Chowdhury v. Canada (Minister of Citizenship and Immigration), 2002 FCT 389

                                                                                                                                         DATE: 20020409

                                                                                                                             Docket:    IMM-2240-01

                                                                                                                Neutral citation: 2002 FCT 389

Ottawa, Ontario, this 9^th day of April, 2002

PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                          SHAHED CHOWDHURY, HUSNA AKTHER CHOWDHURY

                                              and TAHLIL MUNTAHI CHOWDHURY

                                                                                                                                                      Applicants

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review of a decision of Immigration Officer M. Bilucaglia (the "Officer"), dated April 11, 2001, wherein the Officer determined that the applicants are not members of the Post-Determination Refugee Claimants in Canada Class ("PDRCC"), as defined in ss. 2(1) of the Immigration Regulations, 1978 SOR/93-44, (the "Regulations").

[2]                 The principal applicant, his wife and son, all citizens of Bangladesh, arrived in Canada on October 18, 1999, and claimed refugee status on January 31, 2000. The Convention Refugee Determination Division ("CRDD") denied their application with written reasons on October 10, 2000. The members of the panel determined that the applicants were not credible and trustworthy witnesses.

[3]                 The applicants then applied to be considered under the Post-Determination Refugee Claimants in Canada Category. This application was denied by letter dated April 11, 2001. The Officer's notes on file were attached to the letter of denial.

[4]                 The principal applicant submits that the officer's notes, which he categorizes as a report, were never sent to him and consequently was not given the opportunity to comment on these attached documents before the Officer made a negative decision. The principal applicant further contends that there are many inaccuracies in the attached "new" documents that he could have corrected had he been given the opportunity, yet no attempt was made to point out specific areas of concern or their relevance to the visa officer's decision. Nevertheless, the applicants argue that they were denied natural justice and procedural fairness.

[5]                 The only issue to be determined on this judicial review is whether the respondent violated principles of procedural fairness by not disclosing the Officer's notes and attachments to the applicants for consideration and response before making the negative PRDCC decision.

[6]                 Should it be determined that the principles of procedural fairness have been violated, then a court on judicial review may intervene.

[7]                 The applicants rely essentially on two decisions of the Court of Appeal to advance their argument, namely Bhagwandass v. Canada (Minister of Citizenship and Immigration), (2001) 268 N.R. 337, and Haghighi v. Canada (Minister of Citizenship and Immigration), (2000) 257 N.R. 139. The applicants contend that these decisions stand for the proposition that a Post Claim Determination Officer (PCDO) has an obligation to disclose notes, on file, before the decision is made.

[8]                 In Haghighi, supra, the issue was whether an officer making a decision under a humanitarian and compassionate (H & C) application had an obligation to disclose that a risk opinion was obtained from a PDCO before making the H & C application. The Court of Appeal held that the applicant, in that case, did not know that a risk opinion was being sought from another officer and that such extrinsic evidence should, in fairness, have been disclosed.

[9]                 In Bhagwandass, supra, the Minister's delegate formed an opinion, pursuant to ss. 70(5) of the Immigration Act, R.S.C. 1985, c. I-2, that the applicant was a danger to the public. The request for the Minister's Opinion and Ministerial Opinion Report were not disclosed to the applicant. The Court of Appeal held that the Minister had breached a duty of fairness by failing to disclose to the applicant the request and the report. The Court held that a person affected by the report was entitled to a reasonable opportunity to participate in a meaningful manner in the decision making process and, hence, was entitled to the request and the report so that he could respond. The Court further decided that the danger opinion procedure is adversarial and therefore a higher standard of fairness than that applicable to an H & C application is warranted.

[10]            The respondent argues that the two above cases relied on by the applicants can be distinguished from the case at bar on their facts. The respondent contends that the applicants in this case are not unaware that the PCDO is going to form an opinion about risk, the very opinion that the applicants have asked the Officer to make. The respondent further argues that the Officer in this case, unlike in the Haghighi case, did not solicit an opinion from a third party, or rely on it without notifying the applicants. The respondent contends that the Officer who formed the opinion on risk is the same Officer who made the decision, in other words, the risk opinion is the decision.

[11]            The respondent also states that the applicants' position is untenable, since it would impose on an administrative decision maker an obligation, in every case, to circulate "draft reasons" for review and comment before they are able to make a decision. This very issue was considered by the Court of Appeal in Bhagwandass, supra, where the Crown advanced a similar argument. At paragraph 34 of her reasons, Madame Justice Sharlow, on behalf of the Court, wrote:

What is sought in this case is disclosure of the Ministerial Opinion Report and the Request for Minister's Opinion when they are completed as far as the signatures of the reviewing officer and senior analyst, and before they are submitted to the Minister. At that point in time, they were not and could not be the reasons for rendering the danger opinion, because no opinion had been rendered. The Minister or Minister's delegate accepted the recommendation of the Ministry officials as set out in the two reports and rendered the danger opinion, and could have adopted the reports as the reasons for doing so. Whether the reports were so adopted in this case is a factual question that does not need to be addressed because the merits of the danger opinion itself are not in issue.

[12]            I am of the view that the Court of Appeal clearly distinguished between the notes of the decision maker which may be considered reasons and notes prepared for the purpose of providing an opinion to the ultimate decision maker. This distinction is noteworthy, since it can be inferred from it that the Court is not necessarily extending the principle of disclosure to notes that are considered to be the reasons of the ultimate decision maker.

