Docket: IMM-1528-11
Citation: 2011 FC 1131
Toronto, Ontario, October 4,
2011
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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JOSE MAURICIO DELGADO
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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 ORDER AND ORDER
[1]
This
is an application for a judicial review seeking to set aside a decision made by
the Minister’s Delegate dated January 6, 2011 wherein it was determined that
the Applicant would not be at risk if he were to be returned to Angola. For the
reasons that follow, the application is dismissed.
[2]
The
Applicant is an adult male citizen of Angola. Together with his
wife, the Applicant sought refugee protection in Canada. The
Immigration and Refugee Board allowed his wife’s claim but found that the
Applicant was excluded from consideration for refugee status by reason of
Article 1F(a) of the Convention. The Applicant sought a Pre-Removal Risk
Assessment (PRRA). By a decision dated May 3, 2005 a PRRA Officer determined
that the Applicant would be at risk if he were to be removed to Angola.
[3]
A
Restriction Assessment was conducted by the Canada Border Services Agency
pursuant to subsection 172(2)(b) of the Immigration and Refugee Protection
Regulations SOR/2002-227. In a report dated January 13, 2003, the Agency
concluded that the Applicant was complicit in crimes against humanity having
regard to his membership in a group known as UNITA.
[4]
The
Minister’s Delegate made an inquiry as to risk in accordance with subsections
112(3)(c), 113(d)(ii), 97(1)(a) and (b), and 114(1)(b) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). In a decision dated
the 6th day of January, 2011, the Minister’s Delegate rejected the
Applicant’s application for a stay of removal. It was concluded that, on
balance, there was insufficient evidence to demonstrate risk to life or that
the Applicant would face more than a mere possibility of cruel and unusual
treatment and punishment or torture in Angola.
[5]
The
Applicant’s Counsel based his argument as to why the Minister’s Delegate’s decision
should be set aside on three grounds:
a. Under the
scheme of IRPA and the Regulations the decision should be made by a PRRA
Officer, not the Minister’s Delegate;
b. The
Minister’s Delegate failed to give proper consideration to country conditions
in Angola; in particular, various reports submitted on behalf of the Applicant
were seemingly ignored; and
c. The
Minister’s Delegate failed to give any consideration as to whether the
Applicant, on arrival in Angola, would be forthwith detained and subject
to unusual punishment or torture even if he were to be released eventually.
[6]
As
to the first argument, the issue was substantially considered by Justice Shore of
this Court in Placide v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1056. At paragraph 60 to 62 of
that decision, Justice Shore set out the scheme of
the relevant provision:
60 In
general, any foreigner who is subject to a removal order that is in force and
who is not named in a security certificate or a danger opinion may apply to the
Minister for protection (subsection 112(1) of the IRPA). If a foreigner, like
Mr. Placide, is described in subsection 112(3) of the IRPA, refugee protection
may not result (subsection 112(3) in limine). Consideration of such a person's application, in
contrast to that of a regular application, which is considered on the basis of
sections 96 to 98 of the IRPA, is -- in a situation such as Mr. Placide's -- on
the basis of the grounds for protection set out in section 97 and the nature
and severity of acts committed by the applicant or the danger that the
applicant constitutes to the security of Canada (subparagraph 113(d)(i) of the IRPA).
61 Before
making a decision, the Minister's delegate must take into consideration the
written assessments of the grounds for protection
described in section 97 and the factors set out in subparagraph 113(d)(i) of the IRPA (subsection 172(1) of the IRPR). The two
assessments are disclosed to the applicant, who has 15 days to file written
submissions with the Minister's delegate. If the delegate concludes that the
applicant is not described in section 97, he or she is not required to take the
factors set out in subparagraph 113(d)(i) into consideration and can reject the application for refugee
protection (subsection 172(4) IRPR). This process is in fact a codification of Suresh v. Canada (Minister of Citizenship and
Immigration), [2002] 1 S.C.R. 3,
2002 SCC 1, at paras. 122-123).
62 Finally,
if, however, the Minister's delegate concludes that the applicant would be
subjected to a risk described in section 97, he or she must assess the factors
set out in subparagraph 113(d)(i) and, if applicable, conduct a balancing exercise to determine
whether the applicant's situation is exceptional enough to warrant his removal
to a country where torture is used (paragraph 113(d) of the IRPA; Suresh, above, at paras. 76-79; Charkaoui
(Re), [2006] 3 F.C.R. 325, 2005
FC 1670, at paras. 12-13)).
[7]
Applicant’s
Counsel argued by analogy to the Federal Court of Appeal decision in Nagalingam
v Canada (Minister of Citizenship and Immigration), [2009] 2 FCR 52 and
with reference to the word “made” in subsection 172(4)(a) of the Regulations,
that the PRRA Officer and not the Minister’s Delegate is the proper person who
must determine the risk to the Applicant. I disagree.
