IMM-784-02
2002 FCT 1156
Xuan Man Do (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Do v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Beaudry J.--Vancouver, November 7, 2002.
Citizenship and Immigration -- Exclusion and Removal -- Removal of Permanent Residents -- Applicant convicted of narcotics-related offences, found to constitute danger to public under Immigration Act, ss. 70(5), 46.01 -- Issue not seriousness of offences, but danger to public posed by applicant -- No nexus between applicant's criminal convictions, likelihood to commit further criminal offences -- Decision by Minister's delegate based on erroneous finding of fact, made without regard for material before her.
Administrative Law -- Judicial Review -- Certiorari -- Applicant found by Minister's Delegate to constitute danger to public following convictions for narcotics-related offences -- Reasonableness simpliciter standard of review to be applied in danger opinion cases -- In such cases, natural justice, procedural fairness requiring Minister to take into account relevant, particular circumstances of each case -- Decision unreasonable in circumstances of case.
This was an application for judicial review of a decision by the Minister's Delegate finding that the applicant constituted a danger to the public pursuant to subsection 70(5) and paragraph 46.01(1)(e ) of the Immigration Act. The applicant, a citizen of Vietnam, became a permanent resident of Canada in 1991. In 2000, he was convicted of conspiracy to traffic controlled substances, namely cocaine and heroin, and of trafficking in controlled substances. As a result of his convictions, he was ordered deported and appealed that deportation order to the Immigration and Refugee Board Appeal Division. The respondent provided the applicant with a notice of intention to seek a minister's danger opinion under subsection 70(5) and section 46.01 of the Act, while he was still in custody. Following an immigration detention review, the applicant was ordered released by the Immigration Adjudicator and was granted full parole by the National Parole Board which considered that the applicant would not be a danger to the public if released on parole. Since his release on parole, the applicant has not been charged or convicted of any further offences. On February 6, 2002, the Minister's Delegate formed the opinion that the applicant was a danger to the public in Canada pursuant to the Act. The main issue was whether the Minister's Delegate's opinion that the applicant is a danger to the public in Canada was perverse, or based on an erroneous finding of fact, or made without regard to the material before her.
Held, the application should be allowed.
A recent Federal Court decision held that the appropriate standard of review in danger opinion cases is reasonableness simpliciter. The test is whether the Minister, given what he knows about the individual and what the individual had to say on his own behalf, can form an opinion in good faith that the individual is a possible re-offender whose presence in Canada creates an unacceptable risk to the public. The word "danger" must be taken to refer to a "present or future danger to the public". In the present case, the convictions for conspiracy in the trafficking of narcotics and for the trafficking of narcotics were serious ones. However, the issue was not the seriousness of the offence, but the danger to the public posed by the applicant. The Federal Court has consistently held, in cases dealing with narcotics-related offences, that the mere fact of conviction on one or more criminal offences does not itself support a determination that a person is, may be, or is likely to pose a danger to the public, although some offences by their nature may be of a type that invite such a conclusion. In forming an opinion as to whether an individual constitutes a danger to the public, natural justice and procedural fairness require the Minister to take into account all of the relevant and particular circumstances of each case, and the circumstances of each case must, over and above the conviction, indicate a danger to the public. The evidence taken as a whole overwhelmingly supported the applicant's submission that, at the time the danger opinion was issued, he was not a danger to the public and would not be in the future. The Minister's Delegate based her determination on the mere fact of the applicant's two convictions, and without regard whatsoever to the other circumstances of the case that were d ocumented before her. While it is not impossible to found a danger opinion on a single serious conviction, the Minister cannot do so when there is no evidence that the person in fact poses a present or future danger. There was neither evidence of a likelihood to commit further criminal offences, nor of an established pattern of violent or criminal behaviour or lifestyle or values. There was no nexus between the applicant's criminal convictions and the likelihood to commit further criminal offences. The Mini ster's Delegate based her decision on an erroneous finding of fact, made without regard for the material before her. This was a reviewable error.
statutes and regulations judicially
considered
Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(1).
