Kim v. Canada ( Minister of Citizenship and Immigration )
IMM-154-96 / IMM-155-96
MacKay J.
5/3/97
14 pp.
Judicial review of Minister's delegate's decision pursuant to Immigration Act, s. 70(5) applicant danger to public, and of IRB's decision no jurisdiction to hear appeal from deportation order-Applicant permanent resident-In 1993 pleaded guilty to aggravated assault on wife-At inquiry in February 1995 immigration officer determining applicant person described in s. 27(1)(d)(ii), deportation order issued-Applicant filing appeal-Thereafter s. 70(5) enacted prohibiting appeal of deportation order where Minister of opinion person danger to public-In November 1995 applicant advised case under consideration for possible referral to Minister for opinion pursuant to s. 70(5)-Applicant receiving copies of documents said to constitute evidence to be considered by Minister-Minister's delegate deciding applicant danger to public-Transition provisions applied s. 70(5) even to appeal previously filed but not heard-IRB, Appeal Division dismissing appeal for want of jurisdiction-Applicant deported in March 1996-Applications allowed-Two key documents not seen by applicant-First containing factual, opinion references by Vancouver officer to extrinsic evidence, i.e. content of conversation with applicant's probation officer not revealed to applicant for comment before officer's decision-Second containing negative basis of reviewing officer's assessment of danger to public-That basis containing error in law, as suggested onus on applicant to demonstrate violent behaviour would not occur again, instead of balance of probabilities person danger to public-Applicant not having opportunity to comment upon or respond to information in advance of decision, information significant for opinion of Minister's delegate-Lack of fairness in process sufficient to set impugned decision aside, without necessity of establishing prejudice to applicant-Minister's opinion under s. 70(5) result of process violating principle of fairness by failing to provide to applicant for comment, in advance of decision, significant information upon which opinion ultimately based-Immigration Act, R.S.C., 1985, c. I-2, ss. 27(1)(d)(ii), 70(5) (as enacted by S.C. 1995, c. 15, s. 13).