Ogunfowora v. Canada (Citizenship and Immigration), docket IMM-2761-96

                                         IMM-2761-96

BETWEEN:         

             OLUWATOYIN PETER OGUNFOWORA

     Applicant

                     -and-             

         THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

             REASONS FOR ORDER

TEITELBAUM, J:

FACTS:     

     The applicant seeks judicial review of a decision of an immigration officer, Jean-Pierre Lavoie. In a letter dated August 2, 1996, the immigration officer turned down the applicant's request for permanent resident status on compassionate and humanitarian grounds under Subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2 [hereinafter the "Act"].

     How the applicant came before the Court in the current proceedings requires a rather lengthy recital of his tangled history and involvement before the Canadian immigration system.

     Allegations of Torture in Nigeria

     The applicant had originally applied for the visa exemption under Subsection 114(2) of the Act on March 18, 1995. The applicant cited the risk of torture upon his return to Nigeria as the basis for his claim for consideration on compassionate and humanitarian grounds. On May 31, 1989, the applicant was detained by the Nigerian security forces, kept without trial and tortured. During his detention, in one particularly disturbing incident, his arm was slashed and pepper poured into the raw wound. The applicant was also subjected to electric shocks and beatings, genital mutilation and psychological abuse¹. The applicant had been a student at the Yaba College of Technology in Lagos when the campus erupted with student demonstrations.

     Upon his arrival in Canada in February 1991, the applicant applied for refugee status on the basis of political opinion and membership in a particular social group. The applicant's claim for refugee status was rejected on April 22, 1992 because the Convention Refugee Determination Division [hereinafter "Board"] did not find the applicant a credible witness (Ex. D, Lavoie Affidavit). The Board was disturbed by discrepancies and contradictions in the applicant's version of his education history, the events of May 31, 1989, the length of his detention and how he had escaped Nigeria. As an example, the Board cited the fact that the applicant's official school record indicating his dates of school attendance was rife with spelling and grammatical errors. However, the same literary misfortunes befell the Board's own decision rejecting his claim for refugee status.

     Since the time of the Board's initial rejection of his claim, the applicant has been involved in a number of abortive immigration proceedings. He launched an unsuccessful appeal of the Board"s decision and attempted to have it re-opened. The applicant also made an initial application on November 27, 1992 under Subsection 114(2) for residency on humanitarian and compassionate considerations. The stated grounds were the applicant's marriage on October 24, 1992 to a Canadian citizen with dependent children and the danger of return to Nigeria. On June 23, 1993, the request for a visa was rejected after the applicant's wife failed to attend obligatory interviews at the immigration office. The applicant's form requesting the visa was also at odds with his earlier testimony before the Board regarding his study dates in Nigeria and the duration of his detention (paragraph 13, page 4, Lavoie Affidavit). A removal order was then issued. To avoid expulsion from Canada, the applicant lived underground.

     The March 18, 1995 Application for a Visa under Subsection 114(2)     

     Finally, as was stated above, on March 18, 1995, the applicant initiated the process that is presently at issue before this Court. In his second request for a visa under Subsection 114(2) of the Act, the applicant argued that he would be tortured if he were forced to return to Nigeria. The applicant submitted that he suffers from a psychiatric illness, post-traumatic stress disorder, [hereinafter "PTSD"] as a result of his earlier torture in the detention camp. To buttress his claim, the applicant enclosed psychiatric and medical evaluation reports (Ex. I, Lavoie Affidavit). This medical evidence describes the lingering physical and mental effects of the earlier torture sessions and appears to shed light on earlier discrepancies in the applicant's testimony before the Board and the subsequent written documents. However, the medical reports were not presented in the earlier immigration proceedings (see paragraph 22, Lavoie Affidavit). In his application for a visa, the applicant also cited documentary evidence on Nigeria"s deteriorating political climate.

     The Parallel PDRCC Review Process

     After a delay of some 10 months in processing the applicant's claim under Subsection 114(2), immigration officials decided that his case should also be assessed under the guidelines for Post Determination Refugee Claimants in Canada [hereinafter "PDRCC"], a particular process for rejected refugee claimants who face a serious risk of harm upon their return to their countries of origin. The applicant did not technically qualify for a post claim risk assessment under the PDRCC guidelines because they only apply to Board decisions issued after February 3, 1993. The applicant's claim for refugee status was rejected on April 22, 1992, approximately 10 months before the PDRCC cut-off date.