| Criminal Code, R.S.C., 1985, c. C-46, s. 465(1)(c). |
| Immigration Act, R.S.C., 1985, c. I-2, ss. 46.01(1) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36; 1995, c. 15, s. 9), 70(5) (as am. idem, s. 13), 82.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1992, c. 49, s. 73). |
| Immigration and Refugee Protection Regulations, SOR/2002-227, s. 350(2). |
cases judicially considered
applied:
Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646; (1997), 147 D.L.R. (4th) 93; 212 N.R. 63 (C.A.); Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 619; (1999), 5 Imm. L.R. (3d) 189 (T.D.); affd [2001] 3 F.C. 3; (2001), 199 D.L.R. (4th) 519; 13 Imm. L.R. (3d) 96; 268 N.R. 337 (C.A.); Adamson v. Canada (Minister of Citizenship and Immigration) (1996), 35 Imm. L.R. (2d) 101 (F.C.T.D.).
referred to:
Suresh v. Canada (Minister of Citizenship and Immigration) (2002), 208 D.L.R. (4th) 1; 37 Admin. L.R. (3d) 159; 90 C.R.R. (2d) 1; 18 Imm. L.R. (3d) 1; 281 N.R. 1 (S.C.C.); Mullings v. Canada (Minister of Citizenship and Immigration) (2001), 33 Admin. L.R. (3d) 53; 206 F.T.R. 93 (F.C.T.D.); Chedid v. Canada (Minister of Citizenship and Immigration) (1997), 127 F.T.R. 81 (F.C.T.D.); Salilar v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 150; (1995), 31 Imm. L.R. (2d) 299 (T.D.); Thai v. Canada (Minister of Citizenship and Immigration) (1998), 42 Imm. L.R. (2d) 28 (F.C.T.D.); Tewelde v. Canada (Minister of Citizenship and Immigration) (2000), 189 F.T.R. 206; 5 Imm. L.R. (3d) 86 (F.C.T.D.); Fairhurst v. Canada (Minister of Citizenship and Immigration) (1996), 124 F.T.R. 142; 37 Imm. L.R. (2d) 122 (F.C.T.D.); Thompson v. Canada (Minister of Citizenship and Immigration) (1996), 41 Admin. L.R. (2d) 10; 118 F.T.R. 269; 37 Imm. L.R. (2d) 9 (F.C.T.D.).
APPLICATION for judicial review of a decision by the Minister's Delegate finding that the applicant constituted a danger to the public pursuant to subsection 70(5) and paragraph 46.01(1)(e) of the Immigration Act. Application allowed.
appearances:
Alex Stojicevic for applicant.
Brenda Carbonell for respondent.
solicitors of record:
McCrea & Associates, Vancouver, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order and order rendered in English by
[1]Beaudry J.: This application is for judicial review under section 82.1 [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1992, c. 49, s. 73] of the Immigration Act, R.S.C., 1985, c. I-2 (the Act) of a decision of Claudette Deschênes, Minister's Delegate, Director General, Case Management Branch, dated February 6, 2002, wherein she found that the applicant constitutes a danger to the public pursuant to subsection 70(5) [as am. by S.C. 1995, c. 15, s. 13] and paragraph 46.01(1)(e) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36; 1995, c. 15, s. 9] of the Act. The applicant seeks an order quashing the Minister's Delegate's decision.
BACKGROUND
[2]The applicant, a citizen of Vietnam, was born on February 25, 1974. He left his country when he was 17 years old and entered Canada as a dependent son of his father under the family class immigration category. He became a permanent resident on July 16, 1991. His parents, brothers, sisters, wife and two Canadian-born children all live in Canada.
[3]On November 15, 2000, the applicant was convicted of conspiracy to traffic controlled substances, namely cocaine and heroin, contrary to paragraph 465(1)(c) of the Criminal Code, R.S.C., 1985, c. C-46, as amended, and subsection 5(1) of the Controlled Drugs and Substances Act [S.C. 1996, c. 19].
[4]He was sentenced to 54 months of imprisonment, which includes 10 months of pre-sentence custody. He was also convicted of trafficking in controlled substances--cannabis, (ecstasy) methylendioxy and amphetamine--and was sentenced to 36 months of imprisonment which was served concurrently.
[5]As a result of his convictions, he was ordered deported and appealed that deportation order to the Immigration and Refugee Board Appeal Division on August 8, 2001.
[6]On January 3, 2001, the respondent provided the applicant with a notice of intention to seek a minister's danger opinion pursuant to subsections 70(5) and section 46.01 of the Act, while he was still in custody.
[7]Along with the notice of intention, the respondent provided the applicant with copies of the documents that would be considered in seeking the Minister's opinion that the applicant was a danger to the public. The applicant was also invited to make submissions with respect to any humanitarian and compassionate considerations or risk factors that could affect the Minister's opinion.
[8]On March 27, 2001, applicant's counsel forwarded submiss ions in response to the notice of intention to the respondent. Included in those submissions were the Statistical Information on Recidivism Report and the Correctional Plan Progress Report from Corrections Canada as well as a medical/legal report by a psychologist, Dr. Alan Posthuma. Applicant's counsel also requested copies of all documents that would be considered in determining whether the applicant was a danger to the public, which were provided to him.
[9]On August 8, 2001, the applicant had an immigration detention review and was ordered released by Immigration Adjudicator Otto Nuponen. On August 15, 2001, the applicant was granted full parole by the National Parole Board. In its report, the Parole Board considered that the applicant would not be a danger to the public if released on parole and approved him for an accelerated review decision.
[10]The Board noted that the applicant did not appear to be a high risk for non-violent offending at the present time and further noted that the community parole officer did not believe that he was a risk for violence prior to the expiry of his sentence. Since being released on parole, the applicant has not been charged or convicted of any further offences.
[11]After his release, the applicant moved to a halfway house in Vancouver and after commencing work on September 4, 2001, for his father-in-law, as a painter, he was transferred to the Guy Richmond halfway house where he stayed from 11:00 p.m. to 7:00 a.m. each night.
[12]On September 26, 2001, H. N. Long, a senior immigration officer at CIC, Huntingdon, disclosed to the applicant the ministerial opinion report and recommendation dated March 29, 2001, as well as the request for minister's opinion.
[13]The applicant was also informed that those documents were to be presented to the Minister to form an opinion as to whether he was a person in Canada who was deemed to be a danger to the public. He was further invited to make written representations, to submit evidence in response and to disclose materials prior to their being forwarded to the Minister's Delegate.
[14]On November 9, 2001, applicant's counsel forwarded submissions which included a Correctional Plan Progress Report from the National Parole Board assessing that the applicant was unlikely to re-offend. The information also included a letter from the applicant's wife and information about the fact that the applicant was released from prison and from immigration detention, and that he was living and working in the community.
[15]On February 6, 2002, the Minister's Delegate formed the opinion that the applicant was a danger to the public in Canada pursuant to the Act. The applicant now seeks judicial review of this decision.
DECISION OF THE MINISTER'S DELEGATE
[16]In her reasons for decision, the Minister's Delegate stated the following:
DISCLOSURE:
In accordance with the Federal Court of Appeal decisions in the case of Basgwandass [sic] (A-850-99) and Chu (A-614-97), a second notification letter was sent to the client/Counsel by local Immigration officials on October 2, 2001. This second notification letter included all information not previously disclosed to the client/Counsel. The client/Counsel was then given the opportunity to present any final submissions, representations, evidence or arguments relating to the previously non-disclosed information and any information which was not reasonably available at the time of any initial submission.
Counsel presented his final submission dated November 9, 2001, in which he provided more recent information regarding Mr. Do. Counsel also included a copy of the Correctional Plan Progress Report, dated September 6, 2001, and a letter of support from Mr. Do's wife, Anna Wong, dated October 31, 2001.
OPINION:
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 Xuan Man Do, born February 25, 1974, citizen of Vietnam, constitutes 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 July 18, 2001, and supporting material. I have also carefully considered the information received from Counsel dated March 27, 2001, including his final submissions dated November 9, 2001, 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 Xuan Man Do constitutes 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 Vietnam, adequately reflect the basis for my conclusion that Xuan Man Do is a danger to the public in Canada.
