Kim v. Canada (Citizenship and Immigration), docket IMM-154-96

     IMM-154-96

     IMM-155-96

BETWEEN:

     SOUNG RAE KIM

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDERS

MacKAY J.:

     The applicant seeks judicial review of, and an order setting aside, two decisions made in relation to him. The decision impugned in Court file IMM-154-96 is a decision made by a delegate of the respondent Minister, dated December 29, 1995, pursuant to s-s. 70(5) of the Immigration Act, R.S.C. 1985, c. I-2 as amended, whereby the Minister's opinion was determined that the applicant constitutes a danger to the public in Canada.

     At the time the applicant was a permanent resident of Canada and as a result of that decision, by the same subsection of the Act it is provided that no appeal of a deportation order may be made to the Appeal Division of the Immigration and Refugee Board by a person in the situation of the applicant. By the amending statute that provision was applicable even in the case of an appeal that had been initiated but not heard when it was determined that a person constitutes a danger to the public in Canada. In this case an appeal of a deportation order had been initiated on behalf of the applicant, before the danger opinion was determined, and the appeal had been set down for hearing on January 4, 1996. When the matter came on for hearing the Appeal Division determined that it had no jurisdiction to consider an appeal of the deportation order issued to the applicant, because of s-s. 70(5), and thus his appeal was dismissed without a hearing. That decision gives rise to the second application for judicial review in Court file IMM-155-96 which impugns the decision made by the Appeal Division of the IRB on January 4, 1996.

     When these applications came on for hearing in Vancouver in August, 1996 counsel were agreed that the second application, in file IMM-155-96 was dependant upon the outcome of the decision in relation to the other application since it was agreed that the decision of the Appeal Division was based upon the determination of the Minister's opinion that the applicant constitutes a danger to the public in Canada. Counsel agreed that if this Court should find that the decision of the Minister's delegate is to be set aside, then it follows that the decision of the Immigration Appeal Board should also be set aside.

     At the conclusion of hearing of these applications, decision was reserved. In view of developing jurisprudence in relation to s-s. 70(5) of the Act counsel were invited to consult and to advise either jointly or separately on questions which might be considered for certification for consideration by the Court of Appeal pursuant to s-s. 83(1) of the Act. Written submissions were thereafter received in September. In October and November decisions in a number of other applications for judicial review raised questions concerning the validity or application of s-s. 70(5). In these circumstances, the Court deemed it appropriate to provide an opportunity for further written submissions on behalf of counsel in light of jurisprudence determined since the hearing, and further written submissions were received from counsel for the parties in January 1997.

     Having considered those submissions and having reviewed submissions at the hearing and the record before the Court, Orders now go, one in each file, allowing the applications for judicial review, setting aside the decisions impugned and referring both matters back for reconsideration or other appropriate disposal in accord with the law. These are reasons for those Orders.

Background circumstances

     The applicant is a native of Korea who came to Canada as a permanent resident in 1990. Thereafter he married in 1991 and subsequently sponsored his wife's immigration to Canada. On October 1, 1993 the applicant pleaded guilty to aggravated assault upon his wife on September 13 of that year. She was seriously injured as a result of the assault. The applicant was sentenced to five months in jail and 18 months on probation, with the latter to include counselling as arranged by his probation officer. He was directed to have no contact with his wife.

     The applicant was released from jail in February 1994 and thereafter served his probation period, meeting all terms of probation, including participation in counselling for anger management training. The counsellor advised his probation officer that he appeared to have benefited from counselling sessions.

     At an inquiry in February 1995 an immigration officer determined that he had been convicted of an offence under an Act of Parliament, the Criminal Code, for which a term of imprisonment for five years or more might be imposed so that the applicant is a person described in paragraph 27(1)(d)(ii) of the Act. As a result, a deportation order was issued against the applicant, pursuant to s-s. 32(2) of the Act. As he was entitled to do at the time, he filed an appeal of that order with the Appeal Division of the Immigration Refugee Board and his appeal was set to be heard on January 4, 1996. Thereafter the Act was amended, introducing s-s. 70(5) with effect from July 10, 1995. The amended provision reads:

70. (5) No appeal may be made to the Appeal Division by a person described in subsection (1) or paragraph (2)(a) against whom a deportation order or conditional deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be:

(a) a member of an inadmissible class described in paragraph 19(1)(c), (c.1), (c.2) or (d);

(b) a person described in paragraph 27(1)(a.1); or

(c) a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed.

