Date: 20090129
Docket: IMM-3116-08
Citation: 2009 FC 90
Ottawa, Ontario, this 29th
day of January 2009
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
Nilakaran
KANAGASINGAM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of an opinion by the Minister of
Citizenship and Immigration’s Delegate, pursuant to paragraph 115(2)(a)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the
“Act”), signed on June 10, 2008, according to which the applicant is a danger
to the public in Canada and may therefore be removed to Sri Lanka.
* * * * * * *
*
[2]
Nilakaran
Kanagasingam (the “applicant”) is a citizen of Sri Lanka who has lived in Canada since December 7, 1998,
when he arrived as an unaccompanied minor and made a claim for refugee status. The
day of his arrival in Canada, the applicant became the subject of an
inadmissibility report on the basis of paragraph 19(2)(d) and subsection
9(1) of the former Immigration Act, and subsection 14(1) of the former Immigration
Regulations for not complying with the conditions that he apply for and
obtain an immigration visa and be in possession of a valid passport, identity
or travel document upon arrival in Canada.
[3]
The
applicant had fled Sri
Lanka
because of fear of the Liberation Tigers of Tamil Eelam (the “LTTE”), the Sri
Lankan army and the police. As the eldest male child in his family, he was
targeted by the LTTE for recruitment. He and other students had to attend
general meetings of the LTTE at his school, and the LTTE eventually took him to
work for them for about 15 days. In July 1998, the LTTE approached his
family about his recruitment; they were afraid to refuse, despite their
opposition. With the help of his mother and an agent, the applicant was able to
leave the country, but not before he was interrogated and detained overnight by
the police regarding his involvement with the LTTE.
[4]
On July 7, 1999, the Immigration and
Refugee Board (“IRB”) determined that the applicant was a Convention refugee.
[5]
Between
February 28 and June 11, 2003, the applicant was convicted of a number of
offences: (1) personation with intent, for which he was sentenced to one day in
prison; (2) robbery, for which he was sentenced to eight months in prison and
two years probation; (3) failure to comply with conditions of recognizance, for
which he was sentenced to one day in prison; (4) uttering threats, for which he
received a suspended sentence and probation for three years; and (5) the use of
an imitation firearm in the commission of an offence, for which he was
sentenced to 12 months in prison.
[6]
On
April 16, 2003, he became the subject of an inadmissibility report pursuant to
subsection 44(1) of the Act, on the ground of serious criminality (paragraph
36(1)(a)), and organized criminality (paragraph 37(1)(a)). On
February 24, 2004, the applicant was issued a deportation order on the basis of
criminality and serious criminality. He filed a Notice of Appeal of the Removal
Order on the same day. On March 24, 2005, the Immigration Appeal Division
(“IAD”) dismissed his appeal.
[7]
On
November 22, 2005, immigration officials at the Canada Border Services Agency
in Montréal informed the applicant of their intention to seek an opinion of the
Minister of Citizenship and Immigration on whether he is a danger to the public
and may be removed (or refouled) to Sri Lanka. He was invited to make submissions. On
December 9, 2005, the applicant provided documents regarding his employment
history. On September 19, 2007, immigration officials disclosed additional
information to the applicant relating to the danger he allegedly poses to the
public, the risk he would face if returned to Sri Lanka, and relevant humanitarian and
compassionate considerations. In response to an invitation to make further
submissions, the applicant provided a letter from his employer dated September
21, 2007 and a copy of his personal deposit account history at the Royal Bank
of Canada.
* * * * * * * *
[8]
At
page 10 of the impugned opinion, the Minister’s Delegate writes:
I
note that Mr. Kanagasingam’s criminal record is supported by numerous documents
from the courts, the police and the Immigration and Refugee Board that describe
the offences in considerable detail and provides insight in respect of the
circumstances, his character and possible harm to the victims. In addition,
information on record provides credible evidence regarding Mr. Kanagasingam’s
propensity to use weapons to threaten his victims and his willingness to wield dangerous
and threatening weapons to threaten such as a machete, in the commission of his
crimes. The evidence also provides numerous credible examples detailing Mr. Kanagasingam’s
disrespect for the law, such as when he provided a false identity to police and
the occasion when he violated his probation orders. Thus in reaching my
decision, I have done so by relying on information and evidence that I consider
to be credible and reliable, having particular regard to the various police
reports relating to Mr. Kanagasingam’s serious criminal convictions and
reasons of the IAD relating to his appeal from his deportation order.
