Date: 19971106
Docket: IMM-4410-96
OTTAWA, ONTARIO, THE 6th DAY OF NOVEMBER 1997
Present: THE HONOURABLE MR. JUSTICE RICHARD
Between:
CHRISTIAN REINAL CARNAJAL RODRIGUEZ
MARCELA CAROLIN MATURANA VASQUEZ
NATHALIA LUZ CARVAJAL MATURANA,
Applicants,
-AND-
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
ORDER
CONSIDERING the application for judicial review of a decision by a reviewing officer, Raymond Rheault, dated November 8, 1996;
THE COURT ORDERS AS FOLLOWS:
The applicants" application is allowed, the reviewing officer's decision is quashed, and it is ordered that a new risk assessment, as provided for in the Act , be conducted by another reviewing officer.
No question will be certified.
| John D. Richard |
| Judge |
Certified true translation
Stephen Balogh
Date: 19971106
Docket: IMM-4410-96
Between:
CHRISTIAN REINAL CARNAJAL RODRIGUEZ
MARCELA CAROLIN MATURANA VASQUEZ
NATHALIA LUZ CARVAJAL MATURANA,
Applicants,
- AND -
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
RICHARD J.:
[1] This is an application for leave and for judicial review of a decision by a reviewing officer, Raymond Rheault, dated November 8, 1996 that the applicants are not members of the prescribed class of post-determination refugee claimants in Canada (hereinafter PDRCC class).
[2] The applicants' application is based on their submission that they are members of the PDRCC class, and on humanitarian considerations, pursuant to subsection 6(5) of the Immigration Act (hereinafter the Act) and sections 2 and 11 of the Immigration Regulations, 1978 (hereinafter the Regulations). These provisions read as follows:
Subsection 6(5) of the Act
| 6(5) Subject to subsection (8) but notwithstanding any other provision of this Act or any regulation made under paragraph 114(1)(a), an immigrant and all dependants, if any, may be granted landing for reasons of public policy or compassionate or humanitarian considerations if the immigrant is a member of a class of immigrants prescribed by regulations made under paragraph 114(1)(e) and the immigrant meets the landing requirements prescribed under that paragraph. |
Subsection 6(8) of the Act
| 6(8) Where an immigrant is of a prescribed class of immigrants for which the regulations specify that the immigrant and any or all dependants are to be assessed, the immigrant and all dependants may be granted landing if it is established to the satisfaction of an immigration officer that the immigrant and the dependants who are to be assessed meet, collectively, |
| (a) the selection standards established by the regulations for the purpose of determining whether or not and the degree to which the immigrant and all dependants will be able to become successfully established in Canada, as determined in accordance with the regulations; or |
| (b) the landing requirements prescribed by regulations made under paragraph 114(1)(e). |
Section 11.2 of the Regulations
| 11.2 The following classes are prescribed as classes of immigrants for the purposes of subsections 6(5) and (8) of the Act: |
. . .
| (b) the post-determination refugee claimants in Canada class. . . . |
Subsection 2(1) of the Regulations
| 2(1) "member of the post-determination refugee claimants in Canada class" means an immigrant in Canada |
. . .
| (c) who if removed to a country to which the immigrant could be removed would be subjected to an objectively identifiable risk, which risk would apply in every part of that country and would not be faced generally by other individuals in or from that country, |
| (i) to the immigrant's life, other than a risk to the immigrant's life that is caused by the inability of that country to provide adequate health or medical care, |
| (ii) of extreme sanctions against the immigrant, or |
| (iii) of inhumane treatment of the immigrant. . . . |
[3] The reviewing officer concluded that the applicants are not members of the prescribed PDRCC class on the ground that they would, if removed from Canada, be subjected [translation] "to none of the risks identified in the definition of member of the PDRCC class".
[4] In his letter of November 8, 1996, the reviewing officer concluded as follows:
| [translation] I have reviewed your case carefully to assess the risk to which you might be subjected should you be required to leave Canada. I have concluded that you would be subjected to none of the risks identified in the definition of member of the PDRCC class. |
[5] The applicants submit, first, that they are entitled to written reasons explaining why their application has been dismissed. Neither the Act nor the Regulations require reviewing officers to give reasons for their decisions. The applicants have not satisfied this Court that it should intervene on this ground.
[6] At the hearing into their application, the applicants submitted that the reviewing officer had failed to take a relevant factor into account in reaching his decision of November 8, 1996.
[7] The reviewing officer"s notes of November 8, 1996 were filed by the tribunal. These were the notes prepared by Mr. Rheault while assessing the risks to which the applicants would be subjected if removed from Canada.
[8] According to these notes, there were no new facts that might attest to an objectively identifiable risk for Mr. Rodriguez. As for Mrs. Rodriguez, the reviewing officer stated that there was no solid evidence in support of her assertions and that she had not explained how she would personally be at risk.
[9] However, it can be seen from the tribunal"s file that counsel for the applicants had submitted documentation, consisting of an affidavit and supporting exhibits from Mrs. Rodriguez, to the reviewing officer during the day of November 8, 1996. In her affidavit, she declared that she had been threatened by telephone on June 15, 1995.
[10] In a letter dated November 12, 1996 that was produced by the tribunal as constituting part of its file on Mr. Rheault"s negative decision, the reviewing officer gave the applicants the following information:
| [translation] This is to confirm my letter of November 8 in which I informed you that after reviewing your files, I had concluded that you would be subjected to none of the risks identified in the definition of member of the PDRCC class. I reached this conclusion after reviewing the additional documentation submitted by your lawyer on November 8, 1996. |
[11] This letter acknowledged that the additional documentation had been filed on November 8, 1996. Although the reviewing officer"s notes assert that no new facts were submitted to the reviewing officer on November 8, 1996, this letter confirms that new facts were taken into account in reaching the negative decision.
[12] This letter was submitted and placed in the tribunal"s file after the decision was made. No affidavit setting out the circumstances was enclosed with it.
[13] I agree that the officer"s notes do not constitute a transcript of the assessment process and do not constitute reasons. Nevertheless, the fact remains that in conducting his risk analysis, the officer wrote categorically that no new facts had been submitted to him.
[14] In these circumstances, the applicants" application is allowed, the reviewing officer"s decision is quashed, and it is ordered that a new risk assessment, as provided for in the Act , be conducted by another reviewing officer.
[15] No question will be certified.
| John D. Richard |
| Judge |
Ottawa, Ontario
November 6, 1997
Certified true translation
Stephen Balogh
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-4410-96
| STYLE OF CAUSE: CHRISTIAN REINAL CARNAJAL RODRIGUEZ ET AL. v. MCI |
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 14, 1997
REASONS FOR ORDER BY THE HONOURABLE MR. JUSTICE RICHARD
DATED: November 6, 1997
APPEARANCES:
MICHEL LE BRUN FOR THE APPLICANT
JOSÉE PAQUIN FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHEL LE BRUN FOR THE APPLICANT
MONTRÉAL, QUEBEC
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada