Cojocar v. Canada ( Minister of Citizenship and Immigration )
IMM-2499-97
Evans J.
21/1/99
10 pp.
Application for judicial review of immigration officer's (IO) decision insufficient compassionate and humanitarian (CH) grounds for applicant to be exempted under Immigration Act, s. 114(2)-Applicant, Jehovah's Witness from Romania, claimed refugee status after failing to obey order to report for military service in that country-After claim dismissed, applicant applied for landing on CH grounds-IO requested opinion from post-claim determination officer (PCDO) assessing risk to which applicant likely to be exposed if required to return to Romania-PCDO concluded applicant would not be at risk if returned to Romania-PCDO's report not disclosed to applicant, but presumably considered by IO when deciding to reject applicant's CH claim-Issues (1) whether IO breached duty of fairness in not disclosing PCDO's report to applicant prior to determination of claim; (2) whether PCDO exceeded jurisdiction in characterizing as "neither draconian, inhumane or severe" one to three months' imprisonment, or fine, to which applicant would be liable if convicted under Romanian law; (3) whether PCDO's conclusion Romanian authorities unlikely to be enforcing military draft law vigorously mere speculation and supported by no evidence; (4) whether PCDO had taken into account irrelevant consideration in noting law had been tabled in Romanian parliament providing for alternative service for conscientious objectors-Application dismissed-With respect to first issue, it has been held that fairness does not require officer to disclose for comment information obtained by PCDO about general country conditions from Documentation Centre of Immigration and Refugee Board, as herein, on ground information publicly available, and anyone familiar with process would anticipate PCDO likely to consult it: Mancia v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 461 (C.A.)-In view of latter decision, authoritativeness of Al-Joubeh v. Canada (Minister of Citizenship and Immigration) (1996), 33 Imm. L.R. (2d) 77 (F.C.T.D.) must now be regarded as suspect-Information obtained from Documentation Centre herein falling within concept of "general country conditions" used in Mancia-In context, phrase intended to distinguish matters of general knowledge, from those on which applicant likely to be particularly well-informed and therefore should be heard, because, for example, they concern claimant personally or claimant's activities-Failure to disclose report thus not breach of minimal content of duty of fairness applicable in this decision-making context-Information herein not "extrinsic evidence"-As to second issue, PCDO simply gave opinion, did not make legal determination-Furthermore, PCDO's opinion not binding on IO and therefore could not taint decision-With respect to third issue, PCDO' s expression of perhaps dubious view, given as one of several bases of risk assessment opinion, not legal determination, not sufficient to invalidate IO's decision-With respect to fourth issue, PCDO merely provided opinion of risk to which applicant might be exposed if returned to Romania-Existence of proposed amendments suggesting climate of opinion less hostile to religious objectors, and tending to decrease risk of persecution applicant likely to face-Immigration Act, R.S.C., 1985, c. I-2, s. 114(2) (as am. by S.C. 1992, c. 49, s. 102).