Date: 20120413
Docket: A-64-12
Citation: 2012 FCA 112
Present: BLAIS
C.J.
BETWEEN:
SHARMARKE MOHAMED
Appellant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
BLAIS C.J.
[1]
This is a
motion to stay, pending appeal, the appellant’s removal scheduled for April 16,
2012.
[2]
Mr.
Mohamed is a Somali citizen. He was 27 years old when he came to Canada and made a refugee claim. In
1991, he was found to be a Convention refugee and became a permanent resident
of Canada in December 1991.
[3]
Unfortunately,
Mr. Mohamed’s settlement in Canada has not been quite peaceful.
He got married twice, had two children from each of those marriages, and is now
living separate from his second wife and children. He worked ten years as a
chemical laboratory technician and left British Columbia when the company went bankrupt in 2005.
[4]
Meanwhile,
he was convicted of assaulting his roommate with a butcher knife and of robbing
three banks. He was also charged with several other offences under the Criminal
Code, including assault, assault with weapons and assault causing bodily
harm.
[5]
Not
surprisingly, the Immigration Review Board issued in 2009 a deportation order
against Mr. Mohamed on grounds of serious criminality.
[6]
In July
2011, the Minister’s delegate issued an opinion that Mr. Mohamed constituted a
danger to the public pursuant to subsection 115(2) of the Immigration and
Refugee Protection Act (IRPA). Mr. Mohamed applied for a judicial review of
the ministerial delegate’s danger opinion.
[7]
The Canada
Border Services Agency (CBSA) made arrangements to remove Mr. Mohamed to Somalia in October 2011. However, the
CBSA agreed to differ the removal pending the determination of Mr. Mohamed’s
application for judicial review of the danger opinion.
[8]
On January
2012, Justice Harrington of the Federal Court dismissed the application. He
nevertheless certified the following question:
In the context of a danger
opinion analysis, if the Minister determines that there would be no
personalized risk faced by the person concerned and therefore avoids balancing
the risk posed by the person with the risk faced, is the Minister then required
by section 7 of the Charter to balance the generalized risk that would
be faced at the humanitarian and compassionate stage of the analysis?
[9]
The
appellant filed a notice of appeal on February 17, 2012.
[10]
Upon the
dismissal of the application for judicial review, the CBSA made new
arrangements for Mr. Mohamed’s removal to Bossaso, Puntland, in northern Somalia. Unless Mr. Mohamed’s stay
motion pending appeal is granted, his removal will take place on April 16,
2012.
[11]
For his
motion to be granted, Mr. Mohamed must demonstrate that he satisfies each part
of the tripartite test stated in Toth v. Canada (Minister of Employment and
Immigration) (1988), 86 N.R. 302, [1988] F.C.J. No. 587 (F.C.A.). He must
demonstrate that (i) there is a serious issue to be tried; (ii) he would suffer
irreparable harm were the motion denied; and (iii) the balance of convenience
is in his favour.
SERIOUS ISSUE TO BE TRIED
[12]
It is
important to remember that according to the principle of “non-refoulement” in
refugee law, a refugee should not be returned to a country where he or she
would risk being persecuted. The non-refoulement principle is found at section
115 of the IRPA. This section prohibits the return of Convention refugees to a
country where there is a risk of persecution on Convention grounds or is at
risk of torture or cruel and unusual treatment or punishment. Nevertheless,
subsection 115(2) of the IRPA provides exceptions to the non-refoulement
principle, such as where the person is inadmissible on grounds of serious
criminality and constitutes a danger to the Canadian public in the opinion of
the Minister.
[13]
Many
courts in Canada have addressed this issue
over the years.
[14]
First of
all, I should note that in this case the application judge, in certifying a
question, recognized the existence of a serious question of general importance.
As my colleague Justice Evans said in Palka v. Canada (Minister of Public
Safety and Emergency Preparedness) 2008 FCA 165 at paragraph 9, “[i]t
should be easy to persuade a Judge of this Court that a question certified for
appeal by a Judge of the Federal Court is not frivolous or vexatious”.
[15]
Further, it is to be remembered that certifying a question of
general importance triggers an unconstrained appeal to this Court (Richter
v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 73 at paragraphs 9
and 10). Therefore, to determine whether there is a serious issue, I must not
only look at the certified question, but also to the appellant’s arguments. The
essence of the appellant’s argument can be found at paragraphs 59-61 of his
memorandum of arguments:
The Applicant submits that in
finding that the only risk that would be faced by the Applicant upon his return
to Somalia was one that was generally
faced by the population, the Minister circumvented the balancing that is
required by section 7 of the Charter. Put another way, there was no
balancing done by the Minister at this stage because no personalized risk was
found.
The Applicant submits that
while this in and of itself is not necessarily problematic, in order for the
danger opinion regime to conform with the principles of fundamental justice
under section 7 of the Charter, there must be a balancing of the risk
faced by the person concerned at some stage of the analysis; if not at the
danger determination stage, than at the humanitarian and compassionate grounds
stage.
To allow the Minister to
avoid balancing the risk faced upon return to the country of origin by simply
finding that this risk is of generalized nature, would allow a person’s section
7 rights to be violated in a way that is not in accordance with the principles
of fundamental justice.
[16]
As for the Minister, he refutes the existence of a serious
question. He submits that refugee law does not prohibit the removal of a
refugee to a country where the whole population faces some generalized risk to
their life. He adds that such principle is well established and clear. He
refers to a series of authorities, such as Suresh v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 1, and Nagalingam v. Canada
(Minister of Citizenship and Immigration), 2008 FCA 153, to
the effect that the delegate must assess the personalized risk rather than the
generalized risks. The Minister also mentions Jama v. Canada
(Minister of Citizenship and Immigration), 2009 FC 781,
where Justice Russell rejected an argument similar to the appellant’s position.
[17]
I note that the issue on appeal has been litigated in the United
Kingdom all the way to the European Court of Human Rights (ECHR) in a
case involving a similar context. The ECHR found that risks generally faced by
the population may amount to a real risk of ill-treatment to the deportee (Sufi
and Elmi v. United Kingdom, [2011] ECHR 1045 at paragraphs 248, 293). But foreign cases are not
binding on this Court. In fact, there is no Canadian authority to support Mr.
Mohamed’s arguments that the Minister’s delegate must consider generalized
risks as part of the danger opinion analysis.
[18]
Nevertheless,
since the trial judge has certified a question, and since the serious question
prong is readily satisfied, I conclude that there is a serious issue to be
tried.
IRREPERABLE HARM
[19]
Both
parties agree that Somalia is at this time one of the
most dangerous places in the world. Nevertheless, we should nuance such general
assertion. In fact, the evidence provided by both sides demonstrates that the
situation is much more dangerous and unstable in the south and the area
surrounding the Somali capital, Mogadishu.
[20]
The
unstable situation is faced by Somalis on a daily basis. Amnesty
International’s report “Routinely Targeted: Attacks on Civilians in Somalia”, dated May 6, 2008, states
the following:
Conclusion: A Human Rights
Crisis in Southern and Central Somalia
There is a dire human rights
situation in southern and central Somalia,
which has largely contributed to the current humanitarian emergency. One
million Somalis are internally displaced; hundreds of thousands are newly
displaced refugees; … and the entire population of Mogadishu carries the scars of having witnessed or
experiences egregious violations of human rights and international humanitarian
law. … Somali civilians have been routinely targeted and have suffered
violations of human rights and international humanitarian law in the conflict
areas of southern and central Somalia, on the roads as they fled
conflict areas, and in camps and temporary settlements to which they fled.
(Appellant’s
motion record, tab 9, page 25)
[21]
On the
other hand, the situation in the north where the appellant would be deported
looks more stable. The Operational Guidance Note regarding Somalia issued by the UK Border
Agency provides at paragraph 2.4.5 that:
Somaliland and Puntland, are in general
relatively safe. A long-standing dispute exists over the territories of Cayn,
Sool and Sanag, with both Somaliland and Puntland claiming them and the
Sool-Sanad-Cayn alliances fighting to remain part of the original state of Somalia. General insecurity resulting
from armed violence continues to be the main protection concern in the
North-West regions of Somaliland and there has also been an increase in
violence and assassinations in Puntland, since the beginning of 2011, mostly in
Galkayo, Bossaso and areas around Galgala.
and at paragraph 2.4.8:
Mogadishu airport continues to function
normally. There are scheduled air services to a number of destinations in Somalia – Mogadishu, Bosasso, Hargeisa, Berbera, Burao and
Galcaiyo.
and also at paragraph 3.7.8:
Conclusion. Large parts of
northern Somalia are in general relatively
safe regardless of clan membership. Somaliland and Puntland remain generally
safe despite some armed violence and targeted assassinations. In other parts of
Somalia it is unlikely that any
Somali belonging to one of the major clan-families – their immediate clan
groups or associated sub clans – would be able to demonstrate that they have a
well-founded fear of ill-treatment on return on the basis of their clan
affiliation alone.
(Respondent’s motion record, page 298)
[22]
In Human
Rights Watch’s report, “Harsh War, Harsh Peace, Abuses by al-Shabaab, the
Transitional Federal Government, and AMISOM in Somalia, at page 179, it is
reported that:
Somalia remains mired in a brutal
conflict between the Transitional Federal Government (TFG), which holds only a
sliver of the capital, Mogadishu, and armed opposition groups
that control most of the country. Over the past year hostilities have raged in
strategically important areas, including Mogadishu, while much of the rest of Somalia has enjoyed relative peace.
(Appellant’s
motion record, tab 15, page 174)
[23]
In another
document provided by the International Crisis Group, “Somalia, The Transitional
Government on Life Support”, dated February 21, 2011, at page 231 (the “ICG’s
report”):
Yet, the situation is not as
bleak as it may seem. Some parts of Somalia, most notably Somaliland and
Puntland in the north, are relatively stable, and as the ill-fated Union of
Islamic Courts demonstrated in 2006, it is possible to rapidly re-establish
peace and stability in central and south Somalia if the right conditions exist.
Contrary to what is often assumed, there is little anarchy in the country.
Local authorities administer most areas and maintain a modicum of law and
order. Somalis and humanitarian agencies and NGOs on the ground know who is in
charge and what the rules are and get on with their work.
(Appellant’s
motion record, tab 16, page 228)
[24]
It is not
my duty at this stage to review the ministerial delegate’s danger opinion. Nor
is it my duty to second guess all the ministerial delegate’s findings of fact
regarding the situation in Somalia. That being said, I have to
make my own findings on whether Mr. Mohamed will suffer irreparable harm if he
is deported to his country of origin.
[25]
Although
the situation is particularly difficult in southern and central Somalia, including Mogadishu, there is also evidence that
the day-to-day life goes on in many parts of those regions. As the UK Border
Agency’s report, “Somalia: Report of Fact Finding Mission to Nairobi” puts it:
[A]part from some areas, you
can see normal life in Mogadishu, like children playing in the
street. Most of the city is traversable but it depends who you are. Everybody
who is not Somali is at risk, including AMISOM and NGOs. For ordinary Somalis
who go about their day-to-day life Mogadishu
is reasonably safe. They can go shopping and to the market, children go to
school. There is public transport, minibuses and taxis are available. The Mogadishu economy is booming and
thriving on the lack of regulations. Quite a lot of people have left Mogadishu but there is still evidence
of a normal life.
In [the security advisor’s]
opinion, returnees would not be at risk at all in Mogadishu.
UK Border Agency, Somalia: Report of Fact Finding Mission to Nairobi, 9-15 September 2010, p. 22
(Affidavit of K. Lynch, Exhibit “C”) [RMR, Tab 2-C].
