[2000] 4 F.C. 407
A-587-99
The Minister of Citizenship and Immigration (Appellant)
v.
Nima Haghighi (Respondent)
Indexed as: Haghighi v. Canada (Minister of Citizenship and Immigration) (C.A.)
Court of Appeal, Stone, Evans and Malone JJ.A.— Toronto, May 1; Ottawa, June 12, 2000.
Citizenship and Immigration — Status in Canada — Permanent residents — Humanitarian and Compassionate considerations — Since S.C.C. decision in Baker, content of duty of fairness owed by immigration officers deciding inland humanitarian and compassionate applications no longer minimal, requiring applicant be fully informed of PCDO’s risk assessment report, and be permitted to comment on it, even if report based on information submitted by or reasonably available to applicant.
Administrative law — Judicial review — Certiorari — Content of duty of procedural fairness in disposition of applications to remain in Canada on humanitarian and compassionate grounds pursuant to Immigration Act, s. 114(2) no longer minimal in view of S.C.C. decision in Baker.
The applicant, an Iranian citizen, made a refugee claim on his arrival in Canada in 1993, but his claim was rejected. His case was subsequently assessed under the post-determination refugee claimants in Canada class, and rejected in 1997. He then applied under subsection 114(2) of the Immigration Act for leave to have his claim to remain in Canada as a permanent resident processed inland on humanitarian and compassionate grounds. He told the immigration officer (IO) that he feared he would be persecuted if returned to Iran because he had converted from Islam to Christianity, and submitted country condition documents relating to Iran in support. The IO requested a risk assessment from a post-claim determination officer (PCDO). The PCDO’s report, relying heavily on a 1997 U.S. Department of State Report on Human Rights Conditions in Iran (a document not included in the applicant’s package but available to him), was negative. Its conclusion was that, if returned to Iran, the applicant did not face a serious risk of torture or other forms of persecution on account of his religious conversion. The PCDO’s report did not refer to a UNHCR background paper on Iran for 1995 which referred to continuing threats and torture of known converts to Christianity. In July 1998, the IO rejected the applicant’s humanitarian and compassionate (H&C) claim to remain in Canada, stating that she concurred with the PCDO’s opinion that the applicant would not be at risk if he were returned to Iran.
This was an appeal from the Trial Division Judge’s decision allowing an application for judicial review to set aside the IO’s decision. The question was: when an H&C claim is based, at least in part, on a fear of persecution in the applicant’s country of origin, is the IO responsible for making the discretionary decision required to disclose to the applicant a negative risk assessment report received from another officer, and to give the applicant an opportunity to respond to it before the final decision is made?
Held, the appeal should be dismissed.
The issue to be decided in this appeal was whether the Trial Division Judge was correct in his conclusion that Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 has changed the law applicable herein. He held that the duty of fairness now included the disclosure of a risk assessment report by a PCDO so that an applicant may attempt to correct errors or to point out omissions in the report, even when the report was based on material submitted by the applicant as part of his H&C application and other publicly available information that was reasonably available to the applicant.
Prior to the Baker decision, the content of the duty of fairness owed by officers deciding inland humanitarian and compassionate applications was regarded as minimal, and did not require the decision maker to disclose risk assessment reports unless they were based on material not reasonably available to the applicant.
The contextual considerations relevant to determining whether the immigration officer was required by the duty of fairness to disclose the PCDO’s report to the respondent for comment include: the extent to which the procedural right claimed is likely to avoid the risk of error in making the decision or in resolving the particular issue in dispute; the seriousness of the impact of an erroneous decision on those affected by it; delays in the decision-making process and the diversion of resources that may be entailed by adding another procedural layer; the characteristics of the decision-maker; the location of the decision within the wider statutory scheme; the procedural practice of the agency.
Although no post-Baker case was produced in which the duty of the IO to disclose PCDO’s reports has been considered, the case of Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 (C.A.) was helpful, inter alia, in view of its interesting similarities.
