Rueca v. Canada (Minister of Citizenship and Immigration), 2001 FCT 541

Date: 20010529

Docket: IMM-1011-00

Neutral Citation: 2001 FCT 541

Ottawa, Ontario, this 29th day of May, 2001

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

CESAR PATULO RUECA

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                This is an application for judicial review, brought pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") of a decision dated January 24, 2000, wherein W.A. Sheppit (the "Minister's Delegate") concluded that the applicant is a danger to the public pursuant to subsection 70(5) of the Act.

Background Facts

[2]                The applicant, Mr. Cesar Patulot Rueca (his name as indicated on the Danger Opinion), has permanent residence status in Canada and is a citizen of the Philippines. In October, 1998, the applicant was arrested and charged with numerous criminal code offences. He had stabbed a doorman of an adult entertainment parlour in Toronto with a knife. As a result of a plea bargain, the applicant was only convicted of aggravated assault. He was sentenced to three years and five months in jail in addition to his pre-trial custody of six months and 28 days.

[3]                By letter dated December 9, 1999, and received by the applicant on December 20, 1999, he was informed of Citizenship and Immigration Canada's intention to seek the opinion of the Minister, pursuant to subsection 70(5) and subparagraph 46.01(1)(e)(iv) of the Act, that he is a danger to the public in Canada. The applicant was informed that any written submissions or argument on his behalf had to be received 15 days from receipt of the notice. Due to the holidays, the applicant was advised that the effective date for any submissions would be January 7, 2000. By incorporating the waiting period provided by the Immigration Officer, this date was extended to January 10, 2000.

[4]                The applicant sent a letter containing submissions dated January 14, 2000 that was postmarked January 19, 2000. However, this letter was not received until January 25, 2000, one day after the Minister's Delegate decided that the applicant constituted a danger to the public in Canada. The decision of the Minister's Delegate states:

On the basis of information considered by me, I am of the opinion, pursuant to subsection 70(5) of the Immigration Act, that

NAME: Cesar Patulot RUECA

DOB: 16 March 1956

constitutes a danger to the public in Canada.

[5]                Immigration Officer David responded to the applicant's January 14, 2000 letter with a letter dated February 2, 2000. The letter states in part the following:

[. . .] I have been advised that, as your submission was received after the Minister's Delegate made his decision, the decision stands and your late submission will not be considered.

. . .

Given the above, I have carefully reviewed the contents of your letter with respect to the issue of possible reconsideration. I find, however, that you have not provided such new facts or evidence such as to establish sufficient grounds for me to forward a recommendation for reconsideration to the Minister's Delegate for his review. Accordingly, the decision reached on 24 January 2000, by the Minister's delegate, remains in effect.

The applicant requested an extension of time in his notice for leave and judicial review because he waited more than 15 days upon receipt of the decision to file notice.

[6]                Issues

1.                   Did the respondent err in jurisdiction, law or fairness in determining that the applicant had only 15 days to provide submissions, in general or in the circumstances of this case?

2.                   Who has the authority to decide a reconsideration under subsection 70(5)?

3.                   What is the test for a reconsideration under subsection 70(5)?

4.                   Was the refusal to reconsider the issue unfair or unreasonable?

5.                   (a)         Are reasons required for a decision under subsection 70(5) of

the Act, in the light of the Baker decision and the Suresh decision? Were there reasons in this case?

(b)         If there are reasons, are they adequate?

6.                   Did the respondent breach the principles of fundamental justice or fairness in that reports were considered which were not provided to the applicant?

Applicant's Submissions

[7]                Standard of Review

The applicant submits the standard of review in this case is that of reasonableness simpliciter. The applicant offers Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 in support thereof. The applicant argues the same factors used to determine the standard in Baker, supra apply to the case at bar, particularly because a subsection 114(2) decision under the Act is by exception, while a subsection 70(5) decision removes a statutory right of appeal and, in the applicant's submission, is in the nature of "super" subsection 114(2) review.

[8]                Error of Jurisdiction, Law, and Breach of Natural Justice or Fairness

The applicant notes in his further memorandum of argument that an affidavit has not been filed by any of the Minister's officers. Thus, the applicant suggests every benefit of the doubt ought to be given to him.

