Docket: IMM-4510-11
Citation: 2011 FC 1473
BETWEEN:
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SHARMARKE MOHAMED
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR ORDER
HARRINGTON J.
[1]
Mr.
Mohamed, a permanent resident of Canada, has amassed a number
of convictions for serious crimes. If he had come from, say, Sweden, he would not
only have been found inadmissible pursuant to section 36 of the Immigration
and Refugee Protection Act for serious criminality, but in all likelihood
would have been deported long ago. However, he is a refugee from Somalia and is
protected under section 115(1) of IRPA in that Canada, as a
signatory to the United Nations Convention Relating to the Status of
Refugees, recognizes the principle of “non-refoulement”. We will not return
persons to their country of origin if 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]
However,
there is an exception. Section 115(2) of IRPA provides:
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(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.
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(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.
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[3]
The
Minister’s delegate carried out a danger opinion. She was of the view that Mr.
Mohamed constituted a danger to the public in Canada, and that such danger
outweighed the risk of danger to him should he be returned to Somalia. This is
the judicial review of that decision.
DANGER OPINION –
APPLICABLE LEGAL PRINCIPLES
[4]
The
legal principles applicable to a case such as this were summarized by the
Federal Court of Appeal in Ragupathy v Canada (Minister of
Citizenship and Immigration), 2006 FCA 151, [2006] FCJ No 654 (QL).
[5]
The
first step is to determine whether Mr. Mohamed is inadmissible on grounds of
serious criminality. On this point there can be no doubt.
[6]
The
second step is to decide whether, in the opinion of the Minister, Mr. Mohamed constitutes
a danger to the Canadian public. More shall be said on the reasonableness of
that determination.
[7]
If
the Minister’s delegate is of the opinion that a person is a danger to the
public, then there must be an assessment as to the risk to which that person
would be subjected if removed, and that risk must be balanced against the
danger to the public should the person be let loose here. This balancing takes
into account humanitarian and compassionate circumstances.
[8]
Although
the Minister’s delegate must assess the danger to the person under sections 96
and 97 of IRPA, those sections only come into play indirectly (Jama v Canada
(Minister of Citizenship and Immigration), 2009 FC 781, 350 FTR 61; Alkhalil
v Canada (Minister of Citizenship and Immigration), 2011 FC 976, [2011] FCJ
No 1198). The key sections which require balancing are sections 7 and 12 of the
Canadian Charter of Rights and Freedoms which provide:
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7. 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.
12. Everyone has the right not to be subjected to any cruel and unusual
treatment or punishment.
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7. Chacun a droit à la vie, à la liberté et à la sécurité de sa
personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les
principes de justice fondamentale.
12. Chacun a droit à la protection contre tous traitements ou peines
cruels et inusités.
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See Suresh v Canada (Minister of
Citizenship and Immigration), 2002 SCC 1, [2002]1 SCR 3.
WAS THE DECISION THAT
MR. MOHAMED CONSTITUTES A DANGER TO THE PUBLIC REASONABLE?
[9]
The
Minister’s delegate’s analysis is not a pure analysis of law and, therefore, is
entitled to deference; to a review on the reasonableness standard (Dunsmuir
v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190).
[10]
Mr.
Mohamed entered Canada in 1990 and was determined to be a Convention
refugee. He became a permanent resident the following year.
[11]
He
has been convicted of various crimes, with greater violence being evident. He
was convicted of assault with a weapon and convicted on three counts of
robbery. His anger management issues have been fuelled by drugs and alcohol.
[12]
More
recently, he completed a National Substance Abuse Moderate Intensity Program, a
rehabilitation program which was offered to him while in custody. It is
suggested that he is now able to recognize the link between his substance abuse
and his involvement in criminal activity.
[13]
What
I find somewhat disturbing is that he was about to be let out of prison on
parole. However, a halfway house was not available, and the authorities decided
not to let him loose without supervision and control. It might have been
reasonable to conclude that he did not constitute a danger. However, the
Minister’s delegate interpreted these facts as suggesting that without
supervision and control he is a danger. Although I may well have come to a
different conclusion had I been the decision maker in first instance, I have to
concede that the decision was not unreasonable. As Mr. Justice Iacobucci said
in Canada (Director of
Investigation and Research) v Southam Inc, [1997] 1 S.C.R. 748, 209
NR 20, at paragraph 80:
I
wish to observe, by way of concluding my discussion of this issue, that a
reviewer, and even one who has embarked upon review on a standard of
reasonableness simpliciter, will often be tempted to find some way to
intervene when the reviewer him- or herself would have come to a conclusion
opposite to the tribunal’s. Appellate courts must resist such
temptations. My statement that I might not have come to the same
conclusion as the Tribunal should not be taken as an invitation to appellate
courts to intervene in cases such as this one but rather as a caution against
such intervention and a call for restraint. Judicial restraint is needed
if a cohesive, rational, and, I believe, sensible system of judicial review is
to be fashioned.
DANGER ON RETURN TO SOMALIA
[14]
The
Minister’s delegate went into some length to describe Somalia as a lawless
state, one of the most dangerous places on earth. She acknowledged a UNHCR plea
that no one be sent back to Somalia. However, under both
the Convention and section 115(2) of IRPA, we are not obliged to keep someone
here who is a danger to the public.
[15]
Mr.
Mohamed’s original refugee claim was based on political opinion. He opposed the
Siad Barre regime which has now been overthrown. Nor is he at personal risk of
torture or cruel and unusual treatment or punishment. There is a risk to his life.
He is at risk of losing his life in an act of random violence. However,
according to the Minister’s delegate, that is a generalized risk under section
97 of IRPA, a risk faced by everyone, in one form or another, everywhere in Somalia.
[16]
Mr.
Mohamed’s counsel raised every point which could possibly be raised to support
the proposition that his risk was personal. He would be returning as an
educated westerner who would be out of place as he left more than 20 years ago.
However, in her decision the Minister’s delegate pointed out that large numbers
of Somalis go about their daily business under risks which are less than the
balance of probabilities, the burden required under section 97 of IRPA (Li v
Canada (Minister of Citizenship and Immigration), 2005 FCA 1, [2005] 3 FCR
239).
[17]
If
the decision in first instance had been mine to make, I might have come to a
different conclusion by giving more weight to reports from the United Nations,
and less to the latest United Kingdom Report. However, in so doing, I would be merely
weighing the evidence in a manner different from that of the Minister’s
delegate. As per Dunsmuir and Southam, judicial restraint must be
exercised, and so I cannot say that the danger opinion is unreasonable.
HUMANITARIAN AND
COMPASSIONATE CONSIDERATIONS
[18]
The
Minister’s delegate took account of the fact that Mr. Mohamed is estranged from
his first wife and two children. Indeed, there are court orders against him.
While he is separated from his second wife, she has supported him. The Minister’s
delegate also took into account the best interest of his child with his second
wife. His relatives are either in Canada or in the United States, but one
cannot say they are particularly close. Again the analysis was not
unreasonable.
SERIOUS QUESTION OF
GENERAL IMPORTANCE FOR CERTIFICATION
[19]
As
discussed at the hearing, counsel for the unsuccessful party, in this case Mr.
Mohamed, shall have a reasonable opportunity to submit a serious question of
general importance which would support an appeal. Given the Christmas recess,
Mr. Mohamed shall have until Monday, 9 January 2012 to submit such a question
or to inform the Registry to the contrary. If a question is submitted, counsel
for the Minister shall have until Monday, 16 January 2012, to reply.
“Sean Harrington”
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