Date: 20171102

Docket: IMM-1243-17

Citation: 2017 FC 983

[ENGLISH TRANSLATION]

Ottawa, Ontario, November 2, 2017

PRESENT: The Honourable Mr. Justice Bell

JUDGMENT AND REASONS

I.                    Nature of the case

II.                 Overview

                                   i.          On June 13, 2013, Mr. Mworosha asked the victim how to get to a specific room at the Sainte-Foy CEGEP in Québec City, where he was taking a francization course. The victim accompanied him to the room to help him. Upon reaching the room, Mr. Mworosha caught the victim, who had a learning disability, against the wall and told her that she was beautiful and that he wanted to kiss her. She pushed him five or six times and he left.

                               ii.            On July 4, 2013, the victim was on the same bus as Mr. Mworosha. The victim left the bus and did some shopping at a convenience store near her residence. Upon returning home, she left the door ajar and eventually saw that Mr. Mworosha had broken into her kitchen. He told the victim that he loved her, wanted to see her again and would like her telephone number. He tried to kiss her and touched her buttocks, breasts, and genitals with his hands, refusing to leave the premises. She succeeded in making him leave the premises and contacted 911;

                                iii.          In July 2013, the victim was leaning over to drink from a fountain. Mr. Mworosha grabbed the victim’s hips from behind. She was afraid and ran away;

                             iv.            In July 2013, the victim found herself alone in an elevator with Mr. Mworosha. He told the victim that he loved her and wanted to have sexual relations with her. He put his hands on either side of her to trap her against the inner wall of the elevator. She told Mr. Mworosha that she was not interested in him. He then followed her and waited for the end of classes;

                              v.            In July 2013, the victim was followed by Mr. Mworosha, who waited for her at the end of classes and during breaks. Mr. Mworosha told the victim that he loved her and that they should go somewhere else so that they can sleep together. The victim clearly indicated that she was not interested and even took refuge for a long time in the bathroom, but Mr. Mworosha was still waiting when she left;

                             vi.            In July 2013, the victim was approached by Mr. Mworosha, who wanted her telephone number so that he could see her outside the CEGEP. The victim refused, telling him that she was married. Mr. Mworosha followed the victim and waited for the end of classes. The victim took refuge in the bathroom, but Mr. Mworosha was still waiting for her when she left;

                           vii.            On October 15, 2013, Mr. Mworosha followed the victim past the lockers at Louis-Joliette school. He then raped (sexual assault) the victim, telling her that he wanted to have children with her. The victim, who suffered from an intellectual disability, stated that she did not defend herself, since she was not able to speak to him. There was vaginal penetration.

III.               Statutory provisions

IV.              Impugned decision

V.                 Issues

1. in his assessment of the present and future danger that Mr. Mworosha presents to the public in Canada?
2. in his assessment of the risk that Mr. Mworosha would face if he were removed to the DRC?
3. in his assessment of applicable humanitarian and compassionate considerations?
4. in his assessment of relevant factors, particularly the danger to the public, the risk of persecution, and humanitarian and compassionate considerations? In his arguments before this Court, Mr. Mworosha emphasized the best interests of the children.

VI.              Analysis

VII.            Conclusion

[Translation]

“With respect to the best interests of the child, should the panel proceed with an in-depth analysis in order to identify and define the interest of the children affected by the decision and then assess their best interest, even though it only has limited discretionary authority in that regard and is similar to the discretionary authority of a removal officer?”

[1]               This is an application for judicial review regarding a decision rendered on February 28, 2017 [the Decision], by a Delegate of the Minister of Citizenship and Immigration [the Delegate] concluded that the applicant, Nowel Mworosha [Mr. Mworosha], a permanent resident, constitutes a danger to the public in Canada under subsection 115(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA] [the Decision]. The Decision indicated that Mr. Mworosha could be removed from Canada. For the following reasons, I am dismissing the application for judicial review.