The applicant submits the 15 days he was given to make submissions (which was extended to January 10, 2000 due to the holidays and a waiting period given by the Immigration Officer) is as a matter of law, draconian, given that he is in jail. The applicant argues there is no hurry in his case and that it is common sense that inmates have difficulty retaining counsel unless they happen to be detained in a major urban area. The applicant further argues prisoners cannot just call counsel and given the time of year in his circumstances (the Christmas holidays), counsel was much harder to contact. The applicant submits there is no statutory or regulatory authority for the 15 days he was given to make submissions. Thus, the applicant submits this period was unreasonably short.

[9]                Who Decides Whether the Danger Determination Ought to be Reopened?

The applicant submits Immigration Officer David had no authority to deny him a reconsideration. The applicant submits Ihunwo v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 58 (F.C.A.), where the Court held that the person who decides whether to reopen a case, must have jurisdiction to decide the case. Specifically, the Court found that an immigration adjudicator sitting alone on a motion to reopen a "credible basis" refugee hearing (that was heard by an adjudicator and a member of the Refugee Division), did not have jurisdiction to reopen the claim.

Although Mr. Sheppit determined that the applicant was a danger to the public, Immigration Officer David is the person who decided that the matter would not be reopened according to the applicant. Thus, the applicant argues that it ought to be Mr. Sheppit who has the authority to reopen the decision since he made the decision. The proof of this, according to the applicant, is that if Immigration Officer David had decided that his case raised new points that ought to be considered, he lacked the authority to cancel the decision of Mr. Sheppit. The authority to make a danger opinion, in the applicant's submission, has been delegated only to persons of the executive level at the national headquarters. Moreover, the applicant submits it appears from references in the jurisprudence, that Mr. Sheppit is currently the only person who exercises this authority. In the absence of a statutory scheme, the applicant argues that a person exercising the above mentioned authority ought to decide whether the matter should be reconsidered.

[10]            The applicant submits that if there is no issue of jurisdiction, there was a breach of fairness because a submission was not reviewed by the decision maker. The applicant cites Kane v. University of British Columbia, [1980] 3 W.W.R. 125 (S.C.C.), where it was held that an applicant need not demonstrate that he was prejudiced by a breach of natural justice, but only that there is a serious possibility that he may have been prejudiced.

[11]            Did the Officer use the Wrong Test to Decide Whether to Forward Material to the Decision Maker or to have the Case Reopened?

The applicant submits Immigration Officer David used a test for reconsideration (that is to say, reconsideration as defined by the officer, which was either (1) whether to have the danger determination reopened, or (2) to forward the material to the real decision maker) for which there was no basis. Essentially, the applicant argues Immigration Officer David could not have known what influenced the decision maker and therefore, could not determine whether the applicant had established new facts or evidence.

[12]            Reasons

The applicant submits the decision maker ought to have provided reasons. The applicant further submits that in Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592 (F.C.A.), the Court found that reasons are required under subsection 53(1) of the Act. Therefore, according to the applicant, reasons are required under subsection 70(5) of the Act. Moreover, the applicant submits that if the Court finds reasons in one of the supporting documents, the sufficiency of those reasons can be attacked on judicial review.

[13]            In the applicant's case, the tribunal who made the decision responded to the Federal Court Registry's request for reasons by stating that there were none. Therefore, the applicant argues that if reasons are required, the tribunal has stated that there are none.

[14]            The applicant submits in his further memorandum of argument that this Court has recently held in Ip v. Canada (Minister of Citizenship and Immigration) (2000), 4 Imm. L.R. (3d) 77 (F.C.T.D.) that reasons are required for a decision under subsection 70(5) of the Act. However, the applicant notes that more recently, this Court held in Tewelde v. Canada (Minister of Citizenship and Immigration) (2000), 5 Imm. L.R. (3d) 86 (F.C.T.D.) that reasons are not required under subsection 70(5) of the Act.