ISSUES
[17]The central issue in this application is whether the Minister's Delegate's opinion that the applicant is a danger to the public in Canada is perverse, or based on an erroneous finding of fact, or made without regard to the material before her. A secondary issue raised by this application is whether the Minister's Delegate breached the duty of fairness by giving inadequate reasons for her decision.
ARGUMENTS OF THE APPLICANT
[18]The applicant submits that in the case at bar, the Correctional Service of Canada, the National Parole Board, a well-respected psychologist and an immigration adjudicator all have found that the applicant does not pose a danger to the public. The Minister's Delegate has chosen to ignore these opinions and instead, focussed purely on the opinion of her case analyst and a local immigration official who recommended that a danger opinion be issued, a recommendation that came before the applicant's release and return to life in the community. By doing so, and by failing to give adequate reasons, she erred in law, and her decision cannot stand.
[19]First, the applicant submits that the issue to be decided is not whether the applicant posed a danger to the Canadian public at the time the offence was committed. Rather, it is whether he posed a danger at the time the Minister's Delegate's opinion was formed and whether he would pose a threat in the future, after February 6, 2002: Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.).
[20]It is submitted that the only "evidence" relied upon by the Minister's Delegate is the report of the case analyst from July 2001. This only makes mention of the conviction, and of a couple of minor incidents while the applicant was in pre-trial custody and for which no criminal charges were brought. However, most of the positive aspects of the applicant's rehabilitation were not included in the request for the Minister's report.
[21]Further, the same request did not take into account the note on the fourth page of the assessment report by the Correctional Service of Canada that the applicant has demonstrated "a consistent and positive behaviour while in RRAC and has been cooperating and complying with staff and other offenders". That report also included the results of a Statistical Information on Recidivism assessment where the applicant scored 16 and where Parole Officer David Tout concluded that "4 out of 5 offenders will not commit an indictable offence after release".
[22]This assessment was considered by the National Parole Board and the Board was satisfied that there were no reasonable grounds to believe that if released, the applicant was likely to commit an offence involving violence before the expiration of his sentence and directed his release at the earliest eligibility date.
[23]The Board also noted that the community parole officer did not believe that he posed a risk of violence prior to the expiry of his sentence. Also before the Minister's Delegate was a psychological assessment by Dr. Posthuma which concluded that the applicant is a low risk for re-offending and is not considered to be a danger to the public. This report noted at length the expertise of the corrections system, including that of the Parole Board, in assessing risk for re-offending.
[24]It is submitted that there is neither evidence of a likelihood to commit further offences nor of a present danger posed to the community. However, there is a considerable body of evidence to the contrary. Consequently, there is no nexus between the applicant's criminal convictions and the likelihood to commit further criminal offences.
[25]It is further submitted that by balancing the statements of an expert body (the National Parole Board), a psychologist and the opinions of the Corrections' professionals with local immigration officials and one of their analysts, the Minister's Delegate was suggesting that deference and weight be given to the opinions of these officials over people who are experts in the field of assessing rehabilitation, which is an inherently perverse finding. It is thus submitted that the decision of the Minister's Delegate is based on an erroneous finding of fact made without regard to the material before her and is utterly unsupportable.
[26]Finally, it is submitted that for the Minister's Delegate's opinion to properly constitute reasons, there has to be considerations of all the arguments put forward by counsel, or at the very least considerations of all the documents put forward.
[27]However, the Minister's Delegate failed to provide a listing in total of the evidence she considered in making her decision. For instance, what was not mentioned was the fact that the first package submitted by applicant's counsel in March 2001 consisted of a psychologist's report which found the applicant not to be a danger.
[28]Nor were mentioned the attachments to counsel's letter dated November 2001 which included the Correctional Service of Canada's favourable report regarding his danger for recidivism as well as the National Parole Board's decision from August 2001 which also considered the risk that the applicant would re-offend if released to be very low.
[29]It is thus submitted that the reasons given by the Minister's Delegate were inadequate and constituted a breach of fairness as they did not address the totality of the evidence that was properly before the decision maker, except for noting the cover document from which the submissions came. However, that letter only mentions a few documents put forward by applicant's counsel, not all of them.
THE RESPONDENT'S SUBMISSIONS
[30]The respondent first submits on its part that a review of the Minister's Delegate's opinion clearly indicates that she did consider all of the submissions made by the applicant's counsel including the fact that he was unlikely to re-offend. This is evidenced from her statement that the information provided by counsel did not persuade her that the recommendation of local officials that the applicant was a danger to the public should not be followed.
[31]It is argued that what the applicant is really objecting to is the weighing and balancing of the evidence done by the Minister's Delegate. However, the weight given to the evidence is the hallmark of the discretion of the decision maker and cannot provide a ground for judicial review.
[32]Rather, in such circumstances, lower courts have been directed by the Supreme Court of Canada to give such decisions "a wide degree of deference": Suresh v. Canada (Minister of Citizenship and Immigration) (2002), 208 D.L.R. (4th) 1.
[33]On the question of sufficiency of reasons, it is submitted that a review of the request for the Minister's opinion, the reviewing officer's comments, the note on disclosure and the opinion of the Minister's Delegate confirm that all the information and submissions of both the applicant's counsel and the various CIC officers were provided to and considered by the Minister's Delegate in forming her opinion.
[34]It is thus further submitted that the Minister's Delegate fully and carefully considered all the information and submissions that were before her and that this is clearly reflected in her reasons. Accordingly, there is no reasonable basis for the applicant's contention that the Minister's Delegate failed to provide adequate reasons of the grounds upon which she formed the opinion that he is a danger to the Canadian public.
ANALYSIS
| 1. Did the Minister's Delegate err in law in rendering a decision pursuant to paragraph 46.01(1)(e) and subsection 70(5) of the Act which was unreasonable in the circumstances of the case? |
[35]On the standard of review to be applied in danger opinion cases, Gibson J. held the following in Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 619 (T.D.), at paragraph 37:
Based on the analysis in Baker, and having regard to the impact of the danger opinion for the applicant in this matter, I conclude that the appropriate standard of review on this application for judicial review is reasonableness simpliciter. I am satisfied that the conclusion reflected in paragraph 17 [page 664] of the Williams decision that a subjective decision such as a danger opinion under subsection 70(5) of the Immigration Act "cannot be judicially reviewed except on grounds such as that the decision maker acted in bad faith, or erred in law, or acted upon the basis of irrelevant considerations" is overtaken by the Baker decision. I am also satisfied that the danger opinion here under review, albeit a subjective decision, can be set aside on judicial review if, on the facts of the matter, the decision is unreasonable or if the appropriate content of the duty of fairness was not provided. [Emphasis added.]
[36]The standard of reasonableness simpliciter was upheld by the Court of Appeal decision in Bhagwandass, [2001] 3 F.C. 3 as well as by the Trial Division: see for example Mullings v. Canada (Minister of Citizenship and Immigration) (2001), 33 Admin. L.R. (3d) 53 (F.C.T.D.), at paragraph 34; Bhagwandass (T.D.), supra.
[37]The applicant contends that the Minister's Delegate's decision is unreasonable since, with the exception of his conviction for conspiracy in the trafficking of narcotics and for the trafficking of narcotics, there is no evidence in the record to justify the conclusion that he was a danger to the public.
[38]It is perhaps apposite to consider here the sources of information which were before the Minister's Delegate when rendering her decision and which she subsequently relied upon. First, the views expressed by the case management officer in the Danger to the Public Ministerial Opinion Report state the following under Part B entitled "Criminality and Danger Opinion" (applicant's record, pages 78-79):
| 10. Release date: Accelerated Parole Review date: 15Aug2001, Full Parole Elig. Date: 16May2002, Statutory Release date: 14Nov2003 |
| 11. Danger rationale: As per Appendix D, Danger to the Public C44 Implementation: convicted of conspiracy to traffick in Cocaine and Heroin, and trafficking in MDA and Cannibis Marihuana. |
| 12. Judge's Reasons for Sentencing, para. (6): `RCMP in Whitehorse correctly came to believe that Do had become the main player in a significant drug dealing enterprise in Whitehorse'. (Document attached) |
| 13. Same document, para. (9): `I am told this seizure alone was the largest seizure of cocaine in the Yukon to that date'. |
| 14. Same document, para. (11): `It is clear that Xuan Man Do was primarily dealing cocaine, a deadly drug which has been a plague in the Yukon for many years. But it is also clear that Xuan Man Do was truly a drug entrepreneur.' |
| 15. Same document, para. (16): `However, I also recognize that Xuan Man Do was the main player in Whitehorse in a very serious criminal enterprise, and that his guilty plea is more a recognition of the writing on the wall than any true repentance and remorse'. |
[39]On that basis, the case management officer recommended that pursuant to subsections 46.01(1) and 70(5) of the Act, the Minister's opinion be requested that the applicant is a danger to the public. Also of great relevance are the comments of the review officer who made the request for the Minister's opinion on July 17, 2001 (applicant's record, pages 99-103):
DANGER PROFILE:
. . .
In his submission counsel indicates that "since being incarcerated, he (Mr. Do) was taken back to court on 17 January 2001 for the purposes of entering a guilty plea to possession of marijuana for the purpose of trafficking for which he received six months concurrent sentence to the sentence imposed on 15 November 2000.
Refer to the Court document entitled Summary, which indicates that "in June, 1999, the Royal Canadian Mounted Police began an investigation into Xuan Man DO (the `accused') and his associates. The police had confidential information, which lead them to believe the accused was trafficking in illegal drugs. Their investigation was extensive. It continued over a period of 7 months and expanded to Vancouver. It included two wiretap authorizations that were installed and monitored in Whitehorse and in Vancouver. As a result of the investigation, the police uncovered a group of cocaine and heroin traffickers operating in Whitehorse. . . . The accused was responsible for purchasing the cocaine and heroin in Vancouver. It was brought to Whitehorse where it was cut and packaged with the assistance of the other members of the conspiracy and distributed for sale by the members of the conspiracy."
Refer to the Court document entitled Reasons for Sentencing in which the judge states: "It is significant that Xuan Man Do was not merely a street-level trafficker. Rather he was an entrepreneur, and operating on a level not previously seen in the Yukon. . . . I also recognize that Xuan Man Do was the main player in Whitehorse in a very serious criminal enterprise, and that his guilty plea is more a recognition of the writing on the wall than any true repentance and remorse." The judge further indicates that ". . .Ecstasy is no harmless drug. It is a dangerous substance which is particularly appealing to young persons, some of whom wind up dead or terribly damaged."
The Correctional Plan Progress Report, dated January 25, 2001, which was provided by counsel, indicates that "Mr. Do's "behavior while at the Whitehorse Correctional Center was less than acceptable. He was segregated on two occasions and in total received two minor charges and two serious charges."
NOTICE/CLIENT'S SUBMISSION:
. . .
Counsel presented a submission, dated March 27, 2001, in which he indicates that Mr. Do has no prior record of any convictions, has no outstanding charges, and has been assessed as being a low risk of committing further offences. Counsel further indicates that these are his first convictions, there is no act of violence, there is significant level of establishment in Canada, all of his close family ties are in Canada, with his wife and two Canadian-born children, and that he has an offer of employment upon release.
With his submission, counsel has included a copy of the Correctional Plan Progress Report, dated January 25, 2001, a letter from Mr. Do's father-in-law and a letter from Mr. Do. Dr. Alan Posthuma indicates in his report that Mr. Do "states he realizes he has made a mistake by being involved as a drug dealer. He now has an understanding of the danger of drugs to the public. He is also quite intimidated by the prison system and sees it as a formidable deterrent to returning to criminal activity."
Counsel does not address risk upon return ro Vietnam.
REMOVAL CONSIDERATIONS:
. . .
Given the above information, it is difficult to conclude that Mr. Do would be at risk or could face harsh and inhumane treatment upon his return to Vietnam. He could, however, face hardship, as he was only 17 years old when he came to Canada to live.
Source (attached and publicly available at the IRB Documentation centre): U.S. Country Reports on Human Rights Practices for 2000--entry under Vietnam.
REVIEWING OFFICER'S COMMENTS:
I have carefully reviewed the notification letter (plus all attachments to that letter), the Ministerial Opinion Report prepared by the CIC, as well as the submission forwarded by the client or counsel.
