Luksicek v. Canada, docket IMM-1360-95

     IMM-3160-95

B E T W E E N :

     MILAN LUKSICEK

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

MacKAY J.

     This is an application for judicial review of and for an order setting aside the Minister's opinion, pursuant to s-s. 70(5) of the Immigration Act, R.S.C. 1985, c.I-2, as amended (the "Act"), that the applicant, Milan Luksicek, constitutes a danger to the public in Canada. That opinion, determined by the Minister's delegate, was dated October 31, 1995, and communicated to the applicant on November 3, 1995.

     The application was heard in Vancouver, on August 14, 1996, with two other applications, in Court file IMM-3043-95 and in Court file IMM-3528-95, both filed by another applicant, Christopher Isaac Pratt, which dealt with similar issues and circumstances as those in this case. The first of those applications in Pratt v. Minister of Citizenship and Immigration, IMM-3043-95, raises the same issues as are raised in this case. After hearing counsel in August 1996, decision in these matters was reserved and counsel were invited to submit in writing any joint or separate submissions concerning questions that might be considered for certification pursuant to s-s. 83(l) of the Act for consideration by the Court of Appeal. Thereafter, submissions were made by counsel for each of the parties in September 1996.

     Subsequently, with evolving jurisprudence concerning the application of s-s. 70(5) of the Act, it seemed appropriate that counsel concerned with these applications have the opportunity to make additional submissions in light of that jurisprudence. Further written submissions were received from counsel in January 1997. Soon thereafter it was known that other cases raising generally similar issues were scheduled to be heard by the Court of Appeal early in 1997 and this Court determined to reserve decision in this case pending decisions of the Court of Appeal. A key decision for this application for judicial review was rendered by that Court in Minister of Citizenship and Immigration v. Williams, Court file A-855-96, determined on April 11, 1997, ([1997] F.C.J. No. 393 (F.C.A.)). Disposition of this application is based substantially on that decision.

     In the Reasons which follow, I describe the basic facts of this case and then set out the issues said to be raised by the applicant. In original written submissions, those are the same issues as were raised in Pratt, IMM-3043-95. Since the issues here are determined in the same manner as in that case, a copy of the Reasons in regard to the Pratt applications (IMM-3043-95 and IMM-3528-95) is appended hereto in explanation of the conclusions reached in disposing of the issues here raised. The Reasons in Pratt are the same, for the second, third and fourth issues raised in writing by the applicant Luksicek, which were the only issues argued when his application came on for hearing.

Facts

     The applicant was born February 12, 1973 in Czechoslovakia and was admitted to Canada on November l, 1985 as a landed immigrant with his mother and his brother. The family was sponsored by the applicant's grandmother. The applicant continued as a permanent resident in Canada without becoming a citizen.

     Commencing in September 1989, he was convicted of a number of offenses under the Criminal Code of Canada, including dangerous operation of a vehicle, possession of property obtained by crime, theft, cultivating marijuana, carrying a concealed weapon, and numerous counts of break and enter and attempts at that offence. Convictions for many of these offenses led initially to probation and open custody, then to incarceration for various terms, the latest, in 1995, being for two year concurrent sentences on several convictions for break and enter.

     Before the last of his convictions, the applicant was the subject of an inquiry under s. 27 of the Act. On June 16, 1994 he was found to be a person described in paragraph 27(l)(d) and in accord with the Act an order was issued that he be deported from Canada.

     On June 16, 1994, the same day as the deportation order was issued, the applicant completed, and acknowledgment of its receipt was given by an adjudicator, a notice of appeal to the Appeal Division of the Immigration and Refugee Board, concerning the removal order issued to him, pursuant to s. 70 of the Act as it then was. The appeal was scheduled, and it commenced on September 5, 1995 when all the oral evidence was heard and the matter was adjourned to allow counsel to present further documentary evidence.

     Before the hearing of the appeal, on July 10, 1995, there came into force an Act to Amend the Immigration Act, the Citizenship Act and to Make Consequential Amendments to the Customs Act, S.C. 1995, c.15 (the "Amending Act"). Key provisions of that Amending Act relevant for this application included an amendment adding s-s. 70(5) to the Immigration Act and providing for its application. That subsection provides, in essence, that a permanent resident who, in the opinion of the Minister, constitutes a danger to the public in Canada, shall not have an appeal to the Appeal Division in relation to a deportation order issued against him.

     In this case, by letter dated August 30, 1995, received by the applicant's counsel on September 6, the day following the appeal hearing, Mr. Luksicek, who was then in Matsqui Institution, was advised that the Minister would be considering whether he constituted a danger to the public in Canada pursuant to s-s. 70(5) of the Act. The letter advised of the evidence to be considered by the Minister as consisting of certain documents, copies of which were sent to the applicant. He was told there was opportunity to address that evidence by any representation, information or evidence he wished to submit concerning whether he was a danger to the public and whether there were sufficient humanitarian and compassionate factors to outweigh any danger he might present. If no submission were made by the applicant within 15 days of receiving the letter, he was advised the Minister might issue an opinion based on the evidence before him.

     In response to that letter, counsel for the applicant replied on September 11, 1995 urging that since the applicant's appeal to the Appeal Division had been heard on September 5 and was awaiting decision, the issuance of an opinion under s-s. 70(5) was presumed to be moot. The Minister's department disputed that, indicating that the issuance of an opinion under s-s. 70(5) would deprive the Appeal Division of jurisdiction to decide the appeal. Counsel for the applicant then asked, on September 16, for an extension of time to make submissions in response to the letter dated August 30, in order to file in response a copy of a transcript of evidence given at the appeal hearing and to complete submissions. Counsel also sought information about how to obtain a copy of the transcript of the appeal hearing. The record reveals no written response to counsel's requests.

     Interestingly, the appeals officer who dealt with the correspondence from the applicant's counsel in mid-September also wrote to the Appeal Division asking that, in connection with the applicant's appeal, documentary evidence, in the form of correspondence from the honourary consul of the Czech Republic in Vancouver, be admitted in relation to that appeal. On October 25, 1995 counsel for the applicant wrote to the Appeal Division requesting a copy of the transcript of the hearing held on September 5, and he also wrote to the local Canada Immigration Centre, in Vancouver, indicating that the transcript had been requested and that he would be making submissions in regard to the possible issuance of the Minister's opinion under s-s. 70(5).

     On November 3, 1995 the Vancouver Manager of the Enforcement Section of the Minister's Department wrote to the applicant to advise that it was the Minister's opinion that Mr. Luksicek constituted a danger to the public in Canada pursuant to s-s. 70(5) of the Act. That opinion, determined by the Minister's delegate, was actually dated October 31, 1995. Further, the applicant was advised, a deportation order having been issued earlier to him, the issuance of the Minister's opinion removed the applicant's right to appeal from that order to the Appeal Division. Also, on November 3, the Department's appeals officer advised the Appeal Division of the Minister's opinion and urged, in light of that, that the Appeal Division advise the parties the applicant's appeal was dismissed for lack of jurisdiction.

     On November 7, 1995, counsel for the applicant wrote to the Minister requesting that the opinion be withdrawn to permit him to make submissions concerning the opinion the Minister should form, as he had earlier requested be permitted, with an extension of time to permit acquisition of the transcript of the September 5 hearing of the Appeal Division. It appears there was no response to that letter of November 7.

     On November 17, 1995 this application for leave and for judicial review of the Minister's opinion was initiated. That application notes that the applicant had not received written reasons for the decision. By letter of November 20, the Appeal Division advised the applicant that it considered the request by the appeals officer's letter of November 3 to be a motion to dismiss the appeal for lack of jurisdiction. The applicant was directed to respond in writing to that motion by November 27, and by that date counsel for the applicant wrote in reply, submitting to the Appeal Division that it retained jurisdiction in the matter despite the Minister's opinion.

     In accord with the Court's Immigration Rules, upon receipt of the applicant's application for leave and for judicial review which notes that reasons had not been received for the impugned decision, the Registry wrote to the Minister's department to ask that if reasons were given they be provided. On November 30, on behalf of the Department, a letter was sent to the Court advising that the Minister had not issued reasons for her decision.

Issues

     The applicant submitted in writing that the same issues as were raised in Pratt (IMM-3043-95) arise in this case. When this matter was heard, counsel for the applicant in this case advised that reliance was not placed on the first of the issues which are here set out; rather he relies only on the second, third and fourth of the issues. In Luksicek's case the Appeal Board had disposed of his appeal, dismissing it, before this application was heard, and in doing so that Board had concluded that s-s. 13(4) did not render s-s. 70(5) inapplicable to the appeal. No argument about the merits of that decision was raised in these proceedings.

     For completeness of the record I note the issues as originally stated in written submissions. Those are as follows:

Conclusions

     For the reasons set out in the Reasons for Orders in the applications of Pratt (IMM-3043-95 and IMM-3528-95), a copy of which is filed herewith, I reach the following conclusions on the issues raised on behalf of the applicant, Mr. Luksicek, when this matter was heard.

     While it was not raised as an issue at the hearing, I find s-s. 70(5) was applicable in the case of Mr. Luksicek in light of s-s. 13(4), by analogy relying on the decision of Mr. Justice Marceau for the Court of Appeal in Tsang v. Minister of Citizenship and Immigration, Court file A-179-96, February 11, 1997 (F.C.A.). The rendering of a decision in relation to the applicant under s-s. 70(5) was thus not an error in law.

     The Minister did not fail to observe principles of natural justice or procedural fairness in rendering the opinion pursuant to s-s. 70(5) of the Act, either by the process followed or by the absence of reasons for the opinion of the Minister's delegate.

     The applicant's rights under s. 7 of the Charter were not engaged by the process or by the lack of reasons for the Minister's opinion nor is the wording unconstitutionally vague in light of s. 7 of the Charter.

     In all the circumstances, based largely upon the decision of the Court of Appeal in Williams, I find there is no basis to intervene in the process. The application for judicial review is thus dismissed in accord with reasons based on Williams as those are set out in the concurrent decision in relation to the applications of Pratt.

     As in the Pratt applications, so in this one, counsel did submit, following the hearing of this matter, proposed questions for certification under s-s. 83(1) for the Court of Appeal. Those questions related essentially to matters now resolved, in my opinion, by decisions of that Court, in Williams, supra, and in Tsang, supra.

     No further questions were proposed which would warrant certification for consideration by the Court of Appeal.

     __________________________________

     JUDGE

OTTAWA, Ontario

April 30, 1997.