[1] Mr. Kirk Meagell Grandison (the "Applicant") seeks judicial review of the decision made by the Minister's delegate pursuant to section 70(5) and section 46.01(1)(e)(iv) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), that he is a danger to the public.
FACTS
[2] The Applicant is a citizen of Jamaica who has been a permanent resident in Canada since July 10, 1990. He is now twenty-six years old and a husband and father.
[3] On March 31, 1998, the Applicant pleaded guilty to a charge of importing narcotics. He was sentenced to imprisonment for three years. In a letter dated July 31, 1998, he received notice of intention to seek the opinion of the Minister that he is a danger to the public in Canada.
[4] The Applicant made submissions in response to the notice received from the Respondent. He submitted, for consideration, documentary materials including his criminal record, an assessment from Correctional Services Canada, the penitentiary placement report, the criminal profile report, the offender security level referral sheet, the correctional plan and a progress summary report.
[5] On September 3, 1998, the Minister's delegate, Ian Taylor, issued opinions pursuant to section 70(5) and section 46.01(1)(e)(iv) that the Applicant is a danger to the public in Canada. No reasons were provided with the opinions and the Applicant was not provided with copies of the Ministerial Opinion report and the request for Minister's Opinion.
APPLICANT'S SUBMISSIONS
[6] The Applicant argues that the Minister erred by ignoring relevant evidence and by misinterpreting the law with respect to who constitutes a danger to the public. He also argues that this case attracts the benefit of the recent decision of the Federal Court of Appeal in Minister of Citizenship and Immigration v. Sunil Bhagwandass [2001] F.C.A. 49.
[7] The Applicant also argues that, on the merits, the danger opinions are unreasonable and are founded on an erroneous interpretation of the relevant facts, including the evidence submitted by the Applicant concerning family support. The Applicant submits if he had been given the opportunity to review and respond to the material submitted to the Minister, he could have addressed these errors.
RESPONDENT'S SUBMISSIONS
[8] The Respondent argues that the recent decision of the Federal Court of Appeal in Bhagwandass, supra, is not determinative of this application. In the first place, the Respondent attempts to distinguish that decision on the ground that it did not address the issue whether the Ministerial Reports can and should be considered reasons.
[9] Second, the Respondent submits that the decision can also be distinguished because here the Applicant has attacked the merits of the danger opinion and whether written reasons are required. According to the Respondent, the issue of whether the Ministerial Reports can and should be considered reasons is squarely before the Court in this application and has been dealt with by the decision of the Federal Court of Appeal in Suresh v. Canada (Minister of Citizenship and Immigration) [2000] 2 F.C. 592 (C.A.).
[10] The Respondent initially took the position that no reasons were given or required by the Minister in relation to the two opinions under review here. Following a review of the reasons issued by the Federal Court of Appeal in Bhagwandass, supra, the Respondent altered course and now argues that the Ministerial Reasons constitute reasons in this case. The Respondent relies on the oft-cited decision of the Supreme Court of Canada in Baker v. Canada, [1999] 2 S.C.R. 817 and says that the flexible approach to fairness in administrative decision-making, which was recognized by the Supreme Court of Canada, inferentially supports a finding that the Ministerial Reports are reasons in this case. Because they are reasons, the Respondent says there is no requirement for disclosure prior to formation of the danger opinions.
ANALYSIS
[11] Despite the arguments advanced by the Respondent in her attempts to distinguish the present matter from Bhagwandass, supra, I am not persuaded by those arguments.
[12] In my opinion, the recent decision of the Federal Court of Appeal is determinative of the present application. There is an expanded duty of fairness which requires disclosure of the Ministerial Reports. That was not done.
[13] The Respondent submits that this case is distinguishable from Bhagwandass, supra, on the grounds that in the present case the Applicant has put the merits of the danger opinion into question.
[14] Notwithstanding the submissions made by the Respondent, I am not persuaded that the decision in Bhagwandass, supra, should not be followed. In the present case, it is unnecessary to examine the merits of the danger opinions in light of the Minister's breach of the duty of fairness. No reasons were given by the Minister's delegate for the opinions that were signed on September 3, 1998. The Applicant was not provided with the Ministerial Opinion report and the Request for Minister's Opinion, nor given the opportunity to respond to those materials.
[15] The Respondent has submitted a question for certification. The Respondent wishes to preserve its rights to its position should Bhagwandass, supra, be appealed to the Supreme Court of Canada. The proposed question is as follows:
Should Ministerial Reports prepared under section 70(5) of the Immigration Act be taken, by inference, to be the reasons for the Minister's Delegate's opinion?
ORDER
[16] In the circumstances, the application for judicial review is allowed and the danger opinions dated September 3, 1998 are quashed. The following question will be certified:
Should Ministerial Reports prepared under section 70(5) of the Immigration Act be taken, by inference, to be the reasons for the Minister's Delegate's opinion?
"E. Heneghan"
J.F.C.C.
Toronto, Ontario
April 6, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-6308-98
STYLE OF CAUSE: KIRK MEAGELL GRANDISON
Applicant
- and -
THE MINISTER OF CITIZENSHIP &
IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, MARCH 14, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: FRIDAY, APRIL 6, 2001
APPEARANCES BY: Mr. Munyonzwe Hamalengwa
For the Applicant
Ms. Marianne Zoric
For the Respondent
SOLICITORS OF RECORD: Munyonzwe Hamalengwa
Barrister & Solicitor
45 Sheppard Avenue East, Suite 900
North York, Ontario
M2N 5W9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010406
Docket: IMM-6308-98
BETWEEN:
KIRK MEAGELL GRANDISON
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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