Date: 20080307
Docket: IMM-2337-07
Citation: 2008 FC 315
Ottawa, Ontario, March 7, 2008
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
AHMED
ADEM MOHAMED
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of an Opinion of the Minister’s delegate,
dated April 20, 2007, that the applicant should not be allowed to remain in
Canada because he constitutes a danger to the Canadian public pursuant to
paragraph 115(2)(a) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA).
FACTS
[2]
The
applicant, Ahmed Adem Mohamed, is a 29-year-old Canadian permanent resident. In
1982, the applicant left Ethiopia, his country of origin,
and was recognized as a Convention refugee by the United Nations High
Commissioner for Refugees. On November 19, 1991, by virtue of his Convention
refugee status, the applicant was issued a Canadian “Immigrant Visa and Record
of Landing” by the Rome Visa Office in Italy, where he
was living with his brother. On December 3, 1991, the applicant entered Canada and became a
permanent resident under the Convention Refugee Immigration Category.
[3]
Since
1997, the applicant has been convicted of 27 different crimes. Most recently,
on March 12, 2005, the applicant was convicted of two counts of robbery and one
count of possession of a weapon for dangerous use under the Criminal Code,
R.S.C. 1985, c. C-46. As a result of the convictions, for which he was
sentenced to a 30 month prison term, the applicant became the subject of an
admissibility report under subsection 36(1) of the IRPA.
[4]
On
March 30, 2006 following an admissibility hearing, a Deportation Order was
issued against the applicant.
Decision under review
[5]
On
April 20, 2007, the Minister’s delegate issued an Opinion (the Danger Opinion) that
the applicant constitutes a danger to the public in Canada pursuant to
paragraph 115(2)(a) of the IRPA.
[6]
After
finding the applicant to be inadmissible to Canada on grounds of serious
criminality – as required by paragraph 115(2)(a) – the Minister’s delegate
conducted a danger assessment to determine whether the applicant’s criminal
history constituted a danger to the public in Canada. In conducting the danger
assessment, the Minister’s delegate reviewed the litany of crimes for which the
applicant had been convicted, as well as the accompanying police reports and
the submissions of the applicant’s counsel. Having reviewed the evidence, the
Minister’s delegate concluded at page 11 of the Danger Opinion:
After considering the totality of the
evidence before me, I am not satisfied on balance that Mr. Mohamed will turn
his life around and leave his life of crime behind. If he commits another
offence where weapons are involved, the results could be extremely serious for
another member of the Canadian public. The number and regular frequency of
offences that he has committed satisfy me, on balance, that he is a threat to
other members of Canadian society. His repeat offences and breach of probation
show a distinct lack of regard not only for Canadian laws but for other members
of Canadian society in general. Based on my consideration of all the
information before me, I am of the opinion that Mr. Mohamed’s continued
presence in Canada poses an unacceptable risk to
the Canadian public and as a result I find that he constitutes a danger to the
public.
[7]
The
Minister’s delegate then examined the potential risk to the applicant if he was
returned to Ethiopia. In
examining such risk, the Minister’s delegate focused on “those considerations
that are specific to Mr. Mohamed that would subject him personally to a risk of
torture or a risk to his life or to a risk of cruel and unusual treatment or
punishment”: Danger Opinion at page 16. The Minister’s delegate found that the
Ethiopian country conditions were “not ideal” and that the applicant may face
“difficulties” arising from his lack of family support and limited grasp of the
language. The Minister’s delegate also found, on the basis of the documentary
evidence, that there was no evidence indicating that the applicant would be
persecuted because of his Oromo ethnicity. Further, the Minister’s delegate
concluded there was insufficient evidence establishing that the applicant would
be perceived as a member of the outlawed Oromo Liberation Front (OLF) simply
because of his ethnicity. Accordingly, the Minister’s delegate concluded the
applicant would be of little interest to the Ethiopian government if returned,
and would not be subject to any of the risks identified in section 97 of the
IRPA. The Minister’s delegate stated at page 17 of the Danger Opinion:
The risks that Mr. Mohamed fled have
ameliorated significantly in the more than 20 years since he left Ethiopia. This satisfies me, on a
balance of probabilities, that he would not face a risk of torture, or a risk
to his life, or to a risk of cruel and unusual treatment or punishment if
returned to Ethiopia. Finally, based on the
material that I reviewed, I am satisfied, on balance of probabilities, that he
will not face any of the risks identified under section 97 of IRPA as a
result of the criminal convictions that he incurred while he was present in Canada.
