Digests

Ip v. Canada (Minister of Citizenship and Immigration)

IMM-787-98

Dubé J.

3/2/00

14 pp.

Judicial review of Minister's opinion applicant danger to public pursuant to Immigration Act, s. 70(5)--Applicant granted permanent resident status as "backlog refugee" in 1991--In 1993 convicted of kidnapping with intent to hold for ransom, sentenced to 14 years' imprisonment--Court setting aside first danger opinion on ground failure to respond to request for extension of time within which to reply to notice of intention to seek opinion constituted breach of natural justice--After second notice of intention issued, applicant making submissions, Minister's delegate issuing opinion applicant danger to public--(1) Court not referring first opinion back for determination in accordance with such directions as considered appropriate, but simply set decision aside--Minister, delegate functus officio with respect to first opinion, but nothing in Court order or at law precluding Minister, delegate from exercising Minister's discretionary authority with respect to applicant on subsequent occasions--(2) That same individual acting as delegate on both opinions not ipso facto giving rise to reasonable apprehension of bias--If Minister's delegate not acting, Minister herself would act--As general principle, mere fact tribunal sitting on re-hearing of matter previously decided not by itself giving rise to reasonable apprehension of bias--Must be some other basis for arguing reasonable apprehension of bias--Member no more biased on second hearing than on first one--Issuance of danger opinion discretionary administrative decision--Must be exercised in good faith, based on perceived probabilities of risk, acceptability of that risk--As result of Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, requirements of fairness no longer minimal, but not unfair for Minister to delegate authority to same person for second opinion--(3) Applicant claiming since criminal record arising from one incident in 1992, issue whether applicant posing danger to public at time second opinion formed and in future--Mere fact Court may weigh certain factors differently, and come to different conclusion not making Minister's opinion perverse or capricious--In absence of written reasons, cannot determine whether Minister's delegate acted in bad faith or based decision on irrelevant criteria, evidence, or without regard to material--Standard of review that stipulated by L'Heureux-Dubé in Baker: reasonableness simpliciter--(4) Notice to applicant referring to recent, current country information available at Immigration and Refugee Board Documentation Centres--Duty of fairness not requiring more than advising claimant will be relying on such information: Chu v. Canada (Minister of Citizenship and Immigration) (1998), 161 D.L.R. (4th) 499 (F.C.A.) i.e. not required to provide specific evidence--(5) Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.) holding Minister's opinion not requiring written reasons either under Charter, or pursuant to principles of fairness--But in Baker, S.C.C. holding, within context of administrative procedure involving discretionary decision by immigration officer dealing with applications pursuant to s. 114(2) (humanitarian and compassionate considerations), reasons required "in certain circumstances" eg. where decision has important significance for individual, when statutory right of appeal--Decision herein having enormous significance for individual, extremely critical to future--Applicant will leave behind wife, child in Canada, face presumably hostile Chinese authorities from whom fled to become refugee here--Under these specific circumstances, Minister's delegate having obligation to explain why decision, based solely on one crime, totally ignoring evidence suggesting applicant no longer danger to public--One-page report dealing briefly with kidnapping sentence not adequate reasons reflecting relevant factors involved in matter--Minister's opinion quashed for failure to give adequate reasons, matter referred back to respondent for redetermination in accordance with reasons--Questions certified: (1) whether breach of duty of fairness if summary report, danger to public ministerial opinion report forming part of materials before Minister's delegate and those reports not shared with person affected; (2) in light of Baker, is standard of review of Minister's delegate's decision under s. 70(5) "reasonableness simpliciter"; (3) in light of Baker, is duty of fairness in opinion reached pursuant to s. 70(5) "minimal"; (4) in light of Baker, are written reasons required for opinion pursuant to s. 70(5); (5) does duty of procedural fairness require provision of written reasons for Minister's opinion under s. 70(5)?--Immigration Act, R.S.C., 1985, c. I-2, s. 70(5) (as am. by S.C. 1995, c. 15, s. 13).