Date: 20000921
Docket: IMM-5353-99
BETWEEN:
ALI SHIRAZI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The applicant seeks judicial review of a decision of W. A. Sheppit, Minister's Delegate, dated October 29, 1999, wherein he found the applicant to be a danger to the public pursuant to paragraph 53(1)(d) of the Immigration Act, R.S.C. 1985 c.I-2, as amended.
[2] The issues raised in this application are:
| i) Whether or not the decision dated October 29, 1999 should have included the reasons; |
| ii) Whether or not the "Request for Minister's Opinion" report of August 26, 1999 should have been shared with the applicant; |
| iii) Whether or not the "Request for Minister's Opinion" report, dated August 26, 1999, was deficient in failing to balance the danger posed to the public should the applicant be allowed to remain in Canada against the danger facing him should he be returned to Iran; and |
| iv) Whether or not the omission of any mention within the "Request for Minister's Opinion" report of the psychiatric report concerning the applicant was indeed a material omission. |
[3] The applicant had been the subject of a request to the Minister for a danger opinion in 1996, which was refused. However, in September 1998, the applicant was convicted of two offences. He was found guilty of possession for the purposes of trafficking, in contravention of the Controlled Drugs and Substances Act, S.C. 1996, c.19. He was also convicted for the dangerous operation of a motor vehicle under Sections 249(1)(a) and 249(2)(a) of the Criminal Code, R.S.C. 1985, c. C-46. He received an 18 month sentence of imprisonment for each of these offences. As a result of these convictions, a second request was made to the Minister for a danger opinion. That request resulted in the decision at issue in this judicial review.
[4] First, I will deal with the question of the Immigration Rule 9 correspondence of November 16, 1999. On that date, a copy of the decision stating that no reasons were given for the said decision was forwarded to both the Administrator of the Federal Court of Canada and the applicant's counsel. Pursuant to the decision of the Supreme Court of Canada in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, issued on July 9, 1999, the "Request for Minister's Opinion" document is, in my view, considered to constitute the reasons in cases such as the one before me. However, this document was not provided to the applicant until June 27, 2000, at which time the Tribunal Record was submitted to the Court. In Baker, supra, L'Heureux-Dubé J. emphasized the importance of providing reasons for a decision. She stated at page 848:
| 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, constitute 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. |
[5] There can be no doubt about the importance of this decision to this applicant. In this case, there is a statutory right to apply for leave to file an application for judicial review. It is not possible for a person to make proper submissions with respect to a decision if the reasons for the same are not made available to that person at the relevant time.
[6] Accordingly, the respondent should ensure that the reasons are provided to the applicant either at the same time as the decision is rendered or very shortly thereafter. Most importantly, reasons need to be given to the applicant in a timely manner, so that he or she has adequate time in which to file an application for judicial review. It is certainly most inappropriate that decisions such as this one are still issued without reasons despite the fact that the ruling in Baker, supra has been in effect for several months.
[7] In the case before me, the applicant did receive the reasons in time to file his further memorandum of argument. Therefore, it is my view that no remedy is required, particularly in light of my findings in this matter.
[8] There has been a split on this Court concerning whether or not the "Request for Minister's Opinion" report should be shared with the applicant at the time it is issued. In my view, since the "Request for Minister's Opinion" report is considered to constitute the reasons, it would be wholly inappropriate to submit the request in advance of the decision. The applicant could then make even more submissions, which would result in a never ending exchange of submissions and requests for Minister's opinions. There are cases that have ruled to the contrary, such Bhagwandass v. Canada (M.C.I.), [2000] 1 F.C. 619 (T.D.), and Andino v. Canada (M.C.I.), [2000] F.C.J. No. 1023 (T.D.). However, in those two cases, the "Request for Minister's Opinion" reports were considered to be summaries rather than reasons. I do not see how these reports can be considered to be summaries if they are also considered to be reasons. I do not agree with counsel for the applicant that because these are inferred reasons, they should somehow be treated differently. Nor does the fact that the decision-maker is not the author of the reasons change my view on this issue.
