Date: 20101129
Docket: IMM-905-10
Citation: 2010 FC 1199
Ottawa, Ontario, November 29,
2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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MORENO GALLO
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Applicant
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and
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THE MINISTER OF PUBLIC
SAFETY AND EMERGENCY PREPAREDNESS
AND THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for a Judicial Review of the decision of the Minister’s
Delegate (the Delegate), John Acheson, dated December 23, 2009 to refer the
Applicant to an Admissibility Hearing before the Immigration Division of the
Immigration and Refugee Board (IRB).
[2]
The
report relied upon by the Minister’s Delegate alleged that the Applicant is a
permanent resident of Canada who is inadmissible for serious
criminality under paragraph 36(1)(a) of the Immigration and Refugee
Protection Act, R.S. 2001, c. 27 (IRPA) due to his conviction in
March 1974 for non-capital murder.
[3]
The
Applicant seeks:
• A
writ of certiorari quashing the decision of the Minister’s Delegate to refer
the Applicant to an Admissibility Hearing;
• An
Order referring this matter back for re-determination in accordance with the
directions of the Court; and
• The Applicant’s costs of these
proceedings.
[4]
For
the reasons set out below, this application is dismissed.
I. Background
A. Factual
Background
[5]
The
Applicant, Moreno Gallo, is a long-term permanent resident who entered Canada in 1954 at
the age of eight with his mother and sister. He has been married to his wife
since 1969, with whom he has three children and four grandchildren all residing
in Canada. His mother
and two sisters also live in Canada.
[6]
In
March 1974 the Applicant was convicted of murder in Montreal, Quebec. He
received a life sentence and served eight years in prison before being granted
day parole in 1982, full parole in 1983, and reduced parole (“liberation
mitigée” subject to almost no conditions) in December 1988.
[7]
In
2007 the National Parole Board (NPB) suspended the Applicant’s parole after the
Correctional Service of Canada (CSC) received a report following an RCMP
investigation, Projet Colisée, that the
Applicant was still actively involved in organized crime. The NPB determined
that the Applicant posed an unacceptable risk to society.
[8]
Upon
his detention in 2007, it was determined that the Applicant was a permanent
resident and that unlike the other members of his family, and for an unknown
reason, he had never become a Canadian citizen.
[9]
On
September 23, 2008 the Delegate referred the Applicant to an Admissibility
Hearing. On November 2, 2008, the Applicant made an application for leave and
judicial review of that decision. While that matter proceeded through this
Court, the Immigration Division issued a deportation order with respect to the
Applicant following an Admissibility Hearing on February 12, 2009.
The Applicant then sought judicial review of the removal order.
[10]
By
Court Order dated June 17, 2009, Justice Judith Snider quashed the decision of
the Delegate to refer the matter to an Admissibility Hearing and sent the
matter back for redetermination. Justice Snider found that there was
insufficient evidence on the record to indicate that the Delegate had
understood and adopted the reasons of the Analyst as her own. Consequently,
the Respondent consented to an Order quashing the deportation order that the
Immigration Division had issued.
[11]
On
August 7, 2009 the Applicant again became the subject of a report under
subsection 44(1) of the IRPA on the basis of information that he was
inadmissible to Canada for serious criminality pursuant to paragraph 36(1)(a).
By way of letter dated August 18, 2009 the Canadian Border Services Agency
(CBSA) advised the Applicant of the inadmissibility report and invited him to
make submissions. The Applicant provided written submissions, affidavits and
documentary evidence regarding the Applicant’s establishment in Canada and the
low risk he poses to the community should he remain in Canada.
[12]
On
December 23, 2009, the Delegate decided to refer the Applicant to an Admissibility
Hearing pursuant to subsection 44(2) of the IRPA. This was communicated to the
Applicant via e-mail correspondence with a CBSA agent following
correspondence from the IRB in late January 2010 requesting the contact
information for the Applicant’s legal counsel.
[13]
The
December 23, 2009 referral decision is the subject of this application for
judicial review. The referral itself and the reasons for the referral were
only obtained by the Applicant through this Court, pursuant to Rule 9 of the Federal
Courts Immigration and Refugee Protection Rules. Since the latest referral
decision, the Applicant was granted day parole in March 2010.
