2012 FC, 2012 FC 1237

Federal Court Cour fédérale Date: 20121029 Docket: IMM-765-12 Citation: 2012 FC 1237 Ottawa, Ontario, this 29 th day of October 2012 Present: The Honourable Mr. Justice Pinard BETWEEN: Audace CISHAHAYO Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENY PREPAREDNESS Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] Audace Cishahayo (the “applicant”) seeks judicial review of a decision made by Canada Border Services Agency (“CBSA”) Officer L. Savage (the “officer”) pursuant to subsection 72(1) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (the “Act”).

In the decision, the officer reconsidered the negative eligibility decision regarding the applicant’s refugee claim under the Safe Third Country Agreement (the “STCA”) and decided that the negative eligibility decision would stand. [ 2 ] The applicant is a citizen of Burundi. He claims he left Burundi on November 1, 2011 and that he arrived in Washington, DC on November 2, 2011. [ 3 ] On November 14, 2011, the applicant made a claim for refugee protection at the Saint-Bernard-de-Lacolle port of entry. He claimed he had two sisters in Canada: Ms. Pascaline Uwamahoro, a Canadian citizen, as well as Ms.

Françoise Kwizera, who was recognized as a Convention refugee in Canada and was in the process of applying for permanent residence status. [ 4 ] That same day, the applicant was interviewed by a CBSA officer. The officer also interviewed Ms. Pascaline Uwamahoro, one of the applicant’s alleged sisters in Canada, over the telephone.

The officer found that he doubted the authenticity of the applicant’s identity documents and was not satisfied that the applicant had sisters in Canada. [ 5 ] Also on November 14, 2011, a Minister’s delegate found that because the applicant had not satisfied the immigration officer that he qualified under one of the exceptions stated in sections 159.5 and 159.6 of the Immigration and Refugee Protection Regulations , SOR/2002-227 (the “Regulations”), the applicant fell under the STCA and he was ineligible to make a refugee claim in Canada. This decision is not challenged by the applicant.

[ 6 ] The applicant wrote a letter to the Chief Supervisory Customs and Border Protection Officer in Champlain, New York on December 27, 2011 requesting that he ask the Saint-Bernard-de-Lacolle port of entry to reconsider the negative eligibility decision regarding his refugee claim in Canada. The applicant enclosed six identity documents supplementary to the documents he had presented to the CBSA on November 14, 2011. [ 7 ] The Chief Supervisory Officer in Champlain, New York sent the request for reconsideration to the Saint-Bernard-de-Lacolle port of entry on January 5, 2012.

The Acting Chief of Operations for the CBSA at the Saint-Bernard-de-Lacolle port of entry tasked an officer with the reconsideration. This officer was not involved in the original negative eligibility decision concerning the applicant. [ 8 ] The officer tasked with the reconsideration examined the supplementary identity documents provided by the applicant in his letter dated December 27, 2011: a birth certificate, proof of residence, marriage certificate, baptismal certificate, and copy of the biographic page of a previous Burundian passport.

The officer concluded that the documents did not bring any new information to light that was not available to the officers at the time the initial negative decision was rendered. The officer also stated that the applicant had demonstrated “he has the ability and the means to obtain documents through a third party and that he may circumvent normal exit procedures” with regards to his identity and travel. [ 9 ] The officer recommended that the negative eligibility decision regarding the applicant’s refugee claim should stand.

It is this decision that is the subject of the present judicial review. * * * * * * * * [ 10 ] The only issue in the present application for judicial review is whether the officer breached the duty of procedural fairness. [ 11 ] Correctness is the standard of review which applies to issues of procedural fairness ( C.U.P.E. v. Ontario (Minister of Labour ), 2003 SCC 29 , [2003] 1 S.C.R. 539 at para 100 ; Sketchley v.

Canada (Attorney General) , 2005 FCA 404 , [2006] 3 F.C.R. 392 at para 53 ). * * * * * * * * [ 12 ] The applicant submits that the officer’s comments regarding his ability to obtain travel documents through a third party and circumvent normal exit procedures indicates that the officer was concerned about fraudulent behaviour.

