Date: 20070228
Docket: IMM-6447-05
Citation: 2007 FC 229
Ottawa, Ontario, February 28th,
2007
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
PANCHALINGAM
NAGALINGAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
and THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of the
Opinion of the Minister pursuant to paragraph 115(2)(b) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), that the applicant,
a Convention refugee, should not be allowed to remain in Canada because:
1.
he is inadmissible on grounds of organized criminality;
2.
the nature and severity of acts committed justify refoulement
under the Act; and
3.
the applicant’s removal would not subject him to a substantial
risk of torture, cruel or unusual punishment or persecution.
[2]
This application raises for the first time
serious questions of general importance with respect to the refoulement or
removal from Canada of refugees
who have been found to be persons inadmissible on grounds of organized
criminality.
Background
[3]
The applicant is a 32 year-old citizen of Sri Lanka. He came to Canada in August 1994 and applied for
refugee status, which was granted in March 1995. He became a permanent resident
of Canada in March 1997.
[4]
On August 24, 2001, the applicant became the
subject of a report under the former Immigration Act, R.S.C. 1985, c.
I-2 (the former Act), which alleged that he was inadmissible to Canada on
grounds of organized criminality, namely being a member of the A.K. Kannan
Tamil gang.
[5]
On October 18, 2001, the applicant was arrested
and detained based on the danger he represented to the public if released. On
June 8, 2003, the Immigration Division of the Immigration and Refugee Board
(the Board) ordered that the applicant be released on terms and conditions.
However, that decision was quashed by Mr. Justice John O’Keefe on December 17,
2004 in Canada
(Minister of Citizenship and Immigration) v. Nagalingam, 2004 FC 1757.
[6]
On May 28, 2003, the Board found the applicant
to be inadmissible to Canada
for organized criminality under paragraph 37(1)(a) of the Act. The Board
ordered that the applicant be deported. On October 12, 2004, Madam Justice
Elizabeth Heneghan dismissed the applicant’s application for judicial review of
the Board’s decision concerning his inadmissibility: Nagalingam v. Canada (Minister of Citizenship and
Immigration), 2004 FC 1397.
[7]
On July 5, 2003, the respondent served notice on
the applicant that a determination would be made under paragraph 115(2)(b) of
the Act as to whether he should not be allowed to remain in Canada based on the nature and severity of
the acts committed. The applicant provided submissions and evidence under cover
letters dated August 8, 2003 and November 11, 2003.
[8]
On July 20, 2004, the respondent sent the
applicant a document titled “Request for Minister’s Opinion” dated July 13,
2004. The applicant was invited to provide further submissions on the material
disclosed. The applicant provided further submissions and evidence on August 3,
2004.
The decision under review
[9]
On October 4, 2005, the respondent issued the
Opinion of the Minister pursuant to paragraph 115(2)(b). The Minister first
considered “the nature and severity of the acts committed”, and then assessed
the applicant’s risk of torture or to cruel or unusual treatment or punishment
or persecution, as the Federal Court of Appeal recognized in Ragupathy v.
Canada (Minister of Citizenship and Immigration), 2006 FCA 151 at paragraphs
16-19, is required under section 7 of the Charter.
[10] In his opinion, the Minister found that the applicant was a member
of the A.K. Kannan gang and involved in its criminal activities. He found that
the gang had been involved in significant and serious criminal activity against
civilians and a rival VVT gang. These activities included murder, attempted
murder, human trafficking, extortion, drug trafficking, credit card fraud,
welfare fraud, weapons trafficking, robbery, kidnapping, and the intimidation
of witnesses in criminal proceedings.
[11] The Opinion of the Minister pursuant to paragraph 115(2)(b) of the
Act detailed criminal convictions, criminal charges and “occurrence reports”
with respect to the applicant. The information included:
1.
three criminal convictions, two of which resulted in imprisonment for
short periods of time;
2.
criminal charges for being in possession of a meat cleaver and
concealment of the weapon (the meat cleaver), intimidation of witnesses from
testifying in criminal proceedings, and assault; and
3.
being shot at five times following his departure from a correctional
institution and the applicant’s vehicle being fired upon while his spouse and
child were in the car.
[12] The Minister referred specifically to the acts committed by A.K.
Kannan gang. The Minister stated as a fact that the A.K. Kannan gang has been
involved in significant and serious criminal activity including violence. The
opinion quotes from a Toronto Police report which states that the A.K. Kannan gang,
and a rival gang, “are involved in criminal acts including murders, attempted
murders, serious assaults, extortions, kidnappings, frauds, drugs and weapons
offences”. At paragraph 16, the Minister’s Opinion stated:
In terms of the
nature and severity of the acts committed, the evidence shows the existence of
facts supporting Mr. Nagalingam’s membership in and involvement in the criminal
activities of the A.K. Kannan, the fact that Tamil gangs, including the A.K.
Kannan, pose a unique and pressing threat to Canadian society, and the fact
that the A.K. Kannan has been involved in significant and serious criminal
activity against civilians and a rival gang (i.e. the VVT), including violence.
[13] The Minister concluded that the nature and severity of the acts
committed by the applicant’s gang were “serious and significant”, and that the
applicant’s risk of harm upon return to Sri Lanka was a mere possibility. The Minister further considered the
applicant’s humanitarian and compassionate considerations, including the
presence of his common-law spouse, Canadian born child and other family members
in Canada. The Minister
concluded that, given that the applicant did not face a substantial risk of
torture, a risk to life or a risk of cruel and unusual treatment or punishment,
and that the applicant’s humanitarian and compassionate considerations did not
warrant favourable consideration, the nature and severity of the acts committed
were determinative and, as such, the applicant should not be allowed to remain
in Canada.
Procedural History
[14] On October 25, 2005, the applicant filed this application for leave
and judicial review contesting the Minister’s opinion. On November 16, 2005,
the applicant applied for a stay of the execution of his removal order, which
was scheduled to be executed on December 5, 2005.
[15] On December 2, 2005, Madam Justice Eleanor Dawson issued a decision
dismissing the stay motion. Dawson J. found that there was a serious issue concerning whether the Minister
properly considered the phrase “the nature and severity of acts committed” in
paragraph 115(2)(b). However, Dawson J. found that the evidence did not establish that the applicant would
face irreparable harm if removed to Sri Lanka.
[16] The applicant brought a second motion for a stay on December 4, 2005
before the Ontario Superior Court of Justice. On December 5, 2005, Mr. Justice
Wilson issued a decision concluding that the Court should neither assume
jurisdiction nor grant the injunctive relief sought by the applicant. The
respondents’ cross motion for a permanent stay of the proceedings was granted.
The applicant was removed from Canada the same day.
Issues
[17]
This application raises the following issues:
1.
Did the Minister err in concluding that the applicant’s removal
to Sri Lanka would not expose him to a substantial risk of torture or a risk to
life or to cruel and unusual treatment or punishment?
2.
If, in the preparation of an opinion under paragraph 115(2)(b),
the Minister finds that a refugee who is inadmissible on grounds of organized
criminality does not face a risk of persecution, torture, cruel and unusual
punishment or treatment upon return to his country of origin, does such a
finding render unnecessary the Minister’s consideration of the “nature and
severity of acts committed” under paragraph 115(2)(b)?
3.
Did the Minister err in interpreting paragraph 115(2)(b) by
considering the “nature and severity of the acts committed” by the criminal
organization as opposed to the applicant personally?
4.
Did the Minister err in failing to consider the applicant’s risk
of persecution?
5.
Does paragraph 115(2)(b) target non-citizens in a manner that is
contrary to section 7 of the Canadian Charter of Rights and Freedoms?
Standard of Review
[18] With respect to factual findings, the Minister is entitled to
considerable deference in light of his relative expertise in assessing risk of
harm and the severity of acts committed. As the Supreme Court of Canada held in
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at paragraph 41, the Court should not reweigh
the factors considered by the Minister provided that the decision is not
patently unreasonable. The Court’s determination of the standard of review in Suresh
was based on the danger opinion provisions under paragraph 53(1)(b) of the
former Act. The same level of deference should apply to a Minister’s opinion
issued under section 115 of the current Act: Thanabalasingham v. Canada
(Minister of Citizenship and Immigration), 2005 FC 172; Dadar v. Canada (Minister of Citizenship and
Immigration), 2004 FC 1381; Fabian v. Canada (Minister of Citizenship and
Immigration), 2003 FC 1527.
[19] With respect to questions of law, the Minister enjoys no expertise
relative to the reviewing Court, and a standard of correctness applies.
Relevant Legislation
[20] The legislation relevant to this application is as follows:
1. Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11;
2. Immigration
and Refugee Protection Act, S.C. 2001, c. 27; and
3. Immigration
Act, R.S.C. 1985, c. I-2.
[21] The key provision of this legislation are sections 37 and 115 of the
Act, which provide as follows:
|
Organized criminality
37. (1) A permanent
resident or a foreign national is inadmissible on grounds of organized
criminality for
(a) being a member of an organization that is believed on reasonable
grounds to be or to have been engaged in activity that is part of a pattern
of criminal activity planned and organized by a number of persons acting in
concert in furtherance of the commission of an offence punishable under an
Act of Parliament by way of indictment, or in furtherance of the commission
of an offence outside Canada that, if committed in Canada, would constitute
such an offence, or engaging in activity that is part of such a pattern; or
(b) engaging, in the context of transnational crime, in activities such
as people smuggling, trafficking in persons or money laundering.
Application
(2) The following provisions govern subsection (1):
(a) subsection (1) does not apply in the case of a permanent resident or
a foreign national who satisfies the Minister that their presence in Canada would not be
detrimental to the national interest; and
(b) paragraph (1)(a) does not lead to a determination of inadmissibility
by reason only of the fact that the permanent resident or foreign national
entered Canada with the assistance of a person who is involved in organized
criminal activity.
[…]
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.
|
Activités de criminalité organisée
37. (1) Emportent interdiction de territoire pour criminalité
organisée les faits suivants :
a) être membre d’une organisation dont il y a des motifs raisonnables
de croire qu’elle se livre ou s’est livrée à des activités faisant partie
d’un plan d’activités criminelles organisées par plusieurs personnes agissant
de concert en vue de la perpétration d’une infraction à une loi fédérale
punissable par mise en accusation ou de la perpétration, hors du Canada,
d’une infraction qui, commise au Canada, constituerait une telle infraction,
ou se livrer à des activités faisant partie d’un tel plan;
b) se livrer, dans le cadre de la criminalité
transnationale, à des activités telles le passage de clandestins, le trafic
de personnes ou le recyclage des produits de la criminalité.
Application
(2) Les dispositions suivantes régissent l’application du
paragraphe (1) :
a) les faits visés n’emportent pas interdiction de
territoire pour le résident permanent ou l’étranger qui convainc le ministre
que sa présence au Canada ne serait nullement préjudiciable à l’intérêt
national;
b) les faits visés à l’alinéa (1)a) n’emportent pas
interdiction de territoire pour la seule raison que le résident permanent ou
l’étranger est entré au Canada en ayant recours à une personne qui se livre
aux activités qui y sont visées.
[…]
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.
|
Analysis
Preliminary issue: Affidavit of Professor Rudramoorthy Cheran
[22] At the outset of the hearing, the parties made submissions with
respect to an affidavit sworn by Professor Rudramoorthy Cheran. As I indicated
at the hearing, this affidavit is not relevant to the arguments under section 7
of the Charter or with respect to the removal of the applicant under paragraph
115(2)(b) of the Act. It became clear during the course of the hearing that
there was nothing in this affidavit upon which the applicant sought to rely.
Accordingly, the admissibility of this affidavit became a non-issue.
Issue No. 1: Did the Minister err in
concluding that the applicant’s removal to Sri Lanka would not expose him to a substantial risk of torture or a risk to
life or to cruel and unusual treatment or punishment?
