Date: 19990908
Docket: IMM-4780-98
BETWEEN:
NIMA HAGHIGHI
Applicant
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an application for judicial review of a decision of an Immigration Officer determining that there were insufficient humanitarian and compassionate reasons to permit the applicant to apply for landing from within Canada on humanitarian grounds, pursuant to subsection 114(2) of the Immigration Act1. The decision is dated the 24th of July, 1998.
[2] The applicant seeks an order setting aside the decision of the Immigration Officer and referring the applicant"s application for landing from within Canada back for reconsideration by a different Immigration Officer.
[3] The applicant is a citizen of Iran. He claims to have been detained in that country by reason of his association with a member of the Mujahedin. In September of 1993, the applicant fled to Canada. At the time of his arrival in this country, he was 17 years of age. The applicant claimed Convention refugee status. That claim was rejected largely on the basis of a finding of lack of credibility on the part of the applicant. An application for leave and for judicial review of that decision was filed with this Court. The application for leave was dismissed. The applicant pursued a Post-Determination Refugee Claimant"s Class application. That application was denied and no judicial review was sought of the denial.
[4] On the 15th of October, 1997, the applicant filed his application for landing from within Canada on humanitarian or compassionate grounds. In connection with that application, he was interviewed by the Immigration Officer who made the decision here under review on the 6th of April, 1998. At that interview, the applicant first disclosed that he had converted to Christianity here in Canada in July of 1996. He urged that his conversion constituted an additional basis for his fear of return to Iran. The applicant was provided an opportunity to make additional written submissions, supported by any documentary evidence he chose to provide, with regard to this newly disclosed basis of his fear. Through counsel, he availed himself of this opportunity.
[5] As is common practice in such cases, the Immigration Officer referred the application and related submissions and supporting documentation to a Post Claims Determination Officer for a "risk opinion". The risk opinion provided concluded in the following terms:
| - no compelling evidence before me [to] conclude that the applicant would be subject to an objectively identifiable risk to life, or of extreme sanction, or of inhumane treatment if he were removed to Iran. |
In forming this opinion, the Post Claims Determination Officer relied upon the material submitted to him by the Immigration Officer, on the U.S. Department of State Country Reports on Human Rights Conditions for 1997, specifically for Iran, (the "1997 DOSS Report"), and on the applicant"s immigration file. The 1997 DOSS Report was not among the materials that had been submitted by the applicant in support of his humanitarian or compassionate grounds application.
[6] Without sharing with the applicant the negative risk opinion or advising him that the 1997 DOSS Report was relied on, the Immigration Officer reached the decision here under review. In the notes of the Immigration Officer, under the heading "Remarks" the Immigration Officer wrote in part as follows:
| ...Mr. Nima Haghighi was interviewed on 06 April 1998, and has requested consideration under section 114(2) of the Canada Immigration Act as an independent applicant. It is my opinion that insufficient grounds exist to warrant favourable consideration for processing of this case from within Canada. |
| He [the applicant] is a refused Convention refugee claimant. He had a negative PDRCC on 8 September 1997. At the H & C interview subject was asked if there was any new information since the PCDO"s decision. He stated "Yes" and the [sic] upon receipt of the information [relating to the applicant"s conversion to Christianity and the risk that arose therefrom] it was forwarded to the PCDO for an opinion. I concur with the decision that Mr. Haghighi would not be at risk if returned to Iran. |
| Subject has been in Canada since 1993 and was issued employment authorizations since May 1994. He chose not to work, and has been totally relying on social services. He has stated that he ceased welfare in July 1997 and since then became self-sufficient as his parents and friends now financially supported him. His educational upgrading is commendable and will be an asset to him in the future. His volunteer work is admirable, but insufficient grounds to warrant an exception. |
| He has no close family in Canada, but he does have his parents overseas [in Iran]. After reviewing all the information, it is my opinion that insufficient compelling H & C grounds exist in this case and no undue, undeserved, or disproportionate hardship would result if subject was required to leave Canada and apply from abroad in the normal manner. |
[7] In response to a request from counsel for the applicant, the applicant was provided with a copy of the risk opinion and of the Immigration Officer"s notes including the foregoing rationale used in reaching the decision.
[8] The issues raised on behalf of the applicant on this application for judicial review are the following:
| 1. Whether the Immigration Officer breached the duty of fairness by obtaining a negative risk opinion specific to this applicant, and relying on it without providing the applicant with notice of its contents and an opportunity to answer it; |
| 2. Whether the Immigration Officer erred in failing to exercise jurisdiction by not herself considering the risk issues raised by the applicant"s humanitarian or compassionate application; |
| 3. Whether the Immigration Officer making the decision erred in law in applying the risk test established under the PDRCC Regulations when she had before her an application for humanitarian consideration under subsection 114(2) of the Immigration Act, which is not confined to a regulatory definition of risk; and |
| 4. Whether the Immigration Officer making the decision erred in law in her assessment of the evidence, |
| (a) by selectively focussing on one article to support her view that the applicant would not face a risk on return to Iran, when the overwhelming weight of the evidence indicated otherwise, |
| (b) by failing to consider the applicant"s circumstances in a "contextual manner", and ignoring his youth and lack of skills in concluding that he "chose" not to work in Canada but rather chose to study. |
ISSUE 1: Fairness
[9] The principles underlying the duty of fairness on applications such as that here under review are the subject of extensive guidance provided by the recent decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration)2. At paragraph 23, et seq., Madame Justice L"Heureux-Dubé identifies a non-exclusive list of five factors that are relevant in determining what is required by the common law duty of procedural fairness in any given set of circumstances. Briefly described, they are the following:
| 1. The nature of the decision being made and the process followed in making it; |
| 2. The nature of the statutory scheme and the "terms of the statute pursuant to which the body operates"; |
| 3. The importance of the decision to the individual or individuals affected; |
| 4. The legitimate expectations of the person challenging the decision; and |
| 5. The choices of procedure made by the decision-maker, particularly when the statute leaves to the decision-maker the ability to choose her or his own procedures, or when the decision-maker has an expertise in determining what procedures are appropriate in the circumstances. |
[10] At paragraph 30, under the heading "Participatory Rights", Madame Justice L"Heureux-Dubé writes:
| At the heart of this analysis is whether, considering all the circumstances, those whose interests were affected had a meaningful opportunity to present their case fully and fairly. |
At paragraphs 31 and 32, Madame Justice L"Heureux-Dubé continues:
| Several of the factors described above enter into the determination of the type of participatory rights the duty of procedural fairness requires in the circumstances. First, an H & C decision is very different from a judicial decision, since it involves the exercise of considerable discretion and requires the consideration of multiple factors. Second, its role is also, within the statutory scheme, as an exception to the general principles of Canadian immigration law. These factors militate in favour of more relaxed requirements under the duty of fairness. On the other hand, there is no appeal procedure, although judicial review may be applied for with leave of the Federal Court - Trial Division. In addition, considering the third factor, this is a decision that in practice has exceptional importance to the lives of those with an interest in its result - the claimant and his or her close family members - and this leads to the content of the duty of fairness being more extensive. Finally, applying the fifth factor described above, the statute accords considerable flexibility to the Minister to decide on the proper procedure, and immigration officers, as a matter of practice, do not conduct interviews in all cases. The institutional practices and choices made by the Minister are significant, though of course not determinative factors to be considered in the analysis. Thus, it can be seen that although some of the factors suggest stricter requirements under the duty of fairness, others suggest more relaxed requirements further from the judicial model. |
| Balancing these factors, I disagree with the holding of the Federal Court of Appeal in Shah ... that the duty of fairness owed in these circumstances is simply "minimal". Rather, the circumstances require a full and fair consideration of the issues, and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered.3 |
[11] Against the principles enunciated in Baker, counsel for the applicant urged that the applicant had not been given a "... meaningful opportunity to present [his] case fully and fairly" and to have his case "... fully and fairly considered". At the centre of this argument was the fact that the Immigration Officer relied on the negative recommendation of the PCDO officer, who in turn relied on the 1997 DOSS Report and neither the PCDO recommendation and the analysis on which it was based nor the 1997 DOSS Report and the fact it was relied on were disclosed to the applicant. In the result, he was given no opportunity to respond to either.