[8]
Finally,
the Minister’s delegate considered whether any humanitarian and compassionate considerations
existed that would justify a conclusion that the applicant was not a danger to
the public in Canada. The
Minister’s delegate considered a number of submissions made by the applicant’s
counsel, including those relating to the applicant’s history of drug and alcohol
abuse and his lack of family support in Ethiopia. Ultimately,
however, the Minister’s delegate concluded that none of those factors outweighed
the harm caused by the applicant’s past criminal conduct and the potential risk
he poses to members of the Canadian public should he be allowed to remain in Canada. On this
basis, the Minister’s delegate concluded the applicant’s case did not warrant
favourable consideration based on humanitarian and compassionate grounds.
ISSUE
[9]
The
issue to be considered in this application is whether the Minister’s delegate
erred in concluding that the applicant constitutes a danger to the public in Canada.
STANDARD OF REVIEW
[10]
In
Nagalingam v. Canada (Minister of
Citizenship and Immigration), 2007 FC 229, [2008] 1 F.C.R. 87 at
paragraph 18, I stated the following about the appropriate standard of review
to apply to a Danger Opinion made under section 115 of the IRPA:
¶ 18 With respect to
factual findings, the Minister is entitled to considerable deference in light
of his relative expertise in assessing risk of harm and the severity of acts
committed. As the Supreme Court of Canada held in Suresh v.
Canada (Minister of Citizenship and
Immigration),
[2002] 1 S.C.R. 3, at paragraph 41, the Court should
not reweigh the factors considered by the Minister provided that the decision
is not patently unreasonable. The Court’s determination of the standard of
review in Suresh was based on the danger opinion
provisions under paragraph 53(1)(b) … of the former Act. The same level
of deference should apply to a Minister’s opinion issued under section 115 of
the current Act….
See also Thuraisingam
v. Canada (Minister of Citizenship and
Immigration), 2004 FC 607, 251 F.T.R. 282 per Mactavish J. at paragraphs
26-28.
[11]
Accordingly,
the Danger Opinion issued by the Minister’s delegate in the case at bar will be
subject to the standard of patent unreasonableness and will only be set aside if
“unreasonable on its face, unsupported by evidence, or vitiated by failure to
consider the proper factors or apply the appropriate procedures”: Suresh,
above, at paragraph 41.
ANALYSIS
Issue: Did the
Minister’s delegate err in concluding that the applicant constitutes a danger
to the public in Canada?
Statutory Framework
[12]
Subsection
115(2) of the IRPA operates as an exception to the principle of non-refoulement
in sub-section 115(1) which prevents refugees from being returned to a country
where they would face a risk of persecution, torture, or cruel and unusual treatment
or punishment. Subsection 115(2) contains two specific exceptions to the
principle of non-refoulement, and makes it possible for the government
to return a Convention refugee or a protected person to the country from which
they originally fled.
[13]
A
decision under subsection 115(2) is a discretionary decision wherein the
Minister or Minister’s delegate must be satisfied that the conditions in either
paragraph have been met. The section states:
|
(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
(b) who is inadmissible on grounds of security,
violating human or international rights or organized criminality if, in the
opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the
nature and severity of acts committed or of danger to the security of Canada.
|
(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;
b) pour
raison de sécurité ou pour atteinte aux droits humains ou internationaux ou
criminalité organisée si, selon le ministre, il ne devrait pas être présent
au Canada en raison soit de la nature et de la gravité de ses actes passés,
soit du danger qu’il constitue pour la sécurité du Canada.
|
[14]
Under
paragraph 115(2)(a), which is the provision at issue in the case at bar, the Minister
or Minister’s delegate may allow for the removal of a refugee if satisfied
that: 1) the individual in question is inadmissible to Canada on grounds of
serious criminality; and 2) the individual constitutes a “danger to the public”
in Canada. Inadmissibility on grounds of serious criminality is governed by
subsection 36(1) of the IRPA and includes any offence committed in Canada punishable by a maximum
prison term of at least ten years or an offence for which a prison term of more
than six months has been imposed.
