Date: 19971124
Docket: IMM-2842-97
BETWEEN:
CHUN WAI LAM,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE, PROTHONOTARY
[1] These reasons arise out of the applicant's motion in writing for an extension of time within which to serve and file the applicant's record. I have allowed the extension. In reaching this conclusion I began with a consideration of pertinent background information.
BACKGROUND
[2] The applicant is a 40-year old Hong Kong citizen, sponsored from within Canada by his wife, a Canadian citizen. Mr. and Mrs. Lam have two children, both born in Canada. Mr. Lam's application for permanent residence received provisional approval, however his landing was precluded by reason of two criminal convictions. The first conviction, in February of 1974, was for membership in a triad society, resulting in a fine of $250.00 (HK) and twelve months probation. The second conviction, also in Hong Kong, in 1988, was for blackmail. The result of this conviction was a fine of $2000.00 (HK) and a nine month suspended sentence: on reading the transcript of the proceedings resulting in the 1988 conviction, one can readily understand the minimal nature of the penalty.
[3] Over the past several years there have been a number of proceedings against, by and on behalf of Mr. Lam. However at issue here is the issuance, by the Minister of Immigration's delegate, of a decision under Section 70(5) of the Immigration Act that Mr. Lam to constituted a danger to the public in Canada, the decision being relayed to Mr. Lam by letter of 27 June, 1997.
[4] Counsel for the applicant wrote on 30 June, 1997 in order to obtain, through the Privacy Act, copies of the material upon which the Minister's delegate relied in coming to the conclusion that Mr. Lam constitutes a danger to the public. Here I would note that Mr. Lam had retained an immigration consultant, to assist him to deal with the events leading up to the danger to the public determination and thus present counsel has no direct knowledge of the material upon which the Minister's delegate relied. Following the request for material counsel received several letters from Citizenship and Immigration Canada in mid-July advising as to progress. Counsel then met with the Assistant Director of the Public Rights Administration of Citizenship and Immigration, in Ottawa, on 6 August, 1997 in order to try to expedite processing of the requested material. However, despite the fact that counsel made his request for the material in a timely manner and took all reasonable steps to try to have the production expedited, it was not mailed out until 19 August and not received by counsel until 27 August, 1997. In any event, Mr. Lam's application for leave and judicial review was filed in a timely manner, 8 July, 1997.
[5] Applicant's counsel realized, on receipt of a letter from Citizenship and Immigration Canada on 17 July, 1997 that no reasons were given for the danger to the public determination. Thus time for filing of the applicant's record ran out 18 August, 1997. This brings us to the present application, filed 8 September, 1997, for an extension of the time within which to file and serve the record.
ANALYSIS
Some Relevant Law
[6] The elements of the test for a time extension, being justification for the delay and demonstration of an arguable case, were set out by Mr. Justice Strayer of the Court of Appeal, then sitting as Judge ex officio of the Trial Division, in Beilin et al. v. Minister of Employment and Immigration (1994) 88 F.T.R. 132 at 134:
| "As a condition of obtaining such an extension of time an applicant must show that there was some justification for the delay throughout the whole period of the delay and that he has an arguable case (see e.g. Grewal v. M.E.I. [1985] 2 F.C. 263; 63 N.R. 106 (F.C.A.)).". |
One must, however, note that in Grewal the Federal Court of Appeal allowed the application for a time extension notwithstanding that the applicant appeared to have no intention to appeal within the appeal period and indeed did not decide to appeal until a decision of the Supreme Court of Canada favoured his position. And this points to an important underlying consideration in the case of an application for a time extension, being whether justice between the parties calls for an extension:
| The underlying consideration, however, which, as it seems to me, must be borne in mind in dealing with any application of this kind, is whether, in the circumstances presented, to do justice between the parties calls for the grant of the extension. (Grewal v. M.E.I. (1986) 63 N.R. 106 at 110). |
The Grewal decision of the Federal Court of Appeal was written by Chief Justice Thurlow and thus this observation ought not to be ignored. I begin with the second aspect of the test, which requires the applicant to demonstrate an arguable case.
An Arguable Case
[7] In the light of Williams v. Minister of Citizenship and Immigration (1997) 212 N.R. 63 (F.C.A.), it is now difficult to challenge a decision of the Minister's delegate that an individual is a danger to the public, for it is not a matter of the court considering the correctness of the opinion, but rather "The issue is whether it can be said with any assurance that the Minister's delegate acted in bad faith, on the basis of a relevant criteria or evidence, or without regard to the material." (page 79). However there is another passage from Mr. Justice Strayer's decision in the Williams case which is also relevant and that deals with decisions which are either on their face perverse or where the facts manifestly require a different result, in which case, in the absence of reasons explaining why the result is rational, a court may set aside the decision of a tribunal, it not being possible to overcome the inference of perversity or error:
| "What has been recognized is that where a discretionary tribunal decision is either, on its face, perverse, or where there is evidence of facts being before the tribunal which manifestly required a different result or which were irrelevant yet apparently determinative of the result, then a court may be obliged to conclude that, in the absence of reasons which might have explained how the result is indeed rational or how certain factors were taken into account but rejected, a court may have to set aside the decision for one of the established grounds for judicial review such as error of law, bad faith, consideration of irrelevant factors, failure to consider relevant factors, etc. ... In such cases the tribunal decision is set aside not because of a lack of reasons per se but because in the absence of reasons it is not possible to overcome the inference of perversity or error derived from the result or the surrounding circumstances of the decision." (page 76). |
[8] In this instance, Mr. Lam's case appears to have similarities to that of the applicant in Nguyen v. MCI, an unreported 20 August, 1997 decision of Mr. Justice Gibson in action IMM-2483-96. In that instance, Mr. Nguyen had a minor criminal record, although certainly a record much more serious and more current than that of Mr. Lam in the present instance. Mr. Justice Gibson pointed out, in Nguyen, that the tribunal must have regard to the totality of the material before it, which he assumed was so for there was no information to the contrary. However he concluded that the tribunal's decision was, on its face and given the absence of reasons to explain the result as rational, a perverse decision, which he set aside:
| "I am satisfied that the discretionary tribunal decision here under review is, on its face, and in the absence of reasons that might explain how the result is indeed rational, perverse. In the result, in the absence of reasons, I conclude that I must set aside the decision of the Respondent's delegate for one of the established grounds for judicial review, in this case, error of law. In the absence of reasons, I can find no rational explanation for the opinion formed by the Respondent's delegate." (page 7). |
[9] In the Nguyen case, the applicant had been convicted of mischief in 1981 and given an 18 month suspended sentence, convicted of possession of a weapon in 1982 and sentenced to one day, together with a small fine and finally in 1994 a conviction of trafficking in cocaine, for which he received a modest sentence of two years less a day. In contrast, in the present instance Mr. Lam, on being convicted at the age of 17 of being a member of a triad society was fined $250.00 (HK) and placed on probation for 12 months. Some 14 years later, in 1988, he was convicted of blackmail, which apparently occurred while he was under the influence of alcohol (and perhaps even was an unfortunate bystander) and for which he was fined $2000.00 (HK) and sentenced to 9 months, which was suspended. All things considered, including the fines and other penalties and the fact that both these offenses occurred a number of years ago in Hong Kong, it would be open for a court to find that the decision to label Mr. Lam a danger to the public is, on its face and in the absence of reasons, perverse. Thus I have concluded that Mr. Lam has an arguable case. The matter of justifying the delay, throughout the whole period of the delay, to which I now turn, gives me a little more difficulty.
Justification For The Delay
[10] As justification for the delay, from 27 June, 1997 when Mr. Lam received advice that he was deemed to constitute a danger to the public, through until the 5th of September when affidavits were sworn in support of this motion, the applicant's justification is that counsel was trying to obtain the material upon which the delegate of the Minister based his decision.
[11] Generally, the excuse of waiting for material under the Privacy Act is not a good one. Indeed, in Muthulingam v. MEI (1992) 14 IMM. L.R. (2d) 36, Mr. Justice Strayer, as he then was, pointed out that the then equivalent to what is now Immigration Rule 17 required a tribunal, on request, to forward material in its possession to the Federal Court Registry without delay. Currently, Rule 17 provides an automatic means by which a tribunal must send relevant material to the court. Mr. Justice Strayer noted this approach was the proper one and that it was not appropriate to provide an extension of time while an applicant pursued a remedy under the Privacy Act, that of obtaining documents. However Mr. Justice Strayer also wrote that in his view the applicant, in the Muthulingam case that "...the applicant is on a fishing expedition and has no firm information as to the existence of any pertinent document in the file which would help his case." (page 38). Such is not the situation here.
[12] In the present instance Mr. Lam's counsel wishes an extension not so he may engage in a fishing expedition, which may bring nothing at the end of the day, except a delay in the Federal Court proceedings, but rather now has documents which were used by the Crown in coming to the conclusion that Mr. Lam ought to be designated a danger to the public and that these are relevant as a basis for Mr. Lam's present judicial review.
[13] It certainly would have been better and proper had counsel for the applicant elected to file material in a timely manner and then, if necessary, on receiving material from the tribunal under Immigration Rule 17, to apply to file additional argument, if necessary. That would be the usual route. However, in this instance, there is the underlying objective, set out in Grewal (supra at 110) by Chief Justice Thurlow, that of doing justice between the parties.
CONCLUSION
[14] Mr. Lam's case is an arguable one. His justification for the delay, that his newly retained counsel did not know the basis of the Crown's danger to the public determination and thus had to wait for production of material under Privacy Legislation, is an understandable, but somewhat weak excuse given that the material would have been produced in any event in due course. However Mr. Lam demonstrated a continuing intent to appeal. Further, an extension of time at this point is not prejudicial. Finally, justice between the parties requires an extension. Mr. Lam will have 14 days within which to serve and file his record.
[15] I thank counsel for good written argument.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
24 November, 1997
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: CHUN WAI LAM
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
COURT NO.: IMM-2842-97
MOTION DEALT WITH IN WRITING WITHOUT
APPEARANCE OF COUNSEL.
REASONS FOR ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY
dated 24 November, 1997
WRITTEN SUBMISSIONS BY:
Andrew Z. Wlodyka for Applicant
Leigh A. Taylor for Respondent
SOLICITORS OF RECORD:
Andrew Z. Wlodyka for Applicant
| Barrister and Solicitor |
George Thomson for Respondent
Deputy Attorney General
of Canada