Date: 20060213
Docket: IMM-5903-05
Citation: 2006 FC 168
BETWEEN:
COCA
CAMARA
Applicant
and
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR
ORDER
PINARD J.
[1] This is an application
for judicial review under subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act) against the decision by
the Minister’s delegate, G.C. Alldridge (the Minister’s delegate), dated
September 13, 2005, that the applicant is a danger to the public within the
meaning of paragraph 115(2)(a) of the Act.
The facts
[2] Coca Camara
(the applicant ) is a citizen of Guinea.
[3] On October 14, 1991, the applicant
arrived in Canada as a
stowaway.
[4] On June 18, 1992, he was recognized as a “Convention
refugee”.
[5] On November 22, 2002, because of the multiple crimes he had
committed, a removal order was issued against the applicant.
[6] On October 25, 2004, the Immigration Appeal Division (the
IAD) dismissed the appeal filed by the applicant against the removal order
issued against him.
[7] On November 24, 2004, the applicant received a notice from
the Canada Border Services Agency (the Agency) stating that the Agency intended
to seek an opinion under paragraph 115(2)(a) of the Act, as to
whether he constituted a danger to the public.
[8] On
December 16, 2004, the applicant’s counsel, Chantal Ianniciello, sent to the
Agency written submissions and evidence in response to this notice received by
her client on November 24, 2004.
[9] On February 22, 2005, the Agency delivered to the applicant a
letter entitled [translation] “Transmission
of Ministerial Opinion Report and Request for Minister’s Opinion and service
for submission of his final arguments regarding the documents sent”. Several
documents were attached to this letter including a document entitled “Request
for Minister’s Opinion – A115(2)(a)”. Even though the applicant did
receive the letter and the documents joined thereto, he refused to sign the
acknowledgement of receipt.
[10] On
February 24, 2005, on a motion filed by the applicant’s counsel, Chantal
Ianniciello, the IAD reopened the applicant’s appeal.
[11] On
March 31, 2005, the Agency faxed a copy of the document “Request for Minister’s
Opinion – A115(2)(a)” to Ms. Ianniciello.
[12] On June 14, 2005, Ms. Ianniciello advised the IAD
that she was no longer mandated to represent the applicant and asked that a
designated representative be appointed for him.
[13] On
July 6, 2005, the IAD appointed Marian Shermarke as the applicant’s designated
representative.
[14] On August 4, 2005, for the purposes of the appeal to the IAD,
the Agency sent Ms. Shermarke a copy of the applicant’s psychiatric
examination by Dr. Emmanuella Levy.
[15] On September 13, 2005, the Minister’s delegate made his
decision to the effect that the applicant is a danger to the public pursuant to
paragraph 115(2)(a) of the Act.
[16] On September 28, 2005, the applicant filed his application
for leave and for judicial review against the Minister’s decision to the effect
that he was a danger to the public under paragraph 115(2)(a) of the
Act.
[17] On October 4, 2005, the IAD ultimately dismissed the appeal filed by
the applicant against the removal order issued against him on November 22,
2002.
[18] On December 15, 2005, the applicant sought to stay the execution
of the order for removal from Canada and this motion was postponed sine die
by Chief Justice Lutfy.
The relevant provisions
[19] It would be appropriate to refer to the wording of the relevant paragraphs
of the Immigration
and Refugee Protection Act:
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97. (1) A
person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
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97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée:
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(a) to a danger, believed on substantial grounds to
exist, of torture within the meaning of Article 1 of the Convention
Against Torture; or
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a) soit au risque, s’il y a des motifs sérieux
de le croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
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(b) to a risk to their life or to a risk of cruel and
unusual treatment or punishment if
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b) soit à une menace à sa vie ou au risque de
traitements ou peines cruels et inusités dans le cas suivant:
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(i) the person is unable or, because of that
risk, unwilling to avail themself of the protection of that country,
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(i) elle ne peut ou, de ce fait, ne veut se
réclamer de la protection de ce pays,
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(ii) the
risk would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
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(ii) elle
y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
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(iii) the risk is not inherent or incidental
to lawful sanctions, unless imposed in disregard of accepted international
standards, and
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(iii) la menace ou le risque ne résulte pas de
sanctions légitimes -- sauf celles infligées au mépris des normes
internationales -- et inhérents à celles-ci ou occasionnés par elles,
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(iv) the risk is not caused by the inability
of that country to provide adequate health or medical care.
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(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
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115. (1) A
protected person or a person who is recognized as a Convention refugee by
another country to which the person may be returned shall not be removed from
Canada to a country where they would be at risk of persecution for reasons of
race, religion, nationality, membership in a particular social group or
political opinion or at risk of torture or cruel and unusual treatment or
punishment.
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115. (1) Ne
peut être renvoyée dans un pays où elle risque la persécution du fait de sa
race, de sa religion, de sa nationalité, de son appartenance à un groupe
social ou de ses opinions politiques, la torture ou des traitements ou peines
cruels et inusités, la personne protégée ou la personne dont il est statué
que la qualité de réfugié lui a été reconnue par un autre pays vers lequel
elle peut être renvoyée.
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(2) Subsection (1) does not apply in the case of a person
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(2) Le paragraphe (1) ne s’applique pas à l’interdit de
territoire:
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(a) who is inadmissible on grounds of serious criminality
and who constitutes, in the opinion of the Minister, a danger to the public
in Canada; or
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a) pour grande criminalité qui, selon le
ministre, constitue un danger pour le public au Canada;
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(b)
who is inadmissible on grounds of security, violating human or international
rights or organized criminality if, in the opinion of the Minister, the
person should not be allowed to remain in Canada on the basis of the nature
and severity of acts committed or of danger to the security of Canada.
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b) pour
raison de sécurité ou pour atteinte aux droits humains ou internationaux ou
criminalité organisée si, selon le ministre, il ne devrait pas être présent
au Canada en raison soit de la nature et de la gravité de ses actes passés,
soit du danger qu’il constitue pour la sécurité du Canada.
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The
decision of the Minister’s delegate
[20] On September 13, 2005, the Minister’s delegate made his
decision to the effect that the applicant constituted a danger to the public
pursuant to paragraph 115(2)(a) of the Act.
[21] After considering all of the documents submitted by the Agency as well
as the submissions and the evidence filed in response by the applicant, the
Minister’s delegate first assessed the applicant’s dangerousness. He observed
the following:
-
Since his arrival in Canada, the applicant has committed a multitude
of criminal offences including some related to drug use;
-
The evidence indicates that the applicant is at a very high risk of
recidivism;
-
There is no evidence in the record suggesting that the applicant is
seriously considering changing his behaviour after his convictions;
- There
is no evidence suggesting that the applicant is taking active measures to
rehabilitate himself and to become an active member of the society.
[22] Based on all of these observations, the Minister’s
delegate determined that the applicant posed an unacceptable risk to the public
and, accordingly, that he was a present and future risk to the public.
[23] Second, the Minister’s delegate examined whether, considering the
circumstances, the applicant could be subject to the risks set out in sections
96 and 97 of the Act if he were to return to his country. He noted that:
-
The documentary evidence on the situation in Guinea reveals that, even
though improvements have been noted in terms of respecting human rights, the
country still has many challenges to face before the State’s general situation
will improve;
-
Even though the applicant was arrested in 1991, there is nothing to suggest
that in 2005, 14 years later, the authorities would still be interested in him;
-
There is nothing to suggest that the applicant has a criminal record in Guinea;
-
There is nothing to suggest that charges were brought against the applicant
after his arrest in 1991;
-
There is nothing to suggest that the Guinean authorities would punish the
applicant for the crimes that he committed in Canada;
-
There is nothing to suggest that before his arrival in Canada in 1991, the
applicant was involved in activities supporting a finding that he would be
subject to a reasonable possibility of persecution or that it would be more
than probable that he would be subjected to one of the risks listed in section
97 of the Act if he were to return to his country.
[24] Considering
all of these factors, the Minister’s delegate determined that there was no
serious possibility or reasonable chance that the applicant would be persecuted
for one of the grounds in the Convention or that he would be subjected to a
risk listed under section 97 of the Act if he were to return to his
country.
[25] Third, the Minister’s delegate examined the question of whether
there were humanitarian and compassionate considerations justifying a decision
in the applicant’s favour.
[26] After noting that the applicant, a single man, had not succeeded in
truly establishing himself in Canada and, recognizing that he would have some
difficulties in reintegrating himself in Guinea, but that he would benefit
there from family support, as his two sisters still lived there, the Minister’s
delegate determined that the humanitarian and compassionate factors were
insufficient to justify a decision in the applicant’s favour.
[27] Finally,
taking into account all of these factors, the Minister’s delegate determined
that the interests of Canadian society superseded the applicant’s presence in Canada and the very
small risk to which he could be subjected in his country. Accordingly, the
Minister’s delegate determined that the applicant constituted a present and
future danger to the Canadian public.
Analysis
Procedural fairness
[28] The applicant
claims that the decision by the Minister’s delegate was not fair because his
decision was made on September 13, 2005, namely eight months after the “Request
for minister’s opinion – A115(2)(a)”, and without updating his file.
[29] In my opinion, such an update was not necessary because all
of the factors mentioned by the applicant, which were not in the file of the
Minister’s delegate, only reiterated what was already in evidence, namely the
mental health problems alleged by the applicant.
[30] For example, already in evidence was the decision by the Tribunal
administratif du Québec (the TAQ), dated March 2, 2001, which referred to
excerpts from a psychiatric report on the applicant indicating the following: [translation] “the most probable
diagnosis is that of a manic episode with psychotic features in partial
remission in the context of a bipolar affective disorder” and “as a
differential diagnosis, there is also the possibility of a schizo-affective
disorder”.
[31] In the expert report of August 2005, which in the
applicant’s opinion should have been sent to the Minister’s delegate,
Dr. Levy’s diagnosis was similar, as appears from the following excerpt
from this report:
[translation]
Diagnosis
The
above symptomatology and the patient’s history suggest a schizo-affective
disorder of the bipolar type. At this time, the patient has not experienced
acute episode of manic or depressive decompensation, but he presents some
positive and negative psychotic symptoms. He also has a history of multiple
drug addictions (THC and cocaine).
[32] The applicant
moreover alluded to his mental health problems in the written submissions that
he sent to the Minister’s delegate.
[33] Accordingly, the update, which in the applicant’s opinion should have
been done, would not have added anything more.
[34] Also,
the applicant was represented either by counsel or by Ms. Shermarke, the
representative designated by the IAD, at the time the request for an opinion on
danger was made as well as when the psychiatric report was reopened or sent in
August 2005. If the applicant or his representatives believed that the
expertise of August 2005 or any other document or information should have been
brought to the Minister’s attention, they could have done so. Nothing prevented
them, for example, from informing the Minister of the IAD’s reopening of the
applicant’s appeal, even though that was a procedure in a completely different
proceeding.
[35] With regard to the ENF 28 Guide referred to by the applicant, it
cannot be interpreted as requiring that evidence of the kind raised by the
applicant, which does not add anything new to the file, be sent to the
Minister’s delegate.
[36] Moreover, bear in mind that in any event, the fact that an
administrative decision-maker did not follow the guidelines set out in a guide
is not in itself an error justifying judicial intervention. In Gilani
v. Minister of Citizenship and Immigration, 2003 FCT 152,
Madam Justice Snider in fact pointed out this principle:
[17] In Cheng
v. Canada (Secretary of State), [994] F.C.J. No. 1318 (T.D.)(QL), Cullen J.
held, at paragraph 7, that while the Guidelines were not legislative in nature,
“they ought to be followed by an Immigration Officer in making a decision so
that some consistency is achieved within the department”. However, Cullen J.
held that the failure of an immigration officer to follow the policy expressed
in these Guidelines was not an error worthy of referring the matter back for redetermination
(see also Vidal, supra). Cullen J. allowed the application for
judicial review in Cheng, supra for other reasons.
[18] In Ramoutar,
supra, Rothstein J., as he then was, elaborated at page 375 on the
status of the policy contained in the Immigration Manuals stating that “merely
because officials at the Department of Immigration have set forth a policy does
not confer upon that policy the status of law.”
[19] As a
result, the failure of the Program Manager to follow the Guidelines, in and of
itself, would not be reviewable error.
[37] The applicant
also contends that the Minister’s delegate did not take into account the state
of his mental health in making his decision. It is true that the Minister’s
delegate does not set out the applicant’s mental health problems expressly in
his reasons. However, it is well established that decision-makers are not
bound, in the reasons for their decision, to refer to each piece of evidence
that they considered (see Hassan v. Minister of Employment and Immigration(1993),
147 N.R. 317 (F.C.A.) and Zhou v. Minister of Employment and Immigration (July
18, 1994), A-492-94 (F.C.A.)). There is a presumption that the decision-maker
considered all of the evidence before making a decision (Woolaston v.
Minister of Manpower and Immigration, [1973] S.C.R. 102 and Townsend v.
Canada (M.C.I.), [2003] F.C.J. No. 516 (F.C.T.D.) (QL)).
[38] The respondent points out that very recently, in Arinze v.
Solicitor General of Canada, 2005 FC 1547, a decision dated November 18,
2005, the applicant alleged that the Minister’s delegate had not in his
decision under paragraph 115(2)(a) referred to certain factors
favourable to him. In that matter, my colleague Mr. Justice Blais writes:
[25] It is well
established law that the decision-maker does not have to refer to every piece
of evidence in its reasons. As stated by the Federal Court of Appeal in Florea
v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 598 at paragraph 1:
The fact that the
Division did not mention each and every one of the documents entered in
evidence before it does not indicate that it did not take them into account: on
the contrary, a tribunal is assumed to have weighed and considered all the
evidence presented to it unless the contrary is shown.
[26] The
decision maker, in this case the Minister’s delegate, is presumed to have
considered all the evidence unless the contrary can be shown. The Minister’s
delegate confirms in his decision that he consulted the entirety of the
submissions from the applicant in coming to his conclusion and I find that the
applicant has failed to demonstrate the opposite to be true.
[39] In this case, the Minister’s delegate states in his decision that he
examined the documents filed by the applicant in their entirety. In my opinion,
the applicant did not establish that this was not the case.
[40] Considering all of the foregoing, I am not satisfied that the Minister’s
delegate breached the rules of procedural fairness.
Dangerousness
[41] According to the applicant, the delegate erred in law in
determining that he posed a danger to the public, because the guidelines
emphasize offences involving a degree of violence, and the offences for which
he was convicted, related to theft, did not involve an unacceptable degree of
violence. Further, the applicant claims that the delegate erred in completely
disregarding his mental health problems when he stated:
[TRANSLATION]
. . . Accordingly, I
give much more weight to the evidence establishing that Mr. Camara is at a
very high risk of recidivism despite the fact that he is aware of the serious
consequences resulting from his actions. . . . I give a lot of weight to the
lack of this type of document, suggesting that the interested party made an
effort to successfully reintegrate into Canadian society after his release from
prison.
[42] It
is true that several of the criminal acts committed by the applicant were
related to theft, but the applicant was also found guilty of assault on two
occasions and, in addition, assault on a police officer.
[43] Moreover, as demonstrated by the “Request for Minister’s
Opinion – 115(2)(a)”, while he was in detention, the applicant made
threats and he was violent.
[44] Finally,
the evidence established that the applicant is at a high risk of recidivism and
that he has not made any effort to rehabilitate himself.
[45] Considering all of this evidence, it was not unreasonable for the
Minister’s delegate to determine that the applicant posed an unacceptable risk
to the public and was a present or future danger for Canadian society.
[46] In
Arinze, above, Mr. Justice Blais indeed clearly held that a
determination based on subsection 115(2) does not necessarily require that
the concerned party has committed violent acts:
[21] The
applicant submits that the nature of his convictions is insufficient to
classify him as a danger to the public, pursuant to subsection 115(2) of the
Act. He argues that these incidents are no more than “minor economic offences”
in which violence was not a factor and as such, they should not be used to
classify him as a danger to the public.
[22] I disagree
with the applicant’s reasoning regarding section 115 and the parallel he draws
between violent acts and the danger to the public classification. The wording
of section 115 does not include limitations to only particular types of
offences. It leaves the consideration of whether an individual constitutes a
danger to the public to the discretion of the Minister’s delegate. The
Minister’s delegate considered that violence was not used in the commission of
the applicant’s offences, but also acknowledged the number of crimes committed,
their continuing nature, and the serious effect such crimes can and do have on
the Canadian public. After weighing all the evidence before him, the Minister’s
delegate determined the applicant was a danger to the public based on the
nature of his crimes.
[47]
With regard to the applicant’s argument to the effect
that the Minister’s delegate erred in determining that he was dangerous since
he had completely disregarded these mental health problems, these problems
could certainly not excuse his crimes because otherwise he would have been
acquitted of the charges brought against him. And the applicant had been
convicted 16 times.
[48] Moreover,
in his particular case, his mental health problems increased his dangerousness
since, despite the assistance received, particularly in detention, he
made no effort so that his problems would be controlled thereafter.