[15]          Procedural Fairness: the Bhagwandass, infra, Decision Not Respected

The applicant offers Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 619 (F.C.T.D.), where the Court held that in relation to a danger opinion made under subsection 70(5) of the Act, the Minister is required to provide the respondent's reports to the applicant before the decision is made, if the same reports are submitted to the decision maker. The applicant submits there is no material difference between Bhagwandass, supra and his case. Thus, as Bhagwandass, supra was decided just before the notice was provided to the applicant, the applicant submits the respondent erred by not providing the reports to him.

[16]            The applicant further submits that in his case, just as in Bhagwandass, supra, both the "Request for Minister's Opinion" and the "Danger to the Public Ministerial Opinion Report" were not disclosed to him. The applicant argues that at the very least, on the balance of probabilities, the onus is on the respondent to demonstrate that those documents were not prepared and not provided to the Minister since this procedure is currently being followed.

[17]            The applicant submits that in Bhagwandass, supra the Court found that Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (F.C.A.) (where the Court decided that there was no duty of fairness to provide reasons where no statutory duty existed) was no longer binding on the Trial Division of the Federal Court. The Court also found, according to the applicant, that a decision under subsection 70(5) was very significant and therefore attracted a high degree of fairness. Moreover, the Court wrote at pages 637-638 the following:

As in Baker, no reasons were provided for the opinion or decision here under review. Also as in Baker, the material before the Court discloses that the respondent's delegate had before him "notes" in the form of two documents: first, a "Request for Minister's Opinion" form comprising a summary "Danger Profile" and "Removal Risk Considerations", and including "Reviewing Officer's Comments and Recommendation" reflecting not merely the Reviewing Officer's Recommendation but the concurrence of a Senior Case Review Analyst in the Respondent's Case Management Branch; and second, a "Danger to the Public Ministerial Opinion Report". These documents taken together appear to attempt to summarize the totality of the material on which the applicant was advised that the respondent proposed to rely in determining whether or not to form a danger opinion, and the applicant's response to that material. While the applicant was afforded an opportunity to provide submissions and documentation in regard to everything else that went before the respondent's delegate, the two "summary" documents were not shared with the applicant and he was not provided with an opportunity to respondent to them. Arguably at least, and indeed counsel for the applicant did so argue before me, these documents do not present a balanced summary.

[18]            The applicant submits in his further memorandum of argument that the report from an officer that argues stridently for a danger opinion ought to have been disclosed to him for comment. The applicant emphasizes that the recent jurisprudence of the Federal Court of Appeal strongly supports his position that there is a duty to provide reports before the decision maker renders a decision. In Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407 (F.C.A.), the Court held that the duty of fairness in humanitarian reviews is stronger as a result of Baker, supra, and requires that PCDO risk assessments be disclosed to a humanitarian and compassionate applicant to permit his or her lawyer to file reply submissions before a final decision.

[19]            The applicant argues there is very recent authority for the above propositions. Both Qazi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1222, IMM-5317-99 (July 26, 2000) (F.C.T.D.) and Andino v. Canada (Minister of Citizenship and Immigration) (2000), 6 Imm. L.R. (3d) 205 (F.C.T.D.) followed Bhagwandass, supra. The applicant submits the Court implied that the Haghighi, supra, decision would have compelled the same result, although this last decision was not argued by the parties. The applicant also notes this Court quoted Bhagwandass, supra with approval in Nemouchi v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 528 (F.C.T.D.). Therefore, the applicant submits that as there were undisclosed reports, the decision must be set aside. Moreover, the applicant submits the reports contained information, which in fairness, required review by the applicant so that he might have a meaningful opportunity to present his case.

Respondent's Submissions

[20]            Standard of Review

The respondent submits that the Federal Court of Appeal in Suresh, supra found reasonableness simpliciter to be the appropriate standard of review for a danger opinion made pursuant to paragraph 53(1)(d) of the Act. However, the respondent notes that the Court did not comment on the applicable standard of review for danger opinions made pursuant to subsection 70(5) of the Act. The respondent argues that the standard is different for the two types of danger opinions. In the present case, the respondent submits that the applicable standard is that of patent unreasonableness as outlined in Williams, supra. This standard still governs according to the respondent: leave was denied by the Supreme Court of Canada in Williams and it was not expressly disapproved of in Baker, supra.

