Date: 19990302
Docket: A-910-96
CORAM: STRAYER J.A.
LINDEN J.A.
ROBERTSON J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
- and -
SHPETIM DERVISHI
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario on
Monday, March 1, 1999)
ROBERTSON J.A.:
[1] The Motions Judge held that the evidence relied on by the Post Claims Determination Officer following receipt of the respondent"s submission was not "novel" or "significant". In our view, there is no basis on which we can say that the Motions Judge erred in making that determination. Thus, according to the principles established in Mancia v. Casula , the following certified question should have been answered in the negative:
| Does an Immigration Officer conducting a review pursuant to the PDRCC regulations violate the principle of fairness as enunciated by the Federal Court of Appeal in Shah, when he or she considers documentary evidence about general country conditions not contained in the applicant"s immigration files and which post-dates in terms of publication the date of the submissions by or on behalf of the person in respect of whom the review is being conducted, without advising that person of the intention to consider that evidence, and without providing that person an opportunity to respond to same? |
[2] The respondent invited us to revisit and reject our decision in Mancia, as it relates to the above noted issue, and in so doing, advanced several intelligent arguments none of which is persuasive in our opinion. At the end of the day one must remember that the post determination refugee process is not adversarial in nature, nor does the duty of fairness demand the type of disclosure being sought in this case.
[3] That being said, it is clear to us that needless litigation over whether post submission evidence is novel or significant could be avoided if officers either abstained from using such evidence or by supplying it to claimants and, correlatively, by giving them an opportunity to respond before making a final determination.
[4] The appeal will be allowed and the certified question answered in the negative. The order of November 7, 1996 will be set aside and substituted with one dismissing the application for judicial review.
"J.T. Robertson"
J.F.C.A.
FEDERAL OURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-910-96
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| Appellant |
| - and - |
| SHPETIM DERVISHI |
| Respondent |
DATE OF HEARING: MONDAY, MARCH 1, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
| OF THE COURT BY: ROBERTSON J.A. |
Delivered at Toronto, Ontario
on Monday, March 1, 1999
APPEARANCES: Mr. David Tyndale
| For the Appellant |
| Ms. Toni Schweitzer |
For the Respondent
| SOLICITORS OF RECORD: Morris Rosenberg |
| Deputy Attorney General of Canada |
| For the Appellant |
Jackman, Waldman and Associates
| Barristers & Solicitors |
| 281 Eglinton Avenue East |
| Toronto, Ontario |
| M4P 1L3 |
For the Respondent
FEDERAL COURT OF APPEAL
Date: 19990301
Docket: A-910-96
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
- and -
SHPETIM DERVISHI
Respondent
REASONS FOR JUDGMENT
OF THE COURT