Garcia v. Canada (Citizenship and Immigration), docket IMM-149-96

     IMM-149-96

B E T W E E N:

     JUAN PETRO VASQUEZ GARCIA

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

GIBSON, J.:

     These reasons arise out of an application for judicial review of a decision of a Post-claim Determination Officer (the "Officer") wherein the Officer determined that the Applicant is not a member of the post-determination refugee claimants in Canada class ("PDRCC class") as defined in ss. 2(1) of the Immigration Regulations, 1978.¹ The Officer's decision is dated the 28th day of December, 1995.

     Counsel for the Applicant defined the single issue before me as whether or not the Officer denied the Applicant procedural fairness by considering extrinsic evidence without giving the Applicant the opportunity to respond to it. The evidence in question concerned current country conditions in Ecuador, the country of which the Applicant is a citizen, and was drawn from The Europa World Year Book 1995 and Country Reports on Human Rights Practice for 1994, both published works which are available for review at the Immigration and Refugee Board's Documentation Centre.

     Counsel for the Applicant argued that, against the duty of fairness applicable in purely discretionary decisions such as "humanitarian and compassionate grounds "decisions under ss. 114(2) of the Immigration Act², that is described in Shah v. Minister of Employment and Immigration³, the Officer here erred in a reviewable manner by relying on the documentation cited, which was not brought forward by the applicant, without giving the applicant a chance to respond to it. Further, counsel argued that the decision taken by the Officer is not of a purely discretionary nature given the criteria for qualification as a member of the PDRCC class that are prescribed by the Immigration Regulations, 1978 and that therefore the duty of fairness owed by the Officer to the Applicant was higher than that described in the Shah decision.

     I am not satisfied that the duty of fairness owed to the Applicant on the facts of this matter was higher than that described in Shah. In Kouchek v. The Minister of Citizenship and Immigration⁴, Mr. Justice McKeown described decisions such as the one here under review as "discretionary". I am in agreement with this characterization of the decision of the Officer here under review and find the decision to be equivalent to a "humanitarian and compassionate grounds" decision in terms of the duty of fairness owed.

     The question then remains, did the Officer deny the Applicant the duty of fairness owed. In Nadarajah v. The Minister of Citizenship and Immigration⁵, Mr. Justice Rothstein, on similar facts to those in this matter, wrote:

Generally, extrinsic evidence is evidence of which the applicants are unaware because it comes from an outside source. But the scope of extrinsic evidence for purposes of determinations under subsection 114(2) of the Immigration Act or in PDRCC risk assessments is not without limitation. In Minister of Citizenship and Immigration v. Dasent, a January 18, 1996 decision of the Federal Court of Appeal, Court File A-18-95, Strayer J. found that the evidence given by a spouse in a separate spousal interview in a humanitarian and companionate [sic] case under subsection 114(2) of the Immigration Act, was not extrinsic evidence. 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. Here, however, the country conditions information was within the ambit of the subject matter the applicants knew would be considered, and there is no indication in the record that it was not available to the applicants had they taken steps to obtain it. I do not think it is extrinsic evidence as that term is used in Shah v. M.E.I... [citation omitted]

     This reasoning was adopted in two other decisions by Mr. Justice Rothstein⁶ and by Deputy Justice Heald in Xavier v. The Minister of Citizenship and Immigration⁷ where Justice Heald wrote:

In my view the conclusions reached by Rouleau J. and Rothstein J. ... were correct. Having regard to the minimum standard of fairness applicable to P.D.R.C.C. proceedings, I conclude that the failure to identify precise information to be relied upon in a P.D.R.C.C. risk assessment does not constitute a breach of the rules of procedural fairness.8

I read Justice Heald's reference to "precise information to be relied upon" to be a reference to information in the nature of publicly available information on country conditions.

     I am in agreement with the decisions of Mr. Justice Rothstein and Mr. Justice Heald. On the facts before me, I am satisfied that the evidence on country conditions relied upon by the Officer was not extrinsic evidence as that term is used in Shah and that there was no breach of the duty of fairness owed by the Officer to the Applicant.

     Again in Nadarajah, Mr. Justice Rothstein wrote:

Counsel indicated that the current practice of Post-claim Determination Officers is to inform applicants of the documentary evidence of country conditions that is being considered. That appears to be a reasonable approach to take in such cases. However, given the minimal standard of fairness applicable to such proceedings according to Shah, the failure to do so, unless the country conditions information is not public and is material to the decision, does not, in my opinion, amount to a breach of the rules of procedural fairness applicable to these cases.

Once again, while I conclude that failure to disclose is not a breach of the duty of procedural fairness applicable in cases such as this, I am in agreement that disclosure, with a reasonable opportunity to respond, is ".... a reasonable approach to take" in cases such as this.

     A uniform question was certified in each of the decisions of Mr. Justice Rothstein and Mr. Justice Heald cited herein. That question was in the following terms:

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 considers documentary evidence about general country conditions not contained in the applicant's immigration file without advising the applicant of his or her intention to do so, and without providing the applicant an opportunity to respond to same?

The same question will be certified in this matter.

"Frederick E. Gibson"

Judge

Toronto, Ontario

November 7, 1996

     FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

COURT NO:              IMM-149-96

STYLE OF CAUSE:      JUAN PETRO VASQUEZ GARCIA

                 - and -

                 THE MINISTER OF CITIZENSHIP

                 AND IMMIGRATION

DATE OF HEARING:      NOVEMBER 5, 1996

PLACE OF HEARING:      TORONTO, ONTARIO

REASONS FOR ORDER BY:      GIBSON, J.

DATED:              NOVEMBER 7, 1996

APPEARANCES:

                 Mr. Lorne Waldman

                         For the Applicant

                 Ms. Sadian Campbell

                         For the Respondent

SOLICITORS OF RECORD:

                 Lorne Waldman

                 Barrister & Solicitor

                 281 Eglinton Avenue East

                 Toronto, Ontario

                 M4P 1L3

                         For the Applicant

                 Sadian Campbell

                 Department of Justice

                 2 First Canadian Place

                 Suite 3400, Exchange Tower, Box 36

                 Toronto, Ontario

                 M5X 1K6

                 George Thomson     

                 Deputy Attorney General

                 of Canada

                

                         For the Respondent

                 FEDERAL COURT OF CANADA

                 Court No.:      IMM-149-96

                 Between:

                 JUAN PETRO VASQUEZ GARCIA

     Applicant

                     - and -

                 THE MINISTER OF CITIZENSHIP

                 AND IMMIGRATION

     Respondent

                 REASONS FOR ORDER

__________________

¹      S.O.R./78-172 (as amended)

²      R.S.C. 1985, c. I-2

³      (1994), 170 N.R. 238 (F.C.A.)

⁴      1 March, 1995, Court File IMM-410-95 (unreported) (F.C.T.D.)

⁵      14 May, 1996, Court File IMM-3384-95 (unreported) (F.C.T.D.)

⁶      Dhillon v. The Minister of Citizenship and Immigration, 14 May, 1996, Court File IMM-2775-95 (unreported) and Hardip Singh, 6 June, 1996, Court File IMM-3525-95 (unreported)

⁷      1 October, 1996, Court File IMM-550-96 (unreported) F.C.T.D.

⁸      The reference to a decision of Rouleau J. is to Quintanilla v. Canada (Minister of Citizenship and Immigration) 22 January, 1996, Court File IMM-1390-95 (unreported)