Date: 20030502
Docket: IMM-1893-02
Ottawa, Ontario, this 2nd day of May, 2003
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
CONG DANH DO
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Cong Danh Do (the "applicant") seeks judicial review of a declaration by the Minister of Citizenship and Immigration (the "respondent"). In the declaration, an agent of the Minister, Ms. Claudette Deschênes (the "Minister's Delegate"), issued on behalf of the Minister an opinion that the applicant constitutes a danger to the public in Canada (the "Danger Opinion"). The Danger Opinion was issued on April 12, 2002, pursuant to paragraph 46.01(1)(e) and subsection 70(5) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"). "Danger Opinions" had previously been issued in respect of this applicant, but were subsequently quashed. These will simply be referred to as "danger opinions". Only the declaration currently under review will be referred to with the capitalized designation "Danger Opinion".
[2] The issue before this Court is whether the process which led to the Danger Opinion lacked procedural fairness, whether errors of law were made in issuing the Danger Opinion, or whether the Danger Opinion itself was based on erroneous findings of fact.
[3] This application is allowed for the reasons set out below.
BACKGROUND
[4] The applicant, 32 years of age at the time of this hearing, has permanent resident status in Canada. He arrived in Canada in 1982, having left Vietnam with his brother at the age of eight. Between his departure from Vietnam and his arrival in Canada, he spent time in camps in Thailand before flying to Montreal from that country.
[5] The applicant has been convicted of several criminal offences in Canada. In December 1990, he was convicted of breaking and entering, assault with a weapon, causing bodily harm using a firearm with intent to wound or endanger the life of a person, and use of a firearm in the commission of an offence. He was sentenced to a total term of imprisonment of two years for these offences.
[6] In March 1996, the applicant was convicted of fraud and sentenced to one year in jail. In September 1996, the applicant was sentenced to a total of forty months in prison on three counts of conspiracy to traffic in narcotics, three counts of trafficking in narcotics, and three additional counts of trafficking in narcotics for which sentences were imposed concurrently with the punishments on the other counts. An additional conviction on two counts of fraud was registered in May 1997.
Previous proceedings
[7] During his time in detention, the applicant was the subject of numerous evaluation reports. These reports, prepared by Correctional Services Canada ("CSC"), are included in the Certified Record ("CR") provided by the respondent. Among these reports are psychiatric and psychological evaluations prepared by the Quebec Regional Reception Centre [in French, Centre Régional de Réception or CRR].
[8] One of the CRR reports, released on April 24, 1997, indicated that the applicant posed a lower than average risk of violent behaviour. A cumulative report on the state of the applicant, known as the "Rapport Récapitulatif", was prepared in 1998. The Rapport Récapitulatif did not mention the 1997 CRR report, which was favourable to the applicant. It did, however, refer to a 1991 report which stated that the applicant was a dangerous person.
[9] On the basis of the "Rapport Récapitulatif", a delegate of the respondent issued a danger opinion, dated July 8, 1998. This danger opinion was quashed upon judicial review by Tremblay-Lamer J.: see Do v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 797 (T.D.) (QL). Tremblay-Lamer J. held that the failure of the respondent's delegate to consider the 1997 CRR report was an error and rendered the danger opinion reviewable. Although that report was not mentioned in the "Rapport Récapitulatif", the respondent nonetheless had ready access to this document, which the Court held was highly relevant.
[10] The applicant was released from the custody of CSC by way of statutory release ("Libération d'Office") on June 8, 1999. Following his release from jail, the applicant was detained by the respondent. An adjudicator of the Immigration and Refugee Board ("IRB") released him to his wife and child on $3,000 bail. The decision of the adjudicator was rendered June 10, 1999.
[11] On August 6, 1999, the respondent again issued a danger opinion, pursuant to paragraph 46.01(e) and subsection 70(5) of the Act. This decision was set aside upon judicial review by Rouleau J.: see Do v. Canada (Minister of Citizenship and Immigration) (2001), 199 F.T.R. 247 (F.C.T.D.). Prior to the disposition of that judicial review application, the applicant was deported on June 19, 2000. His stay application had been dismissed.