[15]
The
second consideration to be made – whether the individual is a “danger to the
public” in Canada – is not defined within
the IRPA but has been defined within the jurisprudence. As Madam Justice
Mactavish stated in Thuraisingam, above, at paragraph 32:
¶ 32 The phrase “danger
to the public”, as it is used in s. 115 of the Immigration and Refugee
Protection Act, and its predecessor section, has been the subject of
judicial consideration. In La [v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 476, 232 F.T.R. 220], Justice Lemieux cited with
approval the following passage from the decision of Justice Strayer in Williams
v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646; 212
N.R. 63 (F.C.A.):
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.
[16]
The
mere fact that a refugee has been convicted of a serious criminal offence is
not, alone, sufficient to found the conclusion that the individual poses a
danger to the public in Canada. Accordingly, Madam
Justice Mactavish stated at paragraph 33 of Thuraisingam that it is
necessary to assess the “circumstances of each case” in order to determine
whether there exists “sufficient evidence on which to formulate the opinion
that the individual is a potential re-offender, whose presence in Canada poses an unacceptable
risk to the public.”
Danger to the public in Canada
[17]
The
applicant argues the Minister’s delegate erred in concluding that the applicant
poses a danger to the public in Canada. Specifically, the
applicant states that the Minister’s delegate “under-cuts the applicant’s good
behaviour in jail by adopting the label of the parole officers, that the
applicant can be a ‘managed risk.’” The applicant states that adopting the term
“managed risk” undermines the fact that society allows people to redeem
themselves and move on to “something better.”
[18]
However,
the Court concludes that the finding of the Minister’s delegate that the
applicant poses a danger to the Canadian public was premised on an extensive
review of the evidence and was not patently unreasonable. First, the Minister’s
delegate provided a comprehensive review of the applicant’s criminal history as
well as the various reports accompanying his convictions. Next, the Minister’s
delegate addressed the extensive submissions made by the applicant’s counsel, including
the submission that the applicant demonstrated good conduct while in prison.
However, despite these favourable reports, the Minister’s delegate concluded that
the applicant poses a danger to the Canadian public, especially in light of the
fact that the seriousness of his crimes have escalated. The Minister’s delegate
stated at page 9 of the Danger Opinion:
Mr. Mohamed’s counsel submits that I
should not find that he represents a danger to the public because of the lack
of serious harm that Mr. Mohamed’s has, thus far, inflicted on the victims of
his offences. I note, however, that the information in relation to the March 12th,
2005 convictions involved the use of a knife which Mr. Mohamed placed at the
throat of one of his victims. … [T]he potential existed for very serious harm.
The same applies for the incident with the box cutter [in October 2003]. …
Based on my assessment of this information relating to Mr. Mohamed’s
convictions, I find his actions, on balance, demonstrate a propensity toward
aggression and violence.
[19]
The
Minister’s delegate also considered the connection between the applicant’s
criminal history and his substance abuse problems, as well as the effect of
those problems on his chances of rehabilitation. The Minister’s delegate
considered the evidence before her and concluded that the applicant’s lack of
support in Canada seriously
reduced the applicant’s chances of successful rehabilitation. Further, the
Minister’s delegate concluded that his “past history demonstrates a pattern of
re-offending in order to support his substance addictions.” Finally, the
evidence indicates that the applicant’s “poor coping skills and lack of
marketable skills” make it likely that he will re-offend in the future.
[20]
Based
on this extensive review of the evidence, the Court concludes that the
conclusions of the Minister’s delegate were properly based on the evidence
before her and cannot be interfered with by this Court.
