opinion, pursuant to s. 115(2)(a) of IRPA,
from the Minister of Citizenship and Immigration (the Minister) that he was a
danger to the public and, thus, could be returned to Iraq.
[2]
In
a decision dated November 9, 2007, the Minister’s delegate determined that the
Applicant was a danger to the public in Canada and, as such, could be refouled
to Iraq.
Specifically, the delegate found that:
·
the
Applicant constitutes a danger to the public (the danger assessment);
·
he
would not face a risk warranting protection under s. 97 of IRPA (the risk
assessment);
·
any
risk that he would face did not outweigh the danger that he poses to Canadian
society; and
·
there
are insufficient humanitarian and compassionate considerations to overcome the
danger that the Applicant poses to the Canadian public.
[3]
The
Applicant seeks judicial review of the decision.
II. Issues
[4]
During
oral submissions, the Applicant focussed his arguments to three areas:
1.
With
respect to the danger assessment, did the Minister’s delegate err by imposing a
burden on the Applicant to show that he was not a danger to the Canadian
public?
2.
With
respect to the risk assessment:
a.
Given
that the Applicant was a Convention refugee, did the delegate err by imposing a
burden on the Applicant to show that he would be at risk in Iraq?
b.
If
the correct burden was used, did the Minister breach the duty of fairness by
failing to give notice of the burden of proof to be met by the Applicant?
3.
Did
the Minister’s delegate improperly balance the risk of removal with the public
danger posed by the Applicant to Canadian society by failing to recognize:
a.
the
stay on removals to Iraq made by the Minister pursuant to s. 230 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the IRP Regulations); and
b.
the
generalized risk of death in Iraq?
III. Statutory
Framework
[5]
Mr.
Hasan was accepted by Canada as a Convention refugee. A basic concept
accepted by Canada in its
refugee protection legislation is that of non-refoulement. As stated in s.
115(1) of IRPA:
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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.
|
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.
|
[6]
There
are exceptions to the principle of non-refoulement. Specifically applicable to
Mr. Hasan is s. 115(2) (a) of IRPA which states that s. 115(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. [Emphasis added]
|
a) pour grande criminalité qui, selon le ministre, constitue un
danger pour le public au Canada;
[Non souligné dans l’original]
|
IV. Analysis
A. Standard of Review
[7]
I
begin, as I must, by directing my mind to the appropriate standard of review. In
light of Dunsmuir v. New Brunswick, 2008 SCC 9, there are
now only two standards of review. That same case tells us, at paragraph 57,
that courts may rely on existing jurisprudence in determining the proper
standard of review. Pre-Dunsmuir, the case law showed that s. 115
decisions were reviewable on a standard of patently unreasonableness (Suresh
v. Canada (Minister of Citizenship and Immigration.), 2002 SCC 1, [2002] 1
S.C.R. 3 at paras. 29, 32, 34, 38, 39, 41, Nagalingam v. Canada (Minister of
Citizenship and Immigration), 2007 FC 229 (F.C.T.D.), [2008] 1 F.C.R. 87 (Nagalingam
Trial) at paras. 18, 28, 30, 39, Thanabalasingham v. Canada (Minister of
Citizenship and Immigration), 2005 FC 172, 269 F.T.R. 273 at para. 60, Dadar
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1381, 42 Imm.
L.R. (3d) 260 at para. 13, Fabian v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1527, 244 F.T.R. 223 at paras. 19-20).
However, the case law is also clear that questions of law made by the Minister
are to be reviewed on a standard of correctness (see Nagalingam Trial, above,
at para. 19).
[8]
In
this case, the alleged errors raised by the Applicant in respect of the danger
assessment and the risk assessment are either errors of law that are reviewable
on a standard of correctness or a breach of procedural fairness for which no
standard of review is applicable.
[9]
The
alleged errors related to the balancing of interests are essentially that the
delegate failed to have regard to certain relevant matters. A failure to have
regard to material is a ground of review under s. 18.1(4) of the Federal
Courts Act, R.S.C. 1985, c. F-7. Such an error may require intervention of
the Federal Court, regardless of the standard of review.
B. General Principles
[10]
The
proper approach to be taken by a delegate is well established (see, for
example, Nagalingam v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 153, 292 D.L.R. (4th)
463 (Nagalingam Appeal); Ragupathy v. Canada (Minister of
Citizenship and Immigration), 2005 FC 834, 275 F.T.R. 311). The
principles and steps leading to the delegate’s decision under s. 115(2)(a)
are the following:
1.
A
protected person or a Convention refugee benefits from the principle of non-refoulement
recognized by s. 115(1) of IRPA, unless the exception provided by paragraph
115(2)(a) applies;
2.