[12] Rouleau J. granted the application on the ground that the summary documents on which the respondent's delegate based the danger opinion should have been disclosed to the applicant. It was an error not to disclose to the applicant the bases on which the decision would be made so that he could understand the manner in which the case was to be presented to the decision maker and comment on those materials. The Court based its ruling, in large part, on the judgments of the Federal Court in Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 619 (T.D.) and Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C 407 (C.A.).
[13] Although the failure to disclose this information to the applicant was a sufficient ground for the Court to set aside the danger opinion, Rouleau J. commented on other aspects of the danger opinion that were before the Court. Rouleau J. stated his view that there was sufficient evidence to allow the decision maker to issue a danger opinion, and the legal presumption that the decision maker considered all the evidence could not be rebutted here. It was also not established that humanitarian and compassionate considerations had not been taken into account. The reasons for the danger opinion were also held to be adequate.
[14] On February 28, 2002, the Immigration Appeal Division ("IAD") of the IRB issued an order granting the applicant permission to re-enter Canada for the hearing of the appeal that he filed in respect of the removal order issued against him on November 17, 1998.
Current Danger Opinion
[15] On March 16, 2002, a request for the opinion of the Minister ("Demande pour l'avis du ministre") was issued. It was signed by Ms. Denise Bédard, an analyst employed by the respondent Ministry, and Linda Hill, a case processing manager ("Directrice, traitement des cas"). In the request, the applicant's criminal convictions and reports by CSC were prepared under the "Danger Profile" ("Profil de danger") section. The submissions of the applicant were then mentioned, and considerations with respect to the risk of harm that the applicant could face in Vietnam were discussed. Ms. Bédard and Ms. Hill concluded the request by stating that they sought an opinion from the Minister that the applicant was a danger to the public in Canada.
[16] On April 12, 2002, the Minister's Delegate issued the Danger Opinion. In her view, the information that she received from the applicant was insufficient to convince her that the recommendation of Ms. Bédard and Ms. Hill should not be followed. She decided that the Request for the Minister's opinion, as well as the Ministerial Opinion Report ("Rapport sur l'avis du Ministre"), reflected a sound basis for her opinion that the applicant constituted a danger to the public in Canada. The Danger Opinion was accompanied by a notice stating that the applicant and his counsel were notified of the request and given copies of the request and supporting documents in order to allow the applicant and his counsel to make submissions.
[17] When the Danger Opinion was released, the applicant had been preparing to return to Canada for the hearing of his appeal from the removal order issued against him on November 17, 1998. The IAD had issued an Order on February 28, 2002, which authorized the applicant to return to Canada for the hearing of this appeal, subject to the conditions set out in the Order.
ISSUES
[18] This application raises the following issues:
a) Did the Minister's Delegate render the Danger Opinion in a perverse, illegal and unreasonable manner, without regard to all of the relevant evidence before her, or lack the jurisdiction to issue the Danger Opinion?
b) Was the Minister's Delegate required to consider humanitarian and compassionate factors in arriving at her decision to issue the Danger Opinion? If so, did she fail to give adequate consideration to these factors?
SUBMISSIONS
Applicant
[19] The Minister's Delegate made a perverse decision, failing to consider evidence which militated in favour of a finding that the applicant was not a danger to the public. In particular, three reports indicating that the applicant was not a danger were not considered. These reports had been prepared by parties that did not have a direct interest in the outcome of this matter.
[20] In addition, the Danger Opinion does not mention the wife and Canadian-born child of the applicant, indicating that they were not considered. In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the Supreme Court mandates that the interests of children who stand to be affected by a decision deserve full and fair consideration in any analysis of humanitarian and compassionate considerations.
[21] Among the humanitarian and compassionate considerations that ought to have been considered are the fact that the son of the applicant risks being deprived of his father during his childhood, and the fact that the applicant's personal and cultural ties, including his immediate and extended family, are entirely in Canada. In Vietnam, he was accused of being a "traitor" and was arrested and imprisoned.
[22] The applicant takes issue with the view of the respondent that he is a danger to Canada now because of his violent past. The violence in his past was committed over twelve years ago, and he has not been in trouble with the law for violent acts since then. There is also no evidence to support the respondent's claim that police have referred to him as incorrigible ("irrécupérable", as quoted in the submissions of the applicant). The reports of the psychologist and other reports in the file suggest the opposite conclusion. The applicant claims that in the absence of evidence that he is a danger to the public in Canada, the Minister's Delegate did not have jurisdiction to issue the Danger Opinion.
