Date: 19980501
Docket: A-615-97
CORAM: STONE J.A.
DÉCARY J.A.
ROBERTSON J.A.
BETWEEN:
TAM THANH CHU
Appellant
(Applicant in the Trial Division)
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
(Respondent in the Trial Division)
Heard at Vancouver (British Columbia) on Wenesday, February 25, 1998.
Judgment delivered at Ottawa (Ontario) on Friday, May 1, 1998.
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: STONE J.A.
ROBERTSON J.A.
Date: 19980501
Docket: A-615-97
CORAM: STONE J.A.
DÉCARY J.A.
ROBERTSON J.A.
BETWEEN:
TAM THANH CHU
Appellant
(Applicant in the Trial Division)
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
(Respondent in the Trial Division)
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] This appeal deals with the following question certified by Reed J. pursuant to Subsection 83(1) of the Immigration Act1 ("the Act"):
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Does consideration by a decision maker of documentary evidence, regarding country information, that has been neither specifically identified for 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 princip[les] of natural justice, procedural fairness or fundamental justice? |
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The question is the very one certified by Reed J. in a companion case Hoang Van Chu v. Canada (Minister of Citizenship and Immigration)2, in which her reasons with respect to the within appeal are to be found. Therefore, references to "the reasons" of the Motions Judge, will be to her reasons in Hoang Van Chu. The appeal in Hoang Van Chu (A-614-97) is not yet ready to be heard.
[2] For purposes of convenience, I shall reproduce forthwith the text of subsection 70(5) of the Immigration Act3:
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70. (5) No appeal may be made to the Appeal Division by a person described in subsection (1) or paragraph (2)(a) or (b) 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 |
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(a) a member of an inadmissible class described in paragraph 19(1)(c), (c.1), (c.2) or (d); |
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(b) a person described in paragraph 27(1)(a.1); or |
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(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 |
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[3] The appellant was born in Vietnam in 1971. He spent four years in refugee camps in Hong Kong and the Philippines after fleeing from Vietnam and came to Canada in 1992. He was granted status as a permanent resident of Canada under the CR-1 category (selection abroad as a Convention refugee) upon his arrival.
[4] On March 30, 1993, the appellant was convicted of theft over a thousand dollars, and received a conditional discharge and probation for one year. On March 8, 1994, he was convicted on charges of conspiracy to commit the indictable offence of trafficking in a narcotic (heroin) and possession of a narcotic (heroin) for the purposes of trafficking. He was given a sentence of 7" years incarceration on each count, to be served concurrently.
[5] On April 5, 1994, the appellant was convicted on further criminal charges of the same nature and was given a 2 years and a 4 years sentences of incarceration to be served concurrently.
[6] On September 25, 1995, the appellant who was serving his sentence in William Head Institution, on Vancouver Island, received a notice from the Canada Immigration Centre of Victoria, B. C. regarding the " [...] possible issuance of the Minister's Opinion, pursuant to Subsection 70(5) of the Immigration Act that You are a Danger to the Public in Canada". The notice read as follows:
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Please be advised that the Department of Citizenship & Immigration is in possession of evidence suggesting that you are a danger to the public in Canada. As a result, the Minister will be considering whether to issue an opinion, pursuant to subsection 70(5) of the Immigration Act, that you are a danger to the public in Canada in the event that you are ordered deported by an adjudicator for reasons of serious criminality. The evidence to be considered by the Minister concerns both danger to the public and any equity (humanitarian and compassionate) factors, and consists of copies of the following documentation: |
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" Section 27 highlights Report |
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" Ministerial Opinion Report |
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* Correctional Services Report |
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If a deportation order or conditional deportation order is issued against you at your inquiry, the issuance of the Minister's opinion under subsection 70(5) will remove your right of appeal to the Immigration Appeal Division from the Deportation Order or Conditional Deportation Order. |
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In order to provide you with the opportunity to address the above noted evidence, you may forward to the above noted address any representations, information or 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. |
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If representation made by you or your counsel is received within 15 calendar days of your receipt of this letter, the representations will be considered by the Minister or his delegate in determining whether the opinion will be issued. |
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IF NO SUBMISSION, INFORMATION OR EVIDENCE ARE RECEIVED FROM YOU WITHIN 15 DAYS OF YOUR RECEIPT OF THIS LETTER, THE MINISTER MAY ISSUE AN OPINION BASED ON THE EVIDENCE BEFORE HIM. |
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[7] By letter dated September 29, 1995, the appellant acknowledged receipt of the notice and informed the Canada Immigration Centre that he would be seeking legal advice.
