Date: 19990609
Docket: IMM-3453-98
Between :
JORGE ALBERTO PORTILLO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] This is an application for judicial review of the decision of W.A. Sheppit dated June 23, 1998, wherein he determined as the Minister's Delegate that the applicant constitutes a danger to the public, pursuant to subsection 70(5) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act). Previously, on June 28, 1995, the Convention Refugee Determination Division of the Immigration and Refugee Board (the CRDD) had determined that the applicant was not a Convention refugee and did not have a reasonable possibility of persecution in El Salvador. The CRDD had also determined that the applicant was excluded from the provisions of the Convention pursuant to Articles 1F(b) and 1F(c) of the Convention for having committed serious non-political crimes in El Salvador while he was a member of the Revolutionary People's Army. The applicant was removed to El Salvador on August 7, 1998.
[2] The Ministerial Opinion Report includes the following:
| Mr. PORTILLO was found to have committed serious non-political crimes while he was in El Salvador and that his actions were of a serious nature and befit the description of being atrocious and barbarous. This would constitute crimes against humanity. Given his prior acts in El Salvador and his criminal history in Canada, Mr. PORTILLO has demonstrated repeatedly that he poses a danger to the public. |
[3] Counsel for the applicant argues essentially that the Minister's opinion that the applicant constitutes a danger to the public is not supported by the evidence and is based on irrelevant considerations.
[4] The effect of subsection 70(5) of the Act is to remove a right of appeal to the Immigration Appeal Division where the Minister is of the opinion that a person against whom a deportation order or a conditional deportation order has been issued constitutes a danger to the public in Canada. Subsection 70(5) of the Act reads as follows:
| 70. (5) No appeal may be made to the Appeal Division by a person described in subsection (1) or paragraph 2(a) or (b) against whom a deportation order or conditional deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be (a) a member of an inadmissible class described in paragraph 19(1)(c), (c.1), (c.2) or (d); (b) a person described in paragraph 27(1)(a.1); or (c) 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. |
70. (5) Ne peuvent faire appel devant la section d'appel les personnes, visées au paragraphe (1) ou aux alinéas (2)a) ou b), qui, selon la décision d'un arbitre : a) appartiennent à l'une des catégories non admissibles visées aux alinéas 19(1)c), c.1), c.2) ou d) et, selon le ministre, constituent un danger pour le public au Canada; b) relèvent du cas visé à l'alinéa 27(1)a.1) et, selon le ministre, constituent un danger pour le public au Canada; c) relèvent, 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, selon le ministre, constituent un danger pour le public au Canada. |
[5] The leading case on danger opinions is The Minister of Citizenship and Immigration v. Williams, [1997] 2 F.C. 646 (F.C.A.). In Williams, supra, the Federal Court of Appeal made it clear that the decision to issue an opinion pursuant to subsection 70(5) of the Act is a discretionary one, and that "such subjective decisions cannot be judicially reviewed except on grounds such as that the decision maker acted in bad faith, or erred in law, or acted upon the basis of irrelevant considerations".
[6] Mr. Justice Strayer commented on the standard of review in Williams, supra, at pages 663 and 664:
| Reviewability of the Minister's Opinion |
| It is striking that subsection 70(5) says that no appeal may be made under subsection 70(1) "where the Minister is of the opinion" [underlining added], not "where a judge is of the opinion" that the deportee constitutes a danger. Nor did Parliament put the matter in objective terms whereby a certificate precluding further appeal could only be issued where it is "established" or "determined" that the appellant constitutes a danger to the public in Canada. Instead the power to make such a finding is stated in subjective terms: the test is not whether the permanent resident is a danger to the public but whether "the Minister is of the opinion" [underlining added] that he is such a danger. There is ample authority that, unless the overall scheme of the Act indicates otherwise through e.g. an unlimited right of appeal of such an opinion, [footnote omitted] such subjective decisions cannot be judicially reviewed except on grounds such as that the decision maker acted in bad faith, or erred in law, or acted upon the basis of irrelevant considerations [footnote omitted]. . . . |
And again at page 675:
| . . . But the separation of powers and ordinary principles of judicial deference require that it is for the person attacking a discretionary decision to demonstrate that it is unlawful. This may be easy in some cases where the decision is patently perverse, patently unlawful as dealing with matters outside the jurisdiction of the decision maker, or explicable only on the assumption of bad faith. Absent such factors, it is for the applicant for judicial review to bring forth evidence of argument as to why the decision is unlawful. |
[7] Mr. Justice Gibson in Thompson v. Canada (M.C.I.) (1996), 118 F.T.R. 269, held as follows regarding the standard of review at page 274:
| I consider the nature of the respondent's decision-making power in s. 70(5) to be broadly discretionary. The language of "opinion" clearly denotes a legislative intent to provide the respondent Minister with a wide discretion to determine "danger to the public in Canada". Considering the discretionary nature of the decision under review, I am guided by the decision of the Federal Court of Appeal in Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238, where Hugessen, J.A., noted with respect to the burden on an applicant to demonstrate an error in the exercise of a discretion: |
| "To succeed in his attack here the applicant must show that the decision-maker erred in law, proceeded on some wrong or improper principle or acted in bad faith. It is a heavy burden ..." |
[8] What constitutes "a danger to the public in Canada" was also discussed by Strayer J.A. in Williams, supra, at pages 668 and 669:
| . . . In my view the formulation in subsection 70(5) is sufficiently clear for that purpose. In the context the meaning of "public danger" is not a mystery: it must refer to the possibility that a person who has committed a serious crime in the past may seriously be thought to be a potential re-offender. It need not be proven--indeed it cannot be proven--that the person will reoffend. What I believe the subsection adequately focusses the Minister's mind on is consideration of whether, given what she knows about the individual and what that individual has had to say in his own behalf, she can form an opinion in good faith that he is a possible re-offender whose presence in Canada creates an unacceptable risk to the public. I lay some stress on the word "unacceptable" because, with the impossibility of proof of future conduct, there is always a risk and the extent to which society should be prepared to accept that risk can involve political considerations not inappropriate for a minister. She may well conclude, for example, that people convicted of narcotics offences have a greater likelihood of recidivism and that trafficking represents a particular menace to Canadian society. I agree with Gibson J. in the Thompson case [footnote omitted] that "danger" must be taken to refer to a "present or future danger to the public". But I am reluctant to assert that some particular kind of material must be available to the Minister to draw a conclusion of present or future danger. I find it hard to understand why it is not open to a minister to forecast future misconduct on the basis of past misconduct, particularly having regard to the circumstances of the offences and, as in this case, comments made by one of the sentencing judges. A reviewing court may disagree with the Minister's forecast, or consider that more weight should have been given to certain material, but that does not mean that the statutory criterion is impermissibly vague just because it allows the Minister to reach a conclusion different from that of the Court. |
| (Emphasis is mine.) |
[9] Applying those principles to the facts as established by the evidence in the case at bar, I am not convinced that the Minister's Delegate committed a reviewable error. In my view, there was ample evidence before the Minister to lead to the conclusion that the applicant constitutes a danger to the public. He had been convicted of some seventeen offences between 1996 and 1998 and the majority of these offences involved narcotics. Although the applicant's crimes in El Salvador may have had a political objective, the CRDD concluded that they were of a serious nature and described them as atrocious and barbarous. The CRDD decision also includes the following conclusions:
| - some of the applicant's actions were perpetrated against private citizens; |
| - there was a certain level of violence in the applicant's actions towards the civilians; |
| - the civilians involved in the applicant's attacks "must have been under tremendous fear or even traumatized from the imminent threats of violence, injury or possibly death". |
[10] In my view, finding that these crimes indicate a pattern of conduct continued in Canada is certainly not unreasonable.
[11] In the circumstances, given the high level of deference to be accorded to the Minister on discretionary decisions such as danger opinions, I conclude that the intervention of this Court is not warranted. Consequently, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
June 9, 1999