Date: 20090122
Docket: IMM-5102-08
Citation: 2009
FC 54
BETWEEN:
DEBIS ALEXANDER BARRERA
MORALES
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX
J.
Introduction
[1]
On Thursday,
January 8, 2009, I granted a stay of the Applicant’s removal to Nicaragua scheduled for Monday, January
12, 2009.The Applicant is a 32 year old citizen of that country. These are my
reasons for issuing the stay.
[2]
He came to
Canada with his family in September
1996 at the age of 14. They fled because they were in opposition to the Sandinista
Government of Daniel Ortega. He, his parents and two siblings were recognized
as Convention Refugees on January 22, 1997. He is not a permanent
resident of Canada because of his mother’s and
his own criminality. He has been in a common law relationship for several
years; the couple have three young children aged 4 years, 2 ½ years and 5
months old.
[3]
The
underlying application to which the Applicant’s stay application is grafted is
the September 8, 2008 decision (served on the Applicant November 5,
2008) of the Minister’s Delegate, Julie Stock (the Delegate), who pursuant to
paragraph 115(2)(a) of the Immigration and Refugee Protection Act (the Act),
determined he constituted a danger to the public in Canada, recognizing,
however, that an individual convicted of a serious criminal offence is not, on
its own, a sufficient foundation for a danger opinion as well as applying the
jurisprudence of this Court the expression “danger to the public” found in
paragraph 115(2)(a) of the Act means a present or future danger.
She added: “Thus the circumstances of each case must be examined to determine
whether there is sufficient evidence on which to formulate the opinion that the
individual is a potential re-offender whose presence in Canada poses an unacceptable risk to
the public.”
[4]
Because he
is a Convention Refugee, if he is not determined to be a danger to the public
in Canada, the Applicant cannot be sent to Nicaragua and is entitled to remain in Canada.
[5]
Paragraph
115 of the Act reads:
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Immigration and Refugee Protection
Act
( 2001, c. 27 )
Protection
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.
[Emphasis mine.]
|
|
Loi sur l'immigration et la protection
des réfugiés ( 2001, ch. 27 )
Principe
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.
[Je souligne.]
|
[6]
Counsel
for the Applicant did not argue before me the Delegate had erred in identifying
the proper test to assess danger to the public nor did he argue that she erred
in the required process which she had to undertake to reach a decision namely:
·
First, a
determination that the Applicant was inadmissible on grounds of serious
criminality under paragraph 36(1)(a) of the Act (which was conceded by
his counsel);
·
Second, an
assessment of the danger the Applicant represents to the public in Canada;
·
Third, an
assessment of the risk to the Applicant if returned to Nicaragua;
·
Fourth,
balancing danger to the public in Canada
and risk to the Applicant of return to Nicaragua; and,
·
Fifth, an
assessment of humanitarian and compassionate considerations.
[7]
The
Applicant, through his counsel, filed written submissions to the Delegate. These
submissions focussed on his (1) rehabilitation; (2) the best interests of the
children; (3) risk of return to Nicaragua
given Daniel Ortega had recently been elected as President of that country; and,
(4) other H&C factors. The delegate also referred to the submissions made
by the Applicant’s previous counsel which were filed in support of his first
PRRA application.
[8]
In oral
argument before me his counsel concentrated on two areas.
[9]
First, he
argued, while the Delegate correctly framed the danger test as meaning present or
future danger, she did not properly assess his future risk because she
concentrated her analysis on his past crimes and discounted his rehabilitation.
He referred to four facts to substantiate his submission:
- The Applicant’s last conviction was in
early 2005 and arose from a November 2004 incident; he received
a 75 day sentence but only served 15 days having been detained 60 days in
pre-trial custody.
- The March 10, 2006 letter from his
supervisor at the Toronto Bail Program into which he was admitted
on August 26, 2005. That letter said the Applicant had been compliant
with his bail conditions and had found gainful employment.
- The statement made by the presiding
member at his February 17, 2005 detention review. The presiding
member expressed the view the Crown had not established he was a danger to
the public in Canada but he was a flight
risk.
- The Applicant’s testimony at that
same detention review hearing where he admitted his mistakes and wanted to
stay out of trouble which is why he had moved away from Montreal where his
family live to Toronto with his common law spouse (see Applicant’s record,
page 102).