[23] The applicant argues that the Minister ignored or misinterpreted the
evidence relating to the risk faced by the applicant in Sri Lanka. In particular, the applicant
argues that the Minister:
a.
failed to give any weight to the finding of the
Convention Refugee Determination Division (CRDD) that the applicant is a
Convention refugee;
b.
misinterpreted and selectively read the 2003 and
2004 US Department of State Country Reports for Sri
Lanka;
c.
relied on irrelevant evidence;
d.
ignored or misinterpreted the applicant’s
personal circumstances and personal risk upon return to Sri Lanka; and
e.
ignored relevant portions of the evidence
submitted by the applicant on November 11, 2003 and August 3, 2004.
a. Did the Minister fail to give weight to the CRDD’s finding that the
applicant is a Convention refugee?
[24] With respect to the applicant’s first objection, the Minister
specifically considered the applicant’s status as a refugee at paragraph 39 of
his Opinion:
I
note that Mr. Nagalingam left Sri Lanka in 1994, some ten years ago when he was 21 years of age. I
certainly acknowledge that Mr. Nagalingam was found to be a Convention refugee
by the CRDD, however, this decision was rendered in 1995, some ten years
ago. In my view, conditions in Sri Lanka are vastly different than when Mr.
Nagalingam left that country for Canada in 1994, and when he was found to be a Convention refugee in 1995.
In my view, the conditions in Sri Lanka today demonstrate a change of circumstances as outlined on page 3
of Mr. Nagalingam’s lawyer’s letter dated August 3, 2004 in that they are
“significant”.
[Emphasis added]
[25] It cannot be said that the Minister failed to give any weight to the
CRDD’s determination. The Minister acknowledged the applicant’s refugee status.
However, as the Minister’s Opinion states, having Convention refugee status
does not conclusively determine the issue of whether there is a substantial
risk of torture or persecution several years after the refugee status is granted.
The Minister reviewed the available evidence to determine whether the current
country conditions in Sri Lanka
gave rise to a present substantial risk of harm. He clearly explained the
reasons why he chose not to rely on the CRDD’s determination made ten years
earlier. As the Court held in Camara v. Canada (Minister of Citizenship and
Immigration), 2006 FC 168, the fact that the CRDD considered a person to be
at risk in the past does not establish that he is still at risk several years
in the future. Accordingly, there is no merit to the applicant’s objection that
the Minister failed to give weight to the CRDD’s determination.
b. Did the Minister ignore relevant evidence?
[26] The applicant argues that the Minister ignored relevant evidence
contained within the 2003 and 2004 US Department of State Country Reports for Sri Lanka. In particular, the applicant
argues that the Minister ignored several findings including those that the
“military and police reportedly tortured, killed and raped detainees”, the state
conducted “arbitrary arrests”, and that the LTTE committed “serious human
rights abuses”.
[27] At pages 12 to 17 of the Opinion, the Minister provides a summary of
the relevant information contained within the U.S. Department of State Country
Reports for 2003 and 2004. It is true that the Minister did not repeat in his Opinion
all of the evidence available to him in these reports. However, I am not
persuaded that the Minister ignored relevant evidence.
[28] The evidence before the Minister was voluminous and it would be
unreasonable to require that he address or quote comprehensively from each
portion of each piece of evidence that was before him. Nor do I find that the
Minister was unduly selective in his consideration of the evidence. Within
paragraph 40 of his opinion, the Minister identified the salient points that
have been raised by the applicant: he referred on page 13 to the fact that “the
military and police reportedly tortured, killed and raped detainees.” He
acknowledged the reports of arbitrary arrest within the same summary. He also
noted that “Violence against religious minorities increased, and
institutionalized ethnic discrimination against Tamils remained a problem” and
that “The LTTE continued to commit serious human rights abuses.” Contrary to the
applicant’s submission, the Minister’s Opinion includes a thorough review of
the evidence including the facts which the applicant argues were ignored by the
Minister. The applicant’s challenge to the Minister’s factual findings on the
basis that he ignored relevant evidence cannot succeed. Therefore the factual
findings of the Minister are not patently unreasonable on the basis that he
ignored relevant evidence.
c. Did the Minister rely on irrelevant evidence?
[29] The applicant argues that the Minister relied on irrelevant
evidence, categorized by the applicant as follows: (i) evidence regarding the
relative peacefulness of recent elections; (ii) public political statements in
support of the peace process; and (iii) a European Court decision finding that in
the “particular circumstances of [that] case” it had not been established that
the individual, a Tamil male, would face substantial risk of torture in Sri Lanka, to support his conclusion that
the applicant would not be at risk if returned.
[30] Evidence relating to recent elections and the peace process, while
not determinative of current conditions in a country or the risk faced by a
particular applicant if returned to that country, is relevant to the Minister’s
factual inquiry. With respect to the Minister’s reference to the judgment of
the European Court of Human Rights in Thampibillai v. The Netherlands,
it would not be appropriate for the Minister to base his conclusion regarding
the applicant’s risk of torture if returned to Sri
Lanka on this decision. However, it is clear from the
Minister’s reasons for decision that his reference to the European Court’s judgment was simply obiter.
I do not agree that the Minister’s decision is patently unreasonable on account
of the Minister’s consideration of any of the evidence identified by the
applicant. The applicant’s challenge on this basis must fail.
d. Did the Minister ignore or misinterpret the applicant’s personal
circumstances and personal risk upon return to Sri
Lanka?
[31] The applicant argues that the Minister ignored or misinterpreted the
evidence regarding the applicant’s personal circumstances and personal risk if
returned to Sri Lanka.
Specifically, the applicant argues that the Minister misconstrued evidence
relating to the public allegations about the applicant, his connection to the
A.K. Kannan gang, and A.K. Kannan’s alleged connection to the LTTE. Instead,
the applicant argues, the Minister relied selectively on evidence supporting
the conclusion that Tamil returnees are generally not at risk in Sri Lanka.
