Date: 19980414
Docket: IMM-392-97
BETWEEN:
RAMLALL RAMPERSAUD
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM J.:
INTRODUCTION
[1] This is an application for judicial review of a decision of W.A. Sheppit, a delegate for the Minister of Citizenship and Immigration, which found that the applicant was a danger to the public.
FACTS
[2] The applicant, a 26 year old citizen of Guyana, was landed in Canada on June 28, 1991, after his sister and husband sponsored him. The applicant has worked at two restaurants and a factory since his arrival.
[3] In 1993, the applicant was charged with two counts of trafficking a narcotic for having twice sold a quantity of cocaine to an undercover police officer. He was convicted on December 15, 1993 and August 16, 1994 on two separate charges of failing to comply with a recognizance and sentenced to one day on each occasion. There is no evidence describing those charges. On October 24, 1994, the applicant was convicted and sentenced to two concurrent terms of eight months' duration for the two charges of trafficking in a narcotic. The applicant was paroled after four months.
[4] In August 1995, after having been paroled., the applicant was charged with assault with a weapon and forcible confinement after a serious domestic dispute with his girlfriend. The applicant states in his affidavit that he got into an argument with his girlfriend and she told him to pack his belongings and leave. The applicant claims that his girlfriend began to swing a knife at him and her hand was cut when he took the knife away from her. The applicant also states that his girlfriend poured boiling water on his back which required treatment at the hospital.
[5] The applicant was required to stay away from his girlfriend's home as a condition of his pre-trial bail on the assault with a weapon and forcible confinement charges. On two unspecified dates, the applicant was twice charged for failing to comply with a recognizance. It appears that the applicant returned to his girlfriend's home to collect his belongings. He was sentenced to three days for each conviction which were served concurrently.
[6] In November 1995, the applicant claims that he moved back into his girlfriend's house at her request but no evidence was made concerning this fact. In March 1996, the applicant was again charged for failing to comply with a recognizance when the police found him at his girlfriend's house when she was in Jamaica.
[7] The applicant was convicted on the charges of assault with a weapon, forcible confinement and the most recent charge of failure to comply with a recognizance on June 3, 1996 and was sentenced to a total of eleven months in a provincial institution. He was granted parole after serving seven months.
[8] While he was serving his recent prison term, the applicant took an English as a second language course, a ten-session course on anger management/wife assault prevention and became a member of the Ontario Seventh Step Society, a group which assists prisoners in their rehabilitation.
[9] On September 25, 1996, the applicant was informed that Citizenship and Immigration Canada was going to seek the opinion of the Minister that he was a danger to the public. On November 23, 1996, W.A. Sheppit, a delegate for the Minister of Citizenship and Immigration, certified that the applicant is a danger to the public. The applicant was informed of this decision on January 17, 1997, and was ordered deported from Canada on February 14, 1997.
SUBMISSIONS
1. The Applicant's Submissions
[10] The applicant's first submission is that the Minister's delegate ignored certain guidelines that are supposed to be considered by officers when determining whether to apply for the Minister's opinion about whether a person is a danger to the public. Briefly, those considerations include the nature of the offence, the circumstances of the offence, the sentence, recidivism and humanitarian and compassionate concerns.
[11] The applicant submits that the decision was based simply on the commission of the offences and does not consider these other factors. The applicant notes that the applicant received light sentences, he was granted parole and that there is no evidence of recidivism because the applicant has not returned to crime as a repeat convicted offender. The applicant also submits that, contrary to the guidelines, the record does not show a continuing abuse of the law which would have the cumulative effect of making the applicant a danger to the public.
[12] The applicant's second submission is that the Minister's delegate made a decision on two fundamental aspects of the applicant's case with no evidence or by ignoring available evidence. The applicant claims that there was no evidence about the applicant's drug convictions other than the length of sentence. The applicant argues that evidence such as the police officers' arrest reports should have been before the Minister. Furthermore, the applicant submits that although he could have addressed the drug convictions in his statement, the applicant is barely literate and did not have the assistance of a lawyer and so the Minister's delegate should have attempted to inform himself of this crucial evidence. Thus, the applicant submits that the Minister made a decision on an important factor in the applicant's case with little or no evidence upon which to decide the matter.
[13] The applicant also states that the evidence before the Minister did not include the decision of the Parole Board which allegedly expresses the Board's belief that the applicant could leave prison because the risk of recidivism is low. The applicant cites the decisions in Pereira v. Canada (Minister of Citizenship and Immigration) (1997), 126 F.T.R. 315 (F.C.T.D.) and Chedid v. Canada (Minister of Citizenship and Immigration) (1997), 127 F.T.R. 81 (F.C.T.D.) which suggest that such information should be included.
[14] The applicant also notes that, although the Minister's delegate's opinion is dated November 23, 1996, the applicant did not know of the decision until January 17, 1997. The applicant submits that the decision was not effective until the applicant became aware of it and by that time the applicant had been paroled a second time. Therefore, the applicant submits that the second decision of the Parole Board should have been considered by the Minister's Delegate. Thus, the applicant submits that the Minister's delegate made his decision about the seriousness of the crime and the risk of recidivism on no evidence or by ignoring available evidence.
[15] The applicant's third submission is that the Minister's delegate erred by misapplying the so-called "two-part test" in Thompson v. M.C.I. (1996), 118 F.T.R. 269 (F.C.T.D.) that the opinion must be based on the fact that the person had been convicted of certain crimes and that the person is or will be a danger to the public. The applicant argues that the immigration officers who recommended the inquiry did not address this issue.
[16] The applicant's fourth submission is that the decision of the Minister's delegate was patently unreasonable. The applicant states that there is no evidence of any criminogenic activity or lifestyle prior to his first conviction and that the incident has been a one-time occurrence. The applicant further submits that the Minister's delegate's finding that there are insufficient humanitarian and compassionate factors is patently unreasonable.
[17] The applicant submits that the Minister's delegate's comments found in the Request for Minister Opinion found at page 3 of the Tribunal Record where it states "Based on above ...", clearly indicates that the wrong test was applied in determining a section 70(5) issue. I do not believe it necessary to recite the Minister's delegate's statement for the purposes of this decision..
[18] The applicant also submits that the Minister's delegate erred by failing to provide reasons but this submission was withdrawn.
2. The Respondent's Submissions
[19] The respondent submits that the applicant's statement in paragraph 7 of his affidavit and documentation relating to his courses in English as a second language and anger management/wife assault prevention as well as his membership in the Ontario Seventh Step Society should not be considered on review since these submissions were not before the Minister's delegate. The respondent also submits that the statement in paragraph 9 of his affidavit concerning his trafficking convictions was also not before the Minister's delegate.
[20] Second, the respondent cites two decisions for the proposition that the Minister's delegate is not compelled to follow the guidelines and may consider other circumstances in arriving at his decision.
[21] Third, the respondent submits that there is jurisprudence to the effect that unless the Minister's delegate has acted in bad faith, or erred in law, or acted upon the basis of irrelevant considerations, then the Court should not intervene.The respondent contends that the applicant believes that the Minister's delegate could have exercised his discretion differently, but there is no evidence upon which the court should interfere given the strict requirements of review.
[22] Fourth, the respondent submits that the onus was on the applicant to provide evidence to the Minister's delegate in support of his contention that he was not a danger to the public. Although there was no evidence as to the drug trafficking convictions and the orders of the Parole Board, the respondent submits that the applicant's failure to provide that evidence does not constitute an error on behalf of the Minister's delegate. In any event, the respondent submits that the inclusion of the Parole Board's report would have to be balanced against the fact that (a) the applicant committed further criminal offences after his drug trafficking convictions and (b) it was the applicant's subsequent offences that initiated the process leading to the decision of the Minister's delegate.
[23] Finally, the respondent submits that since the Minister's delegate rendered his decision on November 23, 1996, it is perverse to contend that the Minister's delegate should have considered the Parole Board's reasons of January 1997. The respondent notes that there is authority to the contention that, in rendering a danger opinion, there is no requirement that certain types of material must be before the Minister's delegate in order to draw a proper conclusion.
DISCUSSION
[24] I will deal with the applicant's submissions in the order set out above. The first issue is whether the respondent erred by allegedly making a decision in contravention or by ignoring crucial aspects of the guidelines.
[25] I should first note that the guidelines are to be "considered by officers when determining whether or not to apply for the Minister's opinion under" the relevant sections. Therefore, they do not apply to the Minister or the Minister's delegate. Moreover, the respondent correctly cites the decisions in Williams v. Canada (M.C.I.), [1997] 2 F.C. 646 (F.C.A.) and Nguyen v. Canada (M.E.I.) (1993), 18 Imm.L.R. (2d) 165 (F.C.A.) for the proposition that the Minister's delegate need not follow such guidelines although it will often be the case that the Minister's delegate will consider factors set out in the guidelines. Nevertheless, the mere fact that the Minister's delegate does not follow the guidelines does not render the decision of the Minister's delegate subject to judicial review.
[26] The applicant's main argument is that the Minister's delegate must have found the applicant to be a danger to the public solely on the basis that he committed the offences. However, I find no basis upon which to find that the Minister's delegate did not consider all factors. Based on the material before the Minister's delegate, the decision is not so unreasonable that one can conclude that the decision was solely based on the offences themselves.
[27] This leads to the applicant's second submission that the Minister's delegate should have enquired after further material in order to make a reasoned decision. The applicant notes that the Minister's delegate had no evidence explaining the circumstances of the applicant's drug convictions such as the police officers' arrest reports or the applicant's explanation. The applicant also notes that the Minister did not have the decision of the Parole Board which would express the Board's belief that the applicant could leave prison because the risk of recidivism is low.
[28] The decisions in Pereira (supra) and Chedid (supra) are directly relevant to this issue. In Pereira (supra), the court considered the appropriate response when the Minister did not have the benefit of several crucial documents. At page 320, paragraph 25, Mr. Justice Cullen states:
| The Minister's determination was based on several official documents, including police and immigration reports, and the applicant's probation order. Not included in the record before the Minister were psychiatric reports referred to in the probation order, and the decision of the Parole Board. These latter two documents are crucial to the question of whether the applicant is a danger to the public or not, as they provide evidence as to the unlikelihood of recidivism. Normally, these documents would be considered inadmissible in an application for judicial review, because they were not part of the record before the Minister. However, this is a situation where this important, relevant evidence was easily accessible to the decision maker(s). Considering the serious consequences of a negative decision, this evidence should have been enquired after. |
| It is troubling that the psychiatric report and the Parole Board decision were not before the Minister when the danger to the public determination was made. The issue, in terms of natural justice or procedural fairness, is whether these relevant documents ought to have been before the Minister. These documents ought to have been before the Minister, regardless of whether the applicant made submissions or not. On this basis alone, I believe that the applicant's case ought to be sent back to the Minister for re-determination in light of, at a minimum, the evidence contained in those two documents. |
[29] On similar facts, in the case of Chedid (supra), at page 89, paragraph 38, Cullen J. states:
| The Minister's determination was based on several official documents, including police and immigration reports, the applicant's probation order, and the applicant's submissions. The decision of the Parole Board was not included in the record before the Minister. This document is crucial to the question of whether the applicant is a danger to the public or not, as it provides evidence as to the unlikelihood of recidivism. Although the respondent has not raised the issue of the admissibility of this document, normally, the Parole Board decision would be inadmissible in an application for judicial review, because it was not part of the record before the Minister. However, this is a situation where this important, relevant evidence was easily accessible to the decision maker(s). Considering the serious consequences of a negative decision, this evidence should have been enquired after. |
| I fail to see how the Minister could come to a danger determination in light of the information that was before her regarding the applicant's lengthy time out on bail and his parole record, and also in light of information that should have been before her, such as the Decision of the Parole Board. It is the Parole Board's "daily bread" to assess risk posed to the Canadian public by people such as the applicant. It is essential that such relevant, crucial information be before the Minister for subsection 70(5) determinations, and that it be taken into account in such determinations. |
[30] These two cases stand for the proposition that important evidence concerning an applicant's risk to the public should be placed before the Minister. This principle should apply in the present case due to the applicant's lack of sophistication and that he did not have a lawyer prior to the decision of the Minister's delegate. This case should be determined by the Minister's delegate with the addition of the Parole Board decisions, arrest reports and any statement the applicant wishes to make concerning the drug convictions.
CONCLUSION
[31] This matter is returned to the Minister's delegate for review with the addition of the documents mentioned in these reasons.
[32] No question for certification was submitted by the parties.
"Max M. Teitelbaum"
J.F.C.C.
OTTAWA, ONTARIO
April 14, 1998