IMM-2582-96
BETWEEN:
HAO
VI LAM
(a.k.a.
VI HAO LAM)
Applicant
-
AND -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS
FOR ORDER
McKEOWN J.
The
applicant, a citizen of Vietnam, seeks judicial review of a decision of the
Minister of Citizenship and Immigration dated October 27, 1995 wherein the
Minister was of the opinion that the applicant is a danger to the public in
Canada. Although the applicant appeared in person the applicant's solicitor
had filed a memorandum of argument and counsel for the respondent assisted the
applicant by reviewing this argument.
The
issues raised in this application relate to whether subsection 70(5) is
unconstitutional for vagueness and whether the Minister made the decision by
relying on irrelevant evidence. The vagueness argument was dealt with in Minister
of Citizenship and Immigration v. Williams, April 11, 1997, Court File
A-855-96 (F.C.A.) reversing [1996] F.C.J. No. 1317 (F.C.T.D.) where the Court
held that the issuance of a "danger to the public" opinion under
subsection 70(5) does not engage rights under section 7 of the Charter
and that the concept of "danger to the public" is not
unconstitutionally vague.
The
second issue is the more difficult issue and that is whether there was a
rational basis for the Minister's decision that the applicant constituted a
danger to the public. The applicant cited a number of factors to demonstrate
that the Minister erred, namely, he had only one conviction, the positive
effect of his incarceration, his community's support, a Parole Board decision
where he was released within a minimum amount of time permitted under the
legislation, his continuous employment since the date of release and his
family's support. However, these points of consideration as well as the
decision of the criminal courts, of the Parole Board and of other
decision-makers including the immigration officer were all before the Minister
for her consideration. In this case, the immigration officer who prepared the
report for the Minister recommended that "no danger to the public"
opinion be issued. However, the manager overruled the officer's recommendation
stating:
This is a serious case given the
seriousness of the offence. Fortunately no one was hurt, but the effect on the
victims should not be dismissed.
As
Strayer J.A. stated in Williams, supra at 24:
It is not the opinion of the judge
which is required as to whether the non-citizen presents a danger to the
public.
Although
there are many points in favour of the applicant I am unable to say that there
was no rational basis for the Minister's decision. Accordingly, the
application for judicial review is dismissed.
_______________________________
Judge
OTTAWA, ONTARIO
July 30, 1997
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