                 The Applicant noted that the CRDD, in reaching its adverse credibility finding with regard to the Applicant's age, refused to accept the Applicant's testimony or documentary evidence. Rather, the CRDD relied on the evidence filed by the Minister, the Computer Assisted Immigration Processing System (CAIPS) notes and the visa officer's memorandum regarding the medical tests undergone by the Applicant. The Applicant submitted that, in the absence of the actual medical reports or any evidence regarding the reliability of bone scan tests, and in the absence of a Minister's representative being made available at the hearing for cross-examination, the evidence of the Applicant should have been preferred.

[9]                 The Respondent emphasized that neither the Applicant's mother, nor the Applicant, nor her brother have ever contested the visa officer's decision to reject the Applicant and her brother as dependents. The Applicant knew that her previous attempts to come to Canada as an immigrant and her alleged falsehoods about her age would be factors affecting her credibility as a refugee claimant. The Applicant and her counsel were provided with copies of the CAIPS notes and the visa officer's memorandum regarding the Applicant's age in due time for comment or for the preparation of responding evidence.

[10]            The Respondent also disputed any claim that the visa officer's evidence should not have been admitted. The Respondent argued that the visa officer's memorandum was not submitted for the truth of its contents, but rather as evidence that the Applicant had, in the past, given incorrect information about her age. The relevance is therefore found, not in the visa officer's conclusions regarding the Applicant's age, but rather, in the conclusions about the Applicant's truthfulness.

[11]            Moreover, the Respondent submitted, it was in this regard that the CRDD used the visa officer's decision: all the visa officer's memorandum did was raise some doubts as to the bona fides of the Applicant's claim for refugee status. The fact that the Applicant was willing to give incorrect information as to her age in order to be admitted into Canada raised concerns about what she might be prepared to say at a hearing in order to be granted refugee status. The questioning of the Applicant with regard to her age was done to test the reliability of the age evidence. And it is clear from the Decision that the Applicant's testimony, rather than being ignored as the Applicant alleged, was crucial in the CRDD's evaluation of the age evidence, albeit in a detrimental way. The Respondent asserted that the questioning of the Applicant is indicative that the CRDD would have accepted an explanation had it been reasonable, but no reasonable explanation was forthcoming.

[12]            The Respondent added that, regardless of the purpose of the visa officer's memorandum, s. 68(3) of the Act permits its admission into evidence:

The Respondent also noted case law that interpreted s. 68(3) to allow hearsay and admit evidence in the absence of an opportunity for cross-examination.

ANALYSIS

[13]            In my view, natural justice requires that, if the CRDD wants to premise an adverse credibility finding on the fact that a claimant is lying about her age, the claimant must have the opportunity to confront the medical evidence on which the CRDD relies. It was not sufficient that the Applicant was provided with the visa officer's memorandum and CAIPS notes. The requirements of fairness are such that the Applicant should have had access to a copy of the medical reports on the bone scan results in order to challenge them directly, if she so chose. I conclude that the failure to provide the Applicant with a copy of the medical tests deprived her of a proper opportunity to respond to the case against her. Moreover, unlike other circumstances in which there are competing public policy interests that favour non-disclosure, there are no privilege or privacy considerations in this case that would preclude the Applicant from seeing her own medical report.

[14]            While I disagree with the Respondent's submission that the CRDD did in fact rule on the motion in its Decision, my conclusion on this point is not material to the outcome of this case. My decision in this case is not based on whether or not the CRDD's failure to rule on a motion breaches the Applicant's right to fairness, but rather whether the failure to provide the Applicant with a copy of the medical findings was a breach of fairness.

[15]                  The duty of fairness is derived from both statute and common law. While the rules of evidence are considerably more flexible at the CRDD than in a courtroom, fairness cannot be compromised. Section 68(2) of the Act imposes a statutory limit on evidentiary flexibility:

[16]            The content of the duty of fairness varies from context to context. In order to determine what fairness requires in a particular administrative context, the Supreme Court of Canada suggests, in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at 838-840, that the following factors are to be considered:

(17)            Whether the decision and administrative process is more adjudicative or more policy-oriented;

(18)            The statutory context in which the decision was made;

(19)            The importance of the decision to the person(s) affected;

(20)            The legitimate expectations of the parties with regard to the process; and

(21)            The particular procedures adopted by the administrative body.

These principles were applied in Suresh v. Canada (M.C.I.), [2002] S.C.J. No. 3, paragraph 115:

What is required by the duty of fairness - and therefore the principles of fundamental justice - is that the issue at hand be decided in the context of the statute involved and the rights affected: Baker, supra, at para. 21; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, per Sopinka J. More specifically, deciding what procedural protections must be provided involves a consideration of the following factors: (1) the nature of the decision made and the procedures followed in making it, that is, "'the closeness of the administrative process to the judicial process '"; (2) the role of the particular decision within the statutory scheme; (3) the importance of the decision to the individual affected; (4) the legitimate expectations of the person challenging the decision where undertakings were made concerning the procedure to be followed; and (5) the choice of procedure made by the agency itself: Baker, supra, at paras. 23-27. This is not to say that other factors or considerations may not be involved. This list of factors is non-exhaustive in determining the common law duty of fairness: Baker, supra, at para. 28. It must necessarily be so in determining the procedures demanded by the principles of fundamental justice.

[17]       Balancing these considerations, I cannot help but come to the conclusion that an

extensive duty of fairness is applicable to the procedures of the CRDD.

[18]       In Nrecaj v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 630 (F.C.T.D.) at 636, paragraph 14, Gibson J. held that:

The ability of a claimant to Convention refugee status ‘to make full answer and defence' to evidence adduced against his or her claim or to impeach his or her credibility is of critical importance since the claim must be based on a well-founded fear of persecution if the claim is to be recognized. [...]

Justice Gibson then went on to recognize that the principles regarding disclosure pronounced by the Supreme Court of Canada in R. v. Stinchcombe, [1991] 3 S.C.R. 326, were applicable to CRDD proceedings.

[19]       In Haghighi v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1367, 174 F.T.R. 123 (F.C.T.D), an immigration officer relied on the report of a post-claims determination officer (PCDO), who, in turn, had relied on a U.S. Department of State (DOSS) Country Report, without disclosing these reports to the applicant. Gibson J. allowed the application for judicial review, stating the threshold question as follows, at paragraph 15:

[...] the question has become whether the Immigration Officer, in failing to share a document such as the PCDO's recommendation and its rationale, and thereafter relying on it, has denied the person or persons whose interests are affected, here the applicant, "... a meaningful opportunity to present [his] case fully and fairly" or has denied the applicant "... a meaningful opportunity to present the various types of evidence relevant to [his] case and have it fully and fairly considered".

In my view, the disclosure of the medical report to the Applicant was required to provide her with a meaningful opportunity to present her case fully and fairly.

[20]       Haghighi was upheld on appeal, [2000] 4 F.C. 407 (F.C.A.), and, at page 417, paragraph 20, the Court of Appeal clarified that:

[...] the PCDO's report "contained no facts, or allegations of fact, that were not within the knowledge of Mr. Haghighi.[...]

The Court of Appeal then clarified the central question, at page 419, paragraph 26:

[...] whether the disclosure of the report was required to provide Mr. Haghighi with a reasonable opportunity in all the circumstances to participate in a meaningful manner in the decision-making process.

The Court went on to list a series of relevant considerations, a test that was restated the following year in Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 3 (F.C.A.), at paragraph 22:

[...] The factors that may be taken into account in that regard may include the following: (i) the nature and effect of the decision within the statutory scheme, (ii) whether, because of the expertise of the writer of the report or other circumstances, the report is likely to have such a degree of influence on the decision maker that advance disclosure is required to "level the playing field", (iii) the harm likely to arise from a decision based on an incorrect or ill-considered understanding of the relevant circumstances, (iv) the extent to which advance disclosure of the report is likely to avoid the risk of an erroneously based decision, and (v) any costs likely to arise from advance disclosure, including delays in the decision-making process.

[21]       This last factor seems to consider the Court's earlier decision in Siad v. Canada (Secretary of State), [1997] 1 F.C. 608 (F.C.A.) at 619, paragraph 20, in which it was held that:

Counsel cannot be permitted, by his or her lack of diligence, to delay the proceeding. It was not unfair for the Tribunal to deny counsel's belated request for disclosure when to grant it would have resulted in delay which was entirely preventable by the exercise of reasonable diligence.[...]

[22]       In this case, however, I have concluded that the lateness of the Applicant's request that the medical report be made available cannot vitiate the duty of fairness required. I accept the Applicant's argument that her counsel reasonably expected that the filing of documentary evidence of her age would be sufficient to dispose of any question regarding this issue. Furthermore, the delay is somewhat illusory: counsel for the Applicant made his motion as soon as he was made aware that the CRDD intended to rely on the visa officer's report.

[23]       Counsel for the respondent sought certification of the following question:

"Whether the Board erred by admitting the visa officer's letter and his notes in evidence and in relying on this evidence, among other things, to dismiss the Applicant's claim on the basis of concerns as to her credibility, without allowing the Application additional time to get a copy of the medical bone density test on which the visa officer based his evaluation of the applicant's age, given that the Applicant had ample time to do so prior to the hearing?"

[24]       The Applicant's counsel disagreed that this question be certified.

[25]       I do not find that this question is a serious question of general importance (see section

83(1) of the Act). Therefore, no question will be certified.

CONCLUSION

[21]       Since the main question here was the applicant's age and since she was not provided with

the medical information mentioned in the visa officer's report, the application for judicial review will be allowed. The decision of the CRDD dated May 1, 2001, is set aside. The matter is remitted for redetermination before a differently constituted panel of the CRDD.

                                                                            ORDER

THIS COURT ORDERS that:

1.                    The application for judicial review is allowed and the decision of the CRDD dated May 1, 2001 is hereby set aside. The matter is remitted for redetermination before a differently constituted panel of the CRDD.

2.                    No question is certified.

     "Michel Beaudry"   

Judge