Now, the duty of fairness requires that inland applicants for H&C landing under subsection 114(2) be fully informed of the content of the PCDO’s risk assessment report, and permitted to comment on it, even when the report is based on information that was submitted by or was reasonably available to the applicant. Given the often voluminous, nuanced and inconsistent information available from different sources on country conditions, affording an applicant an opportunity to comment on alleged errors, omissions or other deficiencies in the PCDO’s analysis may well avoid erroneous H&C decisions by IOs, particularly since these reports are apt to play a crucial role in the final decision.
In view of the potentially grave consequences for an individual who is returned to a country where, contrary to the PCDO’s report, there is a serious risk of torture, the increased accuracy in the decision likely to result from affording the respondent the procedural right sought here justifies whatever administrative delays might thereby be occasioned.
It is true that courts have not invariably required administrative agencies that hold relatively formal hearings to disclose staff reports, especially when they contain no new information, but simply summarize the evidence and submissions of the parties or define the issues to be decided. However, a full hearing provides the participants with a greater opportunity to influence the outcome than that available to applicants under subsection 114(2). And, in other decision-making contexts, staff summaries and commentary may not assume the central importance occupied by the PCDO’s report in subsection 114(2) cases. Further, if wrong, few administrative decisions have the capacity for inflicting such catastrophic harm on individuals as that possessed by the administrative decision with which this case was concerned.
It was a breach of the duty of fairness for the IO, prior to her decision, to have failed to inform the respondent of the content of the PCDO’ s risk assessment, with which she had concurred, and to give him a reasonable opportunity to attempt to identify errors or omissions in it.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Immigration Act, R.S.C., 1985, c. I-2, ss. 70(5) (as am. by S.C. 1995, c. 15, s. 13), 114(2) (as am. by S.C. 1992, c. 49, s. 102).
CASES JUDICIALLY CONSIDERED
APPLIED:
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 14 Admin. L.R. (3d) 173; 1 Imm. L.R. (3d) 1; 243 N.R. 22; Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 619 (T.D.).
OVERRULED:
Cojocar v. Canada (Minister of Citizenship and Immigration) (1999), 162 F.T.R. 151 (F.C.T.D.).
NOT FOLLOWED:
Shah v. Canada (Minister of Employment & Immigration) (1994), 29 Imm. L.R. (2d) 82; 170 N.R. 238 (C.A.); affg (1992), 55 F.T.R. 87 (F.C.T.D.).
DISTINGUISHED:
Mancia v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 461 (1998), 161 D.L.R. (4th) 488; 226 N.R. 134 (C.A.).
CONSIDERED:
Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 (1986), 18 Admin. L.R. 243; 66 N.R. 8 (C.A.).
REFERRED TO:
Toshiba Corp. v. Anti-Dumping Tribunal; Sharp Corp. v. Anti-Dumping Tribunal; Sanyo Corp. v. Anti-Dumping Tribunal (1984), 8 Admin. L.R. 173; 6 C.E.R. 258 (F.C.A.); Armstrong v. Canada (Commissioner of the Royal Canadian Mounted Police), [1998] 2 F.C. 666 (1998), 156 D.L.R. (4th) 670; 222 N.R. 375 (C.A.).
APPEAL from a Trial Division decision (Haghighi v. Canada (Minister of Citizenship and Immigration) (1999), 174 F.T.R. 123) allowing an application for judicial review of an immigration officer’s decision that there were insufficient humanitarian and compassionate reasons to permit the applicant to apply for landing from within Canada under subsection 114(2) of the Immigration Act. Appeal dismissed.
APPEARANCES:
Niveditha Logsetty and James Brender for appellant.
Barbara L. Jackman for respondent.
SOLICITORS OF RECORD:
Deputy Attorney General of Canada for appellant.
Jackman, Waldman & Associates, Toronto, for respondent.