(Respondents motion record, page 351)
[26]
Those
remarks are corroborated by the ICG’s report, precited:
Contrary to what is often
assumed, there is little anarchy in the country. Local authorities administer
most areas and maintain a modicum of law and order. Somalis and humanitarian
agencies and NGOs on the ground know who is in charge and what the rules are
and get on with their work.
“Somalia: The Transitional Government of Life
Support, dated February 21, 2011 [Affidavit of F. Dominguez, Exhibit “J”]
(Respondent’s motion record,
page 352)
[27]
I also
take into consideration the affidavit of Mr. Adam Parsons, the CBSA officer who
was assigned to arrange the appellant’s removal from Canada.
[28]
Mr.
Parsons filed his affidavit in support of the respondent’s record. At
paragraphs 9 and 10 he states that:
a. The CBSA is making
arrangements to remove Mr. Mohamed to Somalia.
In my experience, removals to Somalia are complicated. However, the
Pacific Region Inland Enforcement Section has successfully removed several
individuals to Somalia over the pas few years as a
result of the coordinated efforts of the CBSA, the CBSA Migration Integrity
Officer or Liaison Officer at the Canadian Embassy in Nairobi, Kenya and the commercial airline carriers.
b. The CBSA’s current protocol
for removal to Somalia requires pre-approval by the
commercial air carrier, which confirms that the proposed final destination in Somalia is a suitable destination in
light of the deportee’s clan and sub-clan support group. Once approved by the
airline, the removal to Somalia is routed through Nairobi, Kenya. From Nairobi, the deportee flies to Mogadishu on a commercial flight and
then on to his or her final destination in Somalia.
(Respondent’s motion record, page 004)
[29]
Mr.
Parson’s affidavit also refers to a letter faxed by Mr. Mohamed’s counsel where
the latter states the following:
My client has advised me that
he was told by a CBSA officer that he would likely be flown to Kenya and from
there taken to Mogadishu, Somalia.
Mr. Mohamed is requesting that
he instead be taken to Bosaso, in northern Somalia. He has suggested that it would be
easier to fly to Djibouti and then proceed to Bosaso
from there. His request is based on the humanitarian crisis that is currently
plaguing Somalia, and particularly, the Mogadishu area. He has also indicated that he may
have some distant relatives in Bosaso who could assist with his resettlement.
[30]
Paragraph
12 of Mr. Parson’s affidavit further refers to a sworn declaration signed by
Mr. Mohamed where he states that: “I am under a deportation order from Canada, and I am willing to be
removed to the city of Mogadishu”.
[31]
I
have reviewed the information provided by the parties concerning the situation
in northern Somalia, particularly the situation in the city of Bossaso. I have also
reviewed the information provided by Mr. Parsons with respect to the capacity
to remove Mr. Mohamed to Bossaso, together with Mr. Mohamed’s comments and
suggestions concerning his capacity of resettlement in Bossaso. I am not
convinced that he will be personally at risk of persecution on Convention
grounds nor at risk of torture or cruel and unusual treatment or punishment if
he is deported to Somalia.
[32]
As for the
appellant’s concern that this appeal would become moot were he removed before
the hearing, such inconvenience does not amount per se to irreparable harm.
Otherwise, irreparable harm would be readily found every time a removal order
is executed before an appeal hearing. This would deny the Court the discretion
to assess irreparable harm on a case-by-case basis. Removal will not impede the
appellant from instructing his counsel from abroad.
[33]
Accordingly,
I have not been persuaded by the appellant that he will suffer irreparable harm
were he deported to Somalia.
