Date: 20110804
Docket: IMM-6803-10
Citation: 2011 FC 976
Ottawa, Ontario, August 4,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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NABIL ALKHALIL
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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
[1]
This
is an application by Nabil Alkhalil made pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], for judicial review of a
decision of the Respondent Minister’s Delegate, wherein it was determined that
the Applicant constitutes a danger to the Canadian public under paragraph
115(2)(a) of the IRPA.
[2]
Based
on the reasons that follow, this application is dismissed.
I. Background
A. Factual
Background
[3]
The
Applicant, Nabil Alkhalil, came to Canada in 1990 at the age of
14. He accompanied his father, mother, brothers and sisters, who made a claim
for refugee protection upon arrival at Mirabel airport. Although there appears
to be no information available from the Immigration and Refugee Board (IRB)
about the circumstances of the family’s claim, the Ministry of the Attorney
General in British
Columbia
reported that that Alkhalil family immigrated to Canada from Saudi Arabia to escape
the Gulf war and the lack of educational resources available to their
children. The Applicant was found to be a Convention refugee on August 29,
1991 and became a permanent resident on April 16, 1992.
[4]
The
Applicant’s father was displaced during the 1948 Arab-Israeli conflict and fled
to Lebanon as a
Palestinian refugee. He eventually moved to Saudi Arabia. As a
result, although the Applicant was born in Saudi Arabia, he not a
citizen of that country nor is he a citizen of Lebanon. He is
stateless. Nonetheless, the Applicant has a right to return to Lebanon as a
descendent of a United Nations Relief and Works Agency for Palestine Refugees
in the Near East (UNRWA) registered Palestinian refugee. He is currently
married to a Canadian citizen and has a Canadian-born daughter.
[5]
The
Applicant was first the subject of an inadmissibility report on April 2, 1998
following a 1997 sentence for Breaking and Entering with Intent to Commit
and Indictable Offence. After failing to appear for an immigration inquiry in
February 1999, an arrest warrant was issued. The warrant was executed when the
Vancouver police
arrested the Applicant on January 5, 2000. He was charged with assault with a
weapon. As a result, the Applicant was ordered deported. He appealed to the
Immigration Appeal Division (IAD) of the IRB and the removal order was stayed
under terms and conditions on September 19, 2000.
[6]
The
Applicant was the subject of an inadmissibility report for a second time on
May 14, 2001. This followed a conviction for assault with a weapon
and assault causing bodily harm. On June 20, 2002, the IAD decided to prolong
the stay of removal that had previously been granted for an additional six
years on the same terms and conditions.
[7]
Some
of the Applicant’s criminal history from this period appears to be related to
the killing of one of his brothers in 2001. One of his other brothers was also
shot and killed in 2003. In 2004, the Applicant and his family moved from
British Columbia to Ottawa where the Applicant planned to “start life
afresh”. Unfortunately, in 2005 one of the Applicant’s car detailing stores
began to fail financially. He accepted $2500 from an acquaintance to transport
drugs from Toronto to Ottawa. However,
things did not go according to plan. The Applicant was pulled over by police
along highway 401 and, following a high-speed police chase along provincial
highways, township roads and residential streets, the Applicant, who had fled
the car on foot, was tracked down by a canine unit. A duffel bag was found containing
11 kilograms of cocaine. The street value of the drugs was estimated to be over
$330,000.
[8]
On
February 12, 2008, the Applicant was convicted of possession of cocaine for the
purposes of trafficking and dangerous operation of a motor vehicle. As a
result, the Applicant’s stay was cancelled and, for a third time, an
inadmissibility report was written against him on the grounds of serious
criminality. A deportation order was subsequently issued.
[9]
On
January 7, 2009, the Applicant was notified that the Minister was seeking a
danger opinion pursuant to paragraph 115(2)(a) of the IRPA. The Applicant was
invited to make submissions addressing whether he was a danger to the public,
the extent to which he would face a risk of harm if removed from Canada, and any
humanitarian and compassionate (H&C) considerations that may exist in his
case. The Applicant’s submissions were received on July 6, 2009.
After receiving the “Request for the Minister’s Opinion” package in May 2010,
the Applicant made further submissions received by the Respondent on September
22, 2010 and October 6, 2010.
B. Legislative
Provisions
[10]
The
principle of non-refoulement is incorporated into Canadian law by subsection
115(1) of the IRPA which prohibits the return of Convention refugees and
protected persons to any 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. However, subsection 115(2) expressly provides an exception to this
principle where the subject is: (a) found inadmissible on grounds of serious
criminality and constitutes, in the opinion of the Minister, a danger to the
public in Canada; or (b) found inadmissible on grounds of security, violating
human or international rights or organized criminality if, in the Minister's
opinion, 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.
C. Impugned
Decision
[11]
The
Minister wrote a 25-page decision, divided into multiple sub-parts. The
Minister first considered the applicable provisions of the IRPA and the
Applicant’s criminal and immigration history. The Minister then proceeded to
complete a danger assessment. He considered evidence that the Applicant had
attempted to rehabilitate himself, but found that the combination of offences
and the escalation of offences from possession of stolen property over $1000 to
possession for the purpose of trafficking of 11 kilograms of cocaine was
indicative of a pattern of increasing violence and dangerousness. The Minister
found that the Applicant’s continued convictions of serious offences
demonstrated that he had not rehabilitated himself. Based on the Applicant’s
proven dangerousness to the public and the Applicant’s lack of rehabilitation,
the Minister concluded that the Applicant represents a present and future
danger to the Canadian public whose presence in Canada poses an
unacceptable risk.
[12]
The
Minister then went on to consider the risk of harm the Applicant would face if
removed from Canada. He
surveyed the Applicant’s submissions that, as a Palestinian refugee in Lebanon, the
Applicant would face severe social, political, and civil rights restrictions.
The Minister quoted at length from a 2007 Amnesty International report
submitted by counsel. The Minister considered the Applicant’s submission that
as a result of cumulative discrimination faced by Palestinian refugees, the
Applicant would face risk to his physical security and the deprivation faced by
the Applicant if removed to Lebanon would shock the
conscience of the Canadian public.
[13]
The
Minister conducted his own research regarding the situation of Palestinian refugees,
citing a document from Forced Migration Online, and a UK Border Agency report. The
Minister concluded that although the Applicant would face discrimination, it
did not rise to the level of persecution. Furthermore, the Minister suggested
that if the Applicant’s wife and daughter were to move with him as they claimed
they would, they would be able to rent and buy property. As such, the
Applicant would not necessarily be relegated to living in a refugee camp. The
Minister also noted that the Applicant would be able to get a work permit for
the area in which he is skilled – home renovation -- and that the Applicant
should be able to afford to pay for additional health-care. Based on the
totality of the evidence, the Minister concluded that the Applicant would not
be exposed to an individualized risk to life, risk of torture or risk of cruel
and unusual treatment or punishment, nor would be exposed to more that a mere
possibility of persecution if returned to Lebanon.
[14]
Since
the Applicant was not found to be at risk as described in either sections 96 or
97 of the IRPA, and was found to constitute a danger to the Canadian public,
the balance was tipped in favour of the Applicant’s removal. The Minister then
considered the best interests of the Applicant’s child and other H&C
considerations. The Minister was satisfied, on a balance of probabilities
that, if the Applicant were removed to Lebanon, any
hardship to the Applicant or his family did not outweigh the danger the
Applicant presented to the public.
II. Issues
[15]
The
Applicant raises seven issues on this application for judicial review:
(a) Did
the Minister breach the Applicant’s right to procedural fairness by relying on
extrinsic evidence?
(b) Did
the Minister err in law by failing to properly take into consideration the
Applicant’s status as a Convention refugee?
