Date: 20080318
Docket: IMM-2542-07
Citation: 2008 FC 363
Ottawa,
Ontario, March 18, 2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
SIRGUN
BUDAKH
Applicant
and
MINISTER
OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant, Mr. Sirgun Budakh, was found to be a danger to the public in Canada pursuant to
paragraph 101(2)(b) of the Immigration and Refugee Protection Act (the
“Act”) and therefore ineligible to have his claim for refugee protection
referred to the Refugee Protection Division. Mr. Budakh challenges the
reasonableness of the decision of the Minister’s Delegate and the adequacy of
the reasons provided. He asks that this Court set aside the decision and refer
the matter back for redetermination. I find the decision of the Minister’s
Delegate to be reasonable, the reasons provided adequate, and therefore must
dismiss this application for the following reasons. For convenience, relevant
sections of the Act are set out in the Annex.
I. Factual Background
[2]
What
follows is an overview and much summarized version of the facts and detailed
narratives before the Minister’s Delegate.
[3]
On
March 30, 1999, Mr. Budakh pled guilty to one count of Aggravated Sexual
Assault in Cook
County, Illinois. He was
convicted and received a sentence of 7 years imprisonment. This is the
applicant’s only criminal conviction. He was in pre-trial custody for a year
then released on bail for nine months. He was then reincarcerated for two years
and three months and released on parole in July 2001. He was 23 years old at
the time of the offence.
[4]
The
offence arose from the events of an outing on November 8, 1997. After
purchasing Gamma-Hydroxybutyric Acid (GHB), a controlled substance, Mr. Budakh
and his friends returned to his apartment where he mixed the drug with vodka
and orange juice. Everyone who drank the concoction got very sick, including two
16 year old girls, who both passed out on Mr. Budakh’s bed. At some point in
the evening, while the girls were immobilized on his bed, Mr. Budakh disrobed
and unsuccessfully attempted to have intercourse with one of the girls. Mr.
Budakh then penetrated the other young girl from behind. Following this, the
girl went into an unconscious state and was hospitalized, where she slipped
into a coma and was transferred to the Intensive Care Unit.
[5]
On
or about October 24, 2005, Mr. Budakh entered Canada at a port of entry near Windsor, Ontario. On November
18, 2005, he claimed refugee status at CIC Etobicoke, alleging persecution in Iraq. On the same
day, he was reported under section 44 of the Act for intending to establish
permanent residence in Canada and for not having the visa required under
the Regulations in order to do so. He was arrested by immigration officials and
further reported under section 44 of the Act, because of his criminal
conviction in the USA, which he admitted to, and which is the equivalent to
serious criminality in Canada. On November 22, 2005, he was issued a
deportation order. On December 21, 2005, the US Embassy in Ottawa informed the
Canada Border Services Agency (“CBSA”) that Mr. Budakh was not subject to the
Reciprocal Agreement, was no longer a lawful permanent resident of the USA, and
could not be returned to the USA.
[6]
On
January 18, 2006, Mr. Budakh was released from detention on a cash bond. He was
issued a Work Permit on February 16, 2006, and has since been employed by The
Airport Strip Club in Mississauga, Ontario.
[7]
Mr.
Budakh received a notice of intention to seek the opinion of the Minister pursuant
to paragraph 101(2)(b) of the Act. As part of the process, he was provided with
a copy of the Danger Opinion Narrative Report and the Request for the
Minister’s opinion, and he was invited to make final representations, arguments
or to submit evidence.
[8]
In
Mr. Budakh’s responding material, which included that policy guidelines
discussed below, he argued that a single conviction rarely sustains a danger
finding and only where the conviction clearly demonstrates that the offender poses
a present or future risk of danger to the public as evidenced by the nature and
circumstances of the offence. Mr. Budakh argued that this consideration
promotes a finding that he does not pose a danger to the public. The most
significant and relevant evidence he put forward was a report by Dr. Gojer, a
psychiatrist. Dr. Gojer stated that in the first instance, Mr. Budakh said the sex
was consensual, however, a year later Mr. Budakh accepted responsibility for
his assault. Dr. Gojer stated that Mr. Budakh has no problems relating to alcohol
or drugs, has no prior or subsequent history of sexual violence and, most
importantly, that Mr. Budakh is at a low risk to reoffend.
[9]
Mr.
