Date: 20070821
Docket: IMM-4133-06
Citation: 2007
FC 846
Montréal, Quebec, August 21, 2007
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
THAVENDRARAJAH
KRISHNAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Thavendrarajah
Krishnan applies for
judicial review of a decision of the Minister’s Delegate, dated June 12, 2006,
that the applicant constitutes a danger to the public of Canada, pursuant to
paragraph 115(2)(a) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the Act).
Background
[2]
The applicant, Mr. Krishnan, is a citizen of Sri Lanka and an ethnic Tamil, who came to Canada as an unaccompanied minor in 1992, at the age of 13, and
sought refugee protection. He was found to be a Convention refugee in 1993 and
received permanent resident status in 1995, but never obtained Canadian
citizenship.
[3]
Between 1998 and 2001, the applicant accumulated 15
criminal convictions, but was not convicted of any criminal offences between
2001 and 2006. In 2001, the applicant was identified by the Toronto police and Immigration officials as being a member of a
Tamil gang known as the A.K. Kannan gang.
[4]
On January 17, 2002, a removal order was issued against the applicant. The
applicant appealed the removal order before the Immigration Appeal Division
(IAD) of the Immigration and Refugee Board, and his appeal was dismissed on
April 20, 2004. He then sought judicial review of the decision, which was
denied on April 18, 2005. See: Krishnan v. Canada (Minister of Citizenship and Immigration), [2005] FC 517.
[5]
After he was ordered deported, the applicant received
notice, dated August 31, 2004, that ministerial officials would seek an opinion
from the Minister that the applicant was a danger to the public and should not
be allowed to remain in Canada, on the ground of organized criminality and the
nature and severity of the acts committed, in order to give effect to the
applicant’s deportation to Sri Lanka.
[6]
The applicant provided submissions in opposition to this
notice on October 18, 2004, and again on June 29, 2005.
[7]
The Minister’s Delegate issued her decision on June 12,
2006, and determined that the applicant was a danger to Canada’s security, that
he would not face a substantial risk if returned to Sri
Lanka and that, alternatively, even if there was a risk, then
the risk he poses to Canada’s security outweighed any risk to him.
Issues for consideration
[8]
The following issues are raised in this judicial review
application:
1)
Did the Minister’s Delegate err in her determination that
the applicant was a danger to the public in Canada?
2)
Did the Minister’s Delegate properly assess the risk to the
applicant upon his return to Sri Lanka?
3)
Did the Minister’s Delegate err by failing to balance the
applicant’s protection interests against the danger he poses to the public in Canada?
Pertinent
legislation
|
Immigration
and Refugee Protection Act,
S.C. 2001, c. 27
115.
(1) A protected person or a person who is recognized as a Convention refugee
by another country to which the person may be returned shall not be removed
from Canada to a country where they would be at risk of persecution for
reasons of race, religion, nationality, membership in a particular social
group or political opinion or at risk of torture or cruel and unusual
treatment or punishment.
(2) Subsection (1) does not apply in the case of a person
(a) who is
inadmissible on grounds of serious criminality and who constitutes, in the
opinion of the Minister, a danger to the public in Canada; 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.
|
Loi sur l’immigration et la protection
des réfugiés, (S.C.2001, ch. 27)
115. (1) Ne peut être renvoyée dans un pays où elle risque la
persécution du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques, la torture ou
des traitements ou peines cruels et inusités, la personne protégée ou la
personne dont il est statué que la qualité de réfugié lui a été reconnue par
un autre pays vers lequel elle peut être renvoyée.
