Date: 20010202
Docket: IMM-3358-99
Citation: 2001 FCT 6
BETWEEN:
SAID AHMED HOUSSIEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HANSEN J.
Introduction
[1] The applicant seeks judicial review of the February 23, 1999 decision of W.A. Sheppit, the Minister's delegate, in which it was determined that the applicant constitutes a danger to the Canadian public pursuant to subsection 70(5) and paragraph 53(1)(a) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act").
Facts
[2] The applicant, Said Ahmed Houssien, is a Convention refugee from Somalia. He was born on May 20, 1975. He entered Canada alone in September 1992 and was determined to be a Convention refugee in 1993.
[3] The applicant and his family fled Somalia for Ethiopia in 1991. The events preceding the applicant's arrival in Canada are traumatic, however, for the purposes of these reasons a detailed account is not necessary. During the flight to Ethiopia the applicant was separated from his parents and siblings and has not seen them again. He arrived in Canada alone.
[4] The applicant's problems with the law started in Vancouver in 1993 when he was convicted of assault with a weapon. He received a suspended sentence and a firearms prohibition, and was placed on probation for eighteen months. In 1994, he was convicted of knowingly uttering a threat to cause death or serious bodily harm for which he received a suspended sentence and placed on probation for one year.
[5] The applicant's problems continued following his move to Winnipeg. In May 1995 he was convicted of uttering threats and possession of a weapon. He received a sentence of six months imprisonment on each charge, to be served concurrently. In July 1996, the applicant was involved in a number of non-violent offences. In 1998, he pled guilty to these offences and was convicted of three counts of theft under $5,000.00, one count of unlawful use of a credit card, and one count of theft over $5,000.00. For the count of theft over $5,000.00, he was sentenced to time served to reflecting a term of six months imprisonment. For the other offences, he received suspended sentences, a restitution order, and a two year term of probation.
[6] The applicant currently resides in Vancouver with his girlfriend of three and a half years and works as a cashier in a gas station. He has not incurred any new criminal charges since July 1996.
[7] By letter dated November 12, 1998, the applicant was notified of the intention of Citizenship and Immigration to seek the opinion of the Minister pursuant to subsection 70(5) and paragraph 53(1)(a) of the Act. On December 14, 1998, counsel for the applicant provided submissions in response to the Notice of Intension.
Issues
[8] On this judicial review, the applicant raises a number of issues, one of which is determinative of this application. The issue is whether the failure to provide the applicant with the Ministerial Opinion Report ("MOR") and the Request for Minister's Opinion ("RMO") and an opportunity to respond prior to the issuance of the Minister's opinions pursuant to subsection 70(5) and paragraph 53(1)(a) of the Act constitutes a breach of the duty of fairness owed by the Minister.
Discussion
[9] Recently, this issue has been the subject of extensive and diverse judicial comment. Not surprisingly, both the applicant and the respondent referred to a number of decisions in support of their respective positions.
[10] The respondent relies on the decisions in Siavashi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1132 (F.C.T.D.); Kinshavarz v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1309 (F.C.T.D.); Jan v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1474 (F.C.T.D.); Atwell v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1710 (F.C.T.D.) and Shirazi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1540 (F.C.T.D.).
[11] The applicant asks the Court to follow the decisions in Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 619 (F.C.T.D.); Cristobal v. Canada (Minister of Citizenship and Immigration), [2000] F.C. J. No. 1984 (F.C.T.D.); Andino v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1023 (F.C.T.D.); Gonzalez v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 888 (F.C.T.D.) and Krneta v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1891 (F.C.T.D.).
[12] In her recent decision, Krneta, supra, Dawson J. reviews a number of the cases upon which the parties rely in this matter and considers their opposing rationales. I agree with her reasons that because of the significant consequences and the potential profound impact of a danger opinion on the individual, the duty of fairness requires disclosure of the opinions and a meaningful opportunity to respond.
[13] Although raised by the applicant within the context of his argument on an issue of mistake of fact, the facts giving rise to the issue serve to illustrate very well the importance of providing an applicant with an opportunity to respond.
[14] In the initial MOR prepared by an immigration officer and concurred in by his manager, it was reported under the heading Danger Rationale that the applicant had received in total "four years and six months imprisonment for his various offences". This was later corrected to read "four years and six months probation", however, as the applicant rightly points out there is no way of knowing when the correction was made and or whether the reviewing officer based the danger opinion on this faulty information. The respondent argued that the MOR sets out a list of the applicant's offences together with the sentences imposed. For the purposes of this decision, there is no need for further analysis or determination of the issue of mistake of fact. This type of mistake is highly prejudicial to the applicant, however, it could have been remedied if the applicant had had an opportunity to respond to the report prior to a decision being made. It should also be noted that even with the correction, the manner of stating the totality of the sentences is still ambiguous, in that it could be read as four years imprisonment and six months probation or fifty-four months probation.
[15] For these reasons, the application for judicial review is allowed, the February 23, 1999 decision is set aside, and the matter is remitted to the Minister for redetermination.
[16] Although questions of general importance have been certified in the earlier decisions in relation to this issue, it still remains to be considered by the Court of Appeal. Both the applicant's and the respondent's counsel suggested questions for certification. As only one issue is determinative in this instance, the only question I will certify is as follows:
| Does the failure to provide the person against whom a danger opinion is sought with the Ministerial Opinion Report ("MOR") and the Request for Minister's Opinion ("RMO") and an opportunity to respond prior to the issuance of the Minister's opinions pursuant to subsection 70(5) and paragraph 53(1)(a) of the Act constitute a breach of the duty of fairness owed by the Minister. |
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
February 2, 2001