Date: 20041124
Docket: IMM-2547-04
Citation: 2004 FC 1648
Montréal, Quebec, November 24, 2004
Present: THE HONOURABLE JOHANNE GAUTHIER
BETWEEN:
ALI REZA MONEMI
Applicant
and
THE SOLICITOR GENERAL FOR CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Monemi seeks judicial review of the decision of the officer who rejected his application for an exemption allowing him to apply for permanent residence from within Canada on humanitarian and compassionate grounds (H & C).
[2] He argues that the officer, who also assessed and rejected his application for pre-removal risk assessment (PRRA), breached her duty of fairness by failing to give him an opportunity to comment on her PRRA decision before deciding his H & C application. The decisions on both applications are dated February 11, 2004 and they were both remitted to him by hand on March 4, 2004.
[3] Mr. Monemi also submits that there was a reasonable apprehension of bias because:
i) the risk elements in his H & C application were essentially the same as those in his PRRA application and this risk was an essential part of the grounds relied upon in his H & C application; and
ii) in deciding his PRRA application, the officer made credibility findings which had a direct impact on the evaluation of his H & C application.
[4] It is not necessary to review any details of the factual background. It is sufficient to say that Mr. Monemi is a citizen of Iran who claims to be at risk in the future if he is removed to his country of origin because a judgment has been issued against him finding him guilty of unethical sexual relations with a married woman and condemning him to 84 whip strokes, 91 days of incarceration and 1 year in exile.
[5] Apart from this risk of mistreatment, Mr. Monemi raised other issues in his H & C application, for example, that his mother, father and brother are well established Canadian citizens, and that he has been steadily employed in Canada since his arrival in June 1999, and has few ties to Iran (a grandmother and two uncles).
[6] After holding "a joint interview", that is, one covering the issues raised in the H & C application as well as in the PRRA application, the officer evaluated the various H & C grounds raised by the applicant and weighed them against negative factors, such as:
i) his request for a permanent resident visa was refused by the Canadian Embassy in Damascus in February 1999 because his parents were ineligible to sponsor him; and
ii) his refugee application was rejected as was his PRRA application.
She concluded that having to apply from outside Canada would create a disruption of the applicant's lifestyle in Canada but would not amount to an unusual and undeserved, or disproportionate hardship.
[7] In her decision, the officer states:
The findings of the PRRA decision are directly relevant and have bearing on the applicant's H & C application, as the allegations of risk are essentially the same. [...] The Applicant's PRRA assessment (February 11, 2004) has determined, based upon extensive objective research evidence, that he will not likely face risk of torture, risk to life, or risk of cruel and unusual treatment or punishment. As such, I do not find that the applicant will not (sic) face risk to his life or risk to security of his person upon return to Iran.
[...]
I note that the Applicant states that he faces risk upon return to Iran. As I have previously indicated, the Applicant's PRRA decision has established that he would not be at risk upon return to Iran as per section 97(1)(a) and (b) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (IRPA). As such, I am satisfied that the applicant will not be subjected to risk to his life or risk to his personal security.
Analysis
[8] As both issues raised by the applicant relate to procedural fairness, there is no need to engage in an assessment of the appropriate standard of review. Rather, I must determine, using the Baker factors, the content of the duty of fairness applicable in this case and whether the officer breached this duty (Ha v. Canada (M.C.I.), [2004] F.C.J. No. 174).
A. Opportunity to comment on the PRRA Decision
[9] Mr. Monemi relies on the decision of the Federal Court of Appeal in Haghighi v. Canada (M.C.I.), [2000] F.C.J. No. 854 (C.A.)(QL), to argue that he was deprived of the opportunity to respond or comment on the negative conclusions found in the PRRA decision.
[10] He says that the Federal Court of Appeal in Haghighi confirmed that Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817 had changed the law and determined that the duty of fairness owed by officers deciding H & C applications was more than minimal. Thus, it held at paragraph 37 that:
[...] the duty of fairness requires that inland applicants for H & C landing under subsection 114(2) be fully informed of the content of th PCDO's risk assessment report, and permitted to comment on it, even when the report is based on information that was submitted by or was reasonably available to the applicant.