[2]               Mr. Mworosha is a citizen of the Democratic Republic of the Congo [DRC]. In September 1996, he had to flee to a refugee camp in Uganda when his parents and brothers were massacred in his home village by the armed forces of the Congolese government. In January 1997, Mr. Mworosha tried to move back to his home village. The militiamen who were responsible for the death of his family had control of the village at the time and had confiscated all his family’s property. Therefore, he had to live in hiding until December 2001, when he again had to flee to Uganda. The militiamen recognized him and pursued, trying to kill him. He was not able to move there permanently due to restrictive legislation that was in force in that country.

[3]               On June 5, 2012, Mr. Mworosha entered Canada with his spouse, Esther Emeline [Ms. Emeline], and his three children who had been born before then (a fourth child was born after his arrival in Canada).

[4]               Between June and October 2013, Mr. Mworosha was involved in seven incidents that led to criminal convictions, including four charges of criminal harassment and three counts of sexual assault. The incidents, which involved seven different victims, are detailed as follows:

[5]               Having pleaded guilty to the acts described in the above paragraphs, Mr. Mworosha was found guilty on June 27, 2014 and sentenced to a total of eighteen months in prison, less his time in pre-trial custody (twelve months), along with three years of probation without supervision.

[6]               On June 30, 2014, Mr. Mworosha was the subject of a report on inadmissibility under section 44 of the IRPA. He was judged to be inadmissible for serious criminality under paragraph 36(1)(a) of the IRPA.

[7]                On May 21, 2015, a deportation order was issued for Mr. Mworosha.

[8]               On February 28, 2017, the Delegate rendered the Decision, concluding that Mr. Mworosha constituted a danger to the public in Canada under subsection 115(2) of the IRPA and could be deported from the country. That Decision is the subject of this application for judicial review.

[9]               The relevant provisions of the IRPA are subsections 36(1), 115(1), and 115(2), and they are reproduced in Appendix A of this document.

[10]           The relevant provisions of the Criminal Code, R.S.C. 1985, c. C-46 [the CC], are subsections 264(1) to 264(3), and section 271, all of which are reproduced in Appendix B of this document.

[11]           At the beginning of his Reasons, the Delegate acknowledged the importance of the Decision, specifying that it would establish whether Mr. Mworosha could or could not be removed from Canada, as long as the removal complies with section 7 of the Canadian Charter of Rights and Freedoms [Charter], as stated by the Supreme Court of Canada [SCC] in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3. For that last purpose, the Delegate explained that it is necessary to consider the danger to the Canadian public, the risk of persecution presented by the removal, and humanitarian and compassionate considerations.

[12]           The Delegate then listed and carefully considered the relevant provisions of the IRPA, especially subsections 36(1), 115(1) and 115(2). He stressed that paragraph 115(2)(a) concurs with section 33(2) of the Convention.

[13]           The Delegate correctly concluded that Mr. Mworosha is inadmissible in Canada for serious criminality under paragraph 36(1)(a) of the IRPA due to convictions for criminal harassment and sexual assault, two criminal convictions that are subject to maximum sentences of 10 years and for which Mr. Mworosha received a total sentence of 18 months in prison. The Delegate summarized the submissions of Mr. Mworosha and his counsel, and listed the documents that were submitted in support of these submissions. The Delegate refers to the expression “danger to the public”, as listed in Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 FC 646 at para 29, [1997] FCJ no. 393 [Williams].

[14]           The Delegate then proceeded with an analysis of the documentation to learn about Mr. Mworosha’s recidivism risk. He noted the laudable efforts that Mr. Mworosha had underwent to date to reduce his recidivism risk, and the fact that Mr. Mworosha benefitted from good support. The Delegate felt that the assessment reports, which indicated that Mr. Mworosha had a moderate-to-low recidivism risk, and that his need for intervention and treatment were moderate in scale. He also noted that this ranking placed him in the 66^th percentile, suggesting that 57.1% of ranked individuals had a lower score than his and that the documentation showed that Mr. Mworosha had a lack of insight or feelings of guilt, even after he left prison. He also considered the severity, nature, and frequency of the offences. Based on that information, the Delegate concluded that, on the balance of probabilities, Mr. Mworosha constituted a risk to the public in Canada now and in the future.

