Date:20120720
Docket:
IMM-7453-11
Citation:
2012 FC 910
Ottawa, Ontario,
July 20, 2012
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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BEYAN DUNOH CLARKE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
In
2008, Mr. Beyan Dunoh Clarke, a refugee from Liberia, was convicted of
manslaughter after beating his girlfriend’s two-year-old son to death. He was
sentenced to 8 years’ imprisonment.
[2]
In
2011, the Minister of Citizenship and Immigration (by a delegate acting on his
behalf) found that Mr. Clarke was inadmissible to Canada based on serious
criminality, that he presented a danger to the public in Canada, and that he
should be removed to Liberia. The Minister’s decision weighed the risk that Mr.
Clarke presented to Canadians and the risk he faced in Liberia, as well as humanitarian and compassionate factors in Mr. Clarke’s favour.
[3]
Mr.
Clarke argues that the Minister’s decision was unreasonable because it
discounted the risk he faces in Liberia and the favourable humanitarian and
compassionate factors in his case. Mr. Clarke also submits that he was treated
unfairly because the Minister relied on evidence that had not been disclosed to
him. He asks me to quash the Minister’s decision.
[4]
I
can find no basis for overturning the Minister’s decision. The Minister carried
out a detailed analysis of the relevant evidence and balanced the applicable
factors. His conclusion was a defensible outcome based on the facts and the
law. In addition, the Minister did not treat Mr. Clarke unfairly in arriving at
his conclusion; he did not rely on extrinsic evidence.
[5]
The
issues are:
1. Was
the Minister’s analysis of the relevant evidence unreasonable?
2. Did
the Minister treat Mr. Clarke unfairly by relying on documents not disclosed to
him?
II. The Legal Framework
[6]
In
general, refugees cannot be returned to a place where they risk persecution or
other serious mistreatment (Immigration and Refugee Protection Act, [IRPA],
SC 2001, c 27, s 115(1) – see Annex for provisions cited). However, that
principle gives way when the person is inadmissible to Canada on grounds of
serious criminality, and represents a danger to the Canadian public (s 115(2)(a)).
[7]
In
deciding whether the person can be removed from Canada, the Minister must
balance the risk faced by the refugee and the danger to the Canadian public (Suresh
v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, at para
126). In order to respect the person’s rights under s 7 of the Canadian
Charter of Rights and Freedoms, the Minister must also assess whether, on
removal, the refugee will likely face a risk to life, liberty or security, and
balance that risk against the nature and severity of the person’s conduct, the
danger to Canadians, and the humanitarian and compassionate considerations in
the person’s favour (Suresh, at para 76-79; Ragupathy v Canada (Minister
of Citizenship and Immigration), 2006 FCA 151, at para 19).
[8]
In
effect, the question to be asked is whether it would be disproportionately
harsh to remove the person from Canada, considering the risk to Canadians, the
risk of harm facing the person, and the humanitarian and compassionate factors
in play. Obviously, there will almost always be some risk of persecution or
other harm facing the person if removed from Canada because the person will
have already demonstrated a well-founded fear of persecution or a substantial
risk of other serious harm in his or her country of origin. Therefore, evidence
of risk is not enough on its own to forestall removal if the person is
inadmissible on grounds of serious criminality. To remain in Canada, the risks and hardships of removal must outweigh the danger to Canadians.
III. The Minister’s
Decision
[9]
The
Minister concluded that Mr. Clarke was inadmissible to Canada on the basis of his manslaughter conviction. He went on to consider the circumstances of the
offence, as well as Mr. Clarke’s behaviour, including his previous and
subsequent conduct. He then considered the nature of the risk facing Mr. Clarke
if removed from Canada to Liberia, and the humanitarian and compassionate
factors in his favour.
(a) The
offence
[10]
Mr.
Clarke lived with his girlfriend, Ms. Georgia Swaray, and her two-year-old son,
Alfread. In February 2006, Mr. Clarke yelled at Alfread and beat him with a
belt. Alfread suffered bruises on his back and, the next day, was lethargic.
Later that month, contrary to Mr. Clarke’s instructions, Ms. Swaray fed Alfread
while Mr. Clarke was at work. When he arrived home, Mr. Clarke noticed that
Alfread had been fed and beat him again until he lay unresponsive on the floor.