     The applicant's PDRCC review itself took several months to unfold. In his PDRCC application, the applicant asked Martine Beaulac, the Post Claims Determination Officer [hereinafter "PCDO"] to refer to his counsel's written submissions presented on March 18, 1995 in support of his claim for landing on compassionate and humanitarian grounds. In an exchange of letters and correspondence in May 1996 between the PCDO and the applicant's counsel, the PCDO requested clarification and particulars concerning certain alleged contradictions in the applicant's voluminous file. Counsel for the applicant responded by arguing that the overall coherence and plausibility of the applicant"s claim concerning torture was more important than seeming contradictions and discrepancies in documents written over a number of years. The applicant's counsel highlighted certain factual errors and the misinterpretation of documents in the PCDO's own letter to emphasize "the human error to which we are all prone" (Exhibit N, Lavoie Affidavit).

     The Decision at Issue in the Current Proceedings

     Finally, on August 1, 1996, the applicant was informed that his application for consideration under the PDRCC guidelines had been rejected because he would not be "subjected to any of the risks included in the definition of a member of the PDRCC class" (page 1, Official Immigration Record). The PCDO cited in her lengthy reasons certain key contradictions in the applicant's story and the paucity of documentary evidence supporting his claim that he in particular would be subject to the alleged risks. The next day, August 2, 1996, the decision under review in the current proceedings was made. Jean-Pierre Lavoie, the immigration officer, rejected the applicant's separate claim for residence under the compassionate and humanitarian criteria of Subsection 114(2). In his brief letter dated August 2, 1996, Mr. Lavoie stated that "a careful examination of all the circumstances of (the) case did not reveal that such exemption is warranted". On August 9, 1996, the applicant sought leave to appeal the immigration officer"s decision dated August 2, 1996. Madame Justice McGillis granted leave on November 13, 1996. However, on the same day, in Court file number IMM-2758-96, Madame Justice McGillis also dismissed the applicant"s request for leave to appeal the PDOC"s decision dated August 1, 1996.

PARTIES' SUBMISSIONS:

     The Applicant's Submissions

     The applicant offers two arguments to support his claim that judicial review is warranted. First, the applicant submits that the immigration officer unfairly fettered his discretion in failing to conduct an independent evaluation of all the evidence going to the future risk of torture. The applicant alleges that the immigration officer in his decision dated August 2, 1996 wrongly deferred the matter of risk assessment to the PCDO's decision made a day earlier. Second, the applicant argues that the immigration officer erred in law when he acted without regard for the totality of the evidence, namely the evidence of past torture, the effects of PTSD on the applicant's recall of events and the historical and current documentary record. In his written submissions, the applicant had also argued that the immigration officer violated Canada's obligations under international law and the Canadian Charter of Rights and Freedoms. However, during the course of oral argument, the applicant's counsel did not address the international law and Charter issues. I have therefore not devoted any further attention to these points.

     The Respondent's Submissions

     The respondent rejects the applicant's contention that the immigration officer's discretion was in any way fettered. The respondent highlights judicial reluctance to intervene in decisions made under Subsection 114(2). The respondent submits that nothing in the current proceedings reveals a flawed exercise of discretion or mistaken appreciation of the evidence.

ISSUES:

I. Did the immigration officer fetter his discretion and therefore commit a reviewable error?

II. Did the immigration officer properly consider the applicant's evidence of past torture and its risk of reoccurrence?

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DISCUSSION:

I. The Fettering of Discretion

     The Contents of the Immigration Officer's Decision

     The Court has three documents to consider in determining the issue of whether the immigration officer fettered his discretion. First is the actual letter dated August 2, 1996 informing the applicant of the decision. In this brief document, the immigration officer states very briefly and generally that he has determined after "careful examination of all of the circumstances", that insufficient humanitarian grounds exist. No more details regarding the decision- making process or the actual "circumstances" under scrutiny are provided. Second are the immigration officer"s handwritten notes located on pages 2 and 3 of the Official Record. They are more extensive than the August 2, 1996 letter and read,

Sujet n"a aucune famille proche au Canada. Sujet est au Canada depuis 1991. A travaillé 1 an et 5 mois depuis ce temps. Était marié à une citoyenne canadienne mais il déclare sur les derniers formulaires soumis être célebataire (?). Suite à l"analyse des risques de retour faite par Martine Beaulac, j"en suis venu à la conclusion que ceux-ci sont inexistants. Par conséquent, j"ai conclu qu"il n"existe aucun motif justifiant un redressement spécial pour permettre à monsieur Ogunfowora de déposer la demande de droit à l"établissement au Canada. J. P. Lavoie. 2/8/96.

     The third element is Jean-Pierre Lavoie's own affidavit dated December 23, 1996. In paragraphs 31-33, the immigration officer notes the following:

31. Lors de l"évaluation de la demande de droit d"établissement, j"ai consulté les documents suivants afin d"en arriver à une décision:

-Fiche de renseignements personnel

-Formulaires "demande d"établissement présentées au Canada"

-Formulaires "renseignements supplémentaires"

-cas comportant des considérations humanitaires y compris les soumissions écrites l"accompagnant

         -lettre du comité Inter-Eglises (sic) pour les réfugiés

-Déclaration de la Commission de l"Immigration et du statut de réfugié rendue le 22 avril 1992

         -Évaluation des risques de retour faite par Martine Beaulac

32. J"ai tenue compte de tous les éléments présentées y compris ceux concernant les sanctions sévères (risques) dans l"évaluation des considérations d"ordre humanitaire.

33. Après avoir évalué le dossier, j"ai conclu que ce cas ne révélait aucun élément permettant d"accorder une demande de dispense et le 2 août 1996, j"ai envoyé au requérant une lettre à cet effet.

     The Rigourous Legal Test under Subsection 114(2)

Subsection 114(2) reads:

114(2). The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person"s admission should be facilitated owing to the existence of compassionate or humanitarian considerations.

     Subsection 114(2) gives the Minister or his delegate permission to dispense with a usual requirement on exceptional grounds. The caselaw on Subsection 114(2) reveals that the immigration officer"s discretion under this provision of the Act is "wholly a matter of judgment and discretion and the law gives the applicant no right to any particular outcome": (see Shah v. Canada (Minister of Employment & Immigration) (1994),170 N. R. 238 at 239 (F. C.A.)). The content of the duty of fairness in respect of an immigration officer's decision whether to recommend an exemption from the requirements of the Act on humanitarian grounds is minimal: Amofa v. Canada (Minister of Citizenship and Immigration),(17 January, 1997), IMM-3064-95, (F.C.T.D.), [1997] F.C.J. No. 72 (Q.L.). In fact, since under Subsection 114(2), the applicant is requesting exceptional treatment and exemption from the general requirements of the law, there is no need for a hearing or written reasons: (see Carson v. Canada (Minister of Citizenship & Immigration), (28 April, 1995), IMM-1916-94, (F.C.T.D.), [1995] F.C.J. No. 656 (Q.L.)).

     This extremely high threshold for review was discussed by Mister Justice Campbell at page 239 in Al-Joubeh v. Canada (Minister of Citizenship & Immigration) (1996), 109 F.T.R. 235 (hereinafter Al-Joubeh):

In the absence of any evidence that the decision maker relied upon extrinsic evidence not brought forward by the applicant, the application to attack the decision maker's recommendation must fail. To succeed in the attack, the applicant must show that the decision maker erred in law, proceeded on some wrong or improper principle, or acted in bad faith (Shah,supra, Vidal v. M.E.I. (1991), 41 F.T.R. 118 (F.C.T.D.)

     On the issue of the fettering of discretion, there is no doubt that the immigration officer was permitted to look to the PCDO's analysis. In the written submissions of the applicant dated March 18, 1995, counsel for the applicant highlighted the claimant's fear of persecution. In effect, the risk of harm, the central tenet of the PCDO assessment, was key in this instance to the immigration officer's decision under Subsection 114(2). In Al-Joubeh, supra, Mr. Justice Campbell held at page 239 that it was reasonable for an immigration officer to consult a PCDO when the ground of the application for consideration on compassionate and humanitarian grounds was the assessment of risk.

