Judgments

[2000] 3 F.C. 345

IMM-1050-99

Dewey Go Dee (Applicant)

v.

The Minister of Citizenship and Immigration (Respondent)

Indexed as: Dee v. Canada (Minister of Citizenship and Immigration) (T.D.)

Trial Division, MacKay J.—Winnipeg, August 26, 1999; Ottawa, February 18, 2000.

Administrative law — Judicial review — Certiorari — Judicial review of denial of applications for rehabilitation, landing — Applicant, Convention refugee, applied for landing in 1995 — In 1998 Minister requesting evidence of rehabilitation — Refusing to provide copy of affidavit from Philippines giving details of charges laid there against applicant, particulars of allegations — Court ordering Minister to decide landing application — Applicant informed by letter dated February 23, 1999 landing refused — Actual written decision dated February 24, 1999 — Rehabilitation decision set aside — Denial of natural justice, procedural fairness — Applicant denied opportunity to review, rebut allegations against him — Minister not having complete record before her as information referred to in Philippines affidavit not part of record — Manner of communicating decision raising question of whether made at all — Landing decision set aside as rehabilitation decision on which based erroneous, and as unexplained discrepancy between date of letter informing applicant of decision, actual decision raising serious question of fairness, whether decision properly made, communicated.

Citizenship and Immigration — Judicial review — Federal Court jurisdiction — Muldoon J. ordering Minister to decide landing application — Landing subsequently refused — Applicant’s wife, sponsor, appealing refusal — Court having jurisdiction to hear application for judicial review of refusal under jurisdiction to oversee, supervise execution of orders — Court issuing specific directions for Minister’s guidance, previous Court order not having been complied with.

Citizenship and Immigration — Status in Canada — Permanent residents — Application to set aside refusal of landing because Minister not satisfied applicant rehabilitated — Application allowed — Refusal based on ancillary decision as to rehabilitation which was set aside because of denial of natural justice, procedural fairness — Also serious questions as to whether landing decision properly made, communicated.

Practice — Res judicata — Removal order issued against applicant but set aside by IRB, Appeal Division — Charges against applicant originating in Philippines considered — Charges may be considered again for different reason — Issue before Appeal Division whether humanitarian, compassionate grounds to set aside applicant’s removal from Canada — Issue before decision maker in considering rehabilitation application whether charges make applicant person excluded under s. 19(1)(c.1)(ii), whether rehabilitated — Issue not decided elsewhere — Res judicata not applicable.

This was an application for judicial review of the respondent’s refusal to approve the applicant’s applications for landing and for permanent residence. The applicant, an opponent of the Marcos government, arrived in Canada from the Philippines, and was declared a Convention refugee in 1985. His application for a Minister’s permit to enable him to be processed for permanent resident status was subsequently refused. In 1988 a removal order was issued, but was set aside by the Appeal Division of the Immigration and Refugee Board on humanitarian and compassionate grounds. The applicant’s 1995 application for landing was sponsored by his wife who is a Canadian citizen. In 1998, the respondent requested evidence of the applicant’s “rehabilitation”, failing which he would be inadmissible under Immigration Act, subparagraph 19(1)(c.1)(ii) which precludes admission to Canada of persons who there are reasonable grounds to believe have committed outside Canada an offence that, if committed in Canada, would be punishable by a maximum term of imprisonment of 10 years or more. Reference was made to an affidavit from the Philippines which gave details of charges laid there against the applicant, but the Minister refused to either provide a copy of the affidavit or to give the applicant particulars of the allegations. The applicant categorically denied the commission of any offence. Muldoon J. ordered the Minister to make a decision on the landing application by the end of February 1999. The applicant was informed by letter dated February 23, 1999 that his application for landing had been refused because the Minister was not satisfied that the applicant was rehabilitated, but there was no official record of the decision on rehabilitation having been made and by whom. Another document in the respondent’s record, dated February 24, 1999, appears to be the actual, written decision to deny the applicant landing. Information referred to in the Philippines affidavit was not part of the record produced by the respondent.

The issues were: (1) whether the decision denying the application for rehabilitation was contrary to the principles of fundamental justice; (2) if so, whether the refusal of landing which was based thereon, should be set aside; (3) whether the rehabilitation decision was barred by the principle of res judicata and (4) whether the Court had jurisdiction to hear this application when the applicant’s sponsor had initiated an appeal of the refusal of landing.

Held, the application should be allowed.

The decision regarding the applicant’s rehabilitation should be set aside because there were serious questions as to whether the decision had been properly made and communicated, and there had been a denial of natural justice and procedural fairness. While it may not be reasonable to expect a very busy Minister of the Crown to personally write to every applicant for rehabilitation, the certified record should reveal that the application was at least before the decision maker. Withholding the Philippines affidavit and forcing the applicant to respond to the bare allegation of wrong breached the principles of procedural fairness. Natural justice demands, in the absence of compelling reasons, such as a threat to international relations or national security, that the applicant be given the opportunity to review and respond to the material held by the respondent. There was no issue of protecting international relations or national security herein. Furthermore, the record before the Minister was incomplete thus breaching the principles of natural justice and procedural fairness.

The decision regarding the applicant’s landing could not stand based on errors exhibited in the rehabilitation decision on which it was based, and because of a serious question of fairness raised by the unexplained discrepancy between the dates of the letter informing the applicant of the decision and the actual decision.

That the charges originating in the Philippines were referred to at the IRB, Appeal Division or even upon judicial review, would not preclude consideration thereof again for a different reason. The issue before the Appeal Division was whether there were humanitarian and compassionate grounds to set aside the applicant’s removal from Canada. The issue before the decision maker in the rehabilitation application was whether the charges made the applicant a person excluded under subparagraph 19(1)(c.1)(ii) and whether he had been rehabilitated under the same paragraph. This issue was not decided elsewhere, and the principle of res judicata did not apply.

This Court has jurisdiction to oversee and supervise the execution of its orders. The previous order of Muldoon J. not having been complied with, the Minister was given specific directions for her guidance in reconsidering these decisions. It was to be taken into account that CSIS and the RCMP had uncovered no evidence of criminal activity on applicant’s part during his 17 years in Canada. Unless the Minister possesses information of which the Court is ignorant, it would appear that applicant can function in society and presents a minimal risk of committing crime. In reconsidering the rehabilitation decision, applicant shall be allowed to make further submissions upon the certified record and within 60 days thereafter, the Minister’s decision ought to be made.

Party and party costs should be awarded to applicant in view of the unfairness with respect to the rehabilitation application which necessitated this judicial review application and for the Minister’s failure to clearly determine the landing application within the time limited by order of Muldoon J.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).

Federal Court Immigration Rules, 1993, SOR/93-22, R. 22.

Federal Court Rules, 1998, SOR/98-106, r. 302.

Immigration Act, R.S.C., 1985, c. I-2, ss. 19(1) (as am. by S.C. 1992, c. 49, s. 11; 1995, c. 15, s. 2), 40.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4; S.C. 1992, c. 49, s. 31), 82.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1992, c. 49, s. 73).

CASES JUDICIALLY CONSIDERED

REFERRED TO:

Dee v. Canada (Minister of Employment & Immigration) (1988), 56 D.L.R. (4th) 82; 24 F.T.R. 48; 7 Imm. L.R. (2d) 95 (F.C.T.D.); affd (1991), 83 D.L.R. (4th) 371; 14 Imm. L.R. 5; 135 N.R. 241 (F.C.A.); Canada (Secretary of State) v. Dee (1995), 90 F.T.R. 113; 26 Imm. L.R. (2d) 263 (F.C.T.D.); Dee v. Canada (Minister of Citizenship & Immigration) (1998), 46 Imm. L.R. (2d) 278 (F.C.T.D.).

AUTHORS CITED

Black’s Law Dictionary, 7th ed. St. Paul, Minn.: West Group, 1999, “rehabilitation”.

