Date: 20030128
Docket: IMM-1420-02
Neutral citation: 2003 FCT 85
BETWEEN:
VIKEN DOKMAJIAN
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
MacKay J.
This is an application under section 18.1 of the Federal Court Act, R.S.C., 1985, c. F-7 as amended, for judicial review of decisions dated December 27, 2001, by a delegate of the Minister of Citizenship and Immigration, wherein she formed the opinion that the applicant constituted a danger to the public pursuant to paragraph 46.01(1)(e) and also s-s. 70(5) of the former Immigration Act, R.S.C., 1985, c. I-2, as amended ("the Act").
The Background
The applicant, Viken Dokmajian, was born on January 24, 1978 and is a citizen of Lebanon. At the age of twelve he came to Canada with his parents and two elder brothers. His two sisters remained in Lebanon where they continue to reside. He has been a permanent resident since February 25, 1990.
[3] On October 22, 1998, the applicant was convicted of robbery contrary to section 344 of the Criminal Code, R.S.C., 1985, c. C-46 as amended. He was sentenced to six months imprisonment in addition to the three months he was credited for his period of pre-trial incarceration. On the same day, the applicant was also convicted of obstruction of justice pursuant to subsection 139(2) of the Criminal Code and received a six month consecutive conditional sentence. A ten-year firearm prohibition was also imposed upon him. On November 24, 1998, the applicant was convicted of possession of property obtained by crime, the value of which was under $5,000.00, under subsection 355(a) of the Criminal Code. He was sentenced to three months imprisonment to be served concurrently with his sentence for robbery.
[4] On January 23, 2001, more than two years after the applicant's first conviction he was the subject of a report pursuant to paragraph 27(1)(d) of the Act which found that he was a permanent resident who 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. Pursuant to that report, the applicant was ordered deported on October 26, 2001 and he filed a notice of appeal on the same day.
[5] Before the applicant's appeal was heard, on December 27, 2001 the Minister's delegate determined that the applicant constitutes a danger to the public under s-s. 70(5) and paragraph 46.01(1)(e) of the Act. In accord with s-s. 70(5), that determination precluded the applicant from pursuing an appeal of the deportation order. The applicant was advised of the opinion only on March 12, 2002 when he was taken into detention by immigration authorities. He was ordered released two days later on certain conditions.
[6] I note that before the danger opinion was rendered, notice was sent to the applicant indicating materials that would be considered and an opportunity was provided, to which the applicant responded, to make submissions for consideration by the Minister's delegate. A further opportunity was later provided to comment upon a proposed decision to be considered by the Minister's delegate, but the applicant made no further submissions before the decision was made.
Issues
[7] The issues to be determined in this application are as follows:
1. Should the affidavit evidence of the applicant and his parents, filed in support of his application for judicial review, be found inadmissible as new evidence that was not before the Minister's delegate?
2. Does the Minister's delegate's failure to provide a statement of reasons for the danger opinion warrant a finding that the decision should be set aside?
3. Did the Minister's delegate err in rendering an opinion, under subsection 70(5) and paragraph 46.01(1)(e) of the Act, which was unreasonable and on that ground should it be set aside?
I turn to each of these issues in turn.
New Evidence
[8] In support of this application the applicant filed two affidavits: the first, sworn by the applicant himself on May 28, 2002, and the other sworn by his parents on May 27, 2002. Both documents contain evidence which was not before the Minister's delegate when she made her decision. For example, these affidavits contain information regarding the ill health of the applicant's parents, his employment record since 2001, a decision of the Ontario Parole Board, and the adjudicator's decision made on his detention review. Despite having been given the opportunity, on two occasions, to make submissions prior to the issuance of the public danger opinion, the applicant had failed to provide this information to the Minister.
[9] In Farhadi v. Canada (Minister of Citizenship and Immigration) (1998), 3 F.C. 315 (T.D.), at paragraph 20, Mr. Justice Gibson commented:
It is trite law that a reviewing court is bound by the record filed before the federal board, commission or other tribunal the decision of which is under appeal. [...] Reviewing court jurisprudence has followed this rule, noting that if evidence not before the initial tribunal is introduced on judicial review, the review application would effectively be transformed into an appeal or a trial de novo. [...] While I am satisfied that a jurisdictional exception exists to the rule that new evidence is not admissible on judicial review, [...] I am also satisfied that an issue as to jurisdictional error of the tribunals does not arise here. The issues before me pertain to the Charter and the adequacy of the procedural safeguards in any risk assessment process conducted in this case.