     In November 1995 the applicant was advised by letter that his case was being considered for possible referral to the Minister as a case for his opinion, pursuant to s-s. 70(5), that the applicant constituted a danger to the public. With that letter, copies of documents were sent to the applicant and it was said that the documents constituted the evidence to be considered by the Minister, together with documents or information which the applicant might submit within 15 days, as evidence "regarding the issues of whether you are a danger to the public and whether there are sufficient humanitarian and compassionate factors in your favour to outweigh any danger you may present".

     Counsel on behalf of the applicant was granted an extension of time to make submissions, which he did by letter of December 14, 1995. In that letter counsel urged that there were reasons why Mr. Kim ought not to be considered to pose a danger to the public and that in considering the matter the issue was not simply whether he posed a danger to the public when the single offence here occurred, but whether he poses a danger at the time of the consideration for a Minister's opinion, that is, at the end of 1995, more than two years after the offence. Counsel also urged that there were sufficient humanitarian and compassionate grounds to allow Mr. Kim to remain in Canada and in any event, to permit that issue and the evidence of his rehabilitation since the offence to be considered by the Appeal Division at the appeal fixed for January 4.

     In closing his letter, counsel did note that certain documents provided to the applicant by the November letter on behalf of the Minister made reference to certain other documents which were not enclosed with the letter, and counsel then noted

...I must ask that if you intend to rely upon or refer to any information or documents, other than what you provided with your letter of November 17, 1995, that you disclose such information or documents to me and give me a reasonable time to respond before any decision is made.

No further documents were provided and on December 29 the decision was made by the Minister's delegate that the applicant constituted a danger to the public in Canada. No reasons for that decision were given. As earlier noted, when the applicant's appeal came on for hearing on January 4 the Appeal Division, in accord with s-s. 70(5) and transition provisions which applied that subsection even to appeals previously filed but not heard, dismissed the appeal for want of jurisdiction. On January 17 the applicant's application for judicial review in file IMM-154-96 was filed and a similar application on file IMM-155-96 was filed on the same day. Thereafter, in March 1996, acting under the deportation order issued against the applicant in February 1995 following his release from jail, the applicant was deported from Canada.

Issues

     The application for judicial review in relation to the opinion of the Minister under s-s. 70(5) (IMM-154-96) raises several issues. These are also key to determination of the validity of the underlying decision upon which the decision of the Appeal Division was based in IMM-155-96.

     I do not propose to deal at any length with a number of these, for example, that the general process established by departmental guidelines for obtaining the Minister's opinion pursuant to s-s. 70(5) violates principles of natural justice. I do note that those guidelines reflect some concern for natural justice by including provision that the notice to the client advising that an opinion is being considered "will contain a complete summary of all the department's evidence that is to be forwarded to the Minister or his delegate for consideration". Nor do I propose to deal with the applicant's argument that s. 7 of the Charter was here violated and it was not saved by s. 1, or with the argument that in the circumstances of this case the opinion formed by the Minister's delegate was perverse or capricious. The latter submission was based on the absence of reasons for the opinion in light of the fact that following the single incident of aggravated assault in a domestic dispute there was substantial evidence of the applicant's "reformation" through his sentence and probation and thereafter, without any incident of criminal or violent activity. That argument raises the question whether s-s. 70(5) requires a determination of a current or future prospect of danger to the public in Canada, not merely evidence of a dangerous activity in the past, particularly in the case of an isolated incident. That is one of the issues raised by my colleague Mr. Justice Gibson in a decision in Thompson v. M.C.I., (IMM-107-96), August 16, 1996 (F.C.T.D.). That question was certified for consideration by the Court of Appeal in Hinds v. M.C.I. by Mr. Justice Gibson (IMM-3549-95), November 27, 1996 (F.C.T.D.).