(c) Did
the Minister ignore evidence in assessing whether the Applicant constitutes a
danger to the public?
(d) Did
the Minister apply the incorrect legal test in determining whether the
Applicant would be at risk if deported?
(e) Are
the Minister’s reasons regarding the risk of persecution faced by the Applicant
adequate?
(f) Did
the Minister err in law by giving weight to irrelevant considerations in
assessing whether the Applicant constitutes a danger to the public?
(g) Did the Minister adequately
consider the best interests of the child?
III. Standard
of Review
[16]
The
Minister’s findings in a danger opinion are a matter of mixed fact and law and
are thus accorded a high degree of deference. The Minister’s decision is
reviewable on the reasonableness standard (Nagalingam v Canada (Minister of
Citizenship and Immigration), 2008 FCA 153, [2009] 2 FCR 52 at
para 32).
[17]
The
Applicant alleges that the Minister applied the wrong test to determine if the
Applicant would be at risk if deported and that the reasons with regard to risk
are inadequate. These are questions of law and are reviewable on the
correctness standard (Nagalingam, above, at para 34)
IV. Argument
and Analysis
A. Did
the Minister Breach the Applicant’s Right to Procedural Fairness by Relying on
Extrinsic Evidence?
[18]
The
Applicant submits that in coming to his conclusion, the Minister heavily relied
on a July 2010 National Parole Board (NPB) decision. The Applicant swore
in his affidavit that he had no knowledge of this decision until November 2010,
after the Minister had rendered his decision. As such, the Applicant takes the
position that his right to procedural fairness was breached because the
Minister relied on extrinsic evidence that was not disclosed to the Applicant,
and he was denied the opportunity to make submissions with respect to its
contents.
[19]
I
must agree with the Respondent that there is no merit to this argument.
Contrary to the Applicant’s sworn statements, the record shows that the
Applicant was sent a copy of the NPB decision on July 21, 2010. The Respondent
has pointed the Court to a signed Receipt of Delivery contained in the
Certified Tribunal Record (CTR) confirming that the Applicant received a copy
of the decision, in person, on July 26, 2010 at the Joyceville Institution,
where he was incarcerated at the time (CTR pgs 94 – 98). Accordingly, there
was no reliance on extrinsic evidence.
B. Did the Minister
Err in Law by Failing to Properly Take into Consideration the Applicant’s
Status as a Convention Refugee?
[20]
The
Applicant submits that the Minister erred by failing to start his analysis of
the risk the Applicant would face upon deportation from the premise that, as an
individual who has been recognized as a Convention refugee and continues to
hold that status, he would face risk upon deportation. The Applicant argues
that in the present case the Minister completely disregarded the Applicant’s
status as a Convention refugee, and failed to give due weight to the
presumption of risk conferred by this status.
[21]
The
Applicant relies on two recent Supreme Court decisions regarding the
extradition of Convention refugees to support this argument: Gavrila v
Canada (Justice), 2010 SCC 57, [2010] 3 SCR 342 and Németh v Canada (Justice), 2010 SCC
56, [2010] 3 S.C.R. 281. I understand the Applicant to be making the point, as
found in Németh, that since the Applicant had been found to be a refugee
in accordance with Canadian law, he was therefore the beneficiary of a prima
facie entitlement to protection from refoulement. In making his decision,
the Minister was required to give appropriate weight to this previous
determination (see Németh at para 106). The Applicant submits that
instead of assuming that the Applicant would be at risk, the Minister instead
minimized the Applicant’s Convention refugee status.
[22]
Reviewing
the decision it is clear that that the Minister appreciates the importance of
the Applicant’s Convention refugee status. As required by the plain wording of
subsection 115(2) of the IRPA, the Minister was cognizant that the Applicant
could only be returned to Lebanon if he fell into the non-refoulement exception
carved out by paragraph 115(2)(a). Paragraph 115(2)(a) follows subsection
115(1) which states Canada’s general adherence to the principle of
non-refoulement. It is obvious that in using the legislative provisions of the
IRPA as the framework for his analysis, the Minister started with the
assumption that the Applicant, as a Convention refugee, was at risk of
persecution.
[23]
The
Minister first cited subsection 115(1) before going on to state:
I note that paragraph 115(2)(a) of IRPA
creates an exception to the general protection provided to Convention refugees
that they not be returned to the country where they would be at risk of
persecution (serious possibility or reasonable chance of persecution). This is
the embodiment into Canada’s domestic legislation of
Article 33(2) of the U.N. Convention relating to the Status of Refugees.
Article 33(2) provides that:
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,
constitute a danger to the community of that country.
[24]
While
I respect the Applicant’s attempt to analogize the holdings in Németh
and Gavrila, above, to the matter at hand in order to impugn the
Minister’s decision, paragraph 115(2)(a) of the IRPA is part of a very
particular statutory regime. The structure of section 115 in and of itself
requires the Minister to start from the premise that the Applicant is either a
Convention refugee or a protected person. Moreover, Németh and Gavrila,
above, arise out of a different factual context – in those cases the Supreme
Court allowed the appeals of the Minister’s decision to allow the extradition
of Convention refugees pursuant to the Extradition Act. The Minister
erred by imposing too high a threshold for determining whether the appellants
would face persecution on their return to their country of origin, and thereby
failed to accord the appropriate weight to their status. The danger opinion
under the IRPA is quite distinct. The Supreme Court has recognized the IRPA’s
prioritization of security of Canadians and that the provisions of the IRPA
must be read in light of this legislative intent. This objective is given
effect by removing applicants with criminal records from Canada, and by
emphasizing the obligation of permanent residents to behave lawfully while in
Canada (Medovarski v Canada (Minister of Citizenship and Immigration),
[2005] 2 S.C.R. 539, [2005] SCJ No 31 (QL)).
[25]
With
respect to a danger opinion, it is only by operation of section 7 of the Canadian
Charter of Rights and Freedoms that the Minister, providing an opinion
under paragraph 115(2)(a) of the IRPA that would allow for the refoulement of a
protected person, is required to assess the risk to the person. Obviously, this
requires the Minister to be alert and alive to the reason a subject was granted
protected status in the first place. However, unlike an application for a
determination that refugee protection has ceased under section 108, or an
application to vacate refugee status under section 109 of the IRPA, both of
which require the Minister to advance reasons in support of the application,
subsection 115(2) does not operate to rescind a subject’s protected status.
Rather, paragraph 115(2)(a) expressly allows for a derogation from the
principle of non-refoulement. The jurisprudence of this Court holds that once
the Applicant was found to be a danger to the public, it was up to him to
establish that he would be at risk if returned to Lebanon (Hasan v Canada
(Minister of Citizenship and Immigration), 2008 FC 1069, 339 FTR 21, at paras
19 – 22). The Federal Court
of Appeal confirmed in Nagalingam v Canada (Minister of
Citizenship and Immigration), 2008 FCA 153, [2009] 2 FCR 52, at para
44, “the Convention refugee or protected person cannot rely on his or her
status to trigger the application of section 7 of the Charter.” Neither Németh
nor Gavrila can be taken to reverse the onus of showing risk on a danger
opinion under subsection 115(2) of the IRPA.
[26]
The
Applicant also submits that the Minister only speculated as to the
circumstances surrounding the Applicant’s refugee claim and referred to an
unreliable document from the Ministry of the Attorney General in British
Columbia.
The Applicant argues that this only exacerbates the Minister’s failure to
properly consider the Applicant’s status. Having found no failure on the part
of the Minister, I am unable to find any further fault with the Minister’s risk
analysis under paragraph 115(2)(a). It appears as though the Minister
sought information from the IRB regarding the Applicant’s family’s claim and
none was available. Reliance on other documentation was clearly part of the
Minister’s effort to understand the nature of the initial claim for protection.
