Federal Court Decisions

     IMM-1629-96

BETWEEN:

     JIAN LIN,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

McKEOWN J.:

     The applicant, a citizen of China, seeks judicial review of a decision made by a delegate of the Minister of Citizenship and Immigration dated April 22, 1996, wherein it was found that the applicant constitutes a danger to the public pursuant to subsection 70(5) of the Immigration Act.

     Three issues were raised in this matter. Firstly, whether the Adjudicator's decision that the applicant was not a danger to the public is evidence that the Minister's decision was wrong on its facts? Secondly, did the Minister examine the question as to the fate of the applicant upon his return to China? And thirdly, did the Minister take into account any irrelevant fact, i.e. the criminal record of another person?

     The applicant was convicted of a series of offenses. The last conviction was in December 1994 and he was released from custody early in January 1995. The applicant filed a notice of appeal from the Order of deportation made on April 20, 1995, wherein the applicant was ordered deported on the basis that he is a person described in section 27(1)(d)(ii) of the Immigration Act, i.e., a person who has been convicted of an offence that may be punishable under any Act of Parliament for which a term of imprisonment of five years or more may be imposed.

     The appeal was filed August 23, 1995, and the Immigration Appeal Division set a date of hearing for May 9, 1996. On February 26, 1996, the applicant was put on notice that the Minister of Citizenship and Immigration intended to request an opinion that the applicant was a danger to the public pursuant to subsection 70(5) of the Immigration Act. The letter itemized the documentation which might be presented to the Minister for her consideration of the applicant's case and invited the applicant to respond to the evidence to be considered by the Minister by providing representations, information or evidence relating to the issue of whether he was a danger to the public. The letter also asked whether compelling compassionate or humanitarian considerations were present in his case to outweigh any danger he may present.

     By letters dated April 11, 1996 and April 22, 1996, the applicant responded to this notice with written submissions and attachments. On April 23, 1996, the Minister of Citizenship and Immigration, by her delegate, rendered an opinion pursuant to subsection 70(5) of the Immigration Act that the applicant constitutes a danger to the public in Canada.

     On May 28, 1996, the applicant was arrested for the first time pursuant to the deportation order. At the detention hearing before the Adjudicator on May 30, 1996, the Adjudicator determined, after hearing submissions from counsel and the case presenting officer for Citizenship and Immigration Canada, that the applicant was not a danger to the public in Canada. The case presenting officer took the position that the applicant was a danger to the public in Canada but did not oppose the release from custody on terms and conditions to facilitate the future removal from Canada. The Adjudicator made such an order. The Adjudicator had the same information before him as the Minister except he did not have the benefit of considering humanitarian and compassionate considerations as the Minister has under subsection 70(5). The applicant takes the position that in light of the Adjudicator's decision and the fact that the Minister's representative did not oppose the release of the applicant in the community that the Minister's decision under subsection 70(5) has to be wrong.

     As pointed out by counsel for the respondent, this is a judicial review of the record before the Minister and obviously the Adjudicator's decision was subsequent to the Minister's decision and cannot be considered. However, I will note that there is a great difference between deciding whether a person can be released on terms and conditions for a limited time until the person is removed from the country and deciding whether he is a danger to the public when the alternative is that the person is free to proceed in the community without any terms, restraints or limitation on their freedom. I also note that the Adjudicator stated at page 10 of the transcript of the hearing:

Like Counsel, I do not know the Minister's reasons for finding you to be a danger to the public. It seems reasonable to conclude, however, that your past record must have had a great deal to do with it. I consider that important as well. But I also consider the strides you have made....

The Adjudicator recognizes that they are different considerations.

     Strayer J.A., in Minister of Citizenship v. Williams (April 11, 1997), Ottawa A-855-96, (C.A.) stated at page 11:

In the present case, we know what material was submitted to the decision maker. That material included matters both favourable and unfavourable to the respondent, including the submissions of his own counsel and a psychologist report in his favour. I am unable to see how any of this material can be said to be irrelevant to the formation of the Minister's opinion nor has it been suggested that other irrelevant considerations were taken into account on behalf of the Minister informed in the opinion on her behalf. The Court has not been asked to affirm the correctness of the Minister's opinion but only to determine whether there is any lawful basis for its review.

     Strayer J.A. also said at page 16:

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 the past misconduct, particularly having regard to the circumstances of the offenses 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 the last Minister reached a different conclusion from that of the Court.

In my view, it was open to the Minister to reach the conclusion that she did and it is not for me to disagree with the Minister's forecast since it is her conclusion that the legislation has requested.

     The second issue is whether the possible fate of the applicant upon return to China was clearly before the Minister. The ministerial opinion under the heading "Humanitarian and Compassionate Considerations" summarized the views of the applicant's lawyer as follows:

the lawyer mentions that China is known to re-try and execute persons who have been previously convicted of drug trafficking in any country ( documents are enclosed proving that the subject is at risk of being executed even though he has committed his crimes in Canada and has paid his penalty).

the lawyer claims that until Canada has obtained assurance from the Chinese authorities that it will not re-try subject for his Canadian drug crimes, it would be profoundly inhumane to subject him to the risk of execution, or considering the information attached (to the lawyer's submission) about the Chinese prison system, any risk of incarceration.

     In Part "E", "Other Considerations" where, if applicable, significant humanitarian and compassionate grounds, public policy, and removal risk considerations are listed, there is no mention of the applicant's possible fate upon return to China. However, the humanitarian and compassionate considerations are already in Part "C" of the Report. Guidelines from Immigration Canada clearly state what the officer should consider under Part "E", "Other Considerations".

This part allocates space for the officer to provide relevant information to Part "E" subject matter that was not addressed in Part "C" item 15.

     The material concerning the applicant's return to China was before the Minister. The weight attached to it is a matter for the Minister to determine and at the time that the Minister seeks to remove the applicant from Canada to a specific place, there may be an additional opportunity for the Court to review this matter. In my view, it was open to the Minister to allocate weight to matters other than the possible fate of the applicant when deciding whether subsection 70(5) opinion should be issued. I might have reached a different conclusion, but it is the Minister who must make these decisions under subsection 70(5) of the Act.

     The third issue which the applicant raised relates to the fact that in the request under the Privacy Act the applicant was provided with a document of a criminal record related to a person with the apparent same name. However, the document was not included in the documents provided to the Minister's delegate. It was a document that came up when seeking the applicant's criminal record and only the correct part of the record was put on the file before the Minister's delegate. It is quite clear that at no place is it alleged that the applicant was the person referred to in this other document. It was not useful and was not considered. When the computer is asked for information, certain documents will turn up which may very well not be relevant, such as in the present case. The Minister's delegate did not have this material before him. There is no error with respect to this document.

     The application for judicial review is dismissed.

                         William P. McKeown

                         Judge

OTTAWA, Ontario

July 8, 1997