(2) Le paragraphe (1) ne s’applique pas à
l’interdit de territoire :
a) pour
grande criminalité qui, selon le ministre, constitue un danger pour le public
au Canada;
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.
|
Standard of review
[9]
It is well established in the jurisprudence that decisions
of Ministerial Delegates under section 115 of the Act are entitled to an
important degree of deference and that as such, the determination that an individual constitutes a danger to
the security of Canada is to be reviewed against the standard
of patent unreasonableness. As stated by the Supreme Court of Canada in Ahani v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 72:
[16]
For the reasons discussed in Suresh, the standard of review on the first
decision is whether the decision is patently unreasonable in the sense that it
was made arbitrarily or in bad faith, cannot be supported on the evidence, or
did not take into account the appropriate factors. A reviewing court
should not reweigh the factors or interfere merely because it would have come
to a different conclusion. Applying the functional and
pragmatic approach mandated by Pushpanathan v. Canada (Minister of
Citizenship and Immigration), [1998] 1 S.C.R. 982 , we conclude that
the Parliament intended to grant the Minister a broad discretion in issuing a
s. 53(1)(b) opinion, reviewable only where the Minister makes a patently
unreasonable decision.
Analysis
1) Did the Minister’s Delegate err in her determination
that the applicant was a danger to the public in Canada?
[10]
Before reaching the conclusion that the applicant’s
presence in Canada poses an unnecessary risk of
danger to the Canadian public, the Minister’s Delegate engaged in a lengthy
analysis, in which she considered the offences which led to the applicant’s
numerous convictions, as well as his link to a Tamil gang. She made extensive
references to the Book of Evidence prepared by Citizenship and Immigration
Canada in the context of the applicant’s hearing before the IAD, the Project
1050 Overview prepared by the Street Violence Task Force of the Toronto Police,
the decision of the IAD, the transcripts of the IAD hearing, and the
submissions from the applicant’s counsel. She also took note of the fact that
the applicant had not been charged with any criminal offences in recent years,
but concluded that this gap in activity did not mean that the applicant would
not re-offend, and that she was not convinced that he had in fact abandoned his
former lifestyle.
[11]
The Minister’s Delegate also supported her conclusion on
the possibility that the applicant might re-offend by relying on the decision
of Justice J. François Lemieux in La v. Canada (Minister of Citizenship and
Immigration), [2003] FCT 476, in which he quoted the
following passage from the decision of Justice Barry L. Strayer in Williams
v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646, at
paragraph 29:
…
In the context the meaning of "public danger" is not a
mystery: it must refer to the possibility that a person who has
committed a serious crime in the past may seriously be thought to be a
potential re-offender. It need not be proven - indeed it cannot be
proven - that the person will reoffend. What I believe the
subsection adequately focuses the Minister's mind on is consideration of
whether, given what she knows about the individual and what that individual has
had to say in his own behalf, she can form an opinion in good faith that he is
a possible reoffender whose presence in Canada creates an unacceptable risk to
the public…
[12]
First, it is important to emphasize that, before this file
arrived on the desk of the Minister’s Delegate, the order to deport the
applicant had already been upheld by both the Immigration Appeal Division and
the Federal Court. In Krishnan v. Canada (Minister of Citizenship and Immigration),
2005 FC 517, Justice Shore concluded as follows:
[20] It was open to the Appeal
Division to find reasonable grounds to believe that Mr. Krishnan had been a
member of the A.K. Kannon gang and involved in criminal gang activity. It was
open to the Appeal Division to find that he had not severed all ties to this
gang, given the fact that he refused to even admit the possibility that some of
his previous associates were gang members; and given that his evidence
regarding many aspects of his criminal activity was untrustworthy and not
credible. Based on the evidence provided, including Mr. Krishnan's criminal
history, his refusal to take responsibility for his actions and his willingness
to lie when convenient, the Appeal Division did not accept that his criminal
ties no longer existed. This finding was open to the Appeal Division.
[27]
The Court finds that it was open to the Appeal Division
to conclude that Mr. Krishnan posed a danger to the public and was likely to
re-offend in light of the evidence that Mr. Krishnan had a history of failure
to comply with probation and recognizance, was not adverse to lying to avoid
detection for these failures and in light of the testimony of Officer Ragell
that Mr. Krishnan continued to associate with people who were members of the
gang with criminal records.
