Date: 20080604
Docket: IMM-4433-07
Citation: 2008
FC 548
Ottawa, Ontario,
June 4, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
CHRISTINO
CHAND
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Mr. Chand
was born in Fiji. He immigrated to Canada in 1987 with his family when he was
11 years old. He became a permanent resident on May 5, 1992, under the DC-8
refugee backlog class. On September 27, 2005, Mr. Chand received a five-year
sentence for trafficking cocaine and methylenedioxyamphetamine (MDA).
[2]
The detail of his crime is of some relevance to the matters under
consideration.
[3]
Mr. Chand was arrested as a result of an RCMP sting operation. Officers
had arranged to purchase 4 kilograms of cocaine and to meet with the
seller’s supplier who turned out to be Mr. Chand. Following his arrest and
the seizure of 4 kilograms of cocaine from Mr. Chand, his premises were
searched and a further 1099 grams of cocaine, 393 pills of Ecstasy (MDMA),
728.2 grams of marijuana and $10,000 to $15,000 in cash were located and
seized.
[4]
In imposing the five-year prison sentence the trial judge noted that
while this was a first conviction, he was of the view that Mr. Chand had a
long-term involvement in drugs. It was noted that Mr. Chand was a supplier of
cocaine at the kilo or multi-kilo level. Part of the reason for the sentence
Mr. Chand received was the large quantity of hard drugs that were involved.
The judge was also of the view that there was a significant degree of
planning and premeditation involved in the offence and the circumstances lead him
to the conclusion that Mr. Chand’s drug dealing was an ongoing one and had
likely been so for an extended period of time.
[5]
In light of his conviction and sentence he was visited on March 30,
2007, at Ferndale Institution, by Canada Border Services Agency Enforcement
Officer Stritzi who delivered a letter of the same date that stated:
A report under
section 44(1) of the Immigration and Refugee Protection Act has been or
may be prepared alleging that you may be inadmissible to Canada under paragraph
36(1)(a) of the Immigration and Refugee Protection Act, because of your
criminal convictions under sections 5(1) and 5(2) of the Controlled Drugs
and Substances Act for Canada.
[6]
Attached
to the cover letter was a document signed by Officer Stritzi dated March 28,
2007, entitled “Report under Subsection 44(1) of the Immigration and Refugee
Protection Act”. That document (the Stritzi Report) provides, in part, as
follows:
In accordance with subsection
44(1) of the Immigration and Refugee Protection Act, I hereby report
that Christino Chand born 12 Aug 1976 in Fiji is a person who, in my opinion,
is inadmissible pursuant to paragraph 36(1)(a)…
[7]
The cover
letter to the Stritzi Report advised that a decision to allow him to remain in Canada
or to seek to have a removal order issued against him would be made in the near
future and he was invited to make written submissions. Mr. Chand did provide a
detailed written submission dated April 27, 2007, which together with the
tendered exhibits totalled more than 160 pages.
[8]
The Applicant’s submissions and other relevant documents were considered
by Immigration Officer Vanderstar who prepared a report dated June 5, 2007, entitled:
“Subsection 44(1) and 55 Highlights – Inland Cases (Short)” which I shall refer
to as the Highlights Report.
[9]
The Highlights Report summarized Mr. Chand's offence, education,
employment, and referenced his favourable pre-sentence report. As well, it
provided a recommendation that Mr. Chand be referred to an admissibility
hearing and that a deportation order be sought. The author of the
Highlights Report states:
Although Mr. Chand does not have
any previous criminal convictions, it is clear that Mr. Chand had been involved
in drug trafficking for a significant period of time and that Mr. Chand was
also benefitting (sic) financially and enjoying the lifestyle that came
from his illegal ways. Mr. Chand was also not involved in small time drug
dealing or acting as a mere courier; Mr. Chand is a supplier for cocaine in
multi-kilogram amounts. The amount of cash and other narcotics obtained from
Mr. Chand's residence with Mr. Teng show his involvement in the drug trade as
well. A significant factor in coming to my recommendation is that the
Judge sentenced Mr. Chand to a term of imprisonment of five (5) years. The
sentence imposed indicates the seriousness of the offence committed by Mr.
Chand.
[10]
Mr.
Vanderstar also noted in his recommendations: “If a deportation order were to
be issued against Mr. Chand he cannot be removed from Canada unless he is found
to be a danger because he was granted refugee status". The Highlights
Report was reviewed and signed off by Mr. Vanderstar’s superior and by Acting
Director Murray Wilkinson. Mr. Wilkinson included a handwritten note to the
Highlights Report dated June 12, 2007, which reads in part as follows:
After a careful review of the submissions made by
Christino Chand and his counsel I conclude the referral of this case to the
I.D. is in fact warranted. Mr. Chand was involved in trafficking of drugs at a
very high level.... It should be noted that Mr. Chand is NOT a convention
refugee and could be removed at the conclusion of the process.
(emphasis in original)
[11]
The
Highlights Report, together with Mr. Wilkinson’s comment (collectively referred
to as the Section 44(1) Report) was then sent to the Minister’s Delegate for a
decision under section 44(2) as to whether the report ought to be referred to
the Immigration Division for an admissibility hearing to determine if Mr. Chand
was a person described in subsection 36(1)(a) of the Act, i.e. inadmissible on
grounds of serious criminality.
[12]
Prior to the Section 44(1) Report being reviewed by the Minister’s
Delegate a further report dated July 25, 2007 was prepared by Heather Cumming,
Analyst, Case Review, Case Management Branch (the Case Review Report).
[13]
In the Case Review Report Ms. Cumming includes a recommendation. She
writes:
Based on all factors in this
case, I recommend referral to an admissibility hearing not be signed at this
time. In my opinion, Mr. Chand should be given an opportunity to prove he
has turned his life around. I recommended he be issued a stern warning letter
that clearly outlines the consequences of any further criminal involvement.
[14]
In the
background section of the Case Review Report, Ms. Cumming writes:
CBSA officials have indicated
that if a deportation order were to be issued against Mr. Chand he cannot be
removed from Canada unless he is found to be a danger to the public because he
was granted refugee status. This is incorrect. Subject was granted permanent
resident status in the DC8 category via the refugee backlog. He was not
determined to be a Convention refugee. Information from the Asylum Division,
Refugee Branch, confirms that people in the DC8 category are not considered to
be protected persons.
[15]
The
Section 44(1) Report and the Case Review Report were both placed before the
Minster’s Delegate for her decision under section 44(2) as to whether to refer
Mr. Chand to an admissibility hearing.
[16]
The Minister’s Delegate made an undated written notation referencing the
statement by Ms. Cumming that it was incorrect that Mr. Chand could not be
removed absent a danger opinion. She writes:
Are we sure about that? As I am
under the impression that a danger opinion will be required if deportation
issued. (see attached)
[17]
The attached
is an e-mail chain that ends with an email that asserts that DC-8s, such as Mr.
Chand, are not Convention refugees and are not protected persons; however, they
are entitled to a Pre-Removal Risk Assessment, if requested.
[18]
At the foot of the Case Review Report the Minister’s Delegate writes:
Have read entire submissions.
Admissibility hearing signed this date because of the seriousness of offence. [Initials]
27th August 2007
[19]
It is this
decision under section 44(2), referring Mr. Chand to an admissibility hearing,
that is the subject of Mr. Chand’s judicial review proceeding.
[20]
The Applicant alleges that the Minister’s Delegate erred:
1.
in that she relied on the Section 44(1) Report which was founded on an
error of law that the Applicant was a protected person;
2.
in that she relied on the Highlights Report which makes reference to a
number of documents that were not disclosed to the Applicant, despite his
counsel’s request; and
3.
in that she failed to provide adequate reasons for her decision to refer
the matter to an admissibility hearing.
Did the Minister’s Delegate
err in relying on the Section 44(1) Report which was founded on an error of law
that the Applicant was a protected person?
[21]
The
Applicant argues that when Officer Vanderstar made his recommendation to refer
the admissibility report to the Minister’s Delegate he did so under the
mistaken impression that Mr. Chand could not be removed from Canada
without a danger opinion issuing because he believed that Mr. Chand was a Convention
refugee. It is submitted that his recommendation may have been different had he
been aware of the correct state of affairs. Mr. Chand advances the position
that the Minister’s Delegate thus erred in relying on a report that was made
based on an error of law. I find this submission to be without merit for a
number of reasons.
[22]
First, the
Applicant is seeking a review only of the Minister’s Delegate’s decision, not
the Section 44(1) Report and it is this second decision he claims is in error. Second,
the Section 44(1) Report is comprised of more than Officer Vanderstar’s
recommendation. It is also comprised of the sign-off by Acting Director
Wilkinson, who noted the error in Officer Vanderstar’s Report and corrected it
by noting that the Applicant is not a Convention refugee and could be removed
at the end of the admissibility hearing. Accordingly, the error of Officer
Vanderstar was corrected before it reached the Minister’s Delegate. Third,
there is no evidence that the Section 44(1) Report would have been any
different had Officer Vanderstar not made the error. We do know that Acting
Director Wilkinson was of the view that a referral was appropriate, and thus
there is every reason to believe that he would not have signed off on the
recommendation if it was otherwise.
Was
there an error in law in failing to disclose to the Applicant the documents
referenced in the Highlights Report?
[23]
The
Highlights Report does reference a number of documents that were attached to it
when transmitted to the Minister’s Delegate as a part of the Section 44(1)
Report.
[24]
The Applicant relies on the decisions of Justice Hughes in Hernandez
v. Canada (Minister of Public Safety and Emergency Preparedness),
2007 FC 725, as support for his submission that the failure to provide these to
counsel constitutes an error of law. This case is substantially different than
that considered by Mr. Justice Hughes. First, the documents referenced in the
Highlights Reports are all to be documents that the Minister could reasonably
expect the Applicant to have. They included the Crown disclosure at the
criminal trial, the criminal charge, the judge’s reasons for sentence,
pre-sentence report, etc. In fact, counsel for the Respondent noted that the
Applicant himself had provided many of the same documents with his submission
prior to the preparation of the Section 44(1) Report.
[25]
I have some sympathy for the submission made by Applicant’s counsel that
he should not have to undertake the sort of analysis done by Respondent’s
counsel to determine exactly what document was meant by the designators used
(e.g. Red Tab 1, Yellow Tab 2, Blue Tab 6). It would have been preferable
had the author simply stated the actual description of the document being
referenced. However, the fact remains that these were documents in the
Applicant’s possession or were documents one could reasonably expect he had.
[26]
Second, in Hernandez, Justice Hughes was faced with a situation
where a document containing a recommendation that was submitted to the
Minister’s Delegate was not disclosed prior to the admissibility hearing. Here it
is argued that these were not disclosed to counsel prior to the section 44(2)
review. That is an administrative process. I can find no error of law either in
the failure to disclose prior to the section 44(2) review or the Minister’s
Delegate having relied on those documents.
Did the Minister’s Delegate
err in failing to provide adequate reasons for her decision to refer the matter
to an admissibility hearing?
[27]
The
Applicant submits that the cursory handwritten notation of the Minister’s
Delegate is little better than no reasons at all. He referenced 19.4 of the
Respondent’s internal publication “ENF 6 - Review of Reports under A44(1)” which
list a number of factors that ought to be included when preparing reasons.
[28]
The Respondent submits that written reasons are not required in the
context of a section 44(2) decision given the low level of procedural fairness
accorded such administrative decisions: Lee v. Canada
(Minister of Employment and Immigration), 2006 FC 158, noted with approval
in Hernandez v. Canada (Minister of Public Safety and Emergency
Preparedness), 2007 FC 725.
[29]
In my view, the Minister’s Delegate had before her two very detailed
reports: the Highlights Report and the Case Analysis Report. Both reviewed all
of the relevant factors in considerable detail. The handwritten note of the
Minister’s Delegate indicates that she read all of the submissions which
include these reports. She concluded that a referral is necessary due to the
“seriousness of offence”. I agree with the submissions of counsel for the
Respondent – the serious nature of Mr. Chand’s criminal activity was, for the
Minister’s Delegate, the deciding factor. Mr. Chand is able to read the
Section 44(1) Report, the Case Analysis Report and the Minister’s Delegate’s
note and conclude, as I have, that the reason for the referral, despite the factors
that weighed in his favour, was the seriousness of his crimes. The reasons
provided by the Minister’s Delegate which include the Section 44(1) Report and
the Case Analysis Report are, in this case, sufficient.
Certified Question
[30]
Counsel for the Applicant proposed three certified questions:
1.
Does a Minister’s Delegate making a decision to refer a long-term
permanent resident to an admissibility hearing pursuant to s. 44(2) of the Immigration
and Refugee Protection Act have an obligation to set out the factors
considered in coming to her decision (as set out in CIC Manuel ENF 6 Chapter
19.4) where she indicates that she is relying on her own written reasons?
2. Can a
Minister’s Delegate making a s. 44(2) decision rely on a report submitted by
one subordinate officer when there is a report by another officer which reaches
the opposite conclusion, or is the Minister’s Delegate under an obligation to
undergo a clear analysis of the two reports explaining her preference for one
of the two recommendations?
3. Can a
Federal Court Judge conducting a judicial review hearing of an officer’s
decision infer that the officer was relying on a subordinate officer’s report
when the officer herself indicates that she is relying on her own written
reasons?
[31]
Counsel for the Respondent submits that none of the prepared questions
are questions of general importance. Counsel further submits that the first
two proposed questions do not arise on the facts and they cannot be dispositive
of an appeal. The test for certifying a question for appeal is whether there
is a serious question of general importance that would be dispositive of an
appeal: Canada (Minister of Citizenship and Immigration) v. Zazai, 2004
FCA 89 at para. 11.
[32]
In my view, none of the proposed questions are certifiable. They are
not of general importance but relate to the specific circumstances of this
case. Further, in my view, none would be dispositive of an appeal.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
- The Application for Judicial
Review is dismissed; and
- No question is certified.
“Russel W. Zinn”
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