The following are the reasons for judgment rendered in English by
Evans J.A.:
A. INTRODUCTION
[1] This appeal raises an important question about the content of the duty of procedural fairness in the disposition of applications to remain in Canada on humanitarian and compassionate (H&C) grounds pursuant to subsection 114(2) [as am. by S.C. 1992, c. 49, s. 102] of the Immigration Act, R.S.C., 1985, c. I-2.
[2] The question is this: when an H&C claim is based, at least in part, on a fear of persecution in the applicant’s country of origin, is the immigration officer responsible for making the discretionary decision required to disclose to the applicant a negative risk assessment report received from another officer, and to give the applicant an opportunity to respond to it before the final decision is made?
[3] Prior to the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 the content of the duty of fairness owed by officers deciding inland H&C applications was regarded as minimal, and did not require the decision maker to disclose risk assessment reports unless they were based on material not reasonably available to the applicant.
[4] The issue to be decided in this appeal is whether the Trial Division Judge [(1999), 174 F.T.R. 123], Gibson J., was correct in his conclusion that Baker, supra, has changed the law applicable to the instant case. He held that the duty of fairness now includes the disclosure of a risk assessment report by a post-claims determination officer (PCDO) so that an applicant may attempt to correct errors or to point out omissions in the report, even when the report was based on material submitted by the applicant as part of his H&C application and other publicly available information that was reasonably available to the applicant.
B. FACTUAL BACKGROUND
[5] Nima Haghighi is an Iranian citizen who made a refugee claim on his arrival in Canada in September 1993 when he was 17 years old. In a decision dated August 29, 1995, the Convention Refugee Determination Division of the Immigration and Refugee Board rejected Mr. Haghighi’s claim on the ground of credibility. His case was subsequently assessed under the post-determination refugee claimants in Canada class, and rejected in September 1997.
[6] In the following month he applied under subsection 114(2) of the Immigration Act for leave to have his claim to remain in Canada as a permanent resident processed inland on H&C grounds, by virtue of the length of time that he had been in Canada and his academic success here. He was interviewed by an immigration officer in April 1998 when, for the first time, he stated that he feared that he would be persecuted if returned to Iran because he had converted from Islam to Christianity. His then counsel repeated this claim in a letter to the immigration officer, and submitted country condition documents relating to Iran which described, among other things, the extent to which Muslims who have converted to Christianity face difficulties in Iran.
[7] The immigration officer who interviewed Mr. Haghighi in connection with his subsection 114(2) application requested a risk assessment from a PCDO, to whom she sent the file, including the materials submitted on Mr. Haghighi’s behalf by his counsel.
[8] The PCDO’s report was negative. Relying heavily on a 1997 U.S. Department of State Country Report on Human Rights Conditions in Iran (a document not included in the applicant’s package), the PCDO concluded that, despite the draconian penalties to which apostates were theoretically subject in Iran under Islamic law, the only converts in fact at risk are Evangelical ministers and other proselytizers, categories to which Mr. Haghighi does not claim to belong. While the report also acknowledged that all Christian converts were potentially subject to discrimination in employment, education and public accommodation, the PCDO concluded that, if returned to Iran, Mr. Haghighi did not face a serious risk of torture or other forms of persecution on account of his religious conversion.
[9] The PCDO’s report did not refer to a UNHCR background paper on Iran for 1995, which Mr. Haghighi had included in his submissions (Appeal Book, at page 283). This document contains a different assessment of the situation, and concludes (Appeal Book, at page 313) that converts:
… who practice their new religion openly reportedly suffer from various degrees of harassment, ranging from confiscation or refusal to grant a passport, surveillance, threatening blackmail, detention and verbal or physical abuse.
The same document also refers to continuing “threats and torture of known converts” to Christianity (Appeal Book, at page 315).
[10] In a letter dated July 24, 1998, the immigration officer rejected Mr. Haghighi’s claim to remain in Canada on H&C grounds. In the “decision and rationale” section of her report the officer stated that she concurred with the PCDO’s opinion that Mr. Haghighi would not be at risk if he were returned to Iran.
