Date:
20130319
Docket:
IMM-7797-12
Citation:
2013 FC 284
Ottawa, Ontario,
March 19, 2013
PRESENT: The
Honourable Mr. Justice Simon Noël
BETWEEN:
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CHARLES KOKANAI MZITE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by Citizenship and
Immigration Canada [CIC], dated July 13, 2012, whereby the Applicant was determined to represent
a danger to the public in Canada pursuant to section 115 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
Having considered the decision under review, the written and oral
submissions of counsel, the motion records filed by the parties, I have no
hesitation in concluding that this application for judicial review should be
dismissed. CIC’s decision is well-written, meticulous and clearly answers the
Applicant’s submissions while applying the legal concepts required in such
circumstances.
[3]
The facts of this case speak for themselves. The Applicant had a
private relationship with four different women and despite being asked by each
of them whether he had HIV, he answered negatively and proceeded to have sexual
relations with each one of them. One of these encounters even lead to him
contaminating one of the women with the virus. He was convicted of four counts
of aggravated sexual assault. It was CIC’s opinion that he still constitutes a
danger to the public in Canada. For the purposes of a judicial review, I see no
reasons in law or in fact to disagree with this finding. In addition, CIC found
that country conditions in Zimbabwe have changed considerably, that the
Applicant’s profile has changed over time and that his past political affiliations
no longer exist. It was also determined that the quality of HIV medical care
available in Zimbabwe was adequate. Therefore, CIC concluded that it is
unlikely that the Applicant would face a risk to his life, a risk of cruel and
unusual treatment or punishment, or a risk of torture upon his removal to his
country of birth. I have identified no flaws in the analysis made by CIC to
arrive at this conclusion. Finally, CIC also found that the Applicant did not
demonstrate a degree of establishment in Canada, be it social or economic, that
would cause a disproportionate hardship should he be ordered to return to Zimbabwe. Again, the analysis followed by CIC is in accordance with what is legally
required in such a situation. There is no reason for this Court to intervene.
A. Summaries
of the facts
[4]
The
Applicant was granted refugee protection in 2002 and has resided in Canada ever since. In 2009, he was convicted of serious criminal offences. CIC is now
seeking to expel the Applicant from Canada on the basis of section 115 of the
IRPA.
[5]
The
Applicant joined a dance troupe in Zimbabwe in 1992. In 1993, the Applicant
married his first wife, they separated in 1997 and in 2000 she passed away and as
indicated by the Applicant at his criminal trial for aggravated sexual assaults,
HIV/AIDS may have been the cause of death.
[6]
In
May 2001, the Applicant came to Canada with the assistance of a Canadian woman
he had met in Zimbabwe. He was initially planning on staying in Canada for six months. His relationship with this woman lasted two weeks. They formed a
dance troupe in Victoria, B.C. His group acquired notoriety and it was invited
to perform for Oprah Winfrey in 2007.
[7]
In
July 2001, the Applicant tested positive for HIV in Victoria, B.C. but never
attended at the clinic for the results. The Applicant submits that he phoned
the clinic and that they told him everything was fine and that he was asked to
come in for post-test counselling, which he did not do.
[8]
Six
months after his arrival, the Applicant claimed refugee protection on the basis
of his political opinion. The Applicant had refused to join the ruling
political party in Zimbabwe, the Zimbabwe African National Union-Population
Front [ZANU PF]. He stopped attending meetings of that political party and
started to attend meetings of the opposition, the Movement for Democratic
Change [MDC] party. He believed that his absence from the ZANU PF meetings was
noticed as he is well-known in Zimbabwe because of his membership in a popular
dance troupe. The ruling party wanted him to publicly support it.
[9]
In
November 2001, the Applicant married a woman (Complainant #1) who he met at the
airport in Canada in May 2001. He denied being HIV positive and had unprotected
sexual intercourse with her. Their relationship ended in May 2002.
[10]
In
April 2002, the Applicant began a relationship with another woman (Complainant
#2) who also asked him if he was HIV positive. He said that he was not.
[11]
On
October 7, 2002, the Refugee Protection Division determined that the Applicant
was a Convention Refugee. On April 3, 2003, he applied for permanent residence.
[12]
In
the summer of 2003, the Applicant began a relationship with another woman
(Complainant #3). Again, he was asked if he was HIV positive and he answered
that he was tested for immigration and that he was not.
[13]
In
the summer of 2004, the Applicant began a relationship with yet another woman
(Complainant #4), and again, he told her that he was HIV negative.
[14]
In
August 2004, Complainant #3 tested positive for HIV and told the Applicant the
following month. In November 2004, the Applicant tested positive for HIV again.
[15]
In
July 2006, the Applicant apologized to Complainant #3 and told her that he had
tested positive in 1995 when he had applied for a visa to China.
[16]
On
September 6, 2007, the Applicant was arrested and incarcerated and has remained
incarcerated since then. When questioned by the officers, he admitted knowing
to be HIV positive since 1995. He was charged with four counts of aggravated
sexual assault to which he pleaded not guilty.
[17]
From
September 2007 to April 2009, while he was in provincial custody, the Applicant
completed the following rehabilitation courses: Breaking Barriers, Respectful
Relationships, Violence Prevention Program and the Sexual Abuse Management
Program.
[18]
The
Applicant was found guilty of all four counts of aggravated sexual assault and
on March 31, 2009, he was sentenced to ten years of incarceration with credit
for the time he had spent in custody. The trial judge noted that the Applicant
had been in relationships and thus in a position of trust with all of his
victims, that he therefore deceived them and that he lacked empathy for them.
[19]
On
April 29, 2009, the Applicant was the subject of a report under section 44 of
the IRPA as a result of his criminal convictions.
[20]
On
May 19, 2009, the Immigration Division issued a deportation order against the
Applicant based on his inadmissibility for serious criminality.
[21]
On
June 12, 2009, a Correctional Services Canada Psychological Assessment Report
was issued regarding the Applicant. On June 30, 2009, Parole Officer Leblanc
made Criminal Profile and Correctional Plan reports regarding the Applicant. A
second Psychological Assessment Report was issued on May 16, 2011 in
anticipation of the Applicant’s upcoming Parole Board review.
[22]
On
October 5, 2009, the Canada Border Services Agency issued a warrant for the
Applicant’s removal from Canada. The warrant was executed at the Mountain Institution, where the Applicant was
serving his sentence.
[23]
On
September 7, 2006, the Applicant’s application for permanent residence was
refused due to non-compliance with multiple requests for a medical examination.
[24]
On
June 10, 2011, the British Columbia Court of Appeal unanimously dismissed the
Applicant’s appeal of his convictions.
[25]
On
October 21, 2011, the National Parole Board denied both full parole and day
parole to the Applicant. It namely found that he is “an untreated sex offender,
completely lacking in insight and who committed very serious crimes which he
does not acknowledge or take responsibility for.” The Parole Board concluded
that the Applicant poses an undue risk of re-offending.
[26]
On
July 13, 2012, an Officer from CIC determined that the Applicant has committed
a serious crime and constitutes a danger to the public in Canada, pursuant to paragraph 115(2)(a) of the IRPA.
[27]
The
Applicant is under treatment to reduce his viral load and his ability to
transmit HIV.
B. Summary
of CIC’s decision
[28]
CIC
established that the Applicant was inadmissible for serious criminality under
paragraph 36(1)(a) of the IPRA, having been convicted of four counts of
aggravated sexual assault.
[29]
As
for the question of whether the Applicant poses an unacceptable risk to the
public, CIC referred to Williams v Canada (Minister of Citizenship and Immigration),
(1997) 212 NR 63, 147 DLR (4th) 93 (FCA) [Williams], as a starting point of its analysis of the Applicant’s situation.
[30]
CIC
first considered the decision in which the Applicant was convicted. It has been
established that he withheld his HIV positive status when he was asked
questions and engaged in unprotected sexual intercourse with his victims to the
point where one of them was infected and this will have serious consequences
for the rest of her life.
[31]
CIC
also considered the Correctional Services Canada’s Criminal Profile Report in
which it is stated that the Applicant’s problem revolve around his attitude
towards women and sex. Moreover, the Report spoke of the Applicant’s
irresponsibility in protesting to use the necessary precautions when he had
sexual intercourse and in assuring the victims that there was no problem.
[32]
Finally,
CIC considered that the Applicant’s offences occurred in the context of
romantic relationships, and once, in the context of a marriage, and that the
four women were deceived into putting themselves at risk.
[33]
CIC
determined that the Applicant’s behaviour demonstrates that he has no regard
for the well-being of others and that on more than one occasion, he has lied to
his partners for selfish reasons. It considered that it would take more than
the rehabilitation classes that he took while in detention to change his
acceptance of his health condition and to become honest about it. CIC further
considered that the Applicant had been the subject of an investigation prior to
the one that led to his arrest, but that no accusation resulted from this as it
could not be proven that the Applicant had unprotected sexual intercourse or
tried to infect the alleged victim. CIC mentioned that the Applicant cannot be
held accountable for an allegation for which he was not charged.
[34]
CIC
concluded that the Applicant had made a habit of hiding his health condition
and that as long as he could not be open about it, he constitutes a danger to
the public. CIC considered the opinion of Susan Craigie of the Positive Living
Society, who describes the Applicant as an asset to Canada, considering his
cultural talents and his position as a person from a country where HIV is
pandemic. CIC, however, determined that the Applicant is not the person described
by Susan Craigie as he keeps his condition secret in intimate relationships.
CIC also considered that the Applicant filed an appeal of his convictions and
that he does not seem to have fully taken responsibility for his actions.
[35]
The
Applicant had an evaluation for possible parole on October 21, 2011 and both
full parole and day parole were denied. In the reasons for refusal, it was
stated that the Applicant contradicted much of the evidence used to convict
him, denied all charges and took the position that he did not know he was HIV
positive until 2004 despite having told the police that he had known he was HIV
positive since 1995. The Board considered that the Applicant’s presentation
raises serious credibility issues and that he is an untreated sex-offender who
lacks empathy for his victims.
[36]
In
the Applicant’s Psychological Assessment Report, there was mention of his
involvement in AIDS awareness in Zimbabwe and of his intention to become an HIV
activist.
[37]
CIC
concluded that on a balance of probabilities, the Applicant poses a present and
future danger to the Canadian public and that his presence in Canada poses an unacceptable risk.
[38]
CIC
then conducted a risk assessment analysis to determine whether the Applicant
would be at risk if returned to Zimbabwe and came to the conclusion that his
removal from Canada would not violate his rights protected by section 7 of the Canadian Charter
of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (UK), 1982, c 11. CIC considered
a number of reports on the current human rights situation in Zimbabwe and determined that evidence shows that the situation has evolved over the past ten years.
Moreover, a power-sharing agreement was signed in 2008 which diminished the
rivalry between the main political parties.
[39]
CIC
considered that although articles have been published in Zimbabwean newspapers,
the Applicant did not demonstrate that he would be of interest to the
authorities. In his initial refugee claim, the Applicant indicated in his
Personal Information Form that his family had been targeted. In the submissions
made by his counsel, it is indicated that his family was recently subjected to
threats. However, the Applicant has not submitted any evidence to corroborate
this statement, and even if it were the case, it would not be unreasonable for
the Applicant to relocate to a different city.
[40]
CIC
further noted that despite the possibility that the Applicant be questioned
upon arrival in Zimbabwe, he has not been supportive of the opposition since
his arrival in Canada and he is therefore unlikely to be targeted as an
opponent to ZANU PF or because of his criminality in Canada. Moreover, despite
some violations of human rights in Zimbabwe, the evidence is not sufficient to
establish that the Applicant would face torture upon his return.
[41]
CIC
also found that it appears that although freedom of expression is sometimes
limited, the Applicant has access to legal mechanisms to claim his
constitutional rights. Moreover, he has been away for over ten years, his band
has been operating in Victoria, B.C. and any media coverage in Zimbabwe has been related to his criminal convictions, not his political affiliations.
[42]
Finally,
the Applicant failed to establish that he is a “person in need of protection”
on the basis that he would not receive the necessary treatments for HIV in Zimbabwe. Indeed, the documentary evidence demonstrates that adequate treatment is
available to the HIV positive population.
[43]
In
conclusion, CIC determined that the Applicant does not face a risk of
persecution or inhumane treatments should he be returned to Zimbabwe and that any risk he could possibly face is greatly outweighed by the danger he poses to
Canadian society.
[44]
CIC
assessed the Applicant’s situation in light of Humanitarian and Compassionate
considerations. It noted that the Applicant had different jobs while in Canada, that he is single, has no dependents and is not financially supporting anybody.
[45]
As
for the availability of antiretroviral treatment in Zimbabwe, CIC determined
that it is available at an affordable cost and accessible through a number of
sources: government hospitals, private clinics and a number of NGOs that
provide the treatment. Therefore, the Applicant would receive adequate treatment
if returned to Zimbabwe and he has not demonstrated that returning to Zimbabwe would amount to disproportionate hardship. The information is not sufficient to
overcome, on a balance of probabilities, the danger posed by the Applicant to
Canadian society.
C. Analysis
[46]
Both
parties agree that the standard of review in this matter is that of
reasonableness given that the issues are CIC’s conclusion that the Applicant
presents a danger to the public in Canada and its risk assessment. I will
proceed with the analysis by dealing with the arguments submitted by the
Applicant. I do note that the Respondent’s submissions were useful for the
purposes of this analysis.
[47]
The
Applicant submits that CIC made three errors when it determined that the
Applicant is a danger to the public in Canada.
[48]
First,
CIC erred by focusing on the Applicant’s past conduct as an assessment of
whether he poses a danger to the public is forward-looking. The Applicant
submits that his past convictions are not evidence that he will be a danger to
the public in Canada in the future. He takes issue with the fact that CIC did
not give any weight to the fact that he attended several rehabilitation courses
while he was detained, nor to a statement by the psychologist for Correctional
Services Canada that said that he has a low risk of re-offending. The Applicant
further argues that in its assessment of his situation, CIC should have
disregarded any inconclusive investigations on him that were inconclusive as
they cannot demonstrate that he has a propensity to commit sexual offences. I
disagree. The analysis performed by CIC is in conformity with the jurisprudence
of this Court: in order to assess the danger in the future, CIC had to look at
the Applicant’s past conduct and attitude, as well as his behaviour at the time
of the decision. This is precisely what was done. (See Williams, above,
and Randhawa v Canada (Minister of Citizenship and
Immigration), 2009 FC
310, 79 Imm LR (3d) 44). CIC also took in consideration the
pschychological assessments which include the Applicant’s low risk of
recidivism. While it is evident that the Applicant disagrees with CIC’s
conclusion on that point, this Court’s role is not to reweigh the evidence but
to determine the reasonableness of the decision.
[49]
Secondly,
the Applicant submits that CIC erred by ignoring evidence relevant to the
Applicant’s behaviour in the future. CIC ignored the fact that he was in the
community between 2004 and 2007 and that there is no evidence that he infected
anyone or had non-consensual unprotected sexual intercourse with anyone during
that period of time. The Applicant submits that this is a strong indicator of
how he will behave in the future. He adds that CIC failed to give proper
consideration to the fact that his viral load is almost undetectable, as a
result of a treatment he is now undergoing, which reduces his capacity to
transmit the virus. The Applicant relies on a recent decision by the Supreme
Court of Canada, R v Mabior, 2012
SCC 47, 103 WCB (2d) 905 [Mabior] in which it
was decided that a low viral load is likely to reduce the possibility of
transmission of HIV. The Applicant submits that therefore, CIC failed to refer
to evidence that contradicts its conclusions. I disagree. As noted by CIC and
as the evidence shows, the period between 2004 and 2007 was problematic. There
is evidence that he was actively pursuing relationships with other women (some
of which are referred to in CIC’s decision). As for the argument related to
his low viral load, while CIC did not specifically refer to it, there is
long-standing jurisprudence of this Court that recognizes that there is a
presumption that all of the evidence is given due consideration (see Florea v Canada (Minister of Employment and
Immigration), [1993] FCJ 598 (FCA)). Furthermore,
it is evident from the analysis that CIC gave more weight to other types of
evidence such as the criminal convictions, the Parole Board decision and the Applicant’s
ongoing denial of his actions. It should be underlined that one of the four
women was contaminated by the Applicant. CIC’s analysis is reasonable as it is
focused on the Applicant’s behaviour which bears more importance than his
current viral load.