B. Impugned
Decision
[14]
The
decision of the Minister’s Delegate was attached to a 13 page report titled
“Assessment for referral to an Admissibility Hearing for a long-term permanent
resident” (the Report). In the Report the analyst concluded that
notwithstanding the Applicant’s residency in Canada for over 50 years, the
seriousness of the crime he committed and his ability to maintain ties with
people involved in criminal activities form the basis of her agreement with the
recommendation of the CBSA that the Applicant be referred to an Admissibility
Hearing. In its entirety, the Delegate’s decision reads:
I have reviewed the all [sic]
material before me, and I agree with this recommendation. This
Assessment for Referral to an Admissibility Hearing for Long-Term Permanent
Resident stands as my reasons for my decision on whether «FirstName» «LastName»
should be referred to an admissibility hearing.
[Emphasis in original]
C. Legislative
Scheme
[15]
Paragraph
36(1)(a) of the IRPA renders permanent residents inadmissible on grounds of
serious criminality if they have been convicted of an offence punishable by a
maximum term of imprisonment of at least ten years or for which imprisonment of
more than six months has been imposed.
[16]
According
to subsection 44(1) of the IRPA permanent residents who are thought to be
inadmissible may be made the subject of a report which will be forwarded to the
Minister. The Minister then may refer the report to the Immigration Division
for an Admissibility Hearing if he is of the opinion that the report is
well-founded pursuant to subsection 44(2) of the IRPA.
[17]
Although
section 45 of the IRPA sets out the decisions that the Immigration Division can
make following an Admissibility Hearing, if the Immigration Division is
satisfied that someone in the Applicant’s position is inadmissible, the only
option open to it is to make a removal order against the individual.
[18]
The
Applicant has no appeal right from the decision of the Immigration Division
pursuant to section 64 of the IRPA. This section provides that permanent
residents who are inadmissible due to serious criminality may not appeal to the
Immigration Appeal Division (IAD) of the IRB if a sentence of two or more years
has been imposed.
[19]
However,
the Respondent notes that an individual such as the Applicant may apply to the
Minister at any time for special relief on humanitarian and compassionate
grounds pursuant to section 25 of the IRPA. The Applicant is also able to
avail himself of a pre-removal risk assessment pursuant to section 112 of the
IRPA.
II. Issues
[20]
The
Applicant raises the following issues:
(a) Did
the Minister’s Delegate breach the Applicant’s right to procedural fairness by
failing to conduct an independent assessment of the Applicant’s circumstances?
(b) Did
the Minister’s Delegate err by adopting the assessment of the Analyst that
contains numerous factual errors and conclusions that are speculative in
nature?
(c) Did
the Minister’s Delegate err by adopting the case assessment of the Analyst that
fails to take into account the totality of the evidence?
[21]
The
issues are best summarized as:
(a) In
the case of the Applicant, was there a breach of the duty of fairness?
(b) Was
the Delegate’s decision to refer the Applicant to an Admissibility Hearing
reasonable?
III. Standard
of Review
[22]
Neither
party makes submissions regarding the applicable standard of review.
[23]
Questions
of procedural fairness are typically reviewed on a standard of correctness and
as a result the decision maker is owed no deference (Villanueva v. Canada
(Minister of Public Safety & Emergency Preparedness), 2010 FC 543;
Hussain v. Canada (Minister of Citizenship and Immigration)), 2010 FC
334,).
[24]
As
for the Applicant’s contention that the Delegate relied on a factually
deficient analysis and ignored evidence, these concerns go to the merit of the
decision. Justice Russel Zinn held in Iamkhong v. Canada (Public Safety and
Emergency Preparedness), 2008 FC 1349, 337 F.T.R. 141, that decisions made
under section 44 of the IRPA being “decisions that are unlikely, on the facts,
to lend themselves to only one possible conclusion.” (at para. 37) ought to be
reviewed on a standard of reasonableness.
[25]
As
set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 and Khosa v. Canada (Minister of
Citizenship and Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339,
reasonableness requires consideration of the existence of justification,
transparency, and intelligibility in the decision-making process. It is also
concerned with whether the decision falls within a range of acceptable outcomes
that are defensible in respect of the facts and law.
IV. Argument
and Analysis
A. The
Minister’s Delegate Did Not Breach the Applicant’s Right to Procedural Fairness
[26]
The
Applicant submits that his right to procedural fairness has been violated
because the Delegate failed to conduct an independent assessment of the
Applicant’s circumstances and instead relied on the Report prepared by the
Analyst.
