Date: 20100401
Docket: IMM-4382-09
Citation: 2010 FC 354
Toronto, Ontario, April 1, 2010
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
ANUAR AHMED MAIO
(aka ANWAR AHMED MAIO)
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant Maio is an adult male originally from Somalia who
immigrated to Canada when he was
about five years of age and left in the custody of an aunt. He gained permanent
residence in Canada and remained in Canada subject to the
deportation order at issue here. Since living in Canada, the
Applicant has left his aunt’s residence, his mother and siblings apparently reside in
the United Kingdom, his father cannot be located and is said to be in Ethiopia. The Applicant has
achieved only Grade 11 education, has no apparent employable skills or training
and has led an itinerant life. The government now wishes to have the Applicant
sent back to Somalia under the provisions of
section 115(2) of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27, as amended (IRPA). A decision in that respect dated July 23, 2009 is the
subject of this judicial review application.
[2]
For
the reason that follow the application is dismissed, no question will be
certified, no costs will be awarded.
[3]
The
Applicant has committed a number of offences in Canada, including
armed robbery, and was incarcerated for a period of time. He was released in
August 2007 under strict conditions as to parole. He violated these conditions
and was placed back in custody once he could be found. He was again released
from custody then placed back in custody pending the determination of this
application. Given this history I place no weight upon Applicant Counsel’s argument
that he has not committed any serious offences since his release in August
2007.
[4]
The
Applicant is to be returned to Somalia. Originally it was to Mogadishu however the
Minister has agreed to send the Applicant to the semi-autonomous region of
Puntland where, it appears, that the clan to which the Applicant belongs
resides. As a result, the Applicant’s Counsel no longer pressed arguments as to
return to Mogadishu as opposed
to Puntland.
[5]
Applicant’s
Counsel raised two main arguments in seeking a favourable judicial review of
the decision:
a. Did the
Minister’s Delegate who made the decision adequately and properly assess the
risk faced by the Applicant were he to be returned to Somalia?
b. Were the
reasons adequate and, in particular, as to the manner in which humanitarian and
compassionate considerations were made?
[6]
The
nature of an assessment to be made in respect of section 115(2) of IRPA has
been the subject of consideration in this Court and the Federal Court of
Appeal. Section 115 states:
|
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.
Exceptions
(2) Subsection (1) does not apply in the case of a person
(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
(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.
Removal of refugee
(3) A person, after a determination under paragraph 101(1)(e) that the
person’s claim is ineligible, is to be sent to the country from which the
person came to Canada, but may be sent to another country if that country is
designated under subsection 102(1) or if the country from which the person
came to Canada has rejected their claim for refugee protection.
|
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.
Exclusion
(2) Le paragraphe (1) ne s’applique pas à l’interdit de territoire :
a) pour
grande criminalité qui, selon le ministre, constitue un danger pour le public
au Canada;
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.
Renvoi de réfugié
(3) Une personne ne peut, après prononcé d’irrecevabilité au titre de
l’alinéa 101(1)e), être renvoyée que vers le pays d’où elle est arrivée au
Canada sauf si le pays vers lequel elle sera renvoyée a été désigné au titre
du paragraphe 102(1) ou que sa demande d’asile a été rejetée dans le pays
d’où elle est arrivée au Canada.
|
[7]
Consideration
in respect of section 115(2) was given in Ragupathy v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 151 by the Federal Court of Appeal,
per Evans J.A. who wrote at paragraph 18:
18 If
the delegate is of the opinion that the presence of the protected person does
not present a danger to the public, that is the end of the subsection 115(2)
inquiry. He or she does not fall within the exception to the prohibition in
subsection 115(1) against the refoulement of protected persons and may not be
deported. If, on the other hand, the delegate is of the opinion that the person
is a danger to the public, the delegate must then assess whether, and to what
extent, the person would be at risk of persecution, torture or other inhuman
punishment or treatment if he was removed. At this stage, the delegate must
determine how much of a danger the person's continuing presence presents, in
order to balance the risk and, apparently, other humanitarian and compassionate
circumstances, against the magnitude of the danger to the public if he remains.
[8]
A
comprehensive summary was provided by the Federal Court of Appeal, per Trudel
J.A., in Nagalingam v. Canada (Minister of Citizenship and Immigration), 2008 FCA 153 at
paragraph 44:
44 By
way of summary then, the principles applicable to a delegate's decision under
paragraph 115(2)(b) of the Act and the steps leading to that decision are as
follows:
(1) A protected person or a Convention refugee
benefits from the principle of non-refoulement recognized by subsection 115(1)
of the Act, unless the exception provided by paragraph 115(2)(b) applies;
(2) For paragraph 115(2)(b) to apply, the individual
must be inadmissible on grounds of security (section 34 of the Act), violating
human or international rights (section 35 of the Act) or organized criminality
(section 37 of the Act);
(3) If the individual is inadmissible on such
grounds, the delegate must determine whether 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;
(4) Once such a determination is made, the delegate
must proceed to a section 7 of the Charter analysis. To this end, the Delegate
must assess whether the individual, if removed to his country of origin, will
personally face a risk to life, security or liberty, on a balance of
probabilities. This assessment must be made contemporaneously; the Convention
refugee or protected person cannot rely on his or her status to trigger the
application of section 7 of the Charter (Suresh, supra at paragraph 127).
(5) Continuing his analysis, the Delegate must
balance the nature and severity of the acts committed or of the danger to the
security of Canada against the degree of risk, as well as against any other
humanitarian and compassionate considerations (Suresh, supra at paragraphs
76-79; Ragupathy, supra at paragraph 19).
[9]
Recently
Justice Russell of this Court considered the provisions of section 115 in Jama
v. Canada (Minister of
Citizenship and Immigration), 2009 FC 781. At paragraph 85 he stated that
the jurisprudence made it clear that the onus is on the Applicant to establish
risk and that, in so doing, the Applicant cannot simply rely on his status as a
Convention refugee. At paragraphs 88 to 92 Russell J. considered how, in the
context of section 115, consideration is to be given to risk and humanitarian
and compassionate (H&C) considerations. At paragraph 91 he concluded:
91
In other words, the purpose of section 115(2)(a) and the balancing exercise
required by the jurisprudence is not to determine whether there are sufficient
H&C considerations to exempt the Applicant from a requirement of the Act. The
objective is to determine whether the risk that the Applicant poses to the
Canadian public outweighs the risks he faces if returned and "other
humanitarian and compassionate circumstances." The risk to the Applicant
is addressed separately in the weighing process and "other humanitarian
and compassionate factors" cannot, in my view, mean anything other than
humanitarian and compassionate factors "other" than risk.
[10]
In
taking these principles into consideration, I conclude that the Applicant bears
the onus in establishing risk to himself or herself, and that humanitarian and
compassionate considerations are not a separate ground for determination as to
exception from removal but are part of the overall assessment of risk. The
decision of the Minister’s Delegate in this respect is to be assessed on the
basis of reasonableness.
[11]
In
the present situation I find that the Minister’s Delegate’s reasons, comprising
twenty pages, thoroughly examined all relevant factors, including risk and
humanitarian and compassionate considerations and balanced those factors
against the danger that the Applicant poses to society. The consideration given
to all relevant factors was appropriate so as to allow the Minister’s Delegate
to conclude, at page 20 of her reasons:
After
fully considering all facets of this case, including the humanitarian aspects,
and an assessment of the risk Mr. Maio might face if returned to Somalia, and
the need to protect Canadian society, I find that Mr. Maio may be deported
despite subsection 115(1), since removal to Somalia would not violate his
rights under section 7 of the Charter. In other words, upon consideration of
all the factors noted above, I am of the opinion that the interests of Canadian
society in removing a danger to the public outweigh the potential general
country risks that Mr. Maio would face if returned to Somalia.
[12]
On
the first of the issues raised by the Applicant’s Counsel therefore I find that
the Minister’s Delegate made an adequate assessment of the relevant factors.
[13]
The second
issue raised by Applicant’s Counsel was the adequacy of the reasons. In that
regard Counsel relies on a decision of Pinard J. of this Court in Dinta v. Canada (Minister of
Citizenship and Immigration) 2003 FCT 184. In that decision however, it was pointed
out that there was no separate decision as such, the Minister’s Delegate simply
adopted a Request for Opinion and a Ministerial Opinion Request. Apparently the
Delegate said that humanitarian and compassionate considerations were taken
into account when in fact neither the Request nor the Opinion made any
reference to them. It was appropriate, therefore, for Pinard J. to find the
reasons to be inadequate.
[14]
Here
we have a twenty page decision with consideration given to a number of matters
under separate titles as well as an overview at the beginning and summary at
the end.
[15]
Undoubtedly
there is an obligation to provide reasons. The Federal Court of Appeal in VIA Rail Canada Inc. v. National
Transportation Agency (C.A.), [2001] 2 F.C. 25, per Sexton J.A.
set out those requirements at paragraph 22:
22 The
obligation to provide adequate reasons is not satisfied by merely reciting the
submissions and evidence of the parties and stating a conclusion. Rather,
the decision maker must set out its findings of fact and the principal evidence
upon which those findings were based. The reasons must address the major points
in issue. The reasoning process followed by the decision maker must be set out
and must reflect consideration of the main relevant factors.
[16]
However
this was not an invitation to have Counsel hold up every set of reasons to
minute scrutiny in the hopes of finding some slip or omission the result of
which, it will be argued, invalidate the result. The Federal Court of Appeal in
Ragupathy v. Canada (Minister of
Citizenship and Immigration), 2000 FCA 151 per Evans J.A. wrote at paragraph
15:
15 Although trite, it is also important
to emphasize that a reviewing court should be realistic in determining if a
tribunal's reasons meet the legal standard of adequacy. Reasons should be read
in their entirety, not parsed closely, clause by clause, for possible errors or
omissions; they should be read with a view to understanding, not to puzzling
over every possible inconsistency, ambiguity or infelicity of expression.
[17]
I
reviewed the issue as to adequacy of reasons in Rachewiski v. Canada (Minister of
Citizenship and Immigration) 2010 FC 244 and concluded at paragraph 24:
24 The general principles
set out in these decisions are appropriate, however, much depends on knowing
what the actual decision that they were dealing with said. The present decision
for the first two pages simply sets out information in the context of a form;
the next two pages itemize in detail the various factors taken into
consideration by the Officer in point form. The last two pages plus a final
paragraph set out a narrative of the Applicants' circumstances and arguments
raised together with the conclusions reached by the Officer. I am satisfied
that these reasons taken as a whole are sufficiently intelligible and
transparent and justified so as to enable the Applicants to understand what was
considered by the Officer and the conclusions reached in respect of the
relevant issues. One does not expect and the Officer should not be put to a
higher standard than that exhibited by these reasons. One should not expect,
for instance, a classic response to a law school examination where a candidate
is expected to follow a formula such as - on one hand - on the other hand - I have
determined ...because ...
[18]
I
find that the reasons provided in the present case to be fully adequate. Any
reasonable person can read and understand what was considered, the conclusion
reached, and why.
[19]
As a
subset of Applicant’s Counsel’s argument on this point, it was argued that,
notwithstanding that a “previous lawyer” acting for the Applicant had made
submissions in respect of humanitarian and compassionate factors that consisted
simply of providing a number of the usual country reports and saying only:
“Furthermore,
the humanitarian and compassionate factors in this case are that the
documentary evidence concerning the present situation in Somalia in overwhelmingly clear.”
somehow the Minister’s Delegate was obliged to
comb through all such documents in the hope of finding some passages that
support the Applicant’s position. I do not accept this argument. The Applicant
has an onus, through his lawyer or otherwise, to do more than simply say here
are some documents, find something that supports my case.
[20]
In
the reasons provided, the Minister’s Delegate did endeavor to set out the
Applicant’s personal circumstances and the situation in Somalia and to strike a
balance. It was reasonable for the Minister’s Delegate to conclude, given the
submissions:
Counsel
has written that the humanitarian and compassionate factors in this case are
that the documentary evidence concerning the present situation in Somalia is overwhelmingly clear and of his young
age at the time he entered Canada, which I noted above. After careful
consideration of all the information before me, I find there are insufficient
factors to warrant allowing Mr. Maio to remain in Canada on humanitarian and compassionate
grounds.
[21]
I
conclude that no sufficient grounds have been established so as to set aside
the decision at issue. No party has requested certification and I find no
reason to do so.
JUDGMENT
FOR THE
REASONS PROVIDED:
THIS COURT
ORDERS AND ADJUDGES that:
1.
The
application is dismissed;
2.
There
is no question for certification;
3.
There
is no order as to costs.
“Roger
T. Hughes”
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