BETWEEN:
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] In 1991, the applicant, then 9 years of age, came to Canada from Ethiopia as a Convention refugee. He entered Canada with his mother and sister.
[2] On June 18, 2001, while a permanent resident in Canada, the applicant was convicted of aggravated assault. He was sentenced to a penitentiary term of four years. The sentence took into account the eleven months the applicant spent in pre-trial custody.
[3] This application for judicial review challenges the opinion issued on August 24, 2005 by the minister’s delegate that the applicant constitutes a danger to the public in Canada, within the meaning of paragraph 115(2)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. For the reasons set out below, I have concluded that the applicant has failed to establish any reviewable error in the four issues raised in this proceeding, the first two of which concern procedural fairness.
(i) Did the Minister’s delegate breach procedural fairness by providing only fifteen days for the applicant to respond?
[4] On May 20, 2003 and June 27, 2003, letters signed by one of the respondent’s officials as part of the danger opinion process were delivered to the applicant at the Joyceville Institution where he was incarcerated. Each letter provided the applicant with the opportunity to make representations concerning the danger opinion “before the expiration of 15 days from the receipt” of the correspondence. The applicant apparently refused to acknowledge receipt of the materials in writing because he “didn’t really understand”.
[5] On July 9, 2003 and July 23, 2003, responses were forwarded on behalf of the applicant by a representative of the John Howard Society (JHS) in Kingston. The representative was the institutional services counsellor who first met the applicant in early 2003.
[6] In her letter of July 9, 2003, the JHS representative reported that, since first meeting the applicant, she interviewed him “… various times, discussing his release plans and possible deportation to Ethiopia. While the early years of his imprisonment have not been exemplary, Tedla has made a conscious effort to turn his life around and is devising a release plan to the Toronto area where he would benefit from the guidance and support of his family” (emphasis added).
[7] On July 23, 2003, the JHS representative forwarded a second submission which included a five-page letter signed by the applicant and letters of support from his mother who was prepared to employ him in her restaurant upon his release. This letter was accepted by the respondent even though it was received a few days beyond the 15-day time period stipulated in the letter of June 27, 2003.
[8] The applicant’s factual submissions concerning the 15-day time period are based on his incarceration when the danger opinion process was undertaken, his limited formal education which ended in grade 9 and the absence of a lawyer to make representations on his behalf. The case law submitted by the applicant in support of his position was limited to the assertion of the general principle of audi alteram partem.
[9] The respondent relies on the cross-examination of the applicant which established that he had access to his family and to telephone and library facilities when he received the correspondence of May 20 and June 27, 2003. He had previously called a lawyer while incarcerated for a matter unrelated to his immigration status. The letter of July 9, 2003 from the JHS representative confirms that she discussed with the applicant his possible deportation to Ethiopia, a possibility that was stated in the letters of May 20 and June 27, 2003.
[10] The danger opinion was not signed until August 2005, some two years after the process began in 2003. During this interval, there is no evidence of any other attempt by the applicant to file submissions.
[11] In Chu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1043 (T.D.) at paragraph 7, aff’d 2001 FCA 113 at paragraph 12, neither the applications judge nor the Court of appeal criticized the 15-day reply period as falling short of the requirements of procedural fairness. It should be noted, however, that this was not the principal issue in the litigation.
[12] In the circumstances of this case, the applicant cannot explain how a longer reply period could have affected the issue of procedural fairness in any meaningful way. The applicant’s first argument must, therefore, fail.
(ii) Did the minister’s delegate breach procedural fairness by failing to disclose all documents that were to be relied upon?
[13] The respondent’s letter of June 27, 2003 included the following statement:
As part of this process, please find enclosed a copy of the Ministerial Opinion Report and the Request for Minister’s Opinion as well as the following documents:
· U.S. Department of The State - country Reports on Human Rights Practices
· United Nations High Commission for Refugees – update on regional developments in Africa
[14] Neither of the above-mentioned two documents was enclosed with the correspondence although extracts from each were referred to at some length in the Request for Minister’s Opinion. The respondent established that each document is readily available via the internet and judicial notice can be taken of the fact that this type of country condition evidence can be obtained from other public sources.
[15] In Chu, above, at paragraph 10, the Federal Court of Appeal confirmed that documents submitted to the decision-maker by other officials acting on behalf of the respondent must generally be disclosed “… or at least must be specifically identified if the documents are generally available”. The same principle was reiterated in Mancia v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 120 (T.D.), aff’d [1998] F.C.J. No. 565 (C.A.). There is no reason to distinguish this proceeding from the case law relied upon by the respondent
(iii) Did the minister’s delegate properly assess the country information?
[16] The applicant acknowledges that the principal challenge in this application for judicial review was based on procedural fairness. However, in limited written and oral submissions, the applicant did suggest that the decision-maker erred in assessing the risk of returning to Ethiopia. In this regard, the applicant acknowledges that the standard of review is patent unreasonableness. In the context of this case, I agree and, in my view, the applicant has fallen far short of establishing any reviewable error on this issue.
(iv) Was it reasonable and proper for the minister’s delegate to consider the applicant’s Young Offender record in assessing danger to the public of Canada?
[17] In the “rationale” section of her opinion, the minister’s delegate quoted from the Reasons for Sentence of the Ontario Court of Justice as follows: “[Mr. Adinew] has a Young Offender record, and so this was not his first experience with the court or with the criminal justice system.” The danger opinion prepared makes no specific mention of any proceeding under the Youth Criminal Justice Act, S.C. 2002, c. 1 or any correctional report and sentencing remarks related to a prosecution under that legislation.
[18] For these reasons, this application for judicial review will be dismissed. In response to the request by counsel for the applicant, Mr. Adinew will have seven days from the date of these reasons to serve and file submissions, should he chose to do so, concerning the certification of a serious question of general importance. The respondent shall have an additional seven days to reply.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4158-06
STYLE OF CAUSE: TEDLA ADINEW
v.
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER: CHIEF JUSTICE LUTFY
APPEARANCES:
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YEHUDA LEVINSON
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JOHN PROVART |
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SOLICITORS OF RECORD:
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LEVINSON & ASSOCIATES BARRISTERS & SOLICITORS TORONTO, ONTARIO |
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JOHN H.SIMS, Q.C. DEPUTY ATTORNEY GENERAL OF CANADA TORONTO, ONTARIO |
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