Date: 20001116
Docket: IMM-5500-99
BETWEEN:
HEWLETTE HARRIS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] Mr. Hewlette Harris (the "Applicant") seeks judicial review of the opinion of W.A. Sheppit, the Minister's delegate, made on May 5, 1999 wherein the Minister's delegate formed the opinion that the Applicant constitutes a danger to the public in Canada. According to this opinion, it was issued pursuant to subsection 46.01(1) of the Immigration Act, R.S.C. 1985, c. I-2. The remedy sought on this Application for Judicial Review is an Order to quash the opinion of the Minister's delegate.
[2] The Applicant is a citizen of Guyana. He enjoys no status in Canada. On August 24, 1998, he was convicted of two offences of possession of a narcotic for the purpose of trafficking and of possession of a restricted weapon. He was sentenced to serve a period of six years imprisonment.
[3] Following completion of a report pursuant to section 27(2) of the Act, Citizenship and Immigration Canada recommended that the Minister's opinion be sought under section 46 of the Act. The Applicant was given notice of the intention to seek the Minister's opinion by means of a letter dated December 3, 1998. The Applicant received and exercised the opportunity to make submissions in this regard.
[4] A request for the Minister's opinion was prepared, again pursuant to section 46.01(1) of the Act. This request included a danger profile of the Applicant, removal risk considerations and the reviewing officer's comments and recommendation. The reviewing officer, Sue Edkins, stated in this request that she did not agree with the decision of Citizenship and Immigration Canada to seek the Minister's opinion that the Applicant is a danger to the public. The reviewing officer made the following comments:
| I do not agree with the CIC's decision to seek the opinion of the Minister's delegate that Hewlette Harris is a danger to the public under paragraph 46.01(1). I have carefully reviewed the notification letter, the supporting documents identified in this notice and the Ministerial Opinion Report prepared by the CIC as well as the submission presented by counsel and Mr. Harris' spouse. The foregoing documents comprise the entirety of the material provided to the Minister's Delegate in support of the request that he form an opinion that Hewlette Harris does constitute a danger to the public pursuant to subsection 46.01(1) of the Immigration Act.1 |
[5] The request for the Minister's opinion was reviewed by Glen O'Brien, Senior Analyst. On May 4, 1999, he made an entry on the request for Minister's opinion which disagreed with the assessment of the reviewing officer, Ms. Edkins. Mr. O'Brien wrote as follows:
| I concur: with the Field Officer's request there is sufficient material to reasonably support an opinion the subject constitutes a danger to the public.2 |
[6] The request for the Minister's opinion, bearing the two contradictory opinions of the Reviewing Officer and the Senior Analyst, went forward to Mr. Sheppit. On May 5, 1999, he issued the opinion pursuant to section 46.01(1) of the Act, to the effect that in his opinion, the Applicant constitutes a danger to the public. No reasons were given by Mr. Sheppit in connection with this opinion.
[7] The Applicant raised a number of issues upon the hearing of this Application for Judicial Review. He says, generally, that the Minister's delegate erred in issuing the opinion. However, his first specific attack on the Minister's opinion relates to the section of the Act under which it was issued.
[8] As noted above, the opinion of the Minister's delegate makes reference to section 46.01(1) of the Act. The opening words of this section provide as follows:
| 46.01 (1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the person ... |
46.01 (1) La revendication de statut n'est pas recevable par la section du statut si l'intéressé se trouve dans l'une ou l'autre des situations suivantes... |
[9] The Applicant says that he is not a Convention refugee. He has never made a Convention refugee claim and according to paragraph 8 of his affidavit filed on this Application, he does not intend to make such claim in the future. The Applicant submits that the Minister's delegate was clearly wrong in issuing his opinion decision pursuant to this section when it is undisputed that the Applicant is not a person claiming Convention refugee status.
[10] Second, the Applicant alleges that the Minister's delegate, by purporting to issue an opinion pursuant to section 46.01(1), acted in a manner calculated to preclude the possibility that the Applicant would ever seek Convention refugee status in this country and that this motivation is indicative of bias on the part of the Minister's delegate.
[11] Finally, the Applicant submits that the issuance of the danger opinion by the Minister's delegate is fatally flawed because no reasons were provided to support or justify the issuance of this opinion.
[12] In my opinion, it is not necessary for me to address the second and third arguments raised by the Applicant. I am of the view that this Application for Judicial Review must succeed on the basis of the first argument advanced by the Applicant.
[13] It is clear from the materials contained in the certified Tribunal Record that the Applicant has no legal status in Canada. He is not a permanent resident. He has not sought admission as a Convention refugee. He has been in the country since 1983. The materials provided to the Minister's delegate are clear and unambiguous as to the lack of status held by this Applicant in this country. There is no apparent explanation for the decision of the Minister's delegate to issue an opinion pursuant to section 46.01(1) when on the face of that legislative provision, it applies only to persons who have claimed Convention refugee status.
[14] The decision of this Court in Gervasoni v. Canada (Minister of Citizenship and Immigration) (1996), 110 F.T.R. 297 (T.D.) does not apply to the present case. Here, no conditional deportation order has been issued. Furthermore, in Gervasoni, supra, the applicant had made a convention refugee claim, whereas the Applicant in this case has not.
[15] The Application for Judicial Review is allowed and the Order of the Minister's delegate dated May 5, 1999 is hereby quashed.
[16] Upon the hearing of this Application for Judicial Review, counsel for the Applicant sought to address the question of the introduction of new evidence on an application for judicial review relating to a ministerial opinion that a person poses a danger to the public in Canada. Counsel for the Applicant submitted two proposed questions for certification which are directly related to the issue of introducing new evidence upon such an application for judicial review.
[17] Counsel for the Respondent requested that I allow some time following the filing of my reasons in this matter to allow the Respondent to consider submitting a question for certification.
[18] Counsel for the parties will have seven days from receipt of these reasons to submit a question for certification.
"E. Heneghan"
J.F.C.C.
Ottawa, Ontario
November 16, 2000
__________________