Date: 20070301
Docket: IMM-802-07
Citation: 2007 FC 238
BETWEEN:
HUSSEIN JILAOW
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER
HARRINGTON
J.
[1]
Hussein Jilaow is a dangerous man. He comes from a dangerous
place – Somalia; and to there he should
return. However logistical problems have arisen; so much so that I stayed his
removal.
[2]
Mr. Jilaow was granted refugee status in Canada in 1995. However, his right to remain here is not unlimited.
Section 115 of the Immigration and Refugee Protection Act (IRPA) provides
that a person may be returned to a country where he or she would be at risk of
persecution if that person is inadmissible on grounds of serious criminality
and in the opinion of the Minister constitutes a danger to the public in Canada. The Minister’s delegate has formed that opinion, which
Mr. Jilaow accepts.
[3]
However IRPA must be read down so as to conform to our Charter
of Rights and Freedoms, particularly section 7 which provides that “everyone
has a 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.”
[4]
The delegate was therefore required to weigh the danger to the
Canadian public should Mr. Jilaow remain here, against the risks to him should
he be returned to Somalia (Suresh
v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3).
Mr. Jilaow took the Minister’s decision as meaning the risks to him were
acceptable should he be returned to the northern part of Somalia, but unacceptable if he were returned to the south. The
enforcement officer first prepared a flight itinerary which would have had Mr.
Jilaow land by plane in the north. He then changed the itinerary to have Mr.
Jilaow land at Mogadishu, in
the south. The immediate response was an application for leave and for judicial
review of that decision, as well as a motion to stay his removal in the
interim.
[5]
The enforcement officer changed the itinerary because he
was advised by Canadian officials that the proposed port of entry, Berbera, was
in the self-declared breakaway Republic of Somaliland and that permission to land Mr. Jilaow would not be given because
he was from the south. The motion for a stay was heard on an urgent basis the
day before the scheduled removal. The main thrust of Mr. Jilaow’s submission
was that the Minister of Public Safety and Emergency Preparedness intended to
return Mr. Jilaow to Mogadishu, a place where the Minister of Citizenship and Immigration’s delegate had
determined would be unacceptably dangerous. The Court had to make its decision
with little time for contemplation and serenity. An order was issued granting
the stay, with reasons to follow. I thought it appropriate to explain my reasoning
as counsel informed the Court there were no authorities precisely on point.
However, we must remain mindful that in determining whether a motion for
interlocutory relief should be granted, the motions judge must act on the basis
of common sense and an extremely limited review of the case on the merits (RJR - MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 311, at paragraph 78).
THE MINISTER’S DELEGATE’S OPINION
[6]
The delegate’s opinion is an excellent example of
persuasive narrative and analysis. I have no doubt whatever that Mr. Jilaow is
a public menace who does not deserve to remain here. Although he does not contest
the finding that he is inadmissible on the grounds of serious criminality and
that the delegate’s opinion that he constitutes a danger to the public in Canada is reasonable, I think it important to summarize Mr.
Jilaow’s criminal past.
[7]
He arrived in Canada in 1994 at the age of 14 and was determined to be a refugee shortly
thereafter. His history of criminal convictions, as an adult, began in 1999.
There are more than thirty incidents, and he was convicted some thirteen times.
Many of these convictions involve violence, including assault of police
officers. While in jail, leg shackles have had to be used as well as pepper
spray. He has spent time in solitary confinement. He carries concealed weapons.
He attacks people with switchblades.
[8]
In 2004 police in a passing cruiser observed he and another
in a fight. When stopped, Mr. Jilaow’s bit his own lip causing it to bleed. He
then spat on the two police officers and said “I’m HIV. I’ll give you HIV.” His
attitude was such that a judge of the provincial court of Manitoba gave him a
longer sentence than that recommended by the Crown prosecutor. His violence has
escalated and there is every reason to believe it will continue to do so. The
delegate had sound reason to believe from the repeated commission of offences that
he is not rehabilitated and has not made a serious effort to establish himself
in Canada.
RISK ASSESSMENT IN SOMALIA
[9]
The delegate then went on to consider the risks Mr. Jilaow
might face if he were returned to Somalia. Having read, and reread, the opinion, I cannot escape the conclusion
that a fairly good argument is to be had that the delegate always assumed that
Mr. Jilaow would be returned to the north of Somalia, rather than to the south.
[10]
Although Mr. Jilaow was born in Mogadishu, in the south, he is a member of the Marehan clan, which is more
prevalent in the north. The delegate referred to the U.S. Department of State
Country Reports on human rights practices – 2004 for Somalia, the Immigration and Nationality Directorate Home Office, United Kingdom,
April 2005 as well as the United Nations’ Consolidated Appeal Process report
2004 for Somalia, and other documentation.
[11]
The U.S.
Department of State Report mentions “…there were restrictions on freedom of
speech, press, assembly, association, religion and movement” (my
emphasis). The United Nations’ Position Paper 2004 says, among other things,
“it would be unreasonable to expect a person to move to an area in his or her
own country other than one where he or she has ethnic, tribal, religious and/or
cultural ties... This is true also in Somaliland and Puntland… [the] determining factor in defining where a person
originates from is where the person has effective clan and family ties, and
where clan protection is thus available… the internal flight alternative is not
applicable in the context of Somalia.”
[12]
The former minister of reconciliation, who is of the Marehan
clan, was of the view that it was too difficult for a Marehan to live in Mogadishu as they are perceived to be wealthy and because
many of them used to work for the former regime. That obviously is not Mr.
