Date: 20070803
Docket: IMM-6127-06
Citation: 2007 FC 815
Ottawa, Ontario, August 3, 2007
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
IBRAHIM
YOUSIF ABDULAZIZ AL-KAFAGE
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of
the “Reconsideration of Minister’s Opinion” pursuant to paragraph 115(2)(a 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 serious criminality;
2. he constitutes a danger to the public in Canada; and
3. there was not a serious possibility that his removal
would subject him to a risk of life, torture, cruel or unusual punishment or
persecution.
Background
[2]
The applicant is a 48 year-old citizen of Egypt. He came to Canada on October 19, 1994 with his wife and daughter and applied for
refugee status, which was granted on September 22, 1995. The applicant alleged
that he had been persecuted by Egyptian authorities for his involvement with
the Muslim Brotherhood, a political organization which had been banned in Egypt since 1954.
[3]
On August 21, 1996, the applicant was convicted
of four counts of sexual assault, uttering threats, and extortion. Most of the
applicant’s sexual assault victims were young women of Egyptian descent—the
youngest victim was 13 years old. Each victim had come to trust the applicant,
who posed as a “psychic healer” and, while purporting to lift curses that had been
placed on the young women, sexually assaulted them. He was sentenced on October
15, 1996 to a total of ten years imprisonment.
[4]
On May 2, 1997, the applicant’s application for
permanent residence was refused because of his criminal convictions. On October
28, 1997, the Minister issued a danger opinion declaring the applicant to be a
danger to the public under paragraph 115(2)(a) of the Act. He was ordered
deported on March 23, 1998 on grounds of serious criminality. On July 21, 2003,
he was directed to report for removal on August 5, 2003. Following an
application for leave to apply for judicial review of the direction to report,
the Minister agreed to defer the applicant’s removal pending a reconsideration
of the 1997 danger opinion, and the applicant withdrew his leave application.
[5]
On May 14, 2003, the National Parole Board
imposed special conditions on the applicant’s statutory release and released
the applicant. In particular, the applicant was directed to report all
relationships with females to his parole supervisor and to have no association
with minors unless accompanied by an adult and pre-authorized to do so by his
parole supervisor. The applicant was released from a Canada Border Services
Agency (CBSA) hold on November 12, 2003.
[6]
On July 28, 2005, Correctional Services Canada
issued and executed a warrant of suspension and apprehension against the
applicant based on reliable information that he had violated the terms of his
release. The applicant was actively seeking out relationships with vulnerable
women with young daughters. He was subsequently incarcerated. On November 22,
2005, the National Parole Board revoked the applicant’s statutory release and
the applicant remained in jail until he was taken into CBSA custody on May 19,
2006.
[7]
On September 25, 2006, the Minister’s delegate
issued the re-consideration decision presently under review, which confirmed
that the applicant continues to be a present and future danger to the public
within the meaning of paragraph 115(2)(a) of the Act.
[8]
The applicant was scheduled to be removed from Canada on November 20, 2006. By order
issued that day, Mr. Justice Russell granted the applicant’s motion for a stay
of removal pending the outcome of this application for judicial review.
Issue
[9]
The only issue in this application is whether
the Minister’s delegate erred in concluding that the applicant should be
removed from Canada under
paragraph 115(2)(a) of the Act.