[32] The applicant’s objection on this ground relates to the Minister’s
treatment of evidence as described in paragraph 45 of his Opinion:
Much
concern has been expressed over the treatment that would be accorded to
returning deportees. In particular, Mr. Nagalingam has indicated that as a
result of his being associated with the A.K. Kannan gang which is associated
with the LTTE, he expects to be targeted for adverse treatment should he be
returned to Sri Lanka. In connection with this fear, I take cognizance of
the material from the Research Directorate of the [Board] dated August 5, 2003
[…] indicating that in fact this is not the case for persons returning in
possession of the necessary documentation – which would be the situation for
Mr. Nagalingam. I quote as follows: “To the best of our knowledge,
allegations that returnees to Sri Lanka, i.e. deportees and failed asylum seekers, are tortured on return
is a complete fabrication. There is a well established procedure for dealing
with returnees, which we have discussed on several occasions with senior
level[s] of the Ministry of Interior. Although standard procedure is for
deportees to be routinely referred to the Airport Division of the Criminal
Investigation Division (CID) for interview on return, in our experience there
are no arbitrary detentions without due process, and certainly no torture. Returnees
who do not have pending arrest warrants or active charges in Sri Lanka are simply released.” Further “Some deportees are questioned for a short period and then
allowed to leave the airport; others are not questioned at all” – this was
information received from the United Nations High Commissioner for Refugees in Sri Lanka. That article also revealed that
the Swiss government operated a “safe house” to assist returnees in become
re-integrated into Sri Lanka –
however, this house was closed due to a lack of use. A review of the
material before me does not indicate that an arrest warrant for Mr. Nagalingam
exists in Sri Lanka or that he would be of any overriding interest to Sri Lankan
authorities. […]
[Emphasis added]
[33] As the excerpt above indicates, the Minister considered information
generally applicable to Tamil returnees but also applied this information to
the particular circumstances of the applicant. Nothing in my review of the
evidence indicates that the Minister’s treatment of the evidence was unduly
selective or capricious. Based on the evidence available to the Minister, I
conclude that it was open to Minister to make the factual findings he did with
respect to the applicant’s personal circumstances and risk upon return to Sri Lanka.
[34] The applicant also referred the Court to the submissions and
evidence he provided to the Minister on August 8, 2003. At that time, the
applicant stated that he was not a member of the A.K. Kannan group and that the
public allegations of his membership put him at risk in the event that he was
returned to Sri Lanka. At
paragraphs 16 and 17 of his opinion, the Minister addresses the evidence
establishing the applicant’s membership and involvement in the A.K. Kannan gang.
This evidence includes a recorded and transcribed conversation between police
officers and an informant identifying the applicant as a member of the gang,
the Board’s previous decision concluding that the applicant was a member, and
the Federal Court judgement which upheld the Board’s decision on judicial
review. The Minister’s Opinion thoroughly sets out his reasons for preferring
certain portions of evidence to others where conflicts existed. It was open to
the Minister to accept, reject and weigh the evidence before him. Upon
reviewing the evidence before the Minister, I cannot conclude that his
treatment of the evidence was patently unreasonable.
e. Did the Minister ignore relevant portions of the evidence submitted
by the applicant on November 11, 2003 and August 3, 2004?
[35] The applicant argues that the Minister ignored “the majority of the
human rights evidence put before him by counsel on November 11, 2003 and August
3, 2004”. The respondents submit that decision-makers are presumed to have
weighed and considered all of the evidence before them unless the contrary is
shown and that the applicant has provided no evidence to rebut this
presumption.
[36] The evidence submitted by the applicant is encyclopaedic in its
scope. In the one-page cover letter dated November 11, 2003, the applicant’s
counsel summarized the 30 attached pages of attached information as follows:
As
you can see from the attached documentary evidence, the situation in Sri Lanka is very grave. The president of Sri Lanka has suspended the Parliament and
taken control of key areas of the government: the Ministry of Defence, the
Ministry of Interior and the Ministry of Mass Communications. The President,
Ms. Chandrika Kumaratunga, has also declared a state of emergency. This has put
on hold and seriously jeopardized the peace process in Sri
Lanka. The present situation, together with the
evidence before you of ongoing harassment, persecution, mistreatment and
torture of Tamils shows that Mr. Nagalingam is at risk of persecution, torture,
cruel and inhumane treatment and punishment, and risk to his life if he is
returned to Sri Lanka.
[37] The attachments consisted of internet news articles obtained from
Tamilnet.com and range in date from November 2, 2003 to November 6, 2003. The
attachments to the applicant’s counsel’s letter dated August 3, 2004 include
307 pages of reports and news articles ranging in date from February 2001 to
August 2004.
[38] The Minister states at paragraph 38 of his Opinion:
I
have carefully reviewed the entirety of the material in this case and I find
that there is insufficient evidence to support a finding that it is more likely
than not that Mr. Nagalingam faces a substantial risk of torture, or a risk to
life or to cruel and unusual treatment or punishment.
[39] The determination of an individual’s risk on return to a particular
country is largely a fact-driven inquiry. It requires consideration of the
human rights record of the country and the personal risk faced by an applicant.
These issues are generally outside the realm of expertise of reviewing courts.
I am not persuaded by the applicant’s suggestion that the Minister ignored or
improperly considered the evidence before him. Failing such an error, it is not
the role of this Court to interfere with the factual conclusions reached by the
Minister, nor is it appropriate for the Court to re-weigh the evidence before
the Minister. The issues raised by the applicant do not demonstrate that the
Minister’s conclusion, namely that the applicant would not face a substantial
risk of torture or a risk to life or to cruel and unusual treatment or
punishment, was patently unreasonable.
Issue No. 2: If, in the preparation
of an opinion under paragraph 115(2)(b), the Minister finds that a refugee who
is inadmissible on grounds of organized criminality does not face a risk of
persecution, torture, cruel and unusual punishment or treatment upon return to
his country of origin, does such a finding render unnecessary the Minister’s
consideration of the “nature and severity of acts committed” under paragraph
115(2)(b)?