Jilaow’s situation. However, he went on to say that “all Marehan clan members
would be blamed for the suffering caused by the Siad Barre Regime and they risk
being killed.” Apparently only two hundred persons of the Marehan clan live in Mogadishu and are only able to stay there because
they are intermarried with strong clans. An independent Marehan could not live
in Mogadishu safely and run a business.
[13]
The delegate’s conclusion on risk noted that Mr. Jilaow
left Somalia only one year after the
former dictator Siad Barre was ousted from power and that he would not be of
interest to the current government:
Mr. Jilaow is a member
of the Marehan clan. While it is dangerous for these clan members to return to
Mogadishu, the largest number of returning persons has returned to Mogadishu, mainly
because of perceived economic opportunities. The northern part of Somali, which
includes Somaliland and Puntland, continues to be the safest area of Somalia. In
Hargeisa, the returnees tend to group along ethnic lines. These groups include
but are not restricted to the Marehan clan of which Mr. Jilaow is a member. He
would be far better off returning to Hargeisa than to Mogadishu. While not
prosperous by Canadian standards, information on file indicates that they are
relatively secure.
THE TEST FOR A STAY
[14]
As enunciated in such cases as Toth
v. Canada
(Minister of Employment and Immigration) (1988), 86
N.R. 302 (FCA), and RJR - MacDonald,
above, the test for an interim stay is a conjunctive tripartite one. There must
be a serious issue in the underlying proceedings, there must be risk of
irreparable harm and the balance of convenience must rest with Mr. Jilaow.
Serious Issue
[15]
The respondent emphasizes that the delegate’s conclusion
was “I am of the opinion that the interests of Canadian society outweigh Mr.
Jilaow’s presence in Canada and any minimal risk that he might incur if returned to Somalia.” The delegate did not specifically limit Mr. Jilaow’s
return to the north of Somalia. However, RJR – MacDonald, above, teaches us that a serious issue is one which
is not frivolous. It is certainly not frivolous to argue that a reading of the
delegate’s opinion as a whole leads to the conclusion that she had in mind that
Mr. Jilaow would be returned to the north. Indeed, the original itinerary had
him return to the north. I am satisfied that the applicant has met this first
test.
Irreparable Harm
[16]
In this case the possibility of irreparable harm is
inextricably tied in with the serious issue. Certainly there is a real
possibility, based on the delegate’s own opinion, that Mr. Jilaow would be faced
with an unacceptable risk of irreparable harm if returned to Mogadishu.
[17]
In reply the Minister says that there is nothing to prevent
Mr. Jilaow from landing at the airport and immediately heading north. That is
speculation which is not backed up by the information on file, particularly as the
U.S. Department of State reports that there is restriction on movement.
[18]
It was submitted that Mr. Jilaow does not come to the Court
with clean hands. That is so. I doubt that many persons subject to removal
pursuant to danger opinions have clean hands. However that is no reason to send
them to a place where those hands may be chopped off.
[19]
I find that there is enough evidence of risk of irreparable
harm to meet the second branch of the test.
Balance of Convenience
[20]
As noted in RJR-MacDonald, above, the test of balance of
convenience was described by Mr. Justice Beetz in Manitoba (Attorney
General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110 at
paragraph 35 as "a determination of which of the two parties will suffer
the greater harm from the granting or refusal of an interlocutory injunction,
pending a decision on the merits."
[21]
This is not simply a case where the Minister’s duty, and
the public interest, is in the enforcement of the law. Section 48 of IRPA
provides that persons who have worn out their welcome should be removed as soon
as reasonably practical. In this case Mr. Jilaow is a danger to the people of Canada. He is part of a vicious Winnipeg gang, so much so that special precautions have to be made to get him out
of that city. However, he is in jail. I am informed that if he serves out his
current sentence, he will be there until August. There are also ways and means
under IRPA to keep him incarcerated thereafter, if this matter drags on.
Consequently, I must find for Mr. Jilaow on this point as well.
ENDNOTES
[22]
Since issuing the stay order on 27 February, and after
first drafting these reasons, Mr. Justice Kelen handed down his decision in Nagalingam
v. Canada (Minister of Citizenship and Immigration and Minister of Public
Safety and Emergency Preparedness), 2007 FC 229. That case was a judicial
review of a danger opinion pursuant to section 115(2)(b) of IRPA. Quite apart
from Suresh, above, to which he referred at paragraph 18, he pointed out
that section 3(3)(f) of the Act requires that it be construed and applied in a
manner consistent with international human rights instruments to which Canada
is signatory. Relying on the decision of the Court of Appeal in De Guzman v.
Canada (Minister of Citizenship and Immigration), 2005 FCA 436 and the Refugee
Convention, to which Canada has acceded, he held that section 115 must be
interpreted in such a way that Canada will not expel or return a refugee “where
his life or freedom would be threatened” on account of a Convention ground.
[23]
The enforcement officer changed the flight itinerary following
information from a Migratory Investigation Officer at the Canadian Embassy in
Dubai that because Somaliland, where Hargeisa and Berbera are located, has
declared independence, permission to travel there will not be given to Mr.
Jilaow as he is from the south. However, the exchange of emails attached to the
enforcement officer’s affidavit does not mention that Mr. Jilaow is from the
Marehan clan. Would that make a difference?
[24]
There may be other ways and means to get Mr. Jilaow into
the north. Is it possible to obtain a “laissez-passer” from neighbouring
Ethiopia or Djibouti? While the application for
leave and for judicial review is pending, other avenues to get Mr. Jilaow out
of this country legally should be pursued.
“Sean Harrington”
Ottawa,
Ontario
March
1, 2007
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