[15]           After concluding that Mr. Mworosha constituted a risk to the public in Canada, the Delegate considered the submissions of Mr. Mworosha and his counsel regarding the conditions in the DRC and the interests of the children.

[16]           Regarding the conditions in the DRC, the Delegate considered, among other things, an excerpt from the World Factbook of the Central Intelligence Agency; the 2015 report Country Reports on Human Rights Practices – Democratic Republic of the Congo; and an excerpt from the Home Office report Country Information and Guidance – Democratic Republic of the Congo: treatment on return. Based on those documents, the Delegate said that he was aware that the political situation in the DRC is still delicate and that human rights are still not respected. He noted that the living conditions are not comparable to those in Canada. However, he concluded that the documentation confirmed that the return of a refugee claimant would not create any significant risk, unless the refugee claimant was already wanted in that country. In addition, he concluded that being a convicted criminal in Canada would not present a significant risk either. The Delegate concluded that it was political opponents who were persecuted upon returning to the DRC and that Mr. Mworosha did not submit sufficient evidence to allow him to conclude that he had any particular political involvement. He also concluded that Mr. Mworosha did not submit sufficient evidence to allow him to conclude that the militiamen who had killed his family and pursued him in the DRC would still be interested in him. Given that information, the Delegate concluded that the evidence on record did not show that Mr. Mworosha would be at risk of persecution if he returned to the DRC.

[17]           The Delegate then turned to the situation of Mr. Mworosha’s family, particularly his financial and moral role in the family, along with his job as a room attendant with Unick entretien ménager that he has had since April 25, 2015. The Delegate noted that Ms. Emeline attended the Centre Louis-Jolliet to complete her high school studies and that two of their four children are attending school, while the youngest two children are enrolled at the Centre de la petite enfance. He considered a letter written by Ms. Emeline that explained the difficulty that the family would face if Mr. Mworosha were removed from Canada. However, the Delegate found that Mr. Mworosha was absent for a certain period while he was incarcerated, and that the family seemed to be able to survive despite his absence. He acknowledged that a removal would without a doubt lead to a major and difficult adjustment period for the whole family and that such a separation would cause stress. However, he concluded that Mr. Mworosha did not concretely show how such a break-up would be irreparable for his family. For that reason, the Delegate considered that the separation of Mr. Mworosha from his children was not a sufficient factor to prohibit his removal, given the seriousness of his offences. The same goes for the other humanitarian and compassionate considerations, particularly his level of social and economic establishment in Canada.

[18]           Lastly, the Delegate considered subsections 3(1) and 3(3) of the IRPA. He concluded that after having attentively examined all the facts in this case, the need to protect Canadian society is more important than the risks that Mr. Mworosha may possibly face if he were removed to the DRC. As a result, he concluded that Mr. Mworosha can be deported under paragraph 115(2)(a) of the IRPA. The removal would not shock the conscience of Canadians.

[19]           Mr. Mworosha raised four issues, namely: Did the Delegate commit a reviewable error:

[20]           As agreed by the parties, the standard of review for a decision by a Minister’s Delegate in this case is the standard of reasonableness (Omar v. Canada (Minister of Citizenship and Immigration), 2013 FC 231 at para 33, [2013] FCJ no. 227; Reynosa c. Canada (Minister of Citizenship and Immigration), 2016 FC 1058 at para 11, [2016] FCJ no. 1015 [Reynosa]). As a result, the Delegate’s findings are entitled to a high degree of deference (Reynosa at para 11; Dunsmuir v. New Brunswick, 2008 SCC 9 at paras 51, 53, 164, [2008] ACS no. 9 [Dunsmuir]). In terms of the reasonableness criteria, the Court must determine whether the decision falls “within the range of acceptable and rational solutions.” (Dunsmuir at para 47), cited in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at para 67, [2009] 1 SCR 339.

[21]           In fact, Mr. Mworosha claimed that the Delegate unreasonably neglected or poorly considered the evidence showing that he would not present such a high risk of recidivism to be described as a danger to the public. For example, he claimed that the Delegate intentionally ignored a letter from Ms. Jennifer Cantin, a program facilitator at Maison Painchaud, a community residential facility in Québec City, the purpose of which is to promote reintegration. Mr. Mworosha also claimed that the Delegate did not consider the fact that the applicant pleaded guilty or the fact that assessment reports found that Mr. Mworosha presented a moderate-to-low scale of recidivism risk, and that his intervention and treatment needs were moderate in scale. In addition, Mr. Mworosha alleged that the Delegate exceeded his authority by analyzing the consequences of the applicant’s criminal acts on the victims.

[22]           Contrary to Mr. Mworosha’s claims, the letter from Ms. Cantin was clearly considered in the Delegate’s Reasons. While that document in fact showed the applicant’s psychological needs, his efforts, and his cooperation, it also revealed Mr. Mworosha’s continued lack of awareness. The Delegate also considered the assessment reports that indicated that Mr. Mworosha presented a moderate-to-low recidivism risk and that his intervention and treatment needs were moderate in scale. In addition, the reports show a lack of awareness or feelings of guilt in Mr. Mworosha. They do not necessarily prove that Mr. Mworosha has an acceptable recidivism risk. The same goes for Mr. Mworosha’s other assertions that the Delegate unreasonably neglected or poorly considered the evidence.

[23]           As for the claim that the Delegate exceeded his authority by analyzing the consequences of the applicant’s criminal acts on the victims, I accept the respondent’s position. In order to determine whether the risk is unacceptable, it is necessary to consider the seriousness of the offence, which is linked to the short- and long-term consequences for the victims. The meaning of the expression “danger to the public” is established jurisprudence as relating “to the possibility that a person who has committed a serious crime in the past may seriously be thought to be a potential re-offender”, thus representing the “present or future danger to the public” that a person presents and which “creates an unacceptable risk to the public” (Williams at para 29; Thompson v. Canada (Minister of Citizenship and Immigration), [1996] FCJ no. 1097 at para 20, 118 F.T.R. 269). The consequences of a past offence can be used to assess the potential consequences of repeat offending. [Emphasis added.]

[24]           Moreover, Mr. Mworosha asked the Court to reconsider the Delegate’s approach to the guilty pleas, the Delegate’s interpretation of a probation period without supervision, and Mr. Mworosha’s level of remorse. Nothing suggests that the Delegate committed a reviewable error in his assessment of the evidence regarding these issues. It is not the role of the Court to reconsider the evidence and substitute the Delegate’s version of the facts for its own; it must show great deference to the Delegate’s conclusions, so long as they fall “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Reynosa at para 11; Dunsmuir at paras 47, 51, 53, 164). Based on all the facts, the decision that Mr. Mworosha constitutes a danger to the public in Canada under subsection 115(2) of the IRPA is among the reasonable decisions.

[25]           A refugee status claimant has the burden of proving the existence of a fear based on persecution (Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, 128 DL. (4th) 213; see also paragraphs 100(1.1) and 100(4) of the IRPA). Although he already had permanent residency status, there is a parallel between the burden imposed on refugee status claimants and this case, in which a permanent resident is trying to invoke his right to stay in Canada under subsection 115 (1) of the IRPA by stating his fear of persecution. The burden of proving that Mr. Mworosha would be exposed to a risk of persecution or torture if he were sent to the DRC falls to him.

[26]           In addition, I reject the applicant’s claim that recognition of Mr. Mworosha’s refugee status in the past ensured that the Delegate’s Decision would be unreasonable. If that were the case, a removal under subsection 115(2) would be pointless. Any protected person or refugee would in theory have already had to prove a fear of persecution. To give force to subsection 115(2), it is necessary to show that a fear of persecution still exists. The burden of proof thus falls to the applicant.

