Hernandez-Andasol v. Canada (Minister of Citizenship and Immigration), 2001 FCT 349

                                                                                                                                  Date: 20010419

                                                                                                                       Docket: IMM-331-00

                                                                                                       Neutral Citation: 2001 FCT 349

Ottawa, Ontario, this 19^th day of April 2001

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

BETWEEN :

                                               VICTOR HERNANDEZ-ANDASOL

                                                                                                                                            Applicant

                                                                         - and -

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

PELLETIER J.

[1]                This is an application for judicial review of a Ministerial opinion that the applicant represents a danger to the public by reason of his criminality.

[2]                The applicant is a permanent resident of Canada, having been accepted as a refugee from El Salvador in 1989. In 1995, the applicant was sentenced to three years imprisonment for a sexual assault which occurred in 1994. As a result of the conviction, officials in the Department of Citizenship and Immigration initiated the processes which resulted in the Minister's Delegate forming the opinion that the applicant was a danger to the public. In the course of those processes, departmental officials prepared a document called "Request for Minister's Opinion" and a document entitled "Ministerial Opinion Report". These documents were prepared for the purpose of being put before the Minister's Delegate for his consideration in deciding whether the applicant was a danger to the public. The applicant was not provided with a copy of these documents prior to the Minister's Delegate forming the opinion which he did. An application for judicial review was launched on the basis that the applicant had not been afforded procedural fairness.

[3]                When the matter came on for hearing, it was known that the Federal Court of Appeal had heard and taken under reserve the appeal from Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 619, [2001] F.C.J. No. 341, which raised the very same issue. At the conclusion of the hearing, leave was granted to file further submissions upon the release of the Federal Court of Appeal's decision. The decision was released on March 7, 2001 and further submissions were made on the effect of that decision.

[4]                In Bhagwandass, supra, the Federal Court of Appeal upheld the decision of Gibson J. to the effect that the failure to disclose the Request for Minister's Opinion and Ministerial Opinion Report to the applicant before a decision was made was a denial of procedural fairness. It deprived the applicant of the opportunity to address the contents of those documents before a decision affecting his interests was made.

[5]                It is my view that Bhagwandass is directly on point and determines the outcome of this application. The respondent attempts to distinguish Bhagwandass by saying that it turned on the finding by the Court of Appeal that the reports in question were instruments of advocacy while in this case they merely contained "neutral language and a balanced assessment". It is unclear if the distinction is meant to suggest that an instrument of advocacy does not contain a balanced assessment. It is equally unclear whether the respondent is suggesting that a right of disclosure would arise in the event of an unbalanced assessment, even if it was not an instrument of advocacy.

[6]                It cannot be the case that the applicant's right to disclosure of the material to be put before a decision maker turns on a distinction between "instruments of advocacy" on the one hand, and "a balanced assessment" on the other. The applicant has the right to expect that ministry staff will present a balanced assessment in all cases. Even a document which presents a balanced assessment and recommends a course of action can be considered an instrument of advocacy in the eyes of the individual who will be adversely affected by the acceptance of the recommendation. The point of procedural fairness is to give those who are affected by decisions made by others the opportunity to participate in those decisions before they are made. Such a right cannot depend upon a characterization of the content of a document as opposed to the fact that it is being put before the decision maker. It is the latter fact which gives meaning to the disclosure of the document.

[7]                In the result, I find that the failure to disclose the Request for Minister's Opinion and the Ministerial Opinion Report was a denial of natural justice such that the danger opinion must be set aside.

ORDER

For the reasons set out above, it is hereby ordered that the opinion of W.A. Sheppit, Minister's Delegate, dated September 5, 1997, that the applicant is a danger to the public, is hereby set aside.

                                                                                                                            "J.D. Denis Pelletier"          

                                                                                                                                                   Judge