Date: 19980108
Docket: IMM-3241-95
BETWEEN:
FRANCIS HOGAN
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
JEROME, A.C.J.:
[1] This matter was scheduled for hearing on March 21, 1997. However, at the request of the parties the matter was adjourned sine die to be disposed of without the personal appearance of the parties or counsel, following release of the decision of the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Williams [1997] 2 F.C. 646 (leave to appeal to S.C.C. denied October 16, 1997).
[2] The applicant emigrated from England with his parents, brother and sister and was granted permanent resident status in Canada on March 22, 1978. During the period from February 1983 to February 1993 the applicant was convicted of 18 criminal offenses which included 6 indecent acts, one indecent exposure, three invitation to sexual touching, two assault, and one attempt to obstruct justice. Sentences imposed ranged from a suspended sentence to one year imprisonment.
[3] The applicant was ordered deported from Canada at an immigration inquiry on March 30, 1994 and immediately appealed to the Immigration Appeal Division. The hearing of the appeal was scheduled for November 9, 1995.
[4] In the interim, on July 10, 1995, subsection 70(5) of the Immigration Act, R.S.C. 1985, c. I-2 (as enacted by S.C. 1985, c. 15, s. 13) came into force. On October 18, 1995, the Minister advised counsel that he intended to consider whether to form an opinion that the applicant was a danger to the public. On October 25, 1995 counsel for the applicant forwarded comprehensive submissions to the Minister. The attachments to the submissions indicated that the applicant had made excellent progress dealing with the problems which led to his exposure offenses and had completed a program for sex offenders. The applicant is married and has access to, and provides support for, a child by a previous relationship. He has a stable financial record and owns a business with three employees. In addition, counsel attached several letters of recommendation from members of the community.
[5] In addition to the applicant's submissions, the Minister's delegate considered the Reviewing Officer's Comments and Recommendation, the information referred to in the Notice to the applicant (Report under section 27, narrative report, deportation order, police summary of information, pre-sentence and psychological assessment, conviction certificates and proceedings and letters from a probation officer, psychologist and psychiatrist).
[6] On the basis of this information, on October 30, 1995 the officer recommended that the Minister's opinion be requested that the applicant is a danger to the public. The following day the section manager concurred with this recommendation . On November 6, 1995 the Delegate of the Minister, after considering the information submitted, issued an opinion, pursuant to subsection 70(5) of the Immigration Act, that the applicant constitutes a danger to the public in Canada.
[7] Leave to file an application for judicial review of the Minister's decision that the applicant constitutes a danger to the public was granted on November 13, 1996.
[8] The applicant raises four issues in the application for judicial review, three of which have now been addressed in recent decisions of the Federal Court of Appeal. First, it is argued that the Minister erred in law and exceeded his jurisdiction by rendering the danger opinion when the applicant's appeal to the Immigration Appeal Division had already commenced as contemplated by subsection 13(4) of the Immigration Act. This issue was considered by the Federal Court of Appeal in Lannie Wai Har Tsang et. al v. Minister of Citizenship and Immigration, A-179-96, February 11, 1997. That case dealt with a sponsor's right of appeal to the Appeal Division of the Immigration and Refugee Board where a danger opinion was issued where an appeal launched before 1995, had been heard but not disposed of. The question before the Court was:
| Where an appeal is made by a sponsor to the Immigration Appeal Division ("IAD") prior to July 10, 1995, with respect to a sponsoree who is inadmissible pursuant to s. 19(1)(c), (c.1), (c.2) or (d) of the Immigration Act, and the hearing before the IAD has commenced after July 10, 1995, does the effect of the Minister issuing a "danger to the public" opinion extinguish the sponsor's right of appeal pursuant to s. 77(3.01) of the Act and s. 15(3) of Bill C-44 and thereby terminate the jurisdiction of the IAD with respect to the appeal? |
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[9] At page 6 of the decision Marceau JA writing for the Federal Court of Appeal states; "...I have no difficulty in answering it [the question stated above] in the affirmative: In my opinion, the transitional provision in Bill C-44 does not allow any other answer."
Counsel's argument that the right to appeal is preserved if the hearing is commenced before the Minister makes his or her decision was rejected by the Federal Court of Appeal. In my opinion the reasoning in Tsang is equally applicable here.
[10] The second ground raised by counsel for setting aside the Minister's decision that the applicant constitutes a danger to the public is that it is invalid as it was reached in violation of the applicant's rights pursuant to section 7 of the Charter. This argument has been rejected by the Federal Court of Appeal in Williams, supra. In Sadegh v. Minister of Citizenship and Immigration, IMM-1325-96, May 22, 1997 I summarized the findings of the Federal Court of Appeal in Williams as follows:
| The first issue before the Court of Appeal in Williams, supra was whether the applicant's s. 7 Charter rights were engaged by this opinion-forming process. The Court found in the negative. The basis for its reasoning was that although the applicant lost his right to appeal to the Immigration Appeal Board, that right was replaced by the ability to apply for judicial review. |
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[11] Counsel for the applicant also argues that the Minister failed to observe principles of natural justice or procedural fairness in rendering the danger opinion in that the applicant was not provided with an opportunity for an oral hearing or given reasons for the issuance of the danger opinion. This issue was also addressed in the Williams, supra and as I stated in Sadegh, supra:
| After finding that subsection 70(5) of the Act was not vague the court dealt with the issue of fundamental justice and the requirement to provide reasons. The Court of Appeal in Williams, supra stated that reasons are not necessary when not explicitly required by statute or where the decision-making process is purely discretionary. However, reasons may be dictated when a decision is clearly not made within the scope of common procedures or apparently not based on the relevant facts. |
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| In its reasons the Court of Appeal found in Williams, supra that a decision made under s. 70(5) is not a judicial or quasi-judicial determination bound by the application of legal principles, but rather an opinion made in good faith balancing the probabilities that the relevant person is, or is not, a risk to Canadian society. Strayer, J.A. concluded by stating that "In such circumstances the requirements of fairness are minimal and have surely been met for the same reasons as I have concluded that requirements of fundamental justice, if applicable, have been met." |
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[12] Accordingly, I am satisfied the requirements of fairness have been met here. The applicant was given notice of the Minister's intention to consider whether a danger opinion should be issued. Furthermore, he was advised of the documents that would be considered by the Minister. Ample opportunity was given the applicant to make written submissions to the Minister and file documentation in support thereof, an opportunity of which the applicant, by his counsel, availed himself. The Minister is not required to provide the applicant with an oral hearing nor is he required to give reasons.
[13] The sole issue remaining to be determined is whether the Minister based his decision on erroneous findings of fact which were made in a perverse and capricious manner without regard to the material that was before him. In particular, the applicant contends that the Minister improperly ignored or overlooked evidence, including expert evidence and evidence of his own official's which allegedly corroborated the applicant's claim that he does not pose a danger to the public in Canada.
[14] In considering this question the issue is not whether, after reviewing all the material, I am satisfied that it supports one position or the other. As indicated in Williams, supra, "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." Here, there is no indication that the favourable material submitted by the applicant was not considered. Furthermore, there is no evidence of bad faith or consideration of irrelevant criteria or evidence. In fact, on the basis of all the material filed it cannot be said that the Minister's opinion is unreasonable.
[15] The application for judicial review is, therefore, dismissed. The parties will have 10 days from the date of this decision to submit a question for certification should they wish to do so.
A.C.J.
OTTAWA, ONTARIO
January 8, 1998
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