Ibraham v. Canada ( Minister of Citizenship and Immigration )
IMM-766-96
Reed J.
29/11/96
12 pp.
Application to quash decision made under Immigration Act, s. 70(5) finding applicant danger to public-Applicant came to Canada as permanent resident in 1991-Charged in 1992 or 1993 with trafficking in hashish-In 1994 stealing $250, $45 respectively from gas bars-No weapons involved, although physical "struggle"-Drove dangerously trying to evade police, eventually running into snow bank-Convicted of robbery, theft, dangerous driving-Concurrent sentences imposed, most serious of which one year-Conditionally released after five months-Ordered deported-Order appealed to Appeal Division-After hearing completed, but before decision rendered, s. 70(5) decision made-Appeal Division dismissing appeal as no longer having jurisdiction-An Act to Amend the Immigration Act, the Citizenship Act and to Make Consequential Amendments to the Customs Act, s. 13(4) providing s. 70(5) applying to appeal made on or before coming into force of subsection and in respect of which hearing not commenced, but person making such appeal may within 15 days of notification constituting danger to public in Canada, apply for judicial review with respect to deportation order-Application allowed-In absence of reasons, no guarantee decision-maker considered applicant's representations-Decision made by reference to documentation not provided to applicant-If it contains errors, applicant not having opportunity to respond-No opportunity to address colour added to circumstance of case by tone of document, details chosen for inclusion, omission-Failure to advise applicant why constituting danger to public characterized as making of decision by decision-maker without regard to material before him within Federal Court Act, s. 18.1(4)(d) giving Trial Division jurisdiction to grant relief-Although courts not to review merits of discretionary decisions, decision to release applicant on bail while awaiting trial indicating not considered danger to public-Parole Board or relevant provincial officials must have considered would not reoffend when supervision ended-S. 70(5) decision made one year after released from serving five months in jail, and two years after one evening criminal spree leading to incarceration-No evidence assessment of whether applicant posing present or future danger-S. 70(5) decision must be based on risk assessment-Conviction for serious offence alone not sufficient-Minister not erring in rendering decision after Appeal Division hearing but before decision rendered: Tsang v. Canada (Minister of Citizenship and Immigration) (1996), 107 F.T.R. 214 (F.C.T.D.) (absent contrary decision on appeal)-Appeal Division decision, dismissing appeal for want of jurisdiction, should be challenged, not s. 70(5) decision: Hinds v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1544 (T.D.) (QL)-Immigration Act, R.S.C., 1985, c. I-2, s. 70(5)-Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(4)(d) (as enacted by S.C. 1990, c. 8, s. 5).