[10]
Second, he
argued the Delegate’s assessment of the humanitarian and compassionate factors
was deficient particularly as to the impact the Applicant’s removal would have
on his common law spouse whose mental health is fragile as she is suffering
from post partum depression with psychotic features which led to the
intervention of the Catholic Children’s Aid Society of Toronto (CAS) who was
concerned she could not be left alone with the children. Another factor was the
fact the Applicant was the sole provider for the family and played an important
role in the children’s lives.
[11]
Counsel
for the Applicant was particularly critical of the Delegate’s finding where she
wrote:
There are humanitarian factors in this
case, however
in my view, they cannot or do not outweigh or negate the danger opinion.
I recognize and have read the decision in Legault v. Canada (M.C.I.)
[2001] 3 F.C. 277 which supports the position that except in very few cases,
the children’s best interests must prevail. I am of the view that this would be
one of the very few cases based on or given Mr. Barrera Morales, history of
violent and volatile behaviour and serious criminal convictions which render
him a present and future danger to Canadian society. [Emphasis mine.]
The Delegate’s opinion
[12]
The
Delegate began her opinion by pointing out paragraph 115(2)(a) of the Act was
implemented by Canada to conform with Article 35(2) of the Geneva Convention on
Refugees which in her words “permits the host country to remove a refugee who
has been convicted of a particularly serious crime and who constitutes a danger
to the country”.
[13]
She then
outlined the Applicant’s immigration history in Canada and summarized his convictions:
(1) On January 17, 2002, in Montreal: (1) robbery and
conspiracy to commit robbery (sentenced to nine months imprisonment, concurrent
with two years probation); (2) assault causing bodily harm (sentenced to six
months imprisonment); (3) theft under $5000 x 3 counts (sentenced to six months
imprisonment, concurrent); (4) driving while impaired (sentenced to 15 days
imprisonment, concurrent); (5) mischief over $5000 x 2 counts (sentenced to
three months imprisonment, concurrent); and, (6) possession of property
obtained by crime (sentenced to six months imprisonment, concurrent);
(2) On February 12, 2002, in Montreal: (1) assault of
a police officer; (2) obstruction of a peace officer; and (3) uttering threats
(sentenced to five days imprisonment for each conviction); and,
(3) On January 28, 2005, in Toronto: break, enter and commit theft
(sentenced to 15 days imprisonment taking into account 60 days pre-trial
detention).
[14]
Under the
heading “Danger information”, the Delegate first wrote:
Mr. Barrera Morales has
accumulated 14 convictions since 2002, many which are for serious criminality
such as robbery, assault bodily harm, break and enter, assault police officer. Although
there are no sentencing reports on record, during interviews with CBSA
officials in March 2005, Mr. Barrera Morales stated that he had problems with
the law years ago in Montreal. He had no recollection of
many events such as the circumstances leading to the convictions named above
and although he pled guilty, he states he did not commit several of the crimes. [Emphasis mine.]
[15]
The
Delegate then went on to analyse the circumstances out of which the Applicant
committed the crimes: (1) the robbery and conspiracy arose on November 2001
when the Applicant and two other youths decided to rob a teenage male of his
money. The remaining convictions resulted from various incidents in September
and October of 2001. The Delegate wrote: “Mr. Barrera stated that he also had
no recollection of these events”; (2) the convictions in January 2002 resulted
from one incident on December 24, 2001 in attempting to steal a car when the
owner appeared. The Applicant, who was drunk at the time, got away after he
injured the owner who according to the police was “seriously hurt”; and, (3)
the January 2005 conviction which did not involve any violence.
[16]
Under the
heading “Danger Assessment”, the Delegate adopted the present or future danger
test to determine whether he was a danger to the public in Canada with future
danger focussed on his “being a potential re-offender whose presence in Canada
poses an unacceptable risk to the public”.
[17]
She then
wrote:
Mr. Barrera Morales’s criminal
convictions are severe and do not demonstrate any regard for values of Canadian
society. The robbery of a car, assaulting an innocent person, driving while
impaired, are all acts which could reasonably lead to harm if not death to
unassuming members of the Canadian public going about their daily affairs. The
use of alcohol cannot be used as an excuse to lessen the severity of such
actions and this was not a crime which happened in isolation. Mr. Barrera
Morales went on to commit additional crimes. The fact that he may or may not be
cognizant of the damage he could do does not excuse or justify his actions.
