Date: 20071115
Docket: IMM-1923-07
Citation: 2007 FC 1194
Ottawa, Ontario, November 15, 2007
Present:
The Honourable Mr. Justice Shore
BETWEEN:
RACHID
DERBAS
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
Beating
one’s wife is no different than beating a third party, despite the contention
of the applicant. For the purpose of interpreting the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, once section 36 of this
legislation is applied, the finding of serious criminality, in itself, bears
its own consequences.
[2]
Analyzing
criminal inadmissibility, Mr. Justice Robert Décary noted in Cha v. Canada
(Minister of Citizenship and Immigration), 2006 FCA 126, [2006] F.C.J. No.
491 (QL):
[27] The
section distinguishes between the criminality of permanent residents and that
of foreign nationals. It distinguishes between offences committed in Canada and
offences committed outside Canada. It distinguishes between offences that are
qualified as “serious” (an offence punishable by a maximum term of imprisonment
of at least 10 years or an offence for which a term of imprisonment of more
than six months has been imposed) and offences which, for lack of a better
word, I will describe as “simple” (an offence punishable by way of indictment
or two offences not arising out of a single occurrence).
[28] Parliament, therefore, wanted certain
persons having committed certain offences in certain territories to be declared
inadmissible, whatever the sentence imposed. Subsections 36(1) and (2) of
the Act have been carefully drafted. Nothing was left to chance nor to
interpretation.
. . .
[30] As I read subsection
36(3), Parliament has provided a complete, detailed and straightforward code
which directs the manner in which immigration officers and Minister’s delegates
are to exercise their respective powers under section 44 of the Act. Hybrid
offences committed in Canada are to be treated as indictable offences
regardless of the manner in which they were prosecuted (paragraph 36(3)(a)).
Convictions are not to be taken into consideration where pardon has been
granted or where they have been reversed (paragraph 36(3)(b)).
Rehabilitation may only be considered in defined circumstances (paragraph
36(3)(c)). The relative gravity of the offence and the age of the
offender will only be a relevant factor where the Contraventions Act, S.C. 1992, c. 47 and the Young Offenders
Act, R.S.C., 1985, c.Y‑1 apply (paragraph 36(3)(e)).
[Emphasis added by the
Court.]
NATURE OF JUDICIAL
PROCEEDING
[3]
This is an application for judicial review pursuant to
subsection 72(1) of the IRPA, of a decision by an immigration officer of Citizenship
and Immigration Canada (CIC) dated April 19, 2007, deciding that the
application for permanent residence as a person in need of protection be
dismissed pursuant to paragraph 36(1)(a) of the IRPA.
FACTS
[4]
The
applicant, Rachid Derbas, is a citizen of Syria.
[5]
Mr. Derbas
has been involved with the Kurdish party since secondary school.
[6]
In
July 1998, Mr. Derbas had been arrested and tortured by four Syrian secret
service agents. He was allegedly released the following day after he undertook
not to work for the Kurdish party any longer. However, in the beginning of
1999, Mr. Derbas says that he discretely resumed his activities with this
party. In April 1999, after learning of the arrest of three of his party
associates, he hid at his aunt’s home in Al-Hasakah.
[7]
On
May 19, 1999, Mr. Derbas left Syria for Haraméya, in Turkey. On June 13,
1999, he left for Istanbul in order to head for Canada on June 15, 1999. When
he arrived, he claimed refugee status, alleging that he feared persecution
based on his Kurdish nationality.
[8]
On
March 13, 2001, the Refugee Protection Division of the Immigration and Refugee
Board (Board) refused to grant refugee status. That same day, Mr. Derbas
filed an application in the class of claimants not recognized as refugees in
Canada through a procedure which became a pre-removal risk assessment (PRRA)
pursuant to the new Act (IRPA). Simultaneously, on December 10, 2001,
he filed an application for permanent residence in Canada based on humanitarian
and compassionate considerations (HC) and the risks of return.
[9]
On
February 10, 2004, Mr. Derbas was convicted of three criminal offences
that had been committed in Canada. Mr. Derbas pleaded guilty to one count
of assault causing bodily harm on his ex-wife, an indictable offence under
paragraph 267(b) of the Criminal Code, R.S.C. 1985, c. C-46
(Code), liable to imprisonment for a term not exceeding ten years. He was also found guilty of failing to comply with a
condition, an offence under paragraph 145(5.1)(b) of the Code. Finally, Mr. Derbas
was also found guilty of uttering threats, an offence described at
section 264.1 of the Code. For all of these
offences, Mr. Derbas was sentenced to 45 days of imprisonment and
three years of probation (30 days for the offences
described in paragraph 267(b) and 264.1 of the Code and 15 days for the offence
under 145(5.1)(b) of the Code).
