Fabian v. Canada (Minister of Citizenship and Immigration), 2003 FC 1527

Date: 20031230

Docket: IMM-6491-02

Citation: 2003 FC 1527

Ottawa, Ontario, this 30^th day of December, 2003

Present:           The Honourable Justice James Russell                                  

BETWEEN:

                                                       NIRANJAN CLAUDE FABIAN

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]              The Applicant, Niranjan Claude Fabian, seeks an order from this Court quashing the danger opinion made by E.A. Arnott ("Minister's Delegate") which allows for the Applicant's removal from Canada. This application for judicial review pertains to the decision made December 12, 2002, ("Decision") wherein the Minister's Delegate determined the Applicant constituted a danger to the public in Canada pursuant to s. 115(2)(a) of the Immigration and Refugee Protection Act ("IRPA").         

BACKGROUND

[2]                 The Applicant was born in Wellawatte, Sri Lanka on April 10, 1968. He lived in Sri Lanka until 1986 when he was first taken into custody (along with a friend) by Sri Lankan authorities and was beaten and tortured. The friend with whom he was arrested was later murdered by the Sri Lankan army.

[3]                 In order to escape Sri Lanka, the Applicant left for England in 1986 where he remained until 1990. In 1990, believing that the situation had changed in Sri Lanka and that it would be safe for him to return, he returned in an effort to obtain employment. Unfortunately, upon his return to the Jaffna region he was again arrested for the third time and interrogated at length about activities while in England. On that occasion, the Applicant was accused of working as an agent for the Liberation Tigers of Tanil Eelam ("LTTE") in Sri Lanka.

[4]                 Following his release from custody, secured by the payment of ransom of a forty thousand rupees, the Applicant fled to Canada, entering this country on June 25, 1990, when he claimed Convention refugee status.

[5]                 The Applicant is believed to be a trained terrorist assassin and a leader of the VVT, a criminal Tamil gang operating in Canada. He was determined to be a Convention refugee on March 21, 1991, before these facts came to light. He became a permanent resident of Canada on February 24, 1995.

[6]                 In February, 1998, the Applicant was identified by the Metropolitan Toronto Police - Tamil Task Force in a Pilot Project Report, Tamil Organized Crime, as a former assassin for the LTTE, a known terrorist organization in Sri Lanka, and second or third in command of the VVT, a violent and criminal Tamil gang active in the Greater Toronto Area, and a rival of another criminal Tamil gang known as the A.K.Kannan.

[7]                 On March 25, 1998, the Applicant was convicted of three criminal offences: conspiring to commit an assault causing bodily harm, conspiring to commit an indictable offence (forgery of a Canadian passport) and attempting to obstruct justice.

[8]                 The Applicant was sentenced to consecutive terms of imprisonment totalling 16 months. At the time of sentencing, Wake J. of the Ontario Court (Provincial Division) (as it was then called) stated:

In order to assess the criminality of Mr. Fabian's activities and to assess a proper sentence, I must consider that he was prepared, in order to protect his interest in the illicit trade of passports, to go as far as to resort to violence, in which innocent third parties could have been harmed. The full extent of his criminal activities and his criminal mindset discloses very little respect for the law.

Clearly if this is his mindset and that of his confederates with whom he was dealing, then the element of specific deterrence and general deterrence have a very real significance in sentencing.

I have to bear in mind that it is this criminal mindset reflected in the agreements which are the foundation of the conspiracy charges, and which are the evil to which this sentencing must be directed.

(Rehal Affidavit, at pp._93-94)

[9]                 As a result of his criminal convictions, the Applicant was ordered deported from Canada on August 25, 1998, pursuant to section 53(1)(d) of the Immigration Act. The Applicant points out that in the Ministerial Opinion Report, which was disclosed to the Applicant after the 1998 deportation decision, the risk faced by the Applicant in Sri Lanka was noted and it was concluded that, given his situation, the Applicant was at risk of harsh, inhumane treatment if returned to Sri Lanka. Nevertheless, an opinion issued that the Applicant represented a danger to the public of Canada notwithstanding the assessment that he was at risk in Sri Lanka.

[10]            Following the completion of his prison sentence, the Applicant was detained in August, 1998, pursuant to provisions of the former Immigration Act. He sought a judicial review of the 1998 decision that he represented a danger to the public and, on March 8, 2002, the danger opinion issued against him was quashed by Order of the Federal Court. He was subsequently released on terms and conditions in July 2000. However, as early as August 2000, he was found to be in violation of his release conditions, as witnessed by Toronto Police Detective Constable Glen Furlong.

[11]            In September, 2001, the Applicant was arrested and charged with credit card fraud over $5000 and breach of trust relating to an alleged sophisticated scam run through the gas station where he was employed. He was taken into custody by the police at that time.

[12]            In April, 2002, the criminal charges for credit card fraud against the Applicant were withdrawn but his detention was continued under the former Immigration Act. The Respondent contends that the Applicant breached the terms and conditions of his Order for Release by associating with a known criminal, a member of a Tamil youth gang. The Applicant submits that he reported this encounter to the Respondent immediately after it occurred and the Respondent, at that time, decided it was not necessary to take the Applicant back into custody. Nevertheless, the Applicant remained in custody following the withdrawal of criminal charges against him.

[13]            While in immigration custody, the reasons for the Applicant's continued detention were reviewed frequently by officials of the Adjudication Division and its successor tribunal, the Immigration Division of the Immigration and Refugee Board.

DECISION UNDER REVIEW

[14]            On December 12, 2002, the Minister's Delegate issued an opinion pursuant to s. 115(2)(a) of IRPA that the Applicant constituted a danger to the public of Canada. It is this Decision that is the subject of this judicial review.

[15]            All of the circumstances of the case were considered by the Minister's Delegate who concluded that the Applicant would not face persecution, torture or cruel and unusual punishment if returned to Sri Lanka and, as a result, allowed for his removal to that country.

RELEVANT LEGISLATION

[16]            The Immigration and Refugee Protection Act, S.C. 2001 c. 27, s. 115, reads as follows:

ISSUES

[17]            The Applicant raises the following issues:

Did the Minister's Delegate err in finding that there was no evidence that the LTTE had issued a death threat against the Applicant despite the fact that evidence was submitted both in the form of sworn evidence in the affidavit of the Applicant as well as the letter which was submitted with the reply to the Minister's Delegate package?

Did the Minister's Delegate err by applying the wrong test, misapplying the test, or failing to apply any test to determine there had been a change of circumstances in Sri Lanka which caused the Applicant to no longer be at risk in Sri Lanka?

Did the Minister's Delegate err by making findings of fact on the present situation in Sri Lanka which are directly at odds with a substantial amount of documentary evidence submitted to the Minister's Delegate and without referring to the evidence that contradicted the findings of the Minister's Delegate?

Did the Minister's Delegate err by basing his decision on the Applicant's prospects for rehabilitation entirely on the fact that he had not been at liberty long enough to warrant favourable consideration and by ignoring sworn evidence from both the Applicant and his sister concerning his remorse and the efforts that he had made to change his life?

Did the Minister's Delegate err by rendering a decision that the Applicant was a danger to the public and basing her Decision on what could have happened, rather than on what actually did happen, thereby basing her Decision on mere speculation rather than evidence?

STANDARD OF REVIEW

[18]            The Court must first determine the appropriate standard of review for this case.

[19]         InAhani v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 72, the Supreme Court of Canada indicated:

16.       For the reasons discussed in Suresh, the standard of review on the first decision is whether the decision is patently unreasonable in the sense that it [page80] was made arbitrarily or in bad faith, cannot be supported on the evidence, or did not take into account the appropriate factors. A reviewing court should not reweigh the factors or interfere merely because it would have come to a different conclusion.    Applying the functional and pragmatic approach mandated by Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, we conclude that the Parliament intended to grant the Minister a broad discretion in issuing a s. 53(1)(b) opinion, reviewable only where the Minister makes a patently unreasonable decision.

17.       Likewise, on the second question, we conclude that the court may intervene only if the Minister's decision is not supported on the evidence, or fails to consider the appropriate factors. The reviewing court should also recognize that the nature of the inquiry may limit the evidence required. While the issue of deportation to risk of torture engages s. 7 of the Charter and hence possesses a constitutional dimension, the Minister's decision is largely fact-based. The inquiry into whether Ahani faces a substantial risk of torture involves consideration of the human rights record of the home state, the personal risk faced by the claimant, any assurances that the claimant will not be tortured and their worth and, in that respect, the ability of the home state to control its own security forces, and more. Such issues are largely outside the realm of expertise of reviewing courts and possess a negligible legal dimension. Considerable deference is therefore required.

