Date: 20010411
Docket: A-614-97
Neutral citation: 2001 FCA 113
CORAM: DÉCARY J.A.
ROTHSTEIN J.A.
MALONE J.A.
BETWEEN:
HOANG VAN CHU
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HEARD at Vancouver, British Columbia on Tuesday, February 27, 2001
JUDGMENT delivered at Ottawa, Ontario on Wednesday, April 11, 2001
REASONS FOR JUDGMENT BY: ROTHSTEIN J.A.
CONCURRED IN BY: DÉCARY J.A.
MALONE J.A.
Date: 20010411
Docket: A-614-97
Neutral citation: 2001 FCA 113
CORAM: DÉCARY J.A.
ROTHSTEIN J.A.
MALONE J.A.
BETWEEN:
HOANG VAN CHU
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
ROTHSTEIN J.A.
[1] This appeal comes to this Court by way of a question certified by the Trial Division under subsection 83(1) of the Immigration Act. It involves the requirements of the duty of fairness pertaining to danger opinion proceedings under subsection 70(5) of the Immigration Act, R.S.C. 1985, c. I-2 as amended. The certified question states:
Does consideration by a decision maker of documentary evidence, regarding country information, that has been neither specifically identified for [sic] nor a copy provided to the convention refugee, who is the subject of a "danger to the public" opinion pursuant to s. 70(5) of the Immigration Act, offend the principals [sic] of natural justice, procedural fairness or fundamental justice?
[2] The Trial Division decision was rendered on August 28, 1997, prior to the Supreme Court's decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. Baker determined that on appeals under subsection 83(1) of the Immigration Act, this Court is not restricted to answering only the certified question (at paragraph 12). After the decision in Baker was issued, the appellant filed a supplementary memorandum of argument raising other issues, including whether the duty of fairness required that the Ministerial Opinion Report submitted to the Minister's delegate by officials of the Ministry of Citizenship and Immigration be disclosed to the appellant and that he be given an opportunity to respond to it.
[3] The appeal was argued on February 27, 2001. The judgment of this Court in Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. 341 (C.A.) (Q.L.), a danger opinion case, was issued on March 7, 2001. In Bhagwandass, it was determined that the duty of fairness required that the Ministerial Opinion Report and the Request for Minister's Opinion be disclosed to the party affected to enable him to make submissions to the Minister's delegate before the Minister's delegate decided whether to issue a danger opinion. After the Bhagwandass decision was issued, the Court circulated a copy to the parties and requested submissions as to how, if at all, this case was distinguishable from Bhagwandass. The parties made submissions, the appellant arguing that Bhagwandass was not distinguishable, the respondent arguing that it was. I have concluded that Bhagwandass is not distinguishable and that it is dispositive of this appeal.
[4] In Bhagwandass, Sharlow J.A. applied the decision of this Court in Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407 (C.A.) to danger opinions under subsection 70(5). Haghighi dealt with decisions based on compassionate and humanitarian considerations under subsection 114(2) of the Immigration Act. At paragraph 22 of Bhagwandass, Sharlow J.A. noted that Haghighi established that the duty of fairness requires advance disclosure of internal Ministry reports relied upon in making discretionary decisions where disclosure of the report is required to provide the individual affected "with a reasonable opportunity to participate in a meaningful manner in the decision making process". To determine whether disclosure is required, Haghighi identified five factors to be taken into account. Sharlow J.A. summarized these at paragraph 22 of Bhagwandass:
(1) the nature and effect of the decision within the statutory scheme;
(2) whether, because of the expertise of the writer of the report or other circumstances, the report is likely to have such a degree of influence on the decision maker that advance disclosure is required to "level the playing field";
(3) the harm likely to arise from a decision based on an incorrect or ill-considered understanding of the relevant circumstances;
(4) the extent to which advance disclosure of the report is likely to avoid the risk of an erroneously based decision; and
(5) any costs likely to arise from advance disclosure, including delays in the decision making process.
[5] A consideration of these factors in Bhagwandass led Sharlow J.A. to conclude that the duty of fairness required advance disclosure of the "Ministerial Opinion Report" and the "Request for Minister's Opinion," which summarized the facts of the case and recommended that Bhagwandass be considered a danger to the public under section 70(5). At paragraph 31, Sharlow J.A. reasoned that because the danger opinion process was adversarial from the outset and remained so until its conclusion, and because the reports were used to influence the Minister's delegate to render a danger opinion, they became a tool of advocacy which the affected party should be entitled to challenge.
[6] The respondent distinguishes Bhagwandass on the ground that the "Ministerial Opinion Report" in this case contained a "clear, neutral and balanced summary" of the relevant facts as well as of the appellant's submissions. Because of the balanced nature of the report, she argues there was no risk of an erroneously based decision being made. Moreover, because of the balanced nature of the report, the Ministerial Opinion Report was not a tool of advocacy.
