[2001] 1 F.C. 70
IMM-2208-99
Julio Ernesto Castro Andino (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Andino v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Lutfy A.C.J.—Vancouver, February 9; Ottawa, June 27, 2000.
Citizenship and Immigration — Exclusion and Removal — Removal of refugees — Judicial review of danger opinions issued pursuant to Immigration Act, ss. 70(5), 53(1)(a) — Applicant convicted of arson (burning of Indian Band’s bighouse) — Request applicant be declared danger to public made in field report containing detailed review of reasons for decision concerning conviction, sentencing — Subsequent headquarters report focussing principally on risk assessment of removal to El Salvador — Application allowed — Field report not balanced in selection of Judge’s comments on conviction, sentencing — Duty of fairness required in issuing danger opinion not minimal — Convention refugees benefit from protection against refoulement unless guilty of serious criminality in Canada and, in Minister’s opinion, danger to public — Field report not focussing on Judge’s comments concerning circumstances (Band’s racial bias against applicant) leading to arson — Necessary to assess seriousness of crime in context of likelihood Convention refugee danger to public in Canada — Extent of right to make submissions depending on right at stake — Where Convention refugee to be removed to country where harsh, inhuman treatment may be inflicted, danger opinion affecting in fundamental way individuals’ future — Fairness herein requiring opportunity to comment on field, headquarters reports prior to determination whether danger opinion should issue — Outweighing additional burden disclosure to Convention refugees may cause respondent’s officials — Errors in field report sufficiently serious that failure to disclose breach of procedural fairness.
This was an application for judicial review of two danger opinions issued by the Minister’s delegate. The applicant, a citizen of El Salvador, was determined to be a Convention refugee. In 1998 he was convicted of arson, contrary to Criminal Code, section 434 and sentenced to 42 months’ imprisonment. The destroyed building was the bighouse of the Namgis Band at Alert Bay, British Columbia. The applicant was notified of the intention to request a ministerial opinion that he was a danger to the public. He filed written submissions prior to an immigration officer making a recommendation that a Minister’s opinion be requested that the applicant was a danger to the public pursuant to Immigration Act, subsection 70(5) and paragraph 53(1)(a). This request was made in a Danger to the Public Ministerial Opinion Report (the field report), which reviewed in detail the Judge’s reasons for decision concerning the applicant’s conviction of and sentencing for the arson offence. The subsequent Request for Minister’s Opinion (the headquarters report), after briefly noting the Judge’s statements concerning the applicant’s “unconscionable act” and the necessity that “specific deterrence” must be an element in sentencing, focussed principally on the risk assessment of the applicant’s removal to El Salvador, and concluded that the applicant could still face harsh and inhumane treatment upon his return to that country. The Minister’s delegate decided that the applicant constituted a danger to the public in Canada. He issued two opinions to that effect, although this application for judicial review was dealt with as if it were directed against a single decision concerning two danger opinions.
The issue was whether the denial of the opportunity for a Convention refugee to reply to the immigration officials’ field report and headquarters report, prior to the issuance of the danger opinion determination on the basis of criminality under paragraph 53(1)(a), constituted a breach of the duty of procedural fairness.
Held, the application should be granted.
The immigration officer erred in stating that the Judge, in sentencing applicant upon his arson conviction, had not made a specific comment as to whether he could become a contributing member of society. In fact, the Judge had noted the possibility that the applicant could become a contributing member of society. Furthermore, the Judge noted that the Band had shown significant racial bias against the applicant, which had been a factor in motivating him to commit the crime. None of these contextual comments was referred to in the field report, which was therefore not balanced in its selection of the Judge’s comments on conviction and sentencing. Finally, the field report stated that there was no guarantee that the applicant would not become involved in any further criminal activity. The appropriate test to submit for a Minister’s consideration is not a guarantee as to whether the person will be involved in future crime. Although the errors and omissions in the field report were serious, it was not necessary to determine whether they were “clearly wrong” or “patently unreasonable” given the finding concerning procedural fairness.
