Date: 20030220
Docket: IMM-402-02
Neutral Citation: 2003 FCT 184
Between:
MIHAIL DINITA
Demandeur
- et -
LE MINISTRE DE LA CITOYENNETÉ
ET DE L'IMMIGRATION
Défendeur
REASONS FOR ORDER
PINARD J.:
The applicant seeks judicial review of a decision rendered on January 21, 2002 by the Minister's delegate, Claudette Deschênes, which found him to be a danger to the public in Canada pursuant to subsections 70(5) and 53(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").
The applicant is a citizen of Rumania, of Roma (gypsy) nationality. On January 10, 1995, he was declared a Convention refugee by the Immigration and Refugee Board, and became a permanent resident of Canada on July 17, 1996.
On March 20, 2001, the applicant was given a notice of intent to request an opinion from the Minister regarding the possibility that he constituted a danger to the public in Canada. The notice of intent was a result of a report issued on February 17, 2001, pursuant to paragraph 27(1)(d) of the Act, which noted that the applicant was a person who had been convicted of a federal offence for which a term of imprisonment of more than six months had been imposed.
The latter had been convicted of repeated offences involving theft, fraud, and conspiracy to commit fraud. The crimes committed by the applicant and his accomplices often targeted small businesses, or senior citizens who used automatic teller machines.
The applicant has three children in Rumania from his first marriage, which was dissolved in 1993. He has a spouse in Canada and a Canadian child, Michael Fane Emil Dinita, born December 4, 1996 in Montréal.
The Minister's delegate found that the applicant presents a danger to the public of Canada, as a result of which he should be deported:
. . . À mon avis, les risques que cette personne représente à la société canadienne sont plus élevés que les risques éventuels auxquels cette personne pourrait être exposée à son retour en Roumanie.
In reaching her decision, made pursuant to both subsection 70(5) and paragraph 53(1)(a) of the Act, the Minister's delegate adopted the reasoning in the "Ministerial Opinion Report"dated April 30, 2001, and the "Request for Minister's Opinion"dated August 28, 2001.
The applicant submits that the Minister's delegate's reasons do not meet the standard required by the duty of fairness. The Federal Court of Appeal in Canada (M.C.I.) v. Bhagwandass, [2001] 3 F.C. 3, stated that the danger opinion procedure adopted by the Minister suggests the need for a higher standard of fairness than decisions made pursuant to subsection 114(2) of the Act. At paragraph 31, Madam Justice Sharlow wrote:
Finally, the Crown argues that the danger opinion procedure is not adversarial and for that reason the Minister's duty of fairness fall at the low end of the spectrum. I cannot accept this argument. It seems to me, on the contrary, that the danger opinion procedure adopted by the Minister suggests the need for a higher standard of fairness than for subsection 114(2) decisions. That is because the procedure is adversarial from the outset and remains so until its conclusion. The procedure in this case began with the letter of intent dated June 19, 1998 which informed Mr. Bhagwandass that an official of the Ministry believed that a danger opinion was warranted. It speaks of representations, arguments and evidence being considered by the Minister, which are clearly the badges of an adversarial process. The last step in the procedure, before the decision was rendered, was the presentation to the Minister's delegate of the Ministerial Opinion Report and the Request for Minister's Opinion. Given their content and apparent purpose, those documents can properly be characterized as instruments of advocacy, in which Ministry officials recommend the rendering of a danger opinion and state the facts that they believe justify such a recommendation. The documents indicate as clearly as can be that Ministry officials had aligned themselves against Mr. Bhagwandass. They are not to be criticized for that. They were obviously asked for their views and were entitled to state them. But to characterize the procedure as non-adversarial is simply not consistent with the evidence.
(Emphasis is mine.)
In the case at bar, the Minister's delegate did adopt the Ministerial Opinion Report and the Request for Minister's Opinion. This may be sufficient to constitute the provision of reasons (see, i.e., Mullings v. Minister of Citizenship and Immigration (June 7, 2001), IMM-4146-00, 2001 FCT 607). However, these reasons are inadequate, given the specific circumstances.
The Request for Minister's Opinion indicated that the applicant faces a possibility of serious harm if he returns to Rumania:
Tout en considérant les renseignements ci-dessus et le fait que Monsieur Dinita ait été reconnu réfugié au sens de la Convention, il est possible qu'il rencontre des difficultés et même des sanctions excessives ou des traitements inhumains à son retour en Roumanie.
