Date:
20120907
Docket:
IMM-8195-11
Citation:
2012 FC 1059
Ottawa, Ontario,
September 7, 2012
PRESENT: The
Honourable Mr. Justice Mosley
BETWEEN:
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SU FENG SHI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
primary issue in this case is whether procedural fairness requires that counsel
previously on record for an individual who is the subject of a request for a
danger opinion be served with disclosure documents in addition to the
individual concerned. Where counsel is known such disclosure is required. In
the particular circumstances of this case, I find that the respondent can not
be faulted for failing to provide the documents where they were not informed that
the individual had counsel.
[2]
For
the reasons that follow I find that the applicant was not denied procedural
fairness and the application is dismissed
BACKGROUND:
[3]
The
applicant, a citizen of China born in 1980, came to Canada in 1999 and was
granted refugee status on the ground of religious persecution in 2000. He
became a permanent resident the same year. Within two years he was facing
serious criminal charges including robbery. By reason of a conviction under the
Criminal Code for assault causing bodily harm in 2004, he was found to
be inadmissible under paragraph 36(1)(a) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (hereafter IRPA) in January 2005 and a
removal order was issued. The applicant appealed that
determination to the Immigration Appeal Division.
[4]
In
2007 the applicant’s then immigration counsel withdrew from the record by reason
of an inability to contact the applicant and the appeal
was declared abandoned. A warrant was issued for the applicant’s arrest. Later the same year,
the applicant was convicted of robbery, disguise with intent and unlawful
possession of a controlled substance and the warrant was executed while he was
serving his sentence.
[5]
On
November 5, 2007 the
applicant was served with notice that a request for a determination had been
made to the Minister of Public Safety and Emergency Preparedness with respect
to whether the applicant constituted a danger to the public in Canada and
should be removed subject to an assessment of the risk he might face in China,
pursuant to 115(2)(a) of the IRPA. At that time he was provided with a list and
copies of the material that would be provided to the Minister for
consideration, notably documents relating to his immigration history, court
records and police reports. That material did not include records relating to
the 2007 criminal convictions.
[6]
The
applicant retained counsel for the purposes of a detention review hearing late
in 2007. He
was released under terms and conditions including cash bonds on December 24,
2007. Counsel submitted written representations on December 31, 2007 with
respect to the material included in the package served on the applicant,
contending that they did not disclose a sufficient case to establish that the
applicant represented a danger and that he continued to face a risk of
persecution in China. The submissions were acknowledged by letter addressed to
Mr. Shi care of the law firm in January, 2008. He had named the firm as his
point of contact in a form entitled “Authority to Release Personal Information
to a Designated Individual’ dated October 11, 2007. The form states that such
designated individual will not be a representative to conduct business with
Citizenship and Immigration Canada or CBSA on the applicant’s behalf. For that
purpose, the form states, a different “Use of a Representative” form must be
completed.
[7]
In
May 2009 Mr. Shi was arrested and charged with additional criminal offences
involving the shooting of a person in a public place. He was convicted of
assault causing bodily harm on December 16, 2009. As a result, an updated
disclosure package was prepared including the occurrence reports, certificates
of conviction, the reasons for sentence in relation to the 2007 and 2009
convictions and country condition reports pertaining to religious freedom in China.
[8]
On
August 9, 2010 while the applicant was on remand at the Toronto Jail awaiting
trial on fresh criminal charges laid in April 2010 of assault and forcible
confinement, he was visited by a CBSA officer, accompanied by another officer
who is a native Mandarin speaker and qualified interpreter. On
that occasion, the applicant was provided disclosure of the updated disclosure
package and signed a disclosure receipt. The cover letter accompanying the
additional materials indicated that Mr. Shi had fifteen days in which to make
final representations and arguments or submit evidence before the documents
would be presented to the Minister to form a danger opinion.
[9]
The
August 2010 meeting was interpreted into Mandarin and the interpreting officer
deposed that she gave the applicant the opportunity to ask questions and to
indicate whether he did not understand. The officer serving the package deposed
that his practice is to always ask if the client has counsel and if so, he
contacts counsel to ensure they are aware of the current process and any
disclosure materials in accordance with Ministerial Policy. In the officer’s
tracking system for danger opinion proceedings, no counsel was listed for Mr.
Shi nor was there a “Use of Representative Form” which would authorize CBSA to
conduct business with counsel on the applicant’s behalf.
[10]
On
August 20, 2010, the applicant was convicted of assault and forcible
confinement and received two concurrent sentences of 18 months’ imprisonment
and 2 years of probation. On September 20, 2010, the Request for the Minister’s
Opinion document package was provided to the applicant in jail and he was
informed that he could provide further submissions to the Minister’s delegate
before a decision would be made.
