Date: 20101103
Docket: IMM‑1487‑10
Citation: 2010 FC 1081
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, November 3, 2010
PRESENT: The Honourable Madam Justice Tremblay‑Lamer
BETWEEN:
KAJENTHIRAN JEYAMOHAN
Applicant
and
MINISTER
OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This is an application
for judicial review under subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the IRPA), of an opinion of
the Minister of Citizenship and Immigration issued under paragraph 115(2)(a)
of the IRPA, dated February 17, 2010, that the applicant should leave
Canada because he constitutes a danger to the Canadian public.
FACTS
[2]
The applicant is a Ski
Lankan national of Tamil origin.
[3]
In 1997, he was arrested
by soldiers and arrested and detained by police for two days. For that
reason, he left Sri Lanka at the age of 16.
[4]
He arrived in Vancouver
on May 27, 1998, and claimed refugee status.
[5]
On December 4, 1998,
the Immigration and Refugee Board (the IRB) allowed his claim for refugee
protection and granted him the protection sought.
[6]
On May 28, 1999, in
Montréal, he obtained permanent residence status.
[7]
On July 28, 2003,
he was found guilty of several counts of assault and sentenced to a term of
imprisonment.
[8]
On October 9,
2003, he became the subject of an inadmissibility report under section 44
of the IRPA on account of his criminal offence.
[9]
On February 8,
2005, a removal order was made against him. The applicant appealed the order to
the Immigration Appeal Division (the IAD).
[10]
On June 12, 2006,
he was found guilty of theft, uttering threats and fraudulent possession of a
credit card. He was sentenced to another term of imprisonment.
[11]
On August 7, 2006,
owing to these newly committed crimes, he became the subject of a second inadmissibility
report under section 44 of the IRPA.
[12]
On October 20,
2006, a second removal order was made against him, and a warrant for his arrest
and detention was issued under section 59 of the IRPA.
[13]
On September 28,
2006, he was found guilty of assault causing bodily harm.
[14]
On November 2,
2006, he became the subject of another inadmissibility report under
section 44 of the IRPA.
[15]
On February 9,
2007, after having served his prison sentence for his criminal offences, the
applicant was arrested and detained by Canada Border Services Agency (CBSA)
officers.
[16]
On February 12,
2007, the IAD dismissed the appeal of his removal order on the ground that it lacked
jurisdiction to hear the case.
[17]
On September 26,
2007, the claimant was released from the CBSA detention centre with conditions,
which included reporting to CBSA twice a month.
[18]
On May 26, 2008,
another report was issued under subsection 44(1) of the IRPA because the
applicant was found guilty of two breaches of his probation order.
[19]
On July 15, 2008,
another report was issued against the applicant under subsection 44(1) of
the IRPA because he was convicted, on January 17, 2008, of offences
relating to public or peace officers, contrary to paragraph 129(a)
of the Criminal Code.
[20]
On January 12,
2009, the claimant was found guilty of robbery, forging or falsifying credit
cards, possession of weapons for a dangerous purpose, disguise with criminal
intent and two breaches of his probation order. He was sentenced to
24 months in prison.
[21]
The applicant is
currently serving his sentence for those most recently committed offences.
[22]
On February 17,
2010, the Minister’s delegate issued an opinion under paragraph 115(2)(a)
of the IRPA, that the applicant constitutes a danger to the public in Canada on grounds of serious criminality.
[23]
Since the applicant is
not challenging the assessment that he constitutes a danger, the only question
to be decided is whether the Minister’s delegate erred in assessing the risk
that the applicant would be exposed to if he were removed to Sri Lanka.
Applicant’s position
[24]
The applicant submits
that the decision of the Minister’s delegate that there was no serious
possibility that the applicant would be arrested, detained, persecuted or subjected
to ill treatment by the Sri Lankan authorities if he were to return to his country
of origin was unreasonable and made in disregard of the evidence before her.
[25]
In fact, the applicant
has previously been detained by the Ski Lankan authorities. Although these
periods of detention happened quite some time ago, they show that the applicant
is a person of interest to the country’s authorities.
[26]
Contrary to the
delegate’s assertion, the documentary evidence shows that deported persons are subjected
to special screening by the national authorities upon their return to Sri Lanka.
The applicant will therefore undergo heightened screening when he returns to
Sri Lanka and will have to explain the reasons he was granted refugee status in
Canada.
[27]
There is also a
significant risk that the applicant will be detained after the initial
questioning, either when it is discovered that he has previously been detained
by the Sri Lankan authorities or because he is a young Tamil from northern Sri
Lanka.
[28]
Therefore, the finding
by the Minister’s delegate—that she is satisfied on a balance of probabilities
that it is unlikely that the applicant will be arbitrarily detained after his
arrival—is unreasonable.
Respondent’s position
[29]
The respondent submits that
the findings in the report are reasonable and supported by the evidence in the
file and that the decision contains no errors of fact or law.
[30]
The Minister’s delegate
performed an exhaustive analysis of the risk the applicant could face if he
were removed and of the documentary evidence concerning the treatment of Sri
Lankan refugee protection claimants returning to their country of origin.
[31]
She relied on the
documentary evidence in the file to conclude that the Sri Lankan police only keep
information on arrested persons for a period of five years.
[32]
She also took into
account the applicant’s arrests and brief detention in 1997 and 1998. What is
more, the applicant provided no evidence that he is currently wanted by the Sri
Lankan authorities.
[33]
This Court’s
intervention is not required because the danger opinion of the Minister’s
delegate has the necessary justification, transparency and intelligibility.
APPLICABLE STANDARD OF REVIEW
[34]
The standard of review
that applies to the issue of an administrative decision maker’s assessment of
the evidence is the reasonableness standard (Dunsmuir v. New Brunswick,
2008 SCC 9; Sidhu v. Canada (Minister of Citizenship and Immigration),
2004 FC 39; Joseph v. Canada (Minister of Citizenship and Immigration),
2004 FC 344).
[35]
Therefore, this Court
will not substitute its decision for that of the Minister’s delegate unless it
is satisfied that she made abusive or arbitrary findings without taking into
account the evidence before her, and only if her decision does not fall within
the range of possible, acceptable outcomes in respect of the facts and law (Dunsmuir
(above)).
ANALYSIS
[36]
Paragraph 115(2)(a)
of the IRPA provides as follows:
|
Principle of
Non-refoulement
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.
|
Principe du
non-refoulement
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.
|
|
|
|
|
Exceptions
(2) Subsection (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; or
. . .
|
Exceptions
(2) Le
paragraphe (1) ne s’applique pas à l’interdit de territoire :
a)
pour grande criminalité qui, selon le ministre, constitue un danger pour le
public au Canada;
(…)
|
[37]
In Ragupathy v.
Canada (Minister of Citizenship and Immigration), 2006 FCA 151, at paragraph 18,
the Federal Court of Appeal proposed a framework for the delegate to apply,
once it has been established that a protected person is inadmissible on grounds
of serious criminality and constitutes a danger to the public, in order for the
delegate to formulate his or her opinion under paragraph 115(2)(a)
of the IRPA:
. . . If, on the other hand, the delegate is of the
opinion that the person is a danger to the public, the delegate must then
assess whether, and to what extent, the person would be at risk of persecution,
torture or other inhuman punishment or treatment if he was removed. At this
stage, the delegate must determine how much of a danger the person's continuing
presence presents, in order to balance the risk and, apparently, other
humanitarian and compassionate circumstances, against the magnitude of the
danger to the public if he remains.
[38]
In Almrei v. Canada
(Minister of Citizenship and Immigration), 2005 FC 355,
Justice Blanchard concluded that the threshold for determining whether refoulement
is possible is to ask whether it will expose the applicant to a serious risk of
torture. This risk must be personal and present and be assessed on the basis of
criteria that go beyond “mere theory” or “suspicion”:
If the risk is
not established, there is no need to pursue the analysis since the applicant is
not entitled to the protection afforded by subsection 115(1) of the IRPA.
