Date: 20000915
Docket: IMM-5756-99
IMM-5757-99
BETWEEN:
MASOOD JAN
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.:
[1] The applicant seeks judicial review of the September 2, 1999 decision of W.A. Sheppit, Minister's Delegate, wherein he found the applicant to be a danger to the public pursuant to paragraph 53(1)(d) and subsection 70(5) of the Immigration Act, R.S.C. 1985 c.I-2. By Order of the Court, Court File No. IMM-5757-99 and Court File No. IMM-5756-99 were heard together and I note that these reasons apply to both of these files.
[2] The applicant alleges three breaches of natural justice. First, he alleges that he was given incorrect information regarding the time limit within which he was required to respond to the Minister's request for submissions. Second, he questions the adequacy of the reasons. Third, he argues that the summary documents should have been disclosed to him prior to the decision being made.
[3] The applicant submits that he was denied natural justice when he was allegedly informed by an immigration officer that there was no flexibility in the requirement to respond to the Minister's request for submissions within 15 days. However, the statement in the affidavit of the applicant is not clear enough to warrant a finding that there was a breach of natural justice. The applicant was served with a letter, dated May 17, 1999, notifying him that the Department of Citizenship and Immigration would be seeking the Minister's opinion as to whether or not Mr. Jan posed a danger to the Canadian public. The applicant states that the person who delivered this Notice told him that he could not obtain an extension of the 15 day time limit. The applicant describes the person as an immigration officer and states at paragraph 3 of his affidavit:
| I was told that I could request an extension of time only if I was in a hospital or there was an emergency. I told the officer (when he gave me the documents) that I did not know what was going on, that I was not sure that I could understand the documents because I could not read English that well and that I should be given at least a month or so to hire a lawyer. The officer told me I only had this time (that is: 8 business days) and that this was the way it goes. |
This is the only evidence we have in this respect.
[4] The applicant goes on to describe the difficulties of hiring a lawyer while in jail. However, the fact is that he did not seek an extension of time. Instead, he made submissions on May 31, 1999, 14 days after he received the Notice from Citizenship and Immigration. At that time, the applicant could have made attempts to contact a lawyer and proceed, but he took no further action. The Minister's decision was made three and one-half months later, on September 2, 1999. In the circumstances of this case, I do not see any breach of natural justice. The respondent has the responsibility to take steps to get a lawyer or other assistance in these types of cases.
[5] Under normal circumstances, 15 days is an adequate amount of time for a person to respond to a Notice such as the one Mr. Jan received on May 17, 1999. However, some consideration should be given to provide additional response time to inmates. Nevertheless, I find no denial of natural justice on the facts before me.
[6] The applicant submits that the respondent should have provided him with the summary documents which were submitted to the Minister prior to the decision being rendered. This Court has been split on this matter following the decision of the Supreme Court of Canada in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817. In Bhagwandass v.Canada (M.C.I.), [2000] 1 F.C. 619 (T.D.), Gibson J. describes such documents as summary documents when he states at paragraph 29:
| [29] 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 respond to them. Arguably at least, and indeed counsel for the applicant did so argue before me, these documents do not present a balanced summary. |
[7] I agree with Gibson J. that these two documents comprise what used to be called "summary documents". However, as I stated in Siavashi v. Canada (M.C.I.), [2000] F.C.J. No. 1132 (T.D.), as a result of Madame Justice L'Heureux-Dubé's decision in Baker, supra, these documents now constitute the reasons for decision in such cases as the one before me.
[8] Gibson J. and others on the Court have stated that these documents are summaries that therefore should be forwarded to the applicant. I cannot agree. If such summaries have to be forwarded to the applicant, it follows that the applicant would then be allowed to make further submissions in response to the summary documents. There would then be a further summary, resulting in a never-ending series of summaries and responses. As I stated in Siavashi, supra, at paragraph 10:
| The failure to disclose the summary report will only cause a problem if new facts were included in the summary which were not known to the Applicant. This is not the situation in this case. |
[9] The applicant also submits that there should have been balancing between the danger to the public and the danger to the applicant. In my view, on the circumstances of this case, there was an adequate balancing in the summary report or reasons. The Federal Court of Appeal, in Suresh v.Canada (M.C.I.), [2000] 2 F.C. 592 (C.A.), determined that a Ministerial report provided adequate reasons because it addressed the three main issues that the Minister had to consider in deciding whether or not the applicant in that case constituted a danger to the Canadian public. In the case before me, the report considers whether the applicant's criminal convictions in Canada warrant that he be classified as a danger to the Canadian public. It also considers if the applicant would be exposed to risk if returned to Afghanistan. Finally, the report considers whether the danger to Canada outweighs the interest of the applicant. The report concludes by stating:
| From the above, subject may be at risk upon return to Afghanistan; however, the danger to the Canadian public outweighs any risk he may face. |
In my view, the foregoing constitutes adequate balancing in the context of the facts of this case.
[10] The application for judicial review is dismissed.
[11] I am prepared to certify the question proposed by the applicant as a question of general importance. The question reads:
| Do both reports constitute reasons which do not have to be shared with the subject of a danger opinion, or are they considered to be summaries that have to be disclosed to the subject of a danger opinion prior to a decision under subsection 70(5) and 53, assuming reasons are necessary? |
"W.P. McKeown"
JUDGE
Ottawa, Ontario
September 15, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: MASOOD JAN |
Applicant
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| DATE OF HEARING: THURSDAY, AUGUST 17, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: McKEOWN J. |
DATED: September 15, 2000
| APPEARANCES BY: Mr. Michael Crane |
For the Respondent
| SOLICITORS OF RECORD: Jackman, Waldman & Associates |
Barristers and Solicitors
166 Pearl Street, Suite 200
Toronto, Ontario
M5H 1L3
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000915
Docket: IMM-5756-99
BETWEEN:
Applicant
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
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