[21]            In any event, the respondent submits the applicant failed to show how the issue of the standard of review is relevant to the arguments he has made. The applicant has not directly attacked the decision itself. Rather, he raised an issue of disclosure, challenged the way his late submissions were handled, and stated that reasons were required. The respondent offers Tewelde, supra where this Court stated at page 93 that if there is no evidence of an error in the decision itself, there is no need to decide the appropriate standard of review:

No error being apparent on a somewhat probing examination, this Court does not need to address whether the standard of review appropriate to the matter in question is one of unreasonableness or patent unreasonableness. The delegate's opinion, in essence, passes muster on both accounts.

[22]            Late Submissions Properly Dealt With

The respondent submits the applicant was informed of the upcoming decision of the Minister's Delegate on December 20, 1999, and was instructed to provide submissions by January 7, 2000. The applicant failed to do so and sent submissions dated January 14, 2000 (submissions that were received January 25, 2000, one day after the danger opinion was made). The respondent further submits there was no breach of fairness with respect to the time limit given to the applicant to forward his submissions. The applicant could simply have asked for more time but no objection was made.

[23]            The respondent argues the letter from Immigration Officer David is evidence that the applicant's submissions were not ignored. Even thought the applicant had not requested a reopening of the danger opinion, he was extended the courtesy of having his late submissions treated as a request to reopen the danger opinion:

. . . I have carefully reviewed the contents of your letter with respect to the issue of possible reconsideration. I find, however, that you have not provided such new facts or evidence such as to establish sufficient grounds for me to forward a recommendation for reconsideration to the Minister's Delegate for his review.

[24]            The respondent submits that this situation is addressed in the Danger to Public Policy and Procedures as follows:

Where a request for reconsideration is made concerning new facts or evidence that were not reasonably available at the time the original decision was made, and that the officer determines there are sufficient grounds for reconsideration, it should be forwarded to the Minister's delegate for review.

Where the person and/or counsel allege that the making of the first decision violated a principle of natural justice, such cases should also be sent to the Ministers' delegate for reconsideration. For example, it might be alleged that the person was not properly notified of the opportunity to make a submission or the decision was based on information that was not provided to the person concerned.

Requests for reconsideration that are not based on the above factors can be handled by the local office. For example, the person concerned and/or counsel might not agree with the decision or believe that more weight should be given to a particular piece of evidence. In these cases, the subject of the decision and/or counsel will be advised in writing that the opinion has already been issued and continues to be in effect.

[25]            Contrary to the applicant's arguments, the respondent submits Immigration Officer David did not decide whether or not to reopen the danger decision. Immigration Officer David simply checked to ensure that the applicant's submissions did not contain any new facts or evidence upon which a decision to reopen could be based. According to the respondent, Immigration Officer David was only concerned with whether there were any grounds on which he could make a recommendation to the Minister's Delegate to reopen the danger opinion.

[26]            The applicant's late submissions are simple in the respondent's submission, and consist essentially of him explaining his sorrow for his criminal behaviour. There is no evidence in the late submissions which contain new facts that were not available to the Minister's Delegate when the decision was made. On the facts of this case, the respondent submits Immigration Officer David did not err by choosing to not recommend a reopening of the decision. There is no basis upon which the Minister's Delegate could have reopened the decision according to the respondent.

[27]            No Reasons Required

Suresh, supra held that reasons are required for decisions made pursuant to subsection 53(1) of the Act. However, the respondent submits this court has recently confirmed in Tewelde, supra that reasons are not required for a decision made pursuant to subsection 70(5) of the Act. Moreover, the respondent submits that Williams, supra clearly decided that reasons are not required for subsection 70(5) decisions and that nothing in Baker, supra overruled the principles set out in Williams.

[28]            Disclosure of Ministerial Report Not Required

The respondent submits the applicant has failed to show that he was unaware of any of the information contained in any recommendation provided to the Minister's Delegate. Thus, in these circumstances, the respondent argues the applicant has failed to show that there was a breach of procedural fairness.

[29]            The overall fairness of the procedural scheme by which an individual is determined by the Minister to constitute a danger to the public had been upheld by the Federal Court of Appeal. That procedure, according to the respondent, includes the issuance of Ministerial Reports that are not provided to the individual before a decision is made. Williams and Suresh, supra, are offered in support of this submission.

