Date: 20010423
Docket: IMM-1241-00
Citation: 2001 FCT 373
BETWEEN:
Enter Style of Cause just after [Comment] code
- CHRISTOPHER DENNIS MCLAREN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
SIMPSON J.
[1] In this application, made pursuant to s. 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), the Applicant seeks judicial review of a decision (the "Second Decision") of a Minister's Delegate, Director General, Case management (the "Minister's Delegate") dated February 21, 2000, wherein he refused to reconsider an earlier decision dated June 29, 1998 (the "First Decision"). In the First Decision, it had been determined that the Applicant was a danger to the public pursuant to s. 70(5) and paragraph 46.01(1)(3) of the Act.
The Facts
[2] The Applicant, age 30, was born in Grenada. He first came to Canada at age 12 and, but for two years spent in Grenada between 1976 and 1978, he has lived here all his life. He became a permanent resident in 1988 when he was 18.
[3] In 1996, the Applicant was charged with possession of a narcotic for the purposes of trafficking and was held for five months in pre-trial custody. After a guilty plea, he was released on an undertaking to appear for sentencing. As a condition of his release, he agreed to reside in a substance abuse treatment centre.
[4] The Applicant entered into a common-law relationship with Shiva Ghogolsadeh in February of 1997. A well, in the same month, he appeared at his sentencing hearing. However, the hearing was postponed because the substance abuse treatment report had not been prepared. Shortly after his court appearance, he left the substance abuse treatment centre and he failed to appear at his rescheduled sentencing hearing on April 10, 1997.
[5] The Applicant was arrested on October 19, 1997, and charged with failure to appear. He also gave the police a false name when he was arrested, and was therefore charged with obstruction of a police officer. On October 27, 1997, the Applicant pleaded guilty to those two charges, and he was sentenced to one year in prison on those matters, as well as his earlier conviction.
[6] On May 14, 1997, while he was in prison, the Applicant's son was born. The following month, the Minister's Delegate made the First Decision. The Applicant brought an application for judicial review of the First Decision and leave was granted but, on February 19, 1999, the application was denied on the basis that the First Decision was reasonable.
[7] It appears that, because he was found to be a danger to the public, the Applicant actually remained in prison for more than one year. He was not released until September 1999.
[8] Approximately three months after his release, the Applicant was interviewed by Dr. Randy Atkinson. He prepared a psychologist's report dated January 20, 2000 (The "Atkinson Report"), in which he provided an assessment of the risk that the Applicant would re-offend. The Applicant retained new counsel who wrote to the Minister's Delegate on February 2, 2000, asking for a reconsideration of the First Decision based on "new" evidence which included the Atkinson Report. However, in his Second Decision, the Minister's Delegate refused to reconsider the First Decision.
The Second Decision
[9] The Second Decision is a one-page letter dated February 21, 2000. The relevant passage is reproduced here:
I have reviewed your request, and having done so, I wish to inform you that I do not consider that your request advances sufficient grounds to justify a reopening of my existing decision.
Issues
[10] The first issue is whether the Minister's Delegate breached the rules of procedural fairness by not providing any or adequate written reasons for the Second Decision. The second issue is the question of whether the Second Decision was reasonable, and the third issue is whether the failure to disclose an internal departmental e-mail constituted a breach of the principles of natural justice.
Discussion of the Issues
[11] The First Decision, which says that the Applicant is a danger to the public, was made pursuant to s. 70(5) of the Act (a "Danger Opinion"). There is no question that the First Decision was of crucial importance to the Applicant and, for that reason, and because the process was adversarial, high standards of procedural fairness applied[1]. As well, the Applicant was entitled to and exercised his right to seek judicial review. However, the First Decision was upheld by Evans J. (as he then was). After judicial review, the Applicant's statutory rights with regard to the First Decision were exhausted.
[12] There is no statutory provision for the reconsideration of a Danger Opinion. From a strict legal perspective, the Respondent was entitled to ignore the Applicant's request for a reconsideration. However, the Respondent has decided to review requests for reconsiderations of Danger Opinions. In Nouranidoust v. The Minister of Citizenship and Immigration (F.C.T.D. File IMM-3873-98 dated June 30, 1999), Reed J. considered whether a visa officer could reconsider a decision to refuse an applicant landing pursuant to an application under the Deferred Removal Orders Class regulations [SOR/94-681] in the absence of any statutory provision for such a reconsideration. She concluded that, although the Immigration Act was silent, the visa officer was not functus officio and had jurisdiction to reconsider, particularly if new information came to light. She said, at paragraph 14:
To squeeze the administrative decisions of visa officers into the same functus officio box that is imposed on judicial decision-makers would, in my view, not accord with the role and duties of visa officers.
In my view, this reasoning applies equally to the Minister's Delegate in this case and the Respondent has not suggested otherwise.
[13] Accordingly, the question becomes what standard of fairness applies when the Minister's Delegate considers whether to reconsider a Danger Opinion? The Applicant says that the highest standards apply just as they did when the First Decision was made because what is being undertaken by the Minister's Delegate is, in reality, a new assessment of the risk posed by the Applicant. The Applicant notes that, from his perspective, the stakes remain very high because, if the reconsideration were to be refused, he would be deported and separated from his common-law wife and his son.
[14] On the other hand, the Respondent says that nothing new is at stake in the reconsideration. The Applicant faced the prospect of deportation when the First Decision was made and, at the time of the First Decision, his son had been born. The Respondent says that what is important is that, in the reconsideration, the Applicant's situation can only be improved and therefore he is not at risk.
[15] In Baker v. Minister of Citizenship and Immigration (1999) 174 D.L.R. (4th) 193 (S.C.C.), the Supreme Court of Canada observed at paragraph 22 that:
...the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected...
[16] The Supreme Court then outlined a non-exhaustive list of factors relevant to a determination of the contents of the duty of fairness in particular circumstances. Those factors were:
• The nature of the decision;
• The closeness of the relevant procedures to judicial decision-making;
• The relevant statutory scheme;
• The importance of the decision to the lives of those affected;
• The existence of a basis for legitimate expectation that a particular procedure would be adopted; and
• Whether an agency's choice of procedure suggested a particular level of fairness.
[17] The Court concluded its general comments with the following passage at paragraph 28:
The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional and social context of the decision.
[18] In the circumstances of this case, an assessment of these factors has led me to the conclusion that the duty of fairness is extremely low or "minimal". The Applicant has been assessed under the Act and a high standard of fairness applied to the First Decision. As well, his application for judicial review was heard and denied. No statute now applies, and there is no basis for a legitimate expectation that any particular procedures will be followed. The only factor in favour of the existence of any duty at all is the importance of the decision. There is no doubt that the Second Decision is enormously important to the Applicant, not in the sense that he is at further risk, but in the sense that a positive decision would allow him to avoid deportation and enjoy the prospect of a secure and happy family life in Canada.
[19] Given that a minimal duty exists, the question becomes what should it mean in this case? In my view, the content of the duty depends on the extent to which the request for a reconsideration contains new facts. On this topic, the Applicant submitted that the facts had changed dramatically in that he was living in a secure and stable common-law relationship with a child and was employed and supporting his family. In addition, he had not returned to drug use and had begun to reconcile with his father. Finally, the Atkinson Report assessed his risk of relapsing into drug use as "very low" and his risk of re-offending as "low".
[20] The Respondent did not dispute these facts but said that the Atkinson Report indicated that the Applicant's past relationships had usually lasted about eight months and, without the stability of a relationship, he repeatedly returned to drug use and related criminal activity. In these circumstances, the Respondent noted that, in January of 2000, it was too soon after the Applicant's release from prison for Dr. Atkinson to make a meaningful assessment, and too soon for the Minister's Delegate to be reasonably satisfied that the new situation was stable. In my view, this submission is persuasive. In January 2000, the new facts were so new that it should have been obvious to the Applicant why the Second Decision was made.
[21] However, because of the importance of the matter to the Applicant and because there was new evidence, I have concluded that the minimal duty of fairness required a minimal explanation for the Second Decision. For example, the duty would have been met had the Minister's Delegate included one short sentence in his letter of February 21, 2000, explaining that he had concluded (if this was in fact the case) that the evidence presented was too fresh to form a reliable basis for a reconsideration.
[22] With regard to the second issue, I have concluded that, if the Second Decision was based on the fact that the Applicant's request for a reconsideration was premature, then that decision was reasonable. As well, dealing with the third issue, I have concluded that the minimal duty of fairness does not extend to the disclosure of interdepartmental correspondence relevant to a request for a reconsideration.
Conclusion
[23] I see no purpose in sending this matter back for a redetermination since the relevant evidence is now more than one year out of date. Accordingly, an order will be made setting aside the Second Decision and granting the Applicant the opportunity to submit a fresh request for a reconsideration of the First Decision.
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, B.C.
April 23, 2001
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: CHRISTOPHER DENNIS MCLAREN
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DOCKET NO.: IMM-1241-00
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: April 12, 2001
REASONS FOR ORDER: SIMPSON J.
DATED: April 23, 2001
APPEARANCES:
Mr. Shane Molyneaux for Applicant
Ms. Helen Park for Respondent
SOLICITORS OF RECORD:
Elgin, Cannon & Associates for Applicant
Vancouver, B.C.
Morris Rosenberg for Respondent
Deputy Attorney General of Canada
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