Date: 20020815
Docket: IMM-4898-01
Neutral citation: 2002 FCT 878
Montréal, Quebec, August 15, 2002
Before: The Honourable Mr. Justice Blais
BETWEEN:
KARIM MAJERBI
Plaintiff
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Immigration officer Jean-Marc Sirois (hereinafter "the Immigration officer") on October 2, 2001, which dismissed the application for immigrant visa exemption filed by the plaintiff pursuant to s. 114(2) of the Immigration Act (hereinafter "the Act").
FACTS
[2] The plaintiff was born in Tunisia on September 21, 1971.
[3] He arrived in Canada on September 23, 1999, and claimed refugee status.
[4] The Refugee Division dismissed the plaintiff's claim after finding that the plaintiff's testimony was not credible. The Division even found that the plaintiff's claim lacked a credible basis pursuant to s. 69.1(9.1) of the Act.
[5] In July 2001 the plaintiff filed an immigrant visa exemption application pursuant to s. 114(2) of the Act, alleging that humanitarian considerations warranted an exemption to the proper application of the Act. In particular, he alleged a valid fear of persecution on the ground that he would be exposed to a term of imprisonment if he returned to Tunisia because of a conviction for drug trafficking.
[6] By a letter dated October 2, 2001, the Immigration officer informed the plaintiff that he had concluded that the plaintiff was not likely to suffer abuse if he returned to Tunisia, and also concluded that there were not sufficient humanitarian considerations to justify an exception to the proper application of the Act.
POINTS AT ISSUE
1. Did the Immigration officer have a duty to disclose the analysis of the risk of return which he made personally and to give the plaintiff an opportunity to make comments before reaching a final decision on the immigrant visa exemption application?
2. Was the Immigration officer's decision reasonable?
ANALYSIS
Did the Immigration officer have a duty to disclose the analysis of the risk of return which he made personally and to give the plaintiff an opportunity to make comments before reaching a final decision on the immigrant visa exemption application?
[7] No, the Immigration officer did not have a duty to disclose the analysis of the risk of return and give the plaintiff an opportunity to make comments before reaching a final decision on the immigrant visa exemption application.
[8] The plaintiff submitted that the Immigration officer failed in his duty of fairness and rendered an unreasonable decision. The plaintiff relied entirely on Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407 (F.C.A.).
[9] In Haghighi, supra, the Court concluded that before rendering his decision the Immigration officer contravened the fairness obligation by not telling the plaintiff the content of the risk assessment by the review officer and by not giving him a reasonable opportunity to try to identify errors or omissions in that assessment.
[10] Haghighi, supra may be distinguished from the case at bar on three grounds. First, the Federal Court of Appeal held that the Immigration officer had a duty to disclose to the plaintiff a report which was prepared by a third party, namely a post-claim determination officer (PCDO), with which she agreed, and that she should have given him an opportunity to make corrections to that report. No report was filed by a third party in the case at bar. The analysis of the risk of return was made by an Immigration officer alone and is part of the final decision.
[11] Secondly, earlier decisions of this Court have been hesitant to impose on the Immigration officer a duty to disclose to the plaintiff the content of his or her analysis of the risk of return. In Soto v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1207 (F.C.T.D.), Lemieux J. concluded that a post-claim determination officer had a duty to disclose to the plaintiff a return risk assessment report which he made himself before reaching a final decision. In Mia v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1584 (F.C.T.D.), McKeown J. expressed his disagreement with that reasoning as follows:
[para. 11] . . . 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.
[12] Further, in Siavashi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1132 (F.C.T.D.), McKeown J. stated that it was not usual to give the parties reasons in order to get their comments before the decision itself was rendered:
[para 10] I cannot agree with this analysis since the Baker case, [1999] 2 S.C.R. 817, specifically provides that the summary document constitutes the reasons. It is not normal to provide reasons to the parties for comments before the issuance of the decision. The failure to disclose the summary report would only cause a problem if new facts were included in the summary which were not known to the Applicant. This is not the situation in this case.