[40] Having determined that the Minister’s finding—namely that the
applicant does not face a risk of harm upon removal to Sri Lanka--was not
patently unreasonable, the Court must consider whether the non-existence of
risk makes unnecessary an analysis of the nature and severity of acts committed
by the applicant under subsection 115(2) of the Act.
[41]
In Almrei v. Canada (Minister of Citizenship and Immigration), 2005 FC 355, Justice Blanchard set out the analysis
required when issuing a danger opinion under paragraph 115(2)(b) at paragraph
36:
¶36
Subsection 115(2) of the
IRPA requires that the Applicant initially establish that there are substantial
grounds upon which to believe that, if removed to Syria, he would be at risk of persecution on a Convention ground or at
risk of torture, death, or cruel or unusual treatment or punishment. If the
risk is not established, there is no need to pursue the analysis since the
applicant is not entitled to the protection afforded by subsection 115(1) of
the IRPA. This risk must be assessed on grounds that go beyond "mere
theory" or "suspicion" but something less than "highly
probable". This risk of torture must be "personal and present".
The threshold to be met has been recast by asking whether refoulement will
expose a person to a "serious" risk of torture. See Suresh (Court of
Appeal), at paragraphs 150-152.
[Emphasis added]
[42] Almrei dealt with a risk of torture and
an applicant inadmissible on security grounds. Nevertheless, the same two-step
analysis should also apply in the case of a person who is inadmissible on
grounds of organized criminality.
[43] Since the Minister reasonably concluded that there was no risk of
harm, the non-refoulement provisions under subsection 115(1) do not apply.
There was accordingly no need to “balance” competing interests under subsection
115(2).
[44] In Ragupathy v. Canada (Minister of Citizenship and Immigration),
2006 FCA 151, the Federal Court of Appeal considered whether the Minister was
required to consider the danger posed by an individual inadmissible on grounds
of serious criminality before assessing the risk of harm upon his
return. At paragraphs 31 and 32, Evans J.A., writing for the Court, stated:
For the reasons given above, I agree
that, since a finding that a protected person is a danger to the public by
virtue of his criminality is a prerequisite of removal, this is a logical
starting point in a delegate’s analysis. For, without a positive opinion on
this issue, the delegate’s inquiry must end, because the person cannot be
deported. Proceeding in this manner also avoids the possibility that the
delegate will assess whether a protected person is a “danger to the public” by
having regard to the risk of persecution.
However, neither the text of the
IRPA, nor the jurisprudence dictates as a matter of law in what order the
Minister’s delegate’s reasons must deal with the various elements of a “danger
opinion”. To my mind, this is more a matter of elegance than substance and does
not rise to the level of a legal requirement, especially given the degree of
discretion entrusted to delegates in the formulation of their opinion. In my
respectful opinion, the preferred ordering is not required either for a
protected person to understand the bases of a delegate’s opinion, or for a
court to determine whether the delegate had committed reviewable error in
performing the legal tasks entrusted to her.
[45] The Court of Appeal stated that the consideration of the danger
posed by an individual was a logical starting point because it is, in effect,
the sine qua non of deportation. The flip side of this coin, however, is
that a risk of harm upon deportation is the sine qua non of the
prohibition against refoulement. In Ragupathy, above, the Minister found
that there was a high level of danger to the public and a small chance that the
applicant would be persecuted or tortured if he was returned to Sri Lanka.
[46] In this case, the Minister first assessed the nature and severity of
acts committed. He then assessed the risk of harm upon removal as non-existent.
If he had reversed the order, as would be permitted under Ragupathy, the
assessment of the nature and severity of acts committed would have been
unnecessary since subsection 115(1) would not apply.
[47] On judicial review, therefore, only if the Minister’s conclusion
that the applicant did not face a risk of harm is found to be patently
unreasonable should it be necessary to review the Minister’s assessment of the
nature and severity of acts committed and the balancing of that assessment
against the risk of harm upon removal.
Is the Court’s interpretation of section 115
consistent with the Refugee Convention?
[48] In concluding that the prohibition against refoulement does not
apply where the Minister has determined an inadmissible refugee does not face a
risk of harm upon removal, the Court is also guided by the text of the Convention
Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6
(the Convention), which is the international law source for the prohibition
against refoulement. Paragraph 3(3)(f) of the Act directs that the Act “is to
be construed and applied in a manner that complies with international human
rights instruments to which Canada is signatory.” In interpreting paragraph
3(3)(f), the Federal Court of Appeal stated in De Guzman v. Canada (Minister of Citizenship and
Immigration), 2005 FCA 436, at paragraph 87:
¶87 Paragraph 3(3)(f) should be interpreted in
light of the modern developments in courts' use of international human rights
law as interpretative aids. Thus, like other statutes, IRPA must be interpreted
and applied in a manner that complies with "international human rights
instruments to which Canada is signatory" that are binding because
they do not require ratification or Canada has
signed and ratified them. […] Thus, a legally binding international human
rights instrument to which Canada is
signatory is determinative of how IRPA must be interpreted and applied, in the
absence of a contrary legislative intention.
[Emphasis added]
[49] Canada acceded to the Convention on June 4,
1969. The Convention is therefore legally binding on Canada under international law. Article 33(1) of the Convention provides
that:
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.
[Emphasis added]
[50] The applicant is a refugee. If he were no longer a refugee, the
Respondent could remove him from Canada based on his inadmissibility on grounds of organized criminality.
However, the applicant’s refugee status alone does not prevent his removal. The
Convention qualifies the prohibition against refoulement as applying only to
refugees whose life or freedom would be threatened on identified grounds. The
Minister has chosen to remove the applicant under section 115 of the Act. This
gave the applicant an opportunity to know the case against him and an
opportunity to respond before he was deported. Because there is no threat to
the applicant’s life or freedom on the grounds identified upon return to Sri Lanka, returning the applicant does
not, in my view, violate Article 33(1) of the Convention.
[51] Since the Minister’s assessment that the applicant did not face a
risk of harm upon removal was not patently unreasonable, the remaining issues
are not determinative.
Issue No. 3: Did the Minister err in
interpreting paragraph 115(2)(b) by considering the “nature and severity of the
acts committed” by the criminal organization, as opposed to the applicant
personally?
[52] In light of my conclusion above, it is not necessary to consider
this second issue. I offer the following analysis, however, in the event I am
wrong regarding the first issue or in concluding that the finding of no risk
upon return to Sri Lanka is
determinative. The Minister’s Opinion, after reviewing the evidence, is set out
at paragraph 29 of the Opinion:
Following
from the evidence noted above, including Mr. Nagalingam’s membership and
involvement in the A.K. Kannan, in my view, the nature and severity of the acts
committed by the A.K. Kannan are serious and significant, and as such
Mr. Nagalingam should not be allowed to remain in Canada.
[53] The Minister’s Opinion, after reviewing the evidence, is set out at
paragraph 29 of the Opinion:
Following
from the evidence noted above, including Mr. Nagalingam’s membership and
involvement in the A.K. Kannan, in my view, the nature and severity of the acts
committed by the A.K. Kannan are serious and significant, and as such
Mr. Nagalingam should not be allowed to remain in Canada.
[Emphasis added]
[54] The Minister referred to the acts committed by the applicant at
paragraph 27:
I note that Mr.
Nagalingam has relatively few criminal convictions as follows: [mischief under
$5,000; failure to comply with recognizance; assault].
[55] The issue is whether paragraph 115(2)(b) means “the nature and
severity of the acts committed” by the criminal organization or by the
applicant personally.
[56] For ease of reference I repeat paragraph 115(2)(b) of the Act:
|
115.
…
Exceptions
(2) Subsection (1) does not apply in the case of a person …
(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.
|
115.
…
Exclusion
(2) Le paragraphe (1) ne s’applique pas à l’interdit de
territoire : …
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.
|
Rules of Statutory Intepretation
[57] The
Supreme Court of Canada summarized the principles and two part procedure of
interpreting bilingual statutes in Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban
v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539. At paragraphs 24 to 26, Chief Justice
McLachlin wrote:
24 In interpreting bilingual
statutes, the statutory interpretation should begin with a search for the
shared meaning between the two versions: P.-A. Côté, The Interpretation of
Legislation in Canada (3rd ed. 2000), at p. 327. In [R.
v. Daoust, [2004] 1 S.C.R. 217, 2004 SCC 6], Bastarache J.
held for the Court that the interpretation of bilingual statutes is subject to
a two-part procedure.
25 First, one must apply
the rules of statutory interpretation to determine whether or not there is an
apparent discordance, and if so, whether there is a common meaning between the
French and English versions. “[W]here one of the two versions is
broader than the other, the common meaning would favour the more restricted or
limited meaning”: [Schreiber v. Canada (Attorney General),
[2002] 3 S.C.R. 269, 2002 SCC 62], at para. 56, per LeBel J. Schreiber
concerned a discrepancy between the French version of s. 6(a) of the State
Immunity Act, R.S.C. 1985, c. S‑18, which stated that the exception
to state immunity is narrowly “décès” or “dommages corporels”, compared
to the broader English “death” or “personal injury”. Given the conflict
between the two provisions the Court adopted the clearer and more restrictive
French version. The common meaning is the version that is plain and
not ambiguous. If neither version is ambiguous, or if they both are,
the common meaning is normally the narrower version: Daoust, at paras.
28-29.
26 Second, one must
determine if the common meaning is consistent with Parliament’s intent: Daoust,
at para. 30.
[Emphasis
added]
[58] In applying the rules of statutory interpretation to determine
whether or not there is an apparent discordance between the French and English
versions of the paragraph, it is clear that there is an ambiguity in the
English version because the English version does not link the “acts committed”
either to the individual or to the criminal organization. That is left vague. The French version is clear. The French text reads: “… 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.” [Emphasis added] The literal translation
of the French version is “because of the nature and severity of his past
acts”.
[59] The Court is satisfied that the common meaning is the French
version. It is plain, not ambiguous and narrower. Therefore, according to the
rules of statutory interpretation with respect to bilingual statutes, paragraph
115(2)(b) means that the Minister must decide whether the applicant should be
allowed to remain in Canada on
the basis of the nature and severity of his personal acts.
[60] The second step in the interpretation of paragraph 115(2)(b), as
stated by the Supreme Court of Canada in Medovarski, above, is that
the Court must determine if the common meaning is consistent with Parliament’s
intent. This principle of statutory construction was described by Elmer
Driedger in The Construction of Statutes (Toronto: Butterworths, 1974)
was adopted by the Supreme Court of Canada in Re Rizzo and Rizzo Shoes Ltd.,
[1998] 1 S.C.R. 27 at 41:
Today
there is only one principle or approach, namely, the words of an Act are to be
read in their entire context and in their grammatical and ordinary sense
harmoniously with the scheme of the Act, the object of the Act, and the intention
of Parliament.
[61] Considering the words of the paragraph with the scheme of the Act,
the object of the Act and the intent of Parliament, the Court concludes
Parliament intended that the Minister consider the nature and severity of the
acts committed by the person, as opposed to the criminal organization as a
whole. The logical reason to examine the nature and gravity of the personal
acts committed by the refugee is that the refugee should not be refouled only
because he is a member of a criminal organization unless the acts in which he
was involved warrant removal. As will be discussed below, the Minister can look
at the acts committed by the criminal organization if it is established that
the refugee was complicit in those acts, i.e. there are reasonable grounds for
believing that the refugee was personally and knowingly involved in these
crimes.
