IMM-2483-96
BETWEEN:
MAU
VAN NGUYEN
Applicant,
-
and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS
FOR ORDER
GIBSON J.:
These
reasons arise 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,
that the Respondent is of the opinion that the Applicant constitutes a danger
to the public in Canada. The decision is dated the 6th of May, 1996.
The
Applicant is a stateless person from Vietnam where he was born on the 23rd of
December 1963. At the age of 15, on the 19th of July, 1979, he was landed in
Canada. Since his arrival in Canada, he has had a steady employment record
although apparently at times he has supplemented his employment income with
welfare. He is single and has no relatives in Canada. He has a mother, a
brother and a sister in Vietnam.
The
Applicant's criminal record reveals three convictions as follows: first, in
November of 1981 he was convicted of mischief and given a suspended sentence
and probation for eighteen months; second, he was convicted in September of
1982 of possession of a weapon and was sentenced to one day incarceration and a
fine of $200.00. In October of 1994, he was convicted of trafficking in a
narcotic, namely approximately one ounce of cocaine. Although he handled the
cocaine in the transaction, he was jointly accused with another who was
described in material on the tribunal record as the "coordinator".
On this conviction, he was sentenced to imprisonment for two years less a day,
thereby ensuring that he would serve his sentence in a provincial institution
rather than a federal prison.
In
a memorandum recommending that the Applicant be referred to inquiry, the
following comment appears:
Edmonton Integrated Intelligence
Unit has no record of the subject being involved in organized criminal
activity.
A
removal order was made against the Applicant. The Respondent undertook an
investigation to determine whether or not an opinion should be formed that the
Applicant constitutes a danger to the public in Canada.
In
submissions made on the issue of danger to the public, counsel for the
Applicant wrote:
It is submitted that when
assessing Mr. Nguyen as a danger to the public, that significant weight must be
placed upon the efforts that Mr. Nguyen has made towards his rehabilitation
while in custody. Enclosed is a copy of Mr. Nguyen's certificate and letter
confirming his completion of a drug awareness program. In addition, enclosed
is a letter from Captain Richard Weber from The Church Army in Canada
evidencing Mr. Nguyen's demeanour and efforts at rehabilitation.
In the Immigration report dated
January 4, 1995, Mr. Lomas indicates that Mr. Nguyen has close relatives in
Vietnam. In fact, Mr. Nguyen has had very little contact, if any, with Vietnam
and has spent over half of his life in Canada. In fact, Mr. Nguyen came to
Canada when he was 15 years old. He would suffer a severe hardship if he was
returned to a country which is completely unknown to him.
In the Criminal Backlog Review Ministerial
Opinion Report - Danger to the Public, prepared for submission to the
Respondent's delegate, an officer in the Respondent's Ministry reasonably
summarized the material on file for consideration by the Respondent's
delegate. The Officer wrote the following under the heading "Additional
comments":
Subject's three convictions span
over a period of thirteen/fourteen years -1981, 1982 and 1994. The lengthiest
sentence he received was two years less one day for the trafficking offence.
During incarceration, he completed a Drug Awareness Program. At this time, I
do not believe that the subject is a danger to the public at this time;
however, I recommend that the circumstances of the case be reviewed again
should other convictions occur.
The
officer's manager did not concur in the officer's recommendation. The officer
commented:
I find this a difficult assessment
as subject has just completed a two year (less a day) sentence for
drug-trafficking in cocaine. As this is not subject's first criminal
conviction, although his previous convictions were relatively minor and
occurred sometime ago, I am not convinced he will not reoffend. For
these reasons, I believe subject should be declared a danger to the public.
[underlining added by me for emphasis]
Without
further documentation on the Tribunal record, and without reasons to explain
the choice between the conflicting recommendations, the danger opinion issued.
The
sole issue argued before me was whether or not, on the material before the
Respondent's delegate, the opinion that the Applicant constitutes a danger to
the public was perverse.
In
the Minister of Citizenship and Immigration v. Williams, Mr. Justice Strayer, in the
context of commentary on the lack of reasons provided in matters such as this,
wrote:
What has been recognized is that
where a discretionary tribunal decision is either, on its face, perverse, or
where there is evidence of facts being before the tribunal which manifestly
required a different result or which were irrelevant yet apparently
determinative of the result, then a court may be obliged to conclude that, in
the absence of reasons which might have explained how the result is indeed
rational or how certain factors were taken into account but rejected, a court
may have to set aside the decision for one of the established grounds for
judicial review such as error of law, bad faith, consideration of irrelevant
factors, failure to consider relevant factors etc. In such cases the tribunal
decision is set aside not because of a lack of reasons per se but
because in the absence of reasons it is not possible to overcome the inference
of perversity or error derived from the result or the surrounding circumstances
of the decision.
Earlier
in the Williams reasons for decision, Mr.Justice Strayer wrote:
Further, when confronted with the
record that 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.
I
am of the view that the reference to "...in having regard to that
material" must be read as "...in having regard to the totality
of that material." Thus, I must assume, because there is no evidence to
the contrary in this matter, that the Respondent's delegate had regard to all
of the material that was before him or her, not simply to the memorandum
prepared for his or her use by an officer in the Respondent's ministry and
differed from in its conclusion by that officer's manager.
By
reference to the first quote from Williams above, I am satisfied that,
in this matter, there is no evidence of facts being before the Minister's
delegate "...which manifestly required a different result or which were
irrelevant yet apparently determinative of the result...". But I reach a
different conclusion on the issue of whether or not the decision to form the opinion
that the Applicant is a danger to the public in Canada is, on its face,
perverse.
I
conclude that the principal factors disclosed by the material before the
Respondent's delegate in this matter bearing on the formation of an opinion as
to whether the Applicant can be said to be a present or future danger to the
public in Canada are the following: first, the Applicant's criminal record
which, as the officer in the Respondent's ministry pointed out, consists of
three convictions over a period of thirteen or fourteen years and with two of
those offences long removed from the most current offence and apparently being
of a relatively minor nature if one considers the sentences imposed; second,
while counsel for the Applicant acknowledged that the trafficking conviction,
particularly involving cocaine in a significant quantity, is a serious one, the
sentence imposed is remarkably light for such a conviction; third, the Edmonton
Police Integrated Intelligence Unit had no record of the Applicant being involved
in organized criminal activity which is, unfortunately, the hallmark of drug
trafficking; fourth, apparently the Applicant spent substantial time in the
community following the trafficking charge and before his conviction, and has
spent further time in the community following his release from incarceration
without any evidence of further criminal activity; and fifth and finally, the
Applicant made effective use of his period of incarceration, brief as it was,
in rehabilitative activity marked by a pro-social attitude.
The
most negative factor on the record that was before the Respondent's delegate,
leaving aside the drug trafficking convictions itself, was the comment
contained in the manager's recommendation quoted above that "...I am not
convinced he will not reoffend." With great respect, that is not a
relevant comment. In forming an opinion as to whether an individual such as the
Applicant constitutes a present or future danger to the public in Canada, the
possibility or likelihood of reoffending is only relevant to the extent that
the reoffending may, or is likely to represent, a danger to the public in
Canada. This Applicant's first offence was "mischief". Such an
offence by the Applicant in the future is unlikely to represent a danger to the
public in Canada. The Applicant's second offence was possession of a weapon
for which the Applicant received a sentence of one day and a fine of $200.00.
There was no evidence before the decision-maker as to the circumstances
surrounding this offence or the weapon involved. Once again, while possession
of a weapon might well be an indicia of danger, such an offence producing an
equivalent sentence to that earlier imposed on the Applicant is unlikely to be
of such a nature. If, however, what the manager was concerned about was the
Applicant returning to drug trafficking in cocaine, or some other serious
offence involving violence, directly or indirectly, that would certainly be a
relevant consideration in forming an opinion that the Applicant constitutes a
present or future danger to the public in Canada. But it is simply not evident
that that is what the manager focussed on.
On
the basis of the foregoing considerations, I return again to the words of Mr.
Justice Strayer in Williams, first quoted above, and I extract the
following from those words:
...where a discretionary tribunal
decision is ... on its face, perverse, ... then a court may be obliged to
conclude that, in the absence of reasons which might have explained how the
result is indeed rational or how certain factors were taken into account but
rejected, a court may have to set aside the decision for one of the established
grounds for judicial review such as error of law, bad faith, consideration of
irrelevant factors, failure to consider relevant factors, etc.
I
am satisfied that the discretionary tribunal decision here under review is, on
its face, and in the absence of reasons that might explain how the result is
indeed rational, perverse. In the result, in the absence of reasons, I conclude
that I must set aside the decision of the Respondent's delegate for one of the
established grounds for judicial review, in this case, error of law. In the
absence of reasons, I can find no rational explanation for the opinion formed
by the Respondent's delegate.
In
so deciding, I realize that I may be seen to be differing from decisions of at
least two of my colleagues on relatively similar fact situations.
In
Phong Tran v. The Minister of Citizenship and Immigration, Mr. Justice Heald dealt
with the case of another stateless person from Vietnam who was found to be a
danger to the public in Canada, apparently on the basis of one conviction only,
that being for conspiracy to traffic in heroin. I am satisfied that case can
be distinguished. A sentencing report on file in that matter indicated the
applicant had sold heroin to undercover police officers on "numerous"
occasions. Further, the sentencing judge found that although the applicant
was not in the top echelon of the conspiracy, he had a "significantly
closer connection than that as was indicated by the facts." Finally, in
that matter, the applicant was sentenced to a term of five years imprisonment.
In
Smith v. the Minister of Citizenship and Immigration, Mr. Justice Muldoon dealt
with the case of an individual who was found to be a danger to the public or
the basis of a conviction for drug trafficking, for which he received a thirty
month sentence, a conviction for drug possession for which he received a six
month sentence concurrent to the thirty months, and an earlier conviction for
theft that occurred in close proximity in time before his two later
convictions. Once again, I am satisfied that this matter can be distinguished
on the basis of the proximity of the three convictions and the evident
escalation in the Mr. Smith's criminality.
In
the result, this application will be allowed, the decision of the Respondent's
delegate that, in his or her opinion, the Applicant constitutes a danger to the
public in Canada will be set aside, and the matter will be. referred back to
the Respondent for redetermination, if considered necessary, taking into
account these reasons.
Neither
counsel recommended certification of a question in this matter. No question
will be certified.
_________________________
Judge
Ottawa,Ontario
August 20, 1997
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