[2000] 2 F.C. 528
IMM-480-99
Abdelkrim Nemouchi (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Nemouchi v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Dubé J.—Vancouver, January 4 and 6, 2000.
Citizenship and Immigration — Exclusion and removal — Removal of refugees — Convention refugee convicted, sentenced to penitiary for criminal offences — Judicial review of Minister’s delegate denial of request for reconsideration of danger opinion as insufficient grounds justifying re-opening decision — Original application dismissed by F.C.T.D. for failure to perfect — Applicant changing solicitors, providing new documents not before Minister’s delegate when made original decision, indicating little or no risk of re-offending — Effectively first request for judicial review of Minister’s danger opinion — Manifestly unfair to summarily reject new information, send courtesy letter — New documents extremely important to applicant, family — Minister’s delegate having duty to give documents careful attention; at least provide reasons why documents insufficient to justify re-opening of decision.
Administrative law — Judicial review — Certiorari — Duty of fairness — Convention refugee convicted, sentenced for criminal offences — Minister’s delegate denying request for reconsideration of danger opinion — Three documents not in existence at time of initial opinion before Minister’s delegate on reconsideration application indicating little or no risk of re-offending — Documents of extreme importance to applicant — Minister’s delegate having duty to give them most careful attention, give reasons why not constituting sufficient grounds to justify re-opening decision.
This was an application for judicial review of the Minister’s delegate’s denial of a request for reconsideration, based on new evidence, of a decision that the applicant was a danger to the public in Canada. The applicant had been determined to be a Convention refugee in 1991. In 1996 he was convicted of several criminal offences, for which he was sentenced to four years’ imprisonment. In 1997 he was determined to be a danger to the public in Canada. He filed an application for leave and for judicial review of that decision which was dismissed by the Trial Division for failure to perfect the application. A year later the applicant, represented by a new lawyer, requested reconsideration of that decision based on new documentary evidence, consisting of a National Parole Board decision indicating that the applicant’s probability of violent re-offending was nearly 0%; a psychological assessment stating unequivocally that the applicant was not likely to commit violent offences; and a decision of an immigration adjudicator releasing the applicant from custody and stating that the applicant was not likely to pose a risk to the public. The Minister’s delegate declined to reconsider the danger opinion as there were insufficient grounds justifying re-opening of the decision.
The issues were: (1) whether the denial of the request for reconsideration was a new decision which may be subject to judicial review; (2) whether the Minister’s delegate erred in law or in fact in determining that there were insufficient grounds to justify re-opening of the Minister’s danger opinion.
Held, the application should be allowed.
(1) While there must be finality to the process, the request for reconsideration was not a “second kick at the can” but in reality, the first effective request for judicial review of the Minister’s danger opinion. The first application was dismissed because it was not perfected. Thereafter, the applicant changed solicitors and new vital information was obtained. It was manifestly unfair to reject that new information out of hand via a courtesy letter.
The three documents placed before the Minister’s delegate on the reconsideration application were of extreme importance to the applicant and his family. It was not fair to disregard them in such a cavalier fashion. They were not in existence at the time of the initial opinion and the Minister’s delegate had a duty to give them his most careful attention and at least give reasons why these documents did not constitute sufficient grounds to justify the re-opening of his decision.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Immigration Act, R.S.C., 1985, c. I-2, ss. 53(1)(a) (as am. by S.C. 1992, c. 49, s. 43), 70(5) (as am. by S.C. 1995, c. 15, s. 13).
CASES JUDICIALLY CONSIDERED
APPLIED:
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 1 Imm. L.R. (3d) 1; 243 N.R. 22.
CONSIDERED:
Dumbrava v. Canada (Minister of Citizenship and Immigration) (1995), 101 F.T.R. 230; 31 Imm. L.R. (2d) 76 (F.C.T.D.); Soimu v. Canada (Secretary of State) (1994), 83 F.T.R. 285 (F.C.T.D.); Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 619 [1999] F.C.J. No. 1905 (T.D.) (QL); Maikantis v. Canada (Minister of Citizenship and Immigration), IMM-5105-99, McGillis J., order dated 26/10/99, F.C.T.D., not reported.
REFERRED TO:
Independent Contractors & Business Assn. v. Canada (Minister of Labour) (1998), 6 Admin. L.R. (3d) 92; 39 C.L.R. (2d) 121; 225 N.R. 19 (F.C.A.).
APPLICATION for judicial review of the Minister’s delegate’s denial of a request to reconsider a danger opinion, the new evidence being insufficient to justify re-opening of the decision. Application allowed.
APPEARANCES:
Shane Molyneaux for applicant.
Kimberly G. Shane for respondent.
SOLICITORS OF RECORD:
McPherson, Elgin & Cannon, Vancouver, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
[1] Dubé J.: The issue to be resolved in this matter is whether the Minister’s delegate erred in law or in fact in determining that there were insufficient grounds to justify the re-opening of the Minister’s opinion that the applicant constitutes a danger to the public in Canada pursuant to paragraph 53(1)(a) [as am. by S.C. 1992, c. 49, s. 43] and subsection 70(5) [as am. by S.C. 1995, c. 15, s. 13] of the Immigration Act [R.S.C., 1985, c. I-2].
FACTS
[2] The applicant, born in Algeria, came to Canada in March 1989 and on February 22, 1991, was determined to be a Convention refugee by the Convention Refugee Determination Division.
[3] On May 8, 1996, he was convicted of several criminal offences including attempted robbery and possession of a prohibited weapon for which he was sentenced to four years’ imprisonment.
[4] On October 7, 1997, he was determined by the Minister’s delegate to be a danger to the public in Canada. He filed an application for leave and for judicial review of that decision which was dismissed by this Court on December 19, 1997, for failure to perfect his application.
[5] On December 17, 1998 the applicant, represented by a new lawyer, requested a reconsideration of the October 7, 1997 decision based on new evidence. The new evidence consisted of three documents namely, a National Parole Board decision dated November 10, 1998, a psychological assessment dated December 7, 1998 and a decision of Immigration Adjudicator Mackie dated November 20, 1998. The Minister’s delegate replied on January 14, 1999 that he declined the applicant’s request for reconsideration on the basis that there were insufficient grounds justifying the re-opening of the decision that the applicant is a danger to the public in Canada. The delegate further stated as follows:
Please note that this letter is not a new decision as to whether or not your client constitutes a danger to the public in Canada, but rather indicates that I have declined, after having considered your request, to reconsider my decision.
ARGUMENTS OF THE APPLICANT
[6] The applicant claims that the delegate’s letter of refusal is in fact a new decision which may be attacked under judicial review. As a basis for the refusal letter, the Minister’s delegate received a memorandum from the case review officer, including the supporting material submitted by the applicant’s counsel and asking the delegate to indicate his response to this request by inserting his initials on the appropriate line. There were two lines one captioned “Opinion stands” and the other captioned “Opinion rescinded”. The delegate initialled the first one. Had he initialled the second one, “Opinion rescinded”, it would obviously have been an extremely important decision favouring the applicant. Consequently, argues the applicant, a decision whether positive or negative is a decision.
[7] In Dumbrava v. Canada (Minister of Citizenship and Immigration) (1995), 101 F.T.R. 230, Noël J., then of the Trial Division of this Court, dealt with an application requesting a visa officer to review his decision refusing admission on grounds of a lack of qualification. He said as follows [at page 236]:
I find this reasoning compelling. Whenever a decision maker who is empowered to do so agrees to reconsider a decision on the basis of new facts, a fresh decision will result whether or not the original decision is changed, varied or maintained. What is relevant is that there be a fresh exercise of discretion, and such will always be the case when a decision maker agrees to reconsider his or her decision by reference to facts and submissions which were not on the record when the original decision was reached.
The reference which the Judge found compelling is the reasoning in Soimu v. Canada (Secretary of State) (1994), 83 F.T.R. 285 (F.C.T.D.), where Rothstein J. stated as follows [at page 288]:
The review that she conducted might have, although it did not, result [sic] in her changing her mind and allowing the applicant’s counsel’s request for the review. Surely had she changed her mind it could not be said that the letter advising of her new opinion was not a decision. By the same reasoning, even though, on the review, she came to the same conclusion as before, that conclusion must also constitute a decision.
[8] The Dumbrava decision was adopted by Stone J.A., of the Federal Court of Appeal, in Independent Contractors & Business Assn. v. Canada (Minister of Labour) (1998), 6 Admin. L.R. (3d) 92, at pages 99-100.
[9] The applicant submits that the standard for the re-opening of the Minister’s opinion pursuant to its equitable jurisdiction should be commensurate with that of the Immigration Appeal Division. If there is a reasonable possibility that the new evidence could lead the Minister’s delegate to change his original decision, he should exercise it.
[10] According to the National Parole Board’s decision, the applicant has made considerable progress in resolving his criminogenic factors. Statistic measurements determining the applicant’s probability of violent re-offending in the next two to five years place that risk, in his case, at nearly 0%. In her psychological assessment, Dr. Wydra, a clinical psychologist with 19 years’ experience, unequivocally states that the applicant is not at risk for violent offences. In her opinion, his establishment in Canada, his family and his insight into the consequences of the offence, all militate against the applicant re-offending. The immigration adjudicator, in her decision dated November 20, 1998, released the applicant from the custody of Citizenship and Immigration and stated that the applicant is not likely to pose a risk to the public which was why he was offered full parole.
[11] Furthermore, the consequences of denying reconsideration of this new evidence are extremely detrimental to the applicant. The delegate’s decision, as it stands, denies the applicant’s right of appeal to the Appeal Division and allows the Minister to remove him to his country of origin, even if he has been determined to be a Convention refugee. As mentioned by Gibson J., of this Court in Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 619 (T.D.), [at page 641], “a danger opinion issued under subsection 70(5) of the Immigration Act is an important decision that affects in a fundamental manner the future of an individual’s life”. In a judicial review of a danger opinion, the learned judge concluded that the standard of review is reasonableness simpliciter.
ARGUMENTS OF THE RESPONDENT
[12] The respondent submits that the delegate’s response is merely a courtesy letter and is not subject to judicial review. He argues that a fresh exercise of discretion occurs only after a decision maker has agreed to reconsider his decision by reference to facts and submissions which were not on the record when the original decision was reached.
[13] In his letter of January 14, 1999, the Minister’s delegate did not refer to specific new facts and submissions of the applicant but rather indicated that he had reviewed the request and did not consider that the request had sufficient grounds to justify the reopening of the existing decision.
[14] The respondent further submits that the applicant is attempting, with this application, to rechallenge the original danger decision. The applicant has already filed a notice of application for leave and for judicial review of the original danger decision. However, it was never perfected and the application was dismissed by this Court. It is not now open to the applicant to rechallenge that decision under the guise of a new decision by the Minister’s delegate.
[15] The respondent now abandons her argument that the Minister does not have the jurisdiction to reconsider her opinion. If the Minister receives submissions from an individual, fairness requires that the Minister review the submissions. Thus, the Minister merely provided a courtesy response. There must be some finality to the process.
[16] In Maikantis v. Canada (Minister of Citizenship and Immigration), IMM-5105-99, Madam Justice McGillis of this Court, issued on October 26, 1999 an order dismissing an application for a stay. Her precise and concise order bears reproduction in toto:
Upon hearing the submissions of counsel by teleconference, I have determined that the motion for a stay of the removal order must be dismissed on the basis that the application does not raise a serious issue to be tried. On November 16, 1998, I found that the applicant had failed to establish the existence of an arguable case in relation to the danger opinion under subsection 70(5) of the Immigration Act. In July 1999, counsel for the applicant requested that the Minister’s delegate reconsider his decision. On October 15, 1999, he indicated that his earlier decision “stands”. In my opinion, the indication by the Minister’s delegate that his earlier decision would not be altered does not constitute a decision which may be challenged by way of an application. The decision for the purpose of judicial review can only be the actual decision made under subsection 70(5). Since I determined on November 16, 1998 that there was no arguable issue in relation to that decision, there is presently no decision which may be challenged by the applicant.
[17] The respondent submits that with reference to the Dumbrava decision above referred to by the applicant, an immigration officer, empowered to do so, agreed to reconsider his decision, whereas in the instant case the delegate did not agree to reconsider his decision. In the Soimu decision referred to by Mr. Justice Noël, the visa officer also agreed to deal with new submissions made by the applicant’s counsel. Thus, on the facts of those particular cases, the visa officer’s letters constituted a fresh decision.
ANALYSIS
[18] In my view, the letter of January 14, 1999 of the Minister’s delegate is more than a courtesy letter. The delegate has, as he states, viewed the request of the applicant. The request in question is described in the memorandum of the case review officer dated January 12, 1999, as “a request dated December 17, 1998 with supporting material from subject’s counsel, Mr. Shane Molyneaux”. The supporting material in question included the three documents on which the applicant based his request. These three documents were not, of course, before the delegate when he made his original decision. They were created afterwards.
[19] While there must be finality to the process, the request is not a “second kick at the can” but, in reality, the first effective request for judicial review of the Minister’s danger opinion. The first application was dismissed because it was not perfected. Thereafter, the applicant changed solicitors and new vital information was obtained. For instance, in his decision to release the applicant from custody, immigration adjudicator Mackie stated as follows:
I have absolutely no rationale before me as to why the Minister’s delegates issued the danger opinions that they issued over a year ago, I have ample rationale before me from the National Parole Board indicating why it is that they believe that Mr. Nemouchi will not be a danger to the public, and I find it to be far the most persuasive.
[20] That information was not before the Minister’s delegate when he made the original determination. It is now before him. In my view, it is manifestly unfair to reject it out of hand via a courtesy letter.
[21] The Supreme Court of Canada in a recent landmark decision, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, dealt with the duty of fairness in dealing with an immigration case. Madam Justice L’Heureux-Dubé said that although the duty of fairness is flexible and variable, it must be considered in the light of several criteria, namely the nature of the decision, the statutory scheme under which the tribunal operates, the importance of the decision to the individual affected, the legitimate expectations of the person challenging the decision and the choice of the procedure made by the agency itself for balancing these factors. She concluded that the duty of fairness owed in such circumstances are more than “minimal”. She said [at page 843]:
Rather, the circumstances require a full and fair consideration of the issues, and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered.
[22] In the instant case, as mentioned earlier, the three documents placed before the Minister’s delegate are of an extreme importance to the applicant and his family. It is not fair to disregard them in such a cavalier fashion. The documents in question were not in existence at the time of the initial opinion, it is the duty of the Minister’s delegate to give them his most careful attention. The least that is expected of him in the special circumstances of this case, is to give reasons why these documents do not constitute sufficient grounds to justify the re-opening of his decision.
[23] Consequently, this application for judicial review is granted.
[24] Both parties have taken the position at the end of the hearing that no question should be certified in the matter.