[9] There is one very important fact within which the issues in this case are to be considered, i.e., the risk to the applicant if he is returned to Iran is probably higher than in virtually any other case before this Court. His mother and father were members of the Komala Party, an opposition party in Iran, and were both tried, in absentia, and sentenced to death. Two letters from the United Nations High Commissioner for Refugees Office in Canada indicate the high level of risk to Mr. Shirazi should he be returned to Iran. These letters were dated October 10, 1996, and December 8, 1998 respectively. The latter advised that the applicant's "life and liberty would be at risk in Iran".
[10] I am prepared to return this matter to the Minister for reconsideration because of the failure of the Minister to balance the danger to the public against the danger to the applicant. The Federal Court of Appeal decided in Suresh v. Canada (M.C.I.), [2000] 2 F.C. 592 (C.A.) that the Court must require careful balancing. Robertson J.A. stated at 679-680:
| [147] It will be recalled that paragraph 53(1)(b) of the Immigration Act provides that the prohibition against refoulement of a Convention refugee is not applicable if that person is found to fall within an inadmissible class prescribed by section 19 and the "Minister is of the opinion that the person constitutes a danger to the security of Canada." It will also be recalled that the parties are agreed that in addressing that issue the Minister is obligated to assess the risk of torture facing the appellant upon his return to Sri Lanka. Specifically, it is agreed that the Minister must determine whether "there are substantial grounds for believing that he would be in danger of being subjected to torture". This is the same threshold test set out in Article 3 of the international Convention Against Torture to which Canada is a signatory. If, however, the person to be "refouled" is unable to establish that there are substantial reasons for believing that he or she is exposed to a risk of torture then section 7 of the Charter is not engaged and the Minister need only be concerned with whether the person constitutes a danger to the security of Canada. As is obvious, a determination as to whether a person constitutes a security risk bears no relationship to whether that person would be exposed to the risk of torture upon refoulement . Thus, a third finding may be required if the Minister determines that refoulement raises the risk of torture and the person would otherwise constitute a danger to the security of Canada. The Minister must now balance the security risk against the personal risk of torture. If the latter outweighs the former then the Minister must refrain from issuing an opinion letter under paragraph 53(1)(b). |
[11] Counsel for the respondent agrees that the Suresh test requiring balancing was necessary in considering whether someone is a danger to the public. At pages 686-687 of Suresh, supra, Robertson J.A. quoted the Minister's representative at length, wherein the representative balanced the danger to the security of Canada against the danger to the applicant. In the case before me, there is no such analysis. Counsel for the respondent submits that I should find that there was implicit balancing because of the fact that the vast majority of the "Request for Minister's Opinion" report deals with the risk to the applicant. However, a case as serious as this one requires more analysis than that provided by an implicit balancing. This case differs in significant ways from that of Williams v.Canada (M.C.I.), [1997] 2 F.C. 646 (C.A.) which did not involve risk to the applicant. Accordingly, I find that the Minister erred in failing to properly balance between the danger to the public and the danger to the applicant.
[12] With respect to the final issue, the lack of reference to the psychiatric report in the "Request for Minister's Opinion" report is not material in the context of all the facts of this case. It would certainly be preferable if the Minister's delegate had reviewed the report, but I would not have sent the decision back on that ground alone.
[13] I have not dealt with the issues with respect to sections 7 and 12 of the Charter, as I am returning this matter to the Minister. It was also agreed that a question would not have to be certified if the matter was decided upon the four issues that I have considered here. Accordingly, no question will be certified.
[14] The application for judicial review is allowed. The matter is returned to the Minister for reconsideration in a manner not inconsistent with these reasons.
"W.P. McKeown"
JUDGE
Ottawa, Ontario
September 21, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: ALI SHIRAZI |
Applicant
- and -
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 21, 2000
| APPEARANCES BY: Mr. Lorne Waldman |
For the Respondent
| SOLICITORS OF RECORD: Jackman, Waldman & Associates |
Barristers and Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000921
Docket: IMM-5353-99
BETWEEN:
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
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