[7] In this case, the process commenced with a February 26, 1996 letter to the appellant, indicating that the Department was in possession of evidence suggesting that the appellant was a danger to the public in Canada and that as a result, the Minister or her delegate would be considering whether to issue a danger opinion under subsection 70(5). While unlike Bhagwandass, the February 26 letter does not expressly state that the departmental officials would be seeking a danger opinion from the Minister or her delegate, the effect of the letter is obviously to that effect. The Ministerial Opinion Report, which is based on the evidence which the February 26 letter says, suggests that the appellant is a danger to the public, confirms that the process is adversarial from the outset and remains so until its conclusion.
[8] While the Ministerial Opinion Report in this case appears to be more carefully prepared and better balanced than similar documents in Bhagwandass, the duty of fairness requires disclosure because of the adversarial nature of the danger opinion process itself. In adversarial proceedings of this nature, fairness requires that documents submitted to a decision maker by one party be disclosed to the other. That duty is not diminished by the content or tone of the submis-sions made. As such, the decision in Bhagwandass is not distinguishable from the case at bar.
[9] As in Bhagwandass, the Minister here breached the duty of fairness to the appellant by failing to disclose to him the Ministerial Opinion Report in the form in which it was presented to the Minister's delegate and in failing to afford him a reasonable opportunity to respond to it.
[10] As noted earlier, the certified question in this case related to whether there was a duty to disclose country information documents to the appellant that had been neither specifically identified nor previously provided to him. The answer with respect to the Ministerial Opinion Report is equally applicable to other documents submitted by Ministry officials to the Minister's delegate. Any documents submitted to the Minister's delegate by Ministry officials acting in an adversarial role to the appellant must generally be disclosed to the appellant, or at least must be specifically identified if the documents are generally available. In this respect, prior decisions such as Chu (T.T.) v. Canada (Minister of Citizenship and Immigration) (1998), 225 N.R. 378 (F.C.A.), leave to appeal refused by Supreme Court of Canada (1998), 236 N.R. 387, and Nadarajah v. Canada (MCI) (1996), 33 Imm. L.R. (2d) 234 (F.C.T.D.), have been overtaken by Baker and Bhagwandass.
[11] The mischief that the Minister says would result if disclosure of the Ministerial Opinion Report and other documents submitted to the Minister's delegate by Ministry officials as required, is delay. Here, there is no indication that any delay need be lengthy. The appellant was initially given 15 days to respond to the letter initiating the danger opinion process. There seems to be no reason why any more than a further 15 days to respond to the Ministerial Opinion Report and other documents submitted to the Minister's delegate is required.
[12] In this case, the appellant received a deportation order on October 20, 1994. He filed an appeal from the deportation order to the Immigration Appeal Division on the same day. The danger opinion proceedings were not instituted by Ministry officials until February 22, 1996 and the Minister's delegate's decision was issued on March 15, 1996. The total elapsed time taken by Ministry officials to initiate danger opinion proceedings was well over one year. An additional 15 days would not appear to be an undue period of delay in order for requirements of procedural fairness to be met.
[13] Indeed, as found by Sharlow J.A. in Bhagwandass, disclosure could diffuse any possible arguments that the Minister's delegate disregarded important information, potentially removing a ground of judicial review. This could result in an overall reduction of time in the removal of persons found to be dangers to the public. It is worth repeating Sharlow J.A.'s observations relating to delay at paragraph 32:
[32] I have also concluded that the disclosure of the Ministerial Opinion Report and the Request for Minister's Opinion would not result in such delays in the deportation of dangerous persons that the object of the legislation would be frustrated. The additional delay need not be lengthy. It would be open to the Minister to impose deadlines on final submissions on the reports, to limit those submissions to points raised or that should have been raised in the reports on the basis of evidence previously submitted, and to refuse to accept any additional evidence, except in special circumstances. Also, the disclosure of the reports and responding submissions, if properly made, could defuse any possible argument that the Minister or Minister's delegate has disregarded some important information, potentially removing one ground from many applications for judicial review of danger opinions. That could result in an overall reduction of delay in the removal of dangerous criminals.
[14] In view of my findings with respect to the certified question and the requirement of disclosure of the Ministerial Opinion Report, it is unnecessary to deal with the other arguments raised by the appellant.
[15] The appeal should be allowed, the decision of the Trial Division is quashed and the matter is remitted to the Minister's delegate for redetermination according to the procedures required by this decision.
"Marshall Rothstein"
"I agree J.A.
Robert Décary J.A."
"I agree
Brian Malone J.A."
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