[11] The applicant was granted leave to apply for judicial review of the refusal and, after hearing the application for judicial review on its merits, Gibson J. granted it, set the decision aside and remitted the matter to a different officer.
C. THE DECISION OF THE TRIAL DIVISION
[12] Gibson J. noted that, on virtually identical facts to those in the instant case, I had decided in Cojocar v. Canada (Minister of Citizenship and Immigration) (1999), 162 F.T.R. 151 (F.C.T.D.) that the duty of fairness owed to an applicant for landing on H&C grounds under subsection 114(2) of the Immigration Act did not require the disclosure of the PCDO’s risk assessment report.
[13] I had largely based my conclusion on the statement in Shah v. Canada (Minister of Employment and Immigration) (1994), 29 Imm. L.R. (2d) 82 (F.C.A.), at pages 82-83 that, because of the discretionary and residual nature of the power conferred by subsection 114(2), the content of the duty of fairness was “minimal”, and that applicants had a right to respond only to “extrinsic evidence not brought forward by the applicant” on which the officer relied. Since the PCDO’s report neither contained, nor itself constituted, “extrinsic evidence” within the ruling in Shah, supra, I held that its disclosure was not mandated by the duty of fairness.
[14] However, as Gibson J. pointed out, Cojocar, supra, was decided before the Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration), supra, where (at page 843) the Court held that, largely because of the profound impact that a negative H&C decision is likely to have on the lives of applicants and their children, this Court had been wrong in Shah, supra, to peg the content of the duty of fairness in this context at the minimal level.
[15] Thus, reconsidering the scope of the duty of disclosure in the light of Baker, supra, and quoting from the reasons for judgment of L’Heureux-Dubé J., Gibson J. held that, whether material was “extrinsic” was no longer the test of whether fairness required its disclosure. Rather, the issue was whether [at paragraph 15, page 128]:
… in failing to share a document such as the PCDO’s recommendation and its rationale, and thereafter relying on it, [the immigration officer] has denied the person or persons whose interests are affected, … “… meaningful opportunity to present [his] case fully and fairly” or has denied the applicant “… a meaningful opportunity to present the various types of evidence relevant to [his] case and have it fully and fairly considered.”
[16] He concluded (at paragraph 16 [page 129]) that the applicant had been denied this opportunity because the PCDO had relied more heavily on some documents, including the State Department document, than on others that had been submitted by the applicant:
Clearly, given an opportunity, counsel for the applicant would have put a different “spin” on the material that was before the PCDO and urged the immigration Officer to reject the PCDO’s recommendation and find in favour of the applicant.
[17] Gibson J. also considered briefly, and dismissed, the other grounds of review advanced on behalf of the applicant. Thus, he held, the immigration officer had not unlawfully fettered the exercise of her statutory discretion by simply “rubber stamping” the PCDO’s risk assessment report; had not adopted an overly stringent risk assessment test; and had not failed to have regard to the material before her.
[18] The question certified by Gibson J. is as follows [at paragraph 28, page 130]:
Does an Immigration Officer assessing an application for landing from within Canada on humanitarian or compassionate grounds pursuant to s. 114(2) of the Immigration Act breach the duty of fairness owed to an applicant where he or she relies on a document prepared at the request of the Officer, such as a Post-Claim Determination Officer’s recommendation and rationale, where such document is not disclosed to the applicant and the applicant is given no opportunity to respond to it?
The Minister has appealed.
D. ANALYSIS
Issue: Was it a breach of the duty of fairness for the immigration officer to have failed to disclose the PCDO’s report so that the respondent could reply to it before the officer decided the H&C application?
(i) analytical framework
[19] The following points frame my analysis of this issue. First, while the PCDO relied heavily on a U.S. State Department report on Iran not included in the package that was submitted to the immigration officer on behalf of Mr. Haghighi by his counsel, it was not contended that the PCDO ought to have disclosed that document to the respondent. This was presumably because the report was publicly available in the Documentation Centre of the Immigration and Refugee Board and was reasonably accessible to Mr. Haghighi or his counsel.
[20] In other words, the PCDO’s report contained no facts, or allegations of fact, that were not within the knowledge of Mr. Haghighi. This is therefore not like the situation considered in Mancia v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 461 (C.A.), where the PCDO had consulted articles that were not in existence when the applicant made his submission to be a member of the post-determination refugee claimants in Canada class.
[21] Second, I agree with Gibson J. that Cojocar, supra, must be reconsidered in the light of Baker, supra, because the Supreme Court of Canada plainly disapproved an important part of the reasoning on which that decision had been based, namely that the content of the duty of fairness owed by those making decisions under subsection 114(2) does not rise above the minimal level at which it had been set in Shah, supra.
[22] Third, counsel for the Minister argued that Baker, supra, should not be regarded as requiring the disclosure of the report in our case because the H&C decision under review in Baker, supra, had also been made on the basis of the notes and rationale of an officer other than the decision maker, and yet the Court did not say that it was procedurally unfair not to disclose them before the subsection 114(2) decision was made.
[23] I do not find this submission persuasive. Whether fairness required disclosure of the interviewing officer’s notes, recommendation and rationale prior to the immigration officer’s decision of Ms. Baker’s H&C application was simply not argued by the parties. Further, since PCDOs have an expertise in making risk assessments their reports are likely to be more influential with the requesting immigration officer than, as was the situation in Baker, a recommendation made by a subordinate to a superior immigration officer on whether the application should succeed. For both of these reasons, it would be dangerous to infer from the Court’s silence in Baker, supra, on the question of disclosure that it was thereby implicitly approving the legality of the departmental general practice of not disclosing PCDOs’ reports for comment by subsection 114(2) applicants.
[24] Fourth, while the Supreme Court’s examination in Baker, supra, of the factors relevant to determining how much process was required as a matter of fairness led it to the conclusion that it was more than minimal, the Court did not impose the full range of procedural fairness obligations either.
[25] Thus, the Court did not require immigration officers to interview every applicant for inland landing under subsection 114(2), or to give a separate notice of a pending decision to any children who would be adversely affected by a refusal and the consequent deportation of the applicant. The discretionary nature of the H&C decision, and the non-adversarial and institutional setting in which it is made, reduce the content of procedural fairness below that applicable to an independent adjudicative tribunal deciding the legal rights of individuals.
[26] Fifth, in addition to the admonition that immigration officers owe more than a minimal duty of fairness when deciding subsection 114(2) applications, Baker, supra, also restored to the mainstream of procedural fairness analysis the task of determining the content of the duty of fairness owed by immigration officers when making inland H&C decisions. The question is whether the disclosure of the report was required to provide Mr. Haghighi with a reasonable opportunity in all the circumstances to participate in a meaningful manner in the decision-making process.
[27] Hence, in deciding whether disclosure of the PCDO’s report is required, the Court must consider, inter alia, the factors identified by L’Heureux-Dubé J. for locating on the fairness spectrum the duties owed by the immigration officer in a subsection 114(2) case. The inquiry into what is required to satisfy the duty of fairness must be contextualized: asking, as Shah, supra, directed, whether the report can be characterised as “extrinsic evidence” is no longer an adequate analytical approach.
[28] The contextual considerations relevant to determining whether the immigration officer was required by the duty of fairness to disclose the PCDO’s report to the respondent for comment include the following:
(a) Since an important function of the duty of fairness is to minimize the risk of incorrect or ill-considered decisions, one element of the calculus for determining the procedural content of the duty of fairness in a given case is the extent to which the procedural right claimed is likely to avoid the risk of error in making the decision or in resolving the particular issue in dispute. Another element is the seriousness of the impact of an erroneous decision on those affected by it.
(b) Against these considerations must be balanced any costs likely to attend the recognition of the procedural right claimed, such as delays in the decision-making process and the diversion of resources that may be entailed by adding another procedural layer.
(c) The characteristics of the decision-maker may also provide a clue to the procedural duties that can appropriately be imposed as a matter of fairness. A decision maker with the trappings of an adjudicative body may more readily be expected to comply with procedures which, in their general design, resemble those of courts. On the other hand, where, as here, Parliament has conferred decision-making power on an officer of a government department, it is appropriate to shape the content of the duty of fairness applicable with an eye to the bureaucratic model of decision making that is characterized by expertise, team work and the division of labour.
(d) The location of the decision within the wider statutory scheme is also relevant. Here, subsection 114(2) confers an important element of discretion that enables immigration officers to take into account the personal circumstances of individuals who are not eligible for landing in other immigration categories for which more objective qualifications apply. While an integral component of a rule-oriented immigration regime, decisions made on H&C grounds are discretionary and residual in nature and therefore do not attract the same degree of procedural protection as decisions that involve the determination of a person’s legal rights.
(e) To the extent that agency practice prescribes procedural propriety, it is relevant to note that, while immigration officers do not routinely disclose PCDOs’ risk assessment reports so that subsection 114(2) applicants can respond, this is sometimes done.
(ii) the jurisprudence
[29] Counsel could produce no case decided since Baker, supra, in which the duty of immigration officers to disclose PCDOs’ reports has been considered. However, now that the duty of fairness imposed on immigration officers is no longer minimal, counsel for the respondent relied particularly on Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 (C.A.). The applicant in that case had been refused a visa to be admitted to Canada for permanent residence as an independent immigrant in the entrepreneur category on the basis of an unfavourable assessment of the applicant’s business plan provided by the Ontario Small Business Operations Division of the provincial Department of Industry at the request of the visa officer.
[30] Although the applicant in Muliadi, supra, had provided information to the visa officer, including the names and addresses of those already involved in the new business, no inquiries were apparently made by the provincial authorities before they concluded that the business was not viable. It was held by this Court that the report should have been disclosed so as to give the applicant an opportunity to attempt to correct errors and to bring to the visa officer’s attention the fact that no inquiries of the business had been made.
[31] Muliadi, supra, is not directly on point because it concerned an application to enter Canada as an independent immigrant in the entrepreneur class, a decision that is made on more objective criteria than decisions under subsection 114(2), and therefore may be entitled to greater procedural safeguards. Further, a negative assessment of the viability of the applicant’s business was necessarily determinative of the application for a visa to enter as an entrepreneur, whereas Mr. Haghighi’s H&C claim did not rest entirely on the risk to which he would be exposed in Iran.
[32] On the other hand, the rejection of an H&C claim based on an erroneous risk assessment to the effect that the individual was not seriously in danger of persecution if removed from Canada is potentially likely to have a more severe impact on the individual than the refusal of an overseas visa application for admission as an entrepreneur.
[33] Moreover, the cases are similar in that one reason for the Court’s requiring disclosure in Muliadi, supra, was that, if the applicant had been given an opportunity to comment on the report from the Ontario government official, he could have pointed out any methodological and other weaknesses in it. In much the same way, Mr. Haghighi could have indicated the failure by the PCDO to refer to the evidence in the UNHCR country conditions report (a documentary source that is normally highly regarded) that Christian converts from Islam are liable to more serious forms of official sanction in Iran than indicated in other documents on which the officer relied when making the risk assessment.
[34] Finally, I should note another similarity. In Muliadi, supra, the Court held that, by stating to the applicant that the assessment had been made by another authority and there was nothing he could do about it, the visa officer had improperly fettered, or sub-delegated, the exercise of his statutory decision-making power.
[35] The fettering or surrendering of discretion was also raised by counsel as a concern in this case, because the immigration officer had stated in her rationale for rejecting the respondent’s H&C application that she “concur[s] with the PCDO’s decision.” Gibson J. thought it [at paragraph 20, page 129] “unfortunate that the Immigration Officer refers to the PCDO’s recommendation as a ‘decision’”. However, he was not prepared to infer from this statement that she had improperly surrendered her discretion to the PCDO on this aspect of Mr. Haghighi’s application.
[36] Nonetheless, the decisive weight often likely to be given by immigration officers to risk assessment reports from PCDOs is a reason to “level the playing field” by permitting subsection 114(2) applicants to respond to them. Otherwise, the influence on the decision maker of the submissions that they made in support of their application is likely to be greatly diminished by the report.
(iii) the analysis applied
[37] In my opinion, the duty of fairness requires that inland applicants for H&C landing under subsection 114(2) be fully informed of the content of the PCDO’s risk assessment report, and permitted to comment on it, even when the report is based on information that was submitted by or was reasonably available to the applicant. Given the often voluminous, nuanced and inconsistent information available from different sources on country conditions, affording an applicant an opportunity to comment on alleged errors, omissions or other deficiencies in the PCDO’s analysis may well avoid erroneous H&C decisions by immigration officers, particularly since these reports are apt to play a crucial role in the final decision. I would only add that an opportunity 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.
[38] In view of the potentially grave consequences for an individual who is returned to a country where, contrary to the PCDO’s report, there is a serious risk of torture, the increased accuracy in the decision likely to result from affording the respondent the procedural right sought here justifies whatever administrative delays might thereby be occasioned. In order to minimize delay, it would be appropriate for immigration officers to give to applicants a relatively short time within which to submit written comments on the report.
[39] This conclusion is consistent with Muliadi, supra, even though factual differences between the cases do not make Muliadi, supra, compelling authority. On the other hand, I also recognize that courts have not invariably required administrative agencies that hold relatively formal hearings to disclose staff reports, especially when they contain no new information, but simply summarize the evidence and submissions of the parties or define the issues to be decided: see, for example, Toshiba Corp. v. Anti-Dumping Tribunal; Sharp Corp. v. Anti-Dumping Tribunal; Sanyo Corp. v. Anti-Dumping Tribunal (1984), 8 Admin. L.R. 173 (F.C.A.); Armstrong v. Canada (Commissioner of the Royal Canadian Mounted Police), [1998] 2 F.C. 666 (C.A.).
[40] However, a full hearing also provides the participants with a greater opportunity to influence the outcome than that available to applicants under subsection 114(2). And, in other decision-making contexts staff summaries and commentary may not assume the central importance occupied by the PCDO’s report in subsection 114(2) cases. Further, if wrong, few administrative decisions have the capacity for inflicting such catastrophic harm on individuals as that possessed by the administrative decision with which this case is concerned.
[41] Much closer to the context of the instant case is Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 619 (T.D.). In that case, Gibson J. held that it was a breach of the duty of fairness not to disclose to a deportee the summary of the file prepared to assist the Minister’s delegate when deciding whether to issue a danger opinion under subsection 70(5) [as am. by S.C. 1995, c. 15, s. 13] of the Immigration Act.
[42] I note particularly that, in setting the content of the duty of fairness applicable in this context, Gibson J. relied heavily on the analysis of L’Heureux-Dubé J. in Baker, supra, the special weight to be accorded to the gravity of the impact of an adverse decision on the individual, and the importance of the document in influencing the ultimate decision.
E. CONCLUSION
[43] For these reasons I would dismiss the appeal. I would answer the certified question as follows: it was a breach of the duty of fairness for the immigration officer, prior to her decision, to have failed to inform the respondent of the content of the PCDO’s risk assessment, with which she had concurred, and to give him a reasonable opportunity to attempt to identify errors or omissions in it.
[44] In the event, it is not necessary to comment on arguments advanced by the respondent that were designed to establish that, if the appellant was right on the procedural fairness issue, Gibson J. erred in rejecting the other grounds of review that counsel for Mr. Haghighi had put before him.
Stone J.A.: I agree.
Malone J.A.: I agree.