Nguyen v. Canda (Citizenship and Immigration), docket IMM-1683-96

                                 IMM-1683-96

BETWEEN:

     DUC LUC NGUYEN

                                 Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                 Respondent.

     REASONS FOR ORDER

GIBSON J.:

     These reasons arise out of an application for judicial review of a decision reached on behalf of the Respondent, pursuant to subsection 70(5) and subparagraph 46.01(1)(e)(iv) of the Immigration Act,¹ that the Respondent is of the opinion that the Applicant constitutes a danger to the public in Canada. The decision is dated the 23rd of April, 1996 and was communicated to the Applicant on the 2nd of May, 1996.

     The factual background may be briefly summarized as follows. The Applicant was born in South Vietnam on the 5th of December 1958 and is a citizen of Vietnam. He went into hiding in 1978 when he was conscripted to serve in the Vietnamese army which was then involved in fighting in Cambodia. He managed to escape from Vietnam by boat with his younger sister and brother in June of 1982.

     The Applicant and his siblings spent time in a refugee camp in Hong Kong. They applied for resettlement in Canada and were landed in Canada on the 30th of November 1983.

     In late December of 1986, the Applicant began to exhibit "agitation and bizarre behaviour". He was hospitalized. On discharge his diagnosis was "acute psychotic episode with depression". In July of 1995, he was determined to be suffering from "a major mental illness called schizophrenia".

     The commencement of the Applicant's series of criminal convictions coincided with the onset of his mental illness. Most of his criminal convictions were for offences of mischief and "theft under" but he was also convicted of break and enter, uttering threats, obstructing justice and, on three occasions, assault. His longest sentences of incarceration were for 3 months in 1989, 4 months in 1991 and sixty days in 1995.

     A conditional removal order was made against the Applicant. He initiated a Convention refugee claim based on his fear of returning to Vietnam. He also commenced an appeal to the Immigration Appeal Division of the Immigration and Refugee Board against the conditional removal order.

     On the 22nd of November, 1995, the Applicant was advised that the Respondent was considering issuing a danger opinion against him and he was invited to make submissions. Documentation that the Respondent proposed to rely on was provided to him. He was also advised that the Respondent would assess the risk the Applicant would face upon return to Vietnam and to this end would consider "...Country Reports on Human Rights Practices for 1994 and other publicly available documentary material..."

     Counsel for the Applicant raised a substantial range of issues for consideration on this application for judicial review. At the opening of the hearing before me, by reason of the decision of the Federal Court of Appeal in The Minister of Citizenship and Immigration v. Williams², counsel conceded that the range of issues open for argument was somewhat narrowed. However, there remained the issues of reliance on extrinsic evidence and irrelevant considerations and of discrimination on the basis of a prohibited ground contrary to section 15 of the Canadian Charter of Rights and Freedoms.³ My conclusion regarding the issue of reliance on extrinsic evidence and irrelevant considerations was determinative of the application. In the result, the Charter issue was not argued before me.

     In the "Criminal Backlog Review Ministerial Report Danger To The Public" that appears on the tribunal record in this matter, there appears almost a full page quotation "...from a report dated May 4, 1995, from the United Nations High Commissioner for Refugees (UNHCR) concerning the return of Vietnamese asylum seekers." That report was not made available to the Applicant. Counsel for the Respondent acknowledged that there was no evidence before me that it was otherwise made available to the Applicant, nor was there evidence that it was "publicly available documentary material" on which the Respondent might rely in considering whether or not to issue a danger opinion. I can only assume that it was relied on by the Minister's delegate.

     In the same "Ministerial Opinion", the following paragraph appears:

There are insufficient humanitarian and compassionate factors in this case. Although his son is in Canada, the subject did not see him from the time he left Vietnam in 1982 until the son came to Canada in 1990.

I am at a lost to determine how the second sentence of the quoted paragraph is in any sense relevant to whether or not the Applicant constitutes a danger to the public in Canada and as to whether or not there are humanitarian and compassionate concerns that weigh in the Applicant's favour.

     In a narrative report pursuant to subsection 27(1) of the Immigration Act which also appears in the record in this matter, the following appears under the heading "Recommendations and Reasons":

As evidenced by his work history, it is obvious that he [the Applicant] will not be a productive member of Canadian Society and in fact will be a danger to the Public... .

I can only assume that this statement was taken into account in the formulation of the danger opinion. Once again, I have grave difficulty relating the commentary regarding whether or not the Applicant will be a productive member of Canadian Society to his potential as a danger to the Canadian public or to humanitarian and compassionate concerns weighing in favour of the Applicant.

     In Williams, Mr. Justice Strayer wrote:

What has been recognized is that where a discretionary tribunal decision is either, on its face, perverse, or where there is evidence of facts being before the Tribunal which manifestly required a different result or which were irrelevant yet apparently determinative of the result, then a court may be obliged to conclude that, in the absence of reasons which might have explained how the result is indeed rational or how certain factors were taken into account but rejected, a court may have to set aside the decision for one of the established grounds of judicial review such as error of law, bad faith, consideration of irrelevant factors, failure to consider relevant factors, etc. In such cases the tribunal decision is set aside not because of a lack of reasons per se but because in the absence of reasons, it is not possible to overcome the inference of perversity or error derived from the result of the surrounding circumstances of the decision.

[underlining added by me for emphasis]

While reliance on extrinsic evidence not provided by the Applicant is not referred to by Mr. Justice Strayer in the foregoing quotation, I can only assume it to be an addition to the "established grounds for judicial review" listed by Mr. Justice Strayer in a non-exclusive way.⁴ The "officer's recommendation" in the "Ministerial Opinion Report" reads as follows:

On the basis of the above information, supported by the attachments, I recommend that the Minister's opinion be requested that the above named is a "danger to the public" with reference to section 70 & 46.01 of the Immigration Act.

The "above information" includes the long extract from the UNHRC Information Report which, I conclude, constitutes "extrinsic evidence" not provided by the Applicant. The "above information" and "attachments" also include statements quoted earlier that I consider to be "irrelevant factors."

     On the basis of the foregoing analysis, I conclude that the Minister's delegate erred in a reviewable manner in forming the opinion on behalf of the Respondent that the Applicant constitutes a danger to the public in Canada by taking into account extrinsic evidence not provided by the Applicant and by taking into consideration irrelevant factors.

     Thus, the application for judicial review was allowed. Neither counsel recommended that a question be certified. No question was certified.

     As indicated earlier in these reasons, the issue of discrimination contrary to section 15 of the Canadian Charter of Rights and Freedoms was raised on behalf of the Applicant but not argued. One of the grounds of discrimination enumerated in section 15 of the Charter is mental disability. The material that was before the Minister's delegate clearly disclosed that the Applicant "...was diagnosed in 1993 as suffering from schizophrenia, a mental disorder characterized by disturbances in thinking and perception (delusions, hallucinations, loosening of associations, impairment of judgment, poor reality testing) inappropriate affect, and bizarre behaviour". The manager's recommendation concurring in the recommendation of the officer who prepared the "Ministerial Opinion Report" to the effect that the Minister's opinion be requested that the Applicant be identified as a danger to the public in Canada, reads in part as follows:

This is a troubling case. While subject's criminal record, in and of itself, is not of the most serious nature, when it is combined with the evidence of his medical condition, specifically his mental instability, I agree that subject is a danger to the public in Canada... .

It could be argued that this statement comes very close to an expression of view that, while an individual with a criminal record equivalent to that of the Applicant who does not suffer from mental disability might not be an appropriate subject for a danger opinion, an individual, such as the Applicant, with his criminal record, and with his "medical condition, specifically his mental instability", is an appropriate subject for a danger opinion. As indicated earlier, this issue was not argued before me and I therefore make no determination whatsoever in respect of it. My expression of concern in this regard is only recorded since, in allowing this application for judicial review, the matter was referred back to the Respondent for reconsideration and redetermination. That redetermination should, of course, be made in a manner consistent with the Canadian Charter of Rights and Freedoms.

                 ____________________________

                         Judge

Ottawa, Ontario

May 26, 1997

    

__________________

     ¹      R.S.C. 1985, c. I-2

     ²      Court Files: A-855-96 and IMM-3320-95, April 11, 1997 (unreported)(F.C.A.)

     ³      Constitution Act, 1982 (R.S.C. 1985, Appendix II, No. 44), being Schedule B to the Canada Act 1982 (UK), 1982, c.11

     ⁴      See: Shah v. Canada (Minister of Employment and Immigration) (1994), 170 N.R. 238 (F.C.A.)