The final submission to the Minister's Delegate will comprise the aforementioned documents and any additional submissions by the client and counsel which may be forwarded to CIC as a result of the Bhagwandass/Chu Federal Court decisions. This material is in support of a request that the Minister's Delegate form an opinion that Xuan Man Do constitutes a danger to the public pursuant to subsection 70(5) and paragraph 46.01(1)(e) of the Immigration Act.
[40]In the decision of the Federal Court of Appeal in Williams, supra, at paragraph 29, Strayer J.A. offers some views about the nature of analysis that the Minister might undertake in reaching an opinion and, in so doing, sets the legal test:
In the context the meaning of "public danger" is not a mystery: it must refer to the possibility that a person who has committed a serious crime in the past may seriously be thought to be a potential re-offender. It need not be proven--indeed it cannot be proven--that the person will reoffend. What I believe the subsection adequately focusses the Minister's mind on is consideration of whether, given what she knows about the individual and what that individual has had to say in his own behalf, she can form an opinion in good faith that he is a possible re-offender whose presence in Canada creates an unacceptable risk to the public. I lay some stress on the word "unacceptable" because, with the impossibility of proof of future conduct, there is always a risk and the extent to which society should be prepared to accept that risk can involve political considerations not inappropriate for a minister. She may well conclude, for example, that people convicted of narcotics offences have a greater likelihood of recidivism and that trafficking represents a particular menace to Canadian society. I agree with Gibson J. in the Thompson case [37 Imm. L.R. (2d) 9 (F.C.T.D.)] that "danger" must be taken to refer to a "present or future danger to the public". But I am reluctant to assert that some particular kind of material must be available to the Minister to draw a conclusion of present or future danger. I find it hard to understand why it is not open to a minister to forecast future misconduct on the basis of past misconduct, particularly having regard to the circumstances of the offences and, as in this case, comments made by one of the sentencing judges. A reviewing court may disagree with the Minister's forecast, or consider that more weight should have been given to certain material, but that does not mean that the statutory criterion is impermissibly vague just because it allows the Minister to reach a conclusion different from that of the Court. [Emphasis added.]
[41]I have carefully examined all of the documentation that the Minister's Delegate had before her in arriving at her decision, to which the applicant had an opportunity to respond. I most certainly agree with the conclusion that the convictions for conspiracy in the trafficking of narcotics and for the trafficking of narcotics are serious ones. However, the issue is not the seriousness of the offence, but the danger to the public posed by the applicant: Chedid v. Canada (Minister of Citizenship and Immigration) (1997), 127 F.T.R. 81 (F.C.T.D.), at paragraphs 14, 24.
[42]This Court has consistently held, including in cases dealing with narcotics-related offences, that the mere fact of conviction on one or more criminal offences does not itself support a determination that a person is, may be, or is likely to pose a danger to the public, although some offences by their nature may be of a type that invite such a conclusion: Salilar v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 150 (T.D.), at page 159; Thai v. Canada (Minister of Citizenship and Immigration) (1998), 42 Imm. L.R. (2d) 28 (F.C.T.D.), at paragraph 16; Tewelde v. Canada (Minister of Citizenship and Immigration) (2000), 89 F.T.R. 206 (F.C.T.D.).
[43]Rather, in forming an opinion as to whether an individual constitutes a danger to the public, natural justice and procedural fairness require the Minister to take into account all of the relevant and particular circumstances of each case, and the circumstances of each case must, over and above the conviction, indicate a danger to the public: Fairhurst v. Canada (Minister of Citizenship and Immigration) (1996), 124 F.T.R. 142 (F.C.T.D.), at paragraph 10; Thompson v. Canada (Minister of Citizenship and Immigration) (1996), 41 Admin. L.R. (2d) 10 (F.C.T.D.), at paragraph 19.
[44]This is confirmed by the Guidelines C-44 which state that offences involving narcotics are a type of offence "that would normally lead to the conclusion that a person is a danger, depending upon the nature and the circumstances of the offence, the sentence imposed and the issue of recidivism".
[45]I note that the principal factors disclosed by the material before the Minister's Delegate in this matter bearing on the formation of an opinion as to whether the applicant can be said to be a present or future danger to the Canadian public are the following:
1. The applicant was convicted of conspiracy in the trafficking of narcotics and for trafficking narcotics and was sentenced to 54 months' imprisonment on the first count and to 36 months' imprisonment on the second count, which was served concurrently; he had no prior convictions.
2. The applicant had an immigration detention review and was ordered released by the Immigration Adjudicator who formed the opinion that he would not pose a risk to society.
3. He was granted full parole by the National Parole Board who considered that the applicant would not be a danger to the public if released on parole and approved him for an accelerated review decision. The Board noted that the applicant did not appear to be a high risk for non-violent offending at the present time and further noted that the community parole officer did not believe that he was a risk for violence prior to the expiry of his sentence.
4. Since being released on parole, the applicant has not been charged or convicted of any further offences.
5. Since his release from incarceration, the applicant has spent substantial time living in the community with his family, has worked as a painter for his father-in-law and has spent time with his wife and two sons.
6. A psychological assessment by Dr. Posthuma concluded that the applicant is a low risk for re-offending and is not considered to be a danger to the public. It also stated that the applicant realized he had made a mistake by being involved as a drug dealer and did no longer want to be associated with the business.
7. There is a significant level of establishment of the applicant in Canada since all of his close family ties are in Canada and none remain in Vietnam.
8. Throughout his dealings with police and probation officers, and with immigration officials, the applicant was co-operative.
9. Finally, the applicant made effective use of his period of incarceration in rehabilitative activity marked by a pro-social attitude.
[46]I agree with Noël J. in Adamson v. Canada (Minister of Citizenship and Immigration) (1996), 35 Imm. L.R. (2d) 101 (F.C.T.D.), at paragraph 11 that the commission of a single narcotics offence establishes that the person in question was capable of committing the infraction at the time when it was committed, and invites him or her to demonstrate why this is no longer the case. In my view, the evidence taken as a whole overwhelmingly supports the applicant's submission that, at the time the danger opinion was issued, he was not a danger to the public and would not be in the future.
[47]Through a perusal of the material before the Minister's Delegate, I find it difficult to conclude anything other than that she based her determination on the mere fact of the applicant's two convictions, and without regard whatsoever to the other circumstances of the case that were documented before her. This is indeed reflected in both the Danger to the Public Ministerial Opinion Report of March 29, 2001 and the Request for Minister's Opinion of July 17, 2001 on which the Minister's Delegate appears to have based her decision.
[48]Further, there is not even any comment on the applicant's risk of recidivism in the Minister's Delegate's decision and although the applicant was asked to make submissions relating to humanitarian and compassionate considerations applicable to his situation, and in fact he did, there is no indication that those considerations were even taken into account in determining whether the danger opinion ought to be rendered.
[49]This Court has held that while it is not impossible to found a danger opinion on a single serious conviction, the Minister cannot do so when there is no evidence that the person in fact poses a present or future danger: Chedid, supra, at paragraph 21.
[50]In the case at bar, there is neither evidence of a likelihood to commit further criminal offences (in fact, there is substantial evidence to the contrary), nor of an established pattern of violent or criminal behaviour or lifestyle or values.
[51]There is no nexus between the applicant's criminal convictions and the likelihood to commit further criminal offences.
[52]While the Court is not entitled to merely substitute its decision for that of the Minister, in the absence of such a nexus, and in the face of a considerable body of evidence that the applicant does not pose a danger to the public, I can only conclude that, at the very least, the Minister in the case at bar based her decision on an erroneous finding of fact, made without regard for the material before her. This is a reviewable error.
[53]My finding on this point is sufficient to dispose of this application for judicial review. I need not address the question of whether the Minister's Delegate provided the applicant with adequate reasons.
[54]The application for judicial review shall be allowed and, in view of subsection 350(2) of the Immigration and Refugee Protection Regulations, SOR/2002-227, the decision dated February 6, 2002, is quashed. No serious question of general importance was submitted. No question will be certified
O R D E R
THIS COURT ORDERS that:
The application for judicial review is allowed.