[10]
On
January 11, 2006, the PRRA application filed by Mr. Derbas was approved.
The officer, Charles Lajoie, having reviewed his PRRA application, had
determined that Mr. Derbas was a person at risk if he were to return to
his native country, Syria, in accordance with the terms of
paragraph 95(1)(c) of the IRPA.
[11]
On
March 14, 2006, Mr. Derbas applied for permanent residence as a person in
need of protection. This application was dismissed on April 19, 2007, by the
CIC immigration officer.
[12]
Mr. Derbas
considers that the decision of the immigration officer is based on erroneous
findings of fact or law made in a perverse or capricious manner or without regard
to the material before the officer which, accordingly, renders it
inconsistent with the objective and spirit of the law.
[13]
Further,
he submits that the immigration officer erred in law in his decision by
breaching section 7 of the Canadian Charter of Rights and Freedoms,
Part I, Schedule B to the
Canada Act 1982 (U.K.) 1982, c. 11( the Charter), and the
fundamental principles of justice.
[14]
The
respondent submits that the adjudicator’s decision is founded in fact and in
law and that Mr. Derbas has not shown that this Court’s intervention is
justified.
IMPUGNED DECISION
[15]
The
immigration officer determined that Mr. Derbas was inadmissible to Canada
on grounds of serious criminality pursuant to paragraph 36(1)(a) of
IRPA, based on the fact that Mr. Derbas had been found guilty of assault
under paragraph 267(b) of the Code, an offence liable to
imprisonment for a term not exceeding ten years.
ISSUES
[16]
(1)
Did the immigration officer err in refusing the applicant’s permanent residence
application on the pretext that he was inadmissible pursuant to
paragraph 36(1)(a) of the IRPA?
(2) Did the
immigration officer render a decision that violates or denies the right
guaranteed under section 7 of the Charter?
ANALYSIS
Relevant
legislative provision
[17]
An
application for permanent residence as a person in need of protection is
governed by section 21 of the IRPA. This section provides:
|
Permanent resident
21. (1) A foreign national becomes a
permanent resident if an officer is satisfied that the foreign national has
applied for that status, has met the obligations set out in paragraph 20(1)(a)
and subsection 20(2) and is not inadmissible.
Protected person
(2) Except in the case
of a person described in subsection 112(3) or a person who is a member of a
prescribed class of persons, a person whose application for protection has
been finally determined by the Board to be a Convention refugee or to be a
person in need of protection, or a person whose application for protection
has been allowed by the Minister, becomes, subject to any federal-provincial
agreement referred to in subsection 9(1), a permanent resident if the officer
is satisfied that they have made their application in accordance with the
regulations and that they are not inadmissible on any ground referred to in
section 34 or 35, subsection 36(1) or section 37 or 38.
|
Résident Permanent
21. (1) Devient résident
permanent l’étranger dont l’agent constate qu’il a demandé ce statut, s’est
déchargé des obligations prévues à l’alinéa 20(1)a) et au paragraphe
20(2) et n’est pas interdit de territoire.
Personne protégée
(2) Sous réserve d’un
accord fédéro-provincial visé au paragraphe 9(1), devient résident permanent
la personne à laquelle la qualité de réfugié ou celle de personne à protéger
a été reconnue en dernier ressort par la Commission ou celle dont la demande
de protection a été acceptée par le ministre — sauf dans le cas d’une
personne visée au paragraphe 112(3) ou qui fait partie d’une catégorie
réglementaire — dont l’agent constate qu’elle a présenté sa demande en
conformité avec les règlements et qu’elle n’est pas interdite de territoire
pour l’un des motifs visés aux articles 34 ou 35, au paragraphe 36(1) ou aux
articles 37 ou 38.