Although it is only [previous] Counsel’s
opinion that Mr. Barrera Morales does not have the intellectual ability to
comprehend the severity of his actions, he has on each conviction been found to
be competent and responsible for his actions. If anything, the suggestion that
Mr. Morales does not comprehend the severity of his actions argues for
increased caution, as he might revert to criminal acts without appreciating the
severity of harm that could be rendered to innocent persons.
Further, I have considered the claims
that Mr. Morales has put his criminal life behind him and I am not convinced.
He has engaged in numerous criminal acts over time of a violent nature. Even in
a recent place of employment he forced open a door to steal from his employer,
violating a position of trust. [Emphasis mine.]
[18]
The
Delegate then analyzed the September 16, 2006 psychological
assessment of the Applicant, by Dr. Oren Gozlan (Applicant’s Motion
Record, pages 124 to 128).
[19]
The
Delegate then expressed her conclusion on danger:
Pursuant to paragraph 115(2)(a) of IRPA,
it is incumbent upon me to assess whether Mr. Barrera Morales constitutes “a
danger to the public” which has been interpreted to mean “a present or future
danger to the public”. Thus, I am required to turn my mind to the particular
circumstances of Mr. Barrera Morales’ case in order to determine whether there
is sufficient evidence on which to formulate the opinion that he is a potential
re-offender, whose presence in Canada poses an unacceptable risk to
the public.
I have a duty to look forward in my
determination of the likelihood Mr. Barrera Morales re-offending or being an
acceptable risk and I am basing my opinion on all the evidence before me. He
has committed some frightening acts upon innocent people. The use of a firearm
to rob someone, driving while severely impaired, robbery are all very serious
and dangerous acts of violence that could have resulted in much more severe
consequences than what actually occurred. I am not satisfied with Mr.
Barrera Morale’s explanation that he cannot remember any of the exact
circumstances, rather I find this a convenient out for him to not recognize or
be responsible for his actions. I am also not satisfied given his pas criminal
convictions and behaviour that this is unlikely to reoccur in the future. It is
my opinion that Mr. Barrera Morales presents a danger now and in the future to
the public in Canada. [Emphasis mine.]
[20]
The
Delegate next embarked upon her analysis of his risk of return to Nicaragua. She acknowledged his
counsel’s 2006 submissions on the November 2006 election of Daniel Ortega as once
again President of Nicaragua. The Delegate was aware why the family fled
Nicaragua in 1994 was fear of the Sandinista army because of the disclosure
by his parents of confidential information on the human rights violations by
that organization coupled with his parents’ defection as members of the
Sandinista party arising out to their growing dissatisfaction with the policies
and activities of that party then in power.
[21]
The
Delegate on risk of return stated first:
There is nothing in the record
before me that would suggest that their names would be remembered or that
they would be remembered in any way that could place Mr. Barrera Morales at
risk in any fashion. Mr. Barrera Morales would be returning to Nicaragua as
a young adult and I am satisfied there is nothing that could or would draw
attention to him any more than any other adult residing in Nicaragua,
especially based on any participation that his parents may have been involved
in so long ago.
[22]
She then
quoted extensively from what she labelled as “the most current” US DOS released
on March 8, 2007 for the 2006 year in support of her conclusion the
Applicant would not be at risk if returned to Nicaragua.
[23]
Based on
the two above findings of danger and no risk of return, the Delegate wrote on
balancing as follows:
Mr. Barrera Morales has committed very
serious criminal offences. I am not satisfied that he faces any of the risks
listed under s. 97 of IRPA should he be returned to Nicaragua, while I find
there is a pressing need to protect Canadian society from Mr. Barrera Morales
who is a person I have found likely to re-offend. Thus, I find on balance, that
Mr. Barrera Morales can be refouled to Nicaragua. [Emphasis mine.]