[13]
The Court cannot find anything wrong with the Minister’s
Delegate’s reliance on the findings of the IAD, which were upheld by the
Federal Court, since the IAD member had the benefit of hearing the testimony of
the applicant and of Officer Ragell. Furthermore, the Minister’s Delegate did
not simply rely on this decision in her determination of the danger posed by
the applicant, but she also consulted the transcripts, the documentary evidence
and the submissions of the applicant. As such, the Court agrees with the
respondent that the Minister’s Delegate conducted an independent assessment of
the evidence before her and that it is not for this Court to re-weigh this
evidence.
[14]
The applicant also questions the fact that the Minister’s
Delegate relied on police reports, instead of affidavits or first hand
statements, and newspaper articles in her analysis. The respondent, for his
part, maintains that the Minister’s Delegate is not bound by the evidentiary
rules of a criminal court and was entitled to rely on any evidence which she
found to be credible and reliable. As the applicant has not presented any
evidence that would convince this Court that these documents were irrelevant to
the determination or were derived from sources whose credibility was
questioned, I cannot conclude that her consideration of this material amounts
to a reviewable error.
[15]
Finally, the applicant submits that the Minister’s Delegate
erred by not considering the evidence submitted showing that the applicant had
changed his life, including his relationship with a Canadian citizen, his lack
of criminal convictions since 2001, his successful completion of probation in
2003 and his continued employment. Moreover, the applicant questions the
finding of the Minister’s Delegate with regards to the applicant’s continuing
gang membership and her reliance on the conclusions of the IRB to that effect.
[16]
Once again, the applicant is asking the Court to re-weigh
the evidence that was properly considered by the Minister’s Delegate in her
danger assessment and in her H&C assessment, and this the Court will not
do.
[17]
Furthermore, while the applicant is particularly concerned
with the Minister’s Delegate’s conclusion that the applicant remains a member
of the A.K. Kannan gang, which he claims is now considered defunct, the finding
of the Minister’s Delegate that the applicant’s presence in Canada poses an
unnecessary risk of danger to the Canadian public was not based on his
membership in this gang, but on his past criminal convictions, which she
examined at length.
[18]
In light of the high degree of deference owed to the
Minister’s Delegate, the Court is not satisfied that the applicant has shown
that the danger assessment was patently unreasonable such that the intervention
of this Court would be warranted.
2) Did the Minister’s Delegate properly assess the risk to
the applicant upon his return to Sri Lanka?
[19]
In performing the risk assessment, the Minister’s Delegate
considered the applicant’s Personal Information Form (PIF) and acknowledged the
fact that he had been found to be a Convention refugee, but concluded that the
country conditions in Sri Lanka had changed so that, in spite of his refugee
status, he could still be ‘refouled’ to Sri Lanka.
[20]
While the Minister’s Delegate admitted that the conditions
in Sri Lanka were still far from ideal as
there remained clashes between the LTTE and the Sri Lankan army, she did not
believe that such a generalized risk met the requirement of section 97 of the
Act. She based her determination with regards to the country conditions and
to the risk for returnees on the United States Department of State Country
Reports on Human Rights Practices (the US DOS Report) and on a report prepared
by the IRB Research Directorate. The Minister’s Delegate ultimately concluded:
Having examined all of
the information available to me, I am satisfied, on a balance of probabilities,
that Mr. Krishnan would not face a risk of torture or a risk to his life, or to
a risk of cruel and unusual treatment or punishment if returned to Sri Lanka. Finally,
based on the material that I reviewed, I am satisfied that, on the balance of
probabilities, that he will not face any of the risks identified under section
97 of IRPA as a result of the criminal convictions that he incurred while he
was present in Canada.
[21]
The applicant first submits that the Minister’s Delegate
erred in failing to consider the impact that the applicant’s particular
characteristics, such as his alignment with the LTTE and the publicity
regarding his gang membership, would have on his risk of return. The respondent
for his part maintains that while the applicant argues that the Minister’s
Delegate ignored evidence that would demonstrate his personal risk of return to
Sri Lanka, he points to no specific
evidence that she ignored.