|
[18]
Paragraph
36(1)(a) of the IRPA establishes the context in which a permanent
resident application may be refused:
|
Serious
criminality
36. (1) A permanent
resident or a foreign national is inadmissible on grounds of serious
criminality for
(a)
having been convicted in Canada of an offence under an Act of Parliament
punishable by a maximum term of imprisonment of at least 10 years, or of an
offence under an Act of Parliament for which a term of imprisonment of more
than six months has been imposed;
|
Grande
criminalité
36. (1) Emportent
interdiction de territoire pour grande criminalité les faits suivants:
a) être
déclaré coupable au Canada d’une infraction à une loi fédérale punissable
d’un emprisonnement maximal d’au moins dix ans ou d’une infraction à une loi
fédérale pour laquelle un emprisonnement de plus de six mois est infligé;
|
[19]
In
this case, Mr. Derbas admits that he was found guilty in Canada of the
criminal offence under section 267(b) of the
Code which provides as follows:
|
Assault with a weapon or causing bodily harm
267. Every one who, in committing an
assault,
…
(b) causes
bodily harm to the complainant,
is guilty of an
indictable offence and liable to imprisonment for a term not exceeding ten
years or an offence punishable on summary conviction and liable to
imprisonment for a term not exceeding eighteen months
|
Agression armée ou infliction de
lésions corporelles
267. Est coupable soit d’un
acte criminel et passible d’un emprisonnement maximal de dix ans, soit d’une
infraction punissable sur déclaration de culpabilité par procédure sommaire
et passible d’un emprisonnement maximal de dix-huit mois quiconque, en se
livrant à des voies de fait, selon le cas:
[...]
b) inflige des lésions corporelles au plaignant
|
(1) Did the immigration
officer err in refusing the applicant’s permanent residence application on the
pretext that he was inadmissible pursuant to paragraph 36(1)(a) of
the IRPA?
Standard of
review
[20]
It
has been consistently held in the case law that the appropriate standard for
the judicial review of a decision varies according to the nature of the
decision. For a question of law, the standard is that of correctness, for a
question of fact, that of patent unreasonableness; and for a mixed question of
fact and law, that of reasonableness. The Supreme Court of Canada confirmed
this approach in Mugesera v. Canada (Minister of Citizenship and Immigration),
[2005] 2 S.C.R. 100.
[21]
This
question raised is one of mixed fact and law, therefore the reasonableness
standard will be applied.
The merits of
the officer’s decision
[22]
Mr. Derbas
was convicted of assault, an offence which is “an indictable offence and liable
to imprisonment for a term not exceeding ten years or an offence punishable on
summary conviction and liable to imprisonment for a term not exceeding eighteen
months” [Emphasis added by the Court.] (Code, paragraph 267(b)).
[23]
The
IRPA clearly establishes that a protected person can be given permanent
residence status when his or her application complies with the Regulations and
when that person is not inadmissible for one of the grounds contemplated in
subsection 36(1) (IRPA, section 21).
[24]
Mr. Derbas
alleges that he pleaded guilty to the offence punishable on summary conviction
under section 267 of the Code, an offence liable to imprisonment for a
term not exceeding only eighteen months, and not an indictable offence, which
in fact is not contemplated by paragraph 36(1)(a) of the IRPA
(Applicant’s memorandum, page 20, paragraph 2).
[25]
When
analyzing criminal inadmissibility, Décary J.A. notes in Cha, supra:
[27] The
section distinguishes between the criminality of permanent residents and that
of foreign nationals. It distinguishes between offences committed in Canada and
offences committed outside Canada. It distinguishes between offences that are
qualified as “serious” (an offence punishable by a maximum term of imprisonment
of at least 10 years or an offence for which a term of imprisonment of more
than six months has been imposed) and offences which, for lack of a better
word, I will describe as “simple” (an offence punishable by way of indictment
or two offences not arising out of a single occurrence).
[28] Parliament, therefore, wanted certain
persons having committed certain offences in certain territories to be declared
inadmissible, whatever the sentence imposed. Subsections 36(1) and (2) of
the Act have been carefully drafted. Nothing was left to chance nor to
interpretation.
. . .
[30] As I read subsection
36(3), Parliament has provided a complete, detailed and straightforward code
which directs the manner in which immigration officers and Minister’s delegates
are to exercise their respective powers under section 44 of the Act. Hybrid
offences committed in Canada are to be treated as indictable offences
regardless of the manner in which they were prosecuted (paragraph 36(3)(a)).
Convictions are not to be taken into consideration where pardon has been
granted or where they have been reversed (paragraph 36(3)(b)).
Rehabilitation may only be considered in defined circumstances (paragraph
36(3)(c)). The relative gravity of the offence and the age of the
offender will only be a relevant factor where the Contraventions Act,
S.C. 1992, c. 47 and the Young Offenders Act, R.S.C., 1985, c.Y‑1
apply (paragraph 36(3)(e)).
[Emphasis added by the
Court.]
[26]
In
a matter where the interpretation of section 36 of the IRPA was at issue
and in which there was also an allegation like the one alleged by
Mr. Derbas in this case, Madam Justice Danièle Tremblay-Lamer, stated the
following in Canada (Minister of Citizenship and Immigration) v.
