Docket: IMM-1054-17
Citation:
2017 FC 896
[ENGLISH TRANSLATION]
Ottawa,
Ontario, October 10, 2017
PRESENT: The Honourable Madam Justice Roussel
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BETWEEN:
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SALAH EDDINE
CHEIKH
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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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JUDGMENT AND REASONS
I.
Background
[1]
The applicant is an Algerian citizen. He arrived
in Canada as a permanent resident in 2001 when he was 11 years old, with
his mother and younger sister.
[2]
On June 7, 2010, the applicant was convicted of
armed robbery, forcible confinement, possession of a restricted weapon,
careless use of a weapon, and failure to comply with a decision. He was
sentenced to four (4) years in prison and three (3) years of probation. He was
also prohibited from possessing firearms, ammunition, and explosives for life.
[3]
On June 7, 2011, an inadmissibility report was
prepared against the applicant for serious criminality within the meaning of
paragraph 36(1)(a) of the Immigration and Refugee Protection Act,
SC 2001, c. 27 [IRPA]. On June 16, 2011, the report was referred to the
Immigration Division [ID] for investigation under subsection 44(2) of the IRPA.
On July 21, 2011, the ID issued a deportation order against the applicant, as
he was inadmissible for serious criminality under paragraph 36(1)(a) and
subsection 44(2) of the IRPA.
[4]
On December 20, 2013, a notice of intent to
request an opinion from the Minister under paragraph 115(2)(a) of the
IRPA was issued to the applicant.
[5]
On February 1, 2017, the Minister’s delegate
concluded that the applicant was a danger to the public in Canada. He stated
that he was satisfied that the applicant was inadmissible in Canada for serious
criminality within the meaning of paragraph 36(1)(a) of the IRPA due to
his convictions for robbery while using a restricted firearm, that the
applicant currently constitutes and will constitute in the future a danger to
the public in Canada within the meaning of paragraph 115(2)(a) of the
IRPA, that the applicant’s life, liberty, and safety will not be endangered if
he were to be returned to Algeria and, finally, that the applicant did not
raise sufficient humanitarian considerations to lead him to conclude that the
applicant should not be deported from Canada.
[6]
The applicant requested a judicial review of
that danger opinion. He claimed that the conclusions by the Minister’s delegate
regarding the present and future danger that he represents to the public in
Canada are unreasonable.
[7]
More specifically, the applicant claims that the
evidence does not allow for a conclusion that he represents an unacceptable
risk of recidivism now or in the future. According to the applicant, the
evidence related to his criminality is clearly outdated. The last offences were
in 2012 and, prior to that, in 2009. He argued that there is no evidence to
show that he is a potential recidivist. On the contrary, his file shows more
contemporaneous evidence of his rehabilitation that does not allow for a
reasonable conclusion that he represents a current or future risk to Canadian
society on a balance of probabilities.
[8]
The applicant also alleged that the Minister’s
delegate placed an unjustified burden on him of proving that he is legally
earning a living in order to show that he does not represent an “unacceptable risk” to Canadian society.
[9]
The applicant did not challenge the conclusions
by the Minister’s delegate regarding his inadmissibility, or those regarding
the risk that he could face if returned to Algeria or humanitarian
considerations.
[10]
After examining the observations by the parties,
the opinion of the Minister’s delegate and the certified record from the
tribunal, the Court does not feel that there is a need to intervene.
II.
Analysis
[11]
The parties agree that a danger notice from a
Minister’s delegate under paragraph 115(2)(a) if the IRPA is a decision
that is subject to the reasonableness standard. It is a combined issue of fact
and law that requires restraint by the Court in a judicial review (Nagalingam
v. Canada (Citizenship and Immigration), 2008 FCA 153 at para 32; Alkhalil
v. Canada (Citizenship and Immigration), 2011 FC 976 at para 16; Omar v.
Canada (Citizenship and Immigration), 2013 FC 231 at para 33; Reynosa v.
Canada (Citizenship and Immigration), 2016 FC 1058 at para 11).
[12]
When the standard of reasonableness applies, the
role of the Court is to determine whether the decision falls within the “possible acceptable outcomes that are defensible in respect
of the facts and law”. If there is “justification,
transparency and intelligibility within the decision-making process”, it
is not up to this Court to substitute its own appreciation of the appropriate
solution (Dunsmuir v. New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir];
Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at para 59).
