Date: 20000523
Docket: IMM-2333-99
IMM-2334-99
BETWEEN:
WILFREDO ABURTO GONZALEZ,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] The two primary issues in the present judicial review of the opinions rendered by the Minister of Citizenship and Immigration under s.70(5) and s.53(1) 1 of the Immigration Act 2 (the "Act") are: first, whether, in light of the Supreme Court"s decision in Baker v. Canada (Minister of Citizenship and Immigration) 3 ("Baker"), the Minister"s failure to supply reasons for the opinions reached constitutes a breach of the duty of fairness owed to the Applicant, Wilfredo Gonzalez (the "Applicant"); and, second, even if it can be considered that reasons were provided in the form of the documents leading to the opinions rendered, whether the failure to fully consider humanitarian and compassionate considerations renders the opinions unreasonable, and, thus, made in reviewable error. 4
A. Factual background
[2] The Applicant was born in Nicaragua on 27 September 1974 and, before coming to Canada in 1987 at the age of 13 with the rest of his family, was determined to be a Convention Refugee.
[3] On 9 May 1997, the Applicant was convicted in Calgary, Alberta of five offences, namely, sexual assault, two counts of possession of a prohibited weapon, pointing a firearm, and careless use of a firearm, for which he was given a conditional sentence of two years less a day to be served in the community.
[4] In a decision rendered 9 November 1998, the Alberta Court of Appeal raised the Applicant"s sentence to three-and-a-half years on the opinion that this term more appropriately addresses the sentencing elements of deterrence and denunciation, given the aggravating factors found and the "very serious nature of the offence". 5
[5] On 7 January 1999, an Immigration Officer submitted a memorandum entitled, "REPORT UNDER S. 27 OF THE IMMIGRATION ACT" to the Deputy Minister of Citizenship and Immigration informing the Deputy Minister that the Applicant is a permanent resident described in s.27(1)(d) 6 of the Act in that he has been convicted of an offence "...for which a term of imprisonment of more than six months has been, or five years or more may be imposed". 7
[6] As a result, by way of a letter dated 3 February 1999, a Manager of the Immigration Centre in Calgary informed the Applicant that available evidence suggests that he is a person who constitutes a danger to the public in Canada, and, thus, a request would be made for an opinion to this effect from the Minister of Citizenship and Immigration pursuant to s.70(5) and s.51(3) of the Act. Of particular importance in the letter are the following two paragraphs:
| 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... |
| Before the Minister forms an 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 ar [sic] 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. 8 [Emphasis in original] |
[7] In response, by way of a letter dated 3 March 1999, Counsel for the Applicant made detailed submissions regarding the forming of a danger opinion, and included seven letters of reference from his family. The submissions and letters addressed the issue of humanitarian and compassionate considerations arising on the facts that the Applicant has been in Canada since he was 13 years old, his family were designated Convention Refugees outside Canada, his entire family, including his two children, are resident in Canada, and he has no family remaining in Nicaragua. 9
[8] The next step in the process towards obtaining a danger opinion in the Applicant"s case was the execution by a Manager of the Immigration Centre in Calgary of a "MINISTERIAL OPINION REPORT" dated 11 March 1999, which recommended a Minister"s opinion be requested. 10 This document attaches the file material, apparently including the Applicant"s submissions, and contains a brief description of the facts of the case, including the following under the heading "Other Considerations":
| Subject in Canada since age 13 yrs. Landed as a CR1 |
| Subjects [sic] entire family in Canada |
| Subject has common law spouse and two children (one from previous relationship) |
[9] As a result, a "REQUEST FOR MINISTER"S OPINION - A70(5) AND A53(1)" was completed by a "Reviewing Officer" and concurred in by a "Senior Analyst Case Review, Case Management Branch" dated 30 March 1999. The content of this document, which has no attachments, is as follows:
| DANGER PROFILE 06 Aug 94 - sexual assault, section 271 CCC, sentenced to a conditional sentence of 2 years less a day to be served in the community. |