[22]
Furthermore, since the Minister’s Delegate did acknowledge
the applicant’s claims with regards to affiliation with the LTTE, it cannot be
said that she ignored this particular characteristic of the applicant. The fact
that she did not assign it the weight the applicant felt that it deserved is
another issue, which as the respondent correctly noted, is generally considered
to be “outside of the realm of expertise of reviewing courts”. See: Nagalingam
v. Canada (Minister of
Citizenship and Immigration), [2007] FC
229, paragraph 39.
[23]
As for the issue of ‘publicity’, the respondent directed
this Court to the decision of Justice Rouleau in Thuraisingam v. Canada
(Minister of Citizenship and Immigration), 2006 FC 72, where he upheld a
decision of a PRRA officer in which a senior gang member with a higher profile
than the applicant and whose name had appeared in connection with a Tamil gang
in both Canadian and Sri Lankan newspapers, was found not to be at risk of harm
if returned to Sri Lanka. Furthermore, while this issue is not discussed
in the Minister’s Delegate’s decision, it must be acknowledged that the only
‘publicity’ in evidence is one paragraph in one Toronto Star article dated
August 3, 2002, which mentions the applicant as being an “alleged A.K. Kannan
member”. So, the failure of the Minister’s Delegate to mention such an
insignificant element cannot be considered to be a reviewable error.
[24]
The applicant also takes issue with the Minister’s
Delegate’s assessment of the evidence on the country conditions in Sri Lanka, in particular her decision to rely on
the US DOS Report, which he claims is not the most “credible” source of
information. In light of the fact that these reports are routinely relied on by
immigration officials assessing country conditions, I give no weight to this
particular argument.
[25]
The applicant also argues that country conditions had begun
to change for the worst just before the decision was made, and that, a few
weeks after the decision was rendered, the war between the LTTE and the army in
Sri Lanka had resumed. While this may
be true, it remains that it was the responsibility of the applicant to submit
any material he felt was relevant before the decision was made, which he failed
to do. The applicant is not arguing that the Minister’s Delegate ignored
evidence that was before her, but that she failed to seek out additional
information that would support the applicant’s case, and thus ignored evidence
that was not in fact before her, which cannot be considered a reviewable error.
[26]
The Minister’s Delegate was not alert and alive to the
possibility that the alleged change in Sri
Lanka could give rise to an enhanced risk of torture or persecution
upon the applicant’s return to his country.
[27]
There is no question that the Minister’s Delegate’s
decision cannot be set aside due to subsequent developments in Sri Lanka that may increase the risk to the
applicant. Post-decision changes to country conditions are not reviewable by
this Court at this stage of the procedure.
3) Did the Minister’s Delegate err by failing to balance
the applicant’s protection interests against the danger he poses to the public
in Canada?
[28]
As a final argument, the applicant submits that the
Minister’s Delegate failed to balance the risks he will face if he returns to Sri Lanka, against the danger that he represents
to the public in Canada.
[29]
As correctly noted by the respondent, not only are the risk inquiry and the subsequent balancing
of danger and risk not expressly directed by subsection 115(2), Ragupathy v.
Canada (Minister of Citizenship and Immigration), [2006]
FCA 151, but if the Minister’s Delegate concluded that the applicant did
not in fact face a significant risk upon return to Sri Lanka, there would have
been little point in balancing that finding against her conclusion that the
applicant poses a threat to Canadians.
[30]
And yet, the Minister’s Delegate still turned her mind to
this question, when she concluded in her reasons:
After fully
considering all facets of this case, including the humanitarian aspects, and an
assessment of the risk that Mr. Krishnan might face if returned to Sri Lanka and the
need to protect Canadian society, I find that the latter outweighs the former.
In other words, upon consideration of all the factors noted above, I am of the
opinion that the interests of Canadian society outweigh Mr. Krishnan’s presence
in Canada and any minimal risk that he might incur if returned to Sri Lanka.
