Date: 20070117
Docket: IMM-1929-06
Citation: 2007 FC 46
Ottawa, Ontario, January 17,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
YOHANNES
MEHARI MIRCHA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
judicial review is in respect of a decision by the Minister’s Delegate that a
danger opinion rendered May 24, 1996 (emphasis by Court) will remain in
effect. The decision under review (March 2, 2006) is almost 10 years after the
initial danger opinion. The Applicant has remained in Canada throughout
this period, partly because he was in jail but also during part of that time he
was the primary caregiver to two children while his common-law wife was
undergoing treatment for mental illness.
II. BACKGROUND
[2]
The
Applicant was found to be a Convention refugee and became a permanent resident
in May 1989.
[3]
In
1995 the Applicant was convicted of sexual assault on two 15 year old girls.
One of these assaults was videotaped. Alcohol played an important part in both
assaults. He was sentenced to serve six years in prison.
[4]
The
Respondent issued a danger opinion against him in May 1996 while the Applicant
was in prison. He was ordered deported and his application for judicial review
was dismissed.
[5]
In
October 1999 the Applicant was released from prison but his deportation was
delayed while the Respondent attempted to obtain travel documents from the
Government of Ethiopia. His removal was further delayed by this Court’s order
staying removal pending the disposition of the Applicant’s application
challenging the refusal to reconsider the initial danger opinion. The Minister
ultimately consented to the reconsideration which had led to these proceedings.
[6]
In
the reconsideration document package disclosed to the Applicant were the
following new critical facts:
·
On
June 6, 2004, an information was laid against the Applicant on behalf of his
former common-law wife fearing violence from him due to a series of prior incidents;
·
The
Applicant had entered into an undertaking which included avoiding contact with
his former common-law wife;
·
On
July 23, 2004 the Applicant was charged with assault and being in breach of his
recognizance for which he was ultimately convicted on only the breach of his
recognizance. The breach was for contacting the former common-law wife; he was
sentenced to one day with the record to reflect time served and probation for
nine months;
·
On
June 28, 2004, his former common-law wife’s sister wrote to Immigration
officials alleging that the Applicant continued to drink and was a danger to
her sister.
[7]
In
the Applicant’s submissions to the Minister’s Delegate, his counsel objected to
the June 28, 2004 letter, asked for the opportunity to cross-examine the
writer and filed the Applicant’s rebuttal affidavit. In that affidavit, the
Applicant does not challenge the allegation of his continued drinking.
[8]
In
the decision under review, the Minister’s Delegate cites passages from Justice
Mactavish’s decision in Thuraisingam v. Canada (Minister of Citizenship and
Immigration), 2004 FC 607 to the effect that a Minister’s Delegate should
go beyond accepting mere allegations of possible criminal acts and should examine
the facts underlying the allegations in rendering a danger opinion.
[9]
The
reasons of the Minister’s Delegate for affirming the danger opinion were that
(a) the recent charges and conviction indicate that the Applicant has not
turned his life around and is not rehabilitated, and (b) he continues to drink.
[10]
The
Applicant challenges this decision on four grounds:
1. The
Applicant had only one, and a minor, breach of his bail but he had shown
sufficient reform and good conduct to be allowed to take care of the children;
2. A
conviction is not a sufficient basis for a danger opinion;
3. His
“sister-in-law” had engaged in a “poison pen” writing exercise for personal
reasons; and
4. There
was a breach of natural justice in not permitting the Applicant’s counsel the
opportunity to confront the “sister-in-law” and her letter.
III. ANALYSIS
[11]
The
standard of review in respect of danger opinions has been set by the Supreme
Court of Canada in Ahani v. Canada (Minister of Citizenship and Immigration),
[2002] 1 S.C.R. 72 at paragraph 16 as “patent unreasonableness”. That standard
does not apply to the denial of natural justice issue which is to be determined
on the basis of “correctness”.
[12]
Therefore
the real issue raised by the first three grounds is whether the Minister’s
Delegate was patently unreasonable in concluding that the Applicant had not
rehabilitated himself sufficiently to effectively expunge the initial danger
opinion.
[13]
There
are, certainly, factors which go against the conclusion of the Minister’s
Delegate. These include that the recent conviction was a minor offence arising
from a desire to see his child on the child’s birthday; the “sister-in-law” had
personal motives for her allegation that there was danger; and that he had
support from his psychologist and social worker dealing with his wife’s mental
illness and his fitness to care for the children.
[14]
Given
the standard of review, I cannot find that the decision of the Minister’s
Delegate is patently unreasonable. There was some reasonable evidence on which
to ground the conclusion.
[15]
The
Applicant had a history of violence related to alcohol. A psychologist’s report
(Certified Tribunal Record, p. 71-73) confirmed that alcohol played a part in
the Applicant’s criminal acts. He was a risk because of the relation between
his alcohol use and his propensity for violence.
[16]
The
Applicant was given an opportunity to rebut, in affidavit form, the
“sister-in-law’s” allegation that he was drinking. It was particularly telling
that the Applicant did not deny this allegation – an allegation which goes to
the root of what made him a danger to others.
[17]
Taken
in the context of the Applicant’s past actions, the Minister’s Delegate had a
basis for reaching the conclusion which he did. His continued drinking formed a
sufficient basis for a conclusion that this fact and others related to his bad
conduct outweighed the positive evidence.
[18]
As
to the breach of natural justice, I cannot agree with the suggestion that in a
reconsideration of a danger opinion where there was a public hearing on the
initial opinion, the level of fairness owed on the reconsideration is low. I do
not believe that McLaren v. Canada (Minister f Citizenship and Immigration) (C.A.), 2001 FCT 373 can be
said to hold that this is a universal proposition. It depends on the basis of
the reconsideration. As held by the Court of Appeal in Bhagwandass v. Canada (Minister of
Citizenship and Immigration), 2001 FCA 49, the danger opinion process is
adversarial and has serious consequences. Neither the adversarial nature nor
the seriousness of the consequences change merely because the process is a
reconsideration of a danger opinion.
[19]
The
Applicant’s case on this issue would have been stronger if he had denied the
allegations of drinking made against him. Those allegations are fundamental to
his case. He failed to even deny that they were true. He can hardly complain
about his inability to confront his accuser on a key issue which he does not
deny or challenge.
IV. CONCLUSION
[20]
Therefore,
for these reasons, this judicial review will be dismissed. There is no question
to be certified.
JUDGMENT
IT IS ORDERED THAT this
application for judicial review will be dismissed.
“Michael
L. Phelan”
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