Mancia v. Canada (Citizenship and Immigration), docket IMM-714-96

     IMM-714-96

BETWEEN:

     PEDRO BENJAMIN ORELLANO MANCIA

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

MacKAY J.:

     This application for judicial review seeks an order setting aside the decision of the Post Claims Review Section of the respondent Minister's department in Vancouver, dated February 8, 1996, that the applicant is not a member of the Post Determination Refugee Claimants in Canada Class ("PDRCC"). In the result, since the applicant's claim to be a Convention refugee had earlier been denied, and there is no other apparent basis for his claim to remain in Canada, the applicant may be required to leave Canada at the respondent Minister's initiative.

     The applicant is a citizen of El Salvador who arrived in Canada on April 24, 1992 and claimed to be a Convention refugee. When his claim was considered by the Convention Refugee Determination Division, it was determined that he was not a Convention refugee. His claim was that he feared persecution in El Salvador, in part from former members of the FMLN, once a revolutionary force to which he had belonged but now a political party supporting efforts to establish democratic government in the country. He also claimed to fear persecution from the Army, to which he believed his name as a former FMLN member would have been communicated.

     The decision that the applicant was not a Convention refugee was made May 4, 1993. In August, 1995, the applicant was advised by letter that he was eligible to be considered as a member of the PDRCC, established by regulations, and that he could make submissions in regard to his possible inclusion in that class. The letter advised, in part,

...This class is limited to persons who will be subjected to a personal, objectively identifiable risk to their life, of extreme sanctions or of inhumane treatment if required to leave Canada.

You may, if you wish, use the enclosed form (IMM 5319) to make such submissions as you think relevant to the nature and extent of any risk you would face in the country to which you may be removed...

     The applicant completed the form, and forwarded it with an attached written statement, and with 11 documents or publications relating to conditions in El Salvador, as his submission for consideration of his claim to be included in the PDRCC class. The submission was dated September 11, 1995 and it was submitted to the Post Claim Review Section at the Vancouver Office, together with a copy of the personal information form and of the CRDD decision earlier made in regard to his refugee claim.

     By letter of February 8, 1996 the applicant was informed that as a result of a post claim review, conducted in accord with Immigration Regulations, to assess what, if any, risk he would face if he were returned to El Salvador, it was determined that he was not a member of the PDRCC class. The reasons for that decision are set out in a three-page document titled "PCDO Decision Record", a copy of which was sent to the applicant with the letter of February 8, 1996. It is that decision which this application seeks to have set aside.

Issues

     The decision of the Post Claims Determination Officer (the "PCDO") is said by the applicant to raise three general issues.

     The first concerns documentary evidence relied upon by the PCDO and its disclosure. The documentary evidence is of two kinds. The first kind is articles and published information on general country conditions in El Salvador, relied upon by the PCDO, which was not disclosed or identified to the applicant in advance of the decision, including a few documents published after the applicant had made his submissions. The second kind of information is materials provided to PCDO's by a draft manual and training materials including reference to methodology or guidelines for assessing risk, as is required by the definition of persons qualifying for the PDRCC class. The latter materials had not been seen by counsel for the applicant and were not a part of the record before the Court when this matter was heard. Counsel for the respondent was directed to provide any such materials to counsel for the applicant, and an opportunity was provided for further written submissions on this aspect of the general issue of disclosure, and these were received following the hearing.

     The second general issue concerns the interpretation by the PCDO of the definition of the PDRCC class under the Regulations, in particular the interpretation of the sources of risk to the applicant if he were to be returned to El Salvador.

     The third general issue concerns the PCDO's treatment of evidence presented by the applicant, in particular with reference to his concern for serious risks to his safety were he to return to El Salvador, evidence which the applicant urges was ignored or dealt with capriciously by the PCDO.

     I turn to each of the general issues in turn.

Documentary evidence relied upon by the PCDO and its disclosure

     In the PCDO Decision Record setting out the basis of the decision that the applicant was not within the PDRCC class, documentary evidence or reports consulted by the PCDO are listed in detail, including reference to the submissions of the applicant and of his counsel, which included documents relating to conditions within El Salvador.

