Date: 19990615
Docket: IMM-3995-98
BETWEEN:
LYSANDER LEE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of the opinion of W.A. Sheppit, Minister"s delegate, Director General, Case Management, dated June 30, 1998 in which he determined that the applicant is a danger to the public, pursuant to sections 70(5) and 46.01(1)(c)(iv) of the Immigration Act .
FACTS
[2] The applicant was born in Manila, Philippines, on August 25, 1976 and is currently 22 years of age. He arrived in Canada in 1990 at the age of 13 with his mother, three sisters and one brother. As his parents were divorced, his father remained in the Philippines. The family took up residence in Toronto and has resided in the Toronto area ever since. They became landed immigrants in September of 1993 and the applicant"s mother and siblings are now all Canadian citizens. The applicant was two weeks away from his citizenship when he was arrested.
[3] On September 9, 1997, the applicant was arrested and charged for conspiracy to import controlled substance by participating in a drug trafficking scheme during which he willingly transported 8 kilos of cocaine, with a street value of approximately one million dollars.
[4] After being released on bail, the applicant received threats to both himself and his family from the people that had recruited him to deliver their package. He made an unsuccessful attempt to escape to Hong Kong. He returned to Canada and turned himself in to the authorities. He pleaded guilty and was sentenced to five years of imprisonment.
[5] Counsel for the applicant suggests that the decision maker in this case did not have all the material before him when he took the decision.
[6] Counsel for the applicant suggests that the request for the Minister"s opinion that was submitted by Bonnie Maystrenko, Reviewing Officer, to which Glen McBrien, Senior Analyst, Case Review, Case Management Branch, concurred, signed by both on June 29, 1998 and further submitted to W.A. Sheppit, Minister"s delegate, Director General, Case Management Branch, who signed on June 30, 1998, referred only in one line on the second page of this document to the applicant"s submission:
I have carefully reviewed the notification letter, the supporting documents identified in this notice and the Ministerial Opinion Report prepared by the CIC as well as the submission presented by the client.
(My emphasis)
[7] Counsel for the applicant refers to the ministerial opinion report signed by Mrs. Dunn on June 16, 1998 and particularly referred to Part "F" - Attachments, on page 76 of the applicant"s application record where the officer has not indicated that the counsel"s submission, the psychiatric evaluations or certificates or Correctional Services Report were attached to the report with the recommendation that appears on Part "G" - Recommendations.
[8] Counsel for the applicant suggests that this indicates that we cannot conclude that the decision maker had all the documents before him when he made the decision.
[9] Counsel for the applicant suggests that this constitutes an error and that the decision should be set aside.
[10] Counsel for the respondent suggests that there is an indication that all the documents were submitted to the decision maker, particularly the short mention appearing on the request for the Minister"s opinion signed by Bonnie Maystrenko and Glen McBrien and W.A. Sheppit, on page 2:
...as well as the submission presented by the client.
[11] Counsel for the respondent also suggests that the ministerial opinion report signed by Mrs. Dunn also included at paragraph 13 a mention that the applicant"s family was supportive and that such information could not have been available without access to the letter of the counsel and the attachments.
[12] Counsel for the applicant contends that if the decision maker had in effect access to all the documents, she should have filed an affidavit affirming all those facts to clarify the situation.
[13] Counsel for the respondent then asked for an adjournment to provide an affidavit confirming that all the documents available including submissions by the applicant and the attachments were before the decision maker when the decision was made.
[14] Counsel for the applicant opposed that motion and argued that the respondent had all the time to file and serve an affidavit and now, it is too late.
[15] This Court ruled, after reviewing all the facts relating to it, that the request for adjournment is denied.
[16] I have also carefully reviewed the documents that were filed and I am not convinced that all the documents available and particularly the applicant"s submission with the attachments were effectively submitted to the decision-maker, before the decision was made.
[17] I am particularly concerned with the ministerial opinion report on Part "F" Attachments, where very important documents are not marked with an "X" in the marge to show that they were considered when the recommendation appearing at the next page and signed on June 16, 1998 by Mrs. Dunn, was made.
[18] The respondent was aware that the applicant would raise that point as soon as September 28, 1998, when counsel for the applicant filed his application record where it is clearly mentioned at paragraphs 12 and 13 that he was alleging that the decision maker was not provided with all the documents available.
[19] The respondent had all the time to provide an affidavit confirming that fact, if it was the case.
[20] In Moghaddam v. Canada (M.C.I.) [1997] F.C.J. No. 1792 (QL), Justice Dubé said:
Clearly, the applicant"s submission is not on the list. In explanation to the apparent failure to include the applicant"s submission, counsel for the respondent merely answers that the procedure followed by the Management Branch is to forward the applicant"s submissions along with all other relevant documents.
Unfortunately, that answer is not sufficient to meet the situation. In view of the fact that the applicant has raised the issue in his memorandum of argument, the respondent ought to have filed an affidavit either from the Case Management Branch that counsel"s submission was indeed forwarded to the delegate, or from the delegate to the effect that he received it.
The Federal Court of Appeal in M.C.I. v. Williams [1997] 2 F.C. 646 (F.C.A.), upheld the overall fairness of the public dangerousness scheme but also stressed that the applicant must have had a full opportunity to present his submissions to the Minister. In other words, the Federal Court of Appeal found it significant in assessing the fairness of the procedure that the applicant"s actual submissions were before the official who made the decision.
[21] I am not convinced that all the documents were submitted to the decision maker and this constitutes a reviewable error.
[22] For those reasons, the decision of the Minister that the applicant constitutes a danger to the public in Canada is set aside and the matter is to be reconsidered by the Minister with the specific directions of this Court that the applicant"s submissions and all attachments including psychiatric evaluations, Correctional Services Report and other documentation, like letters of reference and supporting documentation, be placed before the Minister"s delegate.
[23] The application for judicial review is granted.
Pierre Blais
Judge
OTTAWA, ONTARIO
June 15, 1999