Date: 20000203
Docket: IMM-787-98
BETWEEN:
KWOK WAI IP
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DUBÉ J.:
[1] This application for judicial review attacks the opinion of the Minister"s delegate dated December 18, 1997, to the effect that the applicant constitutes a danger to the public in Canada pursuant to subsection 70(5) of the Immigration Act ("the Act").
FACTS
[2] The applicant, born in China on October 18, 1956, came to Canada on February 27, 1988, claimed Convention refugee status and was granted permanent resident status as a "backlog refugee" on August 26, 1991.
[3] On April 8, 1993, he was convicted of kidnapping with intent to hold for ransom contrary to subsections 279(1) and 279.1(2) of the Criminal Code and was sentenced to fourteen years imprisonment.
[4] On February 26, 1996, the Minister"s delegate formed the opinion that the applicant constituted a danger ("the First Opinion"). Prior to the First Opinion, counsel for the applicant requested an extension of time within which to reply to the Notice of Intention to Seek an Opinion but the applicant was not favoured with a response to his request. Consequently, on September 26, 1997, Madame Justice Reed of this Court set aside the First Opinion on the ground that the failure to respond to the request for an extension of time constituted a breach of natural justice.
[5] On October 10, 1997, the applicant was issued a second Notice of Intention inviting him to make his submissions, which he did. On December 18, 1997, the Minister"s delegate issued his opinion that the applicant was a danger to the public ("the Second Opinion").
ISSUES
[6] The parties raised these several issues:
| 1. Was the Minister or her delegate rendered functus by the decision of this Honourable Court dated September 26, 1997, setting aside the First Opinion? |
| 2. Was a reasonable apprehension of bias raised by the Minster or her delegate forming a second opinion that the applicant is a danger to the public in Canada? |
| 3. Was the Minister or her delegate"s Opinion that the applicant is a danger to the public in Canada perverse? |
| 4. Do the principles of natural justice require the Minister to identify the specific document she will rely upon in forming her Opinion? |
| 5. What is the applicability of the Supreme Court of Canada case Baker v. Canada (M.C.I.)1? |
ANALYSIS
[7] I will deal with these issues as follows.
1. Functus Officio
[8] The applicant submits that, as a result of the Order of Madame Justice Reed, the Minister and her delegate are functus officio with reference to rendering a Second Opinion on the same facts. In her decision, the learned judge did not refer the First Opinion back for determination in accordance with such directions as it considers appropriate under paragraph 18.1(3)(b) of the Federal Court Act, but simply set aside the decision. The applicant claims that there is no statutory provision for a re-hearing on this matter.
[9] I agree that the Minister and her delegate were functus officio with respect to the First Opinion. However, there was nothing in Reed, J"s Order or at law that would preclude the Minister or her delegate from exercising the Minister"s discretionary authority with respect to the applicant on subsequent occasions. The Second Opinion was issued as a result of a second request advising the applicant of the intention to seek the Minister"s opinion and counsel for the applicant provided written submissions in response to that second request. In my view, while the Minister and her delegate were functus officio with respect to the First Opinion, they were not with respect to the Second Opinion.
2. Bias
[10] The applicant argues that the fact the same individual reconsidered the First and the Second Opinions gives rise to a reasonable apprehension of bias, as it may be perceived to be unlikely that the Minister"s delegate would deviate from his first decision.
[11] In my opinion, the mere fact that the same person acted as a delegate on both opinions does not ipso facto give rise to a reasonable apprehension of bias. Under section 121 of the Act, the Minister may authorize a person employed in the Public Service of Canada to exercise any of the powers required to be exercised by the Minister. In other words, if it were not the Minister"s delegate who would act, it would be the Minister herself. There is no question that another Minister would have to act in her stead in a second opinion dealing with the same applicant.
[12] As a general principle, the mere fact that a tribunal member sits on a re-hearing of a matter which he previously heard and decided does not by itself give rise to a reasonable apprehension of bias2. There must be some other basis for arguing a reasonable apprehension of bias. The member is no more biassed on the second hearing than he was on the first one.
[13] The issuance of a danger opinion is not a judicial or quasi-judicial decision but a discretionary administrative decision which must be made in good faith and based on perceived probabilities of risk and acceptability of that risk. Of course, as a result of the Supreme Court"s landmark decision in Baker v. Canada (Minister of Citizenship and Immigration) , requirements of fairness in such decisions are no longer "minimal" as held earlier in Williams v. Canada3. However, it is not unfair on the part of the Minister to delegate her authority to the same person for a second opinion.
3. Perverse Finding
[14] The applicant claims that since his criminal record arises from one sole incident that occurred on February 9, 1992, the issue to be decided by the Minister"s delegate is not whether the applicant posed a danger to the Canadian public at the time the offence was committed but at the time the Second Opinion was formed and in the future. The Federal Court of Appeal in the Williams decision endorsed the view of Mr. Justice Gibson in Thompson v. Canada (Minister of Citizenship and Immigration)4, to the effect that "danger" must be taken to refer to a "present or future danger to the public".
[15] The applicant acknowledges that one criminal offence may be sufficient to find that the offender poses a danger to the public but it must be considered in the light of the surrounding circumstances. In the case at bar, the applicant was in the community prior to his sentencing for a period of about one year, without any breaches to his release conditions. During his incarceration, he consistently impressed the Correctional Services of Canada. He was considered to be a low public safety concern and was classified as a minimum security risk. He was even referred to as a "square john".
[16] The evidence from the Correctional Services of Canada placed before the Minister"s delegate indicates that the applicant has accepted "full responsibility for his crime and is very remorseful for his participation in it". The Correctional Services of Canada also writes that the applicant "shows a tremendous sense of remorse and self blame and also, feelings of guilt towards his family members and the victim"s family".
[17] On the other hand, the respondent points out that the applicant committed a violent crime for which he was convicted to fourteen years imprisonment when he had just become a permanent resident in Canada. The applicant admitted that he committed the crime for greed, as he needed the money to return to Hong Kong to visit his parents. Since the applicant"s family in Canada and his connections in the community did not act as a deterrent in the past, there is no reason for the Minister or her delegate to conclude that these factors would be a significant factor in the future.
[18] It is trite law that the mere fact that a Court or other decision-makers may weigh certain factors differently and come to a different conclusion does not make the Minister"s opinion perverse or capricious. Unfortunately, without the benefit of reasons, we do not know how the Minister"s delegate came to his conclusion. So the Court does not know if the decision was reasonable under the circumstances. More about this under the heading "Written Reasons".
[19] Thus, in the absence of written reasons, I cannot find whether or not the Minister"s delegate acted in bad faith or based his decision on irrelevant criteria or evidence, or without regard to the material. I accept that the standard of review in the context of this type of an administrative decision-making process is the one stipulated by L"Heureux-Dubé, J., in the Baker decision with reference to a decision under subsection 114(2) of the Act: not patent unreasonableness but "reasonableness simpliciter".
4. Documentary Evidence
[20] The applicant submits that the Minister offended principles of natural justice and procedural fairness by failing to identify specifically or to provide to the applicant copies of the documentary evidence considered by the decision-maker. The notice to the applicant refers to recent and current country information available at the Immigration and Refugee Board Documentation Centres, including the "Human Rights Package", the "Contextual Package", the "Indexed Media Review" and the "Weekly Media Review".
[21] The applicant submits that failure to provide specific evidence, or at least to identify the documents in question burdened the applicant"s counsel with the review of a voluminous documentary evidence in a short period of time. It forced him to respond to some of the documents which may have been at the Documentary Centre at one time but, were not there any longer. These obligations imposed an unfair burden upon him.
[22] However, in Tam Van Chu v. Canada5, the Federal Court of Appeal held that where a claimant is advised that the CIC will be relying on "the most recent and current country information available at the Immigration and Refugee Board Documentation Centres", the duty of fairness does not require anything more.
5. Written Reasons
[23] The Federal Court of Appeal in the Williams decision held that a Minister"s opinion, pursuant to subsection 70(5) of the Act, does not require written reasons, either under the Canadian Charter of Rights and Freedom or pursuant to principles of fairness. However, in the recent Baker decision, the Supreme Court of Canada held that within the context of an administrative procedure involving a discretionary decision by an immigration officer dealing with applications pursuant to subsection 114(2) of the Act (compassionate or humanitarian considerations), reasons were required "in certain circumstances".
[24] On behalf of the Supreme Court, L"Heureux-Dubé, J. referred to the Williams decision and commented as follows with reference to the provision of reasons:
| In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion, constitutes one of the situations where reasons are necessary. The profound importance of an H & C decision to those affected, as with those at issue in Orlowski, Cunningham, and Doody, militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached. |
| [Baker v. Canada (Minister of Citizenship and Immigration) |
[25] I agree with the applicant that written reasons may be no less a requirement in the context of a danger opinion made pursuant to subsection 70(5) of the Immigration Act. This is clearly a case where a decision has enormous significance for the individual and is extremely critical to his future. The applicant will leave behind a wife and a child in Canada and face presumably hostile Chinese authorities from whom he fled to become a refugee here. Under these specific circumstances there was an obligation upon the Minister"s delegate to explain why his decision, based solely on one crime, seems to have totally ignored the present day evidence which suggests that the applicant is no longer a danger to the public.
[26] In Suresh v. Canada (Minister of Citizenship and Immigration)6, a very recent decision of the Federal Court of Appeal, counsel for the Minister did not dispute the proposition that written reasons are required. However, the parties disagreed on the adequacy of the reasons provided by the Minister (a memorandum prepared by departmental analyst Gautier). Addressing that very issue, the Court stated that "the adequacy of these reasons is a matter which can be properly raised on a judicial review application to the extent that those reasons do not reflect consideration of relevant factors".
[27] In the case at bar, there are no written reasons from the Minister of her delegate. Counsel for the Minister argued that no written reasons are necessary in this case pursuant to the Baker decision as "a Danger Opinion does not violate the Charter and is not a decision with significant consequences for the person with respect to whom the opinion is issued". Alternatively, he argued that if there is a duty to provide reasons, which the Minister expressly denies, then the "Request for the Minister's Opinion" meets the requirements set out in Baker.
[28] Thus, in Baker, the Supreme Court found that the notes of Officer Lorenz were adequate. The Federal Court of Appeal in Suresh followed suit and accepted the memorandum of Mr. Gautier as sufficient.
[29] I have perused both documents. The Lorenz notes, a two page type written document, deals in some detail with the case history of Mavis Pauline Baker from her entry in Canada on August 8, 1981, and comes to these conclusions:
| This case is a catastrophy. It is also an indictment of our "system" that the client came as a visitor in Aug. 381, was not ordered deported until Dec. 392 and in APRIL 394 IS STILL HERE. |
| The PC is a paranoid schizophrenic and on WElfare. She has no qualifications other than as a domestic. She has FOUR CHILDREN IN JAMAICA AND ANOTHER FOUR BORN HERE. She will, of course, be a tremadous[sic] strain on our social welfare systems for (probably) the rest of her life. There are no H & C factors other than her FOUR CANADIAN-BORN CHILDREN. Do we let her stay because of that? I am of the opinion the Canada can no longer afford this type of generosity. However, because of the circumstances involved, there is a potential for adverse publicity. I recommend refusal but you may wish to clear this with someone at Region. |
| There is also a potential for violence - see charge of "assault with a weapon" |
[30] The Gautier memorandum is a substantial eight page document dealing with issues, background, considerations and recommendation. Under the heading Recommendation, the author recapitulates the reasons for his recommendation as follows:
| Mr. Suresh is a senior member of an organization linked to the LTTE, which has committed heinous acts of violence directed at innocent civilians, including rape, torture, and murder. There are also strong indications that the LTTE has committed war crimes and crimes against humanity during its ongoing insurgency against the Government of Sri Lanka, which has endured for over 20 years at the cost of 50,000 lives. Although Mr. Suresh is not known to have personally committed any acts of violence either in Canada or Sri Lanka, he headed an organization in Canada which has raised significant funds for the LTTE. This financial assistance has greatly contributed towards extending a civil war which has devastated the island nation, thereby undermining the peace process. |
| To allow Mr. Suresh to remain in this country and continue his activities runs counter to Canada's international commitments in the fight against terrorism. Canada must not be viewed by members of terrorist organizations as a sanctuary, harbouring individuals who seek to destabilize democratic governments with whom this country has enjoyed a long standing association and partnership. |
| A review of this case reveals that, on balance, there are insufficient humanitarian and compassionate considerations present to warrant extraordinary consideration. It is difficult, however, to assess the treatment reserved for Mr. Suresh upon his return to Sri Lanka. Given his high profile in the Canadian Tamil Community and international media, we feel that this will likely mitigate any harsh sanctions taken against him by Sri Lankan authorities. Furthermore, while we acknowledge that there is a risk to Mr. Suresh on his return to Sri Lanka, this is counterbalanced by the serious terrorist activities to which he is a party, committed while abusing Canada's protection and freedoms. |
| However, given the non-violent nature of his activities on Canadian territory, every effort will be undertaken to ensure that he is removed to a third country if possible. In the event that no other jurisdiction is willing to accommodate Mr. Suresh, CIC officials will undertake his removal to Sri Lanka. |
| Therefore, in light of the information set out above, I recommend that you agree, pursuant to subsection 53(1)(b), that Mr. Suresh, a Convention refugee, constitutes a danger to the security of Canada. |
| If you agree, please sign the document attached at Appendix J. |
[31] In contrast, the Request for the Minister's Opinion in the instant case is merely a one page skeleton report dealing briefly in the first full paragraph with the kidnapping sentence and Reed J's decision. The second (and last) full paragraph titled Reviewing Officer's Comments reads as follows:
| REVIEWING OFFICER'S COMMENTS |
| I have carefully reviewed the notification letter, the supporting documents identified in this notice and the Ministerial Opinion Report prepared by the CIC as well as the submission presented by the client. The foregoing documents comprise the entirety of the material provided to the Minister's Delegate in support of the request that he form an opinion that Kwok Wai IP constitutes a danger to the public pursuant to subsection 70(5) of the Immigration Act. |
[32] It seems obvious to me that this flimsy report cannot, by any stretch of the imagination, be accepted as adequate reasons reflecting the relevant factors involved in this matter. As the Supreme Court stated in Baker, "it would be unfair for a person subject to a decision such as this one which is so critical to [his] future not to be told why the result was reached".
[33] Consequently, on the specific ground of failure to give adequate reasons in this case, the opinion of the Minister is quashed and set aside and the matter is referred back to the respondent for redetermination in accordance with these reasons.
[34] The applicant has submitted four questions of general importance to be certified. The respondent has submitted one which is clearly related to the applicant"s fourth question. The questions of the applicant are as follows:
| 1. Does the respondent breach the duty of fairness owed to the person against whom a danger to the public in Canada opinion is reached pursuant to subsection 70(5) of the Immigration Act if a "Request for Minister"s Opinion" summary report and a "Danger To The Public Ministerial Opinion Report", or equivalents substantially similar to those at issue in this matter, form part of the materials put before the respondent"s delegate who issues the opinion and those reports have not been shared with the person affected and that person has not been given a reasonable opportunity to respond, or if he or she has, the response is not also put before the respondent"s delegate without further analysis or commentary?7 |
| 2. In light of the decision of the Supreme Court of Canada in Baker v. M.C.I. (1999) File No. 25823, is the standard of judicial review of an opinion of the Minister"s delegate under s. 70(5) of the Immigration Act now "reasonableness simpliciter " as opposed to whether or not the opinion was reasonably open to the decision maker as per Williams v. M.C.I. [1997] 2 F.C. 646? |
| 3. In light of the decision of the Supreme Court of Canada in Baker v. M.C.I. (1999) File No. 25823, and in particular, the court"s disagreement with the holding of the Federal Court of Appel in Shaw v. M.C.I. (1994) 170 N.R. 238 (F.C.A.), is the duty of fairness owed to an individual in an opinion reached pursuant to subsection 70(5) of the Immigration Act simply "minimal" per Williams v. M.C.I. [1997] 2 F.C. 646? |
| 4. In light of the decision of the Supreme Court of Canada in Baker v. M.C.I. (1999) File No. 25823, are written reasons required by the decision maker for an opinion pursuant to subsection 70(5) of the Immigration Act? |
[35] The question of the respondent is:
| Does the duty of procedural fairness require the provision of written reasons for a Minister"s opinion under subsection 70(5) of the Immigration Act ? If so, is this requirement satisfied by the provision to the applicant of the "Request for Minister"s Opinion?" |
[36] It is very likely that some or all of these questions will have already been answered by the Court of Appeal following other certifications by this Court. In any event, all five questions are certified as being of general importance pursuant to subsection 83(1) of the Act.
OTTAWA, Ontario
February 3, 2000
Judge
__________________
1 [1999] S.C.C., File No. 25823QL.
2 Gertrude Arthur v. Minister of Employment and Immigration, [1993] 1 F.C. (C.A.) 94.
3 (1997), 212 N.R. 63 (F.C.A.).
4 August 16, 1996, IMM-107-96, (F.C.T.D.).
5 [1998] F.C.J. No. 564 (F.C.A.).
6 [2000] F.C.J. No. 5, at p. 55.
7 The two documents in question appear at pages 2, 3, 5 and 6 of the Court Record.
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