Saturday, April 23, 2011

Pusat–procedural fairness and disclosure in inadmissibility

Pusat v. Canada (Citizenship and Immigration), 2011 FC 428

Judge: Justice Mosley

Date heard: January 24, 2011

Date decided: April 7, 2011

Counsel for Pusat: Lorne Waldman

Counsel for the Minister: John Loncar

The applicant was an Alevi Kurd who applied oversees as a member of the family class. His wife was a Canadian permanent resident who had been granted refugee status some years before and was attempting to sponsor her husband (paras. 1-4).

The applicant was interviewed at the Canadian embassy in Ankara in September 2007:

The interview focused on whether he qualified as a member of the family class, but did briefly discuss his admissibility. The applicant explained that though he supports some of the PKK’s goals, he does not support the PKK because he did not believe in violence. (para. 4)

The application was dismissed on the basis that the applicant was inadmissible as a member of the PKK. The applicant brought a judicial review (IMM-5482-09), which was settled when the Minister agreed to re-determine the application (para. 5).

Another interview was scheduled at the Ankara embassy for April 2010. The applicant’s counsel in Canada repeatedly requested disclosure from the Minister, to no avail; however, the CAIPS notes contained a notation that the applicant was advised a day before the interview and told that the interview was related to inadmissibility (para. 6).

At the second interview, the applicant admitted to being involved with PKK advocacy activities in Switzerland (and that he had lived there), but stated that any involvement with the PKK was due to social pressure. He reiterated his abhorrence of violence and his non-membership, and that he had not been involved with the PKK in Turkey. The applicant’s counsel was not allowed to make submissions following the interview, and the decision was made the next day (paras. 7-8).

The Certified Tribunal Record (CTR) contained redacted information, and the Respondent filed a motion under s. 87 to maintain the confidentiality of that information. On the basis that neither the Court nor the Respondent would seek to rely on the redacted information, the redactions were not challenged (para. 9).

The FC decision was made on the basis of the breach of procedural fairness, and none of the other grounds alleged (para. 12).

The breaches of procedural fairness cited by the applicant were the failure to disclose the basis of the allegation of membership prior to the interview, and the failure to give an opportunity to respond with submissions after the interview (paras. 15-16). The judge rejected the Minister’s submission that the phone call prior to the interview, in combination with the knowledge arising from the previous case, comprised sufficient disclosure:

The record is clear that the respondent did not reply to the communications from counsel and did not provide any meaningful disclosure before the interview, notwithstanding that the application was sent back on consent to be reconsidered for that reason. The respondent' s attempt to rely on the CAIPS notes as evidence that he was informed of the purpose of the interview by a telephone call from someone, presumably an administrative assistant at the Embassy, two days prior to the event, is misplaced. There is no affidavit evidence from the assistant to verify the facts stated in the CAIPS notes. (para. 19)

While acknowledging that the content of procedural fairness must be assessed on a case-by-case basis, Justice Mosley found that there were documents that had clearly influenced the decision, contained in the CTR, which ought to have been disclosed to the applicant prior to the interview.

Citing Mekonen v. Canada (Minister of Citizenship and Immigration), 2007 FC 1133 (which cites Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407 (C.A.), and Canada (Minister of Citizenship and Immigration) v. Bhagwandass, 2001 FCA 49), Justice Mosley found that this was a case where procedural fairness required the evidence to be disclosed and the applicant given a meaningful opportunity to respond to it (paras. 21-32).

Justice Mosley also rejected the Minister’s submission that, having found a breach of procedural fairness, the court ought not to grant a remedy on the doctrine of “no useful purpose” as expressed in Mobil Oil Canada Ltd. v. Canada Newfoundland Offshore Petroleum Board, [1994] 1 SCR 202 (para. 33). He found that the question was still live and that the inadmissibility decision was not inevitable (para. 34).

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