[20]        Both parties agree that the standard of review applicable to the issues raised in this application is patent unreasonableness. Based upon the decision in Ahani, supra, which dealt with s. 53(1)(b) of the former Immigration Act, the predecessor provision to s. 115(2)(a) of IRPA, I concur.

ANALYSIS

What type of analysis is necessary under the s. 115(2)(a) of the IRPA?

[21]            Under the Immigration Act, a Convention refugee could not be removed to a country that gave rise to a well-founded fear of persecution unless the Minister's Delegate issued an opinion pursuant to s. 53(1)(d) that the person represented a danger to the public of Canada. Prior to the decision of the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), (2002) 208 D.L.R. (4^th) 1, it was permissible to remove an individual to a country where s/he was at risk of harsh or inhumane treatment, including torture, so long as the Minister's Delegate was satisfied that the person concerned represented a danger to the public in Canada, and in so doing had weighed the competing interests appropriately.

[22]            In Suresh, supra, the Supreme Court of Canada held as follows:

Insofar as Canada is unable to deport a person where there are substantial grounds to believe he or she would be tortured on return, this is not because art. 3 of the CAT directly constrains the actions of the Canadian government, but because the fundamental justice balance under s. 7 of the Charter generally precludes deportation to torture when applied on a case-by-case basis. We may predict that it will rarely be struck in favour of expulsion where there is a serious risk of torture. However, as the matter is one of balance, precise prediction is elusive. The ambit of an exceptional discretion to deport to torture, if any, must await future cases.

Suresh, supra at 39

[23]            In light of Suresh, supra, the Minister's Delegate was obligated to undertake an examination of whether the Applicant would be at risk of torture upon his return to Sri Lanka.

[24]            Once the conclusion is reached that an individual will be subject to torture upon his return to his country of nationality, a difficult and complex weighing of variables must necessarily follow. This analysis is guided by the Supreme Court of Canada's statement in Suresh, supra, that removal to torture is "generally precluded" by the Charter. The Applicant submits that the Minister's Delegate has avoided this detailed and difficult analysis in this case by merely making the determination that the Applicant would not be at risk if returned to Sri Lanka and that the reasons given for this conclusion are less than adequate and ignore important evidence to the contrary.

[25]        The Respondent submits that, contrary to the Applicant's submissions, the Applicant was accorded every procedural safeguard in accordance with the procedures set out in Suresh, supra, notwithstanding the fact that the Applicant had not made out a prima facie case of a risk of torture if returned to Sri Lanka. Only where an individual has made out a prima facie case that torture is a real possibility upon deportation is the Minister's Delegate required to provide, inter alia, "responsive" written reasons on the issue. This procedural protection will not be invoked in every case because not every case of deportation of a Convention refugee will involve risk to an individual's fundamental right to be protected from torture or similar abuses.

[26]            The Respondent submits that the Applicant failed to establish a prima facie case that he would face torture, or similar abuses, if he were to return to Sri Lanka, but was nevertheless provided with every procedural safeguard. In this case, unlike in Suresh, supra, the Respondent submits that the Minister's Delegate provided adequate procedural protections in that the Applicant was fully informed of the case against him, given a full opportunity to respond, and provided with written reasons for the Decision (Ahani, supra).

What constitutes the Decision in this case?

[27]            Before the approach of the Minister's Delegate to this issue can be assessed, it is first of all necessary to determine what the Decision itself consists of. The parties disagree on this fundamental point. From the Applicant's perspective, the Decision is nothing more than the document entitled "Opinion of the Minister pursuant to paragraph 115(2)(a) of the Immigration and Refugee Protection Act" dated December 12, 2002 by the Minister's Delegate, E.A. Arnott together with the two pages of Minister's Opinion Considerations signed and dated on the same day by E.A. Arnott.

[28]            The Respondent, however, takes the position that the Decision consists not only of the documents referred to above, but also includes the "Request for Minister's Opinion" - A115(2)(a) which is a document submitted to the Minister's Delegate and signed by Denise Bédard, an analyst, on October 24, 2002, with the concurrence of Graham Alldridge, a senior analyst of the Respondent's case management branch on October 28, 2002.

[29]            I cannot accept the Respondent's position on this issue. The Request for Ministers Opinion is, in its own words, a "submission to the Minister's Delegate .... in support of a request that the Minister's Delegate form an opinion that [the Applicant] constitutes a danger to the public pursuant to paragraph 115(2)(a) of the Immigration and Refugee Protection Act."

[30]            In the Opinion of the Minister dated December 12, 2002, the Request for Ministers Opinion is merely listed under the heading "Material Reviewed and Considered," as are "all attachments, all client's submissions."

[31]            In other words, the documentation itself makes it quite clear that the Request for Ministers Opinion is something quite distinct from the opinion itself. The Request for Opinion is not even incorporated by reference; it is merely part of the material that was reviewed and considered by the Minister's Delegate.

Evidence of risk

[32]            In the Decision itself, the issue of risk is discussed as follows:

I have reviewed the many documents in the situation in Sri Lanka. At this time, the peace agreement is holding and progress is being made in this long-standing civil strife. I am satisfied that Mr. Fabian [the Applicant] will not face persecution, torture, risk to life or cruel and unusual treatment or punishment from the Sri Lankan government. There is no evidence that the L.T.T.E. has issued a death threat against Mr. Fabian.

[33]            So the issue for this Court is whether this aspect of the Decision is an adequate treatment of the risk issue, given the evidence that was before the Minister's Delegate and given the Applicant's right to have the reasons for the Decision set out clearly.

[34]            In this regard, it is important to bear in mind that the Decision in this case was made by an administrative officer and not by an administrative tribunal that renders its decisions after an adjudicative hearing. This distinction has been noted by the Federal Court of Appeal in Ozdemir v. Canada (Minister of Citizenship and Immigration, [2001] F.C.J. No. 1646, 2001 FCA 331. The following paragraphs from the judgment of Evans J. in that case are helpful for the case at bar:

8.              As for the first point, there was ample evidence to justify the PCDO's conclusion that the appellant would not be at risk if returned to Turkey, if the totality of the material before her is considered, including the reasons of the Board for rejecting Mr. Ozdmir's (sic) refugee claim, namely, the implausibility of his story and his lack of credibility. The probative value of the new evidence was relatively small. Mr. Ozdmir's (sic) wife's allegations about the continuing interest of the police in her husband concerned an incident that had occurred nearly two years before the PCDO made her decision, and were relayed through third parties. The newspaper photograph was of no value at all. Hence, it cannot be said that the PCDO's decision was made in breach of paragraph 18.1(4)(d).

9.              As for the second point, which was based on the inadequacy of the reasons, if the PCDO was required by the duty of fairness to give reasons for her decision, her reasons sufficed to discharge that duty. Decision-makers are not bound to explain why they did not accept every item of evidence before them. Much depends on the significance of that evidence when it is considered in light of the other material on which the decision was based: see Cepeda-Gutierrez v. Canada (Minister of citizenship and Immigration) (1998), 157 F.T.R. 35.

10.            Nor will a reviewing court infer from the failure of reasons for decision specifically to address a particular item of evidence that the decision-maker must have overlooked it, if the evidence in question is of little probative value of the fact for which it was tendered, or if it relates to facts that are of minor significance to the ultimate decision, given the other material supporting the decision.

11.            In this case, the new evidence was not of sufficient importance or probative value that the duty of fairness required the PCDO to deal with it expressly in her reasons. Further, it would be inappropriate to require PCDOs, as administrative officers, to give as detailed reasons for their decisions as may be expected of an administrative tribunal that renders its decisions after an adjudicative hearing. In our opinion, the reasons given by the PCDO adequately explain the basis of her decision and do not support an inference that she failed to consider all the material before her.

[35]            With these guiding comments in mind, if we turn to the case at bar, the Respondent's position is that the Applicant failed to establish a prima facie case that he would face torture, or other abuses, if he was returned to Sri Lanka, so that there was no need for the Minister's Delegate to provide responsive written reasons on this issue. In any event, however, the Respondent says the reasons that are presented and the conclusion reached are entirely adequate, bearing in mind the evidence that was before the Minister's Delegate and the nature of the decision that had to be made.

[36]            When the pertinent paragraph from the Decision is reviewed, it appears clear to me that the Decision says nothing about the Applicant having failed to make a prima facie case for torture and abuse so that no further responsive reasons are required. This rationale appears to be something raised by the Respondent in retrospect and as a response to this application. The Minister's Delegate makes it quite clear that she "has reviewed the many documents on the situation in Sri Lanka" and that she is "satisfied that Mr. Fabian will not face persecution, torture, risk to life or cruel and unusual treatment or punishment from the Sri Lankan government." What is more, the Minister's Delegate also concludes that there is "no evidence that the LTTE has issued a death threat against Mr. Fabian."

Change of Circumstances

[37]            The Applicant, who qualified as a Convention refugee, has twice in the past been found to be at risk if returned to Sri Lanka. So the Minister's Delegate must have taken the position that conditions had changed in that country and that the Applicant was no longer at risk. The record suggests that there was contradictory evidence before the Minister's Delegate on whether the changes were sufficiently effective and enduring. However, there is no reason to suspect that the Minister's Delegate did not consider the totality of the material before her or failed to apply the correct test in coming to the conclusion that "at this time, the peace agreement is holding and progress is being made in this long-standing civil strife." We can disagree with this conclusion but it is not patently unreasonable.

[38]            As for the adequacy of the reasons given concerning the change of circumstances and the duty of fairness, and bearing in mind the words of Evans J. in Ozdemir, supra, that decision makers, and in particular, administrative officers "are not bound to explain why they did not accept every item of evidence before them," and that "[m]uch depends on the significance of that evidence when it is considered in light of the other material on which the decision was based," I find that the reasons given as to why the Applicant need no longer fear the Sri Lankan government are adequate. Snider J. reviewed and discussed the purpose of reasons in Lloyd Townsend v. The Minister of Citizenship and Immigration, [2003] F.C.J. No. 516, 2003 FCT 371 and provided the following summary at paragraph 22 of her decision:

22. The purpose of reasons is to tell the person concerned why a particular result was reached. Reasons allow the parties to see that the applicable issues have been carefully considered and to effectuate any right of appeal or judicial review (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; VIA Rail, supra). What constitutes adequate reasons will depend on the circumstances of each case (VIA Rail, supra). The reasons requirement under the duty of fairness is sufficiently flexible to permit various types of written explanations for the decision to satisfy this requirement (Baker, supra, at para. 40).

[39]            While I appreciate that, in this case, the evidence of danger to the Applicant was not "of little probative value" and that it did not relate to facts "of minor significance to the ultimate decision," to revert again to the words of Evans J. in Ozdemir, supra, and while the explanation is not as full as it might have been, the reason is clear enough that, having looked at all of the documentary evidence, the Minister's Delegate is satisfied that conditions have changed sufficiently in Sri Lanka to place him out of danger from government forces if he is returned. Obviously, this is not a conclusion his Applicant can accept, but it is an explanation as to why the Decision was made.

The LTTE Death Threat

[40]            As regards the LTTE aspect of the risk issue, the Decision is more problematic because it states categorically that "[t]here is no evidence that the LTTE has issued a death threat against Mr. Fabian." From the Applicant's perspective, this conclusion is patently unreasonable because it overlooks evidence that the Applicant introduced concerning LTTE death threats against him and provides no explanation as to why that evidence was not accepted, particularly when it deals with a matter of crucial significance.

[41]            The Respondent seeks to counter these objections by taking the position that, in fact, there was no evidence of LTTE death threats. All the Applicants did was to raise unsubstantiated allegations of such threats. These allegations lacked any independent corroborative evidence.

[42]            The actual evidence adduced by the Applicant on this issue consisted of his own affidavit and a letter signed by Siva Sinniah of the Refugees and Immigrants Information Centre Toronto, Inc.

[43]            The Applicant's affidavit on this issue reads as follows:

35.      In addition to my fear of the Sri Lankan government, I also have a fear of persecution by the Tamil Tigers and I have learned that the Tigers have issued a warrant for my death should I ever return to Sri Lanka. This warrant for death was issued when a member of the Tamil Tigers travelled to Canada.

36.      The Tigers were unhappy with the attention that they had received as a result of high profile criminal activities committed by members of Tamil youth gangs in Toronto. In an effort to put an end to these activities, the Tigers issued death warrants for myself as well as a number of other Tamil men who had been convicted of criminal activities. If I return to Sri Lanka, I am certain that I will be murdered, if not by the government of Sri Lanka then by the Tamil Tigers.

37.      I was visited by the RCMP following my arrest on fraud charges in 2001 and questioned at length about the threats against my life. I am certain that if I return to Sri Lanka, I will be killed.

[44]            The letter by Siva Sinniah reads as follows:

The LTTE passed death sentence for seven gang members including Niranjan Fabian for their involvement in gang activities in Canada. The LTTE representative from France called "Sulka", Pirathap from Toronto and three more members had negotiation [sic] with the gang members during 1999-2000 ...

Two of the leading English newspapers have published in Sri Lanka that Mr. Fabian had involved [sic] in a gang fight in Canada this would be very serious and life threat for him. [sic] The LTTE would take serious action as this gang damaged their name.

[45]            There may be problems with accepting this evidence, but the Minister's Delegate should have dealt with its merits, or lack thereof, in the Decision rather than avoiding the whole issue with a bald statement that "there is no evidence ..." on this issue.

[46]            Gibson J. observed that evidence directly relevant to a central issue cannot be ignored by a Tribunal in Atwal v. Canada (Secretary of State), [1994] F.C.J. No. 1113 [F.C.T.D.]:

10.       It is trite to say that a Tribunal is not obliged to refer in its reasons for decision to all of the evidence that was before it. The fact that a Tribunal fails to do so does not, in ordinary circumstances give rise to a conclusion that the Tribunal has failed to take into account all of the evidence that is before it. But I conclude that that principle does not apply to a failure to make reference to a case-specific document that is evidence directly relevant to the central issue addressed in the Tribunal's decision. That was the situation here. In failing to acknowledge the sworn declaration of the Applicant's father as to the membership of his family, I conclude that the Tribunal erred in law or based its decision on an erroneous finding of fact that it made without regard for all of the material before it. [Gill v. Minister of Employment and Immigration, Court File: 92-T-1624, March 31, 1994 (unreported) [Please see [1994] F.C.J. No. 458]. Though not on all fours, in that decision, I expressed some concern about failure to acknowledge case specific documentary material.]

[47]            The Respondent speciously argues that the "evidence in question was of little probative value of the fact for which it was tendered, self-serving, relayed through third parties and speculative, such as that the Minister's Delegate was not required to deal with it in any more detail than she did in her reasons." I do not find that this is the case. Even if the evidence tendered by the Applicant was speculative, the Minister's Delegate was required to, at the very least, acknowledge and dismiss it on this critical and central issue.

[48]            It was patently unreasonable for the Minister's Delegate to indicate that "there is no evidence that the LTTE has issued death threats against Mr. Fabian" without actively and openly assessing and dismissing the evidence that the Applicant tendered, which in fact contradicted this finding.

[49]            I therefore find that the Minister's Delegate erred in a patently unreasonable manner in finding that there was no evidence that the LTTE had issued a death threat against the Applicant.

Rehabilitation

[50]            The Applicant notes that, in the Decision, the Minister's Delegate makes the following comments on the subject of rehabilitation:

Except from July 24, 2000 until September 2002, Mr. Fabian has either been detained by the Court or by Immigration since June 1997. Mr. Fabian has been at liberty for too short a time to convince me of his rehabilitation.

[51]            The Applicant submits that this statement clearly discloses that the Minister's Delegate completely closed her mind to the possibility of rehabilitation. Given that the finding with respect to rehabilitation was based on the fact that the Applicant had been at liberty for "too short a time," it is submitted that the Minister's Delegate must have ignored the affidavit evidence of rehabilitation which occurred while the Applicant was incarcerated.

[52]            Of particular note are the portions of the Applicant's affidavit that refer to his efforts at rehabilitation while he was incarcerated. At paragraph 10 of his affidavit, the Applicant states:

While I was in custody, I completed grade 12 technical math with an average of 80%. I have also increased my bible study, I regularly read and meditate on the bible and discuss my faith with the other individuals with whom I had been incarcerated.

[53]            The Applicant also refers to the affidavit of Nilanthi Kanathasam, the Applicant's sister, who states at paragraphs 8 and 9 as follows:

During his time in custody, I noticed that Niranjan began to change. He reaffirmed his Christian faith shortly after his incarceration. Despite the fact that he had been raised Catholic, Niranjan drifted away from the church as he grew older and as his life became more insecure. By the time Niranjan had been involved with his young Tamil friends in Toronto and involved in criminal activity, he had drifted very far from his faith. I therefore took his reaffirmation of his faith as an extremely positive sign.

My brother began attending at the Chaplin's office at the Institutions where he was incarcerated. He also began attending Bible studies and meeting with other inmates in order to discuss their experiences and their faith. Over time, I could see that the change that I had first notices in my brother was much more profound than it first appeared. My brother who had always been head strong and reluctant to take the advice of others developed into a more reflective and insightful person. Niranjan's temper, which had in the past been quick, faded away to almost nothing. He is now a much more thoughtful and considerate person than he has been in the past. My feelings about Nirajan's rehabilitation while he was in custody were confirmed following his release on a bond on July 5, 2000

[54]            The Applicant submits that the Minister's Delegate failed to take the above evidence into consideration when assessing whether the Applicant was rehabilitated, or had any prospects for rehabilitation.

[55]            The Applicant submits that by foreclosing the possibility that the Applicant had been rehabilitated, based entirely on the determination that the amount of time that he had spent "at liberty" had been too short, the Minister's Delegate must have ignored the evidence of rehabilitation that occurred while the Applicant was incarcerated, given that that period of time was specifically excluded from the Minister's Delegate's consideration.

[56]            Having reviewed the material, I have to conclude that the Minister's Delegate did not err in this regard. The length of the Applicant's detention is, in any event, highly relevant to the determination of his opportunity for rehabilitation. I agree with the Respondent that the affidavit of the Applicant's sister is self-serving and partial. There is nothing to suggest that the Minister's Delegate left material considerations out of account or dealing with rehabilitation.

Speculation

[57]            The Applicant notes that, in her Decision, the Minister's Delegate found as follows:

In dealing with forged passports, he could be assisting terrorists and other criminals to enter Canada. In attempting to obstruct justice, he could be assisting other criminals to remain at large and commit further crimes.                                 

(Motion Record, p. 634)

[58]            The Applicant submits that this finding is completely speculative. The Applicant says that the Minister's Delegate is basing the danger opinion on a "worst case scenario" analysis of his criminal record. The Applicant submits that this speculation lends itself to the making of unreasonable and arbitrary decisions. The Applicant argues that this type of analysis is wholly inappropriate in the context of an opinion pursuant to s. 115(2)(a) of the IRPA.

[59]            The Respondent submits that it is not for this Court to second guess the Minister's Delegate's finding that, as an organized crime member, the Applicant could be "assisting terrorists and other criminals enter Canada," and "assisting other criminals to remain at large to commit further crimes." There was sufficient evidence before the Minister's Delegate to justify her finding, and in the absence of an obvious error, it is not for this Court to intervene.

[60]            I note that, in particular, the Minister's Delegate observed that the Applicant was dealing in forged passports, a criminal act which any reasonable observer may view as the sort of activity that could be related to potentially assisting terrorists. In my opinion, the Minister's Delegate made no reviewable error on this issue.

                                                  ORDER

THIS COURT ORDERS that

1.          This Application for judicial review is allowed and this matter is remitted to a differently constituted panel for reconsideration.

2.          There are no questions for certification.

                          "James Russell"                                                                                                                                                  J.F.C.

                                       FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-6491-02

STYLE OF CAUSE: Niranjan Claude Fabian

                                                         -and-

The Minister of Citizenship and Immigration

PLACE OF HEARING:                                   Toronto, Ontario

DATE OF HEARING:                                     Tuesday, October 28, 2003

REASONS FOR ORDER

AND ORDER :         Justice Russell

DATED:                      December 30, 2003

APPEARANCES:

Joel Sandaluk

FOR APPLICANT

Neeta Logsetty

FOR RESPONDENT

SOLICITORS OF RECORD:

Mamann & Associates

Barristers and Solicitors

Toronto, Ontario

FOR APPLICANT

Morris Rosenberg

Deputy Attorney General of Canada                                             FOR RESPONDENT