Shankaran v. Canada, docket IMM-2964-96

     IMM-2964-96

BETWEEN:

     VIMAL RAJESH SHANKARAN,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

PINARD J.

         This is an application for judicial review pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2, (the "Act") of a decision of a delegate of the Minister of Citizenship and Immigration dated July 30, 1996, wherein the Minister rendered an opinion that the applicant constitutes a danger to the public, pursuant to subsection 70(5) of the Act.

         The applicant was born in Lautoka, Fiji on October 3, 1967. He immigrated to Canada with his mother and father on December 6, 1981, and was granted landing at that time. The applicant does not have Canadian citizenship.

         On March 5, 1996, Immigration Officer H.N. Long completed a "Section 27 Highlights Report" which summarized the violations committed by the applicant, as well as the applicant's personal circumstances. The Immigration Officer then made the following recommendation:

I am recommending inquiry action and further recommend that this case be referred to the Minister for her opinion that the subject poses a danger to the public in Canada. He has amassed a substantial criminal record which is comprised almost totally of violent actions against his victims.

         Also on March 5, 1996, a Report under section 27 of the Immigration Act was issued by the same Immigration Officer, alleging the applicant to be a person described in paragraphs 27(1)(d)(i) and 27(1)(d)(ii) of the Act, that is a permanent resident in Canada who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of more than six months has been imposed, and a permanent resident convicted of an offence for which a term of imprisonment of five years or more may be imposed.

         By letter dated March 5, 1996 and received by the applicant on or about March 12, 1996, the applicant was served with a Notice of Intention to seek the opinion of the Minister of Citizenship and Immigration, pursuant to subsection 70(5), that he was a danger to the public in Canada. The letter advised the applicant of the documents that would be provided to the Minister for consideration, and included these documents as attachments. The list of documents included is a follows:

         - Section 27(1) Report

         - Section 27(1) Highlights Report

         - Record of Landing

         - Citizenship letter

         - Criminal Profile Report dated 17-02-95

         - Pre-Sentence Report dated 16-01-95

         - Judges Sentencing Remarks

         - Warrants of Committals/Conviction documents

         The letter further informed the applicant that the consequence of such an opinion being rendered against him would be to remove his right of appeal to the IAD under subsection 70(1) of the Act, and advised him that he had 15 days from receipt of the letter within which to forward any representations, arguments, information or other documentary evidence militating against the issuance of such an opinion by the Minister or her delegate, including any humanitarian and compassionate considerations.

         By letter dated April 18, 1996, counsel for the applicant requested an extension of time in which to file submissions, and further asked for "full disclosure of all information and documents that you have, or will consider in your submission to the Minister". On April 23, 1996, counsel for the applicant received a fax from H.N. Long which stated the following:

REF: VIMAL RAJESH SHANKARAN

I CAN CONFIRM YOU HAVE RECEIVED A COMPLETE DUPLICATE PACKAGE IDENTICAL TO THAT WHICH WILL BE SUBMITTED TO THE MINISTER. WHEN YOUR SUBMISSION IS RECEIVED IT WILL BE REVIEWED AND A FINAL SUMMARY PREPARED FOR THE MINISTER. IF A DECISION IS MADE NOT TO PROCEED WITH THE SUBMISSION TO THE MINISTER YOU AND YOUR CLIENT WILL BE NOTIFIED. A COPY OF ANY SUBMISSION/FINAL REPORT WILL BE SENT TO YOU FOR REVIEW.

(My emphasis.)

         On May 13, 1996, applicant's counsel forwarded documents and submissions to the attention of the Canada Immigration Centre for the Minister's consideration in determining whether the applicant constitutes a danger to the public.

         On July 30, 1996, the Minister of Citizenship and Immigration, by her delegate, rendered an opinion pursuant to subsection 70(5) of the Act that the applicant constitutes a danger to the public in Canada. The applicant was personally served with this decision on July 31, 1996.

         The applicant was not provided with a copy of any submission or final report from Canada Immigration for his review prior to the rendering of the decision.

         In my view, the Federal Court of Appeal's decision in Williams¹ effectively disposes of all but one of the arguments raised by the applicant on this application, that being the "legitimate expectations" argument.

