Date: 20070517
Docket: IMM-4158-06
Citation: 2007
FC 520
PRESENT: THE CHIEF JUSTICE
BETWEEN:
TEDLA
ADINEW
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1]
In 1991,
the applicant, then 9 years of age, came to Canada from Ethiopia as a Convention refugee. He
entered Canada with his mother and sister.
[2]
On June
18, 2001, while a permanent resident in Canada, the applicant was convicted of
aggravated assault. He was sentenced to a penitentiary term of four years. The
sentence took into account the eleven months the applicant spent in pre-trial
custody.
[3]
This
application for judicial review challenges the opinion issued on August 24,
2005 by the minister’s delegate that the applicant constitutes a danger to the
public in Canada, within the meaning of paragraph 115(2)(a) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27. For the reasons set out
below, I have concluded that the applicant has failed to establish any
reviewable error in the four issues raised in this proceeding, the first two of
which concern procedural fairness.
(i) Did
the Minister’s delegate breach procedural fairness by providing only fifteen
days for the applicant to respond?
[4]
On May 20,
2003 and June 27, 2003, letters signed by one of the respondent’s officials as
part of the danger opinion process were delivered to the applicant at the
Joyceville Institution where he was incarcerated. Each letter provided the
applicant with the opportunity to make representations concerning the danger
opinion “before the expiration of 15 days from the receipt” of the
correspondence. The applicant apparently refused to acknowledge receipt of the
materials in writing because he “didn’t really understand”.
[5]
On July 9,
2003 and July 23, 2003, responses were forwarded on behalf of the applicant by
a representative of the John Howard Society (JHS) in Kingston. The representative was the
institutional services counsellor who first met the applicant in early 2003.
[6]
In her
letter of July 9, 2003, the JHS representative reported that, since first
meeting the applicant, she interviewed him “… various times, discussing his
release plans and possible deportation to Ethiopia. While the early years of his
imprisonment have not been exemplary, Tedla has made a conscious effort to turn
his life around and is devising a release plan to the Toronto area where he would benefit from the
guidance and support of his family” (emphasis added).
[7]
On July
23, 2003, the JHS representative forwarded a second submission which included a
five-page letter signed by the applicant and letters of support from his mother
who was prepared to employ him in her restaurant upon his release. This letter
was accepted by the respondent even though it was received a few days beyond
the 15-day time period stipulated in the letter of June 27, 2003.
[8]
The
applicant’s factual submissions concerning the 15-day time period are based on
his incarceration when the danger opinion process was undertaken, his limited
formal education which ended in grade 9 and the absence of a lawyer to make
representations on his behalf. The case law submitted by the applicant in
support of his position was limited to the assertion of the general principle
of audi alteram partem.
[9]
The
respondent relies on the cross-examination of the applicant which established
that he had access to his family and to telephone and library facilities when
he received the correspondence of May 20 and June 27, 2003. He had previously
called a lawyer while incarcerated for a matter unrelated to his immigration
status. The letter of July 9, 2003 from the JHS representative confirms that
she discussed with the applicant his possible deportation to Ethiopia, a possibility that was stated
in the letters of May 20 and June 27, 2003.
[10]
The danger
opinion was not signed until August 2005, some two years after the process
began in 2003. During this interval, there is no evidence of any other attempt
by the applicant to file submissions.
[11]
In Chu
v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1043
(T.D.) at paragraph 7, aff’d 2001 FCA 113 at paragraph 12, neither the applications
judge nor the Court of appeal criticized the 15-day reply period as falling
short of the requirements of procedural fairness. It should be noted, however,
that this was not the principal issue in the litigation.
[12]
In the
circumstances of this case, the applicant cannot explain how a longer reply
period could have affected the issue of procedural fairness in any meaningful
way. The applicant’s first argument must, therefore, fail.
(ii) Did
the minister’s delegate breach procedural fairness by failing to disclose all
documents that were to be relied upon?
[13]
The
respondent’s letter of June 27, 2003 included the following statement:
As part of this process,
please find enclosed a copy of the Ministerial Opinion Report and the Request
for Minister’s Opinion as well as the following documents:
·
U.S. Department of The State -
country Reports on Human Rights Practices
·
United
Nations High Commission for Refugees – update on regional developments in
Africa
[14]
Neither
of the above-mentioned two documents was enclosed with the correspondence
although extracts from each were referred to at some length in the Request for
Minister’s Opinion. The respondent established that each document is readily
available via the internet and judicial notice can be taken of the fact that
this type of country condition evidence can be obtained from other public
sources.
[15]
In
Chu, above, at paragraph 10, the Federal Court of Appeal confirmed that
documents submitted to the decision-maker by other officials acting on behalf
of the respondent must generally be disclosed “… or at least must be
specifically identified if the documents are generally available”. The same
principle was reiterated in Mancia v. Canada (Minister of
Citizenship and Immigration), [1997] F.C.J. No. 120 (T.D.), aff’d
[1998] F.C.J. No. 565 (C.A.). There is no reason to distinguish this proceeding
from the case law relied upon by the respondent
(iii) Did
the minister’s delegate properly assess the country information?
[16]
The
applicant acknowledges that the principal challenge in this application for
judicial review was based on procedural fairness. However, in limited written
and oral submissions, the applicant did suggest that the decision-maker erred
in assessing the risk of returning to Ethiopia. In this regard, the
applicant acknowledges that the standard of review is patent unreasonableness.
In the context of this case, I agree and, in my view, the applicant has fallen
far short of establishing any reviewable error on this issue.
(iv) Was
it reasonable and proper for the minister’s delegate to consider the
applicant’s Young Offender record in assessing danger to the public of Canada?
[17]
In
the “rationale” section of her opinion, the minister’s delegate quoted from the
Reasons for Sentence of the Ontario Court of Justice as follows: “[Mr. Adinew]
has a Young Offender record, and so this was not his first experience with the
court or with the criminal justice system.” The danger opinion prepared makes
no specific mention of any proceeding under the Youth Criminal Justice Act,
S.C.
2002, c. 1 or
any correctional report and sentencing remarks related to a prosecution under
that legislation.
[18]
For
these reasons, this application for judicial review will be dismissed. In
response to the request by counsel for the applicant, Mr. Adinew will have
seven days from the date of these reasons to serve and file submissions, should
he chose to do so, concerning the certification of a serious question of
general importance. The respondent shall have an additional seven days to
reply.
“Allan
Lutfy”
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