Complicity
[62] In the leading case of Ramirez v. Canada (Minister of Employment
and Immigration), [1992] 2 F.C. 306 at 317-318, the Federal Court of Appeal
considered what extent of participation was required for inclusion as an
accomplice such that a person could be found to have “committed” a crime
against peace, a war crime, or a crime against humanity. The Court stated:
What
degree of complicity, then, is required to be an accomplice or abettor? A first
conclusion I come to is that mere membership in an organization which from
time to time commits international offences is not normally sufficient for
exclusion from refugee status. […]
[S]omeone
who is an associate of the principal offenders can never, in my view, be said
to be a mere on-looker. Members of a participating group may be rightly
considered to be personal and knowing participants, depending on the facts.
At
bottom, complicity rests in such cases, I believe, on the existence of a
shared common purpose and the knowledge that all of the parties in question may
have of it. Such a principle reflects domestic law (e.g., s. 21(2) of the
Criminal Code), and I believe is the best interpretation of international law.
[Emphasis added]
[63] Therefore the test for complicity is whether the applicant was a
personal and knowing participant in the criminal activities of the
organization. There must be reasonable grounds to believe that the applicant
“was complicit”; in Ramirez, above, this means that the applicant had
“personal knowledge and knowing participation”.
[64] This test for complicity under the Act has been settled by the Court
with respect to crimes against humanity. Such crimes are also part of paragraph
115(2)(b), and this standard is a reasonable one for the purposes of
establishing complicity under paragraph 115(2)(b). See my decision in Catal
v. Canada
(Minister of Citizenship and Immigration), [2005]
F.C.J. No. 1875 at paragraphs 8 and 9.
[65] Therefore, the proper interpretation of paragraph 115(2)(b) is one
that requires the Minister consider the nature and severity of the acts
committed personally by the applicant, and by the A.K. Kannan gang if the
applicant was a personal and knowing participant in such acts, i.e. complicit.
The applicant’s personal and knowing
involvement, i.e. complicity
[66] The Minister’s Opinion is 20 single-spaced pages. In reading the opinion
as a whole, I have identified the paragraphs where the Minister discusses the
applicant’s personal and knowing participation in the criminal acts of the gang.
These references are contained in the following paragraphs:
¶16. In
terms of the nature and severity of the acts committed, the evidence shows
the existence of facts supporting Mr. Nagalingam’s … involvement in the
criminal activities of the A.K. Kannan … . According to P.A. (an informant
to the Toronto Police), the A.K. Kannan was known to be a gang and the
Applicant was known to be an “enforcer” within that group.
¶17. I
am of the view that the evidence shows the existence of facts supporting Mr.
Nagalingam’s … involvement in the criminal activities of the A.K. Kannan.
¶29. Following
from the evidence noted above, including Mr. Nagalingam’s … involvement in the
A.K. Kannan, in my view, the nature and severity of the acts committed by
the A.K. Kannan are serious and significant, and as such Mr. Nagalingam should
not be allowed to remain in Canada.
[Emphasis added]
[67] The standard of proof for determining “the acts committed” by the applicant
for the purpose of paragraph 115(2)(b) is that the Minister have reasonable
grounds for believing that the applicant committed the acts. The applicant was
found by the Minister to be personally involved in the criminal activities of
the gang (paragraph 16); was known to be an “enforcer” within that gang
(paragraph 16); and was personally involved in the criminal activities of the
gang (paragraph 17). Based on the evidence about the gang, including the
applicant’s involvement with the gang, the Minister’s Opinion was that the
nature and severity of the acts committed by the gang are serious and
significant.
[68] The Court is satisfied that the Minister’s Opinion found that the
applicant was personally and knowingly participating in some criminal activities
of the gang. This means in law that the applicant was complicit in those
criminal acts. However, the Minister’s Opinion at paragraph 29 did not make an
express finding that the applicant was complicit in the serious and significant
criminal acts of the gang. The Minister might have made that conclusion if the
Minister had interpreted that the “acts committed” under paragraph 115(2)(b)
were the “personal” acts of the applicant, including the acts of the gang in which
the applicant was complicit. In this respect, the Minister erred in law in his
interpretation of paragraph 115(2)(b) of the Act. The Minister based his
opinion on the acts committed by the criminal organization. Accordingly, if it
were not the case that the Minister’s factual finding that the applicant did
not face a risk of harm upon removal is determinative of this application, the
Court would allow this application, and refer the matter back to another
delegate of the Minister to determine if the applicant was complicit in the
serious and significant criminal acts of the gang for the purposes of paragraph
115(2)(b) of the Act.
Issue No. 4: Did
the Minister err in failing to consider the applicant’s risk of persecution?
[69] The
applicant argues that, while the Minister considered
the applicant’s risk of torture, and the risk to his life, cruel and unusual
treatment or punishment, the Minister erred in failing
to consider also the applicant’s risk of persecution upon return to Sri Lanka.
[70] The
applicant submits that, in applying the Supreme Court of Canada’s judgment in Suresh,
above, the Minister failed to recognize that the
risk review required under section 115 of the Act is broader than what the
Court required under section 53 of the former Act in Suresh.
[71] I conclude
that section 53 of the former Act is not materially different than section 115
of the Act. Section 53 of the former Act provides:
|
Prohibited removal
53. (1) Notwithstanding
subsections 52(2) and (3), no person who is determined under this Act or the
regulations to be a Convention refugee, nor any person who has been
determined to be not eligible to have a claim to be a Convention refugee
determined by the Refugee Division on the basis that the person is a person
described in paragraph 46.01(1)(a), shall be removed from Canada to a country
where the person's life or freedom would be threatened for reasons of race,
religion, nationality, membership in a particular social group or political
opinion unless
(a) the person is a member of an inadmissible class described in
paragraph 19(1)(c) or subparagraph 19(1) (c. 1)(i) and the Minister is of the
opinion that the person constitutes a danger to the public in Canada;
(b) the person is a member of an inadmissible class described in
paragraph 19(1)(e), (f), (g), (j), (k) or (l) and the Minister is of the
opinion that the person constitutes a danger; or
(c) the person is a person described in subparagraph 27(1) (a. 1)(i)
and the Minister is of the opinion that the person constitutes a danger to
the public in Canada; or
(d) the person is a person described in paragraph 27(1)(d) who has been
convicted of an offence under any Act of Parliament for which a term of
imprisonment of ten years or more may be imposed and the Minister is of the
opinion that the person constitutes a danger to the public in Canada.