| The Crown appealed and on November 9, 1998, the Court of Appeal of Alberta varied the sentenced [sic] to 3.5 years in prison with time served in the community to be deducted from the total time (17 months). The subject had also appealed his original sentence and his appeal was dismissed on November 26, 1998.- possession of a prohibited weapon, section 90(1) of the CCC, sentenced to 1 year concurrent |
| - point a firearm, section 86(1) CCC, sentenced to 6 months, concurrent |
| - use a firearm in a dangerous manner, section 86(2) CCC, sentenced to 3 months concurrent |
| 09 Oct 94 - unlawful possession of a prohibited weapon, section 90(1) CCC, sentenced to 1 year concurrent |
| REMOVAL RISK CONSIDERATIONS |
| The subject was found to be a Convention refugee by visa officials in Mexico. He was granted permanent resident status under that category on October 19, 1987, at the age of 13. |
| According to the Country Reports on Human Rights Practices for 1997, Nicaragua is a constitutional democracy, with a directly elected president, vice president, and unicameral legislature... |
Following a detailed description of the political situation existent in Nicaragua at the time, including persecution considerations, the document continues as follows:
| The subject provided no information to show that he would be at risk upon return to Nicaragua. The government has changed from a one-party Communist dictatorship [sic] the Sandinista National Liberation Front (FSLN), since the subject came to Canada... the subject may be at risk upon return; however, the danger to Canadian society outweighs any risk the subject may face. |
| REVIEWING OFFICER"S COMMENTS AND RECOMMENDATION |
| I have carefully reviewed the notification letter, the supporting documents identified in this notice and the Ministerial Opinion Report prepared by the CIC as well as the submission presented by the client. The foregoing documents comprise the entirety of the material provided to the Minister"s Delegate in support of the request that he form an opinion that Wilfredo ABURTO GONZALEZ constitutes a danger to the public pursuant to section 70(5) and subparagraph 53(1) of the Immigration Act. 11 |
[10] At the bottom of the "REQUEST FOR MINISTER"S OPINION - A70(5) AND A53(1)" the following paragraph appears:
| DECISION: |
| If you are of the opinion that this person constitutes a danger to the public, please sign here and sign the attached form. 12 |
Beneath this paragraph is written the date 14 April 1999 and the signature of W.A. Sheppit, who is noted as being "Minister"s Delegate, Director General, Case Management Branch".
[11] In addition, the Minister"s Delegate, W.A. Sheppit, signed documents dated 14 April 1999 entitled, "OPINION OF THE MINISTER PURSUANT TO SUBSECTION 70(5) OF THE IMMIGRATION ACT" and, "OPINION PURSUANT TO PARAGRAPH 53(1) OF THE IMMIGRATION ACT", each expressing the opinion that the Applicant constituted a danger to the public in Canada. 13 These opinions are the subject matter of the present judicial reviews.
B. Reviewable error considerations respecting danger opinions
[12] Counsel for the Applicant argues that the Supreme Court"s decision in Baker requires the decision maker involved in considering humanitarian and compassionate grounds in relation to s.70(5) or s.53(1) of the Act to go beyond the minimal level of procedural fairness thought to be required by the Federal Court of Appeal"s decision in Williams v. Canada (Minister of Citizenship and Immigration) 14 ("Williams").
[13] Counsel cites the recent decision of Justice Gibson in Bhagwandass v. Canada (Minister of Citizenship and Immigration) 15 ("Bhagwandass") for the proposition that the decision in Baker requires reconsideration of Williams with respect to the characterization of the impact of the danger opinion, the scope of the duty of fairness on the respondent in the course of forming the danger opinion; and the standard of judicial review applicable to the danger opinion.
[14] However, the Respondent argues that the decision in Baker is specific to the circumstances of a humanitarian and compassionate grounds review under s.114(2) of the Act, and that, as a result, the Court of Appeal"s decision in Williams remains unaffected.
[15] With respect, I find that the Baker decision is not so limited, and that Justice Gibson"s decision in Bhagwandass correctly applies Justice L"Heureux-Dubé"s decision in Baker .