[27]
The
Respondent contends that there is no merit to this argument.
[28]
The
duty of fairness owed to an Applicant under section 44 of the IRPA has been
considered several times by this Court. In Hernandez v. Canada (Citizenship
and Immigration), 2005 FC 429, [2006] 1 F.C.R. 3, Justice Snider assessed
the extent of the procedural fairness owed by officials under section 44 by
reviewing the factors set out in Baker v. Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193, at paras.
21-28.
[29]
After
considering the nature of the decision, the nature of the statutory scheme, the
importance of the decision to the Applicant and the legitimate expectations of
the individual challenging the decision, Justice Snider concluded that
decisions made under section 44 are administrative decisions that require a
“relaxed” duty of fairness. Applying this standard to subsection 44(1) and
44(2) decisions, she stated at para. 70:
In my view, the duty of
fairness implicitly adopted by CIC for purposes of the s. 44(1) report is
appropriate. Although these are administrative decisions (rather than
quasi-judicial) and although the person affected has some other rights to seek
to remain in Canada, these are serious decisions
affecting his rights. CIC, whose choice of procedures should be respected, has
elected to give the affected person a right to make submissions, either orally
or in writing and to obtain a copy of the report. Having a copy of the report
would allow the affected person to decide whether he wishes to seek judicial
review of the immigration officer's report to this Court. This, I conclude is
the duty of fairness owed the Applicant and others in his position with respect
to the Officer's Report.
[30]
The
tenor of the jurisprudence of this Court and the Federal Court of Appeal does
suggest that well-established, long-term permanent residents on whom
deportation would have a serious impact may, in certain circumstances (for
instance where there is no right of appeal stemming from an Admissibility
Hearing decision), be owed a higher-degree of procedural fairness. However,
this narrowly relates to the discretion of the Minister to carefully consider
any submissions made regarding the personal circumstances of the individual of
a humanitarian and compassionate nature supporting the non-referral of the
report (see Cha v. Canada (Minister of Citizenship and Immigration), 2006
FCA 126, [2007] 1 F.C.R. 409, at para.41 and Hernandez, above, at
para.19).
[31]
Given
the established content of the duty of fairness as set out above, I must agree
with the Respondent that I cannot see how the Delegate, in relying on the
reasons of the analyst in the Report, has breached the Applicant’s right to
procedural fairness.
[32]
Firstly,
as pointed out by the Respondent, in Iamkhong, above, the Court found
that it is acceptable for the Minister to adopt and rely on the reasons of an
officer as long as the reasons of the officer comply with the so-called Lake
standard (see Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761,
292 D.L.R. (4th) 193). This standard requires that the reasons be sufficient
enough to allow the individual concerned to understand why the decision was
made and to allow the reviewing court to assess the validity of the decision.
The Lake standard does not require that the reasons be comprehensive (Iamkhong,
above, at paras.32 and 35). The Applicant also provided the Court with the
case Chand v. Canada (Minister of Public Safety and Emergency Preparedness),
2008 FC 548, 170 A.C.W.S. (3d) 144, in which the Minister’s Delegate provided a
handwritten note at the bottom of a report indicating that she had read the
submissions and was referring the case to an Admissibility Hearing. The Court
found this to be sufficient.
[33]
Secondly,
there is nothing to indicate that the Delegate has not done what he has claimed
to have done before taking his decision, which is to have reviewed all of the
material before him. In doing so, the Delegate cannot be said to have
fettered his discretion. The typed form that stands as the Delegate’s reasons
also gives a Minister’s delegate the possibility of disagreeing with the
Report, an eventuality which suggests that a delegate is to make an independent
determination.
[34]
The
Applicant relies on Ogunfowora v. Canada (Minister of
Citizenship and Immigration), (1997) 129 F.T.R. 14, 147 Admin. L.R.
(2d) 182, for the proposition that an immigration officer cannot rely on the
assessment of someone who is not the decision-maker without fettering his
discretion. The Applicant argues that this can be applied analogously to the
present matter in that the Delegate must conduct his own independent
assessment. A decision issued 13 years ago on a completely different issue
cannot trump recently decided cases exactly on point. I do not find this
persuasive.