BALANCE OF CONVENIENCE
[34]
Balance of
convenience weighs heavily in favour of the Minister where the individual
facing removal has been convicted of criminal offences and found to be a danger
to the public. In Sittampalam v. Canada (Minister of Citizenship and
Immigration)
2010 FC 562, Justice Shore summarized the factors
one must consider in such situation:
[70] This Court has
recognized that, where an applicant has been convicted of criminal offences,
the balance of convenience weighs heavily in the Minister’s favour:
[7] With
respect to the balance of convenience test, I am in agreement with the
reasoning of Rothstein J. in Mahadeo v. Canada (Secretary of State),
October 31, 1994, (unreported), Court File IMM-4647-94 (F.C.T.D.). In that
case, Rothstein J. stated that when the applicant is guilty of welfare fraud or
has been convicted of a criminal offence in Canada, the balance of convenience weighs
heavily in favour of the respondent. In this case the applicant was convicted
of assault causing bodily harm, which I find to outweigh any consideration of
the emotional devastation of the applicant’s family. I therefore find that the
balance of convenience in this case lies with the respondent.
[Emphasis
added]
(Gomes v. Canada (Minister of Citizenship and
Immigration),
[1995] F.C.J. No. 199 (QL), 91 F.T.R. 264; reference is also made to Townsend
v. Canada (Minister of Citizenship and Immigration), 2004 FCA 247, 53
A.C.W.S. (3d) 358 at para. 6; Thamotharampillai, above, at para. 10; Moncrieffe
v. Canada (Minister of Citizenship and
Immigration)
(1995), 62 A.C.W.S. (3d) 964; [1995] F.C.J. No. 1576 (QL) T.D. at para. 13; Grant
v. Canada (Minister of Citizenship and Immigration), 2002 FCT 141, 112
A.C.W.S. (3) 128 at para. 10).
[71] The comments of
Justice Evans of the Federal Court of Apeal in Tesoro v. Canada (Minister of
Citizenship and Immigration), 2005 FCA 148, [2005] 4 F.C.R. 210, where the
applicant had been convicted of serious property fraud offences and had sought
a stay of removal, are equally applicable:
[47] However,
if I had determined that Mr. Tesoro’s removal would cause irreparable harm, on
the ground that the effects of family separation were more than mere
inconveniences, I would have located the harm at the less serious end of the
range, and concluded that, on the balance of convenience, it was outweighed
by the public interest in the prompt removal from Canada of those found to be
inadmissible for serious criminality. If the administration of immigration law
is to be credible, the prompt removal of those ordered deported must be the
rule, and the grant of a stay pending the disposition of legal proceedings, the
exception.
[Emphasis
added].
[72] The Court must
consider that Mr. Sittampalam is defined as a danger to the public in Canada. If a person is a danger to
the public, the public interest and the balance of convenience favours not
staying removal from Canada (Jama v. Canada (Minister
of Citizenship and Immigration), 2008 FC 374, 166 A.C.W.S. (3d) 297 at
paras. 8, 10, 24-15 and 32; Choubaev v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 816, 115 A.C.W.S. (3d) 854 at para. 17).
[73] It is reiterated
that in upholding section 196 of the IRPA in Medovarski, above, the
Supreme Court of Canada held that the intent of the IRPA is to prioritize the
security of Canada. This intent is reflected in
the scheme to facilitate the removal of permanent residents who have engaged in
serious criminality, and the IRPA’s emphasis on the obligation of permanent
residents to behave lawfully while in Canada.
Sittampalam v. Canada (Minister of Citizenship and
Immigration),
2010 FC 562, at paras. 70-73.
(Respondent’s motion record, page 354)
[35]
In the
case at bar, Mr. Mohamed had been engaged with the criminal justice system for
two decades and as a result of his criminal history, he has been found to be
inadmissible to Canada and a danger to Canadian
public.
[36]
We should
also keep in mind that the Minister has a legal obligation to deport the
appellant at the first opportunity.
[37]
The fact
that the appellant is detained does not favour the appellant. To the contrary,
he is detained because he was convicted of serious crimes and is a danger for
the public. Upon his release, he will remain a danger for the Canadian public.
I have no hesitation to conclude that the balance of convenience favours the
Minister.
[38]
Therefore,
although I found that there was a serious issue to be tried, since the
appellant cannot persuade me that he will suffer an irreparable harm and since
the balance of convenience favours the Minister, the appellant’s motion for a
stay is dismissed.
“Pierre
Blais”
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