[8] On October 11 and 16, 1995, counsel for the appellant filed written submissions, in which the only reference to the humanity and compassionate factors was as follows:
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Conversely, Mr. Chu believes that if he is returned to Vietnam his prospects are harrying. In fact, he is certain that he would be killed for escaping the country. In any event, his fate would be precarious. |
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[9] On November 21, 1995, the Canada Immigration Centre sent a second notice, this time entitled "Notice of intention to seek the opinion of the Minister pursuant to subsection 70(5) and subparagraph 46.01(1)(e)(iv), paragraph 53(1)(a), (c) or (d) of the Immigration Act that you are a danger to the public in Canada". That notice read as follows:
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You are hereby advised that Citizenship and Immigration Canada (CIC) possesses evidence suggesting you are a person in Canada who is a danger to the public. We intend to request an opinion to that effect from the Minister of Citizenship and Immigration. This opinion, if given, will have serious consequences for you as explained below. |
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If the Minister is of the opinion that you are a danger to the public in Canada under subsection 70(5) of the Immigration Act, you will not have a right to appeal a deportation order to the Immigration Appeal Division of the Immigration and Refugee Board and /pursuant to subparagraph 46.01(1)(e)(iv) of the Act, if you have made or intend to make a refugee claim it will not be referred to the Convention Refugee Determination Division of the Immigration and Refugee Board for determination /pursuant to paragraph 53(1)(a)(c)(d) of the Act/, you may be removed from Canada to the country from which you have determined to be a Convention refugee. |
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The Minister will consider whether you are a danger to the public as well as any humanitarian and compassionate circumstances pertinent to your situation. This will require an assessment of the threat you pose to the public in Canada and the possibility of risk to you which could be precipitated by returning you to the country from which you came to Canada, the country of your permanent residence, the country of your nationality or the country of your birth. The following is a list of documents which may be considered by the Minister: |
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* Danger to the Public Ministerial Opinion Report |
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* Section 27 highlights report |
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* Correctional Services Report |
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Please note, CIC may refer to the most recent and current country information available at the Immigration and Refugee Board Documentation Centres. This includes the "Human Rights Package", the "Contextual Package", the "Indexed Media Review" and the "Weekly Media Review" covering the country or countries to which you may be removed. CIC may also use other annually published and publicly available material such as the United States Department of State Country Reports on Human Rights Practises, the Lawyers' Committee for Human Rights Critique, Amnesty International Reports, Reporters Sans Frontier Rapport, World Europa and the Human Rights Watch World Report. |
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Before the Minister forms his opinion, you may make such written representations or arguments as you deem necessary and submit any documentary evidence you believe relevant. Any such representations, arguments or evidence will be considered by the Minister but must be received by CIC at the address noted above on or before the expiration of 15 days from receipt of this letter. Your evidence, argument or other representations should address whether or not you are a danger to the public, whether compelling compassionate or humanitarian considerations are present in your case, or the extent to which your life or freedoms are threatened by removal from Canada. |
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[10] On November 27, 1995, the appellant, apparently without benefit of counsel, filed written submissions in the form of a one-page letter signed by himself which did not refer to humanitarian and compassionate factors and of letters of support signed by various friends or persons in authority.
