Date: 20000914
Docket: IMM-3288-99
OTTAWA, ONTARIO, THE 14th DAY OF SEPTEMBER 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
JOSE NAVARRO
Applicant
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] On or about March 26, 1997, Mr. Jose Navarro, the applicant, entered Canada by walking across the border at a location in British Columbia. He was not in possession of a passport, visa, travel or identity documents. On April 1, 1997, he presented himself at the Canada Immigration Centre in Vancouver where he made a claim for refugee status, alleging a fear of persecution in Honduras. He was found to be eligible to make a refugee application and a conditional departure order was made against him. In April 1998, the applicant moved to Winnipeg, where he remains.
[2] The interest of the Immigration authorities in Mr. Navarro's case was piqued when inquiries by the Royal Canadian Mounted Police ("RCMP") disclosed that Mr. Navarro had been convicted of three drug offences in the United States under assumed names. Specifically:
| - on August 20, 1992, Mr. Navarro, then using the name Juan Soto, was convicted of an offence under California legislation which is equivalent to the Canadian offence of trafficking in a controlled substance, specifically cocaine. He was sentenced to 6 months incarceration in the county jail and 3 years probation. |
| - on September 25, 1992, Mr. Navarro was convicted of the same offence under the same assumed name. Upon that conviction, he was sentenced to 1 year incarceration in the county jail and 3 years probation. |
| - on July 7, 1994, Mr. Navarro was convicted for the third time of the same offence, this time under the assumed name of Santos Flores. He was sentenced to 3 years incarceration at the California penitentiary at San Quentin. |
[3] The fact that these crimes were committed by the same individual, and the identity of that individual, were confirmed by fingerprint evidence.
[4] Mr. Navarro served only 18 months of the three-year sentence before being released for good behaviour.
[5] At the conclusion of each sentence, the American authorities deported Mr. Navarro to Honduras but in each case he left that country shortly after arriving there.
[6] On February 16, 1999, following receipt of the information about Mr. Navarro's criminal convictions, immigration officials commenced proceedings to have Mr. Navarro found inadmissible to Canada on the ground that he was a person who had been convicted outside of Canada of an offence that, if committed in Canada, would constitute an offence punishable under an act of Parliament by a maximum term of imprisonment of 10 years or more. Then on February 25, 1999, Mr. Navarro was advised that Citizenship and Immigration Canada ("CIC") intended to seek from the Minister of Citizenship and Immigration, an opinion pursuant to paragraph 46.01(1)(e) that he constituted a danger to the public. The effect of the Minister forming such an opinion is that Mr. Navarro would be ineligible to have his application for refugee status heard. He would then be subject to deportation to Honduras.
[7] Mr. Navarro was provided with the material which the Minister or her Delegate might consider in coming to a conclusion about the danger which he posed to the public. He and his counsel made submissions to the Minister's Delegate. The submissions referred to the fact that Mr. Navarro had been convicted of no offence in Canada, that he believed himself to be rehabilitated and included letters of support from various individuals and agencies in Winnipeg. Mr. Navarro did not receive a copy of the assessment prepared for the Minister's Delegate by CIC. On June 8, 1999, the Minister's Delegate, Mr. W.A. Sheppit, formed the opinion that Mr. Navarro constituted a danger to the public for purposes of paragraph 46.01(1)(e) of the Immigration Act. Reasons for this decision were not provided to Mr. Navarro.
[8] An application for judicial review was launched. After submissions had been made with respect to obtaining leave on the basis of the failure to provide reasons for the decision, and after leave had been granted, copies of some of the documents provided to Mr. Sheppit were produced including a document entitled "Request for Minister's Opinion - A46.01(1)(e)". That document has three sections. The first is Danger Profile which simply recites the particulars of Mr. Navarro's convictions in the United States. The second is Removal Risk Considerations which reviews the circumstances which might put Mr. Navarro at risk of harm upon his return to Honduras as well as documentation relating to the current situation in Honduras. The final section is Reviewing Officer's Comments and Recommendation which is reproduced below:
| I have carefully reviewed the notification letter, the supporting documents identified in this notice and the Ministerial Opinion Report prepared by CIC as well as the submissions presented by the client. The foregoing documents comprise the entirety of the material provided to the Minister's Delegate in support of the request that he form the opinion that Jose Orlando NAVARRO ZUNIGA constitutes a danger to the public pursuant to paragraph 46.01(1)(e) of the Immigration Act. |
[9] The Ministerial Opinion Report referred to above has never been produced.
[10] The grounds for judicial review advanced by Mr. Matas, on behalf of Mr. Navarro, is that the latter is entitled, following the decision of the Supreme Court of Canada in Baker v. Canada, [1999] 2 S.C.R. 817, to the reasons for the decision of the Minister's Delegate. Mr. Matas takes the position that the "Request for Minister's Opinion" does not constitute reasons. Counsel for the respondent takes the position that no reasons are required to be given as Baker is limited to its particular facts and, if reasons are required, they have been provided in the Request for Minister's Opinion.
[11] It is clear from the reasons of the Federal Court of Appeal in Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 854, (1999), 174 F.T.R. 123, that the decision of the Supreme Court of Canada in Baker encompasses one or more principles of general application and is not limited to the narrow question of the duty of fairness in applications made pursuant to subsection 114(2) of the Immigration Act . The analytical framework with respect to the need for reasons, for example, is applicable to other discretionary decisions.
[12] That analysis is reproduced below:
| In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary. The profound importance of an H & C decision to those affected, as with those at issue in Orlowski, Cunningham, and Doody, militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached. |
[13] It would appear that whether reasons are required will depend, among other things, upon the significance of the decision for the individual and the existence of a statutory right of appeal.
[14] The effect of the Minister concluding that a person is a danger to the public, pursuant to paragraph 46.01(1)(i), is to deprive the individual of the right to have a refugee claim heard. The person's right to remain in Canada is then determined in accordance with the normal criteria for admission to Canada. As a result, such a decision does not necessarily result in the expulsion of the person from Canada but it does increase the likelihood of removal of unskilled refugee claimants. If applied to a genuine refugee, the effect would be to increase the likelihood of return to a place where that person has a reasonable fear of persecution. For such a person, the decision with respect to a danger opinion is a very significant decision.
[15] It is true that for purposes of the Immigration Act, no one is a refugee until they have been found to be a refugee and one could just as easily assume that the person in question is not a genuine refugee at all. But where a person has alleged that he/she is a refugee and where the effect of the decision is to cut off the right to have the question of refugee status determined, it would be somewhat arbitrary to argue that the person should not be treated, for these purposes, as a refugee until found to be one when the effect of the decision is to preclude such a finding ever being made. If there is a claim of refugee status, then for purposes of determining the effect of a danger opinion pursuant to paragraph 46.01(1)(e) of the Act upon that person, he/she should be assumed to be that which he/she has claimed to be, unless there are serious reasons for concluding that the refugee claim would fail.
[16] As for the question of a statutory right of appeal, it should be clear from the facts of Baker, that a right of appeal is not intended to be understood in the technical sense but rather in the popular sense. In Baker, the issue of reasons was raised in the course of a judicial review of the refusal of Ms. Baker's application for consideration, pursuant to subsection 114(2) of the Immigration Act . Lawyers will recognize that an application for judicial review is not an appeal but given the result, it seems passably clear that the Court meant to include all forms of judicial oversight of decisions of inferior tribunals.
[17] There is here, as there was in Baker, a right to apply for judicial review. As a result, given the importance of the decision for the individual and the fact that the decision is subject to judicial oversight, I find that reasons are required to be given.
[18] I also find that reasons were not given. The Request for Minister's Opinion, which was produced after leave had been granted in this case, does not contain the reasons for the decision. After reading the document, one cannot say why the Minister's Delegate formed the opinion which he did. It may be that the Minister's Delegate thought that trafficking in drugs is so disruptive of social order in and of itself so to make those who engage in it a danger to the public without proof of more, but the Minister's Delegate has not said so. As a result, while the Request for Minister's Opinion may provide a basis for speculation as to why the Minister's Delegate formed the opinion which he did, it does not provide an explanation of the reasoning leading to the decision.
[19] For these reasons, I find that Mr. Navarro was not accorded procedural fairness in the treatment of the request for a danger opinion pursuant to paragraph 46.01(1)(e) of the Immigration Act. The Notice of Application seeks an order setting aside the danger opinion which is the usual remedy in the case of a decision made in breach of the requirements of procedural fairness. I can see no reason to depart from the usual and there will be an order accordingly.
[20] Both parties suggested questions that might be certified as serious questions of general importance for purposes of section 83 of the Act. There is some overlap in the questions sought to be certified. Both parties seek to have the issue of whether reasons for decision are required with respect to a danger opinion pursuant to paragraph 46.01(1)(e) of the Act. Since that is the issue decided in this case, and it is a matter of general application to all who may be the subject of such an opinion, I am prepared to certify such a question.
[21] There were a number of ancillary questions suggested. The applicant asks whether the requirement to provide reasons is satisfied by provision of the "Request for Minister's Opinion". I assume that the content of this document may be variable and that, as a result, the question of whether the document constitutes reasons for a decision will turn on the facts of the particular case. As a result, this would not be a matter of general application. The applicant also seeks to certify questions dealing with the fact that the Minister's Delegate initially took the position that no reasons for the decision had been given, and later attempted to suggest that the "Request for Minister's Opinion" which was provided outside the normal frame for production constituted reasons. This arises from a particular fact situation and is unlikely to be a matter of general application. Finally, the applicant seeks certification of a question dealing with the obligation of the respondent to provide the applicant copies of the material which is before the Minister's Delegate and to allow him to respond to the material before a decision is made. This question does not arise on these facts.
[22] The respondent seeks certification of a question as to the appropriate standard of review of a danger opinion pursuant to paragraph 46.01(1)(e). That question does not arise on these facts as a result of the failure of the Minister's Delegate to provide the reasons for his decision.
[23] I hereby certify the following to be a serious question of general importance:
| Does the decision of the Supreme Court of Canada in Baker v. Canada require that reasons be provided where the Minister or her Delegate form the opinion that an individual is a danger to the public pursuant to paragraph 46.01(1)(e) of the Immigration Act? |
ORDER
The decision of the Minister's Delegate, W.A. Sheppit, dated June 8, 1999 in which it is found that the applicant, Jose Orland Navarro Zuniga, constitutes a danger to the public in Canada, pursuant to paragraph 46.01(1)(e) of the Immigration Act, is hereby set aside without prejudice to the Minister's right to consider the issue again in accordance with the Immigration Act and the law, as set out in these reasons.
"J.D. Denis Pelletier"
Judge