Date: 20010124
Docket: IMM-4481-99
BETWEEN:
CONG DANH DO
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of two decisions of the Minister's delegate pursuant to sub-paragraph 46.01(e) and subsection 70(5) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), dated August 6, 1999, in which the Minister's delegate determined that the Applicant constitutes a danger to the public in Canada.
[2] The Applicant was born in Vietnam on November 7, 1970. He left when he was eight years old. He came to Canada when he was twelve and was granted landing upon arrival, on or about April 13, 1982.
[3] In December 1990 and in 1996-1997, the Applicant was convicted and sentenced for various criminal offences, including breaking and entering, assault, fraud, and drug trafficking.
[4] An immigration officer made two reports pursuant to sub-paragraph 27(1)(d)(i) of the Act, one on November 5, 1996 and the other on May 13, 1997 to the effect that the Applicant was a permanent resident who has been convicted of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed. An inquiry was held on November 18, 1997 and the reports were found to be well-founded. The adjudicator then made a conditional deportation order against the Applicant pursuant to subsection 32.1 of the Act on November 18, 1997, while he was in penitentiary. The Applicant appealed the order on December 4, 1997, and was sent a notice to appear for a hearing scheduled on July 20, 1998. There is no evidence in the file that this hearing ever proceeded.
[5] On June 8, 1998, the Applicant was notified of the Department's intent to seek a danger opinion under subsection 70(5) and sub-paragraph 46.01(1)(e)(iv) of the Act. The notice indicated that the Applicant had 15 days from the receipt date to make submissions. Thus, the deadline for his submissions was June 26, 1998. On June 29, 1998, the Minister's delegate expressed his opinion that the Applicant constitutes a danger to the public in Canada. The ministerial report indicates that the submissions made by the Applicant on June 26, 1998, were considered. Supplementary documents submitted on June 29, 1998, were not considered because they were received after the deadline.
[6] On May 26, 1999, this Court granted an application for judicial review of the Minister's opinion dated July 8, 1998, and ordered that the matter be returned to the Minister's delegate for review with the addition of a psychological report which he had apparently failed to consider.
[7] Meanwhile, on June 8, 1999, the Applicant appeared before an Adjudicator with respect to the question of bail. The Adjudicator came to the conclusion that it would not be a danger to the public to release the Applicant on bail. He was thus released on June 10, 1999, for a $3 000,00 bail and returned to his wife and child.
[8] Shortly thereafter a new notice of intent under subsection 70(5) and sub-paragraph 46.01(1)(e)(iv) dated June 10, 1999 was forwarded. Submissions by the Applicant were made on June 23, 1999. The Minister's delegate once again determined that the Applicant constitutes a danger to the public in Canada by decision dated August 6, 1999.
[9] For the purpose of the determination, a number of documents, communicated to the Applicant, were given to the Minister's delegate, along with the Applicant's submissions. In addition, a "Danger to the public -- Ministerial Opinion Report" and a "Request for Minister's Opinion", prepared by Canadian immigration officials dated August 4, 1999 were also sent to the Minister's delegate. These summaries of the Applicant's file were not given to the Applicant and he was given no opportunity to examine them.
[10] The Applicant challenges the decisions of the Minister's delegate rendered two days later, on August 6, 1999.
[11] According to the Applicant, the Minister's delegate failed to consider the overwhelming evidence that he was not a danger to the public. She did not consider the psychological report, the "Suivi du Plan de Correction", and the adjudicator's decision to release him on bail.
[12] The Applicant submits that he is the father of an infant boy who is a Canadian citizen, and that sending him back to Vietnam would be contrary to the Canadian Charter of Rights and Freedoms, as the boy would be deprived of his father during his growing years. Furthermore, the Applicant is a complete foreigner in Vietnam. Upon his arrival there, he would be treated as a traitor and suffer possible torture and imprisonment.
[13] In his additional submissions, the Applicant indicates that this Court now imposes on the Respondent the duty to provide him with the report and documents he sent to the Minister's delegate, so that he may answer them. Furthermore, the Minister's delegate should provide reasons for the opinion.
[14] The Respondent submits that the Applicant failed to demonstrate that the Minister's delegate did not act in good faith in having regard to all the material put before her. The psychological report, the "Suivi du Plan Correctionnel" and the adjudicator's decision were part of the documents presented to the Minister's delegate. Other documents were also before the Minister's delegate. There was ample evidence to ground a finding that the Applicant is a danger to the public. No oral hearing was required before the Minister's delegate and the scheme relating to decisions made pursuant to sub-paragraph 46.01(1)(e) is respectful of the principles of fundamental justice.
[15] The Respondent believes that the "Danger to the Public -- Ministerial Report" and the "Request for Minister's opinion" did not have to be disclosed to the Applicant and he did not have to be given an opportunity to comment on them despite the fact that they were before the Minister's delegate. The Applicant knew the case against him and had a full opportunity to make submissions. The notice of intent served to the Applicant indicated clearly the material and issues that the Minister's delegate could examine and the Applicant was invited to provide submissions in relation to those documents and issues. The possible content of such material was known to the Applicant. He provided submissions which were also before the Minister's delegate. The undisclosed documents were summaries of the documentation provided by the Applicant and did not contain any new or significant information then unknown to the Applicant that could have influenced the Minister's decision.
[16] The Respondent is of the view that reasons did not have to be provided in light of the jurisprudence of this Court. The Applicant did not ask for any. In the event they are required, however, the Respondent submits that the summary documents can be considered as constituting such reasons. Furthermore, the Minister's decision pursuant to sub-paragraph 46.01(1)(e) does not constitute a person's last recourse prior to removal. Prior to removal, it is open to the Applicant to file a humanitarian and compassionate application pursuant to ss. 114(2) of the Act.
[17] According to the Respondent, the Applicant had a full opportunity to make his case in relation to his family and other humanitarian considerations. The Minister's delegate found that in the case at bar, there were insufficient humanitarian and compassionate factors to outweigh any danger that the Applicant may present. In the absence of clear and convincing evidence to the contrary, a decision-maker is presumed to have considered all the evidence. By his allegations, the Applicant failed to demonstrate that this conclusion is reviewable.
Analysis
[18] In the present case, the following decisions of this Court: Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 619 (Trial Division) and Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 854 (F.C.A.), have, in my view, superseded the Federal Court of Appeal's teachings in Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646, in order to conform to the Supreme Court decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[19] With regard to the content of the duty of fairness, Gibson, J. held, in Bhagwandass, that:
| "[b]y analogy to the reasoning in Baker, I am satisfied that the failure on the part of the respondent to share the summary reports with the applicant, and to provide an opportunity to the applicant to respond to them, and to then include any response to those summary documents in the material forwarded to the respondent's delegate without further analysis on the part of anyone other than the respondent's delegate himself or herself, constituted a breach of the duty of fairness owed by the respondent to the applicant on the facts of this matter. I reach this conclusion by reason of a particular concern, consistent with the analysis in Baker, for the ultimate importance to the applicant of the outcome of the `danger review'." (at page 663) |
[20] He then found that in the absence of any other reasons, the summary documents must be taken to be the Respondent's delegate's reasons for forming the opinion that the Applicant constitutes a danger to the public in Canada. He also indicated that "the balance or `spin' that the summary documents in this matter put on the totality of the documentation on which they were based might well have provided the Applicant with a basis for further submissions" (at page 638).
[21] In Haghighi, the Federal Court of Appeal held that the duty of fairness requires that inland applicants for human and compassionate landing under subsection 114(2) of the Act be fully informed of the content of the risk assessment report made by a Post-Claims Determination Officer, and permitted to comment on it, even when the report is based on information that was submitted by or was reasonably available to the applicant.
[22] Mr. Justice Hugessen followed the above course of action in Mohammad Kafeel Qazi v. The Minister of Citizenship and Immigration, July 26, 2000, IMM-5317-99. I have also accepted these principles in Bakchiev v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1881, November 17, 2000, and Cristobal v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1881, November 30, 2000.
[23] Even in the presence of conflicting judgments from this Court (for example, see: Jan v. Canada (M.C.I.) (IMM-5756-99 & IMM 5757-99) (September 15, 2000) (F.C.T.D.), I believe that it is fairly clear, or at least preferable, that the reports on which the Minister's delegate bases his opinion should be given to the person who is the object of the opinion in order to give him or her the opportunity to make new submissions. Although most of the judgments referred to above dealt with danger opinions made pursuant to ss. 70(5) of the Act, it is only fair to apply the same reasoning to opinions made pursuant to sub-paragraph 46.01(1)(e). It would only be fair for a person against which a decision impacting on his rights is being made to have an opportunity to know the manner in which his case will be studied by the decision maker and to respond to the way the case is presented to him.
[24] I therefore believe that the law now commands that this application for judicial review be granted on this ground alone. Although it is not necessary to comment on the other aspects of the decision in light of this breach of the duty of fairness, I will nonetheless explore a few of the parties' additional arguments.
[25] There is still some hesitation in the Court's jurisprudence as to the applicable standard of review. The weight to be assigned to the evidence remains within the discretion of the Minister, and even if this Court disagrees with the opinion, it ought not interfere with the opinion if it is reasonably supportable on the whole of the evidence.
[26] I believe that there was sufficient evidence for the decision maker to reach the opinion that the Applicant is a danger to the public in Canada. The Applicant had committed serious crimes in Canada. The material before the Minister's delegate was not all in favour of the Applicant despite what he alleges. There is no evidence whatever that shows that the Minister's delegate did not consider the psychological report of April 1997, the "Suivi du Plan Correctionnel" dated May 27, 1999, and the adjudicator's decision to release the Applicant on bail. In fact, those documents were before the decision maker and some are even mentioned in the "Request for Minister's Opinion" report. In the absence of clear and convincing evidence to the contrary, a decision maker is presumed to have considered all the evidence (Woolaston v. M.E.I., [1973] S.C.R. 102; Florea v. M.E.I., [1993] F.C.J. No. 598 (C.A.)).
[27] It is also quite evident, from reading the "Request for the Minister's Opinion" document, that humanitarian and compassionate considerations were taken into account. On the whole of the four-page document, nearly three pages were devoted to examining removal risks and country conditions in Vietnam. One important item that is not addressed in the document is the fact that the Applicant has a young boy. The Applicant had submitted arguments based on this fact. In my opinion, though, he has not rebutted the presumption that all the evidence was considered and that these arguments were taken into account by the decision-maker. I wish to point out that if the Applicant had been allowed to read the "Request for Minister's Opinion" document and make submissions prior to the decision being made, he would certainly have made observations regarding the apparent lack of mention of his family situation in the document. This goes to show how important it is to give applicants an opportunity to answer summary documents such as this one.
[28] Reasons are required for a decision made pursuant to subsection 53(1) of the Act (Tewelde v. Canada (Minister of Citizenship and Immigration), April 28, 2000, IMM-2335-98). The issuance of an opinion made pursuant to that subsection has a profound significance to the person who is the subject of it. This provision permits the Minister to remove a person to a country in which the person has a well-founded fear of persecution.
[29] As for the requirement to provide reasons for a decision made pursuant to subsection 70(5) of the Act, the question has been seriously debated before this Court very recently. In Ip v. Canada (Minister of Citizenship and Immigration), February 3, 2000, IMM-787-98, (F.C.T.D.), Dubé J. made the following comments:
| "The Federal Court of Appeal in the Williams decision held that a Minister's opinion, pursuant to subsection 70(5) of the Act, does not require written reasons, either under the Canadian Charter of Rights and Freedom or pursuant to principles of fairness. However, in the recent Baker decision, the Supreme Court of Canada held that within the context of an administrative procedure involving a discretionary decision by an immigration officer dealing with applications pursuant to subsection 114(2) of the Act (compassionate and humanitarian considerations), reasons were required `in certain circumstances'. |
| On behalf of the Supreme Court, L'Heureux-Dubé, J. referred to the Williams decision and commented as follows with reference to the provision of reasons: |
| 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, constitutes 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. |
| [Baker v. Canada (Minister of Citizenship and Immigration) [1999] S.C.C. 25823 at para. 43.] |
| I agree with the applicant that written reasons may be no less a requirement in the context of a danger opinion made pursuant to subsection 70(5) of the Immigration Act. This is clearly a case where a decision has enormous significance for the individual and is extremely critical to his future. [...] |
| In Suresh v. Canada (Minister of Citizenship and Immigration)[[2000] F.C.J. No. 5, at p. 55], a very recent decision of the Federal Court of Appeal, counsel for the Minister did not dispute the proposition that written reasons are required. However, the parties disagreed on the adequacy of the reasons provided by the Minister (a memorandum prepared by departmental analyst Gauthier). Addressing that very issue, the Court stated that `the adequacy of these reasons is a matter which can be properly raised on a judicial review application to the extent that those reasons do not reflect consideration of relevant factors'." |
[30] Dubé, J., then compared the contents of the Request for the Minister's Opinion with that of the documents provided in the Suresh (for which leave to appeal has been granted by the Supreme Court) and Baker decisions. He found that "this flimsy report cannot, by any stretch of the imagination, be accepted as adequate reasons reflecting the relevant factors involved in this matter". It seems one must now consider the reports as constituting the reasons, but the analysis must be taken a step further by considering the adequacy of those reasons.
[31] In Navarro v. Canada (M.C.I.), [2000] F.C.J. No. 1496 (T.D.), Mr. Justice Pelletier concluded that the Minister had to give reasons in support of a 46.01(1)(e) danger opinion, given the importance of the decision for the individual and the fact that the decision is subject to judicial oversight. He added the following:
| "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." |
[32] This statement emphasizes, in my opinion, the importance that must be given to analysing whether or not the document purportedly constituting reasons is sufficiently detailed to provide the reasoning leading to the decision. I do not see why the Court should not follow this precedent.
[33] It should then follow that the adequacy of those reasons, provided in the form of the "Request for Minister's Opinion" document, would come into scrutiny. The parties' arguments on this respect are not very well developed. Upon reading the report, however, it seems that it is possible to see how the decision was reached and I would perhaps conclude that these are adequate in the circumstances of this case.
[34] In conclusion, I wish to underline the fact that the Applicant was deported on June 19, 2000, after an application for stay was denied because the Applicant had not shown that he would suffer irreparable harm if he were deported to his country of origin. It seems unfortunate to me that this young man, who arrived in Canada and was granted landing at age twelve, is married - with child - to a Canadian citizen, and who does not have any ties to Vietnam, could be refused a stay without those aspects even being mentioned. I am also concerned by the fact that the appeal of the first conditional deportation order does not appear to have been heard.
[35] For the foregoing reasons, the application is granted.
[36] The following question is to be certified:
| Was there an obligation to disclose and share the ministerial opinion report and/or the request for the Minister's opinion to the Applicant and give him an opportunity to respond before the Minister's delegate made his decision under either subsection 70(5) or paragraph 46.01(1)(e) of the Immigration Act? |
JUDGE
OTTAWA, Ontario
January 24, 2001