[9]
He
then adds: “I have also carefully considered Mr. Kanagasingam’s submissions
[…]. While I appreciate that he is employed and has a bank account, these
submissions do not directly address his criminal history”. Moreover, the
Minister’s Delegate notes that the applicant had shown “no remorse for his
criminal conduct and little insight into his offence history”, and indeed had
not taken responsibility for his conduct, which demonstrated that he had not
been rehabilitated.
[10]
The
Minister’s Delegate observes that the applicant’s submissions of December 9,
2005 did not address the question of risk. He therefore reviews the basis for
the applicant’s grant of refugee status. In addition, the Minister’s Delegate
consults the most recent U.S. Department of State Country Report on Human
Rights Practices in Sri
Lanka
(2007). At page 13 and 14 of the opinion, he writes:
Mr.
Kanagasingam indicates that when he was a student, a young 15-year-old Tamil
boy from the North, the LTTE wanted to recruit him. Based on the evidence on
record which shows that Mr. Kanagasingam is no longer a young boy, but a
25-year-old adult, I am satisfied, on balance, that he no longer faces a risk
of being recruited by the LTTE as a child soldier. […]
As
a Tamil male returning to Sri
Lanka, I find there is
insufficient information to satisfy me, on balance of probabilities, that Mr. Kanagasingam
will be personally targeted by the LTTE for recruitment. […]
[11]
He
concludes, at page 16:
Based
on the evidence, I am satisfied, on a balance of probabilities, that Mr.
Kanagasingam has not had any affiliation with the LTTE or other political
groups that would lead directly to his being personally targeted by the
government of Sri Lanka security forces as a person of interest for detention,
mistreatment or torture should he be returned to Sri Lanka. In addition, I am
also satisfied, on balance, that Mr. Kanagasingam would not be of any interest
to the LTTE such that he would be facing any of the risks enumerated under
section 97 of IRPA should he be removed to Sri Lanka. I find, therefore that, on balance of probabilities, that
[sic] Mr. Kanagasingam would not be targeted by the LTTE or the Sri
Lankan authorities upon his return to Sri Lanka, such that he would not be at
any greater risk than the general population of facing any risk to his life, or
a risk of torture or cruel and unusual treatment and being a Tamil male
returning to Sri Lanka.
* * * * * * * *
[12]
This
matter raises the following issues:
1. Did
the Minister’s Delegate err in his determination that the applicant is a
“danger to the public”, pursuant to paragraph 115(2)(a) of the Act?
2. Did
the Minister’s Delegate err in his determination that the applicant would not
face a significant risk upon his return to Sri Lanka?
* * * * * * * *
[13]
The
following provisions of the Act are relevant:
|
36.
(1) A permanent resident or a foreign national is inadmissible on grounds
of serious criminality for
(a)
having been convicted in Canada of an offence under an Act of Parliament
punishable by a maximum term of imprisonment of at least 10 years, or of an
offence under an Act of Parliament for which a term of imprisonment of more
than six months has been imposed;
…
[…]
|
36. (1) Emportent
interdiction de territoire pour grande criminalité les faits suivants :
a) être déclaré coupable au Canada
d’une infraction à une loi fédérale punissable d’un emprisonnement maximal
d’au moins dix ans ou d’une infraction à une loi fédérale pour laquelle un
emprisonnement de plus de six mois est infligé;
…
[…]
|
|
96.
A Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
|
96. A qualité de réfugié
au sens de la Convention — le réfugié — la personne qui, craignant avec
raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se trouve hors de tout pays
dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut
se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
|
|
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
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a
risk to their life or to a risk of cruel and unusual treatment or punishment
if
(i) the person is unable or,
because of that risk, unwilling to avail themself of the protection of that
country,
(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,
(iii) the risk is not inherent
or incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by
the inability of that country to provide adequate health or medical care.
[…]
|
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 :
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;
b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(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,
(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,
(iv) la menace
ou le risque ne résulte pas de l’incapacité du pays de fournir des soins
médicaux ou de santé adéquats.
[…]
|
|
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
Minister, a danger to the public in Canada; ….
|
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; …
|
[14]
The
following Article of the United Nations Convention Relating to the Status of
Refugees is also pertinent:
|
Article 33.
– Prohibition of expulsion or return (“refoulement”)
1.
No Contracting State shall expel or return (“refouler”) a refugee in
any manner whatsoever to the frontiers of territories where his life or
freedom would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion.
2. The benefit of the present provision may
not, however, be claimed by a refugee whom there are reasonable grounds for
regarding as a danger to the security of the country in which he is, or who,
having been convicted by a final judgment of a particularly serious crime,
constitutes a danger to the community of that country.
|
Article
33. – Défense d’expulsion et de refoulement
1.
Aucun des États contractants n'expulsera ou ne refoulera, de quelque manière
que ce soit, un réfugié sur les frontières des territoires où sa vie ou sa
liberté serait menacée en raison de sa race, de sa religion, de sa
nationalité, de son appartenance à un certain groupe social ou de ses
opinions politiques.
2.
Le bénéfice de la présente disposition ne pourra toutefois être invoqué par
un réfugié qu'il y aura des raisons sérieuses de considérer comme un danger
pour la sécurité du pays où il se trouve ou qui, ayant été l'objet d'une
condamnation définitive pour un crime ou délit particulièrement grave,
constitue une menace pour la communauté dudit pays.
|
* * * * * * * *
[15]
Before
turning to consider the merits of the application, it is helpful to recall the
statutory context. Subsection 115(1) of the Act sets out the general rule
against refoulement, and embodies the first paragraph of Article 33 of
the United
Nations Convention Relating to the Status of Refugees. Paragraph (a)
is therefore one of the exceptions to this general rule, and accords with
paragraph 2 of Article 33. As the Federal Court of Appeal writes in Nagalingam v.
Minister of Citizenship and Immigration, 2008 FCA 153:
[69] In
addressing my final point of analysis on the second certified question, I
accept the appellant’s argument that the “fundamental character of the
prohibition of refoulement and the humanitarian essence of the …
Convention more generally, must be taken as establishing a high threshold for
the operation of exceptions. …
[My emphasis.]
[16]
The
Court in Nagalingam also quotes Sir Elihu Lauterpacht and Daniel Bethlehem’s
contention that:
186. The
text of Article 33(2) makes it clear that it is only convictions of crimes of a
particularly serious nature that will come within the purview of the exception.
This double qualification – particularly and serious – is
consistent with the restrictive scope of the exception and emphasizes that refoulement
may be contemplated pursuant to this provision only in the most exceptional
of circumstances. Commentators have suggested that the kinds of crimes that
will come within the purview of the exception will include crimes such as
murder, rape, armed robbery, arson, etc.
E. Lauterpacht & D. Bethlehem, “The Scope and Content of the Principle
of non-refoulement: Opinion” in E. Feller, V. Türk &
F. Nicholson, eds., Refugee Protection in International Law: UNHCR’s
Global Consultations on International Protection (New York: Cambridge University Press, 2003) 87, at 139.
[17]
In Ragupathy v. Minister
of Citizenship and Immigration, 2006 FCA 151, the Federal Court of Appeal
set outs the proper methodology for a Danger Opinion at paragraphs 16 through
19. Notably, at paragraph 17, the Federal Court of Appeal is clear that whether
a protected person is a danger to the public is a determination that
… is to made on the basis of the criminal
history of the person concerned, and means a “present and future danger to the
public”: Thompson v. Canada (Minister of Citizenship and
Immigration)
(1996), 119 F.T.R. 269 at para. 20.
[18]
As
for the applicable standard of review, prior to Dunsmuir v. New
Brunswick,
[2008] 1 S.C.R. 190, the standard applied to a Danger Opinion by this Court
on review was that of patent unreasonableness. Following Dunsmuir,
wherein the Supreme Court collapsed patent unreasonableness and reasonableness simpliciter
into a single norm, the standard of review now applicable to the review of
a Danger Opinion is reasonableness. In paragraph 47 of Dunsmuir, the
Supreme Court of Canada states:
.
. . 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.
[19]
The
Court must therefore determine whether the opinion’s conclusions fall among the
range of “acceptable outcomes which are defensible in respect of the facts and
law”.
[20]
With
all that in mind, I now turn to the substantive issues of this case.
Danger Assessment
[21]
The
applicant argues that the Minister’s Delegate erred in focusing almost
exclusively on the convictions accumulated by the applicant in 2003, and in
giving virtually no weight to his conduct during the period between 2004 and
2008, during which he maintained steady full-time employment and obtained no
convictions.