C. Did
the Minister Ignore Evidence in Assessing Whether the Applicant Constitutes a
Danger to the Public?
[27]
The
Applicant submits that the Minister ignored evidence before him that
contradicted his finding that the Applicant had not demonstrated
rehabilitation. The Applicant contends that the Minister largely came to this
conclusion based a 2009 Correctional Service of Canada report noting that the
Applicant had not completed his required programs according to his Correctional
Plan. However, the Minister failed to mention a March 2010 NPB assessment
which clarified that due to guideline changes after the Applicant’s intake, he
no longer met the selection criteria for the Violence Prevention
Program-Moderate Intensity (VPP), or the Alternatives, Associates and Altitudes
Program (AAA).
[28]
The
Respondent counters that the failure to complete required programming was not
the basis for the Minister’s conclusion that the Applicant was not
rehabilitated. Rather, the reasons evince a consideration of the Applicant’s
tendency to breach the conditions of his release orders by continuing to engage
in unlawful activity. Moreover, the Respondent argues that the Applicant’s
subsequent ineligibility for the two programs does not contradict the fact that
following his completion of two other programs related to an earlier offence,
his day parole was revoked as he was found to be in possession of a loaded
handgun, and marijuana.
[29]
I
am not persuaded that the Minister ignored evidence. In any case, I take the
Respondent’s point that the evidence the Applicant points to – the March 2010
NPB assessment – does not actually contradict the Minister’s rehabilitation
finding. While the Applicant describes the March 2010 as a clarification,
the NPB’s July 21, 2010 decision, relied heavily on by the Minister, as per the
Applicant’s own submission, provides a further clarification of the state of
the Applicant’s rehabilitation. The NPB wrote:
According to the intake assessment on
your current sentence, you successfully completed programming during your prior
federal sentence but your day parole release on that sentence was later
revoked. Additionally, as you have again committed offences that involve a
violent subculture, the Board puts little weight on past intervention. In this
regard, your treatment needs in the area of violence prevention remain
outstanding as was indicated in a correctional program progress report of March
2010. The Board’s focus is not on the change to the Correctional Service of
Canada program criteria and that you are no longer recommended for such
programming; the Board must consider whether in the absence of a residency
condition you will present an undue risk to society by committing a Schedule
One offence before your warrant expiry. (CTR pg 96)
[30]
This
further NPB document shows that, whether the Applicant failed to complete the
VPP and AAA programming due to his own decision not to participate or because Correctional
Service of Canada (CSC) made fortuitous policy changes following his intake
assessment, there was a still a valid basis on which the Minister could
reasonably conclude that the Applicant had not demonstrated rehabilitation.
D. Did the Minister
Apply the Incorrect Legal Test in Determining Whether the Applicant Would be at
Risk if Deported?
[31]
The
Applicant submits that the Minister applied the incorrect test. Section 115
provides that a Convention refugee or a protected person will 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 or unusual treatment or punishment. When reiterating
the principle, the Minister instead wrote:
In reviewing the material to determine if
Mr. Alkhalil may face risk upon return to Lebanon, I am required to turn my mind to the
factors under section 97 of IRPA. In making an assessment of risk under
section 97, it is clear that the risk “would be faced by the person in every
part of the country and is not faced generally by other individuals in or from
that country”. While the issue of whether or not Mr. Alkhalil is removable
from Canada is principally guided by the
degree of risk he would face as defined in section 97 of IRPA, I also take
into account the risk of persecution under section 96 of IRPA.
[32]
I
agree with the Applicant that the Minister employs sloppy wording when setting
out the test. This kind of imprecision is best avoided by decision-makers.
However, I am unable to see what material effect this had on either the
Minister’s analysis or ultimate conclusion. The Applicant has not explained to
the Court what detrimental impact this loose rewording had on the Applicant
beyond asserting that the decision clearly shows that the Minister holds the
view that section 96 risks are subordinate to section 97 risks because the
Minister concluded that there was insufficient evidence to indicate that the
Applicant would be “personally at risk” as a Palestinian refugee in Lebanon.