[49] In my opinion, considering all of the foregoing, the Minister’s
delegate did not err in deciding that the applicant was dangerous, his
determination in that respect being reasonable.
Humanitarian considerations
[50] The
applicant claims that the documents examined by the Minister’s delegate do not
at all support his finding in regard to his family’s support. The applicant
claims that nothing in the evidence in the record indicates that he remained in
contact with his two sisters over the last 14 years, or that they would offer
him any support if he were to return to Guinea. Moreover,
according to the applicant, the Minister’s delegate did not take into account
the humanitarian considerations regarding his mental health problems.
[51] In
my opinion, the Minister’s delegate did not err in any way on the issue of
humanitarian considerations. In the document “Request for Minister’s Opinion –
L115(2)(a)”, which was given to the applicant in February 2005 and faxed
to his then-counsel in March 2005, it was stated that the evidence sent to the
Minister’s delegate indicated that the applicant had two sisters living in Guinea.
[52] Therefore, the applicant knew that this element would be
considered; if he wanted the fact that he had not maintained contact with his
sisters to be considered by the Minister’s delegate, he had to provide evidence
of it, which he did not do in time. The new evidence filed by the applicant on
that point cannot be taken into consideration in this proceeding, since it is
evidence subsequent to the Minister’s delegate’s decision (see Quintero v.
Minister of Citizenship and Immigration (February 7, 1995), IMM-3334-94 and
Asafov et al. v. Minister of Employment and Immigration (May 18, 1994),
IMM-7425-93).
[53] With regard to the applicant’s mental health problems, as
explained above, it was not necessary under the circumstances that they be
mentioned in the decision, although it would had been preferable.
[54] In
my opinion, the applicant did not succeed in establishing that it was
unreasonable for the Minister’s delegate to determine that the humanitarian and
compassionate circumstances in the record were not enough to justify a decision
in his favour.
Risk of return
[55] The applicant
claims that the Minister’s delegate erred in fact and in law in determining
that there would not be a serious possibility or reasonable chance that the
applicant would be persecuted under one or several grounds of the Convention if
he were to return to Guinea.
[56] According to the applicant, he was recognized as a Convention
refugee on June 18, 1992. The grounds for which he was recognized as a refugee
are still valid, i.e. the arbitrary arrests, the almost systematic physical
abuse suffered by those detained and the almost complete impunity enjoyed by
human rights violators in Guinea. Furthermore, the same regime, President
Lansana Conté’s regime, has been in power since 1984. All of this appears in Country
Reports on Human Rights Practices (at page 5 of the decision by the
Minister’s delegate):
. . . There was no
effective civilian control of the security forces. Some members committed
serious human rights abuses. . . . Civilian and military security forces beat
and otherwise abused civilians, often with impunity. Prison conditions were
inhuman and life threatening. Arbitrary arrest and prolonged pretrial detention
were problems. . . .
[57] The applicant claims that it is reasonable to believe that he would be
of particular interest to the Guinean authorities because he escaped from
prison,
because he has lived in Canada for more than 14 years and because he has been
recognized as a refugee by this country.
[58] However, the fact that the applicant had been considered at risk by
the Convention Refugee Determination Division Section in 1992 does not
establish that he was still at risk in 2005.
[59] In fact, there was no evidence filed with the Minister’s delegate, by
the Agency or by the applicant’s former counsel, that would suggest that there
was a serious possibility or reasonable chance that the applicant would be
persecuted for one of the grounds in the Convention or that he would be
subjected to a danger under section 97 of the Act if he were to return to his
country. Moreover, there is nothing to suggest that the applicant had a
criminal record in Guinea, that charges were brought against him in 1991 or
that the Guinean authorities would punish him for the crimes he committed in
Canada.
[60] It was the applicant’s responsibility to establish that he would still
be in danger in his country, which he did not do before the Minister’s delegate.
Conclusion
[61] In my opinion, none of the applicant’s arguments support a
finding that the Minister’s delegate (1) erred in law, (2) disregarded
procedural fairness or (3) based his decision on erroneous findings of fact
made in a perverse or capricious manner or without regard to the evidence
before him. Accordingly, this Court’s intervention is not warranted and the
application for judicial review is dismissed.
“Yvon Pinard”
OTTAWA,
ONTARIO
February
13, 2006
Certified
true translation
Kelley
A. Harvey, BCL, LLB
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