Date: 20021209
Docket: IMM-5699-01
Neutral citation: 2002 FCT 1276
BETWEEN:
OSARETIN PAUL ERO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SNIDER, J.
[1] The Applicant, Osaretin Paul Ero (the "Applicant"), seeks a judicial review of the decision of R. Klagsbrun, Post Claim Determination Officer (the "PCDO") dated November 9, 2001. The PCDO determined that the Applicant was not a member of the Post Determination Refugee Claimants in Canada class (the "PDRCC class"), as defined in s. 2(1) of the Immigration Regulations 1978, S.O.R./78-172, as amended.
[2] The Applicant seeks an order quashing the decision of the PCDO and referring the matter back for reconsideration by a different officer in a manner consistent with the reasons of this Court.
Background
[3] The Applicant, a 34 year old male citizen of Nigeria, claimed Convention refugee status in Canada in 2000 on the basis of a well-founded fear of persecution by members of the Ijaw tribe. He claimed that his difficulty with the Ijaw tribe arose because of his association with his aunt who was targeted by the Ijaw because of her connections to the Itsekiri tribe. The Ijaw and Itsekiri tribes were in conflict in Nigeria.
[4] On February 8, 2001, the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board") determined that the Applicant was not a Convention refugee. The Board based this determination on its findings that there was no nexus between the Applicant's fear of the Ijaw and a Convention ground, that the Applicant had an internal flight alternative, that there was insufficient reliable evidence that the authorities in Nigeria intended to charge and prosecute the Applicant and that adequate state protection was available to him.
[5] The Applicant applied for consideration under the PDRCC class. On November 2, 2001, the PCDO completed a risk assessment of the Applicant in accordance with the Immigration Act, R.S.C. 1985, c. I-2 and determined that the Applicant was not a member of the PDRCC class, as defined. The PCDO found insufficient persuasive evidence to indicate that the authorities or any other group or individual would be interested in harming the Applicant upon his return to Nigeria. The PCDO relied on the Decision of the Board, the U.S. Department of State Country Reports on Human Rights Practices for 2000, the Applicant's Application for Consideration Under the PDRCC Class, the Applicant's PIF and the documentary evidence submitted by the Applicant. The Applicant made no submissions.
[6] The PCDO did not disclose his risk assessment to the Applicant prior to making his final determination regarding whether the Applicant was a member of the PDRCC class.
[7] On January 30, 2002, the Applicant was removed from Canada pursuant to a removal order.
Issues
1. Did the PCDO breach the principles of procedural fairness in his assessment of the Applicant's application under the PDRCC class?
2. Have the Applicant's removal from Canada and changes in the applicable law rendered this application moot or redundant?
Applicant's Submissions
[8] The Applicant submitted that the PCDO officer breached procedural fairness by failing to disclose his concerns to the Applicant prior to rendering a final decision. In the Applicant's submission, the Applicant has a right to know the case that must be met and the PCDO must allow sufficient time for the Applicant to reply to issues raised in the report.
[9] In support of its submissions, the Applicant relied on the decision of Lemieux J. of this Court in Soto v. Canada (Minister of Citizenship and Immigration), 2001 FCT 818, [2001] F.C.J. No. 1207 (QL), which is directly on point. The Applicant also drew analogies between the PDRCC determination process and the humanitarian and compassionate (H & C) decision making process and the issuance of danger opinions. In the latter two processes, the disclosure of reports before a final decision is made is required (Bhagwandass v. Canada (Minister of Citizenship and Immigration, [2001] 3 F.C. 3 (C.A.); Haghighi v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 407 (C.A.)).
[10] The Applicant relied extensively on the Federal Court of Appeal decision in Haghighi, supra, specifically referring to the "contextual considerations relevant to determining whether the immigration officer was required by the duty of fairness to disclose the PCDO's report to the respondent for comment" set out in paragraph 28 of that decision. The Applicant's argument was that these considerations were equally applicable to the concerns of the PCDO officer in this case.
[11] Finally, the Applicant referred to the decision of the Federal Court of Appeal in Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205, where that Court adopted the following words of Lord Parker C.J. in In re H.K. (An Infant), [1967] 2 Q.B. 617 (H.L.) at page 630:
... even if an immigration officer is not in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him (emphasis added)
[12] With respect to the argument of the Respondent that this issue was moot, the Applicant submitted that this case was analogous to Bochnakov v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 271 (T.D.) (QL). In that case, this Court expressed the view that the PDRCC Regulations could be interpreted as contemplating voluntary departure and not departure pursuant to a removal order. By analogy, it is reasonable to read the provisions of s. 112 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA") to apply only where someone is involuntarily removed from Canada. In this case, the Applicant did not leave Canada voluntarily, but pursuant to a removal order. Accordingly, the Applicant submits that the issue is not moot since he would be allowed to pursue the pre-removal risk assessment ("PRAA") set out in s. 112 of the IRPA from outside Canada. The PRAA replaces the PDRCC determination.