[35]
The
Applicant also argues that he does not know based on the Delegate’s reasons,
why he adopted the assessment of the analyst as his own reasons. With respect,
this is a convoluted argument. The Applicant does not have a right to know why
the Delegate adopted the reasoning of this specific report, but only why the
Delegate decided to refer him to an Admissibility Hearing. In explicitly
adopting the report as his reasons the Delegate makes it clear to the Applicant
that he is being referred to an Admissibility Hearing because of the
seriousness of his crime and his continued association with people involved in
criminal activities, notwithstanding the factors that weighed in his favour
that were canvassed in the Report.
[36]
The
Applicant additionally argues that the Delegate has fettered his discretion by
relying on the analyst’s Report which excerpts parts of the National Parole
Board’s September 6, 2007 decision to revoke the Applicant’s parole. The
Applicant suggests that relying on the decision of another decision-making body
is dangerous, as the position held by that body may change. The Report cited
many sources, and I do not find that there was over-reliance on the NPB
decision. Furthermore, the final recommendation of the Report is not based on
any factors that may have changed since the NPB’s 2007 decision.
[37]
I
do not find that the Applicant’s right to procedural fairness was violated by
the Delegate in referring the Applicant to an Admissibility Hearing pursuant to
subsection 44(2) of the IRPA.
B. The
Decision to Refer the Applicant to an Admissibility Hearing was Reasonable
[38]
The
Applicant argues that the report relied upon as the Delegate’s assessment
contains numerous factual errors, speculative conclusions and fails to take
into account the positive aspects of the Applicant’s circumstances.
[39]
None
of the errors pointed out by the Applicant have the effect of making the
Delegate’s decision unreasonable. A decision that clearly centered on the
Applicant’s conviction and life sentence for non-capital murder committed in
1974, a crime the seriousness of which the Applicant does not deny, is not
rendered unjustifiable in facts and law by:
• the
analyst mis-characterizing the July 17, 2009 Federal Court order that quashed
the decision of the Delegate to refer the applicant to an Admissibility Hearing
as quashing the Delegate’s decision to issue a deportation order.
• the
reference on two occasions to newspaper articles, one of which was quoted in an
excerpt from the NPB’s 2007 decision, when in fact, as stated by the report,
the Applicant was the subject of intense media interest.
• the
inclusion of comments made by members of the Montreal Police which were
contained in a document from 1980. They suggest that the Applicant was
involved with other murders, however, no evidence of such activity exists.
• the
analyst’s source-less allegation the Applicant’s family’s bakery is a place
visited by people linked to the Italian mafia.
• the
analyst’s recommendation that the Applicant be referred due to the seriousness
of his crime and his ability to have maintained ties with people involved in
criminal activities when anyone would have the ability to maintain ties with
people with criminal backgrounds.
[40]
In
his written submissions, the Applicant extensively details these and other
perceived faults found in the Report. However, none of them are fatal to the
decision. As the Applicant himself submitted, “the analyst had more than
sufficient information to base his recommendation without referring to
sensational media reports.” I do agree with the Applicant that it is
regrettable that the Delegate did not proof-read his decision and make sure to
insert the Applicant’s name into the typed form. However, largely, I am unable
to agree with the Applicant that the report is in any way “erroneous”. It is
based on documentary evidence, not the analyst’s imagination.
[41]
Similarly,
the Applicant’s contention that the report did not adequately address the
evidence that weighs in the Applicant’s favour fails to move this Court to
disrupt the Delegate’s referral decision. That the Applicant would have
highlighted different information in the report and ultimately come to a different
conclusion is not surprising. The analyst took into account several favourable
aspects of the Applicant’s case – among them the Applicant’s good conduct in
prison, that no charges were being laid by the RCMP as a result of Projet
Colisée, the Applicant’s family situation and his establishment in Canada.
[42]
Certainly
the Delegate could have chosen not to refer the Applicant to an Admissibility Hearing.
But, having considered all of the relevant factors in the Applicant’s case,
both positive and negative, the Delegate arrived at a decision that does not
fall outside of the range of possible outcomes. As such the role of this Court
is not to re-weigh evidence or re-imagine the multitude of ways in which the
Delegate’s decision could have been alternatively formulated.
V. Conclusion
[43]
No
question to be certified was proposed and none arises.
[44]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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