Here, the issues to be considered concern the adequacy of reasons and the reasonableness of the danger opinion, neither of which suggests a jurisdictional error.
[10] The applicant relies upon Chedid v. Canada (Minister of Citizenship and Immigration) (1997), 127 F.T.R. 81 in response to the fresh evidence issue. In Chedid, the Court found that a Parole Board decision was a crucial document that should have been before the Minister regardless of whether or not the applicant made submissions in this respect. Mr. Justice Cullen stated:
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 the evidence contained in the Decision of the Parole Board.
[11] In my view, Chedid is distinguishable because in that case the Minister's representative had before her a letter from the applicant's parole officer and was aware that a decision of the parole board, to which the letter referred, was not before her. Here, there was no such letter before the decision-maker which would have made her aware of a parole board decision concerning Mr. Dokmajian.
[12] I conclude that the new evidence cannot be considered on this judicial review application. In considering the remaining issues, the new evidence contained in the applicant's affidavit of May 27, 2002 and the affidavit of his parents will be ignored.
Failure to provide reasons
[13] The issue of whether the principles of natural justice oblige the Minister to provide reasons when issuing a danger opinion has not yet been definitively settled. The respondent relies upon Tewelde v. Canada (Minister of Citizenship and Immigration) (2000), 5 Imm. L.R. (3d) 86 (F.C.T.D.) and argues that a failure to provide reasons for a danger opinion does not breach procedural fairness. The applicant cites Gonzalez v. Canada (Minister of Citizenship and Immigration) (2000), 6 Imm. L.R. (3d) 33 (F.C.T.D.) to support the position that reasons are required. This conflicting jurisprudence results from differing opinions concerning the effect of the Supreme Court of Canada decision of Baker v. Canada (Minister of Citizenship and Immigration), [1999], 2 S.C.R. 817, upon the law respecting the duty to give reasons that was set out in Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.). In Williams, Strayer J.A. concluded that the requirements of fairness are minimal in the context of rendering a danger opinion and absent statutory direction reasons were not required.
[14] In Baker, supra, Madam Justice L'Heureux-Dubé stated for the Supreme Court of Canada, at paragraph 43:
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 are required...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, ..., 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.
[15] In Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 3 (C.A.), aff'g [2000] 1 F.C. 619 (T.D.), the content of the duty of fairness with respect to a danger opinion was discussed. The impact of the decision on an applicant was considered and found to be similar to that of an applicant under subsection 114(2) since both provisions facilitate removal. Also, the Court rejected the argument that the duty of fairness owed fell at the low end of the spectrum, but instead suggested that the standard is higher than for subsection 114(2) decisions. It appears that the duty of fairness owed on a danger opinion is no longer minimal as the decision in Williams suggested, and given the decision of the Court of Appeal in Bhagwandass, in my opinion procedural fairness, in the circumstances of this case, requires that the decision in question be based on reasons that stand up to scrutiny.
[16] More recently, my colleague, Mr. Justice Blais, after reviewing Baker, supra and Bhagwandass, supra and other relevant cases, concluded in Mullings v. Canada (Minister of Citizenship and Immigration) (2001), 206 F.T.R. 93, at para. 20:
Although it has been held that failure to provide reasons for a decision under subsection 70(5) of the Immigration Act does not constitute breach of procedural fairness, it seems to me that the decisions in Baker, supra, and Bhagwandass, supra, support the assertion that failure to provide reasons constitutes a breach of procedural fairness.
[17] The respondent suggests that the Ministerial Opinion Report and the Request for Ministerial Opinion can constitute reasons. I would agree. That approach is analogous to the Supreme Court of Canada's finding that the immigration officer's notes made at the time of the H & C decision there in question constituted reasons in Baker. Moreover, in Bhagwandass (C.A.), Madam Justice Sharlow stated in paragraph 34:
...The Minister or Minister's delegate accepted the recommendation of the Ministry officials as set out in the two reports and rendered the danger opinion, and could have adopted the reports as the reasons for doing so. Whether the reports were so adopted in this case is a factual question that does not need to be addressed because the merits of the danger opinion itself are not in issue.
Blais J. cites this passage in Mullings and found in that case that these reports constitute reasons provided they have been adopted by the Minister or his delegate when rendering the danger opinion.
[18] In this case, the Minister's delegate states in her decision:
In forming my opinion, I have considered the Ministerial Opinion Report and the documentary evidence presented by local immigration officials to support their recommendation that Viken Dokmajian, born 24/01/78, citizen of Lebanon, represents a danger to the public pursuant to subsection 70(5) and paragraph 46.01(1)(e) of the Immigration Act as well as the information contained in the Request for Minister's Opinion report dated 10/1/01 and supporting material. I have also carefully considered the information received from Counsel, dated 29/04/01, as well as any and all humanitarian and compassionate considerations that may exist in this case. The information presented by Counsel has failed to persuade me that the recommendation forwarded by local immigration officials that Viken Kokmajian [sic] represents a danger to the public should not be followed in this case. I am satisfied that the Ministerial Opinion Report and the Request for Minister's Opinion in which the risk that he poses to the public in Canada is balanced against the risk that he may personally face upon return to Lebanon adequately reflects the basis for my conclusion that Viken Kokmajian [sic] is a danger to the public in Canada.
I find that the Minister's delegate did adopt the Ministerial Opinion Report and the Request for Ministerial Opinion as reasons for the danger opinion directed against Mr. Dokmajian.
Reasonableness of the Decision
The remaining issue is whether the reasons so provided are reasonable. I have reviewed both the Request for Minister's Opinion and the Ministerial Opinion Report. The Request for Minister's Opinion is divided into three sections. Under the first heading, "DANGER PROFILE", the applicant's three convictions are briefly described. Under the second heading, "NOTICE/CLIENT'S SUBMISSION", the submissions which applicant's counsel provided on April 29, 2001 are summarized and reference is made to an affidavit of the applicant in which he makes clear his realization of the nature of his criminal behaviour and professes his intent to change that. Under the third and last heading, "REMOVAL CONSIDERATIONS", more than 4 pages are devoted to a review of conditions in Lebanon concluding "there is little reasons to be [sic] believe that subject would face harsh or inhuman treatment if he was removed to Lebanon... he would likely face some degree of hardship if he returned to Lebanon".
[20] In the Ministerial Opinion Report an immigration officer provides the following handwritten comments, before recommending that a Minister's opinion be requested. First, in box 11, "Danger Rationale", the officer wrote "serious conviction of robbery". In box 12, "Major Points", is written "convicted at Ottawa for robbery and obstruction of justice 22 October 1998. These offences involved violence and intimidation". In box 14, the officer wrote, "The nature of these offences warrant consideration for danger opinion. He has an outstanding charge on 20/4/01 for possession of stolen property under $5000 pending. Court date scheduled 26/2/02." Under Part E, space is provided to indicate any humanitarian and compassionate considerations. The officer wrote, "subject's [sic] has his parents and two brothers residing in Canada". Last, the officer's manager concurs with the officer's recommendation and comments, in handwriting, "judge said client has a criminal mentality and reasons for judgment clearly indicate she expects him to reoffend".
[21] In my view, while the reasons that were adopted by the Minister's delegate here, appear superficially similar to those found to have been adopted in Mullings, there are significant differences. In Mullings, at para. 31, the Minister's delegate made reference to underlying evidence as follows:
In a Criminal Narrative Report Pursuant to A27(1) (see attached) it recommended a Direction for Inquiry and a Direction for Inquiry was issued which resulted in a Deportation Order dated 24 March 1998 for Robbery.
In the Judges Reasons for Sentence it reads, "In this particular case, I am satisfied that, given the facts, Mullings was a serious commercial trafficker of cocaine in high quality; that he was prepared, unless stopped, to continue trafficking, not only to the undercover agent, but any newcomer who wished crack cocaine."
Drugs are a menace to society.
The difference in Mullings is that the underlying evidence referred to, the reasons of the judge, included reference to Mr. Mullings as "a serious commercial trafficker of cocaine in high quality; that he was prepared, unless stopped to continue trafficking not only to the undercover agent, but any newcomer who wished crack cocaine". That evidence, supporting a finding that the person concerned is a current and future danger to Canada, is a necessary element for a valid opinion pursuant to s-s. 70(5). (See: Ip v. Canada (Minister of Citizenship and Immigration) (2000), 4 Imm. L.R. (3d) 77 (F.C.T.D.); Alvarez v. Canada (Minister of Citizenship and Immigration) 2001 FCT 222, [2001] F.C.J. No. 409; Navarro v. Canada (Minister of Citizenship and Immigration) (2000), 9 Imm. L.R. (3d) 47 (F.C.T.D.).)
[22] In Thompson v. Canada (Minister of Citizenship and Immigration) (1996), 37 Imm. L.R. (2d) 9 (F.C.T.D.), Mr. Justice Gibson considered what constitutes a "danger to the public" and concluded that the fact of a conviction alone is an insufficient basis for a danger opinion. Further, he determined that the phrase "danger to the public" means a present or future danger. Thus, the circumstances of each case must provide evidence of the person concerned being a present or future danger to other persons in Canada.