As a result of the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, there is an obligation to justify in writing a decision under paragraph 53(1)(a). It has been held that, at least in some cases, the reports relied on by the Minister’s delegate should be disclosed to the applicant. This may be so particularly where the interpretation of the information in the field report raises serious questions as to accuracy and completeness. It has also been held that the duty of fairness required in the making of a danger opinion is not simply “minimal”; rather, the circumstances require a full and fair consideration of the issues, and those whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present relevant evidence and have it fully and fairly considered. The appropriate standard of fairness in the process leading to the issuance of a danger opinion is to share the summary reports, and provide an opportunity to the applicant to respond and to include any response to those summary documents in the material forwarded to the Minister’s delegate together with further analysis. The applicant is a Convention refugee who benefits from the protection against refoulement unless he is guilty of serious criminality in Canada and, in the opinion of the Minister, is a danger to the public. The field report did not focus on the Judge’s comments concerning the circumstances leading to the applicant’s commission of arson. Such an analysis would be necessary to assess properly the seriousness of the crime in the context of the likelihood that the applicant would be a danger to the public in Canada. The duty of procedural fairness for a Convention refugee requires more than providing reasons, particularly where he could face harsh and inhuman treatment if returned to his country of origin. The extent of the right to make submissions will depend on the individual’s right at stake and the extent to which it may be adversely affected by the decision. The duty of fairness as outlined in Baker requires that a Convention refugee who is to be removed to a country where harsh and inhuman treatment may be inflicted should be provided with the opportunity to comment on both the field report and the headquarters report prior to the Minister’s delegate determining whether or not a danger opinion should issue. Such a determination affects in a fundamental way the future of individuals’ lives. Fairness outweighs any additional burden this disclosure to Convention refugees may cause the respondent’s officials in a process under paragraph 53(1)(a). Even if the reports considered by the Minister’s delegate need not be disclosed for rebuttal in all cases concerning Convention refugees who are subject to a paragraph 53(1)(a) danger opinion, on the facts of this case there were sufficiently serious errors in the field report that the failure to disclose it to the applicant constituted a breach of procedural fairness.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Criminal Code, R.S.C., 1985, c. C-46, ss. 264.1(1)(a) (as enacted by R.S.C., 1985 (1st Supp.), c. 27, s. 38; S.C. 1994, c. 44, s. 16), 266, 434 (as am. by S.C. 1990, c. 15, s. 1).
Federal Court Rules, 1998, SOR/98-106, r. 302.
Immigration Act, R.S.C., 1985, c. I-2, ss. 19(1)(c) (as am. by S.C. 1992, c. 49, s. 11), 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).
United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Arts. 1F(b), 32, 33.
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; 14 Admin. L.R. (3d) 173; 1 Imm. L.R. (3d) 1; 243 N.R. 22; Kim v. Canada (Minister of Citizenship and Immigration) (1997), 127 F.T.R. 181 (F.C.T.D.); Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 619 (1999), 5 Imm. L.R. (3d) 189 (T.D.).
REFERRED TO:
Brzezinski v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 525 (1998), 148 F.T.R. 296 (T.D.); Goyal v. Canada (Minister of Employment & Immigration) (1992), 4 Admin. L.R. (2d) 159; 9 C.R.R. (2d) 188; 142 N.R. 176 (F.C.A.); Bulat v. Canada (Treasury Board) (2000), 252 N.R. 182 (F.C.A.); Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592 (2000), 18 Admin. L.R. (3d) 159; 5 Imm. L.R. (3d) 1; 252 N.R. 1 (C.A.); Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 854 (C.A.) (QL).
AUTHORS CITED
Brown, Donald J. M. and John M. Evans. Judicial Review of Administrative Action in Canada, loose-leaf ed. Toronto: Canvasback, 1998.
Takkenberg, A. and C. C. Tahbaz (editors). The Collected Travaux préparatoires of the 1951 Geneva Convention relating to the Status of Refugees. Amsterdam: Dutch Refugee Council, 1990.
APPLICATION for judicial review of two danger opinions issued against the applicant, a Convention refugee, on the ground that failure to provide the field report and the headquarters report to him for reply submissions prior to consideration by the Minister’s delegate constituted a breach of the duty of procedural fairness. Application allowed.
APPEARANCES:
Antya Schrack for applicant.
Kimberly G. Shane for respondent.
SOLICITORS OF RECORD:
Antya Schrack, Vancouver, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
[1] Lutfy A.C.J.: The principal issue in this application for judicial review is to determine the extent of the duty of procedural fairness in assessing whether a Convention refugee is a danger to the public in Canada on the basis of serious criminality.
Factual background
[2] In 1993, the applicant Julio Ernesto Castro Andino, a citizen of El Salvador, was determined to be a refugee by the Convention Refugee Determination Division.
[3] On September 9, 1994, the applicant pleaded guilty and was convicted of the following charges: (a) knowingly uttering a threat to cause death or serious bodily harm against Ms. Lillian Patskovski, contrary to paragraph 264.1(1)(a) [as enacted by R.S.C., 1985 (1st Supp.), c. 27, s. 38; S.C. 1994, c. 44, s. 16] of the Criminal Code [R.S.C., 1985, c. C-46]; and (b) assault against Ms. Patskovski, contrary to section 266 of the Code. The applicant received a sentence of 30 days’ imprisonment and one year of probation.
[4] On March 9, 1998, after pleading not guilty, the applicant was convicted of arson, contrary to section 434 [as am. by S.C. 1990, c. 15, s. 1] of the Criminal Code. The arson occurred at approximately 7:00 a.m. on August 29, 1997. The destroyed edifice was the bighouse or cultural building of the Namgis Band in Alert Bay, British Columbia. The Judge determined the appropriate sentence to be 42 months less 18 months already served. The applicant was accordingly sentenced to two years less one day incarceration.
[5] On October 23, 1998, an immigration officer in Nanaimo, B.C. notified the applicant of the intention to request a ministerial opinion that he was a danger to the public. The letter of notice stated in part:
If the Minister is of the opinion that you are a danger to the public in Canada under subsection 70(5) of the Immigration Act, you will not have a right to appeal a deportation order to the Immigration Appeal Division of the Immigration and Refugee Board and pursuant to paragraph 53(1)(a) of the Act, you may be removed from Canada to the country from which you have been determined to be a Convention refugee.
[6] On January 25, 1999, after obtaining additional time to do so, counsel for the applicant filed written submissions that the circumstances did not require the issuance of a danger opinion.
[7] On January 28, 1999, the immigration officer recommended a Minister’s opinion be requested that the applicant was a danger to the public 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. The immigration officer made this request in her Danger to the Public Ministerial Opinion Report which was prepared in Nanaimo (the field report). I note that the title of the field report refers to both paragraph 53(1)(a) and subsection 70(5), although the immigration officer, apparently inadvertently, only mentioned the latter provision in her conclusion.
[8] On January 29, 1999, the immigration officer’s manager concurred with her recommendation.
[9] On February 18, 1999, a reviewing officer signed a Request for Minister’s Opinion (the headquarters report), again pursuant to paragraph 53(1)(a) and subsection 70(5) of the Act. The reviewing officer noted that she had reviewed the notification letter with its supporting documents, the submissions presented by the applicant’s counsel and the Ministerial Opinion Report prepared by the immigration officer. The Request for Minister’s Opinion focussed principally on removal risk considerations. The reviewing officer noted that:
… I believe that it is possible that Mr. Castro Andino could still face harsh and inhuman treatment upon his return to El Salvador as a result of his political activities when he lived there. The risks that he represents to the Canadian public must be weighed against his risks upon return to his country of nationality, El Salvador.
[10] On February 19, 1999, a senior analyst in the Case Management Branch concurred in the reviewing officer’s Request for Minister’s Opinion.
[11] On February 23, 1999, the Minister’s delegate decided that the applicant constitutes a danger to the public in Canada. He issued two opinions to that effect, one pursuant to subsection 70(5) and the other pursuant to paragraph 53(1)(a) of the Act.
[12] The two danger opinions of the Minister’s delegate have been challenged in this application for judicial review. Neither party raised the issue that more than “a single order in respect of which relief is sought”, within the meaning of rule 302 [of the Federal Court Rules, 1998, SOR/98-106], is the subject-matter of this proceeding. The opening paragraph of the respondent’s factum refers to this application for judicial review “from the decision of the Minister’s delegate wherein it was determined that the applicant constitutes a danger to the public pursuant to paragraphs [sic] 70(5) and 53(1)(a) of the Immigration Act.” (Emphasis added.) Accordingly, I propose to deal with this application for judicial review as being one directed at a single decision concerning two danger opinions.
[13] The field report provides the immigration officer’s rationale for the danger opinion recommendation. This report reviews, in some detail, the Judge’s reasons for decision concerning the applicant’s conviction and sentencing of the arson offence. The report also deals with some of the applicant’s principal submissions that no danger opinion should issue against him.
[14] The headquarters report, after briefly noting the Judge’s statements concerning the applicant’s “unconscionable act” and the necessity that “specific deterrence” must be an element in sentencing, focusses principally on the risk assessment of the applicant’s removal to El Salvador. Here, the reviewing officer considers the background of the refugee claim and the current country reports in the context of his possible return to El Salvador. As noted earlier, the reviewing officer concluded that the applicant could still face harsh and inhuman treatment upon his return to El Salvador.
[15] The applicant now seeks judicial review of the decision of the Minister’s delegate.
Analysis
[16] The applicant has two principal submissions in challenging the decision of the Minister’s delegate. First, the applicant argues that the field report provides insufficient consideration of a written statement by Lillian Patskovski in which she denies ever having been assaulted by the applicant. In the applicant’s view, the field report also materially mischaracterizes the Judge’s comments when the applicant was sentenced for the arson conviction. Second, and in any event, the applicant argues that it was a breach of natural justice and procedural fairness not to have forwarded the field report and the headquarters report to him for reply submissions prior to their consideration by the Minister’s delegate.
[17] Concerning the first issue, the applicant argues that a letter sent by his victim Lillian Patskovski received only peripheral consideration in the field report. The letter, which purports to deny that the applicant assaulted Ms. Patskovski, is not sufficiently detailed and clear to put into question seriously the applicant’s plea of guilty with respect to the assault offences. While the author of the field report might have dealt with this letter at greater extent, her failure to do so does not constitute a reviewable error. I also note that neither of the assault offences would trigger the operation of paragraph 53(1)(a).
[18] The applicant also challenges the following statement found in the field report: “It should be noted that the judge did not make a specific comment that Mr. Castro Andino could or could not become a contributing member of society.” In fact, the Judge did note the possibility that the applicant could become a contributing member of society:
Further in Mr. Castro-Andino’s favour is his conduct as a “father” to the children of Ms. Patskovski. This suggests that, in accordance with the philosophy of s. 718, there is a possibility that Mr. Castro-Andino will become a contributing member of society upon his release from prison.
In my view, the immigration officer erred in wrongly characterizing the Judge’s statement that the applicant could possibly become a contributing member of society.
[19] Further, the trial Judge compared the role of the applicant and Ms. Patskovski as parents. He also noted the attitude of those who were the victims of the applicant’s act of arson, without excusing his conduct. In the Judge’s words:
Unfortunately, the Band showed significant racial bias against Mr. Andino and this continued at all times relevant to this case. Generally speaking, the Band rejected Mr. Andino as a person with whom they wanted to associate and he was given clear notice of this by some members. This rejection was not on the basis of lack of merit in the person of Mr. Andino, but rather because he was a non-native on native land.
…
Here was a man who had been a better “parent” than had the mother. Yet, apparently because of his origins, he was unacceptable to the Band.
…
It will now be up to the community to look inward and consider whether or not its actions were not a contributing factor in the loss of a significant portion of their heritage.
In his sentencing comments, the Judge found that “the manner in which Mr. Castro-Andino was treated by some members of the native community was a factor in motivating him to commit the crime.” None of these contextual comments of the Judge concerning the racial bias directed against the applicant was referred to in the field report, although the immigration officer quoted at some length the Judge’s negative comments concerning credibility and motive. The field report is not balanced in its selection of the Judge’s comments on conviction and sentencing.
[20] There is another statement in the field report which is of some concern, although not raised by counsel. In the immigration officer’s report, she states: “There is no guarantee that he will not become involved in any further criminal activity.” It is not apparent that the appropriate test to submit for a Minister’s consideration is the guarantee as to whether the person will be involved in further crime and thereby constitute a danger to the public.
[21] In my view, the errors and omissions in the field report are serious. However, in view of my conclusion concerning the applicant’s second principal submission concerning procedural fairness, it is not necessary for me to decide whether these errors and omissions render the decision of the Minister’s delegate either “clearly wrong” or “patently unreasonable”.
[22] The applicant’s second submission is that neither the field report nor the headquarters report was made available to him prior to the decision of the Minister’s delegate. In the applicant’s view, these discrepancies could have been brought to the attention of the Minister’s delegate if he had been afforded an opportunity to do so. According to the applicant, the principles of procedural fairness require that these reports be disclosed to allow a rebuttal with respect to any perceived mischaracterizations by the respondent’s officials, prior to the Minister’s delegate forming any decision concerning the issuance of the danger opinion.
[23] Pursuant to Article 33 of the United Nations Convention Relating to the Status of Refugees [July 28, 1951, [1969] Can. T.S. No. 6], a Convention refugee is protected against refoulement except where the refugee has been convicted of a particularly serious crime and constitutes a danger to the community. Article 33 reads:
Article 33
Prohibition of Expulsion or
Return (“Refoulement”)
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
Neither counsel referred to the Convention in their submissions. Article 1F(b) includes, among those to whom the provisions of the Convention shall not apply, persons who committed “a serious non-political crime” outside their country of refuge: Brzezinski v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 525 (T.D.). By way of comparison, under Article 33(2), the person must have been convicted of a “particularly” serious crime.
[24] Canada’s implementation of Article 33(2) is found, for the purposes of this case, in paragraph 53(1)(a) of the Immigration Act:
53. (1) Notwithstanding subsections 52(2) and (3) [which describe the Minister’s deportation power], no person who is determined under this Act or the regulations to be a Convention refugee … shall be removed from Canada to a country where the person’s life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless
(a) the person is a member of an inadmissible class described in paragraph 19(1)(c) or subparagraph 19(1)(c.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada; or
It is the applicant’s conviction of the arson offence that renders him a member of an inadmissible class under paragraph 19(1)(c) [as am. by S.C. 1992, c. 49, s. 11] of the Act.
[25] The applicant’s second issue, therefore, is whether the finding by the Minister’s delegate that he is a danger to the public in Canada was made in a manner consistent with the principles of procedural fairness.
[26] The drafters of the Convention were concerned with the principle of procedural fairness when a contracting state determined to expel a refugee on grounds of national security or public order. Article 32 of the Convention states:
Article 32
Expulsion
1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.
3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.
The travaux préparatoires disclose, in particular, the concern of the delegates from Canada and the United Kingdom with the appropriate interpretation of Article 32(2) and their respective countries’ administrative procedures, at the time of the Convention negotiations, concerning the persons subject to deportation orders: A. Takkenberg and C. C. Tahbaz, eds., The Collected Travaux préparatoires of the 1951 Geneva Convention relating to the Status of Refugees (Amsterdam: Dutch Refugee Council, 1990), Vol. III, at pages 332-333 which reproduce pages 23-25 of 22 November 1951, U.N. Doc. A/CONF.2/S.R.14, the summary record of the Conference meeting of 10 July 1951.