[13]            The jurisprudence of this Court, before the Supreme Court of Canada decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, did not question the practice of PDRCC officers relying on publicly available documents in making a decision and consistently found that fairness does not require an officer to disclose documents of this nature in advance of determining the matter. (Mancia v. Canada (M.C.I.), [1998] 3 F.C. 461 (C.A.); Nadarajah v. Canada (M.C.I.) (1999), 237 N.R. 15 (F.C.A.); Dervishi v. Canada (M.C.I.) (1999), 236 N.R. 376 (F.C.A.)). The question is whether the principles in these cases remain applicable following the Supreme Court of Canada's decision in Baker, supra.

[14]            The Federal Court of Appeal in Chu v. Canada (M.C.I.), 2001 F.C.A. 113, online: QL, another danger opinion case, followed Bhagwandass and held that the Minister breached the duty of fairness by failing to disclose to the applicant a summary report in the form that it was presented to the Minister's delegate and in failing to afford him a reasonable opportunity to respond to it. The Court also answered a certified question which dealt with whether a decision-maker is obliged to disclose documentary evidence regarding country conditions that has not been disclosed to a Convention Refugee who is the subject of a danger opinion. In answering the question in the affirmative the Court stated 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.

[15]            Mr. Justice McKeown in Khanam v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1497, online: QL, distinguished the Chu, supra, decision and stated that the duty of fairness in Chu was considered in the context of a danger opinion process. He then contrasted the PDRCC process with the danger opinion process noting the adversarial nature of the latter.

[16]            I am in agreement with the analysis by McKeown J. in Khanam, supra, as to the distinction between the PDRCC process and the danger opinion process.

[17]            I am also in substantial agreement with the respondent's submissions on this issue. I am of the view that the ratio in Chu, supra, is limited to the danger opinion context, and not applicable to PDRCC decisions. The PDRCC process can be distinguished from the danger opinion process in that documents relied on by the officer are not submitted to Ministry officials acting in an adversarial role to the applicants. The PDRCC process is related to the refugee determination process and complementary to the H & C process, both of which are not adversarial, as opposed to the process in the context of a danger opinion characterized by the Court of Appeal in Chu, supra, as adversarial. The danger opinion process is designed to have officers seek the removal of dangerous criminals from Canada. The PDRCC officer's role is different. He must consider the applicant's submissions and the publicly available documentation, and determine whether the applicant is a member of the PDRCC class.

[18]            In the case at bar, the documents considered by the Officer are in the public domaine, are general by their very nature, and are not prepared as part of a case "against" an applicant. The PDRCC process is non-adversarial and the notes prepared by the Officer were not prepared as tools of advocacy but, rather, are in effect the Officer's reasons prepared and dated on the same day as the letter of denial. This matter can be distinguished from both the Haghighi and Bhagwandass decisions on its facts.

[19]            I am of the view that, on the facts of this matter, the principles enunciated in Haghighi, supra, do not extend to recognize an obligation on an officer to disclose to an applicant notes that include; the risk(s) identified by the applicant(s), the officer's analysis of his decision and the publicly available references relied upon. I am of the view, again, on the facts of this matter, that the principles regarding the duty of fairness that were enunciated by the Supreme Court of Canada, in Baker, supra, do not extend that far.

[20]            For the above reasons, this judicial review will be dismissed.

[21]            The applicants have requested that I consider the following two proposed questions for certification:

"Are the procedural rights of applicants under the PDRCC programme less or different or non-existent in comparison to those under the H & C and Danger to the Public processes even though the Federal Court of Appeal in Haghighi and Bhagwandass, following Baker decision of the Supreme Court of Canada and now buttressed by the Suresh decision of the Supreme Court of Canada, that procedural fairness requires the disclosure of the PCDO's report and the Ministerial Reports as the case may be, before a negative decision is made?"

"Are the procedural rights of applicants under the Immigration Act, dependent on whether the decision is made by an PCDO, H & C officer or Minister's delegate relating to the Danger to the Public opinion even though the consequenses [sic] of the decision maker?"

[22]            The respondent proposes the following question for certification:

"Do the principles of procedural fairness require that the PCDO disclose the risk assessment decision to the person concerned for comment prior to the decision on the PDRCC application being considered final?"

[23]            I have considered the written submissions of both parties on the above proposed questions for certification. I am satisfied, on the facts of this case, that a serious question of general importance is raised pursuant to subsection 83(1) of the Immigration Act, 1985, 1985, c. I-2. I therefore propose to certify the following question:

"Do the principles of procedural fairness require that the PCDO disclose notes she or he made in relation to her or his risk assessment decision to the person concerned for comment prior to the decision on the PDRCC application being considered final?"

                                                                            ORDER

THIS COURT ORDERS that:

1.         The application for judicial review of the decision of Immigration Officer M. Bilucaglia, dated April 11, 2001, is dismissed.

2.                    The following question is hereby certified:

"Do the principles of procedural fairness require that the PCDO disclose notes she or he made in relation to her or his risk assessment decision to the person concerned for comment prior to the decision on the PDRCC application being considered final?"

                                                                                                                                "Edmond P. Blanchard"             

                                                                                                                                                               Judge