BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Heard at Winnipeg, Manitoba, on October 18, 2005.
Judgment delivered from the Bench at Winnipeg, Manitoba, on October 18, 2005.
REASONS FOR JUDGMENT BY: ROTHSTEIN J.A.
Docket: A-367-03
Citation: 2005 FCA 341
CORAM: LINDENJ.A.
ROTHSTEIN J.A.
PELLETIER J.A.
BETWEEN:
MYSAY BOUTTAVONG
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Winnipeg, on October 18, 2005)
[1] This is an appeal on the following question certified by O'Keefe J.
"Are public danger opinions under paragraph 46.01(1)(e) and subsection 70(5) of the old Immigration Act, R.S.C. 1985, c. I-2, as amended, moot in light of the new Immigration and Refugee Protection Act, S.C. 2001, c. 27 provisions that provide for legal consequences for public danger opinions and, in particular, paragraph 113(d)(i) and subsection 115(2)."
[2] The appellant concedes that the issue in respect of subsection 115(2) is moot in light of the position of the Minister that the appellant is eligible for a pre-removal risk assessment.
[3] There were two danger opinions issued in respect of the appellant under paragraph 46.01(1)(e) and subsection 70(5) of the Immigration Act. Subparagraph 113(d)(i) of the Immigration and Refugee Protection Act provides:
"Consideration of an application for protection shall be as follows:
. . .
(d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and
(i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada . . ."
The appellant's concern is that there are collateral consequences arising from the two danger opinions issued under the Immigration Act in the sense that they will predetermine or at least influence the danger to the public determination under subparagraph 113(d)(i). He says therefore that the judicial review of these opinions is not moot.
[4] We are of the respectful view that the appellant's concern is unfounded. That is because the former danger opinions are irrelevant to the determination of danger to the public under subparagraph 113(d)(i) for at least two reasons. One is that a danger opinion can be relied upon only for the purpose for which it is given. See Wishart v. Canada (Minister of Citizenship and Immigration) (C.A.) 2001 4 F.C. 495 at paragraph 48. Danger opinions issued for the purposes of paragraph 46.01(1)(e) in subsection 70(5) of the former Immigration Act are therefore irrelevant for purposes of subparagraph 113(d)(i). This of course does not mean that the underlying criminal convictions may not be taken into account, only that the danger opinions are irrelevant.
[5] The second is that over three years have elapsed since the issuance of the two danger opinions and new facts will be pertinent to any determination under subparagraph 113(d)(i).
[6] The prior danger opinions being irrelevant for purposes of subparagraph 113(d)(i), O'Keefe J. was correct in finding there were no collateral consequences arising from their issuance and that the judicial review before him is moot. Nor is there any reason to interfere with his exercise of discretion not to hear the judicial review even though it is moot.
[7] The appeal will be dismissed and the certified question answered in the affirmative.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-367-03
(APPEAL FROM A JUDGMENT OF THE TRIAL DIVISION DATED JULY 25, 2003, DOCKET NO. IMM-1254-02)
STYLE OF CAUSE: Mysay Bouttavong v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: October 18, 2005
REASONS FOR JUDGMENT OF THE COURT BY: LindenJ.A., Rothstein J.A.,
Pelletier J.A.
DELIVERED FROM THE BENCH BY: ROTHSTEIN J.A.
APPEARANCES:
|
Winnipeg, Manitoba |
FOR THE APPELLANT
|
|
Department of Justice Winnipeg, Manitoba |
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Barrister & Solicitor Winnipeg, Manitoba |
FOR THE APPELLANT
|
|
Mr. John H. Sims Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENT
|