[12] In Cojocar v. Canada (Minister of Citizenship and Immigration)4, a decision on facts quite similar to those before me, Mr. Justice Evans described one of the issues before him in the following way:
| The applicant challenged the validity of the immigration officer"s decision on four grounds. |
| (i) The PCDO"s report was "extrinsic evidence" which the immigration officer was required by the duty of fairness to disclose so that the applicant could respond to it, prior to the determination of his subsection 114(2) claim. |
Mr. Justice Evans continued:
| The leading case on the review of decisions made under the compassionate or humanitarian provisions of subsection 114(2) is Shah v. Canada (Minister of Employment and Immigration) (1994), Imm. L.R. (2d) 82 (Fed. C.A.). On the question of procedural fairness, Hugessen J.A. stated at pages 83-84 that, in view of the discretionary nature of these decisions, the content of the duty is minimal although if the officer "is going to rely on extrinsic evidence not brought forward by the applicant, she must be given a chance to respond to such evidence." |
[13] On the "extrinsic evidence" issue, Mr. Justice Evans concluded in the following terms:
| The failure to disclose the report was thus not a breach of the "minimal" content of the duty of fairness applicable in this decision-making context. Since the report contained information that was readily available to the public, including the applicant and his counsel, and it was reasonable for them to anticipate that the PCDO would consult it, it was not "extrinsic evidence" within the rule in Shah"s case. |
Mr. Justice Evans was, of course, writing before the decision of the Supreme Court of Canada in Baker.
[14] Counsel for the applicant urged that, in the light of Baker, on the facts that were before Mr. Justice Evans, the decision should be different today. I agree.
[15] I am not satisfied that, whether a document relied on by an Immigration Officer, such as a PCDO"s recommendation and rationale, is "extrinsic evidence" or not is any longer the issue although I would conclude that it remains the issue with respect to a document such as the 1997 DOSS Report. Rather, it seems to me, 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".
[16] I conclude that such a denial has here taken place. While the PCDO relied primarily on the applicant"s humanitarian or compassionate grounds application materials, including the supplementary submissions and documentary evidence provided following the hearing, it is evident from a review of the PCDO"s rationale for his or her recommendation that he or she relied more heavily on certain of the materials
submitted than on others, as well as on the 1997 DOSS Report, to the point where counsel for the applicant urges that the Immigration Officer erred in law by selectively focussing on one article when, in counsel"s submission, the "overwhelming weight of the evidence indicated otherwise". Clearly, given an opportunity, counsel for the applicant would have put a different "spin" on the material that was before the PCDO and urged the Immigration Officer to reject the PCDO "s recommendation and find in favour of the applicant.
[17] On this ground alone, I conclude that this application for judicial review should be granted.
ISSUE 2: Failure to Exercise Jurisdiction
[18] While my decision in respect of the fairness issue is determinative of this matter, given that I may well be called upon to certify a question on that issue, I will nonetheless deal briefly with the other issues raised by the applicant.
[19] Counsel for the applicant urged that the Immigration Officer erred by in effect delegating the risk determination, a central element of the decision she or he was required to make, to the PCDO or by merely "rubber stamping" the PCDO"s recommendation which was made on the basis of a specific test that is inapplicable to a humanitarian or compassionate determination.