Budakh also stressed that he has pled guilty to the offence and therefore publicly
accepted responsibility for his actions. He also noted that he has continually
complied with the conditions of his parole and bail, has completed a number of
College courses, continues to own a condo, has found gainful employment, has
family and community support in Canada, and continues to have a legitimate fear
of persecution as a Christian if returned to Iraq. In short,
Mr. Budakh stressed that he is now 30 years old and leads a law abiding life.
A. Danger
Opinion
[10]
After
giving an overview and summary of the facts regarding Mr. Budakh’s conviction
and subsequent events, the Minister’s Delegate extensively reviewed and
summarized Mr. Budakh’s submissions. Mr. Budakh’s submission that a single
conviction rarely results in a danger opinion and that he is not a danger to the
public was clearly restated. The Minister’s Delegate paid particular attention
to the report of Dr. Gojer and clearly restated the doctor’s findings and
conclusions.
[11]
The
Minister’s Delegate found that a positive consideration weighing in Mr.
Budakh’s favour was that the offence he committed was his first and only
conviction. However, she found that the narratives revealed that in committing
this act, Mr. Budakh acted in a cold and predatory manner against two minor
victims who had been rendered helpless by a drug he had placed in their drinks.
Further, Mr. Budakh’s offence involved a violation of the bonds of trust,
friendship and decency that had existed between him and his victims.
Notwithstanding the fact that a single conviction may rarely sustain a danger
finding, the factual events reported in the police occurrence reports alone
supported, on balance, a finding that Mr. Budakh potentially poses a danger to
Canadian women. While the Minister’s Delegate acknowledged Dr. Gojer’s opinion,
she found that the manner in which he committed the offence, particularly his
actions in breaching his minor victim’s trust and friendship in committing the
sexual assault, led her to conclude that he is likely to commit a similar
assault in Canada.
[12]
The
Minister’s delegate also found that while Humanitarian and Compassionate
grounds for allowing Mr. Budakh to remain in Canada exist, they
do not outweigh the seriousness of the crime he committed. Finally, the
Minister’s delegate noted that the Act provides for opportunities to have an
assessment of the possible risk of removal considered under alternative
applications under the Act and therefore did not take such factors into
consideration when rendering her decision.
B. Adequate
Reasons
[13]
Recently,
the Federal Court of Appeal stated the following in considering the adequacy of
reasons for danger opinions in Ragupathy v. Canada (Minister of
Citizenship and Immigration) [2006] F.C.J. No. 564 (F.C.A.) (QL):
13 It
was common ground that a delegate must provide reasons for an opinion given
under subsection 115(2). The disputed issue is whether the reasons given in
this case were adequate to discharge that duty or were otherwise legally
erroneous. In Suresh v. Canada (Minister of Citizenship and
Immigration), [2002] 1
S.C.R. 3, 2002 SCC 1,
where the danger concerned state security, the Court said (at para. 126):
The reasons must also articulate why, ... the Minister
believes the individual to be a danger to the security of Canada as required by the Act.
14 Whether
reasons provide an adequate explanation of a decision can be tested by
referring to the functions performed by a reasons requirement. Of the functions
identified by Sexton J.A. in VIA Rail Canada Inc. v.
National Transportation Agency, [2001] 2
F.C. 25 (C.A.), two are particularly pertinent to the present case.
First, reasons help to ensure that the decision-maker has focused on the
factors that must be considered in the decision-making process (at para. 17).
Second, they enable the parties to exercise their right to judicial review (at
para. 19) and the court to conduct a meaningful review of the decision.
15 Although
trite, it is also important to emphasize that a reviewing court should be
realistic in determining if a tribunal's reasons meet the legal standard of
adequacy. Reasons should be read in their entirety, not parsed closely, clause
by clause, for possible errors or omissions; they should be read with a view to
understanding, not to puzzling over every possible inconsistency, ambiguity or
infelicity of expression.
[14]
I
find that the reasons of the Minister’s Delegate demonstrated that she focused
on the factors to be considered in the decision-making process while enabling
Mr. Budakh to exercise his right to judicial review. In particular, the
Minister’s Delegate set out her findings of fact and the
principal evidence upon which those findings were based; addressed the major
points in issue; restated and considered the submissions and evidence of Mr.
Budakh, and set out a reasoning process that reflected consideration of the
main relevant factors.
[15]
Because I find the reasons adequate, only one issue remains to be
assessed in the present application.
II. Issue
[16]
Did
the Minister’s Delegate err in determining that Mr. Budakh constitutes a danger
to the public in Canada pursuant to paragraph 101(2)(d) of the Act?
III. Standard of review
[17]
Paragraph
101(1)(f) of the Act has the effect of excluding from refugee protection
determination procedures persons who have been convicted of serious criminal
offences outside of Canada who have been certified by the Minister as
constituting a danger to the public. This phrasing is similar to the phrasing
found in section 115 of the Act, dealing with the deportation of persons who
have been granted refugee protection. The dicta of the Supreme Court of Canada in Suresh v. Canada
(Minister of Citizenship and Immigration), [2002] S.C.J. No. 3 [Suresh]
is
therefore applicable to this certification procedure; although there is no
requirement for an oral hearing, the certification procedure requires that the
Minister or a delegate act fairly, provide reasons, and provide proper
disclosure of the recommendation to the claimant.
[18]
It
was well established in the jurisprudence that
decisions of Ministerial Delegates under section 115 of the Act were entitled
to an important degree of deference and that as such, the determination that an
individual constitutes a danger to the security of Canada is to be reviewed
against the standard of patent unreasonableness (see Krishnan v. Canada
(Minister of Citizenship and Immigration), [2007] F.C.J. No. 1106 (QL) at
para. 9). With
respect to the Minister’s Delegate’s decision that a person constitutes a
danger to security in Canada, the Supreme Court has stated that a reviewing
court should
adopt a deferential approach to this question and should set aside the
Minister's discretionary decision if it is patently unreasonable in the sense
that it was made arbitrarily or in bad faith, it cannot be supported on the
evidence, or the Minister failed to consider the appropriate factors (Suresh
at para. 29). The court should not reweigh the factors or interfere merely
because it would have come to a different conclusion (ibid.). Further,
the weighing of relevant factors is not the function of a court reviewing the
exercise of ministerial discretion (see, for instance, Pezim v. British
Columbia (Superintendent of Brokers), [1994] 2
S.C.R. 557, at p. 607, where Iacobucci J. explained that a reviewing
court should not disturb a decision based on a "broad discretion" unless
the tribunal has "made some error in principle in exercising its
discretion or has exercised its discretion in a capricious or vexatious
manner"). In a Ahani v. Canada (Minister
of Citizenship and Immigration), [2002] 1
S.C.R. 72, a decision issued concurrently with Suresh, the
Supreme Court stated:
[16] For the reasons discussed in Suresh,
the standard of review on the first decision is whether the decision is
patently unreasonable in the sense that it was made arbitrarily or in bad
faith, cannot be supported on the evidence, or did not take into account the
appropriate factors. A reviewing court should not reweigh the factors or
interfere merely because it would have come to a different conclusion. Applying
the functional and pragmatic approach mandated by Pushpanathan
v. Canada (Minister of Citizenship and Immigration), [1998] 1
S.C.R. 982 , we conclude that the Parliament intended to grant the
Minister a broad discretion in issuing a s. 53(1)(b) opinion, reviewable only
where the Minister makes a patently unreasonable decision.
C. The effect of
the recent Supreme Court decision in Dunsmuir v. New Brunswick, 2008 SCC
9 [Dunsmuir]
[19]
The
Supreme Court has now reduced the standards of review of administrative
tribunal decisions to two standards; correctness in respect of jurisdictional and
some other questions of law and reasonableness simpliciter for other matters
leaving a deferential standard when legislative choices are left to the
experience and expertise of administration tribunals.
[20]
In
the latter case, the following factors are to be applied to see if this
decision maker should be given deference and a reasonableness test applied:
1.
The
privative clause;
2.
A
special administrative scheme where the decision maker has special expertise;
3.
The
nature of the question of law where special expertise is invoked, a correctness
standard applies, on other questions of law it may be decided on the basis of
reasonableness.
(See paras.
55-56 of Dunsmuir)
[21]
In
summary, the patent unreasonableness standard has been discarded and replaced with
a simple unreasonableness standard; courts must not intervene unless the
decision cannot be sustained on a rational interpretation of the facts. See
paragraph 47 of Dunsmuir:
Reasonableness is a deferential standard
animated by the principle that underlies the development of the two previous
standards of reasonableness: certain questions that come before administrative
tribunals do not lend themselves to one specific, particular result. Instead,
they may give rise to a number of possible, reasonable conclusions. Tribunals
have a margin of appreciation within the range of acceptable and rational
solutions. A court conducting a review for reasonableness inquires into the
qualities that make a decision reasonable, referring both to the process of
articulating the reasons and to outcomes. In judicial review, reasonableness is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.