[27] The consequences of a danger opinion differ according to the statutory provision pursuant to which the Minister’s delegate is acting. Under paragraph 53(1)(a) of the Immigration Act, the danger opinion allows the Minister to remove the refugee from Canada to the country against whom the claim of persecution was made. Under subsection 70(5), the target of a danger opinion loses his right of appeal against the deportation order before the Immigration Appeal Division.
[28] As the result of the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the respondent concedes that there is an obligation to justify in writing a decision under paragraph 53(1)(a). The respondent adds that, in this proceeding, the reasons are found in the field report together with its supporting documentation. The respondent does not acknowledge that a danger opinion under subsection 70(5) gives rise to the duty to provide reasons.
[29] In Kim v. Canada (Minister of Citizenship and Immigration) (1997), 127 F.T.R. 181 (F.C.T.D.), where the danger opinion was not directed against a Convention refugee, Justice MacKay concluded that at least in some cases, the reports relied on by the Minister’s delegate should be disclosed to the applicant (at paragraph 28):
I do not say that the documents here not seen by the applicant, two intra-departmental reports, need to be provided to all applicants. I do note there would be no harm or difficulty in providing at least the first report to the applicant, before it is forwarded to headquarters in Ottawa, with an opportunity to respond at that stage. However, when documents contain information of significance for the decision in relation to the applicant, which information has not been provided to him with a fair opportunity to comment in advance of the decision, then the decision is faulty and will be set aside as one made in breach of the principle of fairness. [Emphasis added.]
Justice MacKay may have had in mind the introduction of new information in the departmental reports. However, in view of the higher duty of fairness suggested in Baker, the approach adopted by Justice MacKay may well apply where the interpretation of the information in the field report raises serious questions as to accuracy and completeness.
[30] In Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 619 (T.D.), after a thorough analysis of the decision in Baker, Justice Gibson concluded that the duty of fairness required in the making of a danger opinion is not simply “minimal” and relied on this statement [at pages 631-632] by Justice L’Heureux-Dubé in Baker (at paragraph 32):
Balancing these factors, I disagree with the holding of the Federal Court of Appeal in Shah, supra, at p. 239, that the duty of fairness owed in these circumstances is simply “minimal”. 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.
I respectfully agree with Justice Gibson’s conclusion.
[31] Justice Gibson then stated what he considered to be the appropriate standard of fairness in the process leading to the issuance of a danger opinion (at paragraph 33 [page 639]):
By analogy to the reasoning in Baker, I am satisfied that the failure on the part of the respondent to share the summary reports with the applicant, and to provide an opportunity to the applicant to respond to them, and to then include any response to those summary documents in the material forwarded to the respondent’s delegate without further analysis on the part of anyone other than the respondent’s delegate himself or herself, constituted a breach of the duty of fairness owed by the respondent to the applicant on the facts of this matter. I reach this conclusion by reason of a particular concern, consistent with the analysis in Baker, for the ultimate importance to the applicant of the outcome of the “danger review”.
In Bhagwandass, the applicant arrived in Canada as a permanent resident. He was not a refugee. The danger opinion was issued only under subsection 70(5). The “summary reports” referred to by Justice Gibson are similar to those that I have described in these reasons as the field report and the headquarters report. The decision in Bhagwandass is now before the Court of Appeal under Court file No. A-850-99.