         In the present case, the applicant submits that the written representations made to his counsel by Immigration Officer H.N. Long on April 23, 1996, created a "legitimate expectation" that he would be given an opportunity to review and respond to any submissions or reports made to the Minister by local immigration officers before the Minister made her decision on the issue of dangerousness.

         Although it is acknowledged in the Williams decision that the respondent therein was not provided with a copy of the Ministerial Opinion Report prior to the issuance of the danger opinion, and was accordingly not given the opportunity to respond thereto, the issue of "legitimate expectations" was not before the Federal Court of Appeal. Indeed, in that case, there had been no promise by any public authority that a copy of the said Ministerial Opinion Report would be sent to Williams prior to the issuance of the Minister's Opinion. In the case at bar, however, it is clear to me, from the evidence, that Immigration Officer H.N. Long did in fact indicate to applicant's counsel by fax dated April 23, 1996 that before proceeding with the submission to the Minister "a copy of any submission/final report will be sent to you for review" and that this promise was not fulfilled.

         The doctrine of "legitimate expectation" has been well explained in the decision of Attorney General of Hong Kong v. Ng Yuen Shiu², which was in turn referred to by the Federal Court of Appeal in Canada (ME.I.) v. Bendahmane³. Hugessen J.A., writing for the majority, stated the following, at pages 31 and 32:

The applicable principle is sometimes stated under the rubric of "reasonable expectation" or "legitimate expectation". It has a respectable history in administrative law and was most forcefully stated by the Privy Council in the case of Attorney-General of Hong Kong v. Ng Yuen Shiu, [1983] 2 A.C. 629 (P.C.). In that case, Ng was an illegal immigrant to Hong Kong form Macau, one of several thousands. The Government gave a public assurance that each illegal immigrant would be interviewed and each case treated on its merits. Notwithstanding this, Ng, whose illegal status was not in dispute, was ordered deported without being given the opportunity to explain why discretion should be exercised in his favour on humanitarian and other grounds. The Privy Council held that in so acting the authorities had denied Ng's reasonable expectations based upon the Government's own statements. Lord Fraser of Tullybelton put the matter thus (at page 638):

. . . when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. The principle is also justified by the further consideration that, when the promise was made, the authority must have considered that it would be assisted in discharging its duty fairly by any representations from interested parties and as a general rule that is correct.

In the opinion of their Lordships the principle that public authority is bound by its undertakings as to the procedure it will follow, provided they do not conflict with its duty, is applicable to the undertaking given by the Government of Hong Kong to the applicant, along with the other illegal immigrants from Macau, in the announcement outside the Government House on October 28, that each case would be considered on its merits.

In my view, the quoted passage is applicable in every respect to the matter at bar. The Minister had promised to give consideration to the respondent's claim for refugee status. While such consideration is not specifically provided for in the statute, there is nothing to prohibit it and the Minister has, in fact, considered other claims for refugee status by persons for whom the statutory procedure was not available. For the Minister to consider the respondent's claim would not conflict with his statutory duty.

It follows, in my view, that the Trial Judge was right to order the Minister to consider the application for refugee status.

(My emphasis.)

         Here, it does not appear that giving effect to the Immigration Officer's promise would conflict or interfere with a statutory duty of the Minister, nor that the Immigration Officer was not entitled to make such a representation. Under such circumstances, it certainly seems unfair that the Immigration Officer would not honour his promise to the applicant. In my view, such a breach of procedural fairness warrants the intervention of this Court (see Soung Rae Kim and the Minister of Citizenship and Immigration (March 5, 1997), IMM-154-96, IMM-155-96 (F.C.T.D.) and Ibraham v. Canada (M.C.I.) (November 29, 1996), IMM-766-96 (F.C.T.D.)).

         For the reasons set out above, the decision under review will be quashed, and the matter returned for reconsideration in accordance with these reasons.

         I agree with counsel for the parties that this not a matter for certification pursuant to subsection 18(1) of the Federal Court Immigration Rules, 1993.

OTTAWA, Ontario

May 7, 1997

                                

                                         JUDGE

__________________

     ¹      Minister of Citizenship and Immigration v. Jeffrey Hugh Williams (April 11, 1997), A-855-96, overturning IMM-3320-95, October 29, 1996 (F.C.T.D.).

     ²      [1983] 2 A.C. 629.

     ³      [1989] 3 F.C. 16 (F.C.A.).