Kelley, 2007 FC 82, [2007] F.C.J. No. 271 (QL), regarding the
interpretation of subsection 36(3) of the IRPA:
[15] The respondent was convicted under section 264 of the Criminal Code, and therefore
was liable to imprisonment for a term not exceeding ten years.
[16] The applicant submits that as he could
potentially be sentenced “up to and including ten years of imprisonment”, the
respondent meets the requirements of subsection 36(1) of the Act.
[17] The
respondent submits that having been convicted of a summary offence he was only
liable to a maximum term of imprisonment of six months rather than ten years,
and therefore the IAD was correct in holding as it did.
[18] I
disagree with the respondent. Subsection 36(3) of the Act is clear that
offences that may be prosecuted either summarily or by indictment are deemed to
be indictable offences, even where prosecuted summarily.
[19] Thus,
I find that the IAD committed a reviewable error by incorrectly finding that
the “maximum term of imprisonment is less than 10 years” in relation to
subsection 264(3) of the Criminal
Code. Clearly, this offence qualifies as “serious criminality” by virtue of
subsection 36(1) as it was punishable for a term “not exceeding ten years”,
which necessarily includes the possibility of a ten-year sentence.
[20] In misinterpreting subsection 264(3) of the Criminal Code, along with
subsections 36(1) and 36(3) of the Act, the IAD erred in its application of
subsection 68(4) and section 197 of the Act. In the circumstances of this
matter, the correct interpretation was that the respondent’s stay of execution
of the removal order was cancelled by operation of law and the appeal was
terminated
[Emphasis in the original.]
[27]
The
criminal offence provided under paragraph 267(b) of the Code is
nevertheless liable to imprisonment for a term not exceeding ten years.
Accordingly, this observation alone is sufficient to engage subsection 21(2)
of the IRPA and to support a finding that the permanent residence application
filed by Mr. Derbas as a person in need of protection cannot be granted.
[28]
As
Madam Justice Judith Snider points out in Hernandez v. Canada (Minister of
Citizenship and Immigration), 2005 FC 429, [2005] F.C.J. No. 533 (QL),
at paragraph 6: “serious
criminality [is defined] as being an offence which is either “punishable by a
maximum term of imprisonment of at least 10 years” or “for which a term of
imprisonment of more than six months has been imposed”.” Accordingly,
she determines that Mr. Derbas falls within the ambit of paragraph 36(1)(a)
of the IRPA.
[29]
In
this case, Mr. Derbas is also under the purview of paragraph 36(1)(a)
in that he is inadmissible for serious criminality and therefore inadmissible
to Canada.
CONCLUSION
[30]
In
this case, the immigration officer simply applied the IRPA provisions to the
case before us. In light of the above, the officer did not at all err in his
decision so as to justify the intervention of this Court.
(2) Did the immigration
officer render a decision that violates or denies the right guaranteed under
section 7 of the Charter?
[31]
Mr. Derbas
alleges in his arguments that the officer breached the provisions of the
Charter and that his deportation to Syria would breach section 7 of the
Charter. He adds that these sections should be interpreted in light of
international human rights standards.
[32]
The
respondent submits that these arguments are premature and inappropriate and
that the decision now being impugned is the one by an officer pursuant to
subsection 21(2) of the IRPA, refusing the application for permanent
residence filed by Mr. Derbas.
[33]
To
date, it has not been established that the Minister has decided to enforce a
removal order against Mr. Derbas. It is therefore premature at this stage
for him to raise his argument against a removal order.
[34]
The
Court must point out, as the respondent indicates, that the PRRA application
filed by Mr. Derbas was approved on January 11, 2006, the applicant is
therefore a protected person within the meaning of the IRPA. Mr. Derbas is
therefore subject to the principle of non-refoulement, recognized at
subsection 115(1) of the IRPA (Tribunal record, results of pre-removal
risk assessment application, page 16).
[35]
According
to subsection 115(1), the protected person cannot be removed 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 (IRPA, subsection
115(1)).
[36]
The
IRPA nevertheless provides an exception to this principle of non-refoulement,
for persons regarding whom the Minister has issued an opinion that the person
should not be present in Canada based on either a danger to the public, a
danger to Canada’s security, or the nature and seriousness of his or her past
actions in Canada. There is nothing in this matter that shows that such an
opinion has been or will be issued against Mr. Derbas.
[37]
For
all of these reasons, Mr. Derbas has not shown that this Court’s
intervention is justified.
JUDGMENT
THE COURT ORDERS that
1. The application for judicial review be dismissed;
2. No serious question of general importance be
certified.
“Michel M.J. Shore”
Judge
Certified
true translation
Kelley A.
Harvey, BCL, LLB
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