[11] The respondent argues that since Haghighi, the Federal Court has rendered several decisions on this issue which were summarized and followed by Martineau J. in Zolotareva v. Canada (M.C.I.), [2003] FC 1274, F.C.J. No. 1596. More particularly, Martineau J. held at paragraph 24:
In light of the above, I am of the opinion that in this case the PRRA Officer had no duty to disclose the analysis of the risk of return and to give the applicant an opportunity to make comments before reaching a final decision on her application. Specifically, there was no obligation for the PRRA Officer to do so where there was no third party involved in the decision making.
[12] The applicant submits that the Court must follow Haghighi because when one applies the Baker factors in Haghighi, there is no valid reason to vary the content of the duty of fairness owed to an applicant based on whether one or two officers will review his H & C and his PRRA applications. He argues that the decisions cited by the respondent misconstrued Haghighi, and therefore the Court should not follow the approach adopted in Zolotareva.
[13] The Baker factors (relevant contextual considerations) applied by the Federal Court of Appeal in Haghighi, to determine if disclosure was necessary include:
1) the extent to which the right claimed is likely to avoid an error, and the seriousness of an erroneous decision;
2) the costs likely to arise from the granting of the right, such as delay in decision-making,
3) the characteristics of the decision-maker, including his expertise,
4) the relevance of the decision in the wider statutory scheme, and
5) the agency practice.
[14] The respondent did not specifically argue how the application of each of those factors would lead the Court to conclude that there was no duty to disclose the PRRA decision. However, he did say that where the risk in the negative PRRA decision is exactly the same as the one put forth by the applicant in his H & C application, granting him the right to comment would serve no purpose other than allowing him to reargue his case. This is obviously relevant with respect to factor 1) above.
[15] It is important to review the existing case law in more detail because the inquiry into what is required to satisfy the duty of fairness must be contextualized. The conclusion reached in a particular context should not automatically be extended to another.
[16] In Haghighi, the initial application for judicial review related to the decision of an H & C application which involved consideration of a risk assessment opinion received from a post-claim determination officer (PCDO).
[17] In Mia v. Canada (M.C.I.), [2001] F.C.J. No. 1584, Chen v. Canada (M.C.I.), [2002] 4 F.C. 193, Chowdhury v. Canada (M.C.I.), [2002] F.C.J. No. 503, and Akpataku v. Canada (M.C.I.), [2004] F.C.J. No. 862, the decisions under review were those of a PCDO on whether an applicant was a member of a the Post-Determination Refugee Claimants in Canada Class (PDRCC) or decisions on a PRRA application. In these cases, the Court found that the duty of fairness could not require disclosure of the decision-maker's own risk assessment because this was the decision as opposed to an opinion. As pointed out by McKeown J. in Mia, to require such disclosure would be tantamount to asking that the decision-maker circulate a draft of his or her decision before issuing it. Also, as explained in Chen, the decision-maker in Haghighi was not a specialist in risk assessment and the weight given to the opinion of the PCDO would have been significant. In such a case, there was a definite risk of error militating disclosure. However, that risk of error is not the same when the decision is made by a risk assessment specialist.
[18] In Majerbi v. Canada (M.C.I.), [2002] F.C.J. No. 1145 and in Zolotareva, the Court was dealing with decisions made on H & C applications by PRRA officers. The Court applied the same reasoning as in Chen and Mia to conclude that there was no need to circulate the risk assessment because it constituted the decision of the risk specialist on the application, and not an opinion.
[19] Similarly, in Bhagwandass v. Canada (M.C.I.) (C.A.), [2001] 3 F.C. 3, the Federal Court of Appeal concluded that the duty of fairness owed by the Minister deciding whether to issue a danger opinion included a duty to disclose reports such as the Ministerial opinion report, received by him because, once again, these documents did not constitute the decision itself but a recommendation or opinion given to the decision-maker.
[20] The point raised in the present case is slightly different and has been dealt with specifically by Blanchard J. in Selliah v. Canada (M.C.I.), 2004 FC 872, [2004] F.C.J. No. 1134. In that case, the Court was reviewing two decisions rendered by the same officer on two separate applications, one for H & C and the other for a PRRA. It had to determine if the officer, having decided the PRRA before deciding the H & C application, should have given an opportunity to the H & C applicant to comment on his PRRA decision.
[21] At paragraph 78, Blanchard J. concluded that, in the particular circumstances of that case, there was no such duty to disclose the PRRA decision prior to rendering the H & C decision. Before doing so, he considered Haghighi and other relevant case law such as Mia, Chen and Majerbi. It is implicit in this decision that Blanchard J. applied all the Baker factors to the particular context before him.
[22] In Singh v. Canada (M.C.I.), [2004] F.C.J. No. 216, the applicant filed an H & C and a PRRA application which were reviewed by two different decision-makers. The officer deciding the H & C application considered the decision of the officer dealing with the PRRA application before it was sent to the applicant. In those circumstances, the Court found that the officer reviewing the H & C application had breached his duty of fairness by not disclosing the PRRA decision to the applicant before reaching his own conclusion on the H & C application. It is clear that in this context Haghighi applied because the PRRA decision was used by the officer reviewing the H & C application as, or in lieu, of a risk assessment opinion. Also, the decision-maker was not a risk specialist.
[23] I find that this case law is consistent and convincing.
[24] I have considered the Baker factors and am satisfied that the applicant was given a reasonable opportunity to participate in a meaningful manner in the decision-making process of his H & C application. There are obvious and important differences between the present case and the situation in Haghighi.
[25] Furthermore, by reasons of judicial comity, this Court is bound to follow a previous decision of the Court unless the decision was manifestly wrong because it failed to consider legislation or binding authorities which would have produced a different result, or it is distinguishable on material facts. (Ahani v. Canada (MCI), [1999 F.C.J. No. 1005). Such exceptions do not apply here and I will adopt the conclusion of Blanchard J. in Selliah.
B. Bias
[26] In his memorandum of fact and law, Mr. Monemi argues that there was a reasonable apprehension of bias [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at pages 394-395), because:
i) by deciding the PRRA application, the officer disqualified herself with respect to the H & C application;
ii) having decided that the applicant would not face a situation described in sections 96 and 97 of the Immigration and Refugee Protection Act S.C., 2001, c. 27 (IRPA) upon his return to Iran, the officer had prejudged the risk element to support his H & C application. It is evident from the decision itself that she relied completely on her previous assessment;
iii) in providing for separate applications under sections 25(1) and 112 of IRPA, Parliament clearly intended that these applications be treated distinctly and allowing the officer to decide the H & C application with her mind already made up about an integral element of the application conflicts with this intent and demonstrates bias.
[27] The respondent submits that the Federal Court of Appeal has already decided in Ahani v. Canada (M.C.I), [2000] F.C.J. No. 1114, that no reasonable apprehension of bias arises merely because one decision-maker is involved in two decisions involving the same applicant. It is also submitted that this conclusion has already been applied with respect to a PRRA officer deciding a PRRA application and an H & C application of an applicant such as Mr. Monemi in Haddad v. Canada (M.C.I.), [2003] F.C.J. No. 579 (QL).
[28] The same conclusion was reached in Bhallu v. Canada (Solicitor General), [2004] F.C.J. No. 1623. Also, in Elkebti v. Solicitor General, IMM-1876-04 and IMM-1877-04, Dawson, J. dismissed a motion to stay a removal order because she was not satisfied that the application raised a serious issue. She stated:
The first was that the Applicant's humanitarian and compassionate application and pre-removal risk assessment ("PRRA") application should have not been considered by the same officer. This has previously been held not to raise a serious issue in the absence of specific evidence of bias. She: Haddad v. the Minister of Citizenship and Immigration, 2003 FCT 405. No evidence of bias or conflict of interest was here adduced.
[29] In this case, Mr. Monemi has not produced any specific evidence of bias or conflict of interest.
[30] After reviewing the authorities cited by the respondent, the applicant argues that his case is special and falls within an exception referred to by the Federal Court of Appeal in Arthur v. Canada (MCI) (1993) 1 FC 94. He says that the decision on his H & C application was a final decision with respect to his right to remain in Canada because this Court granted him a stay of his removal order until the PRRA and the H & C decisions were issued. He also submits that in Ahani, the Federal Court of Appeal recognized that a finding of credibility in an earlier case on the same factual issues "may" create problems. Here, the officer rejected his PRRA application because she questioned his credibility and gave little weight, if any, to the judgment he had submitted. Thus, she should not have continued her evaluation of his H & C application.