(at paragraph 36).
[39]
In her decision, the
Minister’s delegate made specific references to the applicant’s concerns that if
he had to return to Sri Lanka, he would be at risk of being arbitrarily
arrested and detained because of the suspicion he was under before he left for
Canada, his arrest in 1997 and brief detention in 1998 and the fact that the
Sri Lankan authorities may have kept information on those matters.
[40]
However, the delegate
found that it is unlikely that the authorities kept information on those
detentions:
As police
records are only kept for 5 years, there is unlikely to be any record of
his brief arrest (2 days) in 1998 by Colombo police. And as, according to
his PIF, he was never arrested by the SIS, it is unlikely that authorities
would have a record of his brief encounter with the Sri Lankan military in
1997. It is also highly unlikely that authorities would have any record on his
kidnapping by LTTE in 1995 or his forced labour for the LTTE in 1997 (Danger
opinion, at page 25).
[41]
It is also clear from
the decision that the delegate was aware of the applicant’s risk of being
subjected to special screening by the Sri Lankan authorities when he returned
to the country; however, she was of the opinion that this screening would not
lead to further checks and that if he were arrested and/or detained, he would
not be held for long:
There is nothing
before me to indicate that Mr. Jeyamohan is a high profile member of the
LTTE, in fact he appears to have had no connection to the group over the course
of his entire adult life, there is little reason to suppose he would be
arrested on suspicion of being a member and if arrested and/or detained he
would be kept for any length of time.
[42]
Furthermore, in light
of the documentary evidence in the file, the delegate noted, first, that the
Sri Lankan courts ensure genuine monitoring of the exercise of power by the
authorities and, second, that although some cases of torture in prison have
been reported, there are measures in place to prevent those abuses.
[43]
She also took into
consideration the applicant’s tattoos and scars which might draw the attention
of the Sri Lankan authorities, but noted that the scarring occurred in Canada,
which the applicant could explain to the Sri Lankan authorities. In that
regard, he could also provide evidence of medical checkups in Canada.
[44]
Last, the delegate was
of the opinion that nothing suggests that CBSA authorities will share
information with Sri Lankan authorities regarding the applicant’s criminal
activities in Canada. Therefore, she does not believe that the Sri Lankan
authorities would treat him with greater suspicion.
[45]
As for the fact that
the applicant may be subjected to ill treatment because he is from the northern
part of the country, the delegate noted that the applicant need not go to that
part of Sri Lanka and can decide to remain in Colombo.
[46]
Finally, relying on a
recent piece of documentary evidence in the file, the delegate acknowledged
that young men of Tamil origin may be subjected to discrimination but found that
this discrimination has not reached the level of persecution.
[47]
In summary, on the
basis of the evidence in the file, the delegate performed a detailed analysis
of the applicant’s personalized fear, which resulted in the finding that the
risk the applicant could face if he were to return is no more than a mere possibility
and that, on a balance of probabilities, it is unlikely that he would face a
personalized risk to his life, a risk of cruel or unusual treatment or a danger
of torture.
[48]
The case law is clear
that the Court must show deference toward the delegate’s decision and not
substitute its own assessment of the facts.
The Federal Court of Appeal affirmed as follows:
. . . In light of Suresh, and more recently Dunsmuir,
I agree with Justice Kelen that a high degree of deference is to be afforded to
the Delegate’s factual findings (Nagalingam v. Canada (Citizenship and Immigration),
2008 FCA 153, at paragraph 32).
[49]
In this case, the
delegate’s finding falls within the acceptable findings in respect of the facts
and law, and it is not for the Court to substitute its own findings for those
of the delegate.
[50]
For all of these reasons,
the application for judicial review is dismissed.
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