[30]            The respondent cites Bayani v. Canada (Minister of Citizenship and Immigration) (1998), 156 F.T.R. 119 (F.C.T.D.), Canada (Minister of Citizenship and Immigration) v. Davis (1997), 132 F.T.R. 176 (F.C.T.D.) and Jarrett v. Canada (Minister of Citizenship and Immigration) (1997), 139 F.T.R. 31 (F.C.T.D.), where this Court indicated that non-disclosure of Ministerial Reports prior to a danger to the public decision, did not constitute a denial of procedural fairness or natural justice, as long as the reports were not based on extrinsic evidence or false information. The respondent submits the applicant has failed to show that any information before the Minister's Delegate was false or based on extrinsic evidence.

[31]            The respondent submits that in Tewelde, supra, this Court held at pages 94-96 that there was no breach of fundamental justice where copies of recommendations provided to the Minister's Delegate were not disclosed to permit comment on the recommendations:

The applicant submits next that the delegate breached the principles of fundamental justice guaranteed under section 7 of the Charter in that ... he was not provided with a copy of the recommendations upon which the delegate acted and was not provided an opportunity to comment on them,

. . .

The respondent is correct in the submission that the interests defined under section 7 of the Charter are not engaged when an opinion is rendered pursuant to subsection 70(5) of the Act.

[32]            The respondent submits the finding in Bhagwandass, supra should not be followed as, contrary to the reasoning therein, nothing in Baker, supra indicates that it would be a breach of fairness if the person being considered under subsection 70(5) is not first given an opportunity to comment on the recommendations sent to the Minister's Delegate.

Statutory Provision

[33]            Subsection 70(5) of the Act reads:

Analysis and Decision

[34]            I propose to first deal with Issue 6 which is:

Did the respondent breach the principles of fundamental justice or fairness in that reports were considered which were not provided to the applicant?

This issue raises the fundamental question of what materials and reports must the respondent make available to the applicant for his comment prior to deciding whether or not to issue a subsection 70(5) opinion. According to the applicant's affidavit, he did not receive the two reports prepared by the Department entitled "Request for Minister's Opinion" and the "Danger to the Public Ministerial Opinion Report" prior to the Minister's delegate ruling, pursuant to subsection 70(5) of the Act, that he was a danger to the public in Canada. The applicant argues the failure to provide these reports was a breach of the duty of procedural fairness owed to him.

[35]            The applicant argues that he should have had an opportunity to reply to those reports and that his responses should have been set to the Minister's delegate prior to the subsection 70(5) decision being made.

[36]            I agree with the applicant's position. The decision to declare that the applicant constitutes a danger to the public in Canada has very important and profound consequences for the applicant. For that reason alone, he should have had the opportunity to address all of the submissions made to the Minister's delegate. Because the two reports were not disclosed to the applicant before the decision was made, he was denied the opportunity to respond to any concerns raised by them. This was a breach of the duty of fairness.

[37]            The same conclusion was reached by Justice Gibson of this Court in Bhagwandass v. Canada (Minister of Citizenship and Immigration (December 10, 1999), Docket IMM-6496-98 (F.C.T.D.), which decision was upheld by the Federal Court of Appeal in Bhagwandass v. Canada (Minister of Citizenship and Immigration) (March 7, 2001), Docket A-850-99 (F.C.A.).

[38]            The applicant's application is allowed. The opinion of the respondent that the applicant constitutes a danger to the public in Canada made under subsection 70(5) of the Act will be set aside and the matter will be returned to the respondent for redetermination.

[39]            Because of my ruling in relation to the undisclosed documents, I need not rule on the other issues.

[40]            I have reviewed the questions submitted by the parties for certification pursuant to section 83 of the Act. I am not prepared to certify any of these questions.

ORDER

[41]            IT IS ORDERED that the applicant's application is allowed, the opinion of the respondent that the applicant constitutes a danger to the public in Canada made under subsection 70(5) of the Act will be set aside and the matter will be returned to the respondent for redetermination.

                                                                                "John A. O'Keefe"              

                                                                                               J.F.C.C.                     

Ottawa, Ontario

May 29, 2001