[23] In concluding that the danger to Canada in having the applicant remain here is greater than the risk faced by the applicant if he is required to leave Canada, the Minister's Delegate did not mention the applicant's wife, a Canadian citizen, or their child. Baker, supra, requires these interests to be considered in the balancing of interests that the respondent undertakes in considering humanitarian and compassionate grounds.
[24] This Court has held that the principles expressed in Baker apply to cases in which a danger opinion is under review: Andino v. Canada (Minister of Citizenship and Immigration), [2001] 1 F.C. 70 (T.D.). Lutfy A.C.J. reiterated the ruling in Baker that those whose interests may be affected by a decision are entitled to have their interests fully and fairly considered.
[25] Andino, supra, also supports the ruling of this Court in Bhagwandass, supra. In paragraph 28, Gibson J. held in Bhagwandass, that the duty of fairness required with respect to a danger opinion is not simply "minimal".
[26] In the applicant's view, the reasons given in the present case are minimal and consist only of generalities. They do not show that the Minister's Delegate had any regard for the wife and child of the applicant, and do not give any indication to the applicant as to how the decision was reached.
[27] The applicant also notes that when his counsel made motions to reopen his case and seek permission for the applicant to return to Canada, the respondent did not contest those proceedings. The applicant suggests that had the respondent perceived him as a danger, the respondent could have contested the motions.
Respondent
[28] The procedure by which the Danger Opinion was produced was consistent with the requirements in Bhagwandass and in Chu v. Canada (Minister of Citizenship and Immigration), 2001 FCA 113, [2001] F.C.J. No. 554 (C.A.) (QL). The decision is reasonable and is supported by the evidence.
[29] In the decisions quashing the first two danger opinions, the judgments were not based on the merits of the danger opinion itself. The respondent stresses that in the decision setting aside the second danger opinion, Rouleau J. acknowledged that there was sufficient evidence to support a finding that the applicant is a danger to the public in Canada. Only matters of procedural fairness prevented the first two danger opinions from withstanding judicial scrutiny.
[30] Those who are not citizens of Canada do not have an unqualified right to enter or remain in Canada: Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711. When the applicant was convicted of the offences for which he was tried in 1990, the applicant became a person described in subparagraph 27(1)(d)(i) of the Act. As such, he violated a condition under which he was permitted to remain in Canada and the adjudicator was accordingly entitled to render him subject to deportation following an inquiry. Subparagraph 27(1)(d)(i) provides:
| 27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who
[...]
(d) has been convicted of an offence under any Act of Parliament, [...], for which a term of imprisonment of more than six months has been, or five years or more may be, imposed;
[...]. |
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27. (1) L'agent d'immigration ou l'agent de la paix doit faire part au sous-ministre, dans un rapport écrit et circonstancié, de renseignements concernant un résident permanent et indiquant que celui-ci, selon le cas_:
[...]
d) a été déclaré coupable d'une infraction prévue par une loi fédérale, [...]:
(i) soit pour laquelle une peine d'emprisonnement de plus de six mois a été imposée, (ii) soit qui peut être punissable d'un emprisonnement maximal égal ou supérieur à cinq ans;
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[31] The Supreme Court ruled that the standard of review applicable to an opinion that a Convention refugee constitutes a danger to the security of Canada is a standard of patent unreasonableness: Suresh v. Canada (Minister of Citizenship and Immigration), [2002] S.C.R. 3, 2002 SCC 1. The same standard ought to be applied when the person who is the subject of the danger opinion is not a Convention refugee. It is not the role of the Court to exercise the discretionary power that Parliament intended to give to the Minister for use by his or her delegates. Weighing of evidence is a part of that discretionary power which this Court should not usurp.
[32] In addition, the evidence was not entirely favourable to the conclusion that the applicant is not a danger to the public in Canada. Rouleau J. acknowledged this in his judgment, and also stated that there is no evidence to show that the Minister's Delegate failed to consider the documents to which the applicant pointed as being favourable to him. These documents were mentioned in the Request for the Minister's opinion.