[27]           The Delegate concluded that the evidence on record did not show that Mr. Mworosha would be at risk of persecution if he returned to the DRC. That conclusion was reasonable with respect to the evidence. Once again, the Court must show a high degree of deference to the Delegate’s conclusions, so long as they fall “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Reynosa at para 11; Dunsmuir at paras 47, 51, 53, 164).

[28]           In his case, Mr. Mworosha claimed that he is the only financial support for his spouse, Ms. Emeline, and their four children. He also asserted that he plays an important role in the lives of his children and that his removal would be extremely difficult, even an irreparable tragedy, for his family. Lastly, he mentioned his ties to the community, particularly his church, his social worker, his job, and the centre communautaire multiethnique de Québec.

[29]           The Delegate considered those facts in his decision. He admitted that a removal would without a doubt led to a significant and difficult adjustment period for the entire family and that such a separation would cause distress. However, that is not sufficient. Familial separation and financial difficulties are the ordinary consequences of a removal from Canada and are not extraordinary circumstances that may allow for a removal to be postponed (Tran v. Canada (Solicitor General), 2006 FC 1240 at para 25, [2006] FCJ no. 1565; Ovcak v. Canada (Minister of Citizenship and Immigration), 2012 FC 1178 at para 13, [2012] FCJ no. 1261). It was reasonable for the Delegate to conclude that there were no humanitarian or compassionate considerations that may prohibit the removal.

[30]           Having reasonably considered all of the relevant facts and submissions, and having decided that Mr. Mworosha: (1) constitutes a danger to the public in Canada; (2) is not exposed to a risk of persecution or torture if he is sent to the DRC; and (3) has not shown that there are sufficient humanitarian and compassionate considerations, it is reasonable to conclude that the need to protect Canadian society for Mr. Mworosha would prevail over the other factors and that Mr. Mworosha’s removal would not shock the conscience of Canadiens. Based on my analysis of the abovementioned relevant factors, there is nothing to suggest that the Delegate made a reviewable error regarding this conclusion. I share the opinion expressed by the respondent’s counsel, according to which, given the circumstances of the offences, particularly the rape (sexual assault) of an intellectually disabled woman and Mr. Mworosha’s efforts to excuse himself by invoking Congolese culture, the conscience of Canadians would be shocked if he were not removed. In addition, Mr. Mworosha claimed that his criminal actions in Canada are accepted in Congolese culture. I must add that attributing his criminal acts to Congolese culture is not only offensive to that culture, but also to the Congolese public.

[31]           For all these reasons, the Decision by the Minister’s Delegate that Mr. Mworosha constitutes a danger to the public in Canada within the meaning of subsection 115(2) of the IRPA and can be deported from the country is reasonable. The application for judicial review must be dismissed.

[32]           Mr. Mworosha applied for the following question to be certified for appeal before the Federal Court of Appeal [FCA] under section 82.3 of the IRPA:

[33]           In light of Lewis v. Canada (Minister of Public Safety and Emergency Preparedness), 2017 FCA 130, [2017] F.C.J. no. 629 [Lewis], Rrotaj v. Canada (Minister of Citizenship and Immigration), 2016 FCA 292, [2016] F.C.J. no. 1296 [Rrotaj], and Crawford v. Canada (Minister of Public Safety and Emergency Preparedness), 2017 FC 743, [2017] F.C.J. no. 774, I am dismissing the application. This question has already been answered in Lewis; an in-depth analysis of the interest of the child is only mandatory for applications for paragraph 25(1) of the IRPA. Thus, the question is not serious and is of general importance (Rrotaj at para 6).

JUDGMENT in IMM-1243-17

THE COURT ORDERS THAT:

1.      The application for judicial review is dismissed; and

2.      There is no question to be certified.

 “B. Richard Bell”

APPENDIX A

APPENDIX B

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: