Date: 19990302
Docket: IMM-3306-98
IMM-3307-98
BETWEEN:
CAM QUAN TIEU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of two applications for judicial review, both involving the same parties and the same factual background, wherein the applicant seeks judicial review of opinions formed on behalf of the respondent, pursuant to subsection 70(5) and subparagraph 46.01(1)(e)(iv) of the Immigration Act1, to the effect that the applicant constitutes a danger to the public in Canada.
[2] The background may be briefly summarized as follows. The applicant was born in Vietnam in 1958. While still in Vietnam, on the 1st of September, 1979, he was charged with a "...premeditated crime of causing bodily injury and the death of a person as stipulated by s. 5, article (b) of the Decree 03 - SI of March 15, 1976". He was convicted of the offence and sentenced to eight years imprisonment which, on appeal, was reduced to five years. Also while still in Vietnam, he was married on the 5th of July, 1991.
[3] Under sponsorship by his father, the applicant entered Canada as a permanent resident on the 23rd of July, 1991. He has lived continuously in Canada since that time. In documentation that the applicant submitted to support his entry to Canada, he stated that he was unmarried and without dependents and that he had never been convicted of an offence. At the time of his entry into Canada, the statements were patently untrue.
[4] Since arriving in Canada, the applicant has been convicted of criminal offences on three occasions: first, he was summarily convicted for assaulting his sister on the 30th of July, 1992; second, he was convicted of driving with excessive amounts of alcohol in his blood on the 17th of August, 1992; and finally, he was again convicted of assault, this time on his brother, on the 4th of February, 1994. For each offence, he received a relatively light punishment. None of the offences for which he was convicted in Canada carried a potential sentence of up to ten years of imprisonment.
[5] In September of 1997, the respondent wrote to the applicant advising that she was considering forming the opinion that he constituted a danger to the public in Canada. The letter provided copies of documents on which the respondent intended to rely. The applicant was invited to make written representations as to why the respondent should not conclude that he constitutes a danger to the public in Canada. He failed to reply, subsequently indicating that he did not read English well and therefore did not understand the letter and its ramifications.
[6] Following the normal course of reviews by the respondent"s officials, and on the basis of recommendations by those officials, a delegate of the Minister formed the danger opinions contemplated and, on the 3rd of June, 1998, issued the danger opinions that are here under review.
[7] Counsel for the applicant based his attack on the danger opinions on a number of grounds, including statutory interpretations of the provisions of the Immigration Act, which, counsel urged, rendered the provisions of subsections 70(5) and 46.01(1) inapplicable to the applicant. The statutory interpretation arguments were not forcefully pursued before the Court and, I conclude, with good reason. I find no basis whatsoever to conclude that it was not open to the respondent to apply the provisions of subsections 70(5) and 46.01(1) in respect of the applicant.
[8] Before me, for the applicant counsel relied essentially upon three grounds in attacking the danger opinions. First, he alleged the evidence before the respondent was simply insufficient to allow her to form an opinion that the offence of which the applicant was convicted in Vietnam was equivalent to an offence that, if committed in Canada, would constitute an offence that might be punishable under an Act of Parliament by a maximum term of imprisonment of ten years or more. Second, the applicant alleges that the opinions formed on behalf of the respondent were perverse on the evidence that was before the respondent"s delegate. Finally, the applicant argued that the respondent erred in law in determining that the applicant fell within the purview of subparagraph 46.01(1)(e )(iv).
