Mancia v. Canada ( Minister of Citizenship and Immigration )
IMM-714-96
MacKay J.
31/1/97
15 pp.
Judicial review of decision applicant not member of Post Determination Refugee Claimants in Canada Class (PDRCC)-Applicant, citizen of El Salvador, determined not to be Convention refugee in 1993-Claimed feared persecution in El Salvador, from former members of FMLN, once revolutionary force but now political party promoting democracy, and from Army, to which believed name as former FMLN member would have been communicated-Post Claim Determination Officer (PCDO) relying on articles, published information on general country conditions not disclosed or identified to applicant in advance of decision, including some documents published after applicant making submissions-Also relying on materials provided to PCDO's in draft manual and training materials including reference to methodology or guidelines for assessing risk, neither seen by applicant's counsel nor part of record, although opportunity provided for further written submissions following hearing-Application dismissed-Where documentary evidence of country conditions considered in PDRCC assessment publicly available, no obligation to inform applicant, in advance of decision, of specific documents concerning country conditions considered: Quintanilla v. Canada (Minister of Citizenship and Immigration) (1996), 105 F.T.R. 315 (F.C.T.D.)-Materials consulted by PCDO available to public-Where applicant aware of general process of relying on published documentary sources of information on country conditions, as applicant deemed to have been, and where supplied some information of that sort with application, information referred to by PCDO not beyond ambit of publicly available information reasonable applicant, advised by counsel, would anticipate PCDO would consider in reaching decision-No obligation on PCDO to indicate specific documents considering in advance of decision-No breach of duty of fairness in referring to publicly available documents without identifying specific documents before decision made-Other documents not available to applicant at time of submissions not significant for purposes of decision-Not introducing new information not available from other publicly available documents-Principle of disclosure of evidence against accused prior to trial not applicable in regard to documentary evidence of country conditions drawn from public documents in refugee or related claims-Fairness dictating evidence not readily available to public ought to be disclosed, but not requiring disclosure of specific documents in public domain and available to applicant upon which PCDO may rely for evidence of current country conditions-Duty of fairness not extending to disclosure of methodology for risk assessment, although such disclosure encouraged-Risk assessment not exact science, but reasonable assessment objectively done with reference to evidence available of serious risk to life or liberty of claimant-No refusal to disclose as disclosure not requested-Unfairness in application of process or methods by PCDO not made out-PCDO's consideration of risks for applicant if returned to El Salvador not limited to risk presented by "authorities" in country-While reports before PCDO supporting scene of uncontrolled violence inflicted on some former FMLN members, other reports supporting conclusions no evidence authorities target former FMLN sympathizers and scant evidence FMLN members seeking to settle old suspicions in violent manner, or that control strategic travel centres-Applicant's minor role within FMLN, lack of evidence name reported to authorities, lack of any claim authorities or FMLN sympathizers tried to do anything to him before left or had harassed family since then, supporting conclusion applicant could return to El Salvador and not be at risk-PCDO's failure to refer to one aspect of applicant's expressed fears neither warranting intervention by Court nor indicating not considered-Question certified: whether immigration officer conducting review pursuant to PDRCC regulation violating principle of fairness, as enunciated by F.C.A. in Shah v. Canada (Minister of Employment and Immigration) (1994), 29 Imm. L.R. (2d) 82 (F.C.A.), when failing to disclose, in advance of determining matter, documents relied upon from public sources in relation to general country conditions-Immigration Regulations, 1978, SOR/78-172, s. 2(1) (as am. by SOR/93-44, s. 1).