[31] I understand from the respondent's representations that the agency's practice as described in the Immigration manual favours the use of a single decision-maker to ensure efficient administration of the various claims and prevent duplication. Thus, there is a preliminary screening of H & C and PRRA applications. Where the preliminary screening indicates that there may be insufficient non-risk factors to support the H & C application, the file is transferred to the PRRA officer who will review the PRRA application. If it is approved there is no need to continue with the H & C application. Alternatively, if there are insufficient risk elements, the PRRA officer will continue his evaluation of the non-risk elements and examine any additional evidence and make a final decision.
[32] Where the preliminary screening indicates that there may be sufficient non-risk H & C factors, the file is transferred to an H & C officer. If the preliminary screening is correct, the H & C application is approved and there is no need to continue with the risk assessment. Alternatively, where the preliminary screening that there may be sufficient non risk H & C factors is incorrect, the H & C officer transfers the file to a PRRA officer for his risk opinion. If that opinion is negative, it is disclosed to the applicant for comments before the file is returned to the H & C officer for final determination. In such cases, the H & C officer would receive the opinion, the comments of the applicant and any additional evaluation of the PRRA officer resulting thereof.
[33] There is no indication that this practice was not followed in this case. In fact, it appears that on December 16, 2003, Mr. Monemi was advised in writing that a PRRA officer had been assigned to decide his H & C and his PRRA application. On January 19, 2004, he was also notified that this officer was going to hold a joint hearing to discuss issues relating to both applications.
[34] At paragraph 7(i) of his additional written representations, Mr. Monemi also says that he relied on representations and directions made by the respondent that both decisions would be made concurrently.
[35] It appears that at no time before the filing of his application for judicial review did Mr. Monemi raise any objection to this consolidation. Such failure would normally be fatal (Suresh v. Canada (M.C.I.), [2000] F.C.J. No. 1026 at paragraph 8 (FCA)), but this point was not argued by the respondent. I will, therefore, analyse the arguments presented by the parties.
[36] I shall deal first with the third point raised by the applicant. The Court cannot agree that Parliament clearly intended that these applications would be decided by different decision-makers. In fact, sections 25(1) and 112 of IRPA state clearly that these applications would both be decided by the Minister. Thus, strictly speaking, IRPA provides that a decision will be made by the same decision-maker. Obviously, the Minister is entitled to delegate his authority to make such decisions and it was not disputed that the PRRA officer had the appropriate delegated authority to review both applications.
[37] Also, IRPA provides for very many types of applications which all serve different purposes and produce very different results. Section 25 itself is very broad and covers much more than requests for an exemption to apply for a permanent visa from within Canada.
[38] In this case, a favourable decision would not have given Mr. Monemi the right to remain in Canada as a resident. Once accepted, he would still have to establish that he meets the other statutory requirements to obtain such status.
[39] The main issue on this H & C application is also quite different from the one to be determined on a PRRA application under section 112. With respect to the H & C application, the decision- maker had to determine if Mr. Monemi would experience unusual and undeserved, or disproportionate hardship if he were to return to Iran to apply for a permanent resident visa. This concept encompasses much more than the narrow requirements relevant to a PRRA application, namely, those set out in sections 96 and 97 of IRPA. Not only does unusual, undeserved, or disproportionate hardship include non-risk elements but it also includes risk elements that may not qualify under sections 96 and 97, such as for example, discrimination that may not amount to persecution.
[40] Obviously, there will be cases where the two applications will involve a similar if not identical factual or evidentiary basis. As previously mentioned, consolidation is done to ensure efficient administration of claims and prevent duplication. In fact, this practice is similar to the consolidation of proceedings provided for in Rule 105 of the Federal Court Rules, 1998. Pursuant to this rule, distinct actions seeking different remedies will be heard together or one after the other if they involve the same or similar factual and evidentiary issues. After a consolidated hearing, the Court will assess the evidence presented including the credibility of the witness, and weigh the documentary evidence only once before determining the distinct rights arising from its factual findings.
[41] In the absence of specific evidence of bias or conflict of interest, this single evaluation of the factual issues and the evidence does not raise a reasonable apprehension of bias.
[42] Having considered the applicable statutory provisions and the overall statutory scheme, I am not satisfied that it was Parliament's intention to prevent such consolidation.
[43] Turning now to the issue of judicial comity. Here again, the applicant has not convinced me that the decisions in Haddad, Bhallu and Elkebti are manifestly wrong because the Court overlooked a statutory provision or some relevant authorities (Ahani v. Canada (MCI), [1999] F.C.J. No. 1005 (QL).
[44] Can this case law be distinguished on the facts? Certainly not on the basis that there was a special relationship between the elements raised in the H & C application and the PRRA. Even if I were to assume for the purpose of this analysis that the finality of the H & C decision distinguishes it from those reviewed by my colleagues in Haddad, Bhallu and Elkebti, I do not believe that this factor alone would justify a different conclusion. The applicant needed to identify other factors indicating a predisposition by the officer.
[45] In Ahani and Arthur, the Federal Court of Appeal only indicates that an earlier finding with respect to credibility may create a problem, not that this will always lead to the conclusion that there is a reasonable apprehension of bias.
[46] Having carefully reviewed the PRRA decision as well as the H & C decision, I could not detect any predisposition of the officer with respect to Mr. Monemi's general credibility that would affect her evaluation of the non-risk elements or of the additional evidence produced by him in support of his H & C application. In fact, the officer assessed many of these elements positively.
[47] With respect to the risk arising from the judgment allegedly issued against him, as I said, there is no evidence or allegation that the officer was anything but impartial when she first analysed this risk and the evidence produced by Mr. Monemi.
[48] As indicated in my Order dismissing Mr. Monemi's application for judicial review of the decision of the officer rejecting his PRRA application in IMM-2548-04, this decision was not unreasonable and the officer clearly considered all the evidence on file.
[49] Mr. Monemi did not submit any additional evidence or any submissions that would have justified a separate analysis of the risk factor in support of his H & C application. In fact, in his own submissions supporting this application, he simply refers to the evidence and his submissions supporting his PRRA application.
[50] Lastly, I must say that if I were to follow the approach advocated by the applicant, it would give a clear advantage to any applicant whose PRRA or H & C applications are rejected because of lack of credibility of the applicant with respect to specific issues, or the lack of credible evidence. In effect, such non-credible applicants would be entitled to a second assessment of their evidence and a chance to tell their story once again. In this case, it would also probably involve a new hearing before a different officer.
[51] I conclude that the applicant has not established that this case can be distinguished on its facts.
C. Certification
[52] The applicant submits the following questions for certification:
i) Does a negative credibility finding by a pre-removal risk officer made in the course of a pre-removal risk assessment create a reasonable apprehension of bias when that same officer goes on to consider the same applicant's humanitarian and compassionate application?
ii) Does procedural fairness require a pre-removal risk assessment officer to provide an applicant an opportunity to comment on the negative pre-removal risk assessment made by that same PRRA officer prior to determining the same applicant's humanitarian and compassionate application?
[53] These questions have clearly been decided. I find that this case turns on its own particular facts and I will not certify any question.
ORDER
THIS COURT ORDERS that:
The application is dismissed.
"Johanne Gauthier"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2547-04
STYLE OF CAUSE: ALI REZA MONEMI
Applicant
and
THE SOLICITOR GENERAL FOR CANADA
Respondent
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: September 9, 2004
REASONS FOR ORDER AND ORDER : GAUTHIER J.
DATED: November 24, 2004
APPEARANCES:
Peter Larlee FOR APPLICANT
Ryan Rosenberg
Peter Bell FOR RESPONDENT
SOLICITORS OF RECORD:
Larlee and Associates FOR APPLICANT
Vancouver, B.C.
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Vancouver, B.C.
In that case, the Court issued its decision in respect of both judicial review applications in one judgment as is often the case.
The summary of the Agency's practice is found at paragraph 30.
The respondent noted that because this manual is only a guideline, this practice may not be uniform across Canada, but it is followed in Vancouver where these applications were filed.
With the exception of persons listed under s. 112(3) of IRPA.
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