Date: 19980428
Docket: IMM-1228-97
BETWEEN:
VALDEMAR ANDRADE,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
HEALD D.J.
INTRODUCTION
[1] This is an application for judicial review of a decision of the Minister of Citizenship and Immigration (the "Minister") dated February 24, 1997. By that decision the Minister decided that the applicant herein constitutes a danger to the public in Canada, pursuant to the provisions of subsection 70(5) of the Immigration Act.
THE FACTS
[2] The applicant was born in Portugal. He was granted permanent resident status in Canada in 1977. In 1993, the applicant was convicted of assault. For this offence he received a sentence consisting of thirty days of incarceration together with one year of probation. On April 30, 1996 he was convicted of sexual touching, gross indecency and sexual assault. For these offenses, he was sentenced to imprisonment totalling 3 years. He is currently serving these sentences. The convictions related to assaults on his sister-in-law from 1980-1985, when she was between the ages of seven and twelve, and his niece, from 1993-1994 when she was between the ages of eleven and twelve.
[3] As a result of these convictions, the applicant was advised by letter dated December 3, 1996 and served on the applicant on December 9, 1996 of the respondent's intention to seek the opinion of the Minister, pursuant to subsection 70(5) of the Immigration Act that the applicant was a danger to the public in Canada. This letter enclosed copies of documents to be presented to the Minister for her consideration of this applicant's case. In the letter, the applicant was invited to make representations on subject documents with reference to the "danger to the public" opinion. The applicant was also invited to comment on the "humanitarian and compassionate factors" which the applicant wished the Minister to consider. By letters dated December 23, 1996 and January 31, 1997, counsel for the applicant did make submissions to the Minister.
[4] It is the submission of counsel for the applicant that these submissions were not placed before the Minister's delegate and, thus, never considered by that delegate.
THE MINISTER'S DECISION
[5] By letter dated February 24, 1997, W.A. Sheppit, the Minister's delegate, expressed the Minister's decision as follows: "On the basis of information considered by me, I am of the opinion, pursuant to subsection 70(5) of the Immigration Act, that Andrade, Valdemar DOB 17 November 1955 constitutes a danger to the public in Canada".
ISSUES
[6] Counsel for the applicant raises the following issues:
| 1. It was unreasonable for the Minister's delegate, on this record, to conclude that the applicant constitutes a danger to the public in Canada; |
| 2. The Minister's delegate relied on an incomplete record since the submissions of counsel for the applicant were not provided to him. Additionally, the Minister's opinion report contained irrelevant and prejudicial materials; |
| 3. The Minister's delegate failed to give reasons for his decision that the applicant constitutes a danger to the public in Canada; |
| 4. There is no supporting material indicating that delegate Sheppit was authorized by the Minister to make the subsection 70(5) decision in this case. |
ANALYSIS
| Issue 1. The Reasonableness of the Decision by the Minister's Delegate |
[7] Based on the decision of the Federal Court of Appeal in the Williams case1, I have concluded that this submission is without merit when applied to the circumstances in this case. In Williams supra, Strayer J.A. speaking for the Federal Court of Appeal stated: "There is ample authority that, unless the overall scheme of the Act indicates otherwise through e.g. an unlimited right of appeal of such an opinion, 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." (emphasis added).
[8] It is counsel's submission that the Minister's delegate acted in a patently unreasonable manner in issuing a danger opinion since, on the material before him no "probable risk" to the Canadian public could be demonstrated. Counsel was referring to the fact that the applicant had been granted bail pending trial on some of the charges under the Criminal Code of which he was later convicted. He also relied on the circumstance that there were no allegations of further misconduct or criminal activity during the 26 months period prior to trial.
[9] I do not agree with counsel's submissions in this regard. I do not agree that the decision of the Minister's delegate was patently unreasonable. The applicant committed criminal offenses over a period commencing in 1980 and continuing to 1994 (14 years). Although the applicant has not committed offenses since 1994, it should be kept in mind that he has been incarcerated since 1996. Additionally, the Corrections Canada assessment, while negating the probability of recidivism, does not, nevertheless, discount the possibility that the applicant could become an offender again.
| Issue 2. Incomplete Record - Failure to Forward Counsel's Submissions |
Counsel for the separate parties have a different view concerning the factual issue as to whether or not the submissions of counsel for the applicant were before the Minister's delegate when this matter was decided.
[10] My perusal of this record persuades me that counsel for the respondent is correct on this issue. I refer to pages 3 and 4 of the Tribunal Record where there appears the report to the Minister dated February 19, 1997 of Reviewing Officer Denise Bédard. On page 3, under the heading "Reviewing Officer's Comments and Recommendation" she states: "I have carefully reviewed the notification letter and all the supporting documents identified in this notice. Counsel has presented a submission on 31/01/97. The foregoing documents comprise the entirety of the material provided to the Minister's Delegate in support of the request that he form an opinion that Valdemar Andrade constitutes a danger to the public". (Emphasis added)
| Issue 3. Failure to Give Reasons |
[11] I agree with the respondent's counsel that the decision of the Federal Court of Appeal in the Williams case supra is determinative on the issue.2
Issue 4. Delegation of Authority
[12] In my view, this submission is without merit. As noted by the solicitor for the respondent, the delegation instrument set out in Exhibit E to the affidavit of Stephen H. Gold (sworn June 30, 1997) clearly confers upon the "Director General, Case Management, the authority to render danger opinions pursuant to subsection 70(5) of the Immigration Act. The danger opinion itself identifies Mr. Sheppit as the Director General, Case Management.3
CONCLUSION
[13] For the foregoing reasons, I have concluded that the Minister's decision herein was reasonably open to him on this record and should not be disturbed.
[14] The within application for judicial review is accordingly dismissed.
COSTS
[15] Counsel for the applicant indicated that if the Court's conclusion was favourable to the applicant, he would like the opportunity to address the issue of costs. Since my conclusion is not favourable to the applicant, the issue of costs does not arise.
CERTIFICATION
[16] Neither counsel suggested certification of a serious issue of general importance pursuant to section 83 of the Immigration Act. I agree that this is not a case for certification.
Deputy Judge
OTTAWA, ONTARIO
April 28, 1998
__________________
1 M.C.I. v. Williams, (1997) 2 F.C. 646 at 664.
2 See Williams cited supra at p. 674, para. 2.
3 See Exhibit B to the affidavit of Stephen H. Gold (sworn June 30, 1997).
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