[33] The documents that the applicant sought to have the Minister consider as evidence in his favour indicate, in fact, that the risk of recidivism on the part of the applicant is still present. In spite of his claim that he has been rehabilitated, sufficient evidence remains to support the opinion that the applicant is a danger to the public. His convictions on drug offences are particularly noted, as is the fact that his statutory release was revoked in 1999 after he was caught driving without a license, in breach of a condition of his release. The criminal record of the applicant, viewed as a whole, as well as his involvement in an Asian organized crime group, show that the applicant is at risk of re-offending and remains a danger to the public in Canada today.
[34] The Danger Opinion does refer to the humanitarian and compassionate considerations in the applicant's file. Reference to these grounds is also made in the request for the Minister's opinion, in which the applicant's submissions on this point are mentioned. In his judgment on the second danger opinion, Rouleau J. states that the applicant had not convinced him that the interests of the applicant's child had not been considered.
[35] A decision maker is presumed to have considered all the evidence before it: Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102. The applicant has not rebutted the presumption that the Minister's Delegate did consider all the humanitarian considerations. He has not provided the clear and convincing evidence required to rebut that presumption.
[36] The submissions of the applicant regarding the application of Baker to the present case are not well-founded. Baker did not involve a danger opinion. In addition, the Supreme Court of Canada only stated in that case that procedural fairness requires that the interests of persons affected by an important decision be considered by an immigration officer. Baker does not preclude the removal from Canada of anyone who has Canadian-born children, regardless of circumstances.
[37] The primary concern of the Minister's Delegate in the present case is whether the applicant constitutes a present or future danger to the people of Canada. This is a vastly different determination from the one which was the subject of review in Baker, where humanitarian and compassionate considerations played a more central role.
[38] The best interests of the spouse or child of an applicant will not always trump other considerations. The nature of a danger opinion is such that it may be warranted even after due consideration of the interests of family members. Subsection 3(i) of the Act states the maintenance and protection of the health, safety and good order of Canada as an objective of immigration policy. When that objective is considered along with the crimes for which the applicant has been convicted, it was reasonable to conclude that these objectives were to take precedence over any humanitarian and compassionate factors. In addition, the applicant made submissions to the Minister's Delegate. He had a full opportunity to make submissions with respect to such humanitarian considerations as those regarding his family at that time.
ANALYSIS
[39] The two main issues addressed by the parties are the reasonableness of the decision; that is, whether the decision was one that could reasonably have been made given the evidence before the Minister's Delegate, and the question as to whether humanitarian and compassionate considerations were adequately addressed.
Reasonableness based on evidence
[40] This Court has established that the standard of review applicable to the issuance of a danger opinion is reasonableness simpliciter: Bhagwandass. See also Mullings v. Canada (Minister of Citizenship and Immigration), 2001 FCT 607, (2001) 206 F.T.R. 93 (F.C.T.D.). The application of this standard to decisions of this nature is based on the decision of the Supreme Court in Baker. In that decision, L'Heureux-Dubé J. examined the factors to be considered in determining an appropriate standard of review, as set out in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, and determined that the standard of review in that case ought not to be as deferential as "patent unreasonableness". This Court has taken a similar stance with respect to judicial review of danger opinions; some deference is warranted, but not such a high degree of deference that a danger opinion could only be struck down if it is tainted by an error which is obvious on the face of the decision.
[41] The provisions pursuant to which the Danger Opinion was issued are paragraph 46.01(1)(e) and subsection 70(5). These provisions read as follows:
| 46.01 (1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the person
[...]
(e) has been determined by an adjudicator to be
(i) a person described in paragraph 19(1)(c) or subparagraph 19(1)(c.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada,
(ii) a person described in paragraph 19(1)(e), (f), (g), (j), (k) or (l) and the Minister is of the opinion that it would be contrary to the public interest to have the claim determined under this Act;
(iii) a person described in subparagraph 27(1)(a.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada, or(iv) 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 and the Minister is of the opinion that the person constitutes a danger to the public in Canada.