Fairness and natural justice

     A principal issue raised for the applicant concerns the failure of those acting on behalf of the Minister to observe principles of fairness or of natural justice in reaching the decision under s-s. 70(5). One basis for that relates to documents referred to as attachments in documents that were provided to the applicant in November 1995 but which attachments were not provided to him, an omission commented upon by counsel for the applicant in his written submissions. By affidavit of a legal secretary with the Department of Justice, a copy of all materials considered by the Minister's delegate was provided in response to the applicant's application for leave and for judicial review and that affidavit's exhibits do not include documents to which the applicant points as having been omitted from those provided to him in November 1995. Those documents thus omitted were by inference, and by advice of counsel on behalf of the Minister, not before the Minister's delegate at the time of the decision so that it is said they do not form part of the record in this matter. Thus, their omission from the package of documents sent to the applicant could not be the basis for a claim of unfairness in the process in this case.

     It is said there are other failures to observe principles of natural justice in this case, including the fact that no reasons were given for the Minister's opinion. Since the hearing of this case that issue has been raised and has been certified for consideration by the Court of Appeal pursuant to s-s. 83(1) of the Act in the following cases: Williams v. M.C.I. (IMM-3320-95), October 18, 1995 per Reed J. (F.C.T.D.), a decision followed without certifying the same question in Fairhurst v. M.C.I. (IMM-447-96), December 11, 1996, per Rouleau J. (F.C.T.D.) and in Hinds v. M.C.I., supra; Clarke v. M.C.I., (IMM-2962-95), November 28, 1996, per Wetston J. (F.C.T.D.) and Calabrese v. M.C.I., (IMM-1136-96), December 20, 1996, per Wetston J. (F.C.T.D.). It is anticipated that the Williams case, raising the issue of the necessity for reasons for a decision under s-s. 70(5), will be heard by the Court of Appeal before the end of March 1997.

Failure to disclose information significant for the decision

     Finally, there is an issue raised in the Applicant's Reply and developed at the hearing. The issue concerns an alleged lack of fairness in the process where matters that proved to be of significance before the Minister's delegate at the time of the decision were not disclosed in advance to the applicant. The basis for the allegation appears from comparison of the applicant's record, which includes all of the documents provided to the applicant by the letter of mid-November 1995, with the documents later provided by affidavit of a legal secretary from the Department of Justice. The latter collection includes two other documents not sent earlier to the applicant. One is a document prepared in light of departmental guidelines set out for dealing with the application of s-s. 70(5), the other is a document prepared at national headquarters containing the reviewing officer's comment and recommendation, a document titled "Criminal Backlog Review, Ministerial Opinion, Danger to the Public, subsection 70(5) and 70(6) of the Immigration Act".

     The former document was apparently prepared following receipt of the submissions on behalf of the applicant in mid-December 1994. It contains comments of the officer who prepared the document and that officer's recommendation that a request be made for the Minister's opinion that the applicant is a danger to the public. That recommendation was endorsed or was concurred in by the local manager and was then sent to Ottawa. There the second document was prepared, signed by the officer concerned and concurred in by his or her chief on December 27, 1995. Neither of these two documents, intra departmental recommendations, was provided to the applicant at any stage in the process and both were revealed only by the affidavit in support of the respondent's position filed after the applicant's application record in these proceedings was filed.

     The report form, completed by the officer in Vancouver, obviously with departmental guidelines in mind, includes space for the officer's comments. One of these relates to "danger rationale" which, by the guidelines provided, does not require an extensive narrative but rather "bullets identifying the salient points are sufficient with reference to supporting documentation. The rationale is to be completed in light of the profile described for such persons, earlier in the guidelines." In the case of this applicant all of the comments under "danger rationale" relate to the incident in September 1993, with reference to comments of the judge at the time of the applicant's sentencing in October 1993 and comments from a pre-sentence report of that time. There is no reference to events, activities or any experience of the applicant after the conviction and sentencing in the fall of 1993.