[16] I strongly concur with Justice Gibson"s following statements in Bhagwandass at paragraphs 24 to 28:
| I conclude that the Baker decision has a significant impact on the Williams decision. Specifically, I find that the principles arising from Baker in respect of the characterization of the impact of a decision (or opinion) on the individual(s) concerned, the content of the duty of fairness in light of that impact and the applicable standard of review supersede [sic] those stated in Williams such that they now govern. I will deal with each of these impacts in turn. |
| a) Characterization of the Impact of Danger Opinions |
| The impact of Baker on the Williams decision stems, in my view at least, in large part from Justice L"Heureux-Dubé"s characterization of the impact on the person or persons concerned of the H & C decision under review; a characterization which is markedly different from that of the Federal Court of Appeal in respect of the impact on the person or persons concerned of a danger opinion. As noted above, in Williams , the Federal Court of Appeal disagreed with the characterization of the impact of a danger opinion issued under subsection 70(5) of the Immigration Act adopted by the Motions Judge in that matter. The Motions Judge characterized the impact as, in substance, that of a deportation order. At paragraph 9, the Federal Court of Appeal wrote: |
| With respect it seems to me that such a characterization of the effects of that opinion greatly exaggerates its importance and thus distorts any analysis of the requirements of fundamental justice in the circumstances. |
| In the quotations from Williams earlier in these reasons, it is evident that the Federal Court of Appeal characterized a danger opinion under subsection 70(5) of the Immigration Act by reference only to its direct legal impact. |
| ... |
| Madame Justice L"Heureux-Dubé appears to have adopted a less strict approach in characterizing the impact of H & C decisions, an approach which is closer to that adopted by the Motions Judge in Williams . As noted above, in Baker, Ms. Baker was subject to a deportation order as was Mr. Williams in the Williams case and as is the applicant here. Madame Justice L"Heureux-Dubé determined that the negative H & C decision in Baker had the effect of triggering the existing deportation order, subject only to a determination of the place to which Ms. Baker would be removed. Exactly the same can be said of the danger opinion under review in Williams and of the danger opinion here under review. |
| Against the approach to the characterization of impact adopted by the Supreme Court of Canada in Baker, I can only conclude that the approach taken by the Federal Court of Appeal in Williams is overtaken and the approach adopted by the Motions Judge in Williams is appropriate to this matter. The characterization of the impact of a danger opinion under subsection 70(5) of the Immigration Act is then, and I paraphrase the words of Justice L"Heureux-Dubé in paragraph 15 of Baker , the following. It is an opinion that, while in law providing only for a variation of the statutory scheme as it applies to a permanent resident who has fallen more or less dramatically afoul of the standard of conduct expected of persons in Canada, is nonetheless in substance an opinion that, in cases like this one, determines whether a person who has been in Canada all of his youthful and adult life but does not have citizenship can stay in the country or will be required to leave. It is an opinion that requires a person to leave Canada where he or she has become established, if he or she can indeed be said to be established anywhere. To paraphrase the words of Justice L"Heureux-Dubé at paragraph 5 of Baker , it is an important decision that affect in a fundamental manner the future of an individual"s life or of individuals" lives. |
| b) The Duty of Fairness |
| Given the characterization of the impact that I have concluded is applicable notwithstanding Williams, and with reference to the non-exhaustive list of factors affecting the content of the duty of fairness that are described by Justice L"Heureux-Dubé, I reach the conclusion that, on the facts of this matter, the duty of fairness is not simply "minimal". |
C. Failure to give reasons as a breach of the duty of fairness
[17] With respect to the need to supply reasons as compliance with the duty of fairness owed a person the subject of a decision such as those in the present case, in Baker, Justice L"Heureux-Dubé had much to say. The following quotations at paragraphs 37 to 39 of her decision are important for determining the issue of whether the failure of the Minister"s delegate to give reasons in rendering the opinions under consideration in the present case constitutes reviewable error:
| More generally, the traditional position at common law has been that the duty of fairness does not require, as a general rule, that reasons be provided for administrative decisions....Courts and commentators have, however, often emphasized the usefulness of reasons in ensuring fair and transparent decision-making. ... |
| Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review. ...I agree that these are significant benefits of written reasons. |
[18] Recognizing that a requirement to provide reasons might, in certain cases, hamper the administration of justice, at paragraph 40, Justice L"Heureux-Dubé says this:
| Others have expressed concerns about the desirability of a written reasons requirement at common law. In Osmond, supra, Gibbs C.J. articulated, at p. 668, the concern that a reasons requirement may lead to an inappropriate burden being imposed on administrative decision-makers, that it may lead to increased cost and delay, and that it "might in some cases induce a lack of candour on the part of the administrative officers concerned". Macdonald and Lametti, supra, though they agree that fairness should require the provision of reasons in certain circumstances, caution against a requirement of "archival" reasons associated with court judgments, and note that the special nature of agency decision-making in different contexts should be considered in evaluating reasons requirements. In my view, however, these concerns can be accommodated by ensuring that any reasons requirement under the duty of fairness leaves sufficient flexibility to decision-makers by accepting various types of written explanations for the decision as sufficient. |
[19] In Baker, Justice L"Heureux-Dubé then goes on to state that, in certain circumstances, a common law right to reasons has developed in case law, and then gives examples. In this context, at the end of providing the examples where reasons have been required, she notes that:
| However, the Federal Court of Appeal recently rejected the submission that reasons were required in relation [page 848] to a decision to declare a permanent resident a danger to the public under s. 70(5) of the Immigration Act: Williams, supra. |
[20] In my opinion, Justice L"Heureux-Dubé then expresses an advancement from existing authority, including the Court of Appeal decision in Williams , by deciding as follows:
| In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary. The profound importance of an H & C decision to those affected, as with those at issue in Orlowski, Cunningham, and Doody, militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached. [Emphasis added] |
[21] Applying Justice L"Heureux-Dubé"s reasoning, I find that the importance of a s.70(5) and s.53(1) opinion is as "profound" as that of any humanitarian and compassionate decision, and, therefore, in fairness to Applicant and the members of his family, I find that reasons are required to be provided.