|
Renvoi de réfugiés au sens de la
Convention
53. (1) Par dérogation aux paragraphes 52(2) et (3), la
personne à qui le statut de réfugié au sens de la Convention a été reconnu
aux termes de la présente loi ou des règlements, ou dont la revendication a
été jugée irrecevable en application de l'alinéa 46.01(1)a), ne peut être
renvoyée dans un pays où sa vie ou sa liberté seraient menacées du fait de sa
race, de sa religion, de sa nationalité, de son appartenance à un groupe
social ou de ses opinions politiques, sauf si, selon le cas:
a) elle appartient à l'une des catégories non
admissibles visées à l'alinéa 19(1)c) ou au sous-alinéa 19(1) c.1)(i) et que,
selon le ministre, elle constitue un danger pour le public au Canada;
b) elle appartient à l'une des catégories non
admissibles visées aux alinéas 19(1)e), f), g), j), k) ou l) et que, selon le
ministre, elle constitue un danger pour la sécurité du Canada;
c) elle relève du cas visé au sous-alinéa 27(1)a. 1)(i)
et que, selon le ministre, elle constitue un danger pour le public au Canada;
d) elle relève, pour toute infraction punissable aux
termes d'une loi fédérale d'un emprisonnement maximal égal ou supérieur à dix
ans, du cas visé à l'alinéa 27(1)d) et que, selon le ministre, elle constitue
un danger pour le public au Canada.
|
[72] As the
excerpt above indicates, the key difference between the provisions under the
current and former Acts is that the former Act refers to a risk that “the person's life or freedom would be
threatened for reasons of race, religion,
nationality, membership in a particular social group or political opinion”
while the current Act refers to persons “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.”
[73] In my
view, there is no material difference between the versions. A threat to an
individual’s “life or freedom” on Convention grounds undoubtedly constitutes
persecution. Conversely, a risk of persecution on Convention grounds is a
threat to an individual’s freedom if not his life.
[74] It is clear from the Minister’s opinion that he did not find that
there was “more than a mere possibility” that the applicant would face a risk
of torture or cruel and unusual treatment or punishment. Throughout the opinion,
the Minister also refers to the applicant’s risk of persecution upon return to Sri Lanka. For example, at paragraph 37,
the Minister considers the applicant’s claim that he faces a risk of
persecution based on his status as a young Tamil male. Considering the opinion
in its entirety, I am satisfied that the Minister included within his
assessment the applicant’s risk of persecution on Convention grounds.
Issue No. 5: Does paragraph 115(2)(b)
target non-citizens in a manner that is contrary to section 7 of the Canadian
Charter of Rights and Freedoms?
[75] The applicant also challenges the validity of paragraph 115(2)(b) on
the basis that it violates section 7 of the Charter, which guarantees “Everyone
has the right to life, liberty and security of the person and the right not to
be deprived thereof except in accordance with the principles of fundamental
justice.”
[76] Given that the applicant does not face a risk of persecution,
torture or other ill treatment if returned to Sri Lanka, no deprivation of the applicant’s life, liberty or security of the
person arises in this case.
Conclusion
[77] For the reasons above, the application for judicial review is dismissed.
The Minister’s conclusion that the applicant did not face a risk of
persecution, torture, or other ill treatment upon returning to Sri Lanka was not patently unreasonable. This
finding, in my view, obviated the need to further consider the nature and
severity of acts committed since the only barrier to the applicant’s removal
was the prohibition under subsection 115(1) of the Act against returning or
refouling him to a territory in which he faced a risk of harm as identified in
Article 33(1) of the Convention. However, if I am incorrect in concluding that
the first issue is determinative, I would have allowed the application on the
basis that the Minister erred in his interpretation of paragraph 115(2)(b) of
the Act.
Certified
question
[78] This application raises for the first time a serious question of
general importance with respect to the proper interpretation of paragraph
115(2)(b). My review of the jurisprudence indicates that this is the first case
in which an issue arises as to the interpretation of paragraph 115(2)(b) with
respect to persons inadmissible on grounds of organized criminality. The
existing case law is limited to interpretations of this paragraph as it applies
to persons inadmissible on grounds of security, or for violating human or
international rights. Both parties agree that this is a question which should
be certified. I agree and will certify the following questions:
1. If, in the preparation of an opinion under paragraph
115(2)(b) of the Immigration and Refugee Protection Act , the Minister finds
that a refugee who is inadmissible on grounds of organized criminality does not
face a risk of persecution, torture, cruel and unusual punishment or treatment
upon return to his country of origin, does such a finding render unnecessary
the Minister’s consideration of the “nature and severity of acts committed”
under paragraph 115(2)(b)?
2. If the lack of risk identified in question #1 is not
determinative, is paragraph 115(2)(b) of the Immigration and Refugee
Protection Act to be applied “on the basis of the nature and severity of
acts committed” by the criminal organization of which the person is a member,
or of acts committed by the person being considered for removal (including acts
of the criminal organization in which the person was complicit)?
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1.
The
application for judicial review is dismissed.
2.
The
following questions are certified:
1. If, in the preparation of an opinion under
paragraph 115(2)(b) of the Immigration and Refugee Protection Act , the
Minister finds that a refugee who is inadmissible on grounds of organized
criminality does not face a risk of persecution, torture, cruel and unusual
punishment or treatment upon return to his country of origin, does such a
finding render unnecessary the Minister’s consideration of the “nature and
severity of acts committed” under paragraph 115(2)(b)?
2. If the lack of risk identified in question
#1 is not determinative, is paragraph 115(2)(b) of the Immigration and
Refugee Protection Act to be applied “on the basis of the nature and severity
of acts committed” by the criminal organization of which the person is a
member, or of acts committed by the person being considered for removal
(including acts of the criminal organization in which the person was
complicit)?
“Michael
A. Kelen”
Email this Content