APPLICATION for judicial review of the Minister’s refusal to approve applications for rehabilitation and landing. Application allowed and Minister given directions governing reconsideration of rehabilitation, landing applications.

APPEARANCES:

David Matas and Harry Walsh for applicant.

Duncan A. Fraser and Joel I. Katz for respondent.

SOLICITORS OF RECORD:

David Matas, Winnipeg, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

[1]        MacKay J.: For the applicant this is another chapter in a most unhappy history. For the respondent’s department, there can be little pride in its record of dealing with the applicant, Mr. Dewey Go Dee. After 17 years and several decisions by officers of the respondent’s ministry giving rise to judicial review proceedings in this Court on numerous other occasions, Mr. Dee may be forgiven if he considers the entire process to be too long delayed. He comes before this Court again, this time seeking an order that he be finally landed in Canada, his objective for many years. That relief I cannot order. However, an order issues directing the respondent Minister to make a decision that complies with the requirements of the order of this Court dated December 2, 1998 and the directions set out below.

[2]        By an application 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] and section 18.1 [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act [R.S.C., 1985, c. F-7], the applicant seeks judicial review of the refusal of the respondent to approve his application for landing in Canada, and Mr. Dee seeks to have a decision dated February 23, 1999 refusing his application for permanent residence set aside. This decision, it is argued, is defective in a number of ways. First, the decision is based on an ancillary decision of the respondent Minister refusing the applicant’s application for rehabilitation, which it is argued, was decided contrary to the principles of fundamental justice because it was made with an incomplete record before the Minister and because the applicant was not permitted access to materials before the Minister. Second, it is urged that the decision dated February 23, 1999, cannot be a valid decision since it was communicated to the applicant before the actual decision was made. Third, it is argued that the ancillary decision is barred by the principle of res judicata, the underlying issue having been dealt with on appeal to the Appeal Division of the Immigration and Refugee Board. Fourth, the applicant argues that the decisions (both the decision of February 23 and the ancillary decision of the Minister) demonstrate a reasonable apprehension of bias.

[3]        As a preliminary matter, it must be highlighted that the parties to this application for judicial review are discussing two separate decisions. The first is the refusal to grant “rehabilitation” under subsection 19(1) [as am. by S.C. 1992, c. 49, s. 11; 1995, c. 15, s. 2] of the Immigration Act , which was apparently made some time in February 1999. The second decision is the refusal of landing, dated either 23 or 24 February 1999. Ordinarily, an application for judicial review is limited to one decision. In his application for leave and judicial review, it is the decision to refuse landing that is referred to.

[4]        In argument, oral and written, both decisions were addressed by counsel, and the reason for the refusal to grant landing is largely based upon the rehabilitation decision, which it is argued should be set aside because of irregularities alleged which are said to breach principles of fairness. I note that neither the respondent nor the applicant made objection to having both decisions considered as subject to judicial review in this proceeding. Because both decisions are inextricably linked, it is my conclusion, pursuant to rule 302 [Federal Court Rules, 1998, SOR/98-106] that both decisions in question should be here considered, for to review the landing decision, the rehabilitation decision must also be examined.

Background

[5]        The applicant arrived in Canada in 1983 on a visitor’s visa. He subsequently applied to be declared a Convention refugee, but was informed that he could not apply while he had a valid visa. The applicant, not illogically, overstayed his visa by one day and then applied to be a refugee. His application was refused. After appeal to the Immigration Appeal Board, he was declared to be a refugee in 1985. Thereafter, in March 1986, the applicant applied for a Minister’s permit to enable him to be processed for permanent resident status. This application was refused even though it was urged by the applicant that the issuance of such permits in similar cases was more or less routine. Thereafter, the applicant sought relief before this Court, but judicial review was refused on the ground that the Minister’s decision was a matter of discretion.[1] 

[6]        In 1988 a removal order was made against him. The applicant appealed to the Appeal Division of the Immigration and Refugee Board, which allowed his appeal and set aside the removal order on the ground that there existed humanitarian and compassionate grounds to prevent his removal from Canada, namely the presence of his family in Canada, that he was well settled after 10 years, and he made a “very positive” contribution to Canadian society. The respondent Minister unsuccessfully sought judicial review of this decision in this Court.[2]

This application

[7]        The applicant’s subsequent application for landing in Canada, made again in 1995, was sponsored by his wife who is a Canadian citizen. In November of 1995, Mr. Dee received from the respondent an approval “in principle”. This approval did not go to the merits of his application, but only meant that he could apply in Canada instead of from abroad. By letter of April 1, 1998 the respondent requested from Mr. Dee evidence of his “rehabilitation”, otherwise he would be inadmissible as excluded under subparagraph 19(1)(c.1)(ii) of the Immigration Act,[3] which precludes the admission to Canada of a specific class of persons in the following terms:

19. (1) No person shall be granted admission who is a member of any of the following classes:

…

(c.1) persons who there are reasonable grounds to believe

…

(ii) have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more,

except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be;

[8]        It appears there were a number of criminal accusations made against the applicant in the Philippines. These were the subject of the respondent’s submissions to the Appeal Division, which set aside the removal order against him. It should be noted that it was Mr. Dee’s status as an opponent of the Marcos government that was the basis for his refugee claim. In the letter of April 1, 1998, mentioned above, requesting evidence of the applicant’s rehabilitation, reference was made to an affidavit from the Philippines which gave details of charges laid there against the applicant (the Philippines affidavit). The Minister refused to provide a copy of the affidavit and further refused to give the applicant particulars about the allegations, but at the same time demanded that he show that he was rehabilitated from the crimes alleged but upon which the Minister refused to provide further information.

[9]        With this further hurdle in his way, Mr. Dee made his application for “rehabilitation” to the respondent Minister. Given the unfairness inherent in the refusal of the Minister to provide full particulars, the applicant’s application appears as complete as possible, listing the name of the charge and “sometime prior to 1982” 1982 as the date of offence. He categorically denies the commission of any offence and points out the following in his application, Form IMM1444, for approval of rehabilitation:

I have conducted myself in an honest and reputable fashion in accordance of all the laws of Canada and in accordance with the highest principles of morality. I have worked hard to assist my wife and family—to assist them to become responsible Canadian citizens. I am a regular church-going member. I believe in God and conduct myself in accordance with my belief. I have encouraged my sons to continue with their education and each is now a university graduate making his own living in his chosen profession. I take pride in having assisted each of them in attaining this goal. I have taken part in the activities of the community in Richmond, B.C. in assisting those who are less fortunate than I have been and I intend to continue to do so as a responsible Canadian citizen. I am proud of the activities in which I participate.

[10]      It has been almost five years since the application for landing that is in question here was made. After almost three years with no response, Mr. Dee came to this Court in December of 1997 for an order compelling the respondent Minister to come to a decision. My colleague, Mr. Justice Muldoon, heard the application in November 1998 and ordered on December 2, 1998 that the Minister make a decision on Mr. Dee’s application for landing by the end of February 1999.[4] Notably, the Court found the delay associated with the respondent’s handling of the application to be “a special circumstance” sufficient to justify an award to the applicant of costs on a solicitor-and-client basis.

[11]      Ultimately, a decision was communicated to the applicant, which, it is urged, raises a number of questions. A letter dated February 23, 1999 says that his application for landing has been refused because “the Minister has reviewed your application for approval of rehabilitation and has determined she is not satisfied that you have rehabilitated.” As argued by the applicant, the record does not disclose evidence that a decision was made by the Minister. There is a copy of an e-mail, dated February 19, 1999 which says that the author of the e-mail has “been informed” of a negative decision by the Minister on the rehabilitation request. From whom the e-mail’s author heard of the decision is nowhere in the record. There is no other indication that the file arrived in the Minister’s office, that it was reviewed, or that a decision was made. There is no indication that a delegate of the Minister made the decision and no reasons are given. In short, there is no official record of the decision having been made and by whom. While it may not be reasonable to expect a very busy Minister of the Crown to personally write to every applicant for rehabilitation, the certified record should reveal that the application was at least before the decision maker.

[12]      A second serious question mark hangs over the application for rehabilitation. As mentioned before, Mr. Dee was told by an officer in the respondent’s department, in the letter of April 1, 1998, directing that he apply for rehabilitation, that there was “documentation on file from the Philippines concerning criminal charges and an affidavit in support of your extradition.” The applicant’s counsel responded to the letter, indicating that he would respond to the allegations once he received a copy of the Philippines affidavit. The respondent ministry replied that “we are not in a position to release them.” No reason was given why the applicant was being refused access to this important material. It is my opinion that withholding this material from the applicant in this way and forcing him to respond to the bare allegation of wrong was improper. It breached the principles of procedural fairness. In cases where a potential immigrant is being excluded from Canada for reasons associated with the prevention of terrorism, it may be that the person in question is not given full access to the evidence against him, yet, important safeguards have been built in to prevent unfairness.[5] In these cases, the evidence is withheld to protect confidential sources, international relations, or national security. The person in question, however, is given a reasonable summary of the accusations and is given a reasonable opportunity to respond.

[13]      Here, the issue of protecting international relations or national security was not raised by the respondent and yet the applicant was denied a meaningful opportunity to respond to the allegations. Natural justice demands, in the absence of a compelling reason, such as a threat to international relations or national security, that the applicant be given the opportunity to review and respond to the material held by the respondent. The principles of natural justice were denied in the making of this decision. The respondent concedes that such was the case in the respondent’s memorandum of argument.

[14]      In addition, the applicant submits that the Minister did not have complete information before her in reaching her decision. In the certified record of the Minister, the documents regarding the charges laid in the Philippines, revealed to the applicant for the first time, appear to be missing a number of sections referred to in the Philippines affidavit. In particular, information regarding the applicant and his identification, orders of arrest, provisions from the Philippines penal code, a decision of a Regional Trial Court, the Court of Appeal and the Supreme Court of the Philippines are all referred to in the Philippines affidavit but are not part of the record produced by the respondent. In addition, a formal request for extradition is not in the record. Assuming the record produced by the respondent accurately reflects what was before the decision maker, the exclusion of relevant important documents again raises the question of the principles of natural justice and procedural fairness. Not only was the applicant denied access to the documents and to challenge them, the record before the Minister was incomplete. In my opinion, this decision cannot stand.

[15]      The applicant also points to problems with the landing decision, which was communicated to him by letter dated February 23, 1999. This letter refers to the Minister’s decision and tells the applicant that because of the rehabilitation decision, he is an excluded person and his application for landing has been refused. The applicant points to a document that is contained in the respondent’s record, which has the title “In the matter of: An application for landing in Canada pursuant to s. 114 of the Immigration Act on humanitarian and compassionate grounds by Dewey Go Dee received July 27, 1995.” It is signed by the same Immigration counsellor who wrote the letter of February 23, 1999. In every respect, it appears to be the actual, written decision to deny the applicant landing. However, it is dated February 24, 1999, one day after the letter informing Mr. Dee of the negative decision. The applicant argues that this taints the decision and raises a reasonable apprehension of bias. In addition, it is urged that any decision the letter and the document purport to communicate is nullified since the letter purports to communicate a decision that was not yet made. The official decision in the record, dated February 24, was never communicated to the applicant. No explanation of the discrepancy in the dates of documents was suggested. This raises a further question regarding the fairness of the respondent’s decision, and perhaps of the treatment by the respondent’s department.

[16]      The applicant further argues that the issue to be considered by the respondent is covered by res judicata. It is argued that because the Appeal Division considered the Philippines charges against the applicant in its deliberations on whether there existed humanitarian and compassionate grounds to prevent his removal from Canada, it is an issue now covered under the principle of res judicata. I do not agree. While the charges originating in the Philippines may have been referred to at the Appeal Division and even upon judicial review in this Court, such circumstances do not preclude them from being considered again for a different reason. The issue then before the Appeal Division was whether there were humanitarian and compassionate grounds to set aside the applicant’s removal from Canada. The issue before the decision maker in considering the submissions for recognition of his rehabilitation is whether the charges make the applicant a person excluded under subparagraph 19(1)(c.1)(ii) of the Immigration Act and whether he has been rehabilitated under the same paragraph. This issue has not been decided elsewhere, and the principle of res judicata does not apply.

[17]      What is said to be the decision of the respondent, made following the order of Muldoon J., now comes before this Court. Mrs. Dee, as the applicant’s sponsor, has a statutory right of appeal to the Appeal Division in relation to that decision. This appeal has apparently been initiated. The respondent argues that because of this, this Court does not have jurisdiction to hear Mr. Dee’s application. I disagree.

[18]      This Court has jurisdiction to oversee and supervise the execution of its orders. The applicant pleads that the terms of the order of Muldoon J. have not been complied with. It is my opinion that such is the case. The decision of February 23, 1999 exhibits reviewable errors and the ancillary decision on which it is based, that regarding the applicant’s rehabilitation, demonstrates a denial of natural justice and procedural fairness. With regard to the rehabilitation decision, the applicant was denied an opportunity to review the allegations made against him and to rebut them in a meaningful way. The respondent decision maker did not have a complete record before her. The decision was communicated in such a way as to raise a question of whether it was made at all. In light of these circumstances it is my opinion that the decision regarding the applicant’s rehabilitation cannot stand. The decision regarding the applicant’s landing cannot stand, either, both on the basis of errors exhibited in the rehabilitation decision on which it was based and also because of serious questions regarding whether the decision was properly made and communicated. An order issues quashing both decisions and returning the issue to the Minister for a prompt decision in accord with these reasons.

Directions to the respondent

[19]      The primary question to be resolved by the Minister is whether Mr. Dee has rehabilitated himself following the charges levelled at him under the Marcos régime. The Immigration Act does not contain a definition of rehabilitation, and no case law has considered the exact meaning of rehabilitation in the context of this Act. According to Black’s Law Dictionary, 7th ed., “rehabilitation” means

The process of seeking to improve a criminal’s character and outlook so that he or she can function in society without committing other crimes.

Mr. Dee has the burden of showing to the Minister that he is of suitable character and that he can function in Canadian society without committing crimes. Both CSIS and the RCMP have reported, according to the record, that they are unable to find evidence of any criminal activity on his part in his 17 years in this country. Over the course of the last 17 years, he has raised a family and has contributed to his community. He is almost 60 years old. Unless there are other factors in the record before the Minister not known to the Court nor revealed to Mr. Dee, it is reasonable to suggest that, absent some negative consideration not here apparent, he can function in society and he presents a minimal risk of committing crimes in the future.

[20]      An order now issues allowing this application and directing the Minister to reconsider, in accord with these reasons, the decisions discussed above, the first regarding the application for rehabilitation and the second regarding his application for landing. The rehabilitation decision shall be made after providing an opportunity for the applicant to make further submissions in respect of the materials before the Minister as revealed by the certified record. Within 60 days of receipt of any further submissions of the applicant, that decision should be made, and the Minister shall reconsider the landing decision.

Costs

[21]      The applicant shall have his costs of this application on a party-and-party basis. In my opinion, costs are warranted under Rule 22 of the Federal Court Immigration Rules, 1993 [SOR/93-22] because of the unfairness in process in dealing with the application for rehabilitation, which is now conceded by the respondent, giving rise to the necessity of the application for judicial review by the applicant. Further, the delay in dealing with the application for landing, and then not clearly determining that application in the time limited by the order of Muldoon J. dated December 2, 1998 warrants an order for costs to the applicant.

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