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
(a) a member of an inadmissible class described in paragraph 19(1)(c), (c.1), (c.2) or (d);
(b) a person described in paragraph 27(1)(a.1); or
(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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46.01 (1) La revendication de statut n'est pas recevable par la section du statut si l'intéressé se trouve dans l'une ou l'autre des situations suivantes_:
[...]
e) l'arbitre a décidé, selon le cas_:
(i) qu'il appartient à l'une des catégories non admissibles visées à l'alinéa 19(1)c) ou au sous-alinéa 19(1)c.1)(i) et, selon le ministre, il constitue un danger pour le public au Canada,
(ii) qu'il appartient à l'une des catégories non admissibles visées aux alinéas 19(1)e), f), g), j), k) ou l) et, selon le ministre, il serait contraire à l'intérêt public de faire étudier sa revendication aux termes de la présente loi,
(iii) qu'il relève du cas visé au sous-alinéa 27(1)a.1)(i) et, selon le ministre, il constitue un danger pour le public au Canada, (iv) qu'il relève, pour toute infraction punissable aux termes d'une loi fédérale d'un emprisonnement maximal égal ou supérieur à dix ans, du cas visé à l'alinéa 27(1)d) et, selon le ministre, il constitue un danger pour le public au Canada.
70 (5) Ne peuvent faire appel devant la section d'appel les personnes, visées au paragraphe (1) ou aux alinéas (2)a) ou b), qui, selon la décision d'un arbitre_:
a) appartiennent à l'une des catégories non admissibles visées aux alinéas 19(1)c), c.1), c.2) ou d) et, selon le ministre, constituent un danger pour le public au Canada;
b) relèvent du cas visé à l'alinéa 27(1)a.1) et, selon le ministre, constituent un danger pour le public au Canada;
c) relèvent, pour toute infraction punissable aux termes d'une loi fédérale d'un emprisonnement maximal égal ou supérieur à dix ans, du cas visé à l'alinéa 27(1)d) et, selon le ministre, constituent un danger pour le public au Canada.
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[42] While the direct legal consequence of a danger opinion in light of these provisions may be to preclude a claim for recognition as a Convention refugee or an appeal to the IAD, the practical effect is that it determines whether a person can stay in Canada, where he or she may have become established, or will have to leave Canada. This was noted by Gibson J. in Bhagwandass. Accordingly, these considerations will shape the duty of fairness owed to an applicant. It is also a matter to be borne in mind when determining the substantive reasonableness of the decision.
[43] In the present case, the duty of fairness was respected. The applicant was provided with the documents on which the Danger Opinion was based. These documents included the Request for Minister's Opinion and the Ministerial Opinion Report. The ground on which the second danger opinion was quashed is therefore not an issue with respect to this Danger Opinion.
[44] Of greater interest in the present case is the question of the reasonableness of the Danger Opinion. In the decision of Rouleau J. whereby the second danger opinion was quashed, the Court stated, at paragraph 26:
I believe there was sufficient evidence for the decision maker to reach the opinion that the Applicant is a danger to the public in Canada. The Applicant had committed serious crimes in Canada. The material before the Minister's delegate was not all in favour of the Applicant despite what he alleges. [...]
[45] The evidence before the Minister's Delegate in the present case continues to be such that the Applicant cannot claim that it overwhelmingly militates in favour of a finding that he is not a danger to the public. The applicant correctly notes that the most recent reports in his file consist largely of evaluations that are favourable to him. Among these are the psychological report of April 24, 1997, which indicated that the level of risk posed by the applicant was low. Also among the evidence, which is favourable to the applicant, are the report entitled "Suivi du Plan Correctionnel" and the decisions of an adjudicator releasing the applicant from detention on two occasions, one in 1999 and one in 2000.
[46] However, these positive reports are, to some extent, offset by other materials in the CR. These include reports prepared by CSC which indicate that the applicant continues to pose a risk to others. They also include the particulars of the numerous offences for which the applicant has been convicted. It is difficult to ignore such a wide variety of crimes against the person, crimes against property, and drug offences, particularly when the record of these offences spans a period of several years.
[47] That said, the CR does not disclose any major transgressions on the part of the applicant since his release from custody in 1999. There is no evidence that the applicant has not complied substantially with the conditions of his release. He has not been caught frequenting such places as karaoke bars, billiard halls, or other places that he undertook not to visit, those being places of the sort in which he was associating with persons involved in crime. The only basis on which his statutory release was revoked in the October 6, 1999 decision of the National Parole Board ("NPB") was that his conditional release agent caught him driving without a license.
