Docket: IMM-1234-17
Citation:
2017 FC 1091
Ottawa, Ontario, December 1, 2017
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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ABSHIR BARRE
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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.
Overview
[1]
Mr. Abshir Barre brings this application for
judicial review pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA]. He seeks review of the February 6,
2017 decision of the Minister’s Delegate [Delegate] refusing his request to
reopen and reconsider a June 2012 determination that he posed a danger to the
Canadian public and that his removal to Somalia would not place him at risk
[the Danger Opinion].
[2]
Mr. Barre submits that the Delegate breached the
principles of procedural fairness by not providing notice that a decision was
imminent. He submits that a heightened duty of fairness applies to the request to
reopen and reconsider the Danger Opinion. He submits that the failure of the
Delegate to provide notice of an imminent decision resulted in the exclusion of
relevant evidence relating to whether he poses a danger to the Canadian public and
the nature of the risk he faces upon return to Somalia. He now seeks to place
that evidence before this Court. Mr. Barre asks that the Delegate’s decision be
set aside and the matter returned for redetermination by a different decision-maker.
[3]
For the reasons set out in greater detail below,
I am not convinced that the Delegate had a duty to solicit updated submissions
from Mr. Barre or to provide advance notice of a pending decision. I am therefore
unable to find there was a breach of procedural fairness. The application is
denied.
[4]
My finding that there was no duty to solicit
further submissions from Mr. Barre is determinative of this application. I have
therefore not addressed the admissibility of fresh evidence relating to Mr.
Barre’s rehabilitation and recovery or country conditions in Somalia.
II.
Style of Cause
[5]
The Applicant has named the Minister of
Immigration, Refugees and Citizenship Canada as the Respondent in this matter.
The correct Respondent is the Minister of Citizenship and Immigration (Federal
Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, s
5(2)(b) and IRPA, s 4(1)). Accordingly, the Respondent in the style of cause is
amended, removing the Minister of Immigration, Refugees and Citizenship as
Respondent, and naming the Minister of Citizenship and Immigration as
Respondent (Federal Courts Rules, SOR/98-106, r 76(a)).
III.
Background
[6]
Mr. Barre left Somalia at the age of 11 and
arrived in Canada, by way of at least Kenya and the United States, on December
4, 1992 with his mother and three siblings (2 sisters and 1 brother). He was
granted Convention Refugee status.
[7]
Mr. Barre has a record of criminal convictions
spanning from 1998 to 2011 which include assault causing bodily harm contrary
to paragraph 267(b) of the Criminal Code, RSC 1985, c C-46, and
aggravated assault contrary to section 268 of the Criminal Code. The
convictions have resulted in: inadmissibility reports pursuant to IRPA; a
deportation order; and numerous periods of immigration detention, the most
recent following the completion of a sentence imposed in July 2011 after he was
convicted on a charge of robbery contrary to paragraph 334(1)(b) of the Criminal
Code.
[8]
He has stated that his family had been wealthy
and politically prominent in Somalia and that his brother was killed when he
returned to Somalia and tried to reclaim some of the family’s former property. Mr.
Barre submits that the following factors all place him at risk if he were
returned to Somalia: his brother’s death; his family’s past wealth and
political involvement; his lack of knowledge of Somalia, its clan systems and
language (he is only able to speak some of the language); that Al Shabaab may
kill him as an outsider; and that as a westerner he would be targeted.
[9]
In June 2012, the Danger Opinion found that Mr.
Barre was a danger to the public pursuant to paragraph 115(2)(a) of IRPA. The
Danger Opinion then concluded that prospects for rehabilitation and
reintegration of Mr. Barre were not sufficient to mitigate the risk he posed to
Canadian society. The Danger Opinion further concluded that Mr. Barre would
not, on a balance of probabilities, be exposed to individualized risk to life,
risk to torture or risk of cruel and unusual treatment or punishment, or to
more than a mere possibility of persecution if returned to Somalia.
