Date: 19990526
Docket: IMM-3771-98
BETWEEN:
CONG DAHN DO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of the decision of W.A. Sheppit, the Minister"s Delegate, dated 8 July 1998, wherein it was determined that the Applicant constitutes a danger to the public in Canada pursuant to subsection 70(5) of the Immigration Act (the "Act").1
THE FACTS
[2] The Applicant is a permanent resident in Canada. He was born in Vietnam 7 November 1970 and left at the age of 8 because of the war. He arrived in Canada 13 April 1982. Since that time he has been convicted of several offenses, including trafficking in narcotics, fraud, break and enter into a dwelling place, assault with a weapon and assault with intent to injure.
[3] An inquiry was held 18 November 1997, before an adjudicator, who found the Applicant to be a person described in subparagraph 27(1)(d)(i), namely a permanent resident who has been convicted of an offense under an Act of Parliament, for which a term of imprisonment of more than 6 months has been imposed. The adjudicator also listed the offenses of which the Applicant had been convicted. Based on this finding, the adjudicator issued a deportation order. The Applicant filed an appeal of this decision to the Appeal Division of the Immigration and Refugee Board (the "Appeal Division") on 4 December 1997.
[4] On 19 May 1998, the Applicant was sent a notice to appear at the appeal hearing scheduled for 20 July 1998.
[5] On 11 June 1998, the Applicant was notified of the Department"s intent to seek a danger opinion under subsection 70(5) and subparagraph 46.01(1)(e)(iv) of the Act . The notice indicated that the Applicant had 15 days from the receipt date to make submissions. Thus the deadline for his submissions was 26 June 1998.
[6] On 29 June 1998, the Minister"s delegate concluded that the Applicant was a danger to the public in Canada. The report indicates that the submissions made by the Applicant on 26 June 1998 were considered.2 Supplementary documents, submitted on 29 June 1999, were not considered because they were received after the deadline.
[7] The Applicant first submits that the adjudicator erred in law, since he did not specifically find that the Applicant is a person described in paragraph 27(1)(d), who has been convicted of an offense for which a term of imprisonment of ten years or more may be imposed, as set out in paragraph 70(5)(c).
[8] This argument fails. The Federal Court of Appeal stated, in Athwal3, that the adjudicator lacked the express authority to make a determination that a person has been convicted of an offense for which a sentence of ten years or more could have been imposed.
In summary, there is nothing in the Act which expressly empowers an adjudicator presiding at an inquiry to make factual findings other than those required for the purposes of section 27 of the Act. That section makes no reference to the specific finding required under paragraph 70(5)(c) for a right of appeal to be eliminated. I recognize that read in isolation, the subsection might suggest that the adjudicator has an implied power to make the necessary finding of fact. In my opinion, there are two reasons why such an implication is unwarranted in this case. First, subsection 69.4(2) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18] gives the IAD "sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction" with respect to appeals made under section 70. Thus, it is reasonable to maintain that it was Parliament"s intention to vest the IAD with the responsibility of determining whether a person had been convicted of an offence for which a prison term of ten years or more could have been imposed. This conclusion is reinforced when consideration is given to the eviscerating effect that a contrary opinion would have on the application of the transitional provision. Therein lies the second reason for rejecting the idea that an adjudicator has the implied authority to make the finding in issue.4
Following Athwal, it is clear that the adjudicator"s failure to make such a determination cannot be an error of law.
[9] The Applicant then submits that the Minister"s delegate failed to consider a psychological report, dated 24 April 1997 and prepared for Correctional Services Canada, in which he was considered to pose a less than average risk for committing further violent offenses.5 This document was contained in the second package of materials, received after the deadline.
[10] The Applicant claims that, nonetheless, this information was in the hands of the Department and should have been considered.
[11] The psychological report of 24 April 1997 was not among the documents before the Minister"s delegate, as indicated by the notice sent to the Applicant 11 June 1998.6 However, a document entitled "Rapport Récapitulatif sur l"évolution du cas", dated 29 December 1998, was included in the file presented to the Minister"s delegate. This document states that the Applicant poses a high risk for recidivism.
[12] The Respondent submits that the "Rapport Récapitulatif" is the most recent evaluation of the Applicant and, therefore, more accurately reflects the Applicant"s case. I disagree. The 1997 psychological report is the most recent psychological evaluation of the Applicant. It states that he represents a less than average risk for recidivism in violent crime. This information is not reflected in the "Rapport Récapitulatif." Furthermore, the 1997 Report was easily accessible for the Respondent and, in my opinion, highly relevant.
[13] In addition, it is troubling that the "Rapport Récapitulatif", prepared in 1998, does not mention the more favourable 1997 report, but makes reference to a 1991 report, which states that the individual is dangerous.
[14] Considering the serious consequences of a negative decision, the 1997 psychological report ought to have been before the Minister. In the end, the Minister is entitled to arrive at the same conclusion. Nonetheless, procedural fairness requires that all relevant evidence should be before the Minister or her delegate.7
[15] Consequently, the matter is returned to the Minister"s delegate for reconsideration, with the addition of the 1997 psychological report.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
May 26, 1999.
__________________3 Athwal v. Canada (Minister of Citizenship and Immigration), [1998] 1 F.C. at 489 (F.C.A.).
7 Pereira v. Canada (Minister of Citizenship and Immigration) (1997), 126 F.T.R. 315 (F.C.T.D.); Chedid v. Canada (Minister of Citizenship and Immigration) (1997), 127 F.T.R. 81 (F.C.T.D.).