Date: 20020909
Docket: IMM-5741-01
Neutral Citation: 2002 FCT 948
BETWEEN:
PAULOS BOGALE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of a Senior Immigration Officer, dated November 29, 2001, refusing to grant landing to the Applicant.
[2] The Applicant is a citizen of Ethiopia who applied for and was granted Convention refugee status in Canada. The Applicant subsequently applied for permanent residence in February 1992, but a decision was not rendered in due course because Citizenship and Immigration Canada ("CIC") was unable to complete necessary background checks. This delay led the Applicant to bring an application for mandamus to this Court to require CIC to make a final decision on his application. CIC consented to the application and by order of this Court, CIC was required to render a decision by November 30, 2001.
[3] The delay in processing the Applicant's application arose because CIC officials were awaiting official documentation from the Ethiopian government regarding the Applicant's involvement in that country's former regime and the criminal charges that were allegedly pending against him. On November 6, 2001, the CIC War Crimes unit finally received concrete but general evidence of the charges. On November 23, 2001, a one hundred page English translation of the actual indictment and supporting information was received by the Senior Immigration Officer.
[4] On November 29, 2001, the Senior Immigration Officer issued a refusal on the basis that he was not satisfied that the Applicant was not a person described in s.19(1)(j) of the Immigration Act, R.S.C. 1985, c. I-2, which outlines inadmissibility for persons for whom there are reasonable grounds to believe have committed an offense referred to in the Crimes Against Humanity and War Crimes Act. Specifically, the Senior Immigration Officer stated that there was reason to believe that the Applicant was complicit in crimes against humanity. The dates of two specific incidents were cited, along with the number of individuals allegedly murdered. These details were taken directly from the translation of the indictment.
[5] The Applicant's primary argument in bringing this judicial review challenging the decision is that the Senior Immigration Officer breached the duty of fairness by not affording him an opportunity to respond to the specific allegations before a decision was made.
[6] The Respondent submits that no breach occurred because the Applicant was aware of the nature of the case against him. While the record in the previous application for mandamus revealed to the Applicant the reason for the delay and the fact that CIC was attempting to establish whether or not he is a war criminal, I find there was no meaningful opportunity to respond to the specific evidence upon which the final decision was made.
[7] It is well-established that the duty of fairness requires an applicant be informed of negative evidence or negative concerns a decision-maker may have (Muliadi v. M.E.I., [1986] 2 F.C. 205 (F.C.A.). This duty arises in particular when extrinsic evidence is relied upon by the decision-maker (Shah v. M.E.I., [1994] F.C.J. No. 1299 (F.C.A.).
[8] In the present case, the Senior Immigration Officer elicited and received extrinsic evidence, namely the indictment against the Applicant. The Applicant was neither informed of the existence of this document, nor was he afforded an opportunity to respond to the serious allegations cited therein. It is clear from the Applicant's affidavit in support of the present application that he has an evidentiary basis for denying the allegations.
[9] In my opinion, given the serious nature of the allegations and the consequences faced by the Applicant upon a finding of inadmissibility based on s.19(1)(j), I find that the Senior Immigration Officer was under a duty to afford the Applicant adequate opportunity to respond. The failure to do so constitutes a reviewable error.
O R D E R
Accordingly, the decision of the Senior Immigration Officer is set aside and the matter is referred back for redetermination by a different senior immigration officer.
"Douglas R. Campbell"
Judge
Calgary, Alberta
September 9, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5741-01
STYLE OF CAUSE:PAULOS BOGALE v. MCI
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: September 9, 2002
REASONS FOR ORDER AND ORDER : CAMPBELL, J.
DATED: September 9, 2002
APPEARANCES:
Ms. Roxanne Haniff-Darwent FOR APPLICANT
Mr. W. Brad Hardstaff RESPONDENT
SOLICITORS OF RECORD:
Darwent Law Office
Calgary, Alberta FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT