Docket: IMM-4370-16
Citation:
2017 FC 393
Ottawa, Ontario, April 21, 2017
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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BEYAN DUNOH
CLARKE
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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
[1]
This is an application for judicial review of
the decision of a Delegate of the Minister (“Minister’s Delegate” or
“Delegate”) of Immigration, Refugees and Citizenship Canada (“IRCC”) dated
October 17, 2016 in which the Minister’s Delegate refused the Applicant’s
request for reconsideration of the danger opinion written against him. This
application is brought pursuant to s 72 of the Immigration and Refugee
Protection Act, SC 2001, c 27 (“IRPA”).
Background
[2]
The Applicant is a national of Liberia. His
family fled Liberia in 1999 and resided in a refugee camp in Ghana until 2003
when they immigrated to Canada as Convention refugees, at which time the
Applicant was 21 years old. In 2008 the Applicant pled guilty to manslaughter
in connection with the beating and death of a two-year old boy who was the son
of the Applicant’s girlfriend. The Applicant was sentenced to 9 years in
prison. In April 2010 the Applicant was found to be inadmissible for serious
criminality pursuant to s 36(1)(a) of the IRPA and a deportation order was
issued against him. However, because of his Convention refugee status, the
Applicant could not be returned to Liberia unless the Minister made a
determination that the Applicant constitutes a danger to the public in Canada
pursuant to s 115(2)(a) of the IRPA. On May 3, 2011 the Minister made such a
determination (the “Danger Opinion”). On July 20, 2012 this Court dismissed
the Applicant’s application for judicial review of the Danger Opinion.
[3]
On October 10, 2013 the Applicant reached his
statutory release date from prison. He was immediately placed in immigration
detention by the Canada Border Service Agency (“CBSA”). On January 9, 2014 the
Applicant was ordered released from immigration detention by a member of the
Immigration Division of the Immigration and Refugee Board of Canada (“ID”). He
then lived in the community on the conditions imposed by the ID including that
he comply with statutory release conditions imposed by the National Parole
Board. On July 28, 2016 the Applicant reached warrant expiry,
meaning that his statutory release conditions were no longer applicable. On
September 6, 2016 the Applicant was advised that he was scheduled to be removed
from Canada on September 20, 2016. On September 14, 2016 the Applicant
requested a reconsideration of the Danger Opinion and deferral of his removal
until that had occurred. CBSA forwarded the request for reconsideration to
IRCC and cancelled the September 20, 2016 removal while awaiting a decision. On
September 21, 2016 the IRCC refused to reopen the Danger Opinion. However, the
Applicant was given 15 additional days to make further submissions as that
decision was issued prior to receipt of further anticipated submissions from
the Applicant’s counsel. On October 17, 2016, after receipt and review of the
further submissions, the IRCC issued a second decision and again refused to
reopen the Danger Opinion. This is the judicial review of that decision.
[4]
By motion filed on November 9, 2016 the
Applicant sought a stay of his removal. While he raised a serious issue
pertaining to the Minister’s Delegate’s treatment of the evidence he did not
establish irreparable harm and the balance of convenience favoured the
Respondent. Accordingly, by Order dated November 14, 2016, I denied the stay.
Decision Under Review
[5]
The Minister’s Delegate noted his or her prior
decision of September 21, 2016 and stated that he or she had also reviewed the
original Danger Opinion package and Danger Opinion. The Minister’s Delegate
then identified some of the new evidence submitted in support of the request
that the Danger Opinion be reopened and reconsidered and stated that ENF 28,
Chapter 7.16, “Reconsideration of danger opinion” (ENF 28 – Ministerial
opinions on danger to the public, nature and severity of the acts committed and
danger to the security of Canada (“Manual”)) explicitly recognized the
possibility that a danger opinion can be reopened and reconsidered based on new
evidence or a breach of the principles of natural justice.
[6]
The Minister’s Delegate summarized the facts
concerning the Applicant’s criminal conviction. The Minister’s Delegate then
stated that at the time the Danger Opinion was written the Applicant was
already incarcerated in a federal penitentiary for his crime and had already
begun receiving and responding well to rehabilitative treatment. As such, the
decision-maker rendering the May 2011 Danger Opinion would have been aware that
the rehabilitative programming would continue until warrant expiry in July
2016. Therefore, the reports indicating the rehabilitative progress over the
last 5 years could have been reasonably anticipated by that decision-maker. And,
while the Applicant had not reoffended since his statutory release in September
2014, this was hardly surprising given the conditions of his release which
included close monitoring and supervised visits with his daughter. The
Minister’s Delegate also cited a report dated April 19, 2016 that stated that
the Applicant’s current level of risk remains moderate and that he appears to
have deficits in the areas of problem solving, emotion management and conflict
resolution, which are exacerbated by stress.
[7]
The Minister’s Delegate stated that the removal
of an individual after a danger opinion has been initiated and finalized may
take several years, particularly where the client is still incarcerated at the
time of the decision. Obtaining travel documents and litigation may also delay
removal. Although detention may not always be maintained during such delays
for a number of reasons, including by decisions of the ID on the basis that it
is satisfied that the person does not pose an immediate danger to the public,
this does not invalidate the Minister’s Delegate’s decision on danger to the
public and “may reasonably be anticipated by the
decision-maker in many cases – the present case among them”.
[8]
The Minister’s Delegate found that the new
evidence was not “particularly novel or of a nature
which would not have reasonably been anticipated at the time” of the
making of the Danger Opinion. As the new information was not “sufficiently novel” to justify reopening the Danger
Opinion, the Minister’s Delegate declined to reconsider the Danger Opinion and
stated that it would continue to remain in effect.
Issues and Standard of Review
[9]
The Applicant identifies the following issues:
1.
Did the Minister’s Delegate have the legal
authority to set out a threshold requirement for consideration of new evidence?
2.
Did the Minister’s Delegate breach the duty of
fairness owed to the Applicant by setting out a threshold requirement for
consideration of new evidence when the threshold was not found in the Manual
and the Applicant was not given notice that it would be imposed?
3.
Is the decision perverse?
[10]
In my view, this application can be determined on
the basis of whether the decision is reasonable.
[11]
The Applicant makes no clear submission on the
standard of review. The Respondent submits that, in the absence of a
legislative provision prescribing otherwise, a decision to reopen an
administrative decision is discretionary and is therefore reviewable on the
reasonableness standard (Chopra v Canada (Attorney General), 2013 FC 644
at para 30 (aff’d in 2014 FCA 179, leave to appeal to the Supreme Court of
Canada dismissed in 2015 CarswellNat 97 (WL) (“Chopra”)); Kurukkal v
Canada (Citizenship and Immigration), 2010 FCA 230 at para 4 (“Kurukkal”)).
[12]
In the present matter the decision under review
is the decision by the Minister’s Delegate concerning the reopening and reconsidering
of the Danger Opinion. The parties do not point to any prior jurisprudence
that directly addresses the standard of review that would apply to such a
decision. However, as noted by the Respondent, there is jurisprudence
pertaining to other circumstances which holds that, in the absence of a
legislative provision prescribing otherwise, a non-adjudicative body’s decision
to reopen a case is discretionary (Chopra at para 30; also see Kurukkal
at para 4). In my view, in this matter the Court is also reviewing a
discretionary decision which, therefore, attracts the standard of
reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 at paras 51 and
53).
Submissions of the Parties
Applicant’s Position
[13]
The Applicant submits that the Minister’s
Delegate erred in imposing a threshold which had to be met for new evidence
before the evidence was considered to reopen and reconsider the Danger Opinion.
The Manual requires that, where there is new evidence, the documentation must
be forwarded to the Minister’s delegate for review in which event the delegate “will reconsider” the original opinion. New evidence
is defined as facts or evidence that were not available at the time of the
original decision (e.g., a new correctional report or psychological report). The
Applicant provided the very types of evidence that the Manual said would
warrant reconsideration but it was disregarded because of the imposition of an
evidentiary threshold that the new evidence be “particularly
novel” or “sufficiently novel” or “of a nature which would not have reasonably been anticipated
at the time the decision-maker rendered her decision” before it would be
considered. In this regard, the Minister’s Delegate acted without legal
authority, contrary to the Manual (Nguyen v Canada (Minister of Employment
and Immigration), [1994] 1 FC 232 (FCA)), violated an implied legal duty
and acted unreasonably.
[14]
Further, it was procedurally unfair to impose on
the Applicant more rigorous evidentiary standards than those prescribed in s 7.16
of the Manual before reopening the Danger Opinion. The Minister’s Delegate’s
actions were in contravention of the factors to be considered in determining
the content of the duty of fairness owed, as addressed in Baker v Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. For example,
the Applicant had a legitimate expectation that the Manual procedure would be
followed (Hernandez v Canada (Minister of Citizenship and Immigration),
2005 FC 429; Cha v Canada (Minister of Citizenship and Immigration), 2006
FCA 126 at paras 49-50). The Applicant also submits that he was given no
notice that this new evidentiary threshold would be applied and was thereby
prejudiced as he was denied an opportunity to respond to it.
[15]
Further, even if the Delegate’s new evidentiary
standard is applied, the decision was perverse as the evidence submitted met
that standard. For example, the evidence at the time of the Danger Opinion was
that the Applicant did not have much contact with his daughter while the new
evidence was that the relationship has become extremely important to the child.
This change of events could not have been reasonably anticipated by the
original decision-maker. It was also perverse and arbitrary for the Minister’s
Delegate to adopt this threshold on the second request for reconsideration, when
there was substantially more evidence in support of the request at that time,
but not the first.
[16]
The Applicant submits that the Minister’s
Delegate abdicated his or her responsibility as the Delegate should have
considered whether the new submissions and evidence altered the original Danger
Opinion, not whether it had the potential to do so. Further, the Minister’s Delegate
was required to consider the evidence cumulatively and as a whole but failed to
do so because of his or her threshold perspective on the new evidence
submitted.
Respondent’s Position
[17]
The Respondent submits that the Minister’s
Delegate did not act contrary to the Manual. Here, as stipulated by the
Manual, the request for reconsideration was forwarded by CBSA to IRCC to
determine if the request involved new evidence. IRCC made that determination
and forwarded the material to the Minister’s Delegate. The Minister’s Delegate
then reviewed the request to reopen. There is no statutory provision
concerning the reconsideration of a danger opinion and this Court has confirmed
that the Minister is entitled to ignore the request altogether (McLaren v
Canada (Minister of Citizenship and Immigration), 2001 FCT 373 (FCTD) at
para 12 (“McLaren”)). The Applicant’s submission that the Minister’s
Delegate acted in violation of the law by applying the evidentiary standard
that he or she did ignores the fact that there is no law to violate. Further,
the mere submission of new evidence does not automatically warrant a reopening
of a valid danger opinion as no danger opinion would ever be final in that
case. Rather, the Minister’s Delegate is to determine whether the new evidence
warrants a full reopening of a danger opinion. In conducting that review the
Minister’s Delegate was entitled to consider the substance of the evidence.
[18]
The Respondent submits that there was no breach
of procedural fairness. The Minister’s Delegate’s “review”
was not constrained by the Manual. The Minister’s Delegate must be permitted
to consider the probative value, relevance and general strength of the evidence
to determine if the evidence warrants reopening of the Danger Opinion. And,
even if the Manual was not followed, this does not amount to a breach of
procedural fairness as manuals and policies are not binding on either the
government or the Courts (Shabdeen v Canada (Citizenship and Immigration),
2014 FC 303 at para 16 (“Shabdeen”)). Nor was there a breach of
procedural fairness due to a lack of notice. The Applicant was aware of how
his request would be assessed based on the prior, September 21, 2016 decision. There
the Minister’s Delegate engaged in a detailed analysis of the persuasiveness
and relevance of the new evidence noting that similar information was before
the decision-maker in 2011. Thus the Applicant knew the sort of analysis that
would be applied and had an opportunity to and did make further submissions.
[19]
The Respondent submits that the decision was not
perverse and, considered as a whole, was reasonable. The decision-maker must
do more than look at the new submissions in a vacuum and reopen the decision if
there is some new and unanticipated evidence. It is reasonable for the
decision-maker to assess the extent to which the new submissions and evidence
has the potential to alter the original decision. The Respondent submits that
this is exactly what was done in this case and it was done reasonably. It is
reasonable to believe that the evidence regarding the Applicant’s developing
relationship with his daughter is not substantive or meaningful evidence that
would realistically change the Danger Opinion. The Minister’s Delegate had
regard to all the evidence, considered the larger context on which the Danger
Opinion was based, including that the Applicant’s current level of risk of
reoffending remains moderate, and reached a defensible decision.
Analysis
[20]
As pointed out by the Applicant, unlike s 110(4)
of the IRPA which states that on appeal to the Refugee Appeal Division only
evidence that arose after the rejection of an applicant’s claim, or was not
reasonably available, or that the person could not reasonably have been
expected in the circumstances to have presented at the time of the rejection is
admissible, or, s 113(a) which similarly addresses the admissibility of
new evidence in the context of a Pre-Removal Risk Assessment (“PRRA”), there is
no legislative provision in the IRPA concerning the admissibility of new evidence
when a request for reconsideration of a Danger Opinion is made. Nor does the IRPA or any related regulation prescribe the
grounds upon which a danger opinion may be reconsidered.
[21]
Here, there is no legislative provision to
interpret. There are, however, ministerial guidelines in the form of the
Manual. And, while it is well established by the jurisprudence that guidelines
are of no legal force and are not binding on the Minister or her agents, this
Court has previously held that they are of assistance in assessing whether a
decision was an unreasonable exercise of discretion conferred (Budakh v Canada (Minister of Public Safety and Emergency
Preparedness), 2008 FC 363 at para 26; Shabdeen at
para 16; also see Kanthasamy v Canada (Citizenship
and Immigration), 2015 SCC 61 at paras 31-32).
[22]
In this matter, s 7.16 of the Manual states:
7.16 Reconsideration of danger
opinion
Note: Requests
for reconsideration will not stay the processing of a case, including removal.
If the person concerned or their counsel
disagrees with the decision but does not submit any other evidence to support
their case, the subject of the decision or their counsel should be advised in
writing that the opinion has already been issued and continues to be in effect.
Requests for reconsideration of a danger
opinion should be handled by the local CBSA office, who will provide input and
forward the request to IRCC’s Case Management Branch, where a decision maker
will consider whether the request meets either of the following criteria:
∙ New
evidence
Where a request is made to consider facts or
evidence that were not available at the time of the original decision (e.g., a
new correctional report or psychological report), the documentation must be
forwarded to the Minister’s delegate for review.
∙ Principle
of natural justice
Where the person or their counsel alleges
that the decision violated a principle of natural justice, the case should be
sent to the Minister’s delegate for reconsideration.
If either of these criteria is met, the decision
maker will reconsider the original opinion.
[23]
In my view, in the face of legislative silence
as to the criteria for the admissibility of evidence when a request for
reconsideration is made, what remains is the question of whether the Minister’s
Delegate reasonably exercised his or her discretion in the circumstances. The
exercise of that discretion must be viewed in the context of the guidance
provided by the Manual and the form of the new evidence submitted in support of
the request for reconsideration.
[24]
In this case, in his October 12, 2016 submissions,
the Applicant presented new evidence that was not, with one exception, before
the original decision-maker who made the Danger Opinion and was also not
before the Minister’s Delegate when he or she made the September 21, 2016
decision refusing to reopen and reconsider the Danger Opinion. That evidence
included the transcripts of the Applicant’s detention review hearings dated
January 9, 2014 and September 22, 2014, Correction Service Canada
Psychological/Psychiatric Assessments report dated July 4, 2016 and June 2,
2010, thirteen other Correctional Service Canada reports as well as various
letters of support. The Manual explicitly contemplates new correctional
reports and psychological reports as new evidence in the reconsideration of a
danger opinion.
[25]
The October 12, 2016 submissions of the
Applicant’s counsel and the accompanying new evidence were submitted to CBSA. The
Manual indicates that CBSA was to provide input and
forward the request to IRCC’s Case Management Branch, where a decision-maker
would consider whether the request met either of the criteria, in this case
whether the request was to consider facts or evidence
that were not available at the time of the original decision. It is not apparent
from the record if this second step was completed but it is clear that the
submissions and new evidence were forwarded to a delegate. In the decision,
the Minister’s Delegate notes that the Applicant has submitted new evidence
post-dating the original May 2011 Danger Opinion including the detention
review transcripts, a letter from the mother of his daughter, a letter from his
daughter herself and many Correctional Service Canada reports from 2008, 2010,
2012, 2013, 2015 and 2016.
[26]
Thus, to this extent the process set out in the
Manual was followed. The Applicant submits, however, that the Manual states
that if either of the natural justice or new evidence criteria are met, then
the decision-maker “will
reconsider the original opinion” but the
Delegate failed to do so. It is correct that in this matter there was new
evidence but, because the Delegate found it to be not “particularly novel”, “sufficiently
novel” or “of a nature which would not have reasonably been anticipated” at the time of the making of the Danger Opinion, the Delegate
decided that the evidence did not justify the reopening of the Danger Opinion.
[27]
As noted above, the Manual is not binding and
acts merely as a guideline. Thus, failure to comply with it and to reopen and
reconsider the Danger Opinion when new evidence has been submitted is, in and
of itself, perhaps not a fatal error. As stated in Gilani v Canada (Minister
of Citizenship and Immigration), 2003 FCT 152:
[16] The Guidelines contain a list of
questions which the Program Manager "must address" as part of her
risk assessment. The Applicant submitted that the visa officer restricted her
analysis to the issue of excessive demand on the Canadian health care system
and did not address the other questions set out in the Guidelines.
[17] In Cheng v. Canada (Secretary
of State), [1994] F.C.J. No. 1318 (T.D.)(QL), Cullen J. held, at paragraph
7, that while the Guidelines were not legislative in nature, "they ought
to be followed by an Immigration Officer in making a decision so that some
consistency is achieved within the department". However, Cullen J. held
that the failure of an immigration officer to follow the policy expressed in
these Guidelines was not an error worthy of referring the matter back for
redetermination (see also Vidal, supra). Cullen J. allowed the
application for judicial review in Cheng, supra for other reasons.
[18] In Ramoutar, supra,
Rothstein J., as he then was, elaborated at page 375 on the status of the
policy contained in the Immigration Manuals stating that "merely because
officials at the Department of Immigration have set forth a policy does not
confer upon that policy the status of law."
[19] As a result, the failure of the
Program Manager to follow the Guidelines, in and of itself, would not be
reviewable error.
[28]
It should perhaps also be clarified that the
Delegate did not conduct a reconsideration. Rather, the Delegate implemented
an intermediate step by which he or she assessed the evidence and found it to
be insufficient to support the reopening of the Danger Opinion for
reconsideration. Thus, the decision before me concerns the refusal to reopen
the Danger Opinion; it is not a challenge to a reconsideration of that opinion.
[29]
The refusal was made on the basis that the new
evidence was not “particularly novel”, “sufficiently novel” or that it could have “reasonably been anticipated” at the time the Danger Opinion
was made. In this regard the Delegate stated that at the time the Danger Opinion
was written against the Applicant he was already incarcerated in a federal
penitentiary for his crime and had already begun receiving and responding well
to rehabilitative programming which would continue until his warrant expiry
date of July 28, 2016. The Delegate stated that “[T]he
reports which indicate he has continued to make rehabilitative progress in the
last 5 years could therefore have been reasonably anticipated by the
decision-maker”. Further, the removal of an individual after a danger
opinion has been initiated and finalized may take several years, particularly
where the client is still incarcerated at the time of the decision and the
obtaining of a travel document or permissions from countries of transit or
litigation may also delay removal. During such delays detention is not always
maintained for a number of reasons, including decisions of ID members to
release the individual where they are satisfied the subject does not pose an
immediate danger to the public. Indefinite detention pending removal is not
ideal for either the CBSA or the individual. However, such decisions do not
invalidate the Delegate’s decision on danger to the public, “and may reasonably be anticipated by the decision-maker in
many cases - the present case among them”.
[30]
The Respondent submits that the Delegate’s approach
was reasonable because the Delegate was entitled, as a general principal, to
assess the probative value or relevance of the submitted evidence to determine
if it is “new” and that the “review”, as referenced in the Manual, is to determine whether the new
evidence warrants a “full
re-opening” of the danger opinion, not whether
any evidence exists which did not exist at the time the Danger Opinion was made.
Otherwise no danger opinion would ever be final as endless requests for
reconsideration could be made.
[31]
I would first note that the Manual does not
prescribe an intermediate step of this nature nor does it support the
Respondent’s interpretation of the process it does describe. The Manual
describes a process where, when the criteria for new evidence is met, the evidence
must be forwarded to a Minister’s delegate for review whereupon the delegate “will reconsider” the original opinion. Nothing in the IRPA, the regulations or the
Manual suggests that the Delegate has the discretion to vary the process set
out in the Manual or, as an exercise of his or her discretion, identify and
impose an evidentiary criteria other than that specified. Rather, the
existence of the procedure set out in the Manual suggests that delegates will
be guided by its content when exercising their discretion.
[32]
The Respondent relies on McLaren for the
proposition that no error arises from the Minister’s Delegate’s imposition of
his or her evidentiary requirement before reopening the Danger Opinion because
the Minister’s Delegate was entitled to ignore the request altogether. I am
not convinced that McLaren stands for that proposition. There Justice
Simpson stated that as there was no statutory provision for the reconsideration
of a danger opinion, from a strict legal perspective, the respondent was
entitled to ignore the request for reconsideration. However, that a minimal
explanation for the decision had not been provided which was in breach of the
duty of fairness. Moreover, I note that McLaren
was decided in 2001 and no
reference was made to the Manual in the decision. In that matter Justice
Simpson also found that there was no applicable statute and there was no basis
for a legitimate expectation that any particular procedure would be followed. This
would suggest that the Manual was not in effect at that time.
[33]
Given the
existence of the Manual and the new evidence submitted in this matter, I am not
convinced that the Minister’s Delegate was entitled to ignore the
Applicant’s request. The Minister’s Delegate was required to reasonably exercise
his or her discretion, and simply ignoring a request for reconsideration in
these circumstances would not, in my view, be reasonable. I am also not
persuaded that McLaren supports the Delegate’s treatment of the new
evidence in these circumstances as suggested by the Respondent.
[34]
That said, the Respondent raises a valid concern
for potential abuse, for example, if each time a correctional service report were
issued, which could be monthly, an Applicant sought a reconsideration. This concern
may speak to a gap in the content of the Manual or highlight a lack of clarity
in its provisions. And, while the criteria of newness, relevance, credibility and materiality may well be
representative of a general principle in assessing the admissibility of new
evidence, as the Respondent submits, the Manual does not indicate that a
delegate may consider that principle in a preliminary assessment of the
evidence which otherwise meets the specified criteria for new evidence to reopen
the danger opinion. Nor does the Respondent provide any jurisprudence in
support of the application of the general principle in these circumstances.
[35]
In any event, in this specific case, this
concern has no bearing on the analysis of the reasonableness of the decision. Here
the Applicant made the request after he had completed his sentence and had been
released on specified conditions. It also appears from the record that there
was agreement between CBSA and the Applicant’s counsel that, subsequent to the
September 21, 2016 decision, further submissions could be made and that they
would be considered and a new decision rendered.
[36]
In my view, in this case the Delegate’s decision
is unreasonable because of the reasoning upon which it is premised. The Manual
explicitly references “new
correctional reports or psychological reports”
in the context of new evidence that would meet the necessary criteria for a
reconsideration. The Applicant provided both, yet the
Delegate found that this evidence could have been reasonably anticipated in 2011 by the decision-maker who rendered the Danger Opinion
and, therefore, was not sufficiently novel for the purposes of reconsidering
that opinion. First, this directly contradicts the approach set out in the
Manual. While the Manual is not binding, it does provide guidance to the
Delegate and specifically identified this type of evidence as supporting a
request for reconsideration. Because this type of evidence was explicitly
identified as an example of new evidence not available at the time of the
original decision, it would logically be, and was, anticipated. It therefore
cannot reasonably be excluded on that basis.
[37]
Second, this is speculative reasoning. The
Delegate states that the original decision-maker would have been aware that the
Applicant was responding well to rehabilitative programming and that this would
continue until his warrant expiry date. Therefore, it could reasonably have been
anticipated by that decision-maker in 2011 that such positive progress would
continue over the next five years. On that basis, the reports were anticipated
and added no novel evidence. This assumes, however, that the Applicant would
continue to participate in programming, would continue over the next five years
to make progress but that this progress would not exceed the level achieved in
2011 and that nothing in the new reports would otherwise positively (or
negatively) address the original concerns.
[38]
Moreover, it is perverse that while the Manual
identifies new correctional reports as new evidence warranting a reconsideration
of a danger opinion, the Delegate dismisses that evidence and refuses to
reconsider the opinion on the basis that such reports are anticipated.
[39]
In this regard I would note that the Delegate
makes no reference to the most recent psychological/psychiatric report of
Correctional Service Canada which is dated July 4, 2016. Amongst other things,
this addresses the Applicant’s acknowledgement of the seriousness of the offence
and his expression of remorse, which appears to be a change from the psychological
intake assessment, dated June 9, 2009, referred to in the Danger Opinion which
suggested that the Applicant denied and minimized his involvement in the death
of the child. It is difficult to see the basis upon which this change of view
was anticipated by the original decision-maker. The most recent
psychological/psychiatric report also addresses the Applicant’s employment upon
release, which again, is not addressed in the original Danger Opinion. Moreover,
the psychologist stated that the Applicant had made very good use of therapy
resources available to him and that he appeared to have made some very
substantial gains in understanding and resolving some difficult life
experiences and in improving his emotional functioning and overall coping, as well
as substantially changing his views on what constitutes appropriate parenting
and disciplinary tactics with children. It is again difficult to see how such
specific findings are covered by the anticipatory approach to the evidence
adopted by the Minister’s Delegate.
[40]
The Minister’s Delegate also based his or her
decision on the finding that, although detention may
not always be maintained, including as a result of decisions of the ID on the
basis that it is satisfied that the person does not pose an immediate danger to
the public, this does not invalidate the Delegate’s decision on danger to the
public and “may reasonably be anticipated by the
decision-maker in many cases – the present case among them”. However,
nothing in the Danger Opinion suggests that this was anticipated by the
original decision-maker. And, while the changed circumstances of the
Applicant’s relationship with his daughter may alone, as the Respondent
submits, not suffice to vary the Danger Opinion, the Delegate was required to
make that determination.
[41]
The Minister’s Delegate also cited a report of
the Parole Board of Canada dated April 19, 2016 which stated that the
Applicant’s current level of risk remains moderate. This is correct, however,
in my view the report must be considered in whole and in the context of all of
the new evidence which was unreasonably discounted on the basis that it could
have been anticipated.
[42]
In the result, this application for judicial
review must be allowed because the Minister’s Delegate unreasonably exercised
his or her discretion and erred by dismissing the new evidence on the basis
that it could have been reasonably anticipated by the original decision-maker
in 2011 at the time when the Danger Opinion was rendered.
Certified question
[43]
The Applicant submits the following question for
certification:
In light of the Immigration Manual statement
(ENF 28 section 7.16)
“Where a request is made to consider
facts or evidence that were not available at the time of the original decision…
the decision maker will reconsider the original [public danger] opinion”,
does the duty of fairness require that,
a) where a request is made to
consider facts or evidence that were not available at the time of the original
decision, the decision maker must reconsider the original public danger
opinion, or
b) if a threshold requirement must
be met before the reconsideration is engaged, the requester must be notified of
that threshold test and given an opportunity to meet it?
[44]
Pursuant to s 74(d) of the IRPA, an appeal to
the Federal Court of Appeal may be made only if, in rendering judgment, the
judge certifies that a serious question of general importance is involved and
states the question. The test to be applied when considering whether a
question is suitable for certification is set out in Zhang v Canada
(Citizenship and Immigration), 2013 FCA 168:
[9] It is trite law that to be
certified, a question must (i) be dispositive of the appeal and (ii) transcend
the interests of the immediate parties to the litigation, as well as contemplate
issues of broad significance or general importance. As a corollary, the
question must also have been raised and dealt with by the court below and it
must arise from the case, not from the Judge’s reasons (Canada (Minister of
Citizenship and Immigration) v. Liyanagamage, 176 N.R. 4, 51 A.C.W.S. (3d)
910 (F.C.A.) at paragraph 4; Zazai v. Canada (Minister of Citizenship and
Immigration), 2004 FCA 89, [2004] F.C.J. No. 368 (C.A.) at paragraphs
11-12; Varela v. Canada (Minister of Citizenship and Immigration), 2009
FCA 145, [2010] 1 F.C.R. 129 at paragraphs 28, 29 and 32).
(Also see Varela v Canada (Citizenship
and Immigration), 2009 FCA 145 at paras 28-30; Canada (Citizenship and
Immigration) v Zazai, 2004 FCA 89 at para 11).
[45]
The Federal Court of Appeal in Liyanagamage v
Canada (Secretary of State), [1994] FCJ No 1637
(FCA) at paras 4-6 also stated that the certification process is not to
be used as a tool to obtain from that Court declaratory judgments on fine
questions which need not be decided in order to dispose of the case nor is it
to be equated with the references process established by the Federal Courts
Act, RSC, 1985, c F-7.
[46]
In this matter, there are several reasons why
the proposed question is not appropriate for certification. First, the question
need not be decided in order to dispose of this matter as I have determined that
the decision should be set aside on the basis of an unreasonable exercise of
discretion. Second and relatedly, I have not dealt with the issue of
procedural fairness in this decision as it was not necessary to do so. Finally,
I am not persuaded that the proposed question transcends the interests of the
immediate parties to the litigation, as well as contemplates an issue of broad
significance or general importance. Accordingly, I decline to certify the
proposed question.
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