[48] Persons who have been released from incarceration on a conditional basis have a general obligation not to violate any laws while they are subject to those conditions. However, the offence of driving without a license in Quebec is subject only to the provisions of the Quebec Highway Safety Code, R.S.Q. C-24.2. Section 141 of the Highway Safety Code provides for a fine of between $300 and $600 for each offence. It is therefore not an Act of Parliament, which is one of the conditions that must be associated with an offence in order for a report to be issued in respect of an offender under paragraph 27(1)(d) of the Act.
[49] At page 5 of the decision of the NPB, the members of the panel made the following observations:
La Commission a des doutes raisonnables de croire qu'en apparence vous donnez toutes les allures d'un individu conformiste, mais qu'il en est tout autrement lorsque vous n'êtes pas sous surveillance. Votre agent de libération conditionnelle ne peut plus vous faire confiance parce que vous avez manqué d'honnêteté et de transparence, parce qu'à plusieurs reprises il a dû vous rappeler vos obligations et que malgré cela, vous n'avez pas hésité à le défier en conduisant à plus d'une reprise un véhicule automobile sans permis. Il est bien difficile pour la Commission dans les circonstances d'en arriver à la conclusion que les risques de récidive ne sont plus présents et en conséquence, elle révoque votre libération d'office.
[50] Two aspects of the statements of the NPB are worth noting in the present case. One such aspect is the absence of any meaningful mention of these statements in the Request for Minister's Opinion or in the Ministerial Opinion Report. There is only a general statement that the statutory release of the applicant was revoked for failure to abide by the conditions of that release. In addition, the desire of the applicant to seek gainful employment, notwithstanding his unlawful use of a motor vehicle, and his voluntary decision to report for removal, rather than await an arrest warrant against him, are elements that indicate that the applicant is more "conformist" than the NPB would give him credit for.
[51] Despite the aspects of the CR that are favourable to the applicant, many elements remain that are not favourable to the applicant, including reports prepared for CSC as recently as 2000. Whether or not the CSC is the most objective source of information about the applicant, or whether they are taking a heavy-handed view of the applicant, is a matter for the Minister's Delegate to consider. It is also within the domain of the Minister's Delegate, and not the Court sitting on judicial review, to consider whether more recent evidence of the good behaviour of the applicant should prevail over the older CSC reports and criminal convictions.
[52] Accordingly, while the Court may not agree with the conclusion, that is not the standard of review which is to be applied. The role of this Court is limited to a determination of the reasonableness of the decision based on the evidence before it. I cannot conclude that the Minister's Delegate made an unreasonable decision in failing to conclude that the evidence which favoured the applicant did not justify a finding that the applicant is not a danger to the public in Canada.
Reasonableness based on consideration of Humanitarian and Compassionate Grounds
[53] The Minister's Delegate made the following remarks in the Ministerial Opinion Report with respect to what she considered in arriving at the conclusion that the applicant was a danger to the public:
Pour former mon avis, j'ai examiné attentivement les renseignements contenus dans le Rapport sur l'avis du Ministre, ainsi que les éléments de preuves [sic] présentés par les agents du bureau local d'immigration, à l'appui de leur recommandation que Cong Danh DO [...] constitue un danger pour le public [...]. J'ai aussi examiné les renseignements contenus dans la Demande pour l'avis du Ministre en date du 13/03/02, ainsi que les documents de soutien. J'ai également examiné attentivement les observations de l'avocat [...] et celle de monsieur DO [...] et toutes considérations humanitaires qui pourraient exister dans ce cas. Les renseignements fournis par l'avocat du client sont insuffisants pour me persuader que la recommandation des agents du bureau local d'immigration [...] ne devrait pas être suivie. [...] À mon avis, les risques que cette personne représente à la société canadienne sont plus élevés que les risques éventuels auxquels cette personne pourrait être exposée à son retour au Vietnam.
[54] The Request for the Minister's Opinion outlined the offences for which the applicant was convicted, as well as the psychological and other reports prepared by CSC under the heading "Profil de Danger" ("Danger Profile"). The applicant's submissions to the Minister were summarized under a separate heading, then the removal considerations were analyzed and Ms. Bédard and Ms. Hill concluded by offering their observations.