For
paragraph 115(2)(a) to apply, the individual must be inadmissible on grounds of
serious criminality (s. 36 of IRPA);
3.
If
the individual is inadmissible on such grounds, the delegate must determine
whether the person should not be allowed to remain in Canada on the basis that
he or she is a danger to the public in Canada;
4.
Once
such a determination is made, the delegate must proceed to a s. 7 of the 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 (the Charter)
analysis. To this end, the delegate must assess whether the individual, if
removed to his country of origin, will personally face a risk to life, security
or liberty, on a balance of probabilities. This assessment must be made
contemporaneously; the Convention refugee or protected person cannot rely on
his or her status to trigger the application of s. 7 of the Charter (Suresh,
above, at paragraph 127).
5.
Continuing
his analysis, the delegate must balance the danger to the public in Canada against the
degree of risk, as well as against any other humanitarian and compassionate
considerations (Suresh, above, at paragraphs 76-79; Ragupathy, above,
at paragraph 19).
[11]
A
review of the decision before the Court in this application shows that the
delegate followed the necessary steps in the analysis. The Applicant asserts,
however, that, in carrying out her analysis, the delegate made reviewable errors
in three critical areas.
C. Danger Assessment
[12]
The
first alleged error occurred during the delegate’s danger assessment where, the
Applicant asserts, the delegate incorrectly placed the burden on the Applicant.
In other words, the Applicant argues that the delegate forced the Applicant to
prove that he would not be a danger to the public in Canada. The
Applicant draws this conclusion on the basis of the delegate’s use of the
phrase “I am not satisfied” in the following references from the decision:
·
I
am not satisfied when Counsel suggests that this [no re-offence in 18 months
and programs during his incarceration] proves that he is not a future danger to
the public.
·
Although
Counsel provided information on the programs Mr. Hasan completed while he was
incarcerated, in my view, many opinions raised in these reports do not satisfy
me that he is completely rehabilitated or is unlikely to reoffend.
·
Although
as counsel states, Mr. Hasan has not have [sic] reoffended since the time he
was released from prison based on the circumstances surrounding the conviction,
combined with the information from reports while Mr. Hasan was incarcerated, I
am not satisfied that he would not reoffend and possibly cause harm to other
innocent victims.
[13]
It
is acknowledged by both the Applicant and the Respondent that the Minister
bears the burden of showing that the Applicant is a danger to the public. To
reverse that onus and require an applicant to satisfy the delegate that he or
she is not a continuing danger to the public has been held to be an error. Such
was the situation in Kim v. Canada (1997), 127 F.T.R. 181, where the
delegate’s final recommendation read: “the information provided does not
satisfy me that this type of violent behaviour will not occur again.”
[14]
That
is not the situation before me. It is evident from a reading of this section of
the decision that the delegate was aware of the correct burden. The delegate
begins the section by setting out what the correct burden is on the Minister
and, after her careful analysis of the evidence, concludes:
…the sexual interference conviction,
along with his other criminal conduct, is such that in my opinion, Mr. Hasan
constitutes a danger to the public in Canada
and more particularly a danger to vulnerable Canadian women in society.
[15]
Does
the use of the phrases incorporating the words “I am not satisfied” in the body
of this portion of the decision mean that the delegate, in this case, incorrectly
imposed a burden on the Applicant? I do not think that this is the case when
the danger assessment section of the reasons is read as a whole.
[16]
This
section of the reasons demonstrates that the delegate examined the evidence of
the criminal convictions and the alleged rehabilitation. Her task was to
determine, on a balance of probabilities, whether the Applicant was a danger;
the delegate was required to weigh all of the evidence before her. Much of the
evidence was provided by CBSA – the record of his criminal convictions and his
prison reports. This is not a situation where the delegate relied solely on the
fact that the Applicant had a criminal record. The decision demonstrates that
the delegate carefully considered the circumstances of the convictions and the
behaviour of the Applicant during and subsequent to his incarceration.
[17]
The
only evidence offered by the Applicant was the fact that he had taken
behavioural courses during his imprisonment and that he had not reoffended in
18 months. Each of the allegedly improper references cited above relates to the
Applicant’s assertions that he was rehabilitated through attendance at courses
during his imprisonment and would not reoffend. The delegate carefully reviewed
the programs that were referred to and noted that the Applicant had received
various negative evaluations from the course providers. The delegate also
observed that the Applicant was involved in altercations during his
incarceration and described himself as a “victim”. Use of the words “I am not
satisfied” reflects, in my reading of the decision, a weighing of the evidence
by the delegate and not an application of an incorrect burden on the Applicant.
On the basis of the evidence, it was entirely reasonable for the delegate to
observe that this evidence did not outweigh the substantial evidence before her
on the danger that the Applicant posed.
[18]
I
am not persuaded that the delegate erred as submitted by the Applicant.
D. Risk Assessment
[19]
The
Applicant’s first submission on the risk assessment is that, once a person has
been found to be a Convention refugee, the person has prima facie
demonstrated that he is at risk in his country of origin. Thus, the burden is
on the Minister to show that the person would not be at risk upon his removal.
This approach, the Applicant submits, would be consistent with Canada’s
international obligations and with the notion of cessation found in the
Convention and embodied in s. 108 of IRPA. Under this provision, the Minister
may apply to the Refugee Protection Division of the Immigration and Refugee
Board (RPD) to have the RPD determine that refugee protection has ceased for
the reason that, inter alia, the reasons for which the person sought
refugee protection have ceased to exist (s. 108(1)(e)). The Applicant argues
that, since the Minister bears the burden under s. 108, the Minister should
also bear the burden under s. 115, which provision has the same effect of
stripping a person of refugee status.
[20]
I
find no merit in this argument. The key flaw in the Applicant’s position is
that s. 115(2) does not remove the person’s status as a protected person or
Convention refugee. The non‑refoulement principle is clearly stated in s.
115(1). The delegate’s decision was made pursuant to s.115(2) of IPRA and did
not remove or alter the Applicant’s status as a Convention refugee (Ragupathy,
above, at para. 2, Sittampalam v. Canada (Minister of Citizenship and
Immigration, 2007 FC 687, 62 Imm. L.R. (3d) 271 at para. 52).
[21]
There
is no requirement in s. 115(2) that the Minister must assess the risk to the
person who has been found to be a danger. That obligation arises from the
operation of s. 7 of the Charter, as decided by the Supreme Court of
Canada in Suresh, above. Thus, there is no parallel between the
cessation provisions of s. 108, which explicitly require the Minister to
demonstrate that the reasons for which the person sought refugee protection
have ceased to exist, and s. 115, where the only obligation arises as a result
of the Charter.
[22]
The
jurisprudence is clear that, once the Applicant is found to be a danger to the
public, he must establish that he would be at risk (see, for example, Camara
v. Canada (Minister of Citizenship and Immigration), 2006 FC 168
at paras. 58-60; Al-Kafage v. Canada (Minister of Citizenship
and Immigration), 2007 FC 815, 63 Imm. L.R. (3d) 234 at para. 15, Nagalingam
Trial, above, at para. 25). Most recently in Nagalingam Appeal,
above, the Court confirmed, at paragraph 44, that “the
Convention refugee or protected person cannot rely on his or her status to
trigger the application of section 7 of the Charter”.
[23]
The
delegate did not erroneously place the onus on the Applicant to prove that he
faced the risk of torture or risk to life if returned to Iraq. I also
reject the Applicant’s allegation that he is being asked to re-prove that he
remains a Convention refugee, that he has no internal flight alternative, or
that he still faces the same conditions as when he was initially granted
refugee status. It is obvious that the delegate did not require the Applicant
to prove these things. The delegate properly engaged in an assessment of the
current risks facing the Applicant should he be removed to Iraq.
[24]
The
Applicant’s second problem with the risk assessment is that, if he does bear
the burden of demonstrating that he would be at risk if returned to Iraq, he should
have been provided with notice that he could not rely on his refugee status or
that he bore the onus of proving that he would be at risk in Iraq.
[25]
This
argument also fails. In a letter dated December 6, 2004, the CBSA informed the
Applicant that they were seeking a s.115 (2)(a) opinion from the Minister. This
letter notified the Applicant that the Minister would consider whether it can
be reasonably concluded that the Applicant constitutes a danger to the public
in Canada and the possibility of risk upon return to Iraq. The
Applicant was told that he could make written representations or argument
deemed necessary and relevant, including those related to whether his life or
freedoms were threatened by removal from Canada. In my
opinion, this is adequate notice to the Applicant.
[26]
In
addition, I observe that the Applicant appears to have been well aware of the
onus on him. Submissions made in response to the CBSA notice on behalf of the
Applicant contain significant representations that go beyond merely relying on
his refugee status.
[27]
I
conclude that the Applicant not only received adequate notice, but that he
understood that notice to require him to demonstrate that his life would be at
risk if he were returned to Iraq. There is no reviewable error.