[31]
Clearly, the applicant’s argument is without merit as the
Minister’s Delegate did balance the applicant’s protection interests against
the danger he poses to the public in Canada. The fact that the applicant would have preferred a different result to
this balancing exercise does not justify a judicial intervention.
[32]
For the above reasons, this judicial review application is denied.
Certification of a
question
[33]
Counsel for the applicant submits that his arguments potentially raise a
question in respect of the submission on breach of the duty of fairness. In
that while the Delegate in this case purported to decide the issue of risk on
“current” evidence, according to the applicant it is not apparent in the
reasons that the Delegate considered any evidence later than 2003 in making her
decision in June, 2006. Counsel for the applicant therefore requests that the
following question be certified:
“Does the duty of
fairness require that the Minister’s delegate either make herself aware of the
conditions in the applicant’s country of origin, through publicly available
human rights reports and other such material, at the time of making a decision
under s.115(2) of the Immigration & Refugee Act or give notice to the
applicant that a decision will shortly be made and invite the applicant to
provide updated information on the conditions in the country of origin, where a
significant period has passed since the applicant’s case was perfected for
consideration without a decision having been made.”
[34]
The respondent opposes
certification of the proposed question as the threshold for certification is
not met: no serious issue of general importance which would be determinative of
an appeal arises in this case. In Canada (Minister of Citizenship and
Immigration) v. Liyanagamage,
[1994] F.C.J. No. 1637, the Federal Court of Appeal stated:
[4] In
order to be certified pursuant to subsection 83(1), a question must be one
which, in the opinion of the motions judge, transcends the interest of the
immediate parties to the litigation and contemplates issues of broad
significance or general application … but it must also be one that is
determinative of the appeal.
Same statement also in Zazai
v. Canada (Minister of Citizenship and
Immigration), 2004 FCA
89.
[35]
The law is clear: the
duty of fairness does not change the obligation of a person who is the subject
of a danger opinion to put all material that he or she wishes to have
considered before the Minister’s Delegate who is the decision maker in this
case. The burden of proof rests with the applicant.
See Kante v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 525. This
principle has been followed constantly.
[36]
The applicant was
given the opportunity to make submissions to the Minister’s Delegate. If the applicant
wanted the Minister’s Delegate to consider additional information material about the
country conditions,
he had the obligation to
present that material to the Minister’s Delegate. See Owusu v. Canada (Minister of Citizenship and
Immigration), 2003 FCT
94.
[37]
The applicant
was able to make submissions to the Minister’s Delegate at any time before the
decision. See Sittampalam v. Canada (Minister of Citizenship and Immigration), 2007 FC 687. As a matter of
fact, the applicant provided submissions on October 18, 2004,
and again on June 29, 2005 to the Minister’s Delegate.
[38]
Deciding a case relating to “refoulement” on the basis of current
information about the country conditions is certainly an important issue
emphasized by this Court in several decisions. See Barabhuiyan v. Canada (Minister
of Employment and Immigration), [1993] F.C.J. No.1456. But nothing in
the Delegate’s decision
suggests or permits this Court to conclude that the current available
information about the country conditions was not considered at the time the Delegate made her
decision. On the contrary it appears that the Delegate based
her determination with regards to the country conditions and to the risk for
returnees on the United States Department of State Country Reports on Human
Rights Practices (the US DOS Report) and on a report prepared by the IRB
Research Directorate.
[39]
These reports were available to everyone. Therefore, if the
applicant wanted to provide additional or updated information on the conditions
in his country of origin, it was his burden and responsibility to do so.
[40]
The question proposed for certification would in effect
either transfer this burden to the Minister’s Delegate or impose on the Delegate
an additional obligation, with the result of delaying the decision. Since the
Court is not prepared to do so, the proposed question will not be
certified.
JUDGMENT
THIS COURT ADJUDGES that the application for judicial
review is dismissed. No question is being submitted for certification.
“Maurice
E. Lagacé”
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