[55] The humanitarian and compassionate considerations raised by the applicant were only mentioned in the summary of the applicant's submissions in the Request for Minister's Opinion. The Ministerial Opinion Report does not mention these matters, and the Minister's Delegate states only in her opinion that she considered all humanitarian grounds. In the Request for Minister's Opinion, the discussion under the heading "Considérations de renvoi" (Removal Considerations) focussed almost exclusively on the risk of harm that the applicant himself would face in Vietnam. Humanitarian and compassionate factors were not discussed at that point.
[56] It is generally accepted that a Court is to presume that all evidence before the decision maker was considered unless the contrary can be established: Florea v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No. 598 (F.C.A.) (QL). Accordingly, a decision maker is not required to mention every submission made by an applicant or every piece of evidence presented simply to satisfy a reviewing court that he or she considered it.
[57] However, the need to address particular submissions or evidence will increase if those submissions or elements of evidence are central to the success of the claim. If the decision maker does not clearly indicate why certain evidence was not accepted, the rejection of that evidence with inadequate justification will decrease the extent to which the decision will be able to withstand judicial scrutiny: Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). Evans J. (as he then was), noted this decision in his judgment in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (F.C.T.D.). The Court noted, at paragraph 17:
[...] the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts.__ Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact._ _Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
[58] In the Opinion drafted by the Minister's Delegate, the simple mention that she considered all humanitarian considerations that may have existed is inadequate. In light of the Baker decision, and in light of the great extent to which humanitarian and compassionate grounds were the cornerstone of the applicant's claim that he did not represent a danger to Canada, these grounds ought to have been given greater attention. It was incumbent upon the Minister's Delegate to explain in more detail why the other considerations prevailed over the humanitarian and compassionate grounds raised by the applicant. The Danger Opinion is deficient in this sense and should be set aside.
[59] The decision of this Court in Gonzalez v. Canada (Minister of Citizenship and Immigration) (2000), 183 F.T.R. 240 (F.C.T.D.), is relevant in two respects. In Gonzalez, supra, the Court examined the possibility of considering the Request for Minister's Opinion as reasons for the decision to issue a danger opinion. Such an approach is consistent with the view expressed in Baker that material which is prepared by someone other than the decision maker but which informs the decision-making process can be seen as some or all of the reasons for the decision. In that case, the Court held that the Request for Minister's Opinion focussed on the risk of harm that an applicant would face in Nicaragua if he were returned there, and showed no evidence that humanitarian and compassionate factors were considered in arriving at the danger opinion.
[60] A similar error has been committed in the present case. The Request for Minister's Opinion only mentions humanitarian and compassionate factors in the section of the document in which the submissions of the applicant are summarized. At no point, either in the Request for Minister's Opinion, the Ministerial Opinion Report, or in the conclusions of the Minister's Delegate, do we see any analysis of humanitarian and compassionate factors. One cannot be certain when reading these materials that any of the persons involved in the decision gave thought to humanitarian and compassionate grounds, aside from simply noting that the applicant raised them. It cannot therefore be concluded that the Minister's Delegate or anyone else involved in the decision considered these factors at all, let alone gave a cogent explanation as to why these factors were not sufficient to prevent the issuance of a danger opinion, with its attendant consequences. On this basis, the Danger Opinion cannot stand.
[61] Counsel had the opportunity to raise a question of general importance and they chose not to do so. I am satisfied that no serious question of general importance arise out of this matter. No question will be certified.
[62] For the reasons discussed above, this application is allowed.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is allowed.
2. The Danger Opinion issued against Cong Danh Do on April 12, 2002, is set aside.
3. This matter shall be remitted to the Minister for reconsideration in a manner not inconsistent with these reasons.
4. No question is certified.
________________________
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1893-02
STYLE OF CAUSE: CONG DANH DO v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 11, 2003
AND ORDER BY THE: HONOURABLE MR. JUSTICE BEAUDRY
APPEARANCES:
Me Harry BLANK FOR THE APPLICANT
Me Martine VALOIS FOR THE RESPONDENT
SOLICITORS OF RECORD:
Me Harry BLANK FOR THE APPLICANT
Montreal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal (Québec)