[9] The relevant statutory provisions read as follows:
| 70.(5) 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 ... |
70.(5) Ne peuvent faire appel devant la section d'appel les personnes, visées au paragraphe (1) ou aux alinéas (2)a) ou b), qui, selon la décision d'un arbitre_: a) appartiennent à l'une des catégories non admissibles visées aux alinéas 19(1)c), c.1), c.2) ou d) et, selon le ministre, constituent un danger pour le public au Canada; b) relèvent du cas visé à l'alinéa 27(1)a.1) et, selon le ministre, constituent un danger pour le public au Canada; ... |
| 46.01 (1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the person ... (e) has been determined by an adjudicator to be ... (iv) 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 and the Minister is of the opinion that the person constitutes a danger to the public in Canada. |
46.01 (1) La revendication de statut n'est pas recevable par la section du statut si l'intéressé se trouve dans l'une ou l'autre des situations suivantes_: ... e) l'arbitre a décidé, selon le cas_: ... (iv) qu'il relève, pour toute infraction punissable aux termes d'une loi fédérale d'un emprisonnement maximal égal ou supérieur à dix ans, du cas visé à l'alinéa 27(1)d) et, selon le ministre, il constitue un danger pour le public au Canada. |
[10] With reference to the opening words of subsection 70(5), it was not in dispute that the applicant is a person described in subsection 70(1). Rather, the issue before me was whether or not the applicant fell within the ambit of subsection 70(5)(a) or (b), particularly (b). To fall within the ambit of paragraph 70(5)(b), it was urged that the applicant had to be a person who an adjudicator could reasonably determine had, outside Canada, been convicted of an offence that, if committed in Canada, would constitute an offence that might be punishable under an Act of Parliament by a maximum term of imprisonment of ten years or more. The respondent"s delegate had before him substantial material with regard to the offence of which the applicant was convicted in Vietnam and as to the investigation of that offence and the proceedings before the Vietnamese Courts with respect to the offence. I am satisfied that it was reasonably open to the respondent"s delegate to accept the advice of the respondent"s officials that the offence of which the applicant was convicted in Vietnam was the equivalent of manslaughter under the Criminal Code of Canada, is an offence punishable by a maximum term of imprisonment of ten years or more.
[11] The argument that the danger opinions formed on behalf of the respondent were perverse was based upon the submission that the offence in Vietnam was committed many years ago and that the evidence of the applicant"s conduct since the time he committed that offence was not such as to demonstrate that he constituted a "present or future danger"2 to the public in Canada.
[12] Against the test for reviewability of a danger to the public opinion formed by the respondent that is enunciated in Williams, I can only conclude that the respondent committed no reviewable error in concluding on the facts of this matter that the applicant constituted a danger to the public in Canada.
[13] Finally, subparagraph 46.01(1)(e)(iv) only refers to a person who has been convicted of an offence under an Act of Parliament for which a term of imprisonment of ten years or more might be imposed. It was acknowledged before me on behalf of the respondent that the applicant is not such a person. At the same time, I was advised that the respondent has now issued a third danger opinion in respect of the applicant, this under subparagraph 46.01(1)(e)(iii), the subparagraph to which, I can only conclude, the respondent intended to refer in issuing the opinion that is here under review under the misdescription of an opinion under subparagraph 46.01(1)(e)(iv).
[14] Based upon the foregoing considerations, I conclude that the respondent made no reviewable error in forming the opinion, as she did, on the evidence before her delegate and under the terms of subsection 70(5) of the Immigration Act, that the applicant constitutes a danger to the public in Canada and might reasonably be determined by an adjudicator to be a person described in paragraph 27(1)(a.1). That I might not have reached the same conclusion as to dangerousness is of no consequence. I am satisfied that the respondent"s conclusion was reasonably open to her.
[15] The similar opinion issued under subparagraph 46.01(1)(e)(iv) must be set aside. It was clearly issued in error. It was simply not open to the respondent"s delegate to proceed on the assumption that an adjudicator might determine that the applicant was a person who had been convicted of an offence under an Act of Parliament for which a term of imprisonment of ten years or more might be imposed. To so proceed was clearly an error in law. In the result, this latter opinion will be set aside and the matter referred back to the respondent for reconsideration and redetermination, if considered necessary. Clearly, in light of the third "dangerousness" opinion that has now been issued under subparagraph 46.01(1)(e )(iii), reconsideration is now most likely moot, the reconsideration having, in effect, already taken place.
[16] Neither counsel recommended certification of a question. No question will be certified.
______________________________
Judge
Ottawa, Ontario
March 2, 1999
__________________2 See Williams v. Canada (Minister of Citizenship and Immigration) [1997] 2 F.C. 646 at 669 (F.C.A.).