Date: 20001130
Docket: IMM-256-00
BETWEEN:
RIGOBERTO VANENCIA SORIANO
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This application is for judicial review of a decision of the Minister pursuant to subsection 70(5) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") that the applicant constitutes a danger to the public in Canada.
[2] The applicant was born in El Salvador in 1962. He left his country for the United States, entering Canada in 1988.
[3] In September 1992, the Convention Refugee Determination Division of the Immigration and Refugee Board determined the applicant not to be a Convention Refugee. Nevertheless with the sponsorship of his wife, he became a landed immigrant in Canada on November 18, 1997.
[4] Between the years of 1989 and 1999, the applicant was convicted of numerous criminal offences, namely: breaking and entering with intent contrary to section 348(1)(a) of the Criminal Code, mischief, contrary to section 430(4) C.C., failing to comply with a probation order, and, assault contrary to section 266 C.C.
[5] A request for the Minister's opinion was made. On December 21, 1999, the Minister's Delegate decided that, in his opinion, the applicant constitutes a danger to the public in Canada.
[6] The issues are whether the Minister failed to take into account all relevant considerations or took into account irrelevant considerations or failed to take into account all of the evidence, and whether the Minister failed to observe a principal of procedural fairness.
[7] The applicant submits that the Minister had no evidence that the applicant was a present and future danger, except that of criminal convictions. In fact, the only report that addressed this issue, Dr. Zoffman's report, found that if the applicant maintained his sobriety, he would be at minimal risk to re-offend. He contends that Dr. Zoffman's report is an accurate analysis of the risk the applicant poses to society.
[8] The applicant contends that the principal victims of his crimes now wish to have contact with him, and he has maintained a cordial, sober and peaceful relationship with them. He submits that he is unlikely to pose a danger to the public given the following facts: a) he pleaded guilty to his criminal charges and took responsibility for his actions; b) he used his time in prison to address his alcohol abuse problem by attending Alcoholics Anonymous meetings and completing the Beyond Blame program; c) he arranged for his placement in a strict rehabilitation program upon his release from custody and made progress in the program; d) his progress is reflected in the ongoing and peaceful contact he now enjoys with the victim of his past crimes and their daughter; e) he was released by an Adjudicator on terms and conditions as he was judged unlikely to pose a danger to the public.
[9] The applicant submits that the Minister erred by finding him to be a danger to the public when all factors, with the exception of his criminal record indicated that he was a minimal risk to re-offend. He also contends that the Minister misinterpreted the term "public". All his crimes were directed against his estranged wife and his estranged common law spouse.
[10] The applicant also contends that the Minister failed to observe principles of procedural fairness in that he did not provide the applicant or his counsel the "Request for Minister's Opinion" and "Danger to the Public Ministerial Report", documents which were sent to the decision-maker before the decision was made.
[11] The applicant notes that no reference to the Applicant's Post Traumatic Stress Disorder or to the doctor's report was made in either the Danger Report or the Request for Minister's Opinion. The only reference to any of the humanitarian and compassionate arguments which were raised by the applicant is the following sentence in the Request for Minister's Opinion: "Counsel submits that the subject is very fearful on his return to El Salvador." The applicant maintains that such an inadequate summary of his concerns strengthens the argument that the two summary documents should have been provided to him prior to the decision. The fact that humanitarian and compassionate factors were not reviewed in the two summary documents indicates that they were not given proper attention by the Minister's delegate.
[12] The respondent submits that considerable deference should be given to the Minister's exercise of discretion and to determine the scope of the Minister's jurisdiction. The applicant has to demonstrate that the opinion was based on bad faith, irrelevant criteria or evidence without regard to the material or that the Minister's delegate exercised his discretion in a capricious or vexatious manner.
[13] The applicant now seeks to have the opinion of the Minister of Citizenship and Immigration quashed and set aside and the matter referred back to the Minister for reconsideration in accordance with the reasons of the Court.
[14] As I recently wrote in Edouard Bakchief v. M.C.I., IMM-4923-99, generally speaking, the procedure which is now followed in cases of this nature is that an applicant is issued a notice of intention to seek the opinion of the Minister that he is a danger to the public. The applicant is then provided with certain documents which will be submitted to the Minister and given an opportunity to make submissions. Thereafter, a report containing a recommendation is prepared by reviewing officers and sent to the Minister for a decision. The essence of the complaint of applicants in this situation is that they are never provided with an opportunity to make submissions or comments with respect to the reports that are sent to the Minister, prior to the Minister actually making a decision. Accordingly, it is not unless or until an applicant seeks leave for judicial review that they are provided an opportunity to make submissions on the reports which forms the basis of the Minister's decision.
[15] Here, the applicant maintains that he has never seen or been served with the Request for Ministerial Opinion Report or the Danger to the Public Ministerial Report. This, it is argued, constitutes a breach of the duty of fairness which requires that he be provided with the two reports and given an opportunity to respond prior to the Minister making her decision.
