Ottawa, Ontario, January 17, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This judicial review is in respect of a decision by the Minister’s Delegate that a danger opinion rendered May 24, 1996 (emphasis by Court) will remain in effect. The decision under review (March 2, 2006) is almost 10 years after the initial danger opinion. The Applicant has remained in Canada throughout this period, partly because he was in jail but also during part of that time he was the primary caregiver to two children while his common-law wife was undergoing treatment for mental illness.
II. BACKGROUND
[2] The Applicant was found to be a Convention refugee and became a permanent resident in May 1989.
[3] In 1995 the Applicant was convicted of sexual assault on two 15 year old girls. One of these assaults was videotaped. Alcohol played an important part in both assaults. He was sentenced to serve six years in prison.
[4] The Respondent issued a danger opinion against him in May 1996 while the Applicant was in prison. He was ordered deported and his application for judicial review was dismissed.
[5] In October 1999 the Applicant was released from prison but his deportation was delayed while the Respondent attempted to obtain travel documents from the Government of Ethiopia. His removal was further delayed by this Court’s order staying removal pending the disposition of the Applicant’s application challenging the refusal to reconsider the initial danger opinion. The Minister ultimately consented to the reconsideration which had led to these proceedings.
[6] In the reconsideration document package disclosed to the Applicant were the following new critical facts:
· On June 6, 2004, an information was laid against the Applicant on behalf of his former common-law wife fearing violence from him due to a series of prior incidents;
· The Applicant had entered into an undertaking which included avoiding contact with his former common-law wife;
· On July 23, 2004 the Applicant was charged with assault and being in breach of his recognizance for which he was ultimately convicted on only the breach of his recognizance. The breach was for contacting the former common-law wife; he was sentenced to one day with the record to reflect time served and probation for nine months;
· On June 28, 2004, his former common-law wife’s sister wrote to Immigration officials alleging that the Applicant continued to drink and was a danger to her sister.
[7] In the Applicant’s submissions to the Minister’s Delegate, his counsel objected to the June 28, 2004 letter, asked for the opportunity to cross-examine the writer and filed the Applicant’s rebuttal affidavit. In that affidavit, the Applicant does not challenge the allegation of his continued drinking.
[8] In the decision under review, the Minister’s Delegate cites passages from Justice Mactavish’s decision in Thuraisingam v. Canada (Minister of Citizenship and Immigration), 2004 FC 607 to the effect that a Minister’s Delegate should go beyond accepting mere allegations of possible criminal acts and should examine the facts underlying the allegations in rendering a danger opinion.
[9] The reasons of the Minister’s Delegate for affirming the danger opinion were that (a) the recent charges and conviction indicate that the Applicant has not turned his life around and is not rehabilitated, and (b) he continues to drink.
[10] The Applicant challenges this decision on four grounds:
1. The Applicant had only one, and a minor, breach of his bail but he had shown sufficient reform and good conduct to be allowed to take care of the children;
2. A conviction is not a sufficient basis for a danger opinion;
3. His “sister-in-law” had engaged in a “poison pen” writing exercise for personal reasons; and
4. There was a breach of natural justice in not permitting the Applicant’s counsel the opportunity to confront the “sister-in-law” and her letter.
III. ANALYSIS
[11] The standard of review in respect of danger opinions has been set by the Supreme Court of Canada in Ahani v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 72 at paragraph 16 as “patent unreasonableness”. That standard does not apply to the denial of natural justice issue which is to be determined on the basis of “correctness”.
[12] Therefore the real issue raised by the first three grounds is whether the Minister’s Delegate was patently unreasonable in concluding that the Applicant had not rehabilitated himself sufficiently to effectively expunge the initial danger opinion.
[13] There are, certainly, factors which go against the conclusion of the Minister’s Delegate. These include that the recent conviction was a minor offence arising from a desire to see his child on the child’s birthday; the “sister-in-law” had personal motives for her allegation that there was danger; and that he had support from his psychologist and social worker dealing with his wife’s mental illness and his fitness to care for the children.
[14] Given the standard of review, I cannot find that the decision of the Minister’s Delegate is patently unreasonable. There was some reasonable evidence on which to ground the conclusion.
[15] The Applicant had a history of violence related to alcohol. A psychologist’s report (Certified Tribunal Record, p. 71-73) confirmed that alcohol played a part in the Applicant’s criminal acts. He was a risk because of the relation between his alcohol use and his propensity for violence.
[16] The Applicant was given an opportunity to rebut, in affidavit form, the “sister-in-law’s” allegation that he was drinking. It was particularly telling that the Applicant did not deny this allegation – an allegation which goes to the root of what made him a danger to others.
[17] Taken in the context of the Applicant’s past actions, the Minister’s Delegate had a basis for reaching the conclusion which he did. His continued drinking formed a sufficient basis for a conclusion that this fact and others related to his bad conduct outweighed the positive evidence.
[18] As to the breach of natural justice, I cannot agree with the suggestion that in a reconsideration of a danger opinion where there was a public hearing on the initial opinion, the level of fairness owed on the reconsideration is low. I do not believe that McLaren v. Canada (Minister f Citizenship and Immigration) (C.A.), 2001 FCT 373 can be said to hold that this is a universal proposition. It depends on the basis of the reconsideration. As held by the Court of Appeal in Bhagwandass v. Canada (Minister of Citizenship and Immigration), 2001 FCA 49, the danger opinion process is adversarial and has serious consequences. Neither the adversarial nature nor the seriousness of the consequences change merely because the process is a reconsideration of a danger opinion.
[19] The Applicant’s case on this issue would have been stronger if he had denied the allegations of drinking made against him. Those allegations are fundamental to his case. He failed to even deny that they were true. He can hardly complain about his inability to confront his accuser on a key issue which he does not deny or challenge.
IV. CONCLUSION
[20] Therefore, for these reasons, this judicial review will be dismissed. There is no question to be certified.
JUDGMENT
IT IS ORDERED THAT this application for judicial review will be dismissed.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1929-06
STYLE OF CAUSE: YOHANNES MEHARI MIRCHA
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: November 22, 2006
APPEARANCES:
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Ms. Fiona Begg
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Ms. Sandra Weafer
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SOLICITORS OF RECORD:
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MS. FIONA BEGG Barrister & Solicitor Vancouver, British Columbia
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Vancouver, British Columbia
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