Date: 19990121 Docket: IMM-2499-97
BETWEEN:
ADRIAN COJOCAR
Applicant
-and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent
REASONS FOR ORDER
EVANS J.:
A. INTRODUCTION
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act R.S.C. 1985, c. F-7 [as amended] in which the applicant seeks to have reviewed and set aside a decision, dated May 23, 1997, by an immigration officer that there were insufficient compassionate and humanitarian grounds for the applicant to be exempted under subsection 114(2) of the Immigration Act R.S.C. 1985, c. I-2 [as
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amended] from the statutory requirements with which applicants for permanent residence status in Canada must normally comply.
B. BACKGROUND
[2] The applicant, a citizen of Romania, came to Canada in 1993. In 1995 he claimed refugee status on the ground that he feared persecution on religious grounds in Romania. In particular, he said that he was liable to be prosecuted for failing to obey an order to report for military service, and that it was contrary to his religious beliefs as a Jehovah's Witness to serve in the armed forces. The Refugee Division dismissed his claim; however, since its decision was not included in the record, I am unaware of the reasons for it.
[3] The applicant subsequently applied for landing on compassionate and humanitarian grounds under subsection 114(2) of the Immigration Act. He was interviewed by an immigration officer on January 23, 1996, to whom he reiterated his fear that, if returned to Romania, he would be tried and punished for refusal to be drafted into the military despite his religious objection.
[4] In accordance with departmental practice, the officer requested an opinion from a Post-Claims Determination Officer (hereinafter "PCDO") assessing the risk to which the applicant was likely to be exposed if he were required to return to Romania. In his risk
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assessment report, dated February 24, 1997, the PCDO concluded that in his opinion the applicant would not be at risk in Romania. This report was not disclosed to the applicant, but was presumably considered by the immigration officer when deciding to reject the applicant's compassionate and humanitarian claim.
C. THE ISSUES
[5] The applicant challenged the validity of the immigration officer's decision on four
grounds.
(i) The PCDO's report was "extrinsic evidence" which the immigration officer was required by the duty of fairness to disclose so that the applicant could respond to it, prior to the determination of his subsection 114(2) claim.
(ii) In characterizing as "neither draconian, inhumane nor severe" the one to three months' imprisonment, or fine, to which the applicant would be liable if convicted under Romanian law of failing to report for military service, the PDCO exceeded his jurisdiction by making a legal determination, which was, in any event, perverse.
(iii) The PCDO's conclusion that the Romanian authorities were unlikely to be enforcing the military draft law vigorously was mere speculation and supported by no evidence.
(iv) In noting that he had read that a law had been tabled in the Romanian parliament providing for alternative service for contentious objectors, the PCDO had taken into account an irrelevant consideration.
D. ANALYSIS
[6] The leading case on the review of decisions made under the compassionate or humanitarian provisions of subsection 114(2) is Shah v. Canada(Minister of Employment
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and Immigration) (1994), 29 Imm. L.R. (2d) 82 (F.C.A.). On the question of procedural fairness, Hugessen J.A. stated at pages 83-84 that, in view of the discretionary nature of these decisions, the content of the duty is minimal, although if the officer "is going to rely on extrinsic evidence not brought forward by the applicant, she must be given a chance to respond to such evidence." Addressing more generally the review of the exercise of discretion under subsection 114(2), Hugessen J.A. noted that applicants have a "heavy burden" to discharge before the Court will intervene.
Issue 1
[7] Counsel argued that the applicant had been denied procedural fairness because the immigration officer had not disclosed to him for comment the report of the PCDO, which the immigration officer had considered in making her decision that there were insufficient compassionate and humanitarian considerations to justify a positive exercise of discretion under section 114(2). Counsel for the applicant maintained that the report amounted to extrinsic evidence since it contained information that he had not supplied to the officer. He relied in particular on Al-Joubeh v. Canada(Minister of Citizenship and Immigration) (1996) 33 Imm. L.R. (2d) 77 (F.C.T.D.), where a PCDO had based an opinion on country conditions in part on an oral conversation with another officer, a book and an article. It was held in that case that, since there was much that the applicant could have said in response to this information, it was a denial of the duty of fairness for the immigration officer to rely on it without first disclosing it to the applicant for comment.
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[8] More recently, however, it has been held that fairness does not require an officer to disclose for comment information that the PCDO has obtained about general country conditions from the Documentation Centre of the Immigration and Refugee Board, on the ground that this information is publicly available, and anyone familiar with the process would anticipate that the PCDO was likely to consult it: Mancia v. Canada (Minister of Citizenship and Immigration) [1998] 3 F.C. 461 (F.C.A.). In the absence of any fording in Al-Joubeh about whether it was reasonable to have expected the applicant or his counsel to have anticipated the use that would be made of the materials relied on, the authoritativeness of this decision must now be regarded as suspect, at least as regards the book and the article.
[9] To return to the facts of this case, counsel for the respondent submitted that all the information relied on by the PCDO pertaining to the existence of religious persecution in Romania, and the tabling of the amendment to the conscription law to provide an alternative form of service for conscientious objectors, was drawn from the Documentation Centre. Accordingly, the information was publicly available, and it was reasonable to expect that the applicant or his counsel would familiarize themselves with the relevant holdings of the Documentation Centre before making their submissions to the immigration officer under subsection 114(2).