The applicant argues that the officer violated principles of natural justice by not giving him the opportunity to address these concerns. [ 13 ] The applicant cites several sections of the Citizenship and Immigration Canada policy manual PP 1 - Processing claims for refugee protection in Canada (the “manual”). [ 14 ] The respondent argues that the applicant was already given an opportunity in his interview on November 14, 2011 to respond to concerns regarding the accuracy of the information he provided the officer.

The respondent submits that in any event, the officer had no obligation to confront the applicant with information the applicant himself had provided ( Quijano v.

The Minister of Citizenship and Immigration, 2009 FC 1232 at para 30 [ Quijano ] ). [ 15 ] In reply, the applicant argues there is no indication in the officer’s notes of November 14, 2011 that the applicant was given an opportunity to respond to concerns regarding the genuine nature of the information he provided. [ 16 ] Under the STCA, refugee claimants arriving from the United States at the land border with Canada are only allowed to pursue refugee claims in Canada if they fall within an exception. One exception is if the claimant has a family member in Canada pursuant to

article 159.5 of the Regulations . The onus is on the claimant to show on a balance of probabilities that he or she qualifies for the exception (STCA: Statement of Principles,

section 3). [ 17 ] I agree with the respondent that the Citizenship and Immigration Canada manual cited by the applicant is not binding, but I

note that the jurisprudence cited by the respondent states that the manuals offer useful insight on the purpose and meaning of the Act andthe Regulations (Cha v.

Canada (Minister of Citizenship and Immigration), 2006 FCA 126, [2007] 1 F.C.R. 409 at para 15; Legault v.Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4 F.C. 358 at para 20; Canada (Information Commissioner) v.Canada (Minister of Citizenship and Immigration), 2002 FCA 270, [2003] 1 F.C. 219 at para 37). [18] Nevertheless, the only reference I see in the manual to the appropriate process for the reconsideration of a negative eligibilitydetermination based on the STCA is in Appendix A. Appendix A reproduces the STCA Statement of Principles.

Section 6 of theStatement of Principles states that each party (the United States and Canada) has the discretion to request that the other party reconsideran ineligibility decision should new information, or information that has not previously been considered, come to light. [19] The Supreme Court of Canada’s guidance in Baker v.

Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817 [Baker] regarding the content of the duty of procedural fairness in a particular context is relevant to thepresent case because the content of procedural fairness is variable and must be determined in the specific circumstances of each case (atparagraph 21). [20] I evaluate the five non-exhaustive factors from Baker in the context of a reconsideration of a negative eligibility decisionunder the STCA as follows (Baker, paras 21 to 28): 1.

The nature of the reconsideration and the process followed in making it are much closer to the administrative process than thejudicial process. This factor points to a weaker level of procedural protection. 2. The statutory scheme provides no legislative guidance concerning the general process for a reconsideration of a negative eligibilitydecision under the STCA and a judicial review of the reconsideration is a possibility. However, the reconsideration of ineligibility toclaim refugee protection under the STCA is a crucial step in the refugee protection regime.

As this factor provides contrary direction, itmilitates toward neither strong nor weak levels of procedural protection. 3. The reconsideration of a negative eligibility decision under the STCA is very significant to a refugee claimant. The decision-makerreconsiders whether the claimant should be denied the right to claim refugee protection in Canada. This factor therefore points to ahigher level of procedural protection. 4.

I do not believe a person whose negative eligibility decision under the STCA is being reconsidered would legitimately expect thatthe reconsideration process would feature a high degree of procedural safeguard. The CBSA made no representations that a certainprocedure would be followed. This factor points to a lower level of procedural protection. 5. The Act and the Regulations are silent on the procedures to be followed for the reconsideration of a negative eligibility decisionunder the STCA. This militates towards respecting the choice of procedure made by the CBSA in the circumstances.

This factortherefore points to a weaker level of procedural protection. [21] Weighing the Baker factors, I believe the content of the duty of fairness in the present context is on the low end of thespectrum. [22] In the absence of relevant case law regarding the content of this duty in the present context, I have considered the content ofthe duty of fairness in other contexts. Writing in the context of a federal skilled worker application, Justice Yves de Montigny states inTalpur v.