The Minister's delegate's reasons do not directly address the issue of inhuman treatment. However, the Supreme Court of Canada has indicated, in Suresh v. Minister of Citizenship and Immigration, 2002 SCC 1, that the Minister's reasons must weigh the risk of harm to society if the applicant remains in Canada against the risk that he will be subjected to cruel or unusual treatment upon a return to his country of origin:
[126] The Minister must provide written reasons for her decision. These reasons must articulate and rationally sustain a finding that there are no substantial grounds to believe that the individual who is the subject of a s. 53(1)(b) declaration will be subjected to torture, execution or other cruel or unusual treatment, so long as the person under consideration has raised those arguments. The reasons must also articulate why, subject to privilege or valid legal reasons for not disclosing detailed information, the Minister believes the individual to be a danger to the security of Canada as required by the Act. In addition, the reasons must also emanate from the person making the decision, in this case the Minister, rather than take the form of advice or suggestion, such as the memorandum of Mr. Gauthier. Mr. Gauthier's report, explaining to the Minister the position of Citizenship and Immigration Canada, is more like a prosecutor's brief than a statement of reasons for a decision.
[127] . . . If the refugee establishes that torture is a real possibility, the Minister must provide the refugee with all the relevant information and advice she intends to rely on, provide the refugee an opportunity to address that evidence in writing, and after considering all the relevant information, issue responsive written reasons. This is the minimum required to meet the duty of fairness and fulfill the requirements of fundamental justice under s. 7 of the Charter.
Although Suresh deals specifically with deportations pursuant to paragraph 53(1)(b), where a refugee constitutes a danger to the security of Canada, its rationale should equally be applicable to a deportation pursuant to paragraph 53(1)(a), where the refugee constitutes a danger to the public of Canada. In the case at bar, the applicant has established that his removal to Rumania would expose him to a risk of "inhuman treatment"as a Roma which, according to his Personal Information Form, could include beatings and violent death to which the Rumanian authorities would not respond. In my opinion, the Minister's delegate's report is not adequately responsive to the evidence of this risk.
The applicant further submits that the Minister's delegate did not address the issue of the existence of humanitarian and compassionate grounds, and did not conduct the analysis required by Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817. When a danger opinion is being formed, a Minister's delegate must take into account all humanitarian and compassionate considerations (Gonzalez v. Canada (M.C.I.), 6 Imm.L.R. (3d) 33, and Bhagwandass, supra). The letter of notification to the applicant, dated March 19, 2001, indicates Citizenship and Immigration Canada's recognition of the relevance of this issue:
. . . La preuve, les arguments ou autres observations que vous présenterez doivent porter sur la question du danger pour le public, sur l'existence de considérations humanitaires manifestes dans votre cas ou sur le fait que votre renvoi du Canada menace votre vie ou vos libertés. . . .
The applicant's counsel made clear reference, both in his April 12, 2001 representations and those of November 20, 2001, to the applicant's wife and child in the context of humanitarian and compassionate grounds for a stay of deportation.
The Minister's delegate indicates in her decision that she took into account all humanitarian considerations which could exist in this case. However, she does not expand on this statement, and there is no mention of humanitarian and compassionate considerations in the Request for Minister's Opinion or the Ministerial Opinion Report. The Supreme Court of Canada has clearly stated that, in cases where humanitarian and compassionate considerations are taken into account, the best interests of the child must be given serious weight and consideration (Baker, supra). Although the Federal Court of Appeal has held that the mere presence of a child is not necessarily determinative in cases of deportation (Minister of Citizenship and Immigration v. Legault (March 28, 2002), A-255-01), it should nevertheless be considered before the decision is reached. There is no indication in the Minister's delegate's reasons that such an analysis took place.
In conclusion, because the Minister's delegate failed to provide adequate reasons for her decision to deport the applicant despite the existence of a risk to his personal safety upon a return to Rumania, and because she also failed to address adequately the humanitarian and compassionate grounds raised by the applicant, the application for judicial review is allowed. Consequently, the Minister's delegate's decision is quashed and the matter is remitted for reconsideration, as soon as reasonably practicable, by a different Minister's delegate.
JUDGE
OTTAWA, ONTARIO
February 20, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-402-02
STYLE OF CAUSE: MIHAIL DINITA c. LE MINISTRE DE LA CITOYENNETÉ ET DE L'IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 7, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: February 20, 2003
APPEARANCES:
Mr. William Sloan FOR THE APPLICANT
Mr. Daniel Latulippe FOR THE RESPONDENT
SOLICITORS OF RECORD:
William Sloan FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
Date: 20030220
Docket: IMM-402-02
Ottawa, Ontario, this 20th day of February, 2003
Present: The Honourable Mr. Justice Pinard
Between:
MIHAIL DINITA
Demandeur
- et -
LE MINISTRE DE LA CITOYENNETÉ
ET DE L'IMMIGRATION
Défendeur
ORDER
The application for judicial review of a decision rendered on January 21, 2002 by the Minister's delegate, Claudette Deschênes, which found the applicant to be a danger to the public in Canada pursuant to subsections 70(5) and 53(1) of the Immigration Act, R.S.C. 1985, c. I-2, is allowed. The Minister's delegate's decision is hereby quashed and the matter is remitted for reconsideration, as soon as reasonably practicable, by a different Minister's delegate.
JUDGE