[10]
The Danger Opinion permitted Mr. Barre’s removal
to Somalia despite his Convention Refugee status. An application for leave and judicial
review of the Danger Opinion was initiated. Leave was denied by this Court.
[11]
The record indicates that the Respondent sought
to return Mr. Barre to Somalia subsequent to the issuance of the Danger Opinion.
Those efforts were unsuccessful due, at least in part, to Mr. Barre’s refusal
to cooperate in the removal process.
[12]
In April 2014, Mr. Barre requested that the
Danger Opinion be reopened and reconsidered. In August 2016, Mr. Barre was
released from immigration detention under supervision following a detention
review hearing in July 2016.
IV.
Decision under Review: The Reopening &
Reconsideration Request
[13]
In seeking a reopening and reconsideration of
the Danger Opinion, Mr. Barre’s counsel relied on the passage of time, the
dated nature of his criminality, the absence of a section 7 Charter
analysis in the Danger Opinion, evidence of personalized and heightened risk in
Somalia and Humanitarian and Compassionate [H&C] considerations. In
concluding the written submissions Mr. Barre’s counsel writes:
We further ask that if you have concern on
any of the issues raised herein, that you notify our offices so that we may
attempt to respond to them in kind. We will be submitting further information,
and would respectfully request 30 days’ notice if your office is prepared to
make a decision in this matter.
[14]
A decision refusing the request was rendered on
February 6, 2017, almost three years after the original request was made. Mr.
Barre received no advance notice that a decision was to be rendered on the
request.
[15]
The Delegate found that evidence of
rehabilitation was limited and that the evidence indicated an improvement in
conditions in Somalia. The Delegate further found that the Charter concern
raised was a matter that this Court would have considered in refusing judicial review
of the Danger Opinion, and that the H&C factors identified were unlikely,
on their own, to change the outcome of the Danger Opinion. The request to
reopen and reconsider was denied.
V.
Standard of Review
[16]
The Parties do not dispute that on issues of
procedural fairness the correctness standard applies, a decision-maker is
entitled to no deference (Mission Institution v Khela, 2014 SCC 24 at
para 79, [2014] 1 S.C.R. 502; Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 43, [2009] 1 S.C.R. 339 [Khosa]; A N v Canada
(Citizenship and Immigration), 2016 FC 549 at 19, 42 Imm LR (4th) 5).
[17]
When proceeding on a correctness review of
procedural fairness “[t]he Court must determine whether
the duty to act fairly has been satisfied within the specific context of the
matter before the Court” (Johnson v Canada (Citizenship and
Immigration), 2017 FC 550 at para 10, 280 ACWS (3d) 374 [Johnson]
citing Baker v Canada (Citizenship and Immigration), [1999] 2 S.C.R. 817 at
para 21, 174 DLR (4th) 193 [Baker]). This customized analysis is
required as “[t]he duty of fairness varies and depends
upon an appreciation of the context in which the issue arises” (Johnson
ibid at para 13 citing: Baker ibid at para 21; and Ha v Canada
(Minister of Citizenship and Immigration), 2004 FCA 49 at para 40, [2004] 3
FCR 195).
VI.
Analysis
[18]
Mr. Barre submits that on the facts of this
case the Delegate was required to advise that a decision was imminent and
provide him an opportunity to update his submissions. In advancing this
position he relies on Suresh v Canada (Minister of Citizenship and
Immigration), 2002 SCC 1 at paragraph 115, [2002] 1 S.C.R. 3, citing
paragraphs 23-27 of Baker which sets out the non-exhaustive factors a
Court is to consider in determining the scope of procedural fairness in a given
situation.
[19]
He submits that the jurisprudence has recognized
the duty of fairness is high in the context of a danger opinion where the
outcome is possible refoulement to torture or other mistreatment (Canada
(Minister of Citizenship and Immigration) v Bhagwandass, 2001 FCA 49 at
paras 30-31, [2001] 3 FCR 3). Mr. Barre acknowledges that the decision under
review is not a danger opinion but argues the same interests are engaged and
therefore a similar high duty of fairness arises. He further argues that the
passage of time between the request being made and the decision rendered placed
a higher onus on the Delegate to give some notice of the impending decision. In
this regard he highlights that: (1) he is subject to removal to a particularly
dangerous environment; (2) the Delegate should have been aware that he had been
released from detention, a material change in his circumstances; and (3) that
he had specifically advised in his 2014 submissions that further information
would be submitted and notice of a pending decision was requested.