[22]
I
find these remarks equally applicable to the determinations made under the
certification procedure pursuant to paragraph 101(2)(b) and therefore can only
grant this application for judicial review if I find the decision of the
Minister’s Delegate unreasonable.
IV. Analysis
[23]
In
La v. Canada (Minister of Citizenship and Immigration),
[2003]
F.C.J. No. 649 (QL), Justice Lemieux cited with approval (at para. 17) the
following passage from the decision of Justice Strayer in Williams v. Canada
(Minister of Citizenship and Immigration), [1997] 2
F.C. 646 (C.A.):
[29] …In the context the meaning of
"public danger" is not a mystery: it must refer 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. It need not be proven -- indeed it
cannot be proven -- that the person will reoffend. What I believe the
subsection adequately focusses the Minister's mind on is consideration of
whether, given what she knows about the individual and what that individual has
had to say in his own behalf, she can form an opinion in good faith that he is
a possible re-offender whose presence in Canada creates an unacceptable risk to
the public.
The Minister’s Delegate cited Justice
Lemieux’s decision and correctly noted that her task was to assess whether Mr.
Budakh constitutes to be a “danger to the public”, which has been interpreted
to mean “a present or future danger to the public”, and that her task,
therefore, was to determine whether there was sufficient evidence on which to
formulate the opinion that Mr. Budakh is a potential re-offender whose presence
in Canada poses an unacceptable risk to the public.
[24]
Although Justice Strayer was considering an allegation that
“danger to the public” was unduly vague, his interpretation is particularly
appropriate here, particularly the dicta immediately following the above quoted
passage:
I lay some stress on the word
"unacceptable" because, with the impossibility of proof of future
conduct, there is always a risk and the extent to which society should be
prepared to accept that risk can involve political considerations not
inappropriate for a minister. She may well conclude, for example, that people convicted of
narcotics offences have a greater likelihood of recidivism and that trafficking
represents a particular menace to Canadian society. I agree with Gibson J. in
the Thompson case that "danger" must be taken to refer to a
"present or future danger to the public". But I am reluctant to
assert that some particular kind of material must be available to the Minister
to draw a conclusion of present or future danger. I find it hard to
understand why it is not open to a minister to forecast future misconduct on
the basis of past misconduct, particularly having regard to the circumstances
of the offences and, as in this case, comments made by one of the
sentencing judges. A reviewing court may disagree with the Minister's
forecast, or consider that more weight should have been given to certain
material, but that does not mean that the statutory criterion is impermissibly
vague just because it allows the Minister to reach a conclusion different from
that of the Court.
[Emphasis added]
In the present case, the
Minister’s delegate forecasted Mr. Budakh’s future misconduct based on his past
misconduct, having particular regard to the particulars of the offence. She
noted the Mr. Budakh’s offence not only violated the law, but also breached
bonds of trust and friendship. She therefore determined that Mr. Budakh
presents a danger to the public and, in particular, to women in Canada.
While this Court may disagree with the Minister’s Delegate’s future forecast or
with the weight given to certain material, so long as the conclusion was open
to her on the materials before her, the decision cannot be found to be
unreasonable.
[25]
The
applicant argues that the decision was reached in error in so far as it was
made in a manner contrary to the directions found in CIC Enforcement Manual ENF
28, Ministerial Opinions on Danger to the Public and to the Security of Canada
(the “Policy”, discussed at the outset). The most relevant aspect of the Policy
reads:
a single conviction may rarely sustain a danger finding,
and must clearly demonstrate that the person poses a present or future risk of
danger to the public, as evidenced by the nature and circumstances of the
offence. The jurisprudence indicates that it is possible to base a danger
opinion on a single serious conviction when sufficient evidence exists
In this light, the applicant submits that
the decision was reached in error and challenges the sufficiency of the
evidence before the Minister’s Delegate.