[13] I entirely concur in that reasoning. Accepting the plaintiff's argument in the case at bar would amount to requiring administrative decision-makers to provide a draft of their decisions to plaintiffs before making a final decision, which would be ridiculous.
[14] Thirdly, the return risk assessment made by the Immigration officer was based largely on the contradictions and inconsistencies already noted by the Refugee Division when it dismissed the plaintiff's claim. The plaintiff was fully aware of that decision at the time he made his immigrant visa exemption application. Despite this, the plaintiff did not provide the necessary explanations when he filed his application. He is now trying to provide them (at paras. 40 to 49 of his affidavit). In Haghighi, supra, the Federal Court of Appeal was careful to state that disclosure of the PCDO report should not be used by the plaintiff as a pretext to submit arguments which he could have presented earlier:
[37] . . . I would only add that an apportunity to draw attention to alleged errors or omissions in the PCDO'S report is not an invitation to applicants to reargue their case to the immigration officer.
[15] I find that the Immigration officer did not fail in his duty of fairness since, for all the aforementioned reasons, there was no duty to disclose his return risk analysis to the plaintiff. Further, the plaintiff had an opportunity, when he filed his immigrant visa exemption application, to provide the explanations he is now seeking to provide. At the judicial review stage, it is no longer the proper forum for such matters.
Was the Immigration officer's decision reasonable?
[16] Yes, the Immigration officer's decision was reasonable.
Risk of return to Tunisia
[17] The risk of return analysis was a document titled [TRANSLATION] "Opinion" (Exhibit B in the affidavit by Jean-Marc Sirois in the defendant's memorandum), which was conducted personally by the Immigration officer. The Immigration officer referred to the risk of return as follows:
[TRANSLATION]
[page 2] Despite the RD's unfavourable decision regarding the plaintiff, I still considered everything which was submitted to me in writing in order to determine whether he could be exposed to an objectively identifiable risk.
After reviewing the plaintiff's complete personal immigration file, I have come to the conclusion that no such risk exists as the facts he set out do not support his allegations of a fear of a possible return to Tunisia.
[My emphasis.]
[18] It was reasonable for the Immigration officer to conclude that the plaintiff was not likely to suffer abuse if he returned to Tunisia, and there were no sufficient humanitarian considerations to warrant an exemption to the proper application of the Act.
Refugee Division's findings
[19] It was also reasonable for the Immigration officer to agree with the findings of the Refugee Division, in particular since the course of events described by the plaintiff was inconsistent. In the same document, the Immigration officer wrote:
[TRANSLATION]
[page 2] There were several inconsistencies in his story, the chief ones being identified in the RD's written reasons. Thus, the plaintiff was not able to show that he had a valid fear of persecution in Tunisia or that there was a credible basis for his claim.
. . . . .
I will not go back to that question, as it is exclusively within the jurisdiction of the RD. The course of events seems inconsistent to me also and to date the plaintiff has provided no satisfactory explanation.
[My emphasis.]
Penalties imposed on plaintiff
[20] Further, it was reasonable for the Immigration officer to conclude that even assuming the plaintiff had really been convicted in Tunisia the penalties imposed on the plaintiff were neither inhumane nor excessive, in view of the seriousness of the offences with which the plaintiff was charged. Similarly, the Immigration officer wrote:
[TRANSLATION]
[pages 2-3] . . . The allegations of a risk of return seem somewhat exaggerated to me in view of the present situation in Tunisia, which seems to be less serious than the plaintiff would have us believe.
In general, the plaintiff attributed his fear of the Tunisian authorities to the following:
-having been unjustly charged and convicted in a drug case;
-being in Italy throughout the proceeding;
-having been sentenced to serve terms of 10 and 5 years' imprisonment in Tunisia;
-his return was a sort of extradition, like other well-known prisoners of conscience.
. . . . .
[page 3] In the circumstances, I do not consider that the imprisonment alleged by the plaintiff could represent inhuman or excessive punishment in view of the seriousness of the offences he described.
. . . . .
[page 5] After considering all the facts alleged, the possibilities that the plaintiff could be threatened or even subject to abuse in Tunisia do not seem to me to be sufficient to warrant serious consideration.
[My emphasis.]
Documents lacking in credibility
[21] The Immigration officer reasonably attached little weight to the documents filed by the plaintiff regarding his criminal record in Tunisia. The Immigration officer indicated:
[TRANSLATION]
[page 3] In his comments in support of his PRAC, he stated that this was due to the fact that at his hearing he did not have the relevant documents to support these facts. However, a copy of the latter now accompanied his residence application. Unfortunately, these documents are either undated, unsigned or unauthenticated by a seal, a statement by a translator or a seal by the authorities: in general, their form leaves much to be desired. For these reasons, I cannot attach any significant weight to them in my decision.
Not a case of a well-known political opponent being sought
[22] Finally, the Immigration officer could reasonably find that the plaintiff's case differed from that of well-known political opponents.
[23] The plaintiff was not politically involved and there was nothing in the evidence to indicate any interest by the authorities in him. To illustrate, the Immigration officer wrote:
[TRANSLATION]
[page 4] . . . The plaintiff did not establish that he was being sought in his country. In his PIF, he answered "no" each time to questions 20 and 21, namely whether he was being sought or had been convicted of an offence. Further, in his PRAC, to question J, "organizations to which you have belonged since age 18", he indicated "I have never been a member of an organization".
Accordingly, I do not believe that the plaintiff is politically involved in his country. I also do not believe he is of any interest whatever to the Tunisian authorities, and no mention has so far been made of any particular warrant.
. . . . .
[My emphasis.]
[page 5] In spite of everything, I do not think the plaintiff has been targeted by the authorities in his country, that he is the subject of reprisals, as he did not persuade me that he was wanted in Tunisia. I also do not believe that his case is comparable to that of well-known figures whom he mentioned in his submissions, as he did not himself allege any political involvement in his personal background.
[24] As to the assessment of other humanitarian considerations, once again the plaintiff did not show the Court that the Immigration officer's conclusions were unreasonable.
[25] The application for judicial review is accordingly dismissed.
[26] Both parties agreed in suggesting that the following question be certified: [TRANSLATION] "When an Immigration officer makes a decision on landing pursuant to s. 114(2) of the Immigration Act, based on alleged risks of return, should that officer disclose his findings on the risks of return so as to give the plaintiff an opportunity to respond before making a final decision in the case?"
[27] At the risk of disappointing the two parties in the case at bar, I do not feel that this question is a serious question of general importance within the meaning of s. 83(1) of the Immigration Act. I think that the Court of Appeal's decision in Haghighi, supra, is quite clear enough and the subsequent judgments of the Federal Court, including McKeown J. in Mia, supra and Sia Vashi, supra, Hansen J. in Chen v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 341, and Lemieux J. in Okutubo v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 207, which appears to qualify his decision in Soto, supra, confirm that the rules of fairness are not infringed when the officer who has made the risk assessment is the same one who made the final decision on the visa exemption application.
[28] Further, the risk of return assessment is an opinion which is part of the decision and of its reasons, and that opinion does not have to be disclosed to the plaintiff in advance for comment.
[29] I therefore consider that this question has already been decided and so it will not be certified.
| "Pierre Blais"
Judge |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
| FEDERAL COURT OF CANADA TRIAL DIVISION Date: 20020815
Docket: IMM-4898-01 Between:
KARIM MAJERBI
Plaintiff
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
|
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: IMM-4898-01
STYLE OF CAUSE: KARIM MAJERBI
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 14, 2002
REASONS FOR ORDER AND ORDER: BLAIS J.
DATE OF REASONS: August 15, 2002
APPEARANCES:
Marie-Josée L'Écuyer FOR THE PLAINTIFF
Sébastien Dasylva FOR THE DEFENDANT
SOLICITORS OF RECORD:
Marie-Josée L'Écuyer FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Montréal, Quebec