[33]
The
Minister clearly evaluated both sets of risks, and used the proper tests in
doing so – the “more than a mere possibility” test for persecution under
section 96 and the “balance of probabilities test” for harm under section 97.
The personally at risk conclusion refers to the Minister’s section 97
conclusion. The Minister earlier concluded that the discrimination faced by
the Applicant would not amount to persecution under section 96, and later
reiterates that he would not be exposed to more than a mere possibility of
persecution, another finding that the Applicant challenges.
[34]
In
all material ways, the Minister applied the correct test. The Applicant has
failed to show that the intervention of the Court is warranted.
E. Are
the Minister’s Reasons Regarding the Risk of Persecution Faced by the Applicant
Adequate?
[35]
The
Applicant submits that the Minister failed to consider the cumulative effect of
the discrimination faced by Palestinian refugees in Lebanon. The
Minister acknowledged that there are many ways in which Palestinian refugees
are treated differently than Lebanese citizens. The Minister concluded that
such discrimination did not amount to persecution. The Applicant disagrees and
seeks to impugn the Minister’s decision by way of arguing that his reasons are
inadequate to support his conclusion. The Applicant further argues that the
Minister’s reasons fail to explain why he preferred his own documentary
evidence over the reports submitted by the Applicant.
[36]
It
is obvious that the Applicant will not enjoy the same lifestyle in Lebanon as he would
in Canada. From
reading the decision it is clear that the Minister has surveyed the country
conditions and accepts that the Applicant will suffer discrimination as a
Palestinian refugee. The Minister does not ignore or dismiss the submissions
of the Applicant. In fact, he quotes the Amnesty International report at
length. The Minister does not dispute the facts reported in the Applicant’s
submissions regarding the conditions under which Palestinian refugees live, and
the documentary evidence which he cites in his analysis section does not
contradict the conditions described in the reports relied on by the Applicant.
The UK Border Agency Report cited by the Minister in his analysis section
acknowledges the difficulties face by Palestinian refugees as outlined in the
other reports, but also reports on progress that has been made. The Minister
adopts the conclusion of the report; that is to say that Palestinian refugees
are treated differently than Lebanese citizens, but this discriminatory treatment,
in its admittedly many forms, does not reach the threshold to establish
persecution.
[37]
The
Applicant argues that the Minister’s reasons are inadequate. I disagree. The
Minister was undoubtedly under an obligation to provide a set of transparent
reasons that justify his difficult decision. Any reasonable person reading the
decision can understand what the Minister considered, what he concluded, and
why.
[38]
Aside
from relying on documentary evidence suggesting that the level of
discrimination does not amount to persecution, the Minister noted that the
Applicant’s wife, who intends to accompany him should he be removed, would not
be subject to the same limitations as the Applicant and should be able to
secure rented housing, thus giving the Applicant the option of living outside
the refugee camps. The occupations of the Applicant and his wife are in fields
that are open to foreigners, so they will not be barred from gainful
employment. Health care was acknowledged as an additional expense, but since
both the Applicant and his wife have expressed a willingness to work, they
should be able to afford health-care in addition to that provided by UNRWA.
Thus, the Minister explains that due to the Applicant’s particular situation,
the discrimination he will face will be minimized and the cumulative impact
reduced.
[39]
The
Minister’s decision is thoroughly reasoned. As the Federal Court of Appeal
held in Ragupathy v Canada (Minister of
Citizenship and Immigration), 2006 FCA 151, [2007] 1 FCR 490 at para
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.
[40]
The
Court cannot substitute its judgment for that of the Minister’s. Satisfied
that the Minister has met the standard of adequacy, the Court will not
intervene.
F. Did the Minister
Err in Law by Giving Weight to Irrelevant Considerations in Assessing Whether
the Applicant Constitutes a Danger to the Public?
[41]
The
Applicant submits that the Minister erred by considering a Vancouver Sun
newspaper article and other anecdotal evidence in assessing whether the
Applicant had rehabilitated himself. The newspaper article suggested that the
Alkhalil family was behind the revenge killing of the man accused of killing
the Applicant’s brother in 2001. The accused, Michael Naud was found to be
acting in self-defence and was acquitted. Mr. Naud’s lawyer wrote a letter to
the institution where the Applicant was detained to report threats made by the
Applicant. The Applicant submits that the Minister’s reference to these events
is in error because the Applicant was never charged in connection with these
events, and, as a result any suggestion that the Applicant was involved is mere
speculation.
[42]
Again,
I am not convinced that the Minister erred. If the speculation relating to the
intimidation and killing of Mr. Naud were the only evidence relied on by the
Minister to find that the Applicant was not rehabilitated, it might be arguable
that the Minister’s finding was unreasonable. However, the newspaper article
and anecdotal evidence were only supplementary to other evidence suggesting
recidivism on the part of the Applicant.
[43]
The
Minister referred to a CSC report explaining that, notwithstanding the
Applicant’s successful completion of programming during his incarceration in
2002, his day parole was later revoked when he was found in possession of a
loaded handgun and marijuana and to have been making threats of violence in
retribution for the acquittal of Mr. Naud. In 2006, the Applicant was released
on bail, but was later found to be in beach of his recognizance. He was
charged with possession of ecstasy, a firearm offence and a driving offence.
These charges appear to have been stayed.
[44]
Counter
to the Applicant’s submission, the Federal Court of Appeal has confirmed that
the Minister can consider the underlying circumstances of withdrawn or
dismissed charges at an immigration hearing, but cannot rely on such charges,
in and of themselves, as evidence of an individual’s criminality (Sittampalam
v Canada (Minister of Citizenship and Immigration), 2006 FCA 326,
[2007] 3 FCR 198 at paras 50, 51; see Sittampalam v Canada (Minister of Citizenship
and Immigration), 2007 FC 687, 62 Imm LR (3d) 271 paras 34 – 38). Justice Anne Mactavish
made the distinction between the utility of the fact of an outstanding charge
alone, and the evidence underlying a charge in Thuraisingam v Canada
(Minister of Citizenship and Immigration), 2004 FC 607, 251 FTR 282 at para
35:
[35] La, Bakchiev, Bertold and
Dokmajian each relate to situations where the Minister's delegate relied on the
existence of outstanding charges to support a danger opinion. In each case,
this was found to be a reversible error. In my view, a distinction must be drawn
between reliance on the fact that someone has been charged with a criminal
offense, and reliance on the evidence that underlies the charges in question.
The fact that someone has been charged with an offense proves nothing: it is
simply an allegation. In contrast, the evidence underlying the charge may
indeed be sufficient to provide the foundation for a good-faith opinion that an
individual poses a present or future danger to others in Canada.
[45]
Moreover,
the Minister is not bound by the evidentiary rules of a criminal court, and is
entitled to rely on evidence which is relevant, credible and reliable (Krishnan
v Canada (Minister of Citizenship and Immigration), 2007 FC 846, 63 Imm LR
(3d) 38 para 15). In any case, this is not a case where the Minister seeks to
support his danger opinion with outstanding criminal charges. Given the
totality of the evidence, I am not convinced that the Minister’s consideration
of events described in the newspaper article for which the Applicant was not
charged amounts to a reviewable error. The newspaper article did not receive
undue weight. The conclusion that the Applicant failed to show that he had
rehabilitated himself was reasonably open to the Minister based on the
Applicant’s criminal history, the most recent conviction occurring after the
Applicant moved across the country to start life afresh.
G. Did
the Minister Adequately Consider the Best Interests of the Child?
[46]
The
Applicant submits that the Minister failed to give serious weight to the best
interests of the child and does not provide an adequate analysis into the
hardship the child would suffer if the Applicant were deported.
[47]
The
Applicant has a five year old Canadian born daughter. During the Applicant’s
incarceration she lived with her mother (the Applicant’s wife), who lives with
the Applicant’s relatives. The Minister noted that the Applicant was arrested
for drug and dangerous driving offences shortly before her birth in 2005. He
was released on bail before she was born, but breached his bail conditions and
has been incarcerated since July 30, 2006. Consequently, the Applicant has
spent not quite 12 months with his daughter. The Minister noted that the
Applicant was not deterred from engaging in criminal activity by knowing it
would result in time away from his daughter and that the child does not really
know her father. The Minister acknowledged that the Applicant’s removal from Canada would cause
the family distress; however, considering that the mother and child have
decided to accompany the Applicant if he is removed, the Minister concluded
that the child would not suffer unduly.
[48]
The
Applicant submits that time spent with the child is an irrelevant consideration
as to what is in the child’s best interests and that the Minister’s analysis is
improper. In the Applicant’s opinion, the Minister ought to have considered
that the Applicant will face discrimination in Lebanon and will not be able to
provide for the child the way he would be able to if he remains in Canada.
[49]
The
Minister specifically turned his mind to the best interests of the Applicant’s
daughter and considered the Applicant’s submissions on the issue. The Minister
found that the H&C considerations did not outweigh the danger the Applicant
poses to the Canadian public. The Court is not to re-weigh the factors
considered by the Minister, but to ensure that relevant factors were not
ignored. Such would constitute a reviewable error. I agree with the
Respondent that in this case there is no reviewable error. The Minister
considered the issues and concluded that since the child would accompany her
mother and father to Lebanon, she would not suffer
unduly. The Applicant disagrees with the result, but cannot mandate how the
analysis ought to be done. Although the Minister did not explicitly mention
that the Applicant would be less able to provide for his daughter in Lebanon,
the Minister had previously acknowledged that the Applicant’s freedoms would be
somewhat more limited in Lebanon than in Canada.
Nonetheless, the Applicant would still have much freedom, and as Canadian
citizens his wife and daughter will not face the same discrimination that he
may face in Lebanon.
[50]
The
best interests of the child are one consideration, but it is not alone
determinative of the case. After recently summarizing the case law on best
interests of the children in Khoja v Canada (Minister of Citizenship and
Immigration), 2010 FC 142, Justice Michel Shore reminded the
Court at para 43:
[43] The cases of Hawthorne
and Legault, above, state that an applicant is not entitled to a
positive decision even if the best interests of the child would favour such an
outcome. In the majority of circumstances, the best interests of the child
would favour residing in Canada with his or her parents, but
this is only one factor to be weighed by the H&C officer in reaching a
decision.
[51]
The
best interests of the child cannot trump the rest of the Minister’s
assessment. In any case, I am satisfied that the Minister’s conclusion is
within the range of acceptable outcomes, and it is not the place of this Court
to intervene.
V. Conclusion
[52]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
[53]
The
Applicant has requested that I certify a question in the event I dismiss the
application for judicial review. It is clear that the question would be
similar to the second question proposed for certification in Hasan,
above:
2. For the purpose of the
balancing exercise in s. 115(2), where the individual concerned is a Convention
refugee, does the onus rest on the individual to show that the risk which led
to the refugee determination continues or does the finding that a person is a
Convention refugee create a rebuttable presumption that the person is at risk
on return?
The Applicant would add to this whether:
The ruling in Németh, above, changes the prior law with
respect to this issue.
[54]
In
my view, for the reasons above, it is clear that Németh, above, has not
affected the jurisprudence with respect to operation of paragraph 115(2)(a) and
the exception it creates to the principle of non-refoulement set out in subsection
115(2). As such, I share the view of Justice Judith Snider in Hasan,
above, with respect to a similar question that there is no need to certify a
question that has been settled by the jurisprudence.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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