[13]
In general, it is prohibited under subsection
115(1) of the IRPA to send convention refugees and protected persons to a
country where those individuals risk being persecuted based on their race,
religion, nationality, social group or political opinions, or if they risk
torture or cruel and unusual treatment or punishment. This principle of
non-refoulement, however, does not apply when the person is inadmissible in
Canada for serious criminality and constitutes a danger to the public under
paragraph 115(2)(a) of the IRPA. Inadmissibility for serious criminality
occurs under paragraph 36(1)(a) of the IRPA when a person is convicted
in Canada of an offence under an Act of Parliament punishable by a maximum term
of imprisonment of at least ten (10) years or of an offence under an Act of
Parliament for which a term of imprisonment of more than six (6) months has
been imposed.
[14]
If the person is inadmissible for serious
criminality and constitutes a danger to the public in Canada, the Minister’s
delegate must also, in accordance with the guaranteed rights under section 7 of
the Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, constituting Schedule B of the Canada Act 1982 (UK),
1982, c. 11, determine whether the person would be deprived of the right to
life, liberty, and security of the person, and weigh that risk against the
nature and seriousness of the person’s conduct in Canada, the danger that the
person represents to Canadians, and applicable humanitarian and compassionate considerations
(Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1
at para 76–79; Canada (Minister of citizenship and Immigration) v Ragupathy,
2006 FCA 151 at para 18–19).
[15]
Contrary to the applicant’s claims, the Minister’s
delegate considered his observations regarding the lack of recidivism since 2012.
He also considered the evidence submitted by the applicant. In fact, the
Minister’s delegate indicated that the documents provided are very positive
regarding the progress achieved by the applicant.
[16]
However, in assessing the risk of recidivism,
the Minister’s delegate noted that the offences committed by the applicant have
a common characteristic, in that they were committed for profit. The evidence
shows that between 2007 and 2013, the applicant was convicted of several
violent offences involving the possession and use of weapons against people,
for the purpose of stealing money and property.
[17]
It was in that light that the Minister’s
delegate examined the applicant’s employment situation. Noting that the
applicant provided little recent information regarding his situation that could
show that he has adopted prosocial behaviour, the Minister’s delegate asked him
to provide certain evidence and clarify certain information. Based on the
information provided by the applicant, the Minister’s delegate noted the lack
of income tax returns for 2013 and 2014, the fact that the applicant does not
have the professional qualifications to exercise his trade, and that he has not
had a work permit since July 2014. Given the applicant’s job insecurity and the
lucrative aspect of the offences that he has committed in the past, it was
reasonable for the Minister’s delegate to consider those elements, as an
eventual need for money could be the source of a future risk of recidivism. It
was also appropriate for the Minister’s delegate to consider the reports on
record from 2010 indicating the high level of dangerousness, the violence of
his crimes and, in particular, his risk of recidivism.
[18]
It was thus permissible for the Minister’s
delegate to conclude that the applicant represents an unacceptable risk of
recidivism now and in the future. That conclusion falls within the possible,
acceptable outcomes that are defensible in respect of the facts and law, and
the decision is justified in a way that meets the criteria for transparency and
intelligibility within the decision-making process (Dunsmuir at para 47).
[19]
Essentially, the applicant disagrees with the
assessment of the evidence by the Minister’s delegate. That assessment of the
evidence, however, requires great restraint by the Court, whose role is not to
weigh it again (Williams v. Canada (Minister of Citizenship and Immigration),
[1997] FCJ no 393 (QL) (FCA) at para 29; Derisca v. Canada (Citizenship and
Immigration), 2013 FC 524 at para 25; Mzite v. Canada (Citizenship and
Immigration), 2013 FC 284 at para 48; Mohamed v. Canada (Citizenship
and Immigration), 2008 FC 315 at para 20). Moreover, the Minister’s
delegate was not required to comment on every piece of evidence (Newfoundland
and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 16; Cepeda-Gutierrez v. Canada (Minister of Citizenship
and Immigration), [1998] FCJ No 1425 at para 16, 157 FTR 35 (TD); Florea
v. Canada (Minister of Employment and Immigration), [1993] FCJ No 598 (QL)
(FCA)).
[20]
For all these reasons, the application for
judicial review is dismissed. No questions of general importance were proposed
for certification and the Court is of the opinion that this case does not raise
any.
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