[50]
Third,
the Applicant submits that CIC erred by drawing a negative inference from the
Applicant exercising his right to appeal his convictions. The Applicant argues
that his decision to appeal his convictions does not indicate a lack of remorse
or that he is a danger to the public but is in line with the political motive
of de-criminalizing the non-disclosure of sexually transmitted infections. He
submits that his political motives are apparent through his participation in a
group that provides help to people living with HIV/AIDS. A reading of the
decision does not support the Applicant’s position as no negative inference was
made from the appeal.
[51]
The
Applicant also submits that CIC erred in determining that the Applicant does
not face a risk of persecution if returned to Zimbabwe. CIC’s conclusion that
the articles regarding the Applicant are “local” and therefore do not
demonstrate that he will be of interest to the authorities in Zimbabwe upon his return is unreasonable. He adds that a number of articles written about him were
published in Zimbabwean newspapers namely in The Herald, a Zimbabwean
government-owned newspaper and that articles on the Internet are available to
the Zimbabwean authorities. The Applicant is of the view that the continued
media coverage of his criminal proceedings in Canada has contributed to his
notoriety in Zimbabwe. I disagree. A review of these articles shows that the
media interest is solely related to his HIV trial in Canada and not to his
political past. At no time did it refer to some political concern about the
Applicant. CIC’s conclusion that the impact of these articles was not as
important as the Applicant suggests is reasonable.
[52]
The
Applicant argues that CIC’s conclusion that he does not have notoriety in
Zimbabwe is erroneous and leads to the unreasonable finding that he would not
be identified at the airport upon arrival, that he would not be targeted in
Zimbabwe and that circumstances in Zimbabwe do not pose a risk to him. Again,
CIC’s analysis is appropriate. The Applicant paints a picture of his notoriety
that does not reflect reality, despite it suiting his needs in this judicial
review. The Applicant is yet again asking this Court to re-weigh the evidence.
As mentioned above, it is not the role of a Court to do so.
[53]
At
the hearing, counsel for the Applicant argued that the letter from Susan
Craigie of the Positive Living Society was not in the Tribunal Record and that
as such, this shows that it was not entirely taken into consideration. Counsel
also argued that the reason the Applicant did not inform the Correctional
Services that he had empathy towards the victims was because his lawyer told
him not to discuss anything related to his criminal convictions. On the first
point, the decision refers to this letter and even quotes from the passage that
was referred to by the Applicant’s counsel in one of his submissions to CIC.
Furthermore, the content of the letter as I read it is not determinative of any
of the issues as it merely relates to the Applicant’s cultural talents and his
status as a person coming from a country where HIV is pandemic. On the second
point made, it is noteworthy that the same attitude is described in the
National Board Report. This report was issued after the appeals were dismissed.
Therefore, I find that CIC’s decision on these points is reasonable.
.
[54]
For
all these reasons, I find that the determinations of CIC that the Applicant
presents a danger to the public in Canada, its risk assessment of the
Applicant’s situation and its analysis of humanitarian and compassionate
considerations are reasonable.
[55]
The
parties were invited to submit a question for certification but declined to do
so.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed. No question is certified.
“Simon Noël”
________________________
Judge
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