[22] Therefore, I find that with respect to opinions rendered under s.70(5) and s.51(3) of the Act in the present case, failure to give reasons is a breach of the duty of fairness owed to the person affected.
D. The "REQUEST FOR MINISTER"S OPINION"as reasons
[23] In Baker, Justice L"Heureux-Dubé dealt with the concern regarding requiring reasons to be given when a decision is rendered with respect to humanitarian and compassionate grounds under s.114(2) of the Act by qualifying the notes of the immigration officer in that case as reasons.
[24] In the present case, the Applicant argues, in the alternative, that, if the Minister"s delegate is not required to give reasons, then the content of the "REQUEST FOR MINISTER"S OPINION" is considered to be reasons in order to test whether they comply with the required standard of review. Therefore, if the "REQUEST FOR MINISTER"S OPINION" constitutes the reasons in the present case, which to consider the Applicant"s alternative argument I so find, the issues become: what is the applicable standard of review of these reasons and, applying this standard of review, do the reasons disclose a reviewable error?
1. What is the applicable standard of review?
[25] In Bhagwandass, at paragraphs 37 and 40, Justice Gibson expresses the following opinion:
| Based on the analysis in Baker, and having regard to the impact of the danger opinion for the applicant in this matter, I conclude that the appropriate standard of review on this application for judicial review is reasonableness simpliciter. I am satisfied that the conclusion reflected in paragraph 17 of the Williams decision that a subjective decision such as a danger opinion under subsection 70(5) of the Immigration Act "...cannot be judicially reviewed except on grounds such as that the decision-maker acted in bad faith, or erred in law, or acted upon the basis of irrelevant considerations" is overtaken by the Baker decision. I am also satisfied that the danger opinion here under review, albeit a subjective decision, can be set aside on judicial review if, on the facts of the matter, the decision is unreasonable or if the appropriate content of the duty of fairness was not provided. ...While I am not called upon to decide the standard of review on an application for judicial review such as this, I nonetheless conclude that it is reasonableness simpliciter. |
[26] I agree with Justice Gibson, and, therefore, find that the standard of review to be applied to the reasons in the present case, if any, is reasonableness simpliciter.
2. Do the reasons disclose a reviewable error ?
[27] As I noted in Ashton v. Canada (Minister of Citizenship and Immigration), 16 the Minister has established Guidelines that are to be taken into consideration in recommending and reaching a danger opinion. Of particular importance are the following provisions from the Guidelines:
| C-44 Implementation |
| APPENDIX D |
| DANGER TO THE PUBLIC |
| The profile described below should be considered by officers when determining whether or not to apply for the Minister"s opinion under sections A70(5), (6) & 77(3.01). |
| 1. PROFILE |
| Persons who as a result of their actions, have caused or might reasonably be expected to have caused death or serious physical or psychological harm to persons |
| and/or significant damage to property. For example, this would normally apply to persons whose offences include violence, narcotics trafficking, sexual abuse, or the use of weapons. |
| 2. NOTE |
| Officers seeking a danger to the public finding for persons involved in organized crime (19(1)(c.2)), for persons found to be refugees or for visa holders seeking |
| admission at ports of entry, should contact Case Management branch for individual case assistance. |
| 3. CONSIDERATIONS |
| It cannot be emphasized too strongly that it is not simply the commission of an offence that brings into play danger to the public processing. Careful consideration must be given to a number of factors: |
| The Nature of the Offence - offences considered dangerous to the public would normally involve violence, weapons, drugs, sexual offences; |
| The Circumstances of the Offence - this would allow for consideration of what led up to the offence or the severity of the incident; |
| The Sentence - the sentence of the judge in the court case would assist in deciding on the severity of the incident; |
| Recidivism - multiple offences would be given greater weight than single offences; |
| Humanitarian and Compassionate considerations - any circumstances advanced will be weighed against the factors above. |
| Making a recommendation will require an analysis of the actions of the person, both as reflected in the commission of the current offence and as shown in past activities. If, either singularly or cumulatively these activities indicate that the person is described in the profile of danger to the public, a request for the Minister"s opinion, as authorized in A70(5), (6) and 77(3.01), should be initiated. |
| It is incumbent upon officers to carefully gather and analyze the documentation acquired in support of their recommendation (refer to section 8.1 Procedure for obtaining Minister"s opinion in A70(5) cases, (iii), for suggestions), with particular reference to documentation that reflects the sentence imposed by the courts, the nature and the circumstances surrounding the crime(s). [Emphasis added] |
[28] Perhaps the argument can be made that, in fact, the Guidelines were complied with in the present case by considering the risk to the Applicant were he returned to Nicaragua. However, I find that the proper range of considerations to be weighed in reaching a danger opinion is not so limited.
[29] In addition to decision making expectations created by the Guidelines, the letter of 3 February 1999 to the Applicant as above quoted, notifying him of the intention to ask for a danger opinion, creates in the following words an expectation that a broader inquiry will be undertaken, in particular, as to:
| ...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. |
[30] In my opinion, the Guidelines imply that all humanitarian and compassionate considerations are to be taken into account when forming a danger opinion and not just the risk that the Applicant might face on return to his country of origin. In particular, the impact on the Applicant"s wife and children are an important consideration.
[31] Indeed, in the 3 February 1999 letter to the Applicant, there is a holding out to the Applicant that all arguments made by the Applicant, including humanitarian and compassionate considerations from his perspective, would be considered. The following words used state that the Applicant"s personal situation in Canada is a consideration in addition to the threat he might face in Nicaragua if he were returned:
| 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 |
[32] If the document "REQUEST FOR MINISTER"S OPINION" is accepted as reasons, there is no evidence that the Minister"s delegate considered any humanitarian and compassionate factors in reaching the danger opinions, other that the risk to the Applicant were he returned to Nicaragua. On this basis, the question is: are the opinions of the Minister"s delegate reasonable?
[33] To determine the process whereby this question can be answered, Justice L"Heureux-Dubé in Baker at paragraph 63 gives the following guidance:
| (3) Was this Decision Unreasonable? |
| I will next examine whether the decision in this case, and the immigration officer's interpretation of the scope of the discretion conferred upon him, were unreasonable in the sense contemplated in the judgment of Iacobucci J. in Southam, supra, at para. 56: |
| An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. |
| In particular, the examination of this question should focus on the issues arising from the "serious question of general importance" stated by Simpson J.: the question of the approach to be taken to the interests of children when reviewing an H & C decision. |
[34] In my opinion, the reasons in the present case comprised of the "REQUEST FOR MINISTER"S OPINION" cannot stand up to a probing examination; the failure to consider all humanitarian and compassionate factors in the reasons renders the opinions unreasonable. Therefore, I find that the opinions were made in reviewable error.
O R D E R
[35] Accordingly, I set aside the Minister"s opinions herein, and refer the matters back to the Minister for reconsideration.
[36] As my findings in the present case raise questions of general importance and are also determinative of the present applications, I refer the following certified questions to the Appeal Division for consideration:
1. Given the Supreme Court of Canada"s decision in Baker , is the Minister required to give reasons for an opinion rendered under s.70(5) and s.53(1) of the Act?;
2. Is a "REQUEST FOR MINISTER"S OPINION" reasons for the opinions rendered?;
3. If a "REQUEST FOR MINISTER"S OPINION" is reasons, must humanitarian and compassionate considerations be factors in the opinion rendered, including the impact of an opinion on the Applicant and his or her family, in particular, on his or her children?
(Sgd.) "Douglas Campbell"
Judge
VANCOUVER, BRITISH COLUMBIA
May 23, 2000
APPENDIX
Section 27(1)(d) of the Act reads:
| Reports on permanent residents 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, other than an offence designated as a contravention under the Contraventions Act, for which a term of imprisonment of more than six months has been, or five years or more may be, imposed. |
Rapports défavorables: résidents permanents 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, autre qu"une infraction qualifiée de contravention en vertu de la Loi sur les contraventions : (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. |
Section 53(1) of the Act reads:
Prohibited Removal
53(1) Notwithstanding subsection 52(2) and (3), no person who is determined under this Act or the regulations to be a Convention refugee, nor any person who has been determined to be not eligible to have a claim to be a Convention refugee determined by the Refugee Division on the basis that the person is a person described in paragraph 46.01(1)(a), shall be removed from Canada to a county where the person"s life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless
(a) the person is a member of an inadmissible class 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;
(b) the person is a member of an inadmissible class described in paragraph 19(1)(e), (f), (g), (j), (k) or (l) and the Minister is of the opinion that the person constitutes a danger to the security of Canada; or
(c) the person is 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
(d) the person is 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.
Renvoi des réfugiés au sens de la Convention
53(1) Par dérogation aux paragraphes 52(2) et (3), la personne à qui le statut de réfugié au sens de la Convention a été reconnu aux termes de la présente loi ou des règlements, ou don"t la revendication a été jugée irrecevable en application de l'alinéa 46.01(1)a), ne peut être renvoyée dans un pays où sa vie ou sa liberté seraient menacées du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques, sauf si, selon le cas :
a) elle 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 que, selon le ministre, elle constitue un danger pour le public au Canada;
b) elle appartient à l'une des catégories non admissibles visées aux alinéas 19(1)e), f), g), j), k) ou l) et que, selon le ministre, elle constitue un danger pour la sécurité du Canada;
c) elle relève du cas visé au sous-alinéa 27(1)a.1)(i) et que, selon le ministre, elle constitue un danger pour le public au Canada;
d) elle 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 que, selon le ministre, elle constitue un danger pour le public au Canada.
Section 70(5) of the Act reads as follows:
| Where limited right to appeal 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.
|
Appel des résidents permanents et des titulaires de permis de retour 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. |
FEDERAL COURT OF CANADA
IMMIGRATION DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-2333-99 & IMM-2334-99
STYLE OF CAUSE: Wilfredo Aburto Gonzalez
v.
MCI
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: April 17, 2000
REASONS FOR ORDER AND ORDER OF CAMPBELL, J.
DATED: May 23, 2000
APPEARANCES:
| Ms. D. Jean Munn For the Applicant |
| Ms. Lorraine Neill For the Respondent |
SOLICITORS OF RECORD:
Major Caron
Barristers and Solicitors
| Calgary, Alberta For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |
1 These provisions are quoted in the attached Appendix.
2 R.S.C. 1985, c. I-2.
3 Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817.
4 The Minister"s decision that the Applicant constitutes a danger to the public under s.70(5) of the Act was rendered in relation to file number IMM-2334-99 and the Minister"s opinion under s.53(1) that the Applicant constitutes a danger to the public was rendered in relation to file number IMM-2333-99. These Reasons for Order and Order are provided on both judicial review applications as the considerations are identical.
5 Certified Record, p. 83.
6 This provision is quoted in the attached Appendix.
7 Applicant"s Application Record, p. 26.
8 Ibid, p. 24-25.
9 See Ibid, pp. 116-124. With respect to impact on the Applicant"s family were he to return to Nicaragua, the following submission appears at p. 123:
Mr. Aburto has always lived at home with his parents. It is intended that he will return to this home upon his release from incarceration. In this household live his father, mother and two siblings. In addition, his common-law wife and their daughter live there as well as Mr. Aburto"s son from a previous relationship. I have enclosed a copy of the Family Court Order which indicates that although Mr. Aburto shares joint legal custody with the mother of this child, it is Mr. Aburto who has day to day care and control of his son. It is submitted that given Mr. Aburto"s dedication to his family, hardship would be incurred not only for Mr. Aburto but certainly for his common-law spouse and both of his children if he were required to leave Canada.
10 Certified Record, p. 27.
11 Ibid, pp. 4-5.
12 Ibid, p. 5.
13 Ibid, pp. 1-2.
14 Williams v.Canada (Minister of Citizenship and Immigration) [1997] 2 F.C. 646 (C.A.); leave to appeal to the Supreme Court denied, [1997] S.C.C.A. No. 332.
15 Bhagwandass v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1905.
16 Ashton v. Canada (Minister of Citizenship and Immigration) (1998), 142 F.T.R. 97 (F.C.T.D.) para. 27.