E. Balancing
[28]
As
a final step in a s. 115(2)(a) analysis, the delegate must balance the danger
to the public in Canada against the degree of risk, as well as against any
other humanitarian and compassionate considerations (Suresh, above, at
paragraphs 76-79; Ragupathy, above, at paragraph 19; Nagalingam Appeal,
above, at paragraph 44). The Applicant apparently does not dispute the
balancing carried out vis-à-vis any humanitarian and compassionate
considerations. However, he raises two arguments with respect to the balancing
of risk factors.
[29]
The
first concern is that the delegate failed to have regard to the fact that the
Minister has imposed a stay on removals to Iraq pursuant to
s. 230 of the IRP Regulations. That provision states that:
|
230.
(1) The
Minister may impose a stay on removal orders with respect to a country or a
place if the circumstances in that country or place pose a generalized risk
to the entire civilian population as a result of
(a) an armed conflict
within the country or place;
(b) an environmental
disaster resulting in a substantial temporary disruption of living conditions;
or
(c)
any situation that is temporary and generalized.
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230. (1) Le
ministre peut imposer un sursis aux mesures de renvoi vers un pays ou un lieu
donné si la situation dans ce pays ou ce lieu expose l’ensemble de la
population civile à un risque généralisé qui découle :
a) soit de l’existence d’un conflit armé dans le pays ou le lieu;
b) soit d’un désastre environnemental qui entraîne la perturbation
importante et momentanée des conditions de vie;
c) soit d’une circonstance temporaire et
généralisée.
|
[30]
There
are two problems with the Applicant’s submission on this point. The first
difficulty with the s. 230 argument is that it was not raised by the Applicant
in his submissions to the CBSA. That alone is sufficient to deal with the
argument.
[31]
However,
even more importantly, a s. 230(1) moratorium does not apply to the Applicant.
Section 230(3) explicitly states that the stay under s. 230(1) does not apply
to a person who is inadmissible on grounds of serious criminality (IRPA, s.
36(1)) or criminality (IRPA, s. 36(2)). The Applicant has been found to be
inadmissible on grounds of serious criminality. He cannot rely on the stay
provisions of s. 230
.
[32]
For
these reasons, the delegate did not err by failing to refer to the stay on
removals to Iraq.
[33]
The
Applicant also argues that the fact that he faces a risk of death in Iraq should have
received more weight from the delegate. The Applicant invokes the case of United
States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283 as support for his
position that the Charter requires that a person be removed to a serious
risk of death only in exceptional circumstances. The problem with this argument
is that it is unsupported by the evidence or submissions before the delegate. There
was no evidence before the delegate and there is none before me that the
Applicant faces a serious risk of death. I am satisfied that the delegate applied
the correct standard and did not err in balancing the risk of return to Iraq against the
danger to the public in Canada.
IV. Conclusion
[34]
For
these reasons, the application for judicial review will be dismissed.
[35]
The
Applicant requests that I certify the following three questions:
1.
Is
everyone from a country designated under IRP Regulation 230 to be considered at
risk for the purpose of balancing risk to the person against risk to Canada under s. 115(2)
of IRPA?
2.
For
the purposes of the balancing exercise in s. 115(2), where the individual
concerned is a Convention refugee, does the onus rest of the individual to show
that the risk which led to the refugee determination continues or does the
finding that a person is a Convention refugee create a rebuttable presumption
that the person is at risk on return?
3.
If
the answer to the previous question is that the onus rests on the individual
and that there is no rebuttable presumption, does the duty of fairness require
the individual who is a Convention refugee to be specifically notified of this
onus?
[36]
In
my view, these questions do not meet the test for certification.
[37]
With
respect to the first question, as noted above, s. 230 of the IRP Regulations
has no application to the Applicant who is inadmissible to Canada for serious
criminality. Further, the existence of a moratorium was not put before the
delegate for consideration. Thus, this question is not determinative of this
Application.
[38]
I
observe that the wording of the second proposed question is an incorrect
characterization of the burden on the Applicant. The Applicant is not required
to “to show that the risk which led to the refugee determination continues”.
Rather he is required to demonstrate that he would be at risk if returned to Iraq. It could be
that the risk that led to a refugee determination no longer exists but that a
completely new risk is apparent.
[39]
More
significantly, the second question is one that has been addressed on numerous
occasions by this Court and the Court of Appeal. The onus rests with the person
who is the subject of the possible danger opinion to present evidence of risk.
There is no need to certify a question that is settled by the jurisprudence.
[40]
The
third question does not arise on these facts. As evidenced by his submissions
on the danger opinion, the Applicant was well aware that he was responsible for
providing submissions and evidence related to the risk that he faced in Iraq. In any
event, the notice provided in this case was adequate notice that the Applicant.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
1.
the
Application for Judicial Review is dismissed; and
2.
no
question of general importance is certified.
“Judith A. Snider”
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