Date: 20070813
Docket: IMM-342-07
Citation: 2007 FC 835
OTTAWA, Ontario, August 13, 2007
PRESENT: The Honourable Max M. Teitelbaum
BETWEEN:
NADIATH RADJI
LEYLA APITHY
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of an immigration officer
(the “Officer”), dated December 14, 2006, wherein the Officer determined that
the applicants would not be at risk if returned to the principal applicant’s
country of nationality. The applicants are also contesting in a separate
application to this Court the H&C decision rendered by the same immigration
officer on the same date.
[2]
Nadiath
Radji, the principal applicant, is a citizen of Benin. Her
daughter Leyla Apithy, a citizen of the United States, is the
other applicant. The principal applicant is a Muslim. She fears her family
because they allegedly tried to force her into a marriage and because of the
fact that she had a Christian boyfriend. In 2002, the applicant followed her
boyfriend to the U.S. While in the U.S. the
applicant became pregnant. Shortly thereafter the applicant and her boyfriend
began having problems and the applicant moved alone to Chicago where she
gave birth to her daughter. Several months after the birth, the applicant left
with her daughter for Benin. She alleged that while in Benin her mother
threatened to poison her and her daughter. As a result of this incident the
applicants returned to the U.S. They arrived in Canada from the United
States
on January 6, 2004 and claimed refugee status upon arrival. In a decision dated
October 7, 2004, the Refugee Determination Division of the Immigration and
Refugee Board (the “Refugee Board”) denied the applicants’ claim on the grounds
that the principal applicant was not credible and had no subjective fear.
[3]
The
applicants made a motion for a stay of removal but this motion was refused on
January 31, 2007 by Mr. Justice Shore. Shortly after
learning that she was to be removed from Canada the primary
applicant was hospitalized due to concerns about her mental health.
Consequently, the applicants were not removed and remained in Canada. They filed
an appeal of the decision not to grant a stay of the removal order which was
quashed by the Federal Court of Appeal for lack of jurisdiction in an order
dated April 18, 2007
THE DECISION UNDER
REVIEW
[4]
The
applicant submitted letters to support her allegations of risk. One letter is
from the primary applicant’s sister and the other four letters are from health
care professionals who treated the applicant at the Clinique Santé Accueil du
CLSC, Côté-des-neiges. The Officer concluded that none of the letters submitted
was evidence to support the applicant’s allegations of risk.
[5]
The
Officer went on to find that there is no proof in the applicant’s file
confirming her claim that she had a relationship with a Christian man nor is
there any proof that her family is Muslim. Moreover, the Officer noted that The
International Religious Freedom Report 2006 indicates that in Benin it is not
uncommon for members of the same family to have different faiths.
[6]
The
Officer then went on to consider whether the primary applicant’s daughter would
be at risk of physical violence and female genital mutilation in Benin. She noted
that the applicant had provided no evidence to support these allegations. The
Officer noted that the documentary evidence indicates that there is a law which
prohibits female genital mutilation but that in practice the government has not
succeeded in completing eradicating the practice. According to the documentary
evidence approximately 17% of women in Benin have been
subjected to female genital mutilation and that 70% of women from the Bariba,
Yoa-Lokpa and Peul ethnic groups are subjected to it. The Officer noted that
the applicant is not from one of these groups and concluded that the primary
applicant had not established that her daughter is at risk of female genital
mutilation.
[7]
In
making her determination, the Officer relied on a number of documents which she
obtained from the internet and which were not disclosed to the applicants.
ISSUE
[8]
Did
the Officer violate the applicant’s right to procedural fairness by
unilaterally consulting and relying upon documentation found on the Internet
which the applicants were not given a chance to respond to?
ANALYSIS
[9]
An
analysis for the appropriate standard of review is not required as the Court
will not defer to a decision if it is determined that the administrative decision-maker
failed to provide procedural fairness (C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 53).
[10]
The
applicant submits that the Officer did not provide the applicants the
opportunity to respond to information taken from websites which are not listed
in the binders available at the Immigration and Refugee Board (IRB)
Documentation Centre. These documents were taken from the following Internet
sites:
-
WiLDAF/FeDDAF
– Afrique de l’Ouest: Femme Droit et Développement en Afrique
-
Association
des Femmes Juristes au Bénin
-
Benin
Development Gateway, and
-
Inter
Press Service Agency, the document from this site is an article entitled
“Droits-Bénin: un ancien praticien abandonne l’excision et veut sensibiliser
les réticents”
[11]
The
applicants submit that this Court has held that unilateral use of the Internet
is unfair (Zamora v. Minister of Citizenship and Immigration, 2004 FC
1414 and Fi v. Minister of Citizenship and Immigration, [2006] FC 1125).
They further argue that the test for whether extrinsic evidence should have
been disclosed as set out in Mancia v. Minister of Citizenship and
Immigration, [1998] 3 F.C. 461 (C.A.), has not been met.
[12]
The
Federal Court of Appeal in Mancia held:
¶ 22 These
decisions are based, it seems to me, on the two following propositions. First,
an applicant is deemed to know from his past experience with the refugee
process what type of evidence of general country conditions the immigration
officer will be relying on and where to find that evidence; consequently,
fairness does not dictate that he be informed of what is available to him in
documentation centres. Secondly, where the immigration officer
intends to rely on evidence which is not normally found, or was not available
at the time the applicant filed his submissions, in documentation centres,
fairness dictates that the applicant be informed of any novel and significant
information which evidences a change in the general country conditions that may
affect the disposition of the case.
¶ 23 To
reach that conclusion, which in my view is the correct one, regard has been
given, as mandated by the caselaw, to a) the nature of the proceeding and
the rules under which the decision-maker is acting, b) the context of the
proceeding and c) the nature of the documents at issue in such proceedings.
[…]
¶ 27 I would therefore answer
the certified question as follows, it being understood that each case will have
to be decided according to its own circumstances and it being assumed that the
documents at issue in a given case are of a nature such as that described
above:
a) with respect to documents relied upon from public sources in
relation to general country conditions which were available and accessible at
Documentation Centres at the time submissions were made by an applicant,
fairness does not require the Post Claims Determination Officer to disclose
them in advance of determining the matter;
b) with respect to documents relied upon
from public sources in relation to general country conditions which became
available and accessible after the filing of an applicant's submissions,
fairness requires disclosure by the Post Claims Determination Officer where
they are novel and significant and where they evidence changes in the general
country conditions that may affect the decision.
[13]
In
the present case, none of the documents were available at the IRB Documentation
Centres although a document produced by WiLDAF/FeDDAF is listed on the Exhibits List of
the Benin Kit available at the IRB Documentation Centre and I find that
information on this organization’s website was available to the applicants (Affidavit of
Jordan Topp, applicants’ record at page 36). With respect to the remaining documents,
it
is not clear whether the documents were available and accessible on the
internet at the time the applicants made their PRRA submissions. An additional
problem is that the parties do not appear to even agree on the date of the
applicants’ latest submissions. Relying on Fi and Zamora, the
applicants submit that whether the documents were available before or after
their last submissions is not relevant since disclosure is always required
where the documents are taken from the internet. In Zamora at
paragraphs 17 and 18, the Court referred to the test in Mancia and
stated:
Neither
MacKay J., nor the Court of Appeal, addressed the issue of the internet. I
cannot believe an applicant can anticipate what documents the officer may
retrieve from the internet, some of which may be of doubtful validity, when
there are over a million to choose from!
The
documents in question were not standard documents such as Human Rights Watch,
Amnesty International or country reports issued under governmental authority,
but rather the result of specific research on the internet carried out by the
PRRA officer. That research, including such documents she may have found were
beneficial to Mr. Aguilar Zamora, should have been disclosed and he should have
been given an opportunity to respond.
[14]
I
agree with the Court’s finding in Zamora. To expect an applicant
to find every possible document available on the internet that might pertain to
conditions in his or her country of nationality is unreasonable.
[15]
In
its written submissions, the respondent cited a number of cases where the Court
held that documents upon which an officer relied on and that were, at the time
the applicant made his submissions, available online but not at the IRB’s
Documentation Centre do not have to be disclosed. These cases are
distinguishable from the present case. In Guzman v. Minister of Citizenship
and Immigration, 2004 FC 838, the documents in questions were country
reports from the U.S. Department of State and IRB research papers and were
available at the IRB Documentation Centre. In Garcia v. Minister of
Citizenship and Immigration, [2006] F.C.J. No. 394 (QL), the documents in question
were from the U.S. Department of State, Amnesty International, the IRB and
Encarta Encyclopaedia. In Rasiah v. Minister of Citizenship and
Immigration, [2004] F.C.J. No. 1476 (QL), the documentary evidence in
question was of a personal nature. In my view, none of these cases are similar
to the present case where the Officer relied on documents taken from websites
which are not generally consulted in immigration decisions. Therefore, where an
immigration officer relies on a document from a non-standard site, i.e. a site
not regularly cited in the IRB National Documentation Packages such as Amnesty
International or the U.S. Department of State, there is a duty to disclose
these documents to the applicant provided that they are novel and
significant and that they evidence changes in country conditions that may
affect the decision. In other words, where a document is taken from a
non-standard website and is not available at the IRB Documentation Centre then
the question of whether the document was available before the latest
submissions of the applicants is not relevant. In my view, this finding it not
inconsistent with the Court of Appeal’s decision in Mancia, because the
Court held that each
case will have to be decided according to its own circumstances and that
consideration must be given to the nature of the documents at issue in such
proceedings.
[16]
The
applicants submit that Mancia did not specifically deal with the use of
the internet and that the Court’s decisions in Fi and Zamora have
altered the test as it is set out in Mancia such that the “novel and
significant” and “evidence changes in the general country conditions that may
affect the decision” portion of the test is no longer required. The applicants
submit that the law as it stands is as follows: where an Officer relied on extrinsic
documents drawn from the Internet that were not available at the IRB
Documentation Centres at the time of the applicant’s submissions, fairness
requires disclosure of those documents if the Officer relies thereupon in
rendering a decision.
[17]
I
do not agree with this submission. The Court in Zamora did, in
fact, apply the “novel and significant” portion of the Mancia test. At
paragraph 18, the Court held:
The
documents in question were not standard documents such as Human Rights Watch,
Amnesty International or country reports issued under governmental authority,
but rather the result of specific research on the internet carried out by the
PRRA officer. That research, including such documents she may have found were beneficial
to Mr. Aguilar Zamora, should have been disclosed and he should have been given
an opportunity to respond. It cannot be said with any confidence that the
documents were not novel, or significant.
(emphasis added)
[18]
The
applicants have provided no compelling argument as to why this part of the test
should be no longer applied and I can think of no reason to discard this
requirement.
[19]
The
applicants submit that the information from the non-disclosed sites are clearly
significant as it constitutes the basis for the Officer’s conclusions
concerning the risks faced by children born out of wedlock, state protection
available to women and girls in Benin, the ascendancy of women’s rights in
Benin and the risks associated with forced marriage. The applicants also submit
that the documents demonstrate a change in country conditions, specifically the
rise of women’s rights as a protection against both female genital mutilation
and forced marriage.
[20]
The
respondent submits that the applicants have not shown that these sources
indicate a change in country conditions. Moreover, the respondent submits that the
contested sources were not primary sources that the Officer used to support her
conclusions and that the sources are not significant or determinative with respect
to the overall decision.
[21]
The
WiLDAF site indicates that there is increased awareness about women’s rights,
including the issues of forced marriage and violence against women. Similarly,
the Association des Femmes Juristes site indicates that there have been
improvements with respect to forced marriage. The information on these two
sites is not significant since the same information is contained within a
document which was disclosed to the applicants, the Freedom House Report 2006.
The Inter Press Services Agency article indicates that attitudes towards female
genital mutilation are changing. This same information is contained within the
2005 U.S. Department of State Report and the IRB Response to Request for
Information, BEN41835.F, both of which were available to the applicants through
IRB Documentation Centres. The final document is from the Benin Development
Gateway Site and contains general information about the health care situation
in Benin. The
information is not relevant to any of the issues addressed in the PRRA and
nowhere in her decision did the Officer refer specifically to this document. I
suspect it was unintentionally included because the Officer considered it in her
assessment of the applicants’ H&C application an application which was done
at the same time as the PRRA file. I conclude that none of the documents is
significant or evidences changes in country conditions and, consequently, the
Officer was not required to disclose them.
[22]
This
application for judicial review is dismissed.
[23]
The
applicants filed the following question for certification in both IMM-342-07
and IMM-343-07:
“Under what condition
does the unilateral consultation of the Internet by an Immigration Office
rendering decision on an humanitarian and compassionate application or a
pre-removal risk assessment application constitute a violation of procedural
fairness, where unilateral consultation of the Internet is understood to
signify the consultation of documents found on the Internet without providing
the applicant(s) an opportunity to comment thereupon?”
[24]
Without
repeating what the respondent states in its written submissions of July 31,
2007, I agree with the respondent as to why the above question need not be
certified.
[25]
I
am satisfied that the proposed question is not determinative of the present
issues as, even if the officer considered documents obtained from the Internet,
the officer’s decision clearly show why she refused the H & C application.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that the application for judicial
review is dismissed.
“Max
M. Teitelbaum”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-342-07
STYLE OF CAUSE: NADIATH RADJI, LEYLA APITHY v. MCI
PLACE OF HEARING: Montreal, Qc
DATE OF HEARING: July 25th, 2007
REASONS FOR JUDGMENT : Honourable
Max M. Teitelbaum
DATED: August
13, 2007
APPEARANCES:
Me
Jared Will
|
FOR THE APPLICANTS
|
Me
Suzon Létourneau
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
Me
Jared Will
400
McGill Street, 2nd
Floor
Montréal (Québec)
H2Y 2G1
|
FOR THE APPLICANTS
|
John H. Sims, c.r.
Department
of Justice Canada
Quebec Regional Office
Guy-Favreau Complex
200, René-Lévesque Blvd. West
East Tower, 5th floor
Montréal
(Québec)
H2Z 1X4
|
FOR THE RESPONDENT
|