The Minister of Citizenship and Immigration, 2012 FC 25 [Talpur] at para 21, that the duty of fairness often requires that theofficer provide an opportunity for the applicant to disabuse the officer of any concerns about the credibility, accuracy or genuine natureof information submitted by the applicant in support of their application. Justice de Montigny relies on Justice Richard G. Mosley’ssummary of the law on this issue in Hassani v.

Canada (Minister of Citizenship and Immigration), 2006 FC 1283, [2007] 3 F.C.R. 501: [24] Having reviewed the factual context of the cases cited above, it is clear that where a concern arises directly from the requirementsof the legislation or related regulations, a visa officer will not be under a duty to provide an opportunity for the applicant to address his orher concerns. Where however the issue is not one that arises in this context, such a duty may arise.

This is often the case where thecredibility, accuracy or genuine nature of information submitted by the applicant in support of their application is the basis of the visaofficer’s concern, as was the case in Rukmangathan [Rukmangathan v. Canada (Minister of Citizenship and Immigration) (2004), 2004FC 284 , 247 F.T.R. 147 (F.C.)], and in John [John v. Canada (Minister of Citizenship and Immigration) (2003), 2003 FCT 257, 26 Imm.L.R. (3d) 221 (F.C.T.D.)] and Cornea [Cornea v. Canada (Minister of Citizenship and Immigration) (2003), 2003 FC

972 , 30 Imm.L.R. (3d) 38 (F.C.)] cited by the Court in Rukmangathan, above. [23] Although Talpur examines a federal skilled worker class application, I find that Talpur is the most relevant case advanced bythe parties. I am persuaded by Talpur for two reasons. First, Talpur deals specifically with the question of the officer’s duty of fairnesswhen the applicant provides information the officer believes is not authentic.

Second, both the process at issue in Talpur and the processin the present case are subject to the lower end of the spectrum for the content of the duty of procedural fairness (Talpur at paragraph21). [24] In Quijano, above, this Court examined the officer’s duty of procedural fairness regarding a humanitarian and compassionateapplication and a pre-removal risk assessment application, which are also processes distinct from the one at issue in the present case.

Theofficer in that case was concerned about contradictions, omissions, and implausibilities in information the applicant herself had providedwith respect to various elements of her narrative, including the discovery of compromising documents and the names of the applicant’spersecutors.

However, I am not convinced that Quijano applies to the case at hand because, in contrast to Talpur, that decision does notaddress the duty of an officer who is concerned specifically with whether the evidence submitted by an applicant is fraudulent. [25] I conclude therefore that an officer reconsidering a negative eligibility decision under the STCA has the duty to give theapplicant an opportunity to disabuse the officer of any concern over the authenticity of the applicant’s documents.

I agree with theapplicant that there is no indication in the officer’s notes from the initial screening on November 14, 2011 that the applicant was givensuch an opportunity.

I am of the opinion that the officer in the present case breached the duty of procedural fairness by not giving theapplicant this opportunity before drawing an adverse inference from the officer’s concern over document forgery. * * * * * * * * [26] For the above-mentioned reasons, the application for judicial review is allowed and the matter is sent back forredetermination by a different Border Services Officer. [27] I agree with counsel for the parties that this is not a matter for certification. JUDGMENT The applicant’s application for judicial review is allowed.

The decision of Canada Border Services Agency Officer L. Savage, inwhich he reconsidered the negative eligibility decision regarding the applicant’s refugee claim under the Safe Third Country Agreementand decided that the negative eligibility decision would stand, is set aside and the matter is sent back for redetermination by a differentCanada Border Services Agency Officer. “Yvon Pinard” Judge

FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-765-12 STYLE OF CAUSE: Audace CISHAHAYO v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Montréal , Quebec DATE OF HEARING: October 1 st , 2012 REASONS FOR JUDGMENT AND JUDGMENT: Pinard J. DATED: October 29, 2012 APPEARANCES : Me Mitchell Goldberg FOR THE APPLICANT Me Thi My Dung Tran FOR THE RESPONDENT SOLICITORS OF RECORD : Mitchell Goldberg FOR THE APPLICANT Montréal , Quebec Myles J. Kirvan FOR THE RESPONDENT Deputy Attorney General of Canada