[16] The respondent indicates that with respect to the Minister's opinion pursuant to subsection 70(5) of the Act, reasons are required and the Request for Ministerial Opinion constitutes those reasons. It is submitted that the Minister's delegate fulfilled his duty to provide the applicant with a meaningful opportunity to present his case fully, even though the Ministerial Opinion Report and the Request for Minister's Opinion were not disclosed to him. Those two documents, it is argued, merely summarize the documents that were disclosed to the applicant and upon which the Minister's delegate might rely in arriving at his or her opinion.
[17] However, it has been my experience that often times these reports lack objectivity and fail to give proper weight to the evidence presented by the applicants. It is usually evident that, had they been made available to the applicants before the decision was made, the reports would certainly have been the subject of the applicants' comments. The fact that many cases are granted on judicial review because of the inadequacy of these reports which constitute the reasons for decision is evidence enough. A valuable and practical aspect of this duty to give applicants an opportunity to comment on the reports does not seem to have been previously mentioned by my colleagues but appears to me to be of utmost importance. When asked to decide on a motion for leave for judicial review of the Minister's opinion, a judge might not have before him the reports that constitute the reasons for decision. It is therefore likely that he or she will not be able to properly assess the respective positions of the parties and the risk of injustice is increased. Requiring that the reports be disclosed before the decision is made puts those concerns to rest.
[18] Furthermore, such an open and transparent procedure is more in keeping with the jurisprudence surrounding the duty of fairness owed by an administrative decision-maker. I believe it is fairly clear that this Court's jurisprudence now supports the requirement that the reports on which the Minister's delegate bases his opinion be given to the person who is the object of the opinion in order to give him or her the opportunity to make further submissions. In Haghighi v. Canada (Minister of Citizenchip and Immigration), [2000] 1 F.C. 854, the Federal Court of Appeal held that the duty of fairness requires that inland applicants for human and compassionate landing under subsection 114(2) of the Act be fully informed of the content of the risk assessment report made by a Post-Claims Determination Officer, and permitted to comment on it, even when the report is based on information that was submitted by or was reasonably available to the applicant (see paragraph 37 of the decision). Although the procedural vehicle used in Haghighi is different from the one used in the present case, I believe the same principles should be applied here.
[19] The Supreme Court of Canada decision in Baker v. Canada (M.C.I.) (1999), 174 D.L.R. (4th) 193, provides clear guidelines concerning the content of the duty of fairness in administrative decision-making. L'Heureux-Dube, J. stated at pp. 211-12 as follows:
| Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances. I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker. |
. . .
| . . . The role of the particular decision within the statutory scheme and other surrounding indications in the statute help determine the content of the duty of fairness owed when a particular administrative decision is made. Greater procedural protections, for example, will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted. . . |
| A third factor in determining the nature and extent of the duty of fairness owed is the importance of the decision to the individual or individuals affected. The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated. . . The importance of a decision to the individuals affected, therefore, constitutes a significant factor affecting the content of the duty of procedural fairness. |
[20] Here, there is no question that the issuance of a Minister's opinion has a profound significance to the person who is the subject of the opinion, since the Minister can then remove a person to a country in which the individual has a well-founded fear of persecution. Furthermore, there is no right of appeal from the decision; at best, an applicant may be able to obtain judicial review but only if leave is first granted. In Qazi v. Minister of Citizenship and Immigration (July 26, 2000, IMM-5317-99), Hugessen, J. made the following comments in this regard:
| I think that now, in the light of Baker and the very clear message that the Supreme Court has sent to us as to the nature of the duty of fairness in decisions which were previously thought to be wholly discretionary and have no fairness content at all or very minimal, fairness content, it is quite clear that we must view the danger opinion as being one which has serious consequences for the person who is the subject of it. It removes from that person a statutory right of appeal, open-ended, to a body which is independent, autonomous and quasi-judicial. If it replaces that right at all, it is by a right to apply for leave to seek judicial review on limited grounds and a right to apply for a wholly discretionary executive remedy under humanitarian and compassionate considerations. |
[21] Given the consequences of the decision and the limited right to review that decision, it would seem more in keeping with the principles of fairness and natural justice if an applicant was provided with the opportunity to make submissions on the reports on which the Minister's delegate bases his or her opinion. The fact that inferences may be drawn from the summary and the Applicant is not given an opportunity to refute them is contrary to the principle of natural justice. In my view, if the duty of fairness is to have any meaningful content in these types of cases, applicants should be provided with the Request for Ministerial Opinion Report and the Danger to the Public Ministerial Opinion Report and given an opportunity to make submissions on those crucial documents which in fact, form the basis of the Minister's decision, prior to any decision being made.
[22] For all of these reasons, the judicial review application is allowed and the decision of the Minister pursuant to subsection 70(5) of the Act is set aside.
JUDGE
OTTAWA, Ontario
November 30, 2000
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