[26]
It
has been recognized that Ministerial Guidelines, such as the Policy, are of
assistance in assessing whether a decision was an unreasonable exercise of the
discretion conferred (see Yamani v. Canada (Minister of Public Safety and
Emergency Preparedness), [2007] F.C.J. No. 381 (QL) at para. 71, citing Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817). However, the Federal Court of Appeal has held
that guidelines are of no legal force and are not binding on the Minister or
her agents (see Legault v. Canada (Minister of Citizenship and Immigration),
2002 FCA 125 at para. 20; Tartchinska v. Canada (Minister of Citizenship
and Immigration), [2000] F.C.J. No. 373 at para. 20). In any event, I do
not find that the Minister’s Delegate exceeded the discretion afforded to her
nor do I find her to have grossly disregarded the Policy. Quite the contrary.
The Minister’s Delegate did not unlawfully fetter her discretion by considering
the single offence to be determinative, but rather, she made clear in her
reasons she considered the Policy’s guidelines with respect to single
convictions in arriving at her conclusion. Further, I find the narrative reports
filed subsequent to Mr. Budakh’s arrest that were considered in detail by the
Minister’s delegate and that the reasons outlined the circumstances of the
offence that were found to provide insight into the level of risk Mr. Budakh
may present to the public. In examining the materials before her, I find the evidence
adequately provides sufficient grounds to conclude that Mr. Budakh’s offence
constitutes a single serious conviction.
[27]
The
guidelines do not propose that a single conviction can never base a danger
opinion. Furthermore, case law supports the proposition that in some cases, one
conviction is sufficient (see Tran v. Canada (Minister of
Citizenship and Immigration) (1997), 132 F.T.R. 163, [1997] F.C.J. No.
760; Thompson v. Canada (Minister of
Citizenship and Immigration) (1996), 37 Imm. L.R. (2d) 9 at
para 19, [1996] F.C.J. No. 1097).
[28]
It
was not unreasonable for the Minister’s delegate to conclude that the risk
raised by the circumstances of the offence was not sufficiently mitigated by
the applicant’s submissions. Therefore, on this ground, the conclusion that Mr.
Budakh presents a present and continuing danger to the public must stand.
[29]
The
applicant further contends that the Minister’s Delegate committed a palpable
and perverse error in her consideration of Dr. Gojer’s report, which concluded
that Mr. Budakh presents only a low risk of re-offending. I agree with the
respondent that the applicant is arguing, in effect, that the Minister’s
Delegate should have accorded more weight to the psychological report.
[30]
A
decision maker must be “alert and sensitive” to psychological reports, (Krishnasamy
v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 561 (QL) at para. 23).
However, a Court reviewing whether a decision maker was “alert and sensitive” often
involves little more than ensuring that the decision maker did not fail to
consider a relevant report, unreasonably disbelieve its contents, or simply reject
it out of hand, particularly where a psychological report goes towards
rehabilitating a claimant’s credibility. Here, there is no question of
credibility, nor is there any question that the Minister’s Delegate considered
Dr. Gojer’s report in extensive detail. Nonetheless, the Minister’s Delegate
was not satisfied that the report was enough to mitigate the circumstances of
Mr. Budakh’s offence and the conclusion that he will pose an unacceptable risk
to the public. She saw the results of the standardized test used to determine
an individual risk to the community. The applicant scored 2 in the Static-99
test, i.e. category of “medium-low risk of sexual recidivism” and in the SORAS
test he was placed in the “moderate risk category to re-offend sexually”. These
results support her conclusion, which I reiterate, is a discretionary decision.
[31]
Moreover,
this Court has held in Syed v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 597 (QL) at para. 21,
that it is not for psychologists to usurp the role of fact finders. While that decision
addressed psychological reports rehabilitating a claimant’s credibility, I find
it to be equally relevant to the present application. Put another way, so long
as a decision maker reasonably considers a psychological report in light of
other evidence, this Court will not disturb the decision maker’s findings of
fact. Although I am sure Dr. Gojer is a credible and well established psychiatrist,
it is the Minister’s Delegate who ultimately exercises discretion under the Act
to determine whether a claimant constitutes a danger to the public. Given that
the Minister’s Delegate in the present application clearly considered,
referenced and addressed Dr. Gojer’s report in her reasons, I cannot find her
decision to be unreasonable.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that for reasons stated
above, this application for judicial review is dismissed. No question of
general importance has been put forward by counsel and none will be certified.
"Orville
Frenette"
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