Ms. Swaray carried Alfread to bed. She did not check on him when she left for
work the next morning. Mr. Clarke called her shortly after she left and asked
her to return home. When she arrived, Alfread lay dead in the bathtub. Mr.
Clarke did not call for assistance.
[11]
Alfread
died of brain trauma. His body was covered in bruises. He showed signs of
fasting and dehydration.
(b) Mr.
Clarke’s conduct
[12]
Mr.
Clarke had been charged with domestic abuse in 2005, but those charges were
stayed in 2007. It was alleged that he had beaten his then-girlfriend’s
nine-month-old child.
[13]
After
Mr. Clarke was arrested for manslaughter in relation to Alfread’s death, he was
released on bail. However, he breached the conditions of his release twice and
was convicted of violating his bail restrictions.
[14]
The
Correctional Service of Canada [CSC] assessed Mr. Clarke and found that he was
unremorseful for his conduct. He attempted to justify his actions, attributing
them, in part, to cultural factors.
[15]
However,
Mr. Clarke wrote a letter of apology to the victim’s family for his behaviour. His
family, friends and church support him. He completed a number of programs in
prison, including one relating to prevention of violence. Still, CSC thought he
presented a moderate-to-high risk for re-offending, and a moderate risk to public
safety.
[16]
The
Minister reviewed Mr. Clarke’s entire record, including all of the submissions
that had been made on his behalf. He found the offence of manslaughter to be
serious, and expressed strong disapproval of Mr. Clarke’s behaviour. Regarding
Mr. Clarke’s suggestion that cultural differences were at play, the Minister
cited the sentencing judge’s comments that Mr. Clarke had crossed the line from
discipline to abuse “no matter what society you belong to”. The victims of Mr.
Clarke’s crime – Ms. Swaray and her family – had suffered greatly.
[17]
The
Minister concluded that Mr. Clarke continued to minimize the seriousness of his
conduct, and that he showed a “grave” risk of re-offending.
(c) The
Risk to Mr. Clarke in Liberia
[18]
The
Minister acknowledged that the human rights situation in Liberia is poor. Mr. Clarke pointed out that he has nowhere to stay in Liberia and has lost contact
with his family there.
[19]
Mr.
Clarke and his family left Liberia in 1999 and moved to Ghana where they lived in a refugee camp. His father had been an opposition politician in Liberia, so the family feared political persecution, as well as ethnic persecution as
members of the Mandingo minority.
[20]
However,
things have gotten better in Liberia, including reforms in justice and
security, human rights, healthcare and education. Still, challenges remain in
policing, the administration of justice, and corrections. Overall, however,
things have improved considerably since Mr. Clarke left Liberia. The Minister concluded that there was no serious possibility that Mr. Clarke would face
persecution if removed from Canada.
(d) Humanitarian
and Compassionate Considerations
[21]
The
Minister noted that Mr. Clarke had achieved a Grade 12 education in Canada, and had been gainfully employed at the time of his offence. His father and
stepmother are stalwart supporters.
[22]
Mr.
Clarke has two daughters, one with Ms. Swaray and one with another woman.
However, he does not maintain a relationship with these children or their
mothers.
[23]
The
Minister concluded that Mr. Clarke’s degree of establishment in Canada was not substantial, and that his removal from Canada would not cause him significant
hardship.
(e) Conclusion
[24]
The
Minister concluded that Mr. Clarke was not at risk of persecution or serious
mistreatment in Liberia. Because he represented a substantial danger to the
Canadian public, he should be removed. The humanitarian and compassionate
factors in his favour did not outweigh that danger. Therefore, Mr. Clarke could
be removed from Canada without violating his rights under s 7 of the Charter.
V. Issue One – Was the
Minister’s analysis of the relevant evidence unreasonable?
[25]
Mr.
Clarke argues that the Minister focussed too much on the salacious aspects of
his crime and failed to address the real issue: the danger he posed to
Canadians in the future. He had no previous convictions, yet the Minister
improperly alluded to his “previous dealings with the law,” namely, his earlier
dropped charges. This caused the Minister to give too much weight to the danger
Mr. Clarke posed to Canadians and too little weight to the humanitarian and
compassionate grounds in his favour. In fact, while the Minister found that Mr.
Clarke posed a “grave” risk of re-offending, the evidence did not support that
conclusion. The fact that the offence was serious did not mean the risk of
re-offending was grave.