It might very well be that the opinion of a PCDO on risk will be compelling to an Immigration Officer doing an inquiry and, accordingly, will be given great weight in deciding the outcome. The allocation of weight is an important part of the decision making process, and I find that Ms. St. Hilaire properly considered and assigned weight to the risk opinion which was part of the duty of fairness she owed to Mr. Al-Joubeh.

     However, I am satisfied that the current proceedings are exceptional because the unfortunate timing of the immigration officer's decision indicates that he did indeed fetter his discretion. I am disturbed that the immigration officer"s decision under scrutiny came only one day after the PCDO had rejected the applicant"s claim under the PDRCC class. In effect, there is the appearance that there was only one decision made in the applicant's case. The applicant alleges that no one within the coils of the immigration bureaucracy appears willing to shoulder the responsibility of performing an independent assessment of the applicant's evidence of torture and PTSD. The applicant argues that the immigration officer unfairly relied on the PCDO who in turn cast too much weight on the decision of the Board made in 1992 before the new evidence of torture and PTSD was presented and Nigeria's already sorry human rights record had deteriorated even further. I am in agreement with these submissions.

     In his Affidavit dated December 23, 1996, Mr. Lavoie states that he considered the evaluation of the risks of return offered by Martine Beaulac, the PDOC [paragraph 31-32, Lavoie Affidavit]. In fact, the immigration officer's decision was dated one day after the PDOC's . The rather dazzling rapidity of this successive decision-making after so much delay sounds an uneasy note about the fairness of the process and the independence and forethought of the immigration officer's decision-making. The difficulty remains the timing of the two decisions: August 1, 1996 for the PCDO and August 2, 1992 for the immigration officer under Subsection 114(2). One can distinguish the current proceeding from Al-Joubeh since in that case the PDRCC assessment was completed in May, 1995 and provided to the applicant before the application under Subsection 114(2) was completed in July, 1995 some three months later. In that interim, the applicant in Al-Joubeh had the opportunity to provide new material on risk to the immigration officer, the PCDO performed an updated assessment on risk and conveyed that information to the immigration officer. However, in providing the updated assessment, the PCDO in Al-Joubeh relied on extrinsic evidence not provided to the applicant and therefore violated procedural fairness.

     In Mr. Ogunfowora's case, the one day interval between the PDRCC decision and the immigration officer's assessment is unusual, unseemly and lends weight to the argument that the immigration officer was entirely beholden to the PCDO's decision on the essential question of risk. However, it is true that in his handwritten notes, the immigration officer did briefly acknowledge other factors besides risk, including the applicant"s lack of family connections in Canada and his uncertain marital status. This brief reference is not sufficient to overcome the appearance of unfairness in the applicant's case. Even if fairness under Subsection 114(2) is minimal, it still exists and must be seen to be done. The lightning speed of the immigration officer's decision, coming immediately after the PCDO's decision, strikes an odd note in a file rife with delay. It is important to remember that the applicant"s original request for a visa on compassionate and humanitarian grounds occurred on March 18, 1995 . After inaction and no response, counsel for the applicant had to send a letter to the immigration department some eight months later to remind officials that a prompt response was requested, especially given the applicant"s fragile mental state. In fact, counsel had to hold out the international sanction to prod the immigration department into action. The applicant was then funnelled into consideration under the PDRCC class. The PCDO writes in her decision dated August 1, 1996:

On May 1st, 1995,2 the applicant made an application for permanent residence for humanitarian and compassionate reasons to the Montreal Citizenship and Immigration Office. However, the elements brought forward were elements of risk. He was sent a submission kit to allow us to carry out an evaluation of risks of return on November 28, 1995. His completed submissions were returned to our office on December 5, 1995 (page 6, Official Record).

     I am therefore satisfied that the immigration officer violated procedural fairness by fettering his discretion and failing to perform an independent assessment.

     As well, I agree with the applicant's submission that the immigration officer acted unreasonably in not taking into account the totality of the evidence, namely the medical evidence regarding torture and his PTSD. I recognize the presumption that a decision maker takes into account all of the evidence provided, and the rule that there is no need for the decision maker to explicitly refer to each piece of evidence: Hassan v. Minister of Employment & Immigration (1992), 147 N.R. 317. However, the case at bar is exceptional and warrants judicial review.

     In the letter dated August 2, 1996 provided to the applicant, the information officer made no references to any of the evidence but just invoked the general phrase, "a careful examination of all the circumstances of your case". In his handwritten notes the immigration officer was more forthcoming, detailing his examination of the PDCO's report. The immigration officer explicitly acknowledged his reliance on this material because he indicates in his notes, "Suite à l'analyse faite par Martine Beaulac....". The decision maker provided a list of documents consulted in paragraph 31 of his affidavit dated December 23, 1996. The applicant had submitted a psychiatric report from Dr. Cécile Rousseau of the Douglas Hospital in Montreal and a medical report by Dr. Pierre Dongier of the Hôpital St- Luc in Montreal. (Ex. I of the Lavoie Affidavit) Both reports are dated October 1994. Dr. Rousseau concludes that the applicant suffers from severe PTSD and that the applicant's present day medical history and psychological symptoms are consistent with torture.

     However, even in Mr. Lavoie's affidavit, the medical reports of Dr. Brousseau and Dr. Dongier were only implicitly included as part of the "cas comportant des considérations humanitaires y compris les soumissions écrites l"accompagnant ". These medical reports were attached to the written submissions or "soumissions écrites". I am satisfied that the medical reports require more than an implicit or cursory mention in an affidavit written some four months after the actual decision. If the respondent chooses to elaborate on the decision-making process in a voluminous affidavit, it must bear the consequences if the affidavit casts doubt on the thoroughness of this process. Where there is no explicit acknowledgement of such vital and determinative medical evidence in an affidavit, I am satisfied that it was not in fact consulted or given due weight and consideration.

     Insight into the significance of torture is found in comments from the Canadian Council for Refugees dated February 20, 1996 to the Post-Claim Advisory Committee on the risk of retraumatization and the reoccurrence of torture for victims of PTSD. In his written submissions dated May 28, 1996, counsel for the applicant quotes from page 2 of the Canadian Council for Refugees memo:

Need to make it clear that PTSD is a consequence of torture and other serious human rights abuses. PTSD can serve as a significant corroboration that torture occurred in the past, which in turn serves as a prima facie indication of a likelihood of reoccurrence of torture, should the person be returned. Someone who has been targeted once is more likely to be targeted in the future.

     Again, there was no reference to this evidence in the immigration officer's decision, or the affidavit save for the oblique and inadequate mention of "soumissions écrites".

     As for documentary evidence corroborating the existence of torture in Nigeria, the applicant submitted written records from respected international organizations like Amnesty International and the Inter-Church Coalition on Africa (Ex. I, Lavoie Affidavit). The applicant cites the uncontradicted documentary evidence that Nigeria is a country where violations of human rights, including torture, are rife. More specifically, the applicant highlights the fact that he has already been subjected to torture. This evidence of past persecution bears much weight in evaluating the risk of reoccurrence. As well, the applicant"s story has circulated in the news media, and he has become a bit of a cause celebre, a fact that increases the dangers of return.

     Responses from requests for information from the Immigration and Refugee Board's own documentation centre detail Nigeria"s painful human rights record. Attached to the original March 18, 1995 request for a visa on compassionate and humanitarian grounds are reports describing events in May 1989 in Nigeria (June 12, 1989 article from Times International) , the torture tactics and abuses of Nigeria"s secret police or State Security Services (Response to Information Request # NGA12911, dated 22 January 1993, IRB Documentation Centre) and the failings of the Nigerian justice system.

    

     The decision of Jean-Pierre Lavoie, the Minister's delegate, is hereby quashed. The case is referred back for determination in which a different immigration officer shall perform an independent assessment of the applicant's case on humanitarian and compassionate grounds.     

    

    

    

                         "MAX M. TEITELBAUM"                                  J U D G E

OTTAWA

April 16, 1997

__________________

¹      Descriptions of the torture endured by the applicant can be found in many parts of the file, including his "Personal Information Form for People Claiming Refugee Status" dated July 21 1991, (Ex. B. Lavoie Affidavit), page 2 of the Board reasons dated April 22, 1992 (Ex. D, Lavoie Affidavit) and the psychiatric and medical reports dated October 1994 filed in support of his March 18, 1995 application for a visa (Ex. I, Lavoie Affidavit).

² Other elements of the file reveal that the actual date of the applicant's application was March 18, 1995.