Date: 19981022
Docket: IMM-3711-97
BETWEEN:
GARABALDI BISH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
WETSTON J.
[1] This is an application for judicial review of a decision of the Minister's delegate, dated April 22nd 1997 in which it was determined that the applicant constitutes a danger to the public pursuant to section 70(5) of the Immigration Act.
[2] The issues in this judicial review are:
| 1. Whether or not the decision of the Minister's delegate raises a reasonable apprehension of bias; or |
| 2. Fails to provide the applicant with procedural fairness. |
[3] The applicant states that the Immigration Officer's actions raised an apprehension of bias. This is based upon the fact that she was involved in preparing both the Criminal Narrative Report and the Danger to the Public Ministerial Opinion Report (s. 70(5) and s. 70(6)). Also she made certain comments in the danger report and to the applicant's former counsel.
[4] In essence, it is argued that the administrative structure wherein the Immigration Officer is involved in preparing both the Criminal Narrative Report and the Danger Report, is unfair in the sense that it creates a reasonable apprehension of bias.
[5] Also, applicant's counsel argued that there was a reasonable apprehension of bias with respect to certain comments that the Reviewing Officer made in the context of a conversation with applicant's former counsel as well as in the context of her Danger Report.
[6] Clearly in determining whether or not to recommend that a direction to inquiry issue, the Immigration Officer concerned makes an assessment of the humanitarian and compassionate factors which may favour the person concerned in not proceeding to inquiry and having a deportation order issued against him.
[7] I cannot accept the applicant's argument that in some way or another the administrative structure with respect to how the Danger Report is referred to the Minister's delegate for his or her consideration and decision raises a reasonable apprehension of bias.
[8] The procedure involves the Report being prepared by the Investigator (D. Tamella) otherwise known as the Reporting Officer. That Report is reviewed by that person's manager otherwise known as the Reviewing Officer (L.M. Lee). The section 70(5) Report is forwarded to officials in Ottawa wherein the request for the Minister's opinion is then made by another Reviewing Officer and concurred in or reviewed by a Senior Analyst responsible for case review in that branch. Finally, the Minister's delegate makes a decision as to whether or not the person constitutes a danger to the public.
[9] The respondent referred the Court to the decision of Minister of Citizenship and Immigration and Williams (1997) 147 D.L.R. 4th 93 (FCA) wherein Mr. Justice Strayer stated at page 104:
| 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. |
[10] In my opinion, despite the very able argument of Ms. Jackman, counsel for the applicant, I cannot find any basis on which to find that in public law terms there is any evidence to establish that the decision maker acted in bad faith in having regard to the material that was before him.
[11] With respects to the second ground in this judicial review application, I have considered whether the Immigration Official would lead:
| an informed person, viewing the matter realistically and practically and having thought the matter through, would think it more likely than not that the decision maker would unconsciously or consciously decide an issue unfairly1. |
[12] I do not consider that the comments of Ms. Tamella give rise to a reasonable apprehension of bias on her part. As such, on this ground, I cannot once again accept Ms. Jackman's able arguments with respect to whether or not the Danger Opinion should be set aside.
[13] The application for judicial review is dismissed.
[14] There is no question for certification in this matter.
"Howard I. Wetston"
Judge
Toronto, Ontario
October 22, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3711-97
| STYLE OF CAUSE: GARABALDI BISH |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: WEDNESDAY, OCTOBER 14, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: WETSTON, J.
DATED: THURSDAY, OCTOBER 22, 1998
APPEARANCES:
Ms. Barbara Jackman
For the Applicant
Ms. Sally Thomas
For the Respondent
SOLICITORS OF RECORD:
Jackman, Waldman & Associates
| Barristers & Solicitors |
| 281 Eglinton Avenue East |
| Toronto, Ontario |
| M4P 1L3 |
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19981022
Docket: IMM-3711-97
Between:
| GARABALDI BISH |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
__________________
1 Committee for Justice and Liberty et al. v. The National Energy Board [1978] 1 S.C.R. 319.