Date:
20121029
Docket:
IMM-765-12
Citation:
2012 FC 1237
Ottawa, Ontario,
this 29th day of October 2012
Present: The
Honourable Mr. Justice Pinard
BETWEEN:
Audace CISHAHAYO
Applicant
and
THE MINISTER OF PUBLIC
SAFETY
AND EMERGENY PREPAREDNESS
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
Audace
Cishahayo (the “applicant”) seeks judicial review of a decision made by Canada
Border Services Agency (“CBSA”) Officer L. Savage (the “officer”) pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the “Act”). In the decision, the officer reconsidered the negative
eligibility decision regarding the applicant’s refugee claim under the Safe
Third Country Agreement (the “STCA”) and decided that the negative eligibility
decision would stand.
[2]
The
applicant is a citizen of Burundi. He claims he left Burundi on November 1,
2011 and that he arrived in Washington, DC on November 2, 2011.
[3]
On
November 14, 2011, the applicant made a claim for refugee protection at the
Saint-Bernard-de-Lacolle port of entry. He claimed he had two sisters in Canada: Ms. Pascaline Uwamahoro, a Canadian citizen, as well as Ms. Françoise Kwizera, who was
recognized as a Convention refugee in Canada and was in the process of applying
for permanent residence status.
[4]
That
same day, the applicant was interviewed by a CBSA officer. The officer also
interviewed Ms. Pascaline Uwamahoro, one of the applicant’s alleged sisters in Canada, over the telephone. The officer found that he doubted the authenticity of the
applicant’s identity documents and was not satisfied that the applicant had
sisters in Canada.
[5]
Also
on November 14, 2011, a Minister’s delegate found that because the applicant
had not satisfied the immigration officer that he qualified under one of the
exceptions stated in sections 159.5 and 159.6 of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (the “Regulations”), the applicant
fell under the STCA and he was ineligible to make a refugee claim in Canada.
This decision is not challenged by the applicant.
[6]
The
applicant wrote a letter to the Chief Supervisory Customs and Border Protection
Officer in Champlain, New York on December 27, 2011 requesting that he ask the
Saint-Bernard-de-Lacolle port of entry to reconsider the negative eligibility
decision regarding his refugee claim in Canada. The applicant enclosed six
identity documents supplementary to the documents he had presented to the CBSA
on November 14, 2011.
[7]
The
Chief Supervisory Officer in Champlain, New York sent the request for
reconsideration to the Saint-Bernard-de-Lacolle port of entry on January 5,
2012. The Acting Chief of Operations for the CBSA at the
Saint-Bernard-de-Lacolle port of entry tasked an officer with the
reconsideration. This officer was not involved in the original negative
eligibility decision concerning the applicant.
[8]
The
officer tasked with the reconsideration examined the supplementary identity
documents provided by the applicant in his letter dated December 27, 2011: a
birth certificate, proof of residence, marriage certificate, baptismal
certificate, and copy of the biographic page of a previous Burundian passport.
The officer concluded that the documents did not bring any new information to
light that was not available to the officers at the time the initial negative
decision was rendered. The officer also stated that the applicant had
demonstrated “he has the ability and the means to obtain documents through a
third party and that he may circumvent normal exit procedures” with regards to
his identity and travel.
[9]
The
officer recommended that the negative eligibility decision regarding the
applicant’s refugee claim should stand. It is this decision that is the subject
of the present judicial review.
* * *
* * * * *
[10]
The
only issue in the present application for judicial review is whether the
officer breached the duty of procedural fairness.
[11]
Correctness
is the standard of review which applies to issues of procedural fairness (C.U.P.E.
v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at para
100; Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3
F.C.R. 392 at para 53).
* * *
* * * * *
[12]
The
applicant submits that the officer’s comments regarding his ability to obtain
travel documents through a third party and circumvent normal exit procedures
indicates that the officer was concerned about fraudulent behaviour. The
applicant argues that the officer violated principles of natural justice by not
giving him the opportunity to address these concerns.
[13]
The
applicant cites several sections of the Citizenship and Immigration Canada
policy manual PP 1 - Processing claims for refugee protection in Canada (the “manual”).
[14]
The
respondent argues that the applicant was already given an opportunity in his interview
on November 14, 2011 to respond to concerns regarding the accuracy of the
information he provided the officer. The respondent submits that in any event,
the officer had no obligation to confront the applicant with information the
applicant himself had provided (Quijano v. The Minister of Citizenship and
Immigration, 2009 FC 1232 at para 30 [Quijano]).
[15]
In
reply, the applicant argues there is no indication in the officer’s notes of
November 14, 2011 that the applicant was given an opportunity to respond to
concerns regarding the genuine nature of the information he provided.
[16]
Under
the STCA, refugee claimants arriving from the United States at the land border
with Canada are only allowed to pursue refugee claims in Canada if they fall within an exception. One exception is if the claimant has a family
member in Canada pursuant to article 159.5 of the Regulations. The onus is on
the claimant to show on a balance of probabilities that he or she qualifies for
the exception (STCA: Statement of Principles, section 3).
[17]
I
agree with the respondent that the Citizenship and Immigration Canada manual
cited by the applicant is not binding, but I note that the jurisprudence cited
by the respondent states that the manuals offer useful insight on the purpose
and meaning of the Act and the Regulations (Cha v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 126, [2007] 1 F.C.R. 409 at para 15;
Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA
125, [2002] 4 F.C. 358 at para 20; Canada (Information Commissioner) v.
Canada (Minister of Citizenship and Immigration), 2002 FCA 270, [2003] 1
F.C. 219 at para 37).
[18]
Nevertheless,
the only reference I see in the manual to the appropriate process for the
reconsideration of a negative eligibility determination based on the STCA is in
Appendix A. Appendix A reproduces the STCA Statement of Principles. Section 6
of the Statement of Principles states that each party (the United States and
Canada) has the discretion to request that the other party reconsider an
ineligibility decision should new information, or information that has not
previously been considered, come to light.
[19]
The
Supreme Court of Canada’s guidance in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker] regarding
the content of the duty of procedural fairness in a particular context is
relevant to the present case because the content of procedural fairness is
variable and must be determined in the specific circumstances of each case (at
paragraph 21).
[20]
I
evaluate the five non-exhaustive factors from Baker in the context of a
reconsideration of a negative eligibility decision under the STCA as follows (Baker,
paras 21 to 28):
1.
The
nature of the reconsideration and the process followed in making it are much
closer to the administrative process than the judicial process. This factor
points to a weaker level of procedural protection.
2.
The
statutory scheme provides no legislative guidance concerning the general
process for a reconsideration of a negative eligibility decision under the STCA
and a judicial review of the reconsideration is a possibility. However, the
reconsideration of ineligibility to claim refugee protection under the STCA is
a crucial step in the refugee protection regime. As this factor provides contrary
direction, it militates toward neither strong nor weak levels of procedural
protection.
3.
The
reconsideration of a negative eligibility decision under the STCA is very
significant to a refugee claimant. The decision-maker reconsiders whether the
claimant should be denied the right to claim refugee protection in Canada. This factor therefore points to a higher level of procedural protection.
4.
I
do not believe a person whose negative eligibility decision under the STCA is
being reconsidered would legitimately expect that the reconsideration process
would feature a high degree of procedural safeguard. The CBSA made no
representations that a certain procedure would be followed. This factor points
to a lower level of procedural protection.
5.
The
Act and the Regulations are silent on the procedures to be followed for the
reconsideration of a negative eligibility decision under the STCA. This
militates towards respecting the choice of procedure made by the CBSA in the
circumstances. This factor therefore points to a weaker level of procedural
protection.
[21]
Weighing
the Baker factors, I believe the content of the duty of fairness in the
present context is on the low end of the spectrum.
[22]
In
the absence of relevant case law regarding the content of this duty in the
present context, I have considered the content of the duty of fairness in other
contexts. Writing in the context of a federal skilled worker application,
Justice Yves de Montigny states in Talpur v. The Minister of Citizenship and
Immigration, 2012 FC 25 [Talpur] at para 21, that the duty of
fairness often requires that the officer provide an opportunity for the
applicant to disabuse the officer of any concerns about the credibility,
accuracy or genuine nature of information submitted by the applicant in support
of their application. Justice de Montigny relies on Justice Richard G. Mosley’s
summary of the law on this issue in Hassani v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1283, [2007] 3 F.C.R. 501:
[24] Having reviewed
the factual context of the cases cited above, it is clear that where a concern
arises directly from the requirements of the legislation or related
regulations, a visa officer will not be under a duty to provide an opportunity
for the applicant to address his or her concerns. Where however the issue is
not one that arises in this context, such a duty may arise. This is often the
case where the credibility, accuracy or genuine nature of information submitted
by the applicant in support of their application is the basis of the visa
officer’s concern, as was the case in Rukmangathan [Rukmangathan v.
Canada (Minister of Citizenship and Immigration) (2004), 247 F.T.R. 147
(F.C.)], and in John [John v. Canada (Minister of Citizenship and
Immigration) (2003), 26 Imm.L.R. (3d) 221 (F.C.T.D.)] and Cornea [Cornea
v. Canada (Minister of Citizenship and Immigration) (2003), 30 Imm.L.R.
(3d) 38 (F.C.)] cited by the Court in Rukmangathan, above.
[23]
Although
Talpur examines a federal skilled worker class application, I find that Talpur
is the most relevant case advanced by the parties. I am persuaded by Talpur
for two reasons. First, Talpur deals specifically with the question of
the officer’s duty of fairness when the applicant provides information the
officer believes is not authentic. Second, both the process at issue in Talpur
and the process in the present case are subject to the lower end of the
spectrum for the content of the duty of procedural fairness (Talpur at
paragraph 21).
[24]
In
Quijano, above, this Court examined the officer’s duty of procedural
fairness regarding a humanitarian and compassionate application and a
pre-removal risk assessment application, which are also processes distinct from
the one at issue in the present case. The officer in that case was concerned
about contradictions, omissions, and implausibilities in information the
applicant herself had provided with respect to various elements of her
narrative, including the discovery of compromising documents and the names of
the applicant’s persecutors. However, I am not convinced that Quijano
applies to the case at hand because, in contrast to Talpur, that
decision does not address the duty of an officer who is concerned specifically
with whether the evidence submitted by an applicant is fraudulent.
[25]
I
conclude therefore that an officer reconsidering a negative eligibility
decision under the STCA has the duty to give the applicant an opportunity to
disabuse the officer of any concern over the authenticity of the applicant’s
documents. I agree with the applicant that there is no indication in the
officer’s notes from the initial screening on November 14, 2011 that the
applicant was given such an opportunity. I am of the opinion that the officer
in the present case breached the duty of procedural fairness by not giving the
applicant this opportunity before drawing an adverse inference from the
officer’s concern over document forgery.
* * *
* * * * *
[26]
For
the above-mentioned reasons, the application for judicial review is allowed and
the matter is sent back for redetermination by a different Border Services
Officer.
[27]
I
agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The applicant’s
application for judicial review is allowed. The decision of Canada Border
Services Agency Officer L. Savage, in which he reconsidered the negative
eligibility decision regarding the applicant’s refugee claim under the Safe
Third Country Agreement and decided that the negative eligibility decision
would stand, is set aside and the matter is sent back for redetermination by a
different Canada Border Services Agency Officer.
“Yvon
Pinard”
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