Date: 19990105
Docket: IMM-1384-98
Between :
Tan Thanh NGUYEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] This is an application pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2, (the Act) for judicial review of the decision of W.A. Sheppit dated July 7, 1997, whereby he determined as the Minister's Delegate that the applicant constitutes a danger to the public.
[2] The requested extension of time within which to file this application is granted.
[3] The applicant was born in Saigon, Vietnam, on October 2, 1955 and has two children. His family was accepted for landing in Canada under the Designated Class Category and arrived in Vancouver on January 4, 1988. On February 6, 1992, he pleaded guilty to second degree murder of his wife and was sentenced to life imprisonment without eligibility for parole until 10 years have been served.
[4] On August 13, 1996, the applicant was served with a Notice of Intention dated August 7, 1996, to seek the opinion of the Minister pursuant to subsection 70(5) and subparagraph 46.01(1)(e)(iv) of the Act that he is a danger to the public. The Notice of Intention indicated that the Minister may consider the following documents:
- Section 27(1) Report
- Section 27(1) Highlights Report
- Immigrant Visa and Landing Record
- Letter of non citizenship
- Court conviction documents
- Correctional Service Canada reports
[5] The leading case on danger opinions is Williams v. Canada (M.C.I.), [1997] 2 F.C. 646. In Williams, 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". Mr. Justice Strayer, in this decision, noted 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, 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. . . . |
As regards procedural fairness, Mr. Justice Strayer held as follows at page 678:
| I believe it is fair to assume that the requirements of "natural justice" are subsumed under the general category of "fairness", particularly in respect of an administrative decision such as this. It is beyond debate that the requirements of fairness depend on the seriousness of the decision being taken. . . . The decision making authorized by subsection 70(5) is not judicial or quasi-judicial in nature involving the application of pre-existing legal principles to specific factual determinations, but rather the formation of an opinion in good faith drawn from the probabilities as perceived by the Minister from an examination of relevant material and an assessment as to the acceptability of the probable risk. In such circumstances the requirements of fairness are minimal and have surely been met for the same reason as I have concluded that requirements of fundamental justice, if applicable, have been met. |
[6] Upon reviewing the evidence and applying the criteria in Williams, supra, the application for judicial review is dismissed on the ground that the applicant has failed to convince me that the Minister's Delegate committed any reviewable error. I would also like to add that the proposition made by the applicant that the Minister's Delegate erred in law by forming a danger opinion prematurely is untenable, as noted by Rothstein J. in Correira v. M.C.I. (December 16, 1997), IMM-1057-96:
| The second issue is whether, in view of the fact the applicant had been convicted of murder and is not eligible for parole until the year 2011, the Minister's danger opinion is invalid for prematurity. Nothing in subsection 70(5) precludes issuance of a danger opinion when an applicant is in jail [see Gillespie v. M.C.I., IMM-1046-96, August 20, 1997]. Nor does subsection 70(5) suggest that the Minister is without power to exercise her discretion under that subsection at any time. It seems somewhat incongruous to think that the Minister could not exercise her discretion with respect to a danger opinion in respect of a person convicted of an offence so serious that he is ineligible for parole for 15 years, but not be so constrained in respect of persons convicted of less serious crimes. |
[7] As I have indicated at the hearing, I do not find that this matter raises any question of general importance for the purpose of certification.
JUDGE
OTTAWA, ONTARIO
January 5, 1999