Docket: IMM-7620-13
Citation:
2015 FC 607
Ottawa, Ontario, May 08, 2015
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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YAZHKOVAN BALAZUNTHARAM
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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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JUDGMENT AND REASONS
I.
Overview
[1]
The Applicant, Mr. Balazuntharam, is a
Convention Refugee with a significant history of criminal activity since his
arrival in Canada. In light of this history, a delegate of the Minister of
Citizenship and Immigration [Delegate] on November 4, 2013, found the Applicant
to be eligible for deportation to Sri Lanka by the Canada Border Services
Agency [CBSA] because his presence constituted a danger to the public
[Decision], pursuant to section 115(2)(a) of the Immigration and Refugee
Protection Act, (SC 2001, c 27) [IRPA]. This Decision, commonly known as a “danger opinion”, is the focus of this judicial
review.
[2]
The deportation of Convention Refugees to
nations where they may face persecution or torture, known as refoulement, is
exceptional in nature, and must be triggered by acts of “substantial gravity” (Nagalingam v Canada
(Citizenship and Immigration), 2008 FCA 153 at para 76). When such recourse
is considered, the delegate must balance the danger faced by applicant against
the danger the applicant would present to the Canadian public if he was not
removed (Febles v Canada (Citizenship and Immigration), 2014 SCC 68 at
para 67; Suresh v Canada (Minister of Citizenship and Immigration), 2002
SCC 1 at para 58 [Suresh]). Given Canada’s firm commitment to human
rights, the rule of law and principles of fundamental justice, this balance
will generally tip against expulsion (Suresh at paras 4, 58).
[3]
In this case, the question of whether the
Applicant is a danger to the public must be revisited as a result of important
affidavit evidence that was not before the Delegate. As I shall explain, the
failure of the Delegate to consider this information - while no fault of her
own - still contravened the Applicant’s rights to procedural fairness,
particularly the right to a fair hearing. The appropriate remedy for this
breach is to send the matter back to the Delegate for reconsideration in light
of this supplementary evidence.
II.
The Decision
[4]
The Applicant, a citizen of Sri Lanka, arrived in Canada in February 1998, and was granted refugee status shortly after, in
December of that year. His criminality did not lag far behind, and since the
Applicant’s first conviction in 2000, that tide has not stemmed. The
Applicant’s charges, convictions, incidents of violence, and problematic
behaviour as presented in the Decision and the Record include:
June 2000 – The Applicant was convicted of
personation with intent, after falsely identifying himself with a temporary
driver’s license in the name of an acquaintance. Two months after his
conviction, the Applicant’s Health Card was seized from a male foreign national
attempting to enter Canada, with its particulars related to identification
having been altered.
November 2000 – The Applicant was reported
to have assaulted an employee at gas station whom he suspected of having
informed the Police of his criminal activity.
June 2001 – Mr. Balazuntharam was convicted
of and sentenced to two years of probation for the criminal harassment of his
ex-girlfriend, whom he threatened to kidnap, rape and kill. The troublesome
interaction between this young woman and the Applicant played a significant
role in her attempted suicide, her leaving Canada as well as her seeking refuge
in a youth shelter upon her return to this country.
September 2001 – The Applicant was the
victim of an attempted homicide when a group of male Sri Lankans opened gunfire
on his vehicle. While Mr. Balazuntharam suggested that his ex-girlfriend’s
uncle was responsible for the attack, the police indicated that it may have
been gang-related retribution.
November 2002 – The Applicant was sentenced
to 45 days in jail for failing to comply with a Probation Order, as he
continued to pursue his ex-girlfriend by visiting her school.
June 2008 – In his most serious conviction
to date, according to the Applicant’s Affidavit, Mr. Balazuntharam pled guilty
to a 12 month conditional sentence for the possession of credit card forgery
devices. During a search of his co-accused’s home, the police discovered nearly
one thousand completed or partially completed fraudulent credit cards, social
insurance number cards, Ontario drivers licenses and a large quantity of
forgery related equipment (Motion Record [MR], pp 408-409; see also p 1677 of Affidavit).
June 2012 – The Applicant had been charged
in relation to “Project Infraction”, an operation targeting identity theft in
the Greater Toronto Area, but these charges were stayed.
[5]
The Delegate also considered information in
police reports that she suggested linked Mr. Balazuntharam to a prominent gang
in Toronto which is believed to be associated with the LTTE in Sri Lanka (Certified Tribunal Record [CTR], Vol 1, p 10).
[6]
In finding the Applicant to be a danger to the
public, the Delegate concluded that:
Based on the evidence before me that Mr.
Balazuntharam’s criminal activities were both serious and dangerous to the
public, in addition to the lack of evidence of rehabilitation given his lack of
acceptance of responsibility for the fraud-related crimes, and the repetitive
nature of his offences evidence by the facts underlying the charges made
against him on several occasions despite the attempts of the criminal justice
system to deter him from further criminal activity, I find, on a balance of
probabilities, that Mr. Balazuntharam represents a present and future danger to
the Canadian public, whose presence in Canada poses an unacceptable risk…
(CTR, Vol 1, pp 17-18)
[7]
The Delegate also concluded that given the
current country conditions in Sri Lanka and Mr. Balazuntharam’s original
account of events as described in the Personal Information Form [PIF] he used
in making his Refugee Claim, the transformation in Sri Lanka was such that the
Applicant would “not personally face a risk to life,
liberty or security of the person on a balance of probabilities” if
returned (CTR, Vol 1, p 26).
III.
Additional Evidence
[8]
Over three weeks prior the November 4, 2013 danger
opinion issuance, Applicant’s counsel sent a 17 page facsimile to CBSA on
October 11, 2013 containing an affidavit from Mr. Balazuntharam explaining why
he was no longer a danger to Canadians, and feared detention and arrest should
he be returned to Sri Lanka. The facsimile also contained an affidavit from Mr.
Balazuntharam’s ex-girlfriend, who was the victim of his criminal harassment
conviction, and subsequent conviction for breach of probation.
[9]
The Applicant argues that this affidavit evidence
is relevant to the Delegate’s conclusions regarding the risks he would face if
returned to Sri Lanka, his remorse, and lack of danger he poses to Canadians. I
see merit to this argument, and highlight a few passages from these two
affidavits which could have informed the Delegate’s conclusions, had they been
considered:
[4]…As I stated in my Personal Information
Form (“PIF”) before the Immigration and Refugee Board (“IRB”), I was forcibly
recruited by the Liberation Tamil Tigers of Eelam (“LTTE”) in Sri Lanka. As a result of this, I was arrested and detained by the Sri Lanka Army (“SLA”) on a number of occasions on false suspicion that I was LTTE member. I eventually fled
Sri Lanka after my last release and failed to report to the SLA camp as
ordered. As far as the SLA is concerned, I am a [sic] LTTE member and they have
treated me accordingly. The IRB found these events to be credible and granted
me protection. As such, I am almost certain to be on a list of persons to be
arrested on the spot when I arrive at Colombo International Airport…
(MR, Vol. 6, Exhibit M, Affidavit of Mr.
Balazuntharam, p 1673)
[17] Since receiving refugee protection in Canada, I have been joined by my mother and my father in this country. My first few years
in Canada were very difficult. It was a completely new country for me and it
took me a long time to adjust to the culture and the norms here. Along the way,
I made some serious mistakes for which I am regretful.
(MR, Vol 6, Exhibit M, Affidavit of Mr.
Balazuntharam, p 1677)
[8] I can truly say that I have no fear or
concerns about Mr. Balazuntharam moving forward. I know what he did before was
wrong and he has accepted responsibility for this. But I truly believe he has
changed and no longer poses a danger to me or anyone else. I think the
incidents that happened in 2001 and 2002 were isolated to that time period and
he has made a clean break with them. As far as I know, this was not a pattern
of behaviour in his part and as I do not believe he has had problems with any
other women or their families. As I said before, after being in Canada for a number of years, I think Mr. Balazuntharam finally realized that gender dynamics are
very different in this country than they were in Sri Lanka – and that conduct
may be common there is very much unacceptable here. I am confidence that he
will not re-offend.
(MR, Vol 6, Exhibit M, Affidavit of Ms. B
(Mr. Balazuntharam’s ex-girlfriend), p 1683)
[10]
Despite being sent prior to the release of the
decision, the Respondent conceded at the hearing that, for an unknown reason,
these affidavits were never placed before the Delegate.
IV.
Issues
[11]
The disposition of this case turns on the
answers the following questions:
(1)
can the additional evidence, which was not
placed before the decision-maker, be considered?
(2)
if so, should the decision be sent back to the
same decision-maker for reconsideration?
V.
Analysis
[12]
The question of whether the affidavit evidence
should have been placed before and considered by the Delegate is a question of
procedural fairness, reviewed on a standard of correctness (Mission
Institution v Khela, 2014 SCC 24 at para 79; Canada (Citizenship and
Immigration) v Jayamaha Mudalige Don, 2014 FCA 4 at para 36).
[13]
The Respondent argues that the contested
affidavit material should not have been considered, given that the Applicant
was given a deadline of June 11, 2013 to submit documents for the Delegate’s
consideration.
[14]
Administrative deadlines are of crucial
importance, and their imposition should not be taken lightly. They help
facilitate the orderly adjudication of claims, reduce duplication and
inefficiency, and encourage parties to put their best foot forward at the first
instance so that the most pertinent arguments may be given thorough
consideration (Abbott Laboratories Limited v Canada (Attorney General), 2008
FCA 354 at para 37). If the timeframe provided for the submission of materials
is unreasonable, this should be communicated to the opposing party, who should
consider, in good faith, whether an extension or other accommodation is
warranted. As was recently demonstrated in my decisions of Moors v Canada
(National Revenue), 2015 FC 446 at para 25 and Kamara v Canada
(Citizenship and Immigration), 2015 FC 572 at paras 23 and 30, a failure to
meet a deadline or communicate crucial information can often result in negative
consequences for the Applicant that do not result in a violation of procedural
fairness. If avoidable, it is a gamble not worth taking.
[15]
That said, the irremediable nature of
deportation when an applicant’s life, liberty or security of the person is at
stake allows for greater leeway in the strict application of procedure. Faced
with the similar circumstance in Chudal v Canada (Minister of Citizenship
and Immigration), 2005 FC 1073 [Chudal], Justice Hughes concluded
that absent bad faith or gross negligence on the part of the applicant, the
latest relevant and significant evidence available must be considered by a pre-removal
risk application [PRRA] Officer (Chudal at para 7). He further held that
a PRRA Officer has an obligation to receive all evidence which may affect the
decision until the time that such decision is made:
[19] In the circumstances of a PRRA
Officer's decision, the Officer has an obligation to receive all evidence which
may affect the decision until the time that such decision is made. It is
reasonable to consider that such decision is not made until it has been written
and signed and notice of the decision, even if not its contents, has been
delivered to the Applicant. … In the case where the Applicant has been advised
that a decision will be made on a future date, it is reasonable to consider
that the decision is made on that future date.
(Chudal at para 19; see also Avouampo
v Canada (Citizenship and Immigration), 2014 FC 1239 at para 21; Ayikeze
v Canada (Citizenship and Immigration), 2012 FC 1395 at para 16)
[16]
I see the same logic extending to danger
opinions rendered by the Minister of Citizenship and Immigration or his
delegates. While there seems to be no indication that it would have been
infeasible to submit the additional affidavits prior to the June 11, 2013
deadline, they were submitted more than 3 weeks before the Decision was
rendered. The failure of the Delegate to consider the affidavit evidence,
despite no fault of her own, thus breached the Applicant’s right to a fair
judicial process as demanded by the principles of fundamental justice. In a
fair hearing, the decision by the delegate must be based on the facts and the
law (Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 at
para 29; Suresh at paras 122-123). In a case such as this, where
relevant and significant facts were submitted but not considered, the
Delegate’s decision reflects consideration of only some of the facts.
Consequently, the matter should be sent back for reconsideration, as the
Applicant is entitled to have a decision rendered on the totality of the
evidence submitted.
[17]
Having found a violation of procedural fairness,
I must now address the second issue - should the decision be sent back to the
same Delegate for reconsideration?
[18]
As a general rule, administrative decisions
should generally not be reconsidered by the same decision maker “where they were earlier disqualified by bias, or if for any
reason there is a reasonable apprehension that the original decision-maker is
not likely to determine the matter objectively” (Donald J M Brown and
John M Evans, Judicial Review of Administrative Action in Canada, Vol.
3. Toronto: Carswell, 1998 (loose leaf updated December 2014) at para 12:6320).
[19]
Indeed, judges of the Federal Court routinely
issue orders to send various matters back to a different decision maker in a
successful judicial review, in large part to avoid the appearance or the
prospect of a reconsideration decision not being rendered objectively upon
return to the original decision maker (Dena Hernandez v Canada (Citizenship
and Immigration), 2010 FC 179 at para 44). Further, as I noted in Abusaninah
v Canada (Citizenship and Immigration), 2015 FC 234 at paras 44-47, while
secondary decision makers are entitled to come to the same conclusions as the
original decision maker if the facts and the law provide, their discretion may
not be fettered by the original decision.
[20]
However, an Order for reconsideration by a
different decision maker is by no means required to remedy unreasonable
decisions or violations of procedural fairness. This Court has chosen to remit
the matter to the same decision maker in circumstances, for example, where the
decision maker has had particular familiarity with the case (Canada
(Citizenship and Immigration) v Harvey, 2013 FC 717 at para 75); where it
would lead to a more expeditious redetermination (Canada (Citizenship and
Immigration) v Liu, 2013 FC 639 at para 1) or when the analysis was
otherwise reasonable, but lacking in a particular area (Awadh v Canada
(Citizenship and Immigration), 2014 FC 521 at paras 27, 30-31).
[21]
Judges have a role in balancing the competing
concerns of, on the one hand, the prospect and appearance of impartial decision
making, and on the other, the efficient use of judicial resources. This
balancing ensures that judicial review remains an efficient and accessible
method of review for applicants (Canada (Attorney General) v Confédération
des syndicats nationaux, 2014 SCC 49 at para 1; Trial Lawyers
Association of British Columbia v British Columbia (Attorney General), 2014
SCC 59 at para 110; Hryniak v Mauldin, 2014 SCC 7 at paras 1-2, 32; Federal
Courts Rules (SOR/98-106), Rule 3).
[22]
In Sittampalam v Canada (Citizenship and
Immigration), 2007 FC 687 [Sittampalam 2007], Justice Snider
remitted a danger opinion back to the same delegate after concluding that he
erred in his assessment of the applicant's risk upon removal to Sri Lanka by
failing to have regard to all of the evidence before him (Sittampalam 2007 at
para 68). Justice Mactavish opted for a similar remedy in Thuraisingam v
Canada (Minister of Citizenship and Immigration), 2004 FC 607 at paras 51, 54
[Thuraisingam].
[23]
The delegate's decision in Sittampalam 2007
was reconsidered, and judicial review of that reconsideration was subsequently
sought in Sittampalam v Canada (Citizenship and Immigration), 2009 FC 65
[Sittampalam 2009], wherein Justice Mandamin also found errors related
to the applicant's risk analysis (Sittampalam 2009 at para 78). Justice
Mandamin chose to remit the matter back to the same delegate, in accordance
with his reasons, given that the delegate was "familiar
with the subject matter and the voluminous material involved" (Sittampalam
2009 at para 82).
[24]
Mr. Balazuntharam argues that the remedy in the Sittampalam
cases can be distinguished from the case at bar because in those
cases, the Court had found no error with the delegate's assessment that the
applicant posed a danger to the public. In other words, the delegate did not
have to reevaluate the applicant's danger to the public after having already
labelled him so. Here, however, the Applicant submits that branding one a
danger to the public is a decision which carries with it significant stigma,
and its reevaluation is a far cry from the review of a more innocuous error (R
v MacDougall, [1998] 3 S.C.R. 45 at para 34). Since reevaluation of the danger
finding is required here, the Applicant submits that it must be sent to a
different delegate.
[25]
I am not persuaded by this argument. While it is
true that the Sittampalam cases, as well as Thuraisingam, did
not deal with revisiting the applicant's danger to Canadians, it can be argued
that determining whether one is likely to be faced with brutality, persecution
or torture at the hands of a military or paramilitary organization upon their
removal from Canada is no less an emotionally charged and weighty decision for
a delegate.
[26]
Further, the 26-page Decision under review is
comprehensive and articulate. I do not think it necessary to opine whether good
faith on the part of administrative decision makers should be presumed, as
there is no evidence before me to suggest that the Delegate has acted in bad
faith or would otherwise be biased in her evaluation upon reconsideration (Nguyen
v Canada (Minister of Citizenship and Immigration), IMM-4170-97 at para 6).
In my view, the suggestion that the Delegate in this case would be unable to
alter her conclusions after considering the additional affidavit evidence is
speculative.
[27]
The Applicant’s stance, namely that the
reconsideration must go to a different delegate, would also eliminate the
discretion of this Court to take into account judicial resources and
administrative efficiencies. While I do not wish to discount the risks of
prejudice inherent in labelling one a danger to the public, there are cases,
such as this one, where risks upon reconsideration by a new decision maker are
outweighed by the benefits gained by having the same Delegate revisit the
matter.
[28]
One of these benefits is an expeditious
reconsideration of the Decision in light of the additional affidavit evidence.
These submissions, totalling 17 pages, are part of a voluminous record
exceeding 1800 pages.
[29]
The Applicant acknowledges that given that more
than 16 months has passed since the Decision was rendered, the Delegate may not
remember the precise details of the file (Applicant's Further Submissions on
Remedy, p. 9, para 23). I see this as reason to believe, as opposed to doubt,
that the Delegate will view the new evidence, as well as the Applicant's
underlying history, afresh. The efficiency in adjudicative resources comes not
in reviewing the precise details of the file, which she must undoubtedly repeat,
but in her familiarity with its general contents and organization.
Consequently, the reconsideration decision is likely to be released more
expeditiously under her hand than that of a new delegate, which is of
particular relevance in this case, since the Applicant is being held in a
detention facility. Reading a book is generally faster the second time around
than the first, even if one has forgotten a good deal of what happened in the
meantime. That matters when the book is nearly 2000 pages long.
[30]
I wish to emphasize that given the violation of
procedural fairness and the need for the Delegate to revisit her conclusions in
light of the new affidavit evidence, I take no position on the reasonableness
of the Decision.
[31]
The Application for judicial review is allowed,
and the matter sent back for reconsideration by the same Delegate upon
consideration of these reasons.
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