     A second, and more telling, comment by the officer concerned is found in a separate part of the report concerning the officer's comments, which by departmental guidelines were to be directed to submissions made on behalf of the applicant. In this case a summary of some submissions is included, but the comments then include the following

...Mr. Kim has difficulty with expressing his emotions through open communication. In the pre-sentence report [of October 1993] Mr. Reed points out that Mr. Kim does not allow that he has an alcohol problem. Alcohol abuse and spousal violence are clearly associated. In conversation with Mr. Kim's probation officer Wendy Potts who deals exclusively with spousal abusers, she pointed out that Mr. Kim has not had the formal Spousal Assault treatment program. Mr. Kim has impulse control [sic] and wants to have power over individuals. It was pointed out that Mr. Kim has a very good sense of the martial art of tae kwon do. Ms. Potts further comments that no one can not [sic] guarantee that similar events in a relationship would not occur in the future.

The reference to alcohol abuse and related spousal violence comes from the pre-sentence report. It is made without reference to the fact that following his release from prison the applicant remained away from his wife, as he was directed by the Court to do, and that they were ultimately divorced with no contact on his part with his former wife, and it makes no reference to some uncertainty at the time of his sentencing whether alcohol abuse was a major problem for the applicant, or to any effort to control any such abuse through the period since he was sentenced for his crime.

     The officer's report of a conversation with the applicant's probation officer includes comments of significance here which are not recorded in the written report of the probation officer, a copy of which had been provided to the applicant with the November collection of documents. Thus, that written report includes no reference to the probation officer's dealing exclusively with spousal abusers. The officer's notes make no reference, as the written report of the probation officer does, to the reason why the applicant did not participate in the spousal assault treatment program, which was because of his limited language capacity, or that in lieu of that program the probation officer arranged for counselling sessions in anger management for him. The written report of the probation officer does not note that the applicant has impulse control and wants to have power over individuals; it does not include reference to his knowledge of the martial arts, although another document from his pre-sentencing period in 1993 does make some reference to this, and the written report of the probation officer does not state that no one can guarantee, presumably in relation to the applicant, that "similar events in a relationship would not occur in the future".

     In my opinion, the recording of the officer's understanding from conversation with the probation officer was significant. It appears to have been highly relevant in the officer's recommendation, and it ought to have been disclosed to the applicant, with an opportunity to comment, before the officer concluded the report by recommending that the Minister's opinion be sought that the applicant is a danger to the public.

     That recommendation went forward to Ottawa where the reviewing officer's comments, recorded in a document not seen by the applicant until after this application for judicial review was well under way, sets out brief comments as follows:

I concur with the CIC's recommendation.

Although Mr. Kim only has one criminal conviction, the nature and circumstances of the offence render him a danger to the public. He brutally assaulted his wife. Feelings of resentment and hurt had been building over a certain period of time, culminating in the attack. He had also been following her for some time, believing that she was being unfaithful to him.

Mr. Kim appears to have a deep-rooted sense of obedience, responsibility and duty and reacted violently when he thought that he had been wronged. The information provided does not satisfy me that this type of violent behaviour will not occur again.

The Chief, presumably of the Criminal Backlog Section, concurred in this recommendation without further expression of opinion and two days later, on December 29, the delegate of the Minister signed a statement of the opinion of the Minister pursuant to s-s. 70(5) of the Act "on the basis of the information considered by me" that the applicant constitutes a danger to the public in Canada. While the process is essentially administrative, by its nature the determination of the "danger opinion" has sufficient judicial qualities that the principle of fairness demands opportunity for the person concerned to comment upon the information upon which the danger opinion is considered, and if made he loses his opportunity to appeal a deportation order to the Immigration Appeal Board.

     At the final stage in the process, when the matter was before the Minister's delegate, the key document, probably on top of the file, would be the recommendation of the reviewing officer in Ottawa. While it was not argued before me, I note that the reviewing officer's recommendation, as expressed, would appear to have applied the wrong test. It notes the seriousness of the one offence, the nature and circumstances of which would, apparently in and of themselves, "render him [i.e., the applicant] a danger to the public", and then the final sentence in the recommendation is that "the information provided does not satisfy me that this type of violent behaviour will not occur again".