[24]
For the
final stage of her analysis, the Delegate examined the humanitarian and
compassionate considerations applicable to this case. She analysed counsel for
the Applicant’s 2006 submissions which focused on the special needs of the
Applicant’s common law spouse and the documentary evidence which supported that
issue as well as the Applicant’s evidence that he has turned the page. Her
conclusions were:
Undoubtedly the removal of Mr. Barrera
Morales from Canada would negatively impact on
his common law wife and his children. Letters on record indicate that he is a
good and attentive father and that it would be better if he was not separated
from his children. I am sensitive and alert to these humanitarian
considerations however given his criminal convictions, I am not certain
of his being an exemplary “role model” for his son. I think it is clear he
would be missed by his entire family, as evidenced as well by a letter of close
support from his brother.
I also acknowledge the hardship that Mr.
Barrera Morales would face in relocating to Nicaragua given his lack of formal education and
vocation training. I recognize that having left the country at such a young age
he will not be familiar or likely remember the general living environment and
will find the transition difficult especially without familial support. I
acknowledge the difficulty that he is likely to experience due to his forced
separation from his close family members. However Mr. Barrera Morales was
separated from his family when incarcerated and has now had different types of
employment in Canada and I am satisfied he will be able to find employment in Nicaragua and earn a living. [Emphasis
mine.]
[25]
She expressed
her final conclusions:
The pertinent objectives
outlined in IRPA are as follows:
3. (1) The
objectives of this Act with respect to immigration are
…
(h) to protect the health and
safety of Canadians and to maintain the security of Canadian society;
(i) to promote international
justice and security by fostering respect for human rights and by denying
access to Canadian territory to persons who are criminals or security risks;
and
…
3. (3) This Act is to be
construed and applied in a manner that furthers the domestic and international
interests of Canada;
After fully considering all facts
of this case, including the humanitarian aspects, an assessment of the risk and
the need to protect Canadian society, I find that the latter outweighs the
former. In other words, upon consideration of all the factors noted above, I am
of the opinion that the interests of Canadian society outweigh Mr. Barrera
Morales’ presence in Canada. I find that he may be
deported despite subsection 115 (1), since removal to Nicaragua would not violate his rights under
section 7 of the Charter.
Analysis
(a) The standard of review of the underlying decision
[26]
As a
result of the recent decision of the Supreme Court of Canada in Dunsmuir v.
New Brunswick, 2008 SCC 9, the Delegate’s decision is to be gauged in terms
of reasonableness since the Delegate’s decision relates to questions of fact,
discretion and policy (see Dunsmuir, at paragraph 51). Justices
Bastarache and LeBel, writing for five of the all concurring nine judges,
explained what the reasonableness standard meant at paragraph 47:
47 Reasonableness is a deferential
standard animated by the principle that underlies the development of the two
previous standards of reasonableness: certain questions that come before
administrative tribunals do not lend themselves to one specific, particular
result. Instead, they may give rise to a number of possible, reasonable
conclusions. Tribunals have a margin of appreciation within the range of
acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes.
In judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law. [Emphasis mine.]
(b) Preliminary
issue
[27]
The
Applicant was one day late in the filing of his application record. Counsel for
the Respondent did not strenuously oppose the extension which I ordered at the
hearing.
(c) The test
for the grant of a stay
[28]
The test
for the grant of a stay is set out in the Supreme Court of Canada’s decision in
RJR-MacDonald Inc. v. the Attorney General of
Canada et al, [1994] 1 S.C.R. 311 (RJR-MacDonald Inc.).
The Applicant has the burden of meeting all of the elements of the three part
test: (1) serious question to be tried; (2) irreparable harm flowing from the
failure to obtain the stay; and, (3) the balance of convenience favors the
Applicant.
(1) Serious issue
[29]
Save for
two exceptions which are not applicable here, Justices Sopinka and Cory,
writing for the Supreme Court of Canada in RJR-MacDonald, framed the
existence of a serious issue at pages 337 and 338 of their reasons:
“Once satisfied that the application is neither vexatious
nor frivolous, the motions judge should proceed to consider the second and
third tests, even if of the opinion that the plaintiff is unlikely to succeed
at trial. A prolonged examination of the merits is generally neither
necessary nor desirable.” [Emphasis mine.]
[30]
In making
my determination on the serious question test, both parties agreed I must decide
on the basis of the record which was before the Delegate. Two new facts emerged
in the written submissions of the parties and discussed at the hearing:
·
First,
unknown to the Delegate is the fact the Applicant on May 14, 2008 was
arrested in Toronto for impaired driving and
later charged. His trial is scheduled for August 19, 2009. The Ontario
Crown Attorney is prepared to stay the charges when he is removed from Canada;
·
The fact
the CAS had written a letter to the Minister of Immigration on November 17,
2008 reporting on the family’s health, CAS’s role in assisting the family
unit and in support of the Applicant remaining in Canada.