[22]
The
respondent claims that the applicant merely objects to the weighing of the
factors considered by the Minister’s Delegate, which does not present an
appropriate basis for this Court’s intervention. In his reply, the applicant
answers that his position is not properly characterized as relating to the
weighing of factors; rather, he is challenging the Minister’s Delegate failure
to, in effect, apply the appropriate criteria under the law.
[23]
As
elements of the evidence before him, the Minister’s Delegate was entitled to
rely on the IAD’s determinations and on statements by the sentencing judge. I
share the concern expressed in the opinion about the applicant’s apparent lack
of remorse at that time, as manifested in these statements. Nonetheless, the
mere fact that a claimant committed a serious offence just brings him into the
purview of the provision; it is not determinative of whether the claimant is a danger
to the public. Paragraph 115(2)(a) incorporates a temporal
dimension, as the applicant points out, in so far as it is concerned with
attempting to identify the likelihood of a present and future danger to
the public, as interpreted by the jurisprudence (see, for instance,
Ragupathy, supra). The Minister’s Delegate, however, makes no
mention of the fact that the applicant has had no convictions or arrests
in the intervening years since 2004. The IAD in its ruling writes at paragraph
18 that it “has no reason to believe that the appellant will or can change his
ways”. The evidence before the Minister’s Delegate is precisely of the kind
that might have provided just such a reason, and warranted greater attention.
In my view, the Minister’s Delegate did not reasonably apply paragraph 115(2)(a).
Risk Assessment
[24]
I
further agree with the applicant that the Minister’s Delegate erred in his
determination that the applicant would not face a significant risk upon his
return to Sri
Lanka.
[25]
As
the applicant notes, the Minister’s Delegate quotes at some length from the
Department of State’s Country Report on Human Rights in Sri Lanka from 2007
(“DOS Report”) to show that the situation in Sri Lanka has changed so that
children are no longer targeted by the LTTE for recruitment. However, the very
same passage cited makes reference to the LTTE’s shift in focus towards young
Tamil men – precisely the demographic of the applicant. This would suggest that
the applicant would be a ripe target for the LTTE, contrary to the Minister’s
Delegate’s finding. Given such a glaring contradiction with his statements
regarding the applicant’s risk, the Minister’s Delegate had a duty to further
explain his position. Moreover, I cannot agree with his argument that the
applicant would not face more than the generalized risk faced by others; on the
contrary, he would face the risk disproportionately borne by his social group,
namely young Tamil men.
[26]
With
respect to the applicant’s risk vis-à-vis the government of Sri Lanka, the DOS
Report’s opening paragraphs include the following assertion:
The government’s respect for human rights
continued to decline due in part to the escalation of the armed conflict. While
ethnic Tamils composed approximately 16 percent of the population, the
overwhelming majority of victims of human rights violations, such as killings
and disappearances, were young Tamil males. Credible reports cited unlawful
killings by government agents, assassinations by unknown perpetrators, politically
motivated killings and child soldier recruitment by paramilitary forces
associated with the government, disappearances, arbitrary arrests and
detention, poor prison conditions, denial of fair public trial, government
corruption and lack of transparency, infringement of religious freedom,
infringement of freedom of movement, and discrimination against minorities. …
[27]
Moreover,
the document later reports, in a portion not cited in the opinion:
In the conflict affected north and east,
military intelligence and other security personnel, sometimes working with
armed paramilitaries, carried out documented and undocumented detentions of
civilians suspected of LTTE connections. The detentions were followed by severe
interrogations, frequently including torture. When the interrogations failed to
produce evidence, detainees were often released with a warning not to reveal
information about their arrests and threatened with re-arrest or with death if
they divulged information about their detention. Some were killed by masked
gunmen on motorcycles immediately after leaving these military facilities on
foot.
[28]
This
passage is at odds with the Minister’s Delegate’s conclusion that the applicant
is unlikely to be “personally targeted by the government of Sri Lanka security
forces as a person of interest for detention, mistreatment or torture should he
be returned to Sri Lanka”.
[29]
The
failure to adequately consider the contrary evidence relating to risk
constitutes, in my view, an error warranting the intervention of this Court.
* * * * * * *
*
[30]
For
all the above reasons, the application for judicial review is allowed and the
matter is remitted to a different Minister’s Delegate for re-determination in
accordance with these Reasons.
JUDGMENT
The application for judicial
review is allowed. The matter is remitted to a different Minister of
Citizenship and Immigration’s Delegate for re-determination in accordance with
the Reasons for Judgment rendered this day.
“Yvon
Pinard”
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