Relevant legislation
[10]
The legislation relevant to this application is the
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act.). The
key provisions of this legislation are subsection 36(1) and section 115 of the
Act, which provide as follows:
|
Serious criminality
36. (1) A permanent resident or a foreign national
is inadmissible on grounds of serious criminality for
(a) having been convicted in Canada
of an offence under an Act of Parliament punishable by a maximum term of
imprisonment of at least 10 years, or of an offence under an Act of Parliament
for which a term of imprisonment of more than six months has been imposed;
(b) having been convicted of an
offence outside Canada that, if committed in Canada, would constitute an
offence under an Act of Parliament punishable by a maximum term of imprisonment
of at least 10 years; or
(c) committing an act outside Canada
that is an offence in the place where it was committed and that, if committed
in Canada, would constitute an offence under an Act of Parliament punishable
by a maximum term of imprisonment of at least 10 years. […]
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 […]
|
Grande criminalité
36. (1)
Emportent interdiction de territoire pour grande criminalité les faits suivants
:
a) être déclaré coupable au Canada d’une infraction à une loi
fédérale punissable d’un emprisonnement maximal d’au moins dix ans ou d’une
infraction à une loi fédérale pour laquelle un emprisonnement de plus de six
mois est infligé;
b) être déclaré coupable, à l’extérieur du Canada, d’une infraction
qui, commise au Canada, constituerait une infraction à une loi fédérale
punissable d’un emprisonnement maximal d’au moins dix ans;
c) commettre, à l’extérieur du Canada, une infraction qui, commise
au Canada, constituerait une infraction à une loi fédérale punissable d’un
emprisonnement maximal d’au moins dix ans. […]
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; […]
|
Standard of review
[11]
The jurisprudence establishes that a danger
opinion issued under section 115 of the Act is a discretionary decision which
attracts significant deference from the reviewing Court and which is only set
aside if found to be patently unreasonable. As stated by the Supreme Court of
Canada in Ahani v. Canada
(Minister of Citizenship and Immigration), [2002] 1 S.C.R. 7 at paragraphs 16
and 17:
[..] 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.
[…W]e conclude that the court may
intervene only if the Minister's decision is not supported on the evidence, or
fails to consider the appropriate factors. The reviewing court should also
recognize that the nature of the inquiry may limit the evidence required. While
the issue of deportation to risk of torture engages s. 7 of the Charter and
hence possesses a constitutional dimension, the Minister's decision is largely
fact-based. The inquiry into whether Ahani faces a substantial risk of torture
involves consideration of the human rights record of the home state, the
personal risk faced by the claimant, any assurances that the claimant will not
be tortured and their worth and, in that respect, the ability of the home state
to control its own security forces, and more. Such issues are largely outside
the realm of expertise of reviewing courts and possess a negligible legal
dimension. Considerable deference is therefore required.
[Emphasis
added]
[12]
The standard of patent unreasonableness has
subsequently been applied by this Court to decisions under the current Act:
see, e.g., Nagalingam v. Canada (Minister of Citizenship and
Immigration), 2007 FC 229
at para. 18; Mircha v. Canada (Minister of Citizenship and Immigration), 2007 FC 46 at para. 11; Thuraisingam v. Canada (Minister of Citizenship and
Immigration), 2004 FC 607 at paras. 26-28; Thanabalasingham
v. Canada
(Minister of Citizenship and Immigration), 2005 FC
172 at paras. 59-60; Dadar v. Canada (Minister of Citizenship and Immigration), 2004 FC 1381 at para. 13; Fabian v. Canada (Minister of Citizenship and
Immigration), 2003 FC 1527 at para. 20.
Analysis
[13]
The applicant argues that the Minister’s
delegate erred in finding that the applicant lacked credibility and faced
little danger if returned to Egypt. This conclusion, the applicant argues, amounts to an excess of
jurisdiction insofar as it effectively overrules the 1995 decision of the
Immigration and Refugee Board (the Board), which found that the applicant is a
Convention refugee. The applicant also argues that the Minister’s delegate
erred in failing to inquire whether the death sentence previously imposed on
the applicant by an Egyptian Court is still in effect.
[14]
The applicant did not challenge the Minister’s
delegate’s conclusion that the applicant constitutes a danger to the public in Canada. Accordingly, it is not necessary
for me to address that aspect of the danger opinion.
[15]
With respect to the applicant’s argument that
the Minister’s delegate exceeded her jurisdiction by concluding that the
applicant would not face a serious risk of harm upon removal, notwithstanding
the Board’s earlier determination that the applicant is a Convention refugee,
it is well established that the fact that an individual was previously found to
be a Convention refugee is not a sufficient basis to establish present risk of
harm: Nagalinam, above, at para. 25; Camara v. Canada (Minister of Citizenship and
Immigration), 2006 FC 168 at para. 58; Jeyarajah
v. Canada
(Minister of Citizenship and Immigration) (1999), 236
N.R. 175 at para. 12 (F.C.A). Accordingly, this aspect of the applicant’s
argument cannot succeed.
[16]
The reconsideration opinion under review is 22
pages in length. The Minister’s delegate’s findings concerning the applicant’s
risk upon return to Egypt
comprise 16 pages of the opinion. The Minister’s delegate considered the
applicant’s risk at the time of his alleged torture and separately considered
his risk upon refoulement. The crux of the applicant’s argument is that, owing
to his previous involvement in the Muslim Brotherhood, he would be subject to a
death sentence or torture upon his return to Egypt.
1995 Medical Examination confirms the
applicant was tortured
[17]
A Canadian medical report dated September 12,
1995 reported on a medical examination of the applicant to document injuries
the applicant allegedly sustained as a result of torture while in Egypt. This medical report was used before
the Refugee Board. This medical report describes in detail evidence that the
applicant sustained cigarette burns to both hands, his left foot and his left
cheek. It also confirmed a linear scar on the instep of his right foot which is
consistent with his allegation that he was beaten with a wire whip. The medical
report also confirmed evidence of a 2.5 cm scar on his head, consistent with
his allegation that he was hit in the head with a large piece of metal.
Finally, the applicant alleged that he had several toenails removed as part of
the torture. The medical report confirms on the left foot, the second and fifth
toes have evidence of prior removed toenails. The medical report indicated that
the doctor asked the applicant to obtain x-rays of his skull and his elbow to
further elucidate the nature of his injuries. The applicant did not do this, possibly
because he was granted refugee status shortly thereafter receiving this report.
The reconsideration opinion under review carefully describes this medical
report and its findings but concluded at page 21 of the report:
…
Upon careful reading of the doctor’s report, he only confirms certain forms of
abuse, others are inconclusive. He asked Mr. Al Kafage to get an x-ray done and
he did not. In my view, the x-ray would have been useful in arriving at a final
determination of the injury suffered. In failing to obtain the x-ray, he has
placed his credibility on the issue in question. Therefore, I am not satisfied
that all of the abuse alleged by Mr. Al Kafage took place.
[18]
The conclusion of the Minister’s Delegate that
the applicant is not credible with respect to the torture that he experienced
is patently unreasonable. The medical evidence confirms that the applicant was
tortured. This in turn confirms that the applicant was taken into custody by
the Egyptian authorities and tortured for some reason. The reconsideration
report stated at page 21:
I
assign little weight to Mr. Al Kafage’s allegation that he was detained and
tortured or did not have a trial and was sentenced to death because of his
membership in the Muslim Brotherhood.
As discussed above, this finding that the
applicant was not detained and not tortured is patently unreasonable in view of
the medical evidence.
Torture continues
in Egypt
[19]
The reconsideration report states that torture
is still being employed by police security personnel and prison guards in some
cases but that there is no indication that members of the Muslim Brotherhood are
tortured. At the same time, the reconsideration report states that in 2005,
security forces arrested and detained hundreds of Muslim Brotherhood members.
Whether torture is being utilized against members of the Muslim Brotherhood is
not documented. For this reason, the Court must also find that the
reconsideration report’s conclusion that the applicant will not be personally
at risk of torture by reason of his membership in the Muslim Brotherhood is not
clear on the evidence before the Minister’s Delegate.
Conclusion
[20]
While the applicant bears the onus of
establishing that there are substantial grounds upon which to believe that if
removed to Egypt he would be in danger of torture, death, or cruel and unusual
punishment, it is not reasonable for the applicant to provide more than proof
that he was in fact tortured, that members of the Muslim Brotherhood are still
being arrested and detained, and that torture still exists in Egypt. In other
cases before this Court the respondent initiated steps to obtain assurances
from the Government of Egypt that a particular individual would not be at risk
if deported to Egypt, or the
respondent made independent inquiries. In the case at bar, no assurances were
sought and no inquiries were made about whether the applicant was being sought
by Egypt as he alleges, or if
he would be at risk.
[21]
For these reasons, the Court must conclude that
material aspects of the “Decision on Risks” are patently unreasonable and that
the reconsideration opinion with respect to risk must be set aside.
[22]
Neither party proposes a question for
certification. No question will be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
this
application for judicial review is allowed;
2.
the
reconsideration of the Minister’s Opinion dated September 25, 2006 is set aside
with respect to risk to the applicant if returned to Egypt; and,
3.
this
matter is referred to another Delegate of the Minister to reconsider the risk
the applicant would face if returned to Egypt.
“Michael
A. Kelen”
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