     That appears to suggest that the onus is on the applicant to demonstrate that violent behaviour of more than two years earlier would not occur again. Surely s-s. 70(5) does not set that out as the basis for the decision of the Minister's delegate. Rather, it requires that the decision maker be satisfied at the time of the decision that the person in question is, on a balance of probabilities, a danger to the public in Canada. Yet, in my opinion, even if the test as expressed in the reviewing officer's recommendation were acceptable, the applicant had no notice of that test from the "evidence" provided to him in November 1994, nor would he have notice of that test from a reasonable interpretation of s-s. 70(5) itself.

     Thus, in this case two key documents were not seen by the applicant. The first contains factual and opinion references by the Vancouver officer to extrinsic evidence, i.e., the content of a conversation with the applicant's probation officer which was not revealed to the applicant for comment before the officer's decision. The second contains the negative basis of the reviewing officer's assessment of danger to the public, a basis which as expressed, in my view, constitutes an error in law. The applicant had no opportunity to comment upon or respond to this information in advance of the decision, and that information was significant for the opinion of the Minister's delegate.

     A lack of fairness in the process is sufficient ground to set the impugned decision aside, without the necessity of establishing prejudice to the applicant (See: [1980] 1 S.C.R. 1105">Kane v. U.B.C., [1980] 1 S.C.R. 1105, 31 N.R. 214 (S.C.C.); Lazarov v. Secretary of State of Canada (1973), 39 D.L.R. (3d) 738 (F.C.A.). See also Kanda v. Government Federation of Malaya, [1962] A.C. 322 at 377).

Conclusion

     In my opinion the process leading to the decision of the Minister's delegate that the applicant constitutes a danger to the public pursuant to s-s. 70(5) was flawed and the applicant was denied procedural fairness since he was not informed of matters of significance in the consideration of his circumstances, before the decisions were made by the officer concluding the field report to recommend, and by the Ottawa reviewing officer in recommending, the "danger opinion" decision that was made.

     I do not say that the documents here not seen by the applicant, two intra-departmental reports, need to be provided to all applicants. I do note there would be no harm or difficulty in providing at least the first report to the applicant, before it is forwarded to headquarters in Ottawa, with an opportunity to respond at that stage. However, when documents contain information of significance for the decision in relation to the applicant, which information has not been provided to him with a fair opportunity to comment in advance of the decision, then the decision is faulty and will be set aside as one made in breach of the principle of fairness. If the documents prepared by the respondent's officers do not introduce information other than found in documents provided to the person concerned and in his or her submissions in response, those documents would be unobjectionable. If they introduce as evidence matters from extrinsic sources, not within the documents revealed, the applicant's submissions, or the law applicable to the process, the person concerned must be given that information before a decision is made, or the decision may be set aside.

     I find that in this case the opinion of the Minister under s-s. 70(5) was the result of a process that violated the principle of fairness by failing to provide to the applicant for comment, in advance of the decision, significant information upon which the opinion is ultimately based. Thus an order goes allowing the application in file IMM-154-96 and setting aside the determination made by the Minister's delegate pursuant to s-s. 70(5) in relation to the applicant. The matter is remitted for reconsideration or for other appropriate disposition in accord with the law.

     An order also goes allowing the application in file IMM-155-96 and setting aside the impugned decision of the Appeal Division, as counsel agreed at the hearing should be done if the decision made pursuant to s-s. 70(5) is set aside, since the decision of the Appeal Division was dependant upon validity of the Minister's opinion under that subsection.

     After consideration of questions proposed by the applicant for certification pursuant to s-s. 83(1) of the Act, I decline to certify any question. This decision clearly turns on its particular facts and in my view, it raises no question of general importance within the meaning of s-s. 83(1).

     These Reasons for Orders are to be filed on each of Court files IMM-154-96 and IMM-155-96 with the separate Orders now issued, one with regard to each file.

     _____________________________

     JUDGE

OTTAWA, Ontario

March 5, 1997.