[20]
It is well-established in the IRPA context that
the onus is on an applicant to provide all material in support of an
application. A decision-maker does not have a duty or obligation to seek out
additional information and an applicant who does not provide information or
fails to update an application as circumstances evolve does so at his or her
own peril (Owusu v Canada (Minister of Citizenship and Immigration),
2004 FCA 38 at para 8, [2004] 2 FCR 635; Zhu v Canada (Citizenship and
Immigration), 2011 FC 952 at paragraph 20, 206 ACWS (3d) 178; Bellido v
Canada (Minister of Citizenship and Immigration), 2005 FC 452 at para 35, 138
ACWS (3d) 728; Nehme v Canada (Minister of Citizenship and Immigration),
2004 FC 64 at para 18, 245 FTR 139; Bernard v Canada (Minister of
Citizenship and Immigration), 2001 FCT 1068 at paras 23-24, 108 ACWS (3d)
1040; Prasad v Canada (Minister of Citizenship and Immigration) (1996),
34 Imm LR (2d) 91, Ahn v Canada (Minister of Citizenship & Immigration)
(1999), 166 FTR 139, 1999 CanLII 7929 at paras 14-16 (FCTD), Lam v Canada
(Minister of Citizenship and Immigration), 152 FTR 316, 1998 CanLII 8315 at
para 4 (FCTD) Arumugam v Canada (Minister of Citizenship and Immigration),
2001 FCT 985 at para 17, 211 FTR 65).
[21]
An applicant cannot, in my opinion, shift the
onus to a decision-maker to determine if there has been a change in
circumstances or to seek out updated information by advising that “[w]e will be submitting further information, and would
respectfully request 30 days’ notice if your office is prepared to make a
decision in this matter.” While an applicant is certainly capable of
requesting prior notification, this does not mean the request will be granted;
the obligation remains with the applicant to put their best foot forward. In
considering the issue of fairness owed, I note that Mr. Barre was well aware of
the change in circumstances arising from his release from detention and to
assess whether that change was material. Mr. Barre was also aware that his
request to reopen and reconsider the Danger Opinion was outstanding. As such
Mr. Barre was well-positioned to place information before the Delegate relating
to his changed circumstances. The Delegate was not obligated to seek out any
such information.
[22]
Similarly, information relating to country
conditions was information Mr. Barre was in a position to place before the
Delegate. In fact Mr. Barre expressly indicated he would be submitting further
information, yet there is no indication on the record that any further
information was ever submitted. The record does not indicate that the Respondent’s
conduct gave rise to an expectation that a decision would not be rendered
before further information was provided or that notice of an imminent decision
would be provided. The Respondent was silent in respect of Mr. Barres’s request
for notice. Silence cannot be a basis upon which to conclude a duty has been
assumed or an expectation created. I would also note that despite Mr. Barre’s
failure to provide further or updated information, the decision reflects the
fact that the Delegate did consider commonly available updated country
condition evidence.
[23]
While I am not convinced that a request to
reopen and reconsider a danger opinion attracts the same high standard of
fairness that is engaged by the original danger opinion procedure, the question
does not arise here. Mr. Barre’s onus to show, on a prima facie basis,
that there has been a material change in circumstances warranting reassessment
remains, regardless of where on the spectrum the duty of fairness ultimately
rests when one considers the Baker factors. The Delegate concluded Mr.
Barre had not demonstrated a material change in circumstances and Mr. Barre has
not taken issue with the reasonableness of that conclusion based on the
evidence that was before the Delegate.
VII.
Conclusion
[24]
The application is dismissed. The Parties have
not identified a question of general importance for certification and none
arises.
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