     The applicant contends that citations given for a number of the documents listed as consulted by the PCDO were obscure and not readily identifiable. In particular reference is made to "CA Reports", to "IPS reports", to "AFP" and to "Indexed Media Review Binders on El Salvador Jan-Sept/95". While it is noted by the applicant that the Decision Record states specifically that the "decision is based on recent information drawn from a range of public sources", it is urged that the documents referred to are of a specialized nature, not normal country condition reports and moreover, they were cited by obscure references not understandable to the public. It is urged that they fall within the class of "extrinsic evidence", about which the applicant should have been apprised and given opportunity to comment, as referred to by Mr. Justice Rothstein in Nadarajah v. Minister of Citizenship and Immigration, unreported, Court file IMM-3384-95, May 14, 1996 (F.C.T.D.) at para. 7 where he said in part,

Generally, extrinsic evidence is evidence of which the applicants are unaware because it comes from an outside source. ...In the context of information on country conditions, if the information relied upon by the Post Claim Determination Officer is information to which the applicants could not have had access, and it is material to the decision made, I think the information might well constitute extrinsic evidence.

     I note that in Nadarajah, Rothstein J. considered the documentary evidence there in question to be from sources available to the public and he referred to the decision of Mr. Justice Rouleau in Quintanilla v. The Minister of Citizenship and Immigration, unreported, Court file IMM-1390-95, January 22, 1996 (F.C.T.D.). In the latter case, where documentary evidence of country conditions considered in a PDRCC assessment is material that is publicly available, Rouleau J. held there was no obligation to inform the applicant, in advance of a decision, of specific documents concerning country conditions that are being considered. That same principle was applied in Nadarajah by Rothstein J., and in my view it is applicable here, at least with reference to documents published and available from public sources prior to the date of any submission by the applicant.

     In my opinion, the materials here listed as consulted by the PCDO are publications available to the public, particularly to those knowledgeable about the processing of refugee claims, appeals, applications for leave and for judicial review, and of PDRCC applications. In all these proceedings reference is generally made to reports on country conditions, and those reports are generally from public sources and maintained and accessible through files, indexes and records available from or through the Refugee Division of the Immigration and Refugee Board. If the citations for some such documents appear obscure to the applicant that is unfortunate. I note that here submissions of the applicant himself, for inclusion in the PDRCC class, included an excerpt from Central America Report (CA Report, in the Decision of the PCDO), from Inter/Press Service (IPS Report, in that Decision), and two publications of the Question and Answer Series published by the I.R.B. for April 1994 and for March 1995 each of which has an extensive reference list of Central America Reports, of the Inter Press Service, of Agence France Press (AFP).

     In circumstances where the applicant is aware of a general process of relying on published documentary sources of information on country conditions, as the applicant here must be deemed to have been, and where he supplied some information of that sort with his application, I cannot conclude that the information referred to by the PCDO was beyond the ambit of publicly available information that a reasonable applicant, advised by counsel, as the applicant was, would anticipate that the PCDO would consider in reaching his decision.

     It was information available to the public, as in Nadarajah and Quintanilla. In my opinion, there was no obligation on the PCDO to indicate the specific documents he was considering in advance of his decision. There was no breach of a duty of fairness in referring to documents available from public sources without identifying the specific documents before the PCDO's decision was made.

     In regard to documentary evidence referred to in the PCDO Decision Record the applicant also identifies four publications said to be published after the date of his application on September 11, 1995. I discount one of those, the National Geographic for September/95, since one of the excerpts on country conditions included in the applicant's own submissions of September 11 is from that same publication. The other three documents are admittedly not from sources available to the applicant at the time of his submissions, and thus they were documents on which he could not have commented unless they were brought to his attention after his application and before the PCDO's decision. Yet they are not documents which are significant in themselves for purposes of the PCDO's decision. They introduce no new information that is not readily available from the other documents listed from published sources available to the public before the application was made. In my opinion, reference to those three documents does not constitute a breach of the duty of fairness that would in itself warrant intervention by the Court.