[31]
Being in agreement
with the views of both counsel on this point, I will not take into account
these two new facts in assessing a serious question but, as submitted by both
counsel, will take into account the Family Worker’s November 17, 2008 letter
for the irreparable harm test and the new criminal charge against in relation
to the balance of convenience criteria.
[32]
In my
view, the Applicant has made out the following serious issues arising from the
Delegate’s opinion:
1.
First, the
Delegate’s analysis and consideration of the evidence on the issue of danger to
the Canadian public may have been perfunctory in that she did not
adequately assess the entire evidence before her some of which was
conflicting:
(a) contrast the evidence in the
Applicant’s submissions on the issues of his acknowledgement of his mistakes in
his testimony on detention, his recollection of the offences and remorse v. the
Delegate’s contrary finding based on two dated interviews the Applicant had
with the authorities. Her lack of analysis on this point would have gone to the
heart of her finding on rehabilitation;
(b) the lack of comment on
a contradictory finding by the Immigration Division on detention review in
2006, he was not a danger to the Canadian public if released;
(c) the persistent focus of the
Delegate on his past convictions without regard to the progress made in
rehabilitation being crime free, and compliant with his bail conditions plus the
Applicant’s apparent turn around in terms of responsibility arising out of his
son’s birth; and,
(d) the Delegate’s reliance on a
dated and limited psychological report.
2.
A second
serious issue arises on the Delegate’s treatment of the evidence relating to
his risk of return to Nicaragua where Daniel Ortega is now in power (since late
2006) and her reliance on a dated US DOS report for Nicaragua in 2006
published in March 2007 when for most of the time a person other than
Daniel Ortega was President of that country. In other words, did the Delegate
fail to properly take into account, as she must, the most current country
conditions relating to the Applicant’s fear. In my view, if the Delegate erred in
the area, it would fundamentally alter the balancing exercise she undertook
when balancing danger and risk of return.
3.
A third
serious issue arises out of her treatment of the evidence on the impact of his
deportation to Nicaragua i.e. the humanitarian and
compassionate considerations underlying this case.
[33]
The focus
of counsel for the Applicant’s arguments relates to the best interest of the
children; the fragility of his common law spouse’s mental health and the place
the Applicant plays in the functioning of the family unit. In particular, the
Applicant’s focus was on the lack of analysis, based on the Federal Court of
Appeal’s decision in Legault, that the Applicant’s past criminal
behaviour trumps or fits in those very few cases, where the best interest of
the children which she seems to recognize should be overridden. The same lack
of analysis argument extends to the treatment of the evidence before her of the
fragility of the mother’s mental health and her possible support without the
Applicant’s presence. Counsel for the Applicant argued the Delegate’s
assessment was not based on the evidence but in speculation.
(2) Irreparable harm
[34]
I find the
Applicant has established irreparable harm based on: (1) the risk to his
physical integrity on his return to Nicaragua given why the family unit fled
Nicaragua; (2) the impact on the family unit is substantial and it is
speculative that outside help available to the family unit would overcome the
Applicant’s absence; and, (3) the Applicant’s common law partner is mentally
fragile and the CAS’s intervention is present. To separate a family by placing
their children in foster homes is a drastic consequence which not considered by
the Delegate.
(3) Balance of convenience
[35]
Normally,
the combination of serious and irreparable harm would favour the Applicant.
Counsel for the Minister argues the recent 2008 charges of drunken driving (a
pending charge) shifts to balance in favour of the Minister because such
pending charge destroys the Applicant’s case on rehabilitation and
likelihood of not re-offending. At this point in time, I am not prepared to accept
the balance of convenience shifts to the Minister in these circumstances
because: (1) he has yet to be convicted of the charge; (2) if convicted, what
kind of sentence will he receive?; and, (3) whether there were mitigating
circumstances surrounding the incident which led to the charge.
[36]
For these
reasons a stay is granted.
“François Lemieux”
____________________________ Judge
Ottawa, Ontario
January 22, 2009
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