Date: 20030221
Docket: IMM-2333-02
Neutral Citation: 2003 FCT 215
BETWEEN:
Tam Thanh TRAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] This is an application for judicial review of a decision of a delegate of the Minister of Citizenship and Immigration (the "Minister") dated May 6, 2002, wherein the Minister determined that the Applicant constitutes a danger to the public in Canada pursuant to s.53(1) of the Immigration Act.
[2] The Applicant was born in Vietnam. He was found to be a stateless person by the Canadian government. In 1993 he was declared a Convention refugee and came to Canada. He received permanent residence in 1995.
[3] On November 7, 2000, the Applicant was convicted of trafficking cocaine, contrary to s.5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c.19. He received a sentence of imprisonment for three and one half years.
[4] On June 5, 2002, the Applicant received notice of the intention of Citizenship and Immigration Canada to seek an opinion from the Minister declaring that the Applicant is a danger to the public in Canada. He was invited to make submissions.
[5] On May 6, 2002, the Minister determined that the Applicant constitutes a danger to the public in Canada.
[6] The Minister's decision reads as follows:
OPINION:
In forming my opinion, I have considered the Ministerial Opinion Report and the documentary evidence presented by local Immigration officials to support their recommendation that Tam Thanh TRAN, born June 23, 1976, citizen of Vietnam, constitutes a danger to the public pursuant to subsections 70(5) and 53(1) of the Immigration Act, as well as the information contained in the Request for Minister's Opinion report dated January 22, 2002 and supporting material. I have also carefully considered the information received from the client/Counsel dated December 12, 2001, including his final submissions dated February 12, 2002, which is addressed in the disclosure page, as well as any and all humanitarian and compassionate considerations that may exist in this case. The information presented by the client/Counsel has failed to persuade me that the recommendation forwarded by local Immigration officials that Tam Thanh TRAN constitutes a danger to the public should not be followed in this case. I am satisfied that the Ministerial Opinion Report and the Request for Minister's Opinion adequately reflect the basis for my conclusion that Tam Thanh TRAN constitutes a danger to the public in Canada. It is my opinion that the risk that this person represents to Canadian society outweighs the risk that he may face upon return to Vietnam.
Date: 06 May 2002
Claudette Dischènes-Minister's Delegate
Director General, Case Management Branch
[7] The Applicant argues that the Minister erred by failing to provide reasons for the decision. It is agreed that, as a matter of law, reasons must be provided (see Gonzalez v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. 888 (FCTD); Alvarez v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 409 (FCTD); Navarro v. Canada (Minister of Citizenship and Immigration [2000] F.C.J. No. 1496(T.D.); and Suresh v. Canada (Minister of Citizenship and Immigration) [2002] S.C.J. No. 3).
[8] It is also agreed that the Minister adopted the ministerial reports as reasons. Therefore, it is agreed, that the question becomes whether there are reasons contained in the ministerial reports or there are independent reasons contained in the Minister's decision. If there are no reasons in either source, it is agreed that the Minister's decision is made in error of law.
[9] To make the requirement clear, the definition of a "reason" found in the Shorter Oxford English Dictionary (1973) is as follows:
1. A statement of some fact (real or alleged) employed as an argument to justify or condemn some act, prove or disprove some assertion, idea, or belief.
2. A statement, narrative, or speech; a saying, observation, or remark; an account or explanation of, or answer to, something.
[10] It is agreed that the only clear analytical statement in the ministerial reports is with respect to the risk of the Applicant's return to Vietnam and is as follows:
Based on the above-mentioned report, there is little reason to believe that the subject will face harsh or inhumane treatment upon his return to Vietnam. (Tribunal Record, p. 10)
I find that this statement does not qualify as reasons for the decision that the Applicant constitutes a danger.
[11] Counsel for the Respondent identifies, as reasons, three other statements in the material which the Minister considered, each of which is highly contested by the Applicant. In the "Ministerial Opinion Report" at paragraph11 the following appears:
11. Danger rationale
TRAN sold over a quarter million dollars in cocaine. He has been sentenced to a lengthy sentence of 3.5 years. Is a repeat offender since 1995 - 2 years after arriving in Cda. (Tribunal Record, p. 36)
In the same document, the following also appears:
PART G: RECOMMENDATIONS
Officer's recommendation
On the basis of the above information and having considered all relevant factors, I recommend that pursuant to section 70(5)/70(6) of the Immigration Act, that the Minister's opinion be requested that the above named has breached the terms and conditions of his/her stay and is a danger to the public.
The "Request for Minister's Opinion"contains the following statement:
This material is in support of a request that the Minister's Delegate form an opinion that Tam Thanh TRAN constitutes a danger to the public pursuant to subsection 70(5) and 53(1) of the Immigration Act. (Tribunal Record, p. 11)
[12] In addition, the Respondent argues that the following portion of the Minister's decision constitutes reasons:
The information presented by the client/Counsel has failed to persuade me that the recommendation forwarded by local Immigration officials that Tam Thanh TRAN constitutes a danger to the public should not be followed in this case. I am satisfied that the Ministerial Opinion Report and the Request for Minister's Opinion adequately reflect the basis for my conclusion that Tam Thanh TRAN constitutes a danger to the public in Canada. It is my opinion that the risk that this person represents to Canadian society outweighs the risk that he may face upon return to Vietnam. (Tribunal Record, p. 3)
[13] I agree with the argument advanced by counsel for the Applicant that the statements relied upon by the Respondent still leave a primary question outstanding: Why was the decision made? In my opinion, reasons are intended to provide the answer.
[14] The definition of reasons, considered in the present context, requires that the totality of the evidence with respect to the Applicant be employed in an analytical argument justifying the danger decision reached. I cannot find that the cryptic contentious statements in the ministerial reports so quality. In addition, I find that the Minister's decision is devoid of reasons.
[15] As a result, I find that the Minister's decision was reached in error of law.
O R D E R
Accordingly, the Minister's decision is set aside.
"Douglas R. Campbell"
JUDGE
CALGARY, Alberta
February 21, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030221
Docket: IMM-2333-02
BETWEEN:
TAM Thanh TRAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2333-02
STYLE OF CAUSE: Tam Thanh TRAN v. MCI
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: Friday, February 21, 2003
REASONS FOR ORDER AND ORDER : CAMPBELL, J.
DATED: February 21, 2003
APPEARANCES:
Ms. Rishma Shariff FOR APPLICANT
Ms. Tracy King FOR RESPONDENT
SOLICITORS OF RECORD:
Caron & Partners LLP
Calgary, Alberta FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT
Email this Content