Digests

Townsend v. Canada (Minister of Citizenship and Immigration)

IMM-2133-02

2003 FCT 371, Snider J.

27/3/03

14 pp.

Applicant came to Canada in 1975, at age of 12, and obtained landed immigrant status--Applicant lived in Canada ever since--During past several years, applicant has acquired lengthy criminal record consisting of at least 26 convictions resulting in deportation order dated November 25, 1999--On February 18, 2000, applicant determined to be danger to public pursuant to Immigration Act, s. 70(5) (original danger opinion)--Applicant's applica-tion for judicial review of original danger opinion denied--On June 6, 2001, applicant requested respondent rescind original danger opinion--On May 2, 2002, applicant's request denied and original danger opinion remained in effect--Applicant has applied for judicial review of decision May 2, 2002--(1) Whether respondent erred by failing to meet requirements of procedural fairness-- Violation of procedural fairness not sufficient to allow present application for judicial review for two reasons--First, applicant not challenging original danger opinion on this judicial review--Rather, decision challenged by applicant different, made by different Minister's delegate more than two years later--Second, applicant given chance to make submissions on reports, although not appearing applicant took full advantage of opportunity--Accordingly, any breach of procedural fairness in issuance of original danger opinion has been remedied by reconsideration by Minister's delegate--(2) Whether respondent erred by determining danger opinion could not be opened and by failing to consider applicant's motion to set aside danger opinion based on breach of fundamental justice--Counsel for applicant wrote to Case Management Branch of Department of Citizenship and Immigration requesting danger opinion be rescinded on ground of breach of procedural fairness--Minister's delegate reconsidered original danger opinion--Minister's delegate did not cancel original danger opinion--Thus, issue turning on whether Minister's delegate had jurisdiction or authority to cancel original danger opinion--No case law dealing specifically with power of Minister's delegate to cancel original danger opinion and start anew--In addition, Immigration Act and Regulations silent on this issue-- Minister's delegate had jurisdiction to reconsider original danger opinion based on new evidence not reasonably available at time of original decision or on alleged violation of principles of natural justice--(3) Whether respondent's reasons adequate--Minister's delegate adequately explained confirmation of original danger opinion--Clear from excerpt Minister's delegate concerned about seriousness of applicant's offences and fact applicant still on probation at time of Minister's delegate's decision and these factors formed basis of decision to confirm original danger opinion--(4) Whether respondent erred by failing to consider totality of evidence or by making perverse or capricious finding--In case at bar, evidence regarding applicant's drug rehabilitation before Minister's delegate--Decision indicating Minister's delegate weighed evidence against serious nature of applicant's criminal convictions and fact applicant still on probation from most recent offence and determined that former outweighed by latter--In addition, Minister's delegate clearly indicated careful examination of all information before Minister's delegate, related to both original danger opinion and request for reconsideration--Minister's delegate did not err in law-- Application dismissed--Immigration Act, R.S.C., 1985, c. I-2, s. 70(5) (as am. by S.C. 1995, c. 15, s. 13).