[32] In this case, the applicant is a Convention refugee who benefits from the protection against refoulement unless he is guilty of serious criminality in Canada and, in the opinion of the Minister, is a danger to the public. According to Article 33(2) of the UN Convention, the refugee must have been convicted of a “particularly” serious crime and constitute a danger to the community. Paragraph 53(1)(a) refers to crimes punishable by a maximum term of imprisonment of ten years or more and the Minister’s danger opinion. As I noted earlier, supra paragraph 19, the field report did not focus on the Trial Judge’s comments concerning the circumstances leading to the applicant’s commission of arson. Such an analysis would be necessary, in my opinion, to assess properly the seriousness of the crime in the context of the likelihood that the Convention refugee would be a danger to the public in Canada.
[33] The respondent recognizes the difference between a danger opinion under subsection 70(5) and under paragraph 53(1)(a) by acknowledging that the latter opinion must be justified with reasons. However, in my view, the duty of procedural fairness for a Convention refugee requires more than providing reasons, particularly in this case where the headquarters report states that the applicant “could still face harsh and inhuman treatment upon his return to El Salvador”.
[34] The applicant has not challenged the respondent’s procedural determination that representations from persons against whom danger opinions are being contemplated shall be made in writing. The opportunity to make at least written submissions is consistent with the participatory rights of a person who may be adversely affected by some administrative action or decision.
[35] The issue in this proceeding is whether the denial of the opportunity for a Convention refugee to reply to the immigration officials’ field report and headquarters report, prior to the danger opinion determination under paragraph 53(1)(a), constitutes a breach of the duty of procedural fairness. The extent of one’s right to make submissions will depend on the individual’s right at stake and the extent to which it may be adversely affected by the decision: D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (Toronto: Canvasback, 1998), at paragraphs 10:9300 and 10:9400; Goyal v. Canada (Minister of Employment & Immigration) (1992), 4 Admin. L.R. (2d) 159 (F.C.A.); and Bulat v. Canada (Treasury Board) (2000), 252 N.R. 182 (F.C.A.). In this case, the rights of the Convention refugee are at issue because of his subsequent criminality. The danger opinion was not issued because the applicant is a threat to Canada’s national security, a factor which could have required a statutory oral hearing as in Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592 (C.A.), at paragraph 54 [page 636].
[36] The issue, then, is to ascertain the procedural rights required where a danger opinion is to be issued, pursuant to paragraph 53(1)(a), against a Convention refugee who is to be removed to a country where harsh and inhuman treatment may be inflicted. In my view, the duty of fairness as enunciated in Baker requires that such a Convention refugee should be provided with the opportunity to comment on both the field report and the headquarters report prior to the Minister’s delegate determining whether or not a danger opinion should issue. Such a determination is, in the words of Justice L’Heureux-Dubé in Baker (at paragraph 15 [page 834]), “an important decision that affects in a fundamental manner the future of individuals’ lives.” Fairness outweighs any additional burden this disclosure to Convention refugees may cause the respondent’s officials in a process under paragraph 53(1)(a).
[37] If I am wrong in concluding the reports considered by the Minister’s delegate must first be disclosed for rebuttal in all cases concerning Convention refugees who are subject to a paragraph 53(1)(a) danger opinion, I would adopt the selective approach suggested by Justice MacKay in Kim, supra, at paragraph 29 [page 189]. On the facts of this case, I find that there were material mischaracterizations in the field report which failed to present a balanced summary of the Judge’s comments and actually contradicted the Judge on a point that was quite favourable to the applicant. I find these errors sufficiently serious that the failure to disclose the field report to the applicant constitutes a breach of procedural fairness.
[38] For these reasons, this application for judicial review will be granted. The decision of the Minister’s delegate to issue danger opinions under subsection 70(5) and paragraph 53(1)(a) of the Act is set aside and the matter referred for redetermination in a manner consistent with these reasons. Counsel may file written submissions concerning the certification of a serious question within 14 days of the date of these reasons and after having first disclosed to each other their respective positions on this issue.
[39] This paragraph is a postscript. After these reasons were substantially completed, except for certain editorial changes, I noted the recent decision of the Court of Appeal in Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 854 (C.A.) (QL). It has not been necessary to seek supplementary submissions from counsel.