[8]
This
matter also was considered by Justice Shore in Placide,
supra. He wrote at paragraphs 63 to 65:
63 In
this context, it is obvious that the PRRA officer who conducted the assessment,
dated November 16, 2007, merely gave advice or made a suggestion that is not
binding upon the Minister's delegate. In accordance with section 6 of the IRPA,
the Minister did not delegate to the PRRA officer but to National Headquarters
only the power to dispose of an application for protection described in
subsection 112(3) of the IRPA (Immigration Manual, ch. 1L3, CIC Instrument of
Designation and Delegation, Item 48 (Delegated authority - Form an opinion whether,
in relation to the eligibility of a claim under subsection 101(2) of the Act, a
person who is inadmissible on grounds of serious criminality by reason of a
conviction outside Canada is a danger to the public in Canada.) This is
delegated to National Headquarters).
64 In
fact, case law requires that the delegate make the decision himself and give
reasons for it: "the reasons must also emanate from the person making the
decision, in this case the Minister, rather than take the form of advice or suggestion"
(Suresh,
above, at para. 126). The process is similar to that of Thomson
v. Canada (Deputy
Minister of Agriculture), [1992] 1 S.C.R. 385, at pages 399 to 401,
in which the Court ruled that the holder of a power who receives a
recommendation is not required to follow it (case law has several similar
examples: Jaballah (Re), [2005] 1 F.C.R. 560,
2004 FCA 257, at paras. 17-22 (PRRA; obiter); Robinson
v. Canada (Canadian Human Rights Commission) (1995), 90 F.T.R. 43, 52
A.C.W.S. (3d) 1098, at para. 23; Jennings v. Canada
(Minister of Health) (1995), 97 F.T.R. 23, 56 A.C.W.S. (3d) 144,
at paras. 31-32, aff'd by (1997), 211 N.R. 136, 56 A.C.W.S. (3d) 144, leave to
appeal to S.C.C. refused, see [1997] S.C.C.A. No. 319; Abdule
v. Canada (Minister of Citizenship and Immigration) (1999), 176 F.T.R.
282, 92 A.C.W.S. (3d) 578 at para. 14).
65 Otherwise,
the Minister's delegate would not really be exercising the power conferred on
him. The Minister's delegate would merely be approving assessments administratively
and giving them force of law. This would essentially give PRRA officers a
decision-making power which the Minister decided to delegate to another officer
in the public service.
[9]
The
analogy to Nagalingam is misplaced. That case dealt with a different
section of IRPA, section 115, and while some wording is similar to the
provisions at issue here, they are not identical. Justice Shore in Placide
considered the identical sections.
[10]
Reference
to the word “made” in subsection 172(4) does not assist the Applicant. It
reads:
172. (4) Despite
subsections (1) to (3), if the Minister decides on the basis of the
factors set out in section 97 of the Act that the applicant is not
described in that section,
(a) no written assessment on the basis of the factors set out in
subparagraph 113(d)(i) or (ii) of the Act need be made; and
(b) the application is rejected.
[11]
It
must be kept in mind that a Regulation cannot override the Act. We can
understand the term “made” in subsection 172(4) to pertain generally to whether
or not the Minister or his Delegate needs to provide or “make” a written
assessment regarding the application of subsections 113(d) (i) or (ii) to the
Applicant’s case. In the matter at bar, since the Minister’s Delegate decided
that the Applicant was not subject to s. 97 of IRPA “no written assessment on
the basis of the factors set out in subsection 113(d)(i) or (ii) of the Act need
be made” (in the words of the IRPA).
[12]
As
to the second ground, that is, whether the Minister’s Delegate failed to give proper
consideration to the country condition material submitted on behalf of the
Applicant, it is true that the Delegate quoted extensively from only one
source, however, it is to be noted that the Delegate’s decision concludes by
saying that the Delegate has reviewed and considered the entirety of the
submissions from the Applicant, the Restriction Assessment, and all attendant
documentation. The case law is abundant that not every piece of documentation
needs to be referred to in a decision such as this. I am satisfied that the
documentation referred to, at length, by the Delegate is probably the most
pertinent. There is nothing to suggest that any pertinent material that may
have led to a different conclusion was ignored.
[13]
The
third ground raised by Applicant’s Counsel at the hearing was that the
Minister’s Delegate did not take into consideration the treatment that the
Applicant might receive were he to be incarcerated immediately upon entry into Angola, even if he
were later released. This argument was not raised with the Minister’s Delegate.
There is no evidence in the record to support an allegation that the Applicant
is likely to be arrested upon entry into Angola. While there
is a warrant for his arrest issued many years ago still outstanding, an amnesty
has been declared in Angola respecting matters pertinent to the arrest
warrant. The Applicant bears some burden to place on the record some evidence
to support the allegations now raised that he would be arrested upon his return
to Angola. He has not.
[14]
I
therefore find no basis for setting aside the decision of the Minister’s
Delegate.
[15]
Counsel
for the Applicant has submitted questions for certification. Counsel for the
Minister argues that this is not a case for certification. I have carefully
considered those questions. No question will be certified.
[16]
There
is no special reason to award costs.
ORDER
FOR THE
REASONS PROVIDED:
THIS COURT
ORDERS that:
1.
The
application is dismissed;
2.
There
is no certified question; and
3.
There
is no order as to costs.
“Roger T. Hughes”
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