[11]
The
applicant was visited again by a CBSA officer at the Central North Correctional
Centre in Penetanguishene, Ontario on October 7, 2010 where he was serving his
sentence for the 2010 convictions. The officer served two additional documents
relating to the 2010 convictions and the applicant again signed a letter
acknowledging that he had received disclosure. The letter reiterated that he
had fifteen days in which to make further submissions.
[12]
None
of the documents served on the applicant in 2010 were disclosed to the counsel
who had represented Mr. Shi in 2007. Mr. Shi made no attempt to contact counsel
when served with the updated disclosure packages. No supplementary
representations or evidence were submitted by the applicant prior to the
issuance of the Minister’s opinion on December 13, 2010. Counsel first learned
of the disclosure in 2011 when he was again retained to act on Mr. Shi’s behalf
for a detention review.
DECISION UNDER
REVIEW:
[13]
Where
a person is inadmissible to Canada by reason of serious criminality, the
Minister or his or her delegate must determine whether the person is a danger
to the public in Canada and, if so found, balance that against the risk faced
by the individual if returned to his country of origin and any humanitarian and
compassionate considerations.
[14]
In
this instance, the delegate determined, on the balance of probabilities, that
the violent and repetitive nature of the applicant’s offences and poor
prospects for rehabilitation meant that his continued presence constituted a
present and future danger to the Canadian public.
[15]
The
Minister’s delegate was satisfied that the applicant would not be personally
exposed to a risk to life, risk of torture or risk of cruel and unusual
treatment, and would not be exposed to more than a mere possibility of
persecution if returned to China, either as a member of the
Tian Dao faith, the basis of his refugee claim, or by reason of a subsequent
conversion to Christianity as claimed in 2007. If the applicant would have been
at risk, the delegate found, the balance was in favour of his removal. There
were no humanitarian and compassionate considerations to outweigh the fact that
he was a danger to the public.
ISSUES:
[16]
The
applicant contends:
i.
that
he was denied procedural fairness, and
ii.
that
the risk assessment was unreasonable.
ANALYSIS:
Standard of Review;
[17]
Questions
of procedural fairness attract no deference: Canada (Attorney
General) v Sketchley,
2005 FCA 404, at para 53; and Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 43. The proper approach is to ask
whether, in the particular circumstances, the requirements of the duty have
been met: Pusat v Canada (Minister of Citizenship and Immigration) 2011
FC 428 at para 14.
[18]
Apart
from questions of fairness in this context, the jurisprudence has satisfactorily
established that the standard of review for a Minister’s danger opinion is
reasonableness: La v Canada (Minister of Citizenship and Immigration),
2003 FCT 476 at paras 12-16; Randhawa v Canada (Minister of Citizenship and
Immigration), 2009 FC 310 at para 3; and Suresh v Canada (Minister of
Citizenship and Immigration), 2002 SCC 1 at para 41.
[19]
As
a preliminary matter, I noted at the outset of the hearing that the submission
of an affidavit by a member of the same firm as counsel who appeared for the
applicant was in apparent breach of Rule 82 of the Federal Courts Rules.
Where necessary to submit such evidence, the proper course of action, in my
view, would have been to refer the applicant to another law firm.
Was there a breach of
procedural fairness?
[20]
The
onus of ensuring procedural fairness is heightened in the context of a danger
opinion considering the impact of the decision on a refugee and his rights
under s 7 of the Canadian Charter of Rights and
Freedoms,
Part I of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (UK), 1982, c 11: Canada (Minister of Citizenship and
Immigration) v Bhagwandass, 2001 FCA 49 at paras 30-31.
[21]
The
applicant submits that he was denied procedural fairness by the manner in which
he was served with documents and from the failure of the Minister to serve
those documents on his counsel. As a result, the applicant contends, he was
denied an opportunity to respond. As the issues under consideration by the
delegate were fact dependent, the outcome could have been different had proper
submissions been made.
[22]
It
is well established from the jurisprudence and the Minister’s own policy that
the respondent had the duty to disclose all documentation to the applicant and
his counsel, if known. This is set out in the respondent’s operational manual:
ENF 28, Ministerial Opinions on Danger to the Public and to the Security of
Canada at section 7.5. See also Chernikov v Canada (Minister of
Citizenship and Immigration), 2011 FC 885 at para 27; and Ashour v Canada (Minister of Citizenship and Immigration), 1998 CanLII 7836 (FC) at para 8.
[23]
The
respondent must be taken to have been aware that the applicant had immigration
counsel in 2007 even if the proper form had not been completed because
submissions from counsel were received and acknowledged. It is also clear that
the two document packages served on the applicant in 2010 were not provided to
the 2007 immigration counsel. That counsel did not learn of them until after
the issuance of the danger opinion. What is not clear from the record is
whether Mr. Shi’s immigration counsel continued to represent the applicant
between the events in 2007 and 2011 when the counsel again became engaged in
Mr. Shi’s legal problems.
[24]
This
is not a case such as Ashour, above, which involved ongoing proceedings
before a quasi-judicial body, the Immigration Appeal Board, where counsel was
clearly listed as counsel of record and neither the applicant nor counsel were
served with the relevant materials. Here, in my view, the duty of fairness was
satisfied by disclosure of the materials directly to Mr. Shi. It was then
incumbent upon him to inform the officers that he was represented or to inform
his counsel he had received disclosure of documents, neither of which he did.
[25]
In
my view, the respondent can not be faulted for the applicant’s failure to take
any action in his own interest when served with the document packages despite
having been on notice since 2005 that he was subject to removal.
[26]
The
applicant claims that he did not understand the two meetings he had with the
CBSA officers. It is clear from the applicant’s past dealings with the criminal
justice system that he has some knowledge of English. While his 2004 sentencing
hearing was interpreted, during the 2007 proceedings he responded to questions
from the presiding judge and completed court documents without interpretation.
The fact that he was taking English as a Second Language courses was submitted
in mitigation.
[27]
Even
if I were to accept the applicant’s assertion that he has difficulty
understanding English, the August 20, 2010 meeting with CBSA officers was
interpreted by a native speaking Mandarin qualified interpreter. I do not
accept the applicant’s claim that he was unable to understand the interpreter,
the purpose of the meeting as explained to him by the officers, or the
disclosure letter that he signed. Even if I were to find that his affidavit
evidence was credible, by his own statement the applicant claims he was told by
the officers that he should give the package to his lawyer within fifteen days.
He says he spoke with his wife shortly thereafter. There is no evidence that
she made any efforts to contact counsel to inform them a package had been
served upon Mr. Shi.
[28]
According
to the officers’ affidavit evidence, which I accept in preference to that of
the applicant, the applicant did not complain of an inability to understand at
the meeting or thereafter prior to the issuance of the decision. The absence of
a complaint about the quality of interpretation at the earliest possible
opportunity has been held to constitute a waiver: Mohammadian v Canada
(Minister of Citizenship and Immigration), 2001 FCA 191 at para 19; Singh
v Canada (Minister of Citizenship and Immigration), 2010 FC 1161 at para 3;
and Mowloughi v Canada (Minister of Citizenship and Immigration), 2012
FC 662 at paras 30, 32.
[29]
While
the October 2010 meeting was not interpreted, the additional documents
disclosed to the applicant on that occasion were clearly already within the
applicant’s knowledge as he had been present during his conviction in August
2010 and signed the order that formed part of his sentence. The applicant’s
assertion that he was unable to do anything in respect of the material
delivered to him at the Central North Detention Centre as the papers were taken
away from him because he was involved in a fight is simply not tenable. Nothing
prevented the applicant from asserting his rights to instruct counsel.
[30]
Had
I reached a different conclusion, this is not a case in which I would have
applied the principle of inevitable outcome set out in Mobil Oil Canada Ltd
v Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, [1994] SCJ No 14 (QL)
at para 53. Here the decision under review is fact based and did not turn on a
question of law for which there is only one correct answer. The alleged breach
precluded further submissions on important matters such as the applicant’s
recent convictions. While this is doubtful, the outcome might conceivably have
been different.
Was the
delegate’s risk assessment reasonable?
[31]
The
applicant was granted protection in 2000 on the strength of his claim that he
was a follower of Tian Dao beliefs and practices in China. He submits that the
Minister’s delegate’s risk assessment was unreasonable because the delegate did
not assess the risk that the applicant would continue to be perceived to be a
Tian Dao follower in China and did not base conclusions on persecution of
Christians in China on the evidence.
[32]
The
onus was on the applicant, once found to be a danger to the public in Canada, to persuade the delegate that there is a risk upon removal. The designated person
cannot simply rely on his protected status as a Convention refugee: Jama v Canada (Minister of Citizenship and Immigration), 2009 FC 781 at paras 85-86; Hasan v Canada (Minister of Citizenship and Immigration), 2008 FC 1069 at para 22; and Camara
v Canada (Minister of Citizenship and Immigration), 2006 FC 168 at paras
58-60.
[33]
Here,
the evidence that the applicant was a Tian Dao adherent in China was scant. In any event, it is a religion he did not continue to follow in Canada. The Minister’s delegate reasonably concluded that since the applicant was no longer
a Tian Dao follower and that a significant amount of time had passed since he
was granted status, the applicant did not demonstrate he would face persecution
in China for that reason. Nor did he establish that he would face risk by
reason of a sur place conversion to Christianity.
[34]
It
is clear from the record that the applicant is a long-time gang member with
little or no regard for the safety of others or Canadian law. Overall, the
decision falls well within the range of possible outcomes in light of the law
and the facts: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47; and Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at paras 16-18.
[35]
When
given the opportunity at the hearing, counsel for the applicant did not propose
a question for certification. Counsel for the respondent indicated that should
I find that service on counsel was required in this instance, the Minister
would wish to propose a question. As indicated above, I do not make such a
finding.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed. No question is certified.
“Richard G. Mosley”
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