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[10] Counsel for the applicant did not deny that the PCDO's information came from the Documentation Centre, although he argued that it did not pertain to "general country conditions" for the purpose of the exemption from disclosure formulated in Mancia because of the specific nature of some of the issues to which it related. In my view, however, the phrase "general country conditions" in this context is intended to distinguish matters that are of general knowledge, from those on which the applicant is likely to be particularly well-informed and therefore should be heard, because, for example, they concern the claimant personally or the claimant's activities.
[11] The failure to disclose the report was thus not a breach of the "minimal" content of the duty of fairness applicable in this decision-making context. Since the report contained information that was readily available to the public, including the applicant and his counsel, and it was reasonable for them to anticipate that the PCDO would consult it, it was not "extrinsic evidence" within the rule in Shah's case.
Issue 2
[12] Counsel for the applicant argued that, in characterizing the penalty that might be imposed on the applicant for failing to report for military service as "neither draconian, inhumane, nor severe", the PCDO erred in law by making a legal determination of an issue, which was not within his statutory authority. In addition, the PCDO's conclusion
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was so unreasonable as to invalidate the immigration officer's decision that was made in reliance on it.
[13] In my view, there is nothing to this point. The PCDO was simply giving his opinion, not determining a legal question. The opinion was not, of course, binding on the immigration officer, and since it referred to the penalty prescribed by the law of Romania, it was obviously not a matter that was within the special knowledge or expertise of the PCDO. Because the immigration officer had as much knowledge about this issue as the PCDO, the immigration officer would not be under any special compunction to adopt the PCDO's opinion. Whether or not one agrees with the PCDO's opinion, since the immigration officer was not obliged in law or in fact to adopt it, it did not taint the validity of her decision that the applicant had not established sufficient compassionate or humanitarian grounds to support a recommendation that he should be landed in Canada outside the normal statutory provisions.
Issue 3
[14] The applicant attacked as merely speculative the PCDO's conclusion that, since the applicant had little difficulty in obtaining a passport, it was unlikely that the Romanian authorities would enforce the draft law against him with any vigour if he were returned. Counsel for the applicant suggested that an equally plausible explanation was that the issue of passports and the enforcement of the criminal law were the responsibility
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of different government departments. To the extent that the immigration officer based her decision on a report containing a statement of fact supported by no evidence, her decision to reject the subsection 114(2) application was erroneous in law.
[15] Counsel relied on two decisions in support of this proposition, both of which
concerned determinations by the Refugee Division. In Wu v. Canada(Minister of
Citizenship and Immigration) [1992] F.C.J. No. 458 (F.C.A.), Mahoney J.A. held that, in
emphasizing the ease with which the applicant had obtained a passport, the Refugee
Division had erred in law, since
"It is clear from the entirety of the relevant testimony that ... the passport issuer being a different authority from that conducting the investigation, would not have known of the investigation unless and until he were convicted."
A similar conclusion was reached in Ponce-Yon v. Canada(Minister of Employment and Immigration) [1994] F.C.J. No. 212 (F.C.T.D.), where there was evidence that the passport issuing authority was not the agent of persecution and that the Government did not refuse passports to its critics.
[16] In the case before me, however, there was no evidence about the arrangements made by the Romanian government for the issuing of passports. And in the absence of any evidence on the issue, the PCDO's inference was no more than an opinion based on the limited facts before him. Moreover, even if counsel's suggestion that passports and criminal prosecutions are dealt with by different branches of the government is correct, so
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that the applicant might not have come to the attention of the former, this very lack of coordination may itself indicate that the Romanian authorities have more pressing issues to deal with than tracking down conscientious objectors to the draft.
[17] The PCDO's expression of a perhaps dubious view, given as one of several bases of a risk assessment opinion, not a legal determination, is not sufficient to invalidate the immigration officer's decision.
Issue 4
[18] Finally, the applicant argued that it was an error for the PCDO, as part of his assessment of the risks to which the applicant would be exposed if returned to Romania, to refer to the existence of a tabled amendment to the Romanian Criminal Code that would provide conscientious objectors with an alternative to military service. Since the amendment was not law, it was irrelevant to the applicant's liability to be prosecuted and potentially imprisoned for disobeying the law in force in Romania when the immigration officer made her decision. By basing her decision on the PCDO's report, the immigration officer must herself thereby have taken into account an irrelevant factor and thus erred in law.
[19] 1 do not find this submission persuasive. Again, it is important to bear in mind that the PCDO was merely providing his opinion of the risk to which the applicant might
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be exposed if returned to Romania. It seems to me entirely reasonable for an officer when giving a risk opinion to take into account a possible amendment to the law. Even if the amendment were not enacted by the time that the applicant returned, it would at least be an indicator of the current and potential attitude of the Romanian authorities to those who refused on grounds of conscience to serve in the military. The existence of the proposed amendment suggests a climate of opinion that is less hostile to religious objectors, and tends to decrease the risk of persecution that the applicant is likely to face. The immigration officer, of course, was free to give whatever weight to this information that she chose.
[20] For these reasons, I dismiss this application for judicial review.
OTTAWA, ONTARIO John M. Evans
January 21, 1999. J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-2499-97
STYLE OF CAUSE: Adrian Cojocar v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 15, 1998
REASONS FOR ORDER BY: The Honourable Mr. Justice Evans
DATED: January 21, 1999
APPEARANCES:
Mr. Mark Rosenblatt for the Applicant
Ms. Sudabeh Mashkuri for the Respondent
SOLICITORS OF RECORD:
Mr. Mark Rosenblatt
Toronto, Ontario for the Applicant
Mr. Morris Rosenberg
Deputy Attorney General of Canada for the Respondent