Federal Court Decisions

Date: 19971212

Docket: IMM-4278-96

BETWEEN:

     MOSTAFA ASGARI MOGHADDAM,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

DUBÉ J:

[1]      This application is for the judicial review of a decision of the delegate of the Minister of Citizenship and Immigration ("the delegate") dated October 15, 1996, pursuant to paragraph 53(1)(d) of the Immigration Act, that the applicant is a person who constitutes a danger to the public in Canada and therefore be deported to Iran.

[2]      Counsel for the applicant raised a threshold issue to the effect that the Case Management Branch did not forward the applicant's submissions to the delegate. In fact, the Case Management Branch did forward a memorandum to the delegate on October 15, 1996. The six page memorandum provides the background of the applicant who has four narcotics (heroin) convictions in Canada and was ordered to be deported on August 24, 1988. The memorandum also includes a brief résumé of the applicant counsel's 200 page submission and documents. The memorandum provides a risk assessment, other considerations, a conclusion, and the recommendation that the applicant is a danger to the public in Canada. At the end of the memorandum is a list of attachments which reads as follows:

- Notice dated August 28, 1996 plus the attachments listed

- Iran, 1995 Country Reports on Human Rights Practices

- Amnesty International Report, 1996

- Issues Related to Iranian Asylum Seekers and Refugee Applications Abroad (Joint Report dated October 1993)

- Declaration for your signature

[3]      Clearly, the applicant's submission is not on the list. In explanation to the apparent failure to include the applicant's submission, counsel for the respondent merely answers that the procedure followed by the Management Branch is to forward the applicant's submissions along with all other relevant documents.

[4]      Unfortunately, that answer is not sufficient to meet the situation. In view of the fact that the applicant has raised the issue in his memorandum of argument, the respondent ought to have filed an affidavit either from the Case Management Branch that counsel's submission was indeed forwarded to the delegate, or from the delegate to the effect that he received it.

[5]      The Federal Court of Appeal in M.C.I. v. Williams¹ upheld the overall fairness of the public dangerousness scheme but also stressed that the applicant must have had a full opportunity to present his submissions to the Minister. In other words, the Federal Court of Appeal found it significant in assessing the fairness of the procedure that the applicant's actual submissions were before the official who made the decision. In the case at bar, there is much more substance in the applicant's submissions than is to be found in the brief résumé prepared by the Case Management Branch.

[6]      Consequently, the decision of the Minister that the applicant constitutes a danger to the public in Canada is set aside and the matter is to be reconsidered by the Minister with the specific directions of this Court that the applicant's submissions be placed before the Minister's delegate.

[7]      The application for judicial review is granted.

    

     Judge

OTTAWA, ONTARIO

December 12, 1997

__________________

¹      [1997] 2 F.C. 646 (F.C.A.).