Federal Court Decisions

     IMM-1640-96

BETWEEN:

     WINDELL JOSEPH ROBINSON,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

HEALD, D.J.

     This is an application for judicial review of the opinion of the respondent, dated April 2, 1996 and pursuant to subsection 70(5) of the Immigration Act, that the applicant constitutes a danger to the public in Canada. That opinion was dated April 2, 1996 and signed by a Delegate of the respondent Minister.

FACTS

     The applicant was born in Montego Bay, Jamaica, on November 6, 1964 and continues to be a citizen of Jamaica. He was landed in Canada, at the age of 18, on May 7, 1983. In 1989, he was convicted of two counts of aggravated assault and one count of use of a firearm while committing an indictable offence. He was sentenced to a term of six years on each of the counts of aggravated assault to be served concurrently. On the count of firearm use while committing an indictable offence, he was sentenced to a term of one year to be served consecutively to the aggravated assault charges. He was originally released on full parole in February of 1993. His parole has since been twice suspended, but no charges were laid against him in relation to either suspension.

     On February 1, 1996, the applicant was served with a notification letter warning him that immigration officials would be seeking an opinion from the respondent that the applicant constitutes a danger to the public pursuant to subsection 70(5) supra¹. The applicant was given fifteen days to make submissions. Additionally, a list of documents which might be considered by the Minister was contained in the notification letter. Counsel for the applicant made submissions by letter dated March 8, 1996. On March 22, 1996, counsel for the applicant received a copy of the ministerial report. This report was essentially a recommendation to the respondent that a danger to the public opinion be formed, accompanied by a statement of the rationale for forming such an opinion. Counsel for the applicant then made further submissions by letter dated March 25, 1996. On April 2, 1996, the Minister's delegate signed the danger to the public opinion respecting the applicant.

ISSUES

1.      Did the Minister's delegate err by applying the wrong test in forming the subsection 70(5) opinion?

2.      Did the Minister's delegate err by relying on irrelevant considerations, or relying on an erroneous finding of fact made in a perverse or capricious manner?

ANALYSIS

I The Wrong Test

     The submission is that the Minister's delegate applied the wrong test in failing to consider present or future danger. This argument is not convincing. Both the officer's recommendation and the manager's recommendation contained in the ministerial report dwell on the applicant's motivation and involvement in substance abuse programs and skills programming. These are reasonable indications of the extent of the applicant's rehabilitation. The ministerial report provides an important foundation for the final danger opinion. The opinion of the Minister based on a forward looking approach flows quite reasonably from the ministerial report in evidence. In my view, there is no other evidence on the record which supports a contrary view.

II Irrelevant Considerations or Perverse/Capricious Findings of Fact

     The applicant's second argument is based on the manager's recommendation to the Minister's delegate contained in the ministerial report. The recommendation states:

The balance of probability indicates that Mr. Robinson does pose a risk to the public. It does not appear that he has been self motivated to undertake the skills programming or substance abuse programs recommended.2

     Counsel for the applicant says that this statement is clearly wrong. In counsel's view, this recommendation plays an important role in the formation of the final opinion, as discussed in Hinds v. M.C.I. (1996), 123 F.T.R. 297, 37 Imm.L.R. (2d) 31. Accordingly, the applicant submits that this error in the recommendation impeaches the opinion of the Minister's delegate to a significant degree.

     I do not agree. In the case of Williams v. Canada (MCI)³ Strayer J.A. speaking for the Federal Court of Appeal stated: "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". Put another way, the Williams case asserts that where a bona fide opinion has been formed by the Minister or the Minister's delegate, it is not subject to review for objective correctness. The record herein reveals that the Minister's delegate based his negative recommendation on the comments of the initial reviewing officer. Those comments read as follows:⁴ "I would disagree with Mr. Rieckens obsevation [sic] that Mr. Robinson satisfactorily completed the corrections program established for him. This may be a bit misleading to the reader. In fact in a number of reports completed by corrections his participation in programs was described by saying "treated the program as somthing [sic] to be endured rather than an oportunity [sic] to learn". Dr. Holtz, a psychologist, commented at the end of one of the Violent Offender group sessions that the subject was unmotivated to participate in further psychological counceling [sic]. [emphasis in original]".

     When this unequivocally negative report is considered along with a number of corrections reports which also commented negatively on the applicant's participation in the various rehabilitation programs, I have no hesitation in concluding, on the totality of the evidence, that the conclusion reached by the Minister's delegate was reasonably open to that delegate on this record.

CONCLUSION

     For the foregoing reasons, I have concluded that no reviewable error has been demonstrated.

CERTIFICATION

     Neither of the parties suggested certification of any serious question of general importance pursuant to section 83 of the Immigration Act. I agree. Accordingly, no questions will be certified.

                         Darrel V. Heald

                         Deputy Judge

Ottawa, Ontario

September 11, 1997

__________________

     ¹      Subsection 70(5) reads:      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.

     ²Applicant's record, page 89.

     ³      (1997), 147 D.L.R. (4th) 93 at page 104.

     ⁴      Applicant's record, page 87.