Federal Court Decisions

                                 IMM-1289-96

BETWEEN:

     THANH PHUONG TRAN

                                 Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                 Respondent.

     REASONS FOR ORDER

GIBSON J.:

     These reasons arises 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 21st of March, 1996 and was communicated to the Applicant on the 3rd of April, 1996.

     The factual background may be briefly summarized as follows. The Applicant is stateless. He was born in Vietnam. He arrived in Canada on the 7th of May, 1989 as a Convention refugee. He has one conviction on his criminal record in Canada. On the 3rd of December, 1993 he was convicted of conspiring to traffic in narcotics. He received a six-year sentence. On the 5th of April, 1994, the Applicant was ordered removed from Canada. On the 2nd of February, 1995 the Applicant was granted day parole and on the 18th of May, 1995 he granted full parole. He received glowing reports from within the Correctional System.

     On the 1st of December, 1995, the Applicant was advised that the Respondent was considering issuing a danger opinion against him. He was provided with material that the Minister would be taking into consideration. He was provided an opportunity to present his side of the case and he availed himself of the opportunity. Despite his representations, the danger opinion issued.

     In light of the decision of the Federal Court of Appeal in The Minister of Citizenship and Immigration v. Williams,² only one issue was argued before me on the hearing of this matter. That issue was whether or not, on the material that was before the Respondent's delegate, the formation of the opinion that the Applicant constitutes a danger to the public in Canada, constituted an erroneous finding of fact made in a perverse or capricious manner or without regard to the totality of the material. Counsel for the Applicant referred me to the following passage from the decision of Mr. Justice MacKay in Salilar v. the Minister of Citizenship and Immigration:³

Conviction for a criminal offence and sentencing for it do not in our society lead to the conclusion that when the sentence is served there is a continuing likelihood of danger to the public warranting continuing detention. The probability of such a danger has to be determined from the circumstances of each case.

     Officials in the Respondent's Ministry who were charged with the responsibility of making recommendations to the Respondent's delegate were divided in their views. The first officer to consider the matter wrote:

The subject is a first time offender who has never been put on notice before. The crime itself did not contain elements of violence, though violence and other crimes are well known associates of drug trafficking. The subject pled guilty to both charges and was sentenced to six years. All information from Corrections state that he was the model prisoner. He upgraded his english as well as taking other courses, ie. cognitive skills. His work performance was rated above average, to the point of being described as an "excellent worker". "He does stand out as the most promising of all the similar cases recently". He had a job waiting for him upon his release, and it is my understanding that he is now working two jobs! Everything I've read or heard on the subject indicates that he will not re-offend. If he had more than the one conviction then we could point to a pattern of recidivism. At this point it hasn't happened, and given the particulars of his case, I do not believe he represents a danger to the public.

In the result, that officer recommended against a danger to the public opinion "...at this time."

     Subsequently, two other officers reached an opposite conclusion. The second officer noted:

- convicted of extremely serious crime as evidenced by lengthy prison sentence imposed.

- subject was heavily involved in conspiracy

- concur that subject is a danger.

     A careful review of the material that was before the Respondent's delegate discloses information sufficient to support both points of view reflected above. As noted earlier, information from Correctional authorities and from the brief period that the Applicant spent in the community after release from incarceration was very positive. By contrast, an Agreed Statement of Facts presented at the Applicant's sentencing hearing disclosed that the offence for which the Applicant was convicted involved large quantities of cocaine, that he played a leadership role in the conspiracy and that he was an organized, competent businessman operating in the drug trade.

     In Williams, Mr. Justice Strayer wrote:

It may be that a motions judge looking at this material might be of the personal view that the evidence against Williams being a danger was stronger than the evidence for him being a danger but, with respect, that is not the issue. The issue is whether it can be said with any assurance that the Minister's delegate acted in bad faith, on the basis of irrelevant criteria or evidence, or without regard to the material.

Against this statement of the test, I cannot conclude, on the totality of the material before me and that was before the Respondent's delegate, that the Respondent's delegate made any reviewable error. I simply cannot conclude "...with any assurance..." that the decision-maker here acted in bad faith, on the basis of irrelevant criteria or evidence or without regard to the material that was before him.

     Based on the foregoing brief analysis, I conclude that this application for judicial review must be dismissed. Neither counsel recommended that a question be certified in this matter. No question will be certified.

                 ___________________________

                     Judge

Ottawa, Ontario

June 3, 1997

__________________

     ¹      R.S.C. 1985, c. I-2

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

     ³      Court File: IMM-1429-95, June 30, 1995 (unreported) (F.C.T..D.)