Date: 20030929
Docket: IMM-4820-02
Citation: 2003 FC 1115
Ottawa, Ontario, this 29th day of September, 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
AHMED NASIR ALI
(a.k.a. Ahmed Ali Said)
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Ahmed Nasir Ali became a permanent resident of Canada in 1993, having previously obtained refugee status. In 1996, he was convicted of assault and sexual interference. The victim was his 9-year-old niece. He served a sentence of 20 months in jail, followed by three years of probation. Immigration officials began a process to obtain the Minister's opinion as to whether Mr. Ali represents a danger to Canada and, if so, to return him to Ethiopia under s. 53(1)(d) of the Immigration Act, R.S.C. 1985, c. I-2 (see Annex).
[2] The Minister's delegate found that Mr. Ali represents a danger to the public in Canada.
[3] Mr. Ali argues that the delegate's opinion is unreasonable because it is out of keeping with the evidence before her. Further, he argues that the delegate either ignored certain evidence or failed to provide adequate reasons for her decision. By way of this application for judicial review, he asks me to set aside the delegate's opinion.
[4] In my view, Mr. Ali has a valid complaint about the adequacy of the delegate's reasons. On that ground, I will allow his application for judicial review.
[5] A person is a danger to the public in Canada if he or she poses a present or future risk to Canadians. Accordingly, the delegate's opinion must set out some basis for believing that the person poses such a risk. At no point does the delegate do so in this case. She relies completely on the opinions of others. She states: "I am satisfied that the Ministerial Opinion Report and the Request for Minister's Opinion adequately reflect the basis for my conclusion that Ahmed Nasir Ali ... constitutes a danger to the public in Canada".
[6] The Ministerial Opinion Report is a document prepared by an immigration officer. In this case, the officer noted the facts surrounding Mr. Ali's convictions, his apparent failure to show remorse until well after the offence, and his delay in seeking psychological counselling. He considered these to be justifications for seeking the Minister's opinion on Mr. Ali's dangerousness.
[7] The Request for Minister's Opinion is a document prepared by other immigration officials setting out briefly the grounds on which Mr. Ali might be considered to be a danger, summarizing the submissions made on Mr. Ali's behalf, listing the documentation to which the Minister's delegate should refer, including the documents supplied by counsel for Mr. Ali, and requesting that the Minister's delegate find Mr. Ali to constitute a danger to the public.
[8] Neither of the documents referred to by the Minister's delegate contains any analysis of Mr. Ali's present or future risk to Canadians. They do not discuss either of the psychological reports indicating that Mr. Ali is unlikely to re-offend. The Minister's delegate states that she reviewed all of the materials submitted on Mr. Ali's behalf. Presumably, then, she considered those reports. However, her brief reasons make no mention of them. Nor does she cites any basis for concluding that Mr. Ali represents a danger to the Canadian public.
[9] Counsel for the Minister referred me to the case of Townsend v. Canada (Minister of Citizenship and Immigration), 2003 FCT 371, [2003] F.C.J. No. 516 (QL) (T.D.). In that case, Justice Snider found the reasons of the Minister's delegate to be sufficient. The delegate had merely stated:
"It is my view that in light of the seriousness of the offences and Mr. Townsend's ongoing supervision, the information presented is not sufficient to persuade me that the decision . . . that Mr. Townsend is a danger to the public should not be maintained in this case."
[10] However, unlike the decision-maker in Townsend, the Minister's delegate in this case did not give any reason at all for her conclusion. I find her reasons to be inadequate and must, therefore, allow this application for judicial review. I note that Justice Heneghan arrived at the same conclusion regarding a virtually identical danger opinion in Singh v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1026.
Disposition
[11] Counsel agree that I cannot order a reconsideration of the danger issue because of the coming into force of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 and the transitional rule set out in s. 350(2) of the Immigration and Refugee Protection Regulations, 2002 SOR/2002-227, (see Annex).
[12] In essence, that provision says that if a danger opinion is referred back by the Court, no re-determination should be made because the new Act contains no analogous process. The proper course is simply to quash the delegate's opinion: Singh, supra; Do v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1156, [2002] F.C.J. No. 1595 (QL) (T.D.).
[13] Neither party proposed a question of general importance for certification, and none is stated.
JUDGMENT
IT IS HEREBY ADJUDGED that:
1. The application for judicial review is allowed. The delegate's opinion is set aside.
2. There are no questions for certification.
"James W. O'Reilly"
Judge
Annex
| Immigration Act, R.S.C. 1985, c. I-2
53. (1) Notwithstanding subsections 52(2) and (3), no person who is determined under this Act or the regulations to be a Convention refugee, nor any person who has been determined to be not eligible to have a claim to be a Convention refugee determined by the Refugee Division on the basis that the person is a person described in paragraph 46.01(1)(a), 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
...
(d) the person is a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed and the Minister is of the opinion that the person constitutes a danger to the public in Canada, to the security of Canada. |
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Loi sur l'immigration, L.R.C. 1985, ch. I-2
53. (1) Par dérogation aux paragraphes 52(2) et (3), la personne à qui le statut de réfugié au sens de la Convention a été reconnu aux termes de la présente loi ou des règlements, ou dont la revendication a été jugée irrecevable en application de l'alinéa 46.01(1)a), ne peut être renvoyée dans un pays où sa vie ou sa liberté seraient menacées du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques, sauf si, selon le cas:
[...]
d) elle relève, pour toute infraction punissable aux termes d'une loi fédérale d'un emprisonnement maximal égal ou supérieur à dix ans, du cas visé à l'alinéa 27(1)d) et que, selon le ministre, elle constitue un danger pour le public au Canada. |
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| Immigration and Refugee Protection Regulations, 2002 SOR/2002-227
350. ... (2) If the decision or act referred to in subsection (1) was made under paragraph 46.01(1)(e), subsection 70(5) or paragraph 77(3.01)(b) of the former Act and the Immigration and Refugee Protection Act makes no provision for the decision or act, no determination shall be made. |
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Règlements sur l'immigration et la protection des réfugiés, 2002 DORS/2002-227
350. [...] (2) Dans le cas où la décision ou la mesure a été prise aux termes de l'alinéa 46.01(1)e), du paragraphe 70(5) ou de l'alinéa 77(3.01)b) de l'ancienne loi et que la Loi sur l'immigration et la protection des réfugiés ne prévoit aucune disposition quant à cette décision ou mesure renvoyée pour nouvel examen, celui-ci n'a pas lieu.
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FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-4820-02
STYLE OF CAUSE: AHMED NASIR ALI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY SEPTEMBER 2, 2003
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'Reilly
DATED: MONDAY, SEPTEMBER 29, 2003
APPEARANCES BY: Mr. Michael Korman
For the Applicant
Mr. Jamie Todd
For the Respondent
SOLICITORS OF RECORD: Mr. Michael Korman
OTIS & KORMAN
290 Gerrard St E
Toronto, Ontario M5A 2G4
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent