Federal Court Decisions

                                 IMM-2348-96

BETWEEN:

     MICHELE COSCIA

                                 Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                 Respondent.

     REASONS FOR ORDER

GIBSON J.:

     These reasons arise out of an application for judicial review of a decision reached on behalf of the Respondent, pursuant to subsection 70(5) of the Immigration Act,¹ that the Respondent is of the opinion that the Applicant constitutes a danger to the public in Canada. The decision is dated the 23rd of May, 1996 and was communicated to the Applicant at the Collins Bay Institution of the Correctional Service of Canada on the 27th of June, 1996.

     The factual background may be briefly summarized as follows. The Applicant was born in Italy on the 30th of March 1960. He was admitted to Canada as a landed immigrant on the 6th of August, 1966. Since that time, he has continued to live in Canada and virtually all of his family members are in this country. He is married and has two children. While he speaks italian, he neither reads nor writes that language.

     On the 8th of September, 1995, the Applicant was convicted at Toronto of three offences and sentenced to a total of 14 years imprisonment. The offences were conspiracy to import a narcotic, cocaine, laundering of the proceeds of crime and delivery of a firearm, a machine gun, to another person without a Firearms Certificate. The convictions followed an extensive under-cover police investigation.

     The Applicant was notified that the Respondent was considering issuing a danger to the public in Canada opinion against him and was provided with copies of the material on which the Respondent proposed to rely. Submissions were made to the Respondent on the Applicant's behalf. Notwithstanding those submissions, the decision here under review was arrived at.

     In light of the decision of the Federal Court of Appeal in The Minister of Citizenship and Immigration v. Williams² only two issues were argued before me. The first was whether or not the decision under review was based on erroneous findings of fact made in a perverse or capricious manner or without regard for the material before the Respondent's delegate. The second was whether or not the Respondent's delegate acted in good faith in having regard to the totality of the material before him.

     In Williams, Mr. Justice Strayer wrote:

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 ...", 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 is subjective terms: the test is not whether the permanent resident is a danger to the public but whether "the Minister is of the opinion" 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, 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. Further, where confronted with the record which was, according to undisputed evidence, before the decision-maker, and there is no evidence to the contrary, the Court must assume that the decision-maker acted in good faith in having regard to that material.

Later in his reasons, in commenting on the oft-stated view that it is "preferable" that reasons be given for decisions such as that here under review, Mr. Justice Strayer wrote:

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. [citation omitted]

     Here, no reasons were provided for the decision under review. There was extensive material provided on the Applicant's behalf before the Minister's delegate indicating that the Applicant has been in Canada for most of his life, and certainly all of his adult life, that he has strong connections to Canada and support within Canada, both from family members and others and that the Applicant would suffer substantial hardship if required to return to Italy. There is no evidence on the material before me that the Respondent's delegate failed to take this information into account in reaching his decision. Equally, on the material that was before the Minister's delegate, there was substantial evidence to support the decision that he reached. In the circumstances, I simply cannot conclude that the decision under review was made in a perverse or capricious manner or without regard for the material that was before the decision-maker.

         As an exhibit to an affidavit which was itself filed in this matter, the Applicant presented extracts from a tape recording of a seminar held on the 19th of June, 1996 by the Canadian Bar Association - Citizenship and Immigration Section. The seminar was entitled "Danger, Danger, Who is a Danger". The extracts indicate that an officer in the Respondent's department, familiar with the development and administration of the procedure leading to decisions such as that here under review, made statements such as; "what the department wants is removals. That's why we do this... We do it because there are some people that we want not in Canada any longer."; and "It's important to understand that when that manager signs a direction, forget about the danger, he's made a decision that he wants this guy out. That's what we want, we're not fooling around." I attach no weight to this material because of the way in which it appears on the record in this matter. It is not an affidavit filed before the Court. It is merely an exhibit to such an affidavit. The affiant on the exhibit was effectively sheltered from cross-examination. Further, even if it would have been possible to cross-examine her, she was not present at the seminar. There was no way she could attest either as to the context in which the quoted statements were made or the atmosphere prevailing at the seminar that might have contributed to the making of the statements.³

     In light of the foregoing, and by reference to the first quotation from Mr. Justice Strayer's reasons in Williams above, I conclude that there is no basis on which I could conclude that the decision-maker in this matter acted other than in good faith and other than with regard to the totality of the material before him, there being no evidence to the contrary before me to which I attach any weight.

     In the result, this application for judicial review was dismissed. Neither counsel recommended certification of a question. None was certified.

                 ____________________________

                     Judge

Ottawa, Ontario

May 26, 1997

__________________

     ¹      R.S.C. 1985, c. I-2

     ²      April 11, 1997, Court Files A-855-96 and IMM-3320-95 (unreported)(F.C.A.)

     ³      See my reasons in Zaman v. the Minister of Citizenship and Immigration , Court File: IMM-1730-96, May 16, 1997 (unreported) for another circumstance in which I gave no weight to an affidavit attached as an exhibit to an affidavit filed with the Court.