[26]
As
mentioned, the question is whether the person should be removed from Canada notwithstanding the risk of mistreatment he or she may face in the country of
origin. In these cases, it can be assumed that there will be some risk to the
person because he or she will have already established a case for refugee
protection in Canada. Therefore, the Minister must consider the magnitude of
that risk, as well as the hardships that removal would create, and balance
those considerations against the risk to Canadians if the person were permitted
to remain here. A person who has committed a serious crime and presents a
danger to Canadians should be removed unless doing so would be
disproportionately harsh considering the risks and hardships the person would
face on removal.
[27]
The
Minister found that Mr. Clarke would, in fact, not be at risk if he returned to
Liberia. He need not have gone that far – the issue is the degree of risk not
whether there is no risk. However, I can find no error in the Minister’s
analysis of the evidence relating to the risk to Mr. Clarke in Liberia.
[28]
Mr.
Clarke points out that hundreds of thousands of people have been killed in Liberia, whereas he has only killed one Canadian. Therefore, on balance, he should be
allowed to stay in Canada. He faces a greater risk in Liberia than he presents to Canada.
[29]
I
do not find Mr. Clarke’s submission on this point to be persuasive. First, the
question is not what has happened in Liberia in the past. (The civil war ended
in 2003.) The Minister must assess the current situation and decide whether Mr.
Clarke faces a risk of serious mistreatment in the future. Here, the Minister
concluded that the current risk to Mr. Clarke is low, and I see nothing
unreasonable in the Minister’s weighing of the relevant evidence on that issue or
his conclusion.
[30]
Second,
the question before the Minister cannot be answered by a comparative body
count. The issue is the nature and magnitude of the risk Mr. Clarke faces on
his return, as compared to the risk he presents to Canadians. I accept, as did
the Minister, that Mr. Clarke may encounter difficulties in Liberia. But he has killed a child here, and presents a risk of doing so again. Those are the
factors that must be balanced, not the number of victims of the civil war in Liberia as compared to the number of Mr. Clarke’s victims.
[31]
Mr.
Clarke also argues that the Minister was not entitled to take into account the
previous charge against him relating to another assault on an infant because
that charge was stayed. While the Minister accepted that he could not take
account of charges that did not result in a conviction, he noted that Mr.
Clarke had had “previous dealings with the law.”
[32]
It
is true that the Minister cannot take into account dropped charges. However, he
can consider the facts giving rise to those charges because they are relevant
to the danger the person poses to Canadians (Thuraisingam v Canada (Minister of Citizenship and Immigration), 2004 FC 607, at para 35). Here, while
the Minister noted Mr. Clarke’s “previous dealings with the law” – admittedly
an indirect reference to the dropped charges – he relied on the facts and
circumstances surrounding those allegations, not the mere fact that Mr. Clarke
had been charged. While it might have been better not to use the phrase
“previous dealings with the law,” the Minister clearly relied on the underlying
facts, strikingly similar to the circumstances giving rise to Mr. Clarke’s
conviction, as he was entitled to do. That evidence was relevant to the issue
of danger to Canadians.
[33]
Regarding
the Minister’s use of the word “grave” to describe Mr. Clarke’s likelihood of
re-offending, I note that the CSC’s assessment used the words
“moderate-to-high”. The other evidence showed that Mr. Clarke had beaten a
child before, lacked remorse, minimized the severity of his crime, and failed
to abide by bail conditions. In the circumstances, I cannot conclude that the
Minister’s use of the term “grave” to describe Mr. Clark’s likelihood of
committing another serious crime was out of keeping with that evidence.
[34]
Finally,
Mr. Clarke contends that the Minister gave too little consideration to the
humanitarian and compassionate consequences of his removal. In particular, the
Minister did not take into account the impact on Mr. Clarke’s family.
[35]
The
Minister considered a letter from Mr. Clarke stating that his father and
stepmother were wonderful parents. The Minister also mentioned the other family
members – Mr. Clarke’s two sisters and brother. The only other evidence, which
the Minister did not cite, was a letter from Mr. Clarke’s father in which he
described Mr. Clarke’s efforts at rehabilitation, and mentioned his two
Canadian-born children.
[36]
The
evidence before the Minister of humanitarian and compassionate considerations
in Mr. Clarke’s favour was obviously scant. In the circumstances, I cannot
fault the Minister’s analysis of that evidence. The Minister cited the main
evidence. His failure to mention the letter from Mr. Clarke’s father was
inconsequential in the circumstances.
[37]
Overall,
therefore, I cannot conclude that the Minister’s analysis of the relevant
factors – risk, danger, and hardship – was unreasonable given the evidence
before him. His conclusion fell within the range of defensible outcomes based
on the facts and the law.
VI. Issue Two – Did the
Minister treat Mr. Clarke unfairly by relying on documents not disclosed to
him?
[38]
Mr.
Clarke submits that the Minister relied on two documents of which he was
unaware. The first was a “Section 44(1) Highlights Report”. The second was a
“CBSA A44 Narrative Report”.
[39]
In
fact, it appears, and Mr. Clarke concedes, that the two documents are the same,
but referred to by different titles. Further, the document is contained in the
Certified Tribunal Record, as well as the Applicant’s Record. Therefore, there
appears to have been no lack of disclosure, and no unfairness to Mr. Clarke.
VII. Conclusion and
Disposition
[40]
I
find that the Minister’s decision was not unreasonable and that it was not
arrived at unfairly. The Minister considered the relevant evidence and the appropriate
factors and rendered a defensible decision. In doing so, he did not rely on
evidence undisclosed to Mr. Clarke. Therefore, I must dismiss this application
for judicial review.
[41]
Mr.
Clarke had sought an extension of time to file his application for leave and
judicial review, and no express order has previously been issued in respect of
that request. In the circumstances. I will grant the extension of time.
[42]
Mr.
Clarke proposed the following questions for certification:
1.
Does
a Minister’s delegate who issues a danger opinion under Immigration and
Refugee Protection Act section 115(2) breach the duty not to consider
dropped charges by taking into account the fact that the person concerned had
previous dealings with the law?
2.
Is
a Minister’s delegate who issues a danger opinion under Immigration and
Refugee Protection Act section 115(2) entitled to make a finding of a grave
risk of reoffending when there is no such finding by any of the authors of the
correctional reports or the sentencing judge?
3.
Should
a Minister’s delegate, when considering a danger opinion under Immigration
and Refugee Protection Act section 115(2), treat the risk to the person
concerned abroad if the person is removed the same as or differently from the
risk to Canada if the person is allowed to stay?
4.
Does
a Minister’s delegate who issues a danger opinion under Immigration and
Refugee Protection Act section 115(2) have a duty to consider explicitly
the hardship to the family of the person concerned on removal where the
evidence is that the family is close knit and mutually supportive?
5.
Is
the duty of fairness breached by non-disclosure to the applicant of a document
the Canada Border Services Agency considered when deciding whether to seek a
danger opinion from the Minister of Citizenship and Immigration under Immigration
and Refugee Protection Act 115(2) if that document was not considered by
the Minister’s delegate in issuing the danger opinion?
[43]
In
my view, none of these questions should be certified. Question 1 does not arise
in view of my conclusion that the Minister considered the facts and
circumstances surrounding the dropped charge, not the charge per se.
Question 2 need not be stated given that the Minister’s conclusion was
supported by the evidence. Question 3 relates to the balancing of risks, an
exercise that is well-established in the case law. This is not a case in which
Question 4 should be stated because there was little evidence of hardship to
the family before the Minister. Because there was no lack of disclosure, Question
5 does not arise.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
request for an extension of time is granted;
2.
The
application for judicial review is dismissed; and
3.
No
serious question of general importance will be stated.
“James W. O’Reilly”
Annex
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Immigration
and Refugee Protection Act [IRPA], SC 2001, c 27
Principle
of Non-refoulement
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.
(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 Delegate, a danger to the public in Canada;
Canadian
Charter of Rights and Freedoms
PART I OF
THE CONSTITUTION ACT, 1982
Life, liberty and security of person
7. Everyone has the right to life, liberty
and security of the person and the right not to be deprived thereof except in accordance with the principles of
fundamental justice.
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Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
Principe du non-refoulement
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.
(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;
Charte
canadienne des droits et libertés
PARTIE I DE
LA LOI CONSTITUTIONNELLE DE 1982
Vie, liberté et sécurité
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa
personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les
principes de justice fondamentale.
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