Risk to the applicant if removed
[21]
As
part of an assessment under subsection 115(2), the Minister’s delegate determined
whether the refugee claimant, in returning to their country of origin, would be
placed at a “serious” risk of persecution, torture, or cruel and unusual
treatment or punishment. This risk must then be weighed against the risk to the
Canadian public if the applicant is not removed. I note in Nagalingam,
above, I held at paragraph 43:
Since the Minister reasonably concluded
that there was no risk of harm, the non-refoulement provisions under subsection
115(1) do not apply. There was accordingly no need to “balance” competing
interests under subsection 115(2).
I certified a question on this issue which
has not been decided by the Federal Court of Appeal at this time.
[22]
In
the case at bar, the Minister’s delegate assessed the potential risk to the
applicant if he was returned to Ethiopia. The Minister’s
delegate concluded that while the applicant may face resettlement and
integration difficulties after being away from the country for 20 years, he
would not be at risk of persecution for reasons of his Oromo ethnicity or his
perceived political opinion. Accordingly, the Minister’s delegate concluded
that the risks posed by the applicant to the public in Canada outweighed
any risk of harm to the applicant if returned to Ethiopia.
[23]
The
applicant argues the Minister’s delegate erred in concluding that he would not
face a risk of persecution, torture, or cruel and unusual treatment or
punishment if returned to Ethiopia. Specifically, the applicant
argues the Minister’s delegate erred in minimizing the extent to which the
government harasses and tortures people of Oromo ethnicity merely because of a
perception that such individuals are associated with the OLF. The applicant
submits that there was “copious evidence” before the Minister’s delegate
establishing that the Oromo people continue to be persecuted, deprived basic
human rights, harassed by police, and illegally detained merely because the
Ethiopian government associates all Oromo people not belonging to the ruling
party as being associated with the OLF.
[24]
The
respondent, however, submits that the Minister’s delegate properly considered
the applicant’s submissions in this regard and states that it was not patently
unreasonable to conclude that the applicant would not be subject to potential
torture or persecution at the hands of the Ethiopian government since he had no
political profile and had been out of the country for 20 years.
[25]
Having
reviewed the evidence, I conclude that the decision of the Minister’s delegate
was not patently unreasonable. The Minister’s delegate provided an extensive
review of the documentary evidence before her, including the submissions of the
applicant’s counsel that the applicant’s Oromo ethnicity would make him a
target of the Ethiopian government because of a perception that he was a
supporter of the OLF. In reaching such a conclusion, the Minister’s delegate
also considered the applicant’s specific circumstances; namely, the fact that
he left Ethiopia when he was five years old and that he has no history of
political association with the OLF, either in Ethiopia or in Canada. The thrust
of the objective documentary evidence is that the Ethiopian government targets
OLF members and sympathizers, not all 35 million people of Oromo ethnicity.
[26]
Further,
the Minister’s delegate specifically considered the difficulties faced by the
applicant in returning to Ethiopia after such a long period of time, especially
given the applicant’s lack of support, his history of drug and alcohol abuse,
and the fact that he has limited knowledge of the language. However, the
Minister’s delegate concluded that none of these difficulties would subject the
applicant to any of the enumerated categories of risk outlined in section 97 of
the IRPA.
[27]
I
am not satisfied that the evidence from the applicant demonstrates that the
conclusion of the Minister’s delegate is patently unreasonable. As the Minister’s
delegate stated at page 17 of the Danger Opinion, there was significant
evidence establishing that the applicant would not be at risk if returned to Ethiopia:
Upon reading the documentary evidence on Ethiopia, the political situation is
improving. Among other things, the government has opened offices of the
Institution of Ombudsman in all states. So far there are two opened and plans
are underway over the next five years to open more. Many cases have already
been resolved by the Ombudsman. … Human rights’ training is on-going for judges
prosecutors and police as well as community members around the country. From
the evidence before me, I am satisfied, on balance, that these government
supported improvements will work to Mr. Mohamed’s benefit rather than causing
him to be at risk.
[28]
Accordingly,
for the reasons outlined above, this application for judicial review must be
dismissed.
[29]
Neither
party proposed a question for certification and no question will be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This
application for judicial review is dismissed.
“Michael
A. Kelen”
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