     For the applicant it is urged that the principle of disclosure and an opportunity to know and to address the case to be met is as significant in the context of determining a PDRCC claim as it is in criminal law as enunciated by the Supreme Court of Canada in Stinchcombe v. The Queen, [1991] 3 S.C.R. 326, 68 C.C.C. (3d) 1. I am not persuaded that the principle of disclosure of evidence against an accused prior to trial is applicable in regard to documentary evidence of country conditions drawn from public documents readily available to an applicant in refugee or related claims such as a PDRCC claim.

     In Nadarajah Rothstein J. noted that it would be reasonable practice for a PCDO to inform an applicant of documentary evidence of country conditions that is being considered, but failure to do so, unless that evidence is not public and is material to the decision, does not breach the rules of procedural fairness. That reasoning has been accepted by Mr. Justice Heald in Xavier v. The Minister of Citizenship and Immigration, unreported, Court file IMM-550-96, October 1, 1996 (F.C.T.D.) and by Mr. Justice Gibson in Garcia v. The Minister of Citizenship and Immigration, unreported, Court file IMM-149-96, November 1, 1996 (F.C.T.D.). Fairness dictates that documents or other evidence not readily available to the public ought to be disclosed, but it does not require more. In particular, it does not require that, before a decision of a PCDO, there be disclosure of specific documents that are in the public domain and available to an applicant upon which the PCDO may rely for evidence of current country conditions.

     The argument for disclosure is made more strongly in relation to the methodology and principles that underlie the risk assessment faced by those claiming to be within the PDRCC class. This matter was highlighted at the hearing of this application for judicial review, and, as earlier noted, there was no evidence before the Court of guidelines, instructions, or principles underlying, or to be applied in assessing, risk. The definition of the class under s-s. 2(1) of the Immigration Regulations, 1978, SOR/78-172, as amended (the "Regulations"), provides in part:

"member of the post-determination refugee claimants in Canada class" means an immigrant in Canada

...

(a) who...is...,

(b) who has not..., and

(c) who if removed to a country to which the immigrant could be removed would be subjected to an objectively identifiable risk, which risk would apply in every part of that country and would not be faced generally by other individuals in or from that country,

(i) to the immigrant's life, other than a risk to the immigrant's life that is caused by the inability of that country to provide adequate health or medical care,

(ii) of extreme sanctions against the immigrant, or

(iii) of inhumane treatment of the immigrant.

Following the hearing, counsel for the respondent, as permitted, provided to the applicant for comment a copy of the respondent's internal documents for guidance of PCDO's, including a "Draft Manual for PCDOs" and a modular training program for PCDOs including that draft manual.

     Post hearing submissions of the applicant were extensive, with counsel reviewing two major academic discussions of risk assessment methodology. On the basis of those counsel offered a critique of the risk assessment methodology as that appears or is inferred from the draft manual. I expect that submission should be of interest to policy, planning and training officers of the respondent. From my perspective, it does not concentrate on the matter raised at the hearing, that is, the significance of any failure to disclose in advance of the PCDO's decision in this case, the methodology of risk assessment followed in determination of claims to be included in the PDRCC class. The post hearing submission does note that in the draft manual emphasis is placed on the duty to disclose information or evidence to be relied upon by a PCDO that is not readily available to the public.

     By analogy, based on Clarke v. M.C.I., unreported, Court file IMM-2962-95, November 28, 1996 (F.C.T.D.), per Wetston J., which deals with the issue of the necessity for reasons for a decision under s-s. 70(5) of the Act, counsel for the applicant urged in written submissions following the hearing in this case that reasons of the PCDO in a decision concerning membership in the PDRCC class should demonstrate a "risk assessment methodology...substantially rational and rationally connected to the social-scientific field of risk assessment methodology".

     I am not persuaded that the duty of fairness extends to disclosure of a methodology for risk assessment that would be accepted by theoreticians or academics concerned with risk assessment theory and practice. Nor am I persuaded that uncertainties and a measure of those as they may be recognized in seeking to assess risks for purposes of the PDRCC class should be disclosed, as counsel for the applicant suggests. Risk assessment is not an exact science, even for actuaries and mathematicians whose vocations may be in professional work of measuring comparative risks. Risk assessment by a PCDO is not of that sort. I am not convinced that it was intended to be more than a reasonable assessment, objectively done in the sense that it is done with reference to the evidence that may be available in all the circumstances, of serious risk to life or liberty of the individual claimant.

     It may assist applicants and their counsel if departmental manuals that do describe the process and methodology are readily available to them. That would be in keeping with apparent departmental practice in relation to other decisions to be made under the Act. The Court would encourage general disclosure of information, on country conditions, and on processes to be followed in assessing claims, in letters of advice to prospective applicants at least by reference to sources where the information may be obtained.

     Having encouraged such disclosure, to assist applicants, nevertheless I conclude that non disclosure of information about the methods or process for assessing risk in considering applicants for the PDRCC class, in advance of a decision, did not in this case constitute unfairness. I note that this information was not requested on behalf of the applicant when he was notified that he could, or when he did, make submissions. Thus there was no refusal to produce the information. No case is made out, of unfairness to the applicant in the application of the process or methods here applied by the PCDO. For example, no argument is made that the application of guidelines or principles set out in the manual constituted unfairness to the applicant in the circumstances of this case. For the applicant it is submitted that so far as the manual reveals methodology it is not appropriate for objective assessment of risk when compared with academic approaches to risk assessment. In my view, that is not an issue for this Court in an application for judicial review. It may be that counsel could persuade the Court that the methods adopted have no merit for risk assessment but I am not persuaded that is the case here.

     Thus, it is my opinion in this case that the failure to disclose information concerning the methodology or principles for risk assessment does not warrant intervention of the Court.

Interpretation of the PDRCC class

     In written submissions in advance of the hearing, referred to briefly by counsel for the applicant when the matter was heard, it was urged that the PCDO erred in law in interpretation of the definition of the PDRCC class set out in s-s. 2(1) of the Regulations by referring to the absence of evidence of the authorities in El Salvador acting against former FMLN sympathizers. The applicant inferred from this that the PCDO implied that risk must be due to "authorities" of a country, a limitation not set out in the definition. However, as the respondent points out, the PCDO Decision Record also refers to the applicant's concerns about possible action by former FMLN sympathizers against him, and it specifically notes that the applicant's fears about activities and powers of former FMLN sympathizers is not supported by evidence.

     In my opinion, the PCDO considered the risks for the applicant if he were returned to El Salvador in response to the concerns expressed by the applicant in his submissions, and that consideration was not limited to the risk to him that might be presented by "the authorities" in the country.

Alleged inadequate consideration of evidence tendered

     The applicant's final concern is that the PCDO ignored or treated in a capricious manner facts concerning the targeting by various death squads of FMLN and former FMLN members and the inability of the El Salvador government to prevent or bring to justice those responsible for death threats, injuries or deaths of former FMLN members, like himself. It is true there were reports before the PCDO which would support a scene of uncontrolled violence inflicted on some former FMLN members; there were other reports which highlighted improvements from that grim picture and which supported the PCDO's conclusions, inter alia, that there was no evidence that authorities target former FMLN sympathizers and scant evidence that FMLN members seek to settle old suspicions in a violent manner, or that they control strategic travel centres as the applicant feared. Moreover, the relatively minor role of the applicant within the FMLN, the lack of evidence, despite his fears, that his name had in fact been reported to authorities, more than six years earlier before he left El Salvador, the lack of any claim that authorities or FMLN sympathizers had tried to do anything to him before he left or had harassed his family since then, by inference, support the PCDO's conclusion that he could return to El Salvador and not be at risk.

     One particular matter, not referred to specifically by the PCDO, is said to be important evidence that was adduced but not considered at all. This was the applicant's claim that he had earlier witnessed an army officer murdering a young man and he feared encountering that officer who would remember the applicant from that occasion, now some years ago.

     It is well settled that a decision maker, here the PCDO, does not have to discuss every claim or every aspect of evidence before him in setting out the basis for his or her decision. Here there was no evidence that the army officer the applicant feared had ever sought out the applicant before he left El Salvador, and no evidence that officer was still alive now some eight years after the incident the applicant witnessed.

     I am not persuaded that the PCDO's failure to refer to this aspect of the applicant's expressed fears warrants intervention by this Court, or that it was not considered by the PCDO.

Conclusion

     In summary, I am not persuaded that any of the grounds urged, on behalf of the applicant for judicial review, are established. There is no basis on which this Court's intervention to set aside the decision of the PCDO would be warranted.

     In the circumstances, the application for judicial review is dismissed.

Questions proposed for certification, s-s. 83(1) of the Act

     Counsel for the applicant urges that certain questions be certified for consideration by the Court of Appeal pursuant to s-s. 83(1) of the Act. At the hearing counsel proposed the following question:

whether an Immigration Officer conducting a review pursuant to the PDRCC regulations violates the principle of fairness, as enunciated by the Federal Court of Appeal in Shah, when he or she fails to disclose, in advance of determining the matter,

a)      documents relied upon from public sources in relation to general country conditions, or

b)      documents that elucidate the theoretical principles and methodological guidelines that are relied upon to carry out the PDRCC risk assessment.

Following the hearing, the second aspect of that question, concerning risk assessment methodology, was elaborated upon by counsel for the applicant in written submissions proposing three questions specifically relating to the methodology for determining "objectively identifiable risk" in this case, and generally.

     Counsel for the respondent Minister urged that no question be certified. The question proposed in regard to documents from the public domain concerning general country conditions is similar to one that has been certified by Rothstein J. in Nadarajah, supra, and also in Singh v. M.C.I., Court file IMM-3525-95, [1996] F.C.J. No. 781, June 6, 1996, and by Heald D.J. in Xavier, supra, and by Gibson J. in Garcia, supra. In those cases, the facts relating to the PCDO's use of public information without notice to the applicant are generally analogous to the facts in this case. The question posed concerns the fairness of the process followed by the PCDO.

     In recognition of the importance of judicial comity in respect of decisions of my colleagues, and of the importance of treating similarly persons who are in similar circumstances but in different cases, in my view it is appropriate in this case to certify a question similar in terms to the question proposed in Nadarajah and the other cases referred to, concerning failure to disclose in advance of a decision information relied upon from public sources. Determination of that question by the Court of Appeal in any of the other cases will, in effect, dispose of any appeal under s. 83 in this case, subject to any requirement for a formal order of the Court of Appeal to dispose of an appeal if one be initiated.

     I am not persuaded that the second aspect raised by the applicant's proposed questions, that is, in regard to disclosure of documents on methodology and theoretical principles to be followed in risk assessment for considering applicants for the PDRCC class, raises "a serious question of general importance" within the meaning of those words in s-s. 83(1) of the Act. The questions proposed concern the application of an established principle to a new aspect of matters before the decision maker, that is, the necessity to disclose "extrinsic evidence", but application of that principle to methodology of decision making, rather than to evidence, does not, in my opinion, constitute "a serious question of general importance" within s-s. 83(1). Moreover, here no request was made by the applicant, in connection with his PDRCC application, for information on methods of risk assessment. No argument was here advanced about a different decision in this case if the manual or guidelines had been provided by the PCDO in advance with an opportunity to make submissions about them. In my opinion, the questions suggested in relation to disclosure of the method of risk assessment are hypothetical, that is, without a basis in the facts of this case that could lead to a different outcome were the Court of Appeal to answer affirmatively the questions posed by the applicant. Answering the questions as posed, in the circumstances of this case, would not dispose of this case. (See Canada (Minister of Citizenship and Immigration) v. Liyanagamage, [1994] F.C.J. 1637, 176 N.R. 4 (F.C.A.)).

     While it may be possible to persuade a court that methods adopted for discharge of statutory functions are irrelevant or without any merit for the statutory purposes for which the methods are adopted, that is not here established, and in those circumstances merit must be assumed for the method adopted by the Minister for discharge of his statutory responsibilities.

     I conclude that the questions proposed by the applicant. concerning the methodology of risk assessment, should not be certified under s-s. 83(1) of the Act. The first question proposed by the applicant, is certified in terms similar to those proposed in Nadarajah, as follows:

Does an immigration officer conducting a review pursuant to the PDRCC regulations violate the principle of fairness, as enunciated by the Federal Court of Appeal in Shah, when he or she fails to disclose, in advance of determining the matter, documents relied upon from public sources in relation to general country conditions?

     _____________________________

     JUDGE

OTTAWA, Ontario

January 31, 1997.