Date: 19980525
Docket: IMM-4170-97
Between :
PHIN VAN NGUYEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of the Minister's opinion dated July 10, 1997 which determined that, pursuant to subsection 70(5) and subparagraph 46.01(1)(e)(iv) of the Immigration Act (the "Act"), the applicant constitutes a danger to the public in Canada.
[2] The applicant takes issue with the fact that a report submitted by Cst. Eric Wickberg of the Coordinated Law Enforcement Unit of the Province of British Columbia (the "CLEU report") was before the Minister in rendering a danger opinion pursuant to subsection 70(5) and subparagraph 46.01(1)(e)(iv) of the Act. He contests the allegations contained in the CLEU report, which he labels as replete with false, misleading and hearsay evidence that should have been attributed no weight by the Minister.
[3] The decision of the Federal Court of Appeal in Canada (M.C.I.) v. Williams, [1997] 2 F.C. 646 (leave to appeal to the Supreme Court of Canada dismissed on October 16, 1997), has established a stringent standard for the reviewability of a Minister's danger opinion, as described at page 664:
| [. . .] 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. Further, when confronted with the record which was, according to undisputed evidence, before the decision maker, and there is no evidence to the contrary, the court must assume that the decision maker acted in good faith in having regard to that material. [footnotes omitted] |
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[4] The Ministerial Opinion Report includes the following summary under the heading of "Danger Rationale":
| The subject was convicted of a very serious criminal offence. He has been convicted of unlawful confinement and he could have received a jail sentence of 10 years. The judge in this case sentenced him to 9 months in jail even after he had been in coustody [sic] for one and a half years waiting for his trial. |
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| In Cst. Eric Wiekburg's [sic] submission he states that "This individual and those under his direction are a significant danger to the Vietnamese community and to the larger general population in British Columbia". |
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| The police have an extensive file on the subject. |
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[5] In my opinion, it was permissible for the CLEU report to be before the Minister in arriving at a danger opinion. As this evidence was also provided to the applicant, there could be no improper consideration of "extrinsic evidence" such as those addressed in Noppers v. Canada (M.C.I.) (1997), 136 F.T.R. 176; Kim v. Canada (M.C.I.) (1997), 127 F.T.R. 181; Shah v. M.C.I. (1994), 170 N.R. 238 (F.C.A.) and Clarke v. Canada (M.C.I.) (1997), 139 F.T.R. 74. Moreover, in the present case, the applicant had an opportunity to respond to the evidence before the Minister prior to the danger opinion being issued, but he did not do so.
[6] Furthermore, there is no evidence that the Minister's delegate acted in bad faith, erred in law, or acted upon the basis of irrelevant considerations in issuing the danger opinion with respect to the applicant. I find the respondent's argument compelling that there was no obligation on the Minister or her delegate to consider only evidence that has been proved beyond a reasonable doubt, instead, the decision-making consists of "the formation of an opinion in good faith drawn from the probabilities as perceived by the Minister from an examination of relevant material and an assessment as to the acceptability of the probable risk" (see Williams, page 678). It is true that the CLEU report contains allegations for which the applicant has not been charged or convicted. However it must be remembered that these allegations are consistent with the violent offence for which he was convicted, are the result of extensive investigation, and were not refuted before the Minister. Based on Williams, supra, the Minister's good faith must be presumed. Accordingly, it must be presumed that the Minister would have attributed the proper weight to the CLEU report.
[7] In any case, given the fact that the applicant was convicted of a serious and violent crime, I consider that there was sufficient evidence upon which to base a danger opinion even in the absence of the CLEU report. The circumstances of the crime are detailed in the Crown Counsel and Agent for the Attorney General of British Columbia's report which was also before the Minister prior to the danger opinion being issued.
[8] Finally, with respect to the applicant's submission based on the Minister's failure to provide reasons, the Williams decision, supra, has clearly established that there is no duty incumbent upon the Minister to provide reasons for a danger opinion in this context.
[9] For all the above reasons, the application for judicial review is dismissed.
[10] This case raises no question of general importance for the purpose of certification.
JUDGE
OTTAWA, ONTARIO
May 25, 1998
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