Respondent's Submissions
[13] The Respondent argued that there is no basis, either in legislation or in jurisprudence, to require a PCDO to disclose his risk assessment to the Applicant before determining if the Applicant is a member of the PDRCC. The PCDO made his decision on the basis of information that was available to the Applicant. The Respondent relied on the decision of McKeown J. of this Court in Mia v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1150, [2001] F.C.J. No. 1584 (QL). The Respondent submitted that the principles applying to H & C decisions and to danger opinions do not apply to the PDRCC process.
[14] The Respondent further submitted that the Applicant's argument, when taken to its logical conclusion, is that any administrative decision-maker has an obligation, in every case, to circulate 'draft reasons' for review and comment before they are able to make a decision. By analogy, it would be similar to requiring this Court to circulate its draft decisions and reasons to the parties for comments before any order could be issued.
[15] As a result, the Respondent submitted that the PCDO did not breach procedural fairness by not disclosing this assessment prior to his final decision.
[16] The Respondent also argued that this application should be dismissed because the removal of the Applicant from Canada has rendered this application moot. The PDRCC class no longer exists as a result of the coming into force on June 28, 2002 of the Immigration and Refugee Protection Regulations (the "Regulations") S.O.R./2002-227. In the submission of the Respondent, under the Regulations a PRAA is available only to persons who have not been removed.
Analysis
Issue 1: Did the PCDO officer breach the principles of procedural fairness in his assessment of the Applicant's application under the PDRCC class?
[17] For the reasons that follow, it is my view that there was no duty on the PCDO to disclose any concerns prior to rendering the final decision and thus no reviewable error was committed.
[18] The Applicant submitted that the duty of fairness required the PCDO to disclose his concerns to the Applicant and give him an opportunity to comment on those concerns prior to making a final decision. It is unclear what those specific "concerns" were. In spite of capable arguments by the Applicant, I cannot characterize these "concerns" as anything more than the PCDO's analysis of the evidence, which was available to the Applicant. The Applicant was unable to identify any specific examples or "immediate impressions" that resulted in a situation where the Applicant was unaware of the case that he had to meet. Absent such examples, I conclude that the effect of accepting the Applicant's argument would be tantamount to allowing the Applicant to comment on the report itself before its finalization. That issue has been before this Court in a number of decisions.
[19] In Mia, supra, at paragraph 11, McKeown J. clearly distinguished the context in Haghighi, supra, from the situation under review:
With respect, I disagree that the principles of fairness require a PCDO conducting a risk assessment to determine if the applicant is a member of the PDRCC class to disclose the risk assessment prior to making his decision. In my view, this would be tantamount to a decision-maker being required to provide its reasons for the decision for comment prior to making the final decision. This is a case where the person who reviewed the evidence made the decision. No one else was involved. This is not a case where the decision maker is receiving input from other persons than the applicant. Further, I note that Haghighi dealt with an application under humanitarian and compassionate grounds.
The approach taken by McKeown J. was specifically endorsed by Hansen J. in Chen v. Canada (Minister of Citizenship and Immigration), 2002 FCT 266, [2002] F.C.J. No. 341 (T.D.) (QL). In Chowdhury v. Canada (Minister of Citizenship and Immigration), 2002 FCT 389, [2002] F.C.J. No. 503 (T.D.) (QL), Blanchard J. held that a PCDO is under no obligation to disclose her notes to the applicant for consideration and response before making a negative PDRCC decision.
[20] In addition, there is a clear trend in recent jurisprudence to refrain from extending the principles of Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, Haghighi, supra, and Bhagwandass, supra, to the PDRCC process. In Ramachandran v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1431 (T.D.) (QL) and Chen, supra, Gibson J. and Hansen J., respectively, held that the principles of Baker, supra,and Haghighi, supra, governing H & C decisions do not automatically extend to PDRCC.
[21] In Haghighi, supra, the immigration officer determining the H & C application obtained a risk assessment from a PCDO. The Federal Court of Appeal held that when a person is making an H & C application and does not know that a risk opinion is being sought from another officer, that opinion is extrinsic evidence which must be disclosed. In the present case, the risk assessment was not obtained from a third party, and was, in fact, the very opinion the Applicant had asked the PCDO to make.
[22] In Bhagwandass, supra, the Federal Court of Appeal held that the danger opinion process is adversarial and requires that the danger opinion report, prepared for the Minister or the Minister's delegate by Ministry officials, be disclosed to the applicant. The Court also rejected the argument that danger opinion reports were reasons. Rather, the reports contained the recommendation of the Ministry officials and not the reasons for rendering the danger opinion. In contrast, the PDRCC process is not adversarial and no information is obtained from third parties (Khanam v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1090, [2001] F.C.J. No. 1497 (QL)). In Khanam, supra, McKeown J. held that the disclosure requirements pertaining to the danger opinion process are inapplicable in the PDRCC context.
[23] In conclusion, the reasoning of McKeown J. in Mia, supra, is logical and convincing and has been endorsed by subsequent case law. It is also in line with the recent jurisprudential trend to carefully distinguish H & C and danger opinion cases from PDRCC cases and to refrain from sweeping generalizations based on Baker, supra, and Haghighi, supra. Therefore, there was no duty on the PCDO to disclose his concerns or risk analysis prior to rendering his decision.
Issue 2: Have the Applicant's removal from Canada and changes in the applicable law rendered this application moot or redundant?
[24] I am also of the view that this application has been rendered moot by the removal of the Applicant from Canada.
[25] If I had, in this case, accepted the arguments of the Applicant and set aside the decision of the PCDO and referred the matter back for re-determination, that re-determination would have taken place under s. 199 of the IRPA, which provides as follows:
| 199. Sections 112 to 114 apply to a redetermination of a decision set aside by the Federal Court with respect to an application for landing as a member of the post-determination refugee claimants in Canada class within the meaning of the Immigration Regulations, 1978.
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199. Les articles 112 à 114 s'appliquent au nouvel examen en matière de droit d'établissement d'une personne faisant partie de la catégorie de demandeurs non reconnus du statut de réfugié au Canada au sens du Règlement sur l'immigration de 1978 et la décision à prendre en l'espèce est rendue sous son régime. |
[26] Sections 112-114 of the IRPA relate to the PRRA. Since the Applicant has returned to Nigeria, this Court cannot order a PRRA, which is essentially a risk assessment that takes place prior to an individual's removal from Canada. As a result, the issues related to procedural fairness have become academic. Even if I were to agree with the Applicant's submissions on the procedural fairness issue, the remedy sought by the Applicant could not be granted. As a result, the decision of the Court on the procedural fairness issue will have no practical effect on the rights of the Applicant. Therefore, the first step in the mootness analysis as set out by the Supreme Court of Canada in Borowski v. Canada (A.G.), [1989] 1 S.C.R. 342 has been met.
[27] The second step of the Borowski, supra,test concerns whether I should exercise my discretion to hear the case. In my opinion, this question should be answered in the negative. In Borowski, supra, the Supreme Court of Canada set out three factors which would justify the exercise of discretion to hear a moot issue: collateral consequences of the decision for the parties; the issue is of a recurring nature, but brief duration (such as an illegal strike); or the issue is one of public or national importance. None of these factors is present in this case. As addressed above, this Court does not have the power to order the Minister to provide the Applicant with a PRRA. In addition, as pointed out by the Respondent, the Applicant does have a pending H & C application, which could involve a risk assessment that is very similar to the PRRA assessment. As a result, the Applicant has an opportunity to receive another risk assessment, regardless of the outcome of this application for judicial review. Consequently, no injustice will be suffered by the Applicant if this application is dismissed on grounds of mootness.
Question for certification
[28] The Applicant requested that the following question be certified:
When deciding whether a person is a member of the post-determination refugee claimants in Canada class, is a PCDO required, by the principles of procedural fairness, to disclose his concerns to the person for comment prior to his decision being considered final?
[29] In my view, the "concerns" would be case-specific. Accordingly, I do not think that this is a question of general importance. Further, since this application is now moot, there is no need to certify this question.
Conclusion
[30] For the foregoing reasons I dismiss this application.
"Judith A. Snider"
JUDGE
OTTAWA, ONTARIO
December 9, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: IMM-5699-01
STYLE OF CAUSE: Osaretin Paul Ero v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 4, 2002
REASONS FOR ORDER BY: The Honourable Madam Justice Judith A. Snider
DATED: December 9, 2002
APPEARANCES:
Mr. Gregory James for the Applicant
Ms. Param-Preet Singh for the Respondent
SOLICITORS OF RECORD:
Mamann & Associates
Toronto, Ontario for the Applicant
Mr. Morris Rosenberg
Deputy Attorney General of Canada for the Respondent