[23] The parties are in agreement that the standard of review to be applied in review of the danger opinion is reasonableness simpliciter. This position accords with the judgments in Bhagwandass and Mullings. That standard is applicable in the case at bar.
[24] After reviewing the opinion of, and the evidence before, the Minister's delegate, there is no clearly expressed reference to the current and future danger to the public in Canada that the applicant is seen to present. Nor, in my opinion, is there evidence of that. Although the applicant's convictions are described as serious in both the Ministerial Opinion Report, and in the reasons for sentencing on his conviction in October 1998 by Madam Justice Nicolas, the nature of past offences or their seriousness does not in itself generally constitute a danger to the public for purposes of s-s. 70(5). Moreover, that danger must be related to current and future circumstances. (Thompson, supra.)
[25] The only underlying evidence referred to in the materials before the Minister's delegate that would support a finding the applicant constitutes a danger to the public appears in the Ministerial Opinion Report which initiated the process leading to the danger opinion. There are two references, which I deal with in turn.
[26] The first reference is:
The nature of these offences warrant [sic] consideration for danger opinion. He has an outstanding charge on 20/4/01 for possession of stolen property under $5000. pending. Court date scheduled 26/2/02.
The first of the sentences quoted does not indicate why the applicant could be considered a danger to the public, it merely refers to the nature of the offences. As we have seen, that does not in itself support such an opinion. The second sentence refers to an outstanding charge, not a conviction, a matter which would not by itself warrant an opinion that he constitute a danger.
[27] The second reference in the Ministerial Opinion Report, apparently relating to comments of Madam Justice Nicholas in sentencing the applicant upon his conviction in October, 1998, is as follows:
Judge said client has a criminal mentality and reasons for judgment clearly indicated she expects him to reoffend.
Having reviewed those reasons it is my opinion that the manager's characterization of the judge's comments is unreasonable. Although she did express a lack of confidence in the applicant, she did not state that she expected the applicant to reoffend. Moreover, she did not state that the applicant has a criminal mentality. Rather, her words to the applicant were "maybe you have a criminal mentality, I don't know...". In my view, the evidence relied upon by the officer in the Ministerial Opinion Report does not support the assessment made by the local immigration officer.
[28] It bears noting that a more positive view of the applicant's future is provided by Madam Justice Ratushny, in her reasons for sentencing for the conviction on November 24, 1998 respecting wrongful possession of property under $5,000. She stated that the purpose and the terms of the applicant's previous sentence in October 1998, to get the applicant to change his conduct, should be achieved by that earlier sentence, and she therefore ordered a sentence of 3 months to be served concurrently.
[29] The remaining evidence that was before the Minister's delegate, including the Report Under Section 27(1)(d) and the Narrative Report Pursuant to 27(1), recommending an inquiry in light of Mr. Dokmajian's criminal convictions and which led to a deportation order, fail to establish any present or future risk posed by the applicant. The only other evidence, which speaks to the likelihood of the applicant committing further crimes is statements he made in his affidavit of April 25, 2001, that he had learned his lesson and intends to live a proper life. I note that the applicant's three convictions occurred three years before the danger opinion was issued and there is no evidence that applicant has been convicted of any further convictions since 1998.
[30] Given the lack of evidence to support an opinion that the applicant is a present or future danger to the public, I conclude that the opinion of the Minister's delegate, by decisions dated December 27, 2001, was unreasonable. The application for judicial review is allowed, and the danger opinions rendered by the Minister's delegate are set aside.
[31] The applicant asked for costs based on the submission that the process, from the time he was referred for inquiry was long and expensive with several hearings. In my opinion that process, provided by statute, cannot be considered to provide special reasons for an award of costs as is required by Rule 22 of the Court's Immigration Rules. No costs are ordered.
(signed) W. Andrew MacKay
____________________________
Judge
OTTAWA, Ontario
January 28, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
DOCKET: IMM-1420-02
STYLE OF CAUSE: Viken Dokmajian v. M.C.I.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 9, 2003
REASONS FOR ORDER OF: The Honourable Mr. Justice MacKay
DATED: January 28, 2003
APPEARANCES:
Mr. Warren CreatesFOR THE APPLICANT
Ms. Kimberly Barber
Ms. Elizabeth RichardsFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
FOR THE APPLICANT
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada