Date: 20010322
Docket: IMM-1399-00
Neutral Citation: 2001 FCT 222
BETWEEN:
OSCAR HERNANDO ALVAREZ
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] Oscar Hernando Alvarez (the "Applicant") seeks judicial review of the decision of the Minister's delegate made pursuant to section 70(5) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") that he is a danger to the public.
FACTS
[2] The Applicant was convicted on April 23, 1999 of the offence of importing a controlled substance contrary to the Controlled Drugs and Substances Act, c. C-38.8 (1996, c. 19) for which a sentence of four years imprisonment was imposed. This was the first criminal conviction for the Applicant who has been residing in Canada since 1992. He is a permanent resident but without citizenship.
[3] As a result of the conviction in 1999, a report was issued under section 27 of the Act on June 2, 1999. Subsequent to the issuance of that report, the Applicant received written notice from Citizenship and Immigration Canada that it would seek the opinion of the Minister pursuant to section 70(5) and section 46.01(1)(e)(iv) of the Act that he is a danger to the public in Canada.[1] The notice of intention to seek a danger opinion from the Minister was delivered to the Applicant on November 25, 1999. On November 26 and November 29, 1999 the Applicant wrote two letters in response to this notice. A further letter was written on December 3, 1999 on behalf of the Applicant, by two of his brothers who reside in Canada.
[4] These letters, together with a copy of the section 27 report, the letter sent to the Applicant advising him of the intention to seek the danger opinion, the warrant for committal, the judge's sentencing remarks, Correctional Services reports, documents relating to the Applicant's immigration file, and a criminal narrative report pursuant to section 27(1), are included in a report entitled "Danger to the Public Ministerial Opinion Report". This report was not provided to the Applicant.
[5] On December 6, 1999, a deportation order was issued against the Applicant. On December 29, 1999, the Minister's delegate, W. Sheppit issued an opinion pursuant to section 70(5) of the Act that the Applicant is a danger to the public in Canada.
[6] An application for leave and judicial review of that decision was commenced and by Order made October 23, 2000, leave was granted in relation to this application for judicial review.
ISSUES
[7] The Applicant raises four issues in this application. He questions whether reasons are required when an opinion is issued under section 70(5) of the Act. Second, he asks whether disclosure of the reports relied upon by the Minister's delegate is required. Third, he questions whether the fifteen day delay for responding was too short, having regard to the fact that he was incarcerated in a facility far away from immigration lawyers. Finally, he says that at the time the opinion was made, the decision-maker ignored a recent decision of this Court which would require, as a matter of law, that disclosure of the supporting reports was required. That case is Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 619 (F.C.T.D.)[2].
APPLICANT'S SUBMISSIONS
[8] Although the Applicant submitted lengthy arguments on these points, it is not necessary for me to review them in detail. It is sufficient to say that the Applicant focused on the expanded duty of fairness expected from a decision-maker as a result of the ruling by the Supreme Court of Canada in Baker v. Canada, [1999] 2 S.C.R. 817. Counsel for the Applicant acknowledged that there is a divergence of opinion in this Court on the question whether danger opinions issued by the Minister under the Act require reasons.[3]
RESPONDENT'S SUBMISSIONS
[9] The Respondent presented a principled argument on the basis that Baker, supra does not expand the duty of fairness required when the Minister's opinion is sought pursuant to section 70(5). Counsel argued that that decision requires consideration of the content of the duty of fairness. According to the Respondent, Baker, supra does not expand the duty of fairness in relation to every discretionary decision made under the Act, but requires an examination of the level of fairness that is owed to persons who are subject to a discretionary decision.
[10] The Respondent further argues that Baker, supra does not overtake and overrule the decision of the Federal Court of Appeal in Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.).
[11] The Respondent also argues that the decision of the Federal Court of Appeal in Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407 (C.A.) can be distinguished from the case at bar because it concerns a discretionary decision made relative to the existence of humanitarian and compassionate grounds. The Respondent says that a decision made pursuant to section 114(2) of the Act is different from a decision made under section 70(5), because the circumstances giving rise to each decision are very different.
[12] The Respondent cautioned against giving undue importance to the effect of a discretionary decision upon an affected individual when assessing the content of the applicable duty of fairness. The Respondent urges that the personal effect upon an individual cannot take priority over the proper administration of the Act.
ANALYSIS
[13] With respect for the position presented by the Respondent, I do not accept these arguments.
[14] In my opinion, the extent of the duty of fairness in relation to a discretionary decision has been expanded by the decision in Baker, supra. A minimal satisfaction of the duty of fairness is no longer sufficient.
[15] I am not persuaded that the request for the Ministerial opinion or the recommendation to the Minister's delegate constitute reasons. At best, the requisition for the opinion is a summary of details relating to the personal situation of the Applicant, including a review of materials prepared by Correctional Services Canada. It is a history of events, with some commentary from those persons involved in assessing the Applicant after his conviction. The document was prepared by someone other than the decision-maker and prior to the decision being made.
[16] The recommendation to the Minister's delegate contains some assessment of risk to the Applicant if he were returned to Columbia but does not address the issue of the present or future risk posed by the Applicant to Canadian society, and presumably that risk is a necessary part of the process leading up to the issuance of a danger opinion under section 70(5).
[17] The recommendation to the Minister is a one-sided view. The failure to provide this material, including the requisition for the Ministerial opinion, to the Applicant, together with an adequate opportunity to respond to these materials, fails to meet the new standard of fairness which was recognized in Baker, supra.
[18] The issue here relating to the need for disclosure of the Ministerial Opinion Report has been dealt with by the Federal Court of Appeal in their recent decision in the Minister of Citizenship and Immigration v. Sunil Bhagwandass [2001] F.C.A. 49. At paragraph 35 the court said as follows:
For the foregoing reasons, I conclude that the Minister breached the duty of fairness to Mr. Bhagwandass by failing to disclose to him the Ministerial Opinion Report and the Request for Minister's Opinion, in the form in which they were presented to the Minister or Minister's delegate, to afford Mr. Bhagwandass a reasonable opportunity to respond to them.
[19] In these circumstances, the application for judicial review is allowed and the danger opinion is quashed. It is not necessary for me to comment on the other arguments raised by the parties.
[20] Although counsel for the Applicant submitted two questions for certification, I am
not persuaded that those questions should be certified. However, I am prepared to certify
the following question submitted by the Respondent:
Should Ministerial Reports prepared under section 70(5) of the Immimgration Act be taken, by inference, to be the reasons for the Minister's Delegate's opinion?
[1]This application for judicial review proceeded only in relation to the danger opinion issued pursuant to section 70(5).
[2]Since the Federal Court of Appeal delivered its reasons in Minister of Citizenship and Immigration v. Sunil Bhagwandass [2001] F.C.A. 49, following the hearing of the within application but before the issuance of these reasons, the parties were provided with an opportunity to make submissions concerning the effect of those reasons on the present matter.
[3]In a recent decision, Justice Hansen referred to some of these divergent opinions; see Said Ahmed Houssein v. M.C.I., [2001] F.C.J. No. 161 at paragraphs 10 and 11.