[20] I do not agree with in this position urged on behalf of the applicant. In her or his rationale for decision quoted earlier, the Immigration Officer indicates that she or he "concur[s] with the PCDO"s decision". It is unfortunate that the Immigration Officer refers to the PCDO"s recommendation as a "decision" but I am satisfied that that unfortunate reference is in no sense determinative. The Immigration Officer goes on, later in the rationale, to express her or his own view that "... no, undue, undeserved, or disproportionate hardship would result if subject was required to leave Canada and apply from abroad in the normal manner." I am satisfied that this latter statement indicates that the Immigration Officer did not delegate to, or simply adopt the recommendation of, the PCDO in its own terms but rather, in terms more appropriate to the application before her or him, made her or his own decision on risk, giving only appropriate weight to the PCDO"s recommendation.
ISSUE 3: The Risk Test
[21] My conclusion as to this issue is inherent in my conclusion with respect to the second issue. I am fully satisfied that the Immigration Officer did not adopt an overly stringent risk assessment test.
ISSUE 4: Assessment of the Evidence
[22] Despite the able argument of counsel for the applicant, I cannot conclude on the material before me that the Immigration Officer failed to take into account all of the material before her regarding risk. I further conclude that the Immigration Officer did not err in failing to have before her the 1997 DOSS Report that had been taken into account by the PCDO. The PCDO"s reliance on that document was reasonably explained in the rationale for his or her recommendation and I simply cannot conclude that the Immigration Officer fettered his or her discretion or in any other manner erred in failing to go to that document herself or himself, if indeed that was in fact the case. I am prepared to assume it was the case since the 1997 DOSS Report does not form part of the Tribunal record that is before this Court.
[23] Counsel further urged that the Immigration Officer failed to consider the applicant"s circumstances in a contextual manner and, as evidence of this, cited the reference in the Immigration Officer"s rationale to the fact that the applicant had employment authorizations from May, 1994 but "chose not to work" and to rely on social services and later on the support of his parents and friends.
[24] In May, 1994, the applicant was just short of his 18th birthday. He reported that, at that time, he was unable to find work, and that he made the choice to further his education and pursue volunteer activities, thus broadening his exposure to the Canadian community, rather than to continue to pursue work. At the age of 18, this was surely not an unreasonable option for the applicant to choose. I agree with counsel for the applicant that the implications of the phrase "chose not to work" are unfortunate. That being said, I am not satisfied that this second unfortunate choice of terminology constitutes any evidence of failure to take into account all of the circumstances of this particular applicant or, in the terms adopted in Baker , to fully contextualize the Immigration Officer"s decision. Certainly, I conclude that it is insufficient evidence of failure to contextualize to constitute reviewable error.
Conclusion
[25] For the foregoing reasons, this application for judicial review will be allowed, the decision under review will be set aside and the matter will be referred back to the respondent for redetermination by a different immigration officer.
Certification of a Question
[26] At the close of the hearing on this matter, I undertook to counsel to circulate to them my reasons and to provide them an opportunity to provide written representations on certification of a question.
[27] Counsel for the respondent recommended certification of a question in the following terms:
| Does an Immigration Officer assessing an application for landing from within Canada on humanitarian and compassionate grounds pursuant to subsection 114(2) of the Immigration Act breach the duty of fairness owed to an applicant when he or she considers a document, such as a Post-Claim Determination Officer"s recommendation and rationale, where such document was not previously disclosed to an applicant? |
Counsel for the applicant took no objection to certification of a question and made no specific comments on the form of the question proposed.
[28] I will certify a question in the following terms:
| Does an Immigration Officer assessing an application for landing from within Canada on humanitarian or compassionate grounds pursuant to subsection 114(2) of the Immigration Act breach the duty of fairness owed to an applicant where he or she relies on a document prepared at the request of the Officer, such as a Post-Claim Determination Officer"s recommendation and rationale, where such document is not disclosed to the applicant and the applicant is given no opportunity to respond to it? |
_____________________________
Judge
OTTAWA, ONTARIO
September 8, 1999
__________________
1 R.S.C. 1985, c. I-2.
2 [1999] S.C.J. No. 39 (Q.L.).
3 The reference to "Shah" is a reference to Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.).
4 1999 Carswell Nat 195 (F.C.T.D.).
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