[11] On March 7, 1996, a Reviewing Officer employed by the "Criminal Backlog Review Task Force" reviewed both the appellant's materials and those materials received from the Department of Citizenship and Immigration, and prepared a 3-page report entitled:
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SUBSECTIONS 53(1) & 70(5) |
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[12] One of the documents considered by the Reviewing Officer was a document prepared by the High Commissioner for Refugees at the request of the Department and which related to "Return of Vietnamese asylum seekers". The document was received by the Department on May 4, 1995. (A.B. at 76-78).
[13] The Department had enquired as to whether "unsuccessful Vietnamese asylum-seekers face any penalties upon their return to Vietnam and in general how they are treated?". The reply by the office of the High Commissioner discussed from paragraphs 1.1 to 1.6 the Vietnamese Penal Code provisions respecting illegal immigration/emigration or illegal stay abroad, and the penalties therefor, and in paragraph 1.7 contained the following with respect to the general treatment of unsuccessful Vietnamese asylum-seekers:
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1.7. From six years of experience in visiting many thousand returnees in over 300 districts and city-wards all throughout Vietnam, we may state that they are generally treated well with no discriminatory measures taken against them. |
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[14] That document which presumably was part of the documentation available at Documentation Centres at the time the appellant had made his last submissions on November 27, 1995, had not been specifically identified in the notices sent to the appellant and had not been provided to him.
[15] In a document entitled "Opinion of the Minister pursuant to subsection 70(5) of the Immigration Act" and dated March 11, 1996, the Minister's delegate concluded that the appellant constituted "a danger to the public in Canada". (A.B. at 7).
[16] At the hearing of the application for judicial review, counsel for the appellant made three arguments, only one of which is relevant to the question certified in this appeal. That argument was that "the Minister's delegate relied on extrinsic materials in assessing the risk to the applicant should he be returned to Vietnam - materials that were not provided to the applicant and that were in any event misinterpreted by departmental officials." (Reed J.'s reasons, in the companion case, at 1).
[17] The argument was dismissed by Reed J. as follows in the companion case:
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The applicant was informed on February 28, 1996, that it was possible that a subsection 53(1) and subsection 70(5) decision would be made. He was given a list of documents that would be considered by the Minister's delegate as evidence. He was also informed that additional sources might be considered in assessing the risk to him if he were returned to the country from which he had been granted refugee status. The sources were described in the notice given to him as "Country Reports on Human Rights Practices for 1994 and other publicly available documentary material." (underlining added). He was given fifteen days to respond. He was incarcerated at Williams Head Institution, on Vancouver Island. He did not seek and extension of the fifteen-day period. He had assistance, in preparing his response, from the Law Centre in Victoria. |
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In Nguyen v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 697 (Court File Imm-1683-96), Mr. Justice Gibson appears to have had a fact situation before him that is very similar to that which exists in the present case. Documents relating to risk assessment that were not made available to the applicant were relied upon. Some of the documentation appears to be identical to that relied upon by the writer of the Opinion Report in this case. However, Mr. Justice Gibson noted that, in the case before him, counsel for the respondent had acknowledged that there was no evidence that the documentation in question was "publicly available documentary material". |
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Counsel for the respondent, in the present case, argues that the documentation was publicly available. It was and is available in the Immigration and Refugee Board Documentation Centres and she argues that this is widely known by those practicing in the immigration field. Counsel for the respondent notes that there are a number of cases that have held, in other contexts (e.g. PDRCC decisions, CRDD decisions), that reliance by a decision maker on this material, without specifically including it in the material provided to an applicant, does not offend the principles of natural justice. |
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Counsel for the applicant is correct that the content of some of the above described documents appears to have been quoted in the Opinion Report out of context. Part of the UNHCR document is quoted as though the text applied to all returning Vietnamese draft dodgers when the document states that it can only speak with confidence about those who are returned under the auspice of a Memorandum of Understanding between the United Nations and Vietnam. There is, however, as with the case of the danger to the public decision, material on file (the Response document) that can support the minimal risk conclusion of the Opinion Report. Again, as with the danger to the public decision, presumably one cannot know whether the Opinion Report played any role in the final decision. And, in any event, it is not clear to me what role the assessment of risk to the applicant in Vietnam plays in the danger to the public decision. |
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After weighing all counsels' arguments, I have not been persuaded that the present application should succeed [...] |
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[Reasons, companion case at 3-5] |
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[18] At the hearing of the appeal, we asked counsel to file written submissions "with respect to whether the decision-maker, acting pursuant to subsection 70(5) of the Immigration Act, possessed authority to take into account humanitarian and compassionate considerations including the risk to the appellant of persecution in the country to which he is to be returned".
[19] That question was put to counsel in view of the fact that the text of subsection 70(5) does not refer to humanitarian and compassionate considerations. Reed J. in the companion decision and this Court in Williams v. Canada (Minister of Citizenship and Immigration) (1997), 212 N.R. 63 at 75, Strayer J.A. (F.C.A.) had wondered whether humanitarian considerations were relevant to the proper formation of an opinion under subsection 70(5).
[20] Counsel have now filed their written submissions. Those filed on behalf of the Minister have proven to be remarkably unhelpful. Those filed on behalf of the appellant essentially relate the practice of the Minister to take into account the risk factor in the country of deportation to the objective of Canadian immigration policy, as described in paragraph 3(g) of the Immigration Act,
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to fulfil Canada's international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and the persecuted |
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as well as to the discretion conferred on the Minister by section 2.1 of the Immigration Regulations, 1978 ("the Regulations") (that section was adopted pursuant to subsection 114(2) of the Act)
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[...] to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations. |
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[21] It is not clear to me how the discretionary power of the Minister under subsection 114(2) to exempt from any regulation can help a person with respect to whom an opinion is formed not under a regulation but under subsection 70(5) of the Act. Neither is it clear what effect, if any, Canada's humanitarian tradition (paragraph 3(g) of the Act) might have on the forming of an opinion as to whether a person constitutes a danger to the public in Canada. As noted in Williams, at 70, the process under subsection 70(5) is distinct from that under subsection 114(2).
[22] Be that as it may, the Minister has obviously found it expedient to adopt the practice of seeking submissions with respect to both processes at the same time. This is a policy decision, presumably authorized under paragraph 3(g) of the Act, which I am not prepared to question in the circumstances: consideration having been given to humanitarian considerations, the appellant was entitled in that regard as well to the benefit of the rules of fairness. One wonders, however, if a person found under subsection 70(5) to constitute a danger to the public in Canada despite consideration of humanitarian factors could be said to have waived his or her right, prior to deportation, to seek an exemption under subsection 114(2).
[23] This Court, in a decision filed the same day as the within one (Mancia v. Canada (Minister of Citizenship and Immigration, A-75-97), has examined what were the requirements of the duty of fairness in circumstances that have some similarity with the present ones. At issue in that case was the Post Determination Refugee Claimants in Canada Class process. The certified question read as follows:
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Does an immigration officer conducting a review pursuant to the PDRCC regulations violate the principle of fairness, as enunciated by the Federal Court of Appeal in Shah[4], when he or she fails to disclose, in advance of determining the matter, documents relied upon from public sources in relation to general country conditions? |
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and the answer given was:
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[26] I would therefore answer the certified question as follows, it being understood that each case will have to be decided according to its own circumstances and it being assumed that the documents at issue in a given case are of a nature such as that described above: |
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a) with respect to documents relied upon from public sources in relation to general country conditions which were available and accessible at Documentation Centres at the time submissions were made by an applicant, fairness does not require the Post Claims Determination Officer to disclose them in advance of determining the matter; |
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b) with respect to documents relied upon from public sources in relation to general country conditions which became available and accessible after the filing of an applicant's submissions, fairness requires disclosure by the Post Claims Determination Officer where they are novel and significant and where they evidence changes in the general country conditions that may affect the decision. |
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[24] In reaching that conclusion, the Court had given regard to a) the nature of the proceeding and the rules under which the decision-maker was acting, b) the context of the proceeding and c) the nature of the documents at issue in such proceedings. I shall use the same approach in the case at bar.
| a) The nature of the proceeding and the rules under which the decision-maker is acting |
[25] The nature of the proceeding under subsection 70(5) was described as follows by Strayer J.A. in Williams, at 79:
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[49] I believe it is fair to assume that the requirements of "natural justice" are subsumed under the general category of "fairness", particularly in respect of an administrative decision such as this. It is beyond debate that the requirements of fairness depend on the seriousness of the decision being taken. In my view, as expressed above, the consequence of this decision is not an order of deportation but rather the withdrawal of a discretionary power to exempt Williams from lawful deportation, such discretion instead being limited thereafter to exercise by the Minister. It also substitutes the possibility of a discretionary stay for an automatic statutory stay. The decision-making authorized by s. 70(5) is not judicial or quasi-judicial in nature involving the application of preexisting legal principles to specific factual determinations, but rather the formation of an opinion in good faith drawn from the probabilities as perceived by the Minister from an examination of relevant material and an assessment as to the acceptability of the probable risk. In such circumstances the requirements of fairness are minimal and have surely been met for the same reasons as I have concluded that requirements of fundamental justice, if applicable, have been met. |
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I need only add that no procedural requirements are mandated by the Act or the Regulations.
b) The context of the proceeding
[26] In Mancia, the PDRCC process applied by its very nature to persons who were familiar with the refugee process in which reliance is made to published documentary sources of information on country conditions. In the case at bar, even though the certified question refers to a "convention refugee", it is obvious that the appellant did not go through the usual refugee process and cannot be deemed to have been aware of the practice of resorting to general country information available in Documentation Centres.
[27] However, and possibly for that very reason, the November 21, 1995 Notice sent to the appellant alerted him expressly to the fact that "the most recent and current country information available at the Immigration and Refugee Board Documentation Centres" might be considered by the Canada Immigration Centre. While, in Mancia, the appellant was, because of his past experience with the process, deemed to have knowledge of the nature of the evidence that might be considered, here, the appellant was expressly told about it. In both cases, therefore, the duty of fairness did not require more than what had actually been done.
[28] Counsel has submitted that the delay of fifteen days given to the appellant to file his representations was too short in the circumstances. That delay, admittedly, is short, but absent evidence that the appellant sought an extension or that extensions were never granted as a matter of principle, I fail to see how the short delay could by itself be said to offend the duty of fairness.
[29] Counsel has also suggested that the appellant was entitled to special considerations because he had apparently not sought to retain counsel after receiving the second notice. Here again, absent evidence that he sought in vain to retain counsel, I do not see on what basis his failure to seek counsel assistance could offend the duty of fairness.
c) The nature of the documents at issue in such proceedings
[30] The impugned document " that prepared by the High Commissioner for Refugees at the request of the Department " has been received by the Department on May 4, 1995, some six months before the November 21, 1995 Notice. There is no evidence that it was not available and accessible at Documentation Centres at the time the appellant was directed to these Centres. The principle set out in Mancia is therefore clearly applicable.
[31] I would answer the certified question in the negative in the circumstances of this case and dismiss the appeal.
"Robert Décary"
J.A.
"I agree
A.J. Stone J.A."
"I agree:
J.T. Robertson J.A."
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1 R.S.C. 1985, c. I-2, as amended.
2 Chu v. Canada (Minister of Citizenship and Immigration) (1997), 135 F.T.R. 206.
3 That subsection was enacted by subsection 13(3) of the Act to amend the Immigration Act, S.C. 1994-95, c. 15 and was proclaimed into law on July 10, 1995.
4 Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.) aff'g (1992), 55 F.T.R. 87.
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