Docket: IMM-4449-16
Citation:
2017 FC 489
[ENGLISH TRANSLATION]
Montréal, Quebec, May 11, 2017
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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KONGOLO,
PATRICK NGOYI
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[21] The applicant submits that
the nature of his convictions is insufficient to classify him as a danger to
the public, pursuant to subsection 115(2) of the Act. He argues that these
incidents are no more than “minor economic offences” in which violence was not
a factor and as such, they should not be used to classify him as a danger to
the public.
[22] I disagree with the
applicant’s reasoning regarding section 115 and the parallel he draws between
violent acts and the danger to the public classification. The wording of
section 115 does not include limitations to only particular types of offences.
It leaves the consideration of whether an individual constitutes a danger to
the public to the discretion of the Minister’s delegate. The Minister’s
delegate considered that violence was not used in the commission of the
applicant’s offences, but also acknowledged the number of crimes committed,
their continuing nature, and the serious effect such crimes can and do have on
the Canadian public. After weighing all the evidence before him, the Minister’s
delegate determined the applicant was a danger to the public based on the
nature of his crimes.
[23] What the applicant is really
asking the Court to do is to re-weigh the evidence that was before the Minister’s
delegate. It is not the function of this Court to re-weigh the evidence of a
discretionary decision. This evidence was sufficiently reliable to warrant the
conclusion that the applicant is a danger to the public in Canada. Further, I
find that applicant has failed to illustrate that the Minister’s delegate
improperly exercised his discretion, or made any other reviewable error.
(Arinze v Canada (Solicitor General),
2005 FC 1547 (see also the applicant’s submissions regarding the dangerousness
of Patrick Ngoyi Kongolo, Volume 3 of 5, Tribunal Record, at page 267, para 15))
[1]
The Court notes that the applicant’s alleged
fears are limited to his father’s ties to the Mobutu regime and his involvement
in activities with the Congolese community in Canada denouncing the current
president of the Democratic Republic of the Congo [DRC] (Applicant’s record, at
page 55), without specifying how he could personally be a target of interest or
persecution in the DRC. The Court also notes that the document to which the
applicant refers, regarding the treatment of people who were close to the
Mobutu regime, is an update from 2002. It cannot be said that this is evidence
establishing the recent fate of collaborators of the former regime in the DRC.
Finally, the Court notes that the Minister’s delegate considered the evidence
relating to the human rights situation in the DRC, while qualifying the
information contained in the report; she found that the applicant was from
Kinshasa, a more stable region than the east of the country, where the most
serious violations occur.
[2]
The Federal Court of Appeal, in Nagalingam v
Canada (Citizenship and Immigration), 2008 FCA 153 [Nagalingam], set
out the principles governing the application of paragraph 115(2)(a) of
the Immigration and Refugee Protection Act, SC 2001, c. 27 [IRPA]:
[44] By way of summary then, the
principles applicable to a delegate’s decision under paragraph 115(2)(b)
of the Act and the steps leading to that decision are as follows:
(1) A protected person or a
Convention refugee benefits from the principle of non-refoulement recognized by
subsection 115(1) of the Act, unless the exception provided by paragraph
115(2)(b) applies;
(2) For paragraph 115(2)(b) to
apply, the individual must be inadmissible on grounds of security (section 34
of the Act), violating human or international rights (section 35 of the Act) or
organized criminality (section 37 of the Act);
(3) If the individual is inadmissible
on such grounds, the delegate must determine whether 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;
(4) Once such a determination is
made, the delegate must proceed to a section 7 of the Charter analysis. To this
end, the delegate must assess whether the individual, if removed to his country
of origin, will personally face a risk to life, security or liberty, on a
balance of probabilities. This assessment must be made contemporaneously; the
Convention refugee or protected person cannot rely on his or her status to
trigger the application of section 7 of the Charter (Suresh, at
paragraph 127).
(5) Continuing his analysis, the
delegate must balance the nature and severity of the acts committed or of the
danger to the security of Canada against the degree of risk, as well as against
any other humanitarian and compassionate considerations (Suresh, at
paragraphs 76–79; Ragupathy, at paragraph 19)).
II.
Nature of the case
[3]
This is an application for judicial review under
subsection 72(1) of the IRPA of an opinion issued by the Minister’s delegate on
October 6, 2016, stating that the applicant was a danger to the public in
Canada pursuant to paragraph 115(2)(a) of the IRPA.
III.
Facts
[4]
The applicant is 43 years old and a citizen of
the DRC. He arrived in Canada as a student in December 1995, followed by one of
his brothers the following year. He comes from a family with close ties to
members of the Mobutu regime. In 1997, in the wake of the regime’s fall, the
applicant allegedly stopped receiving financial support from his father and he
feared for his life if he were to return to the DRC.
[5]
On June 18, 1997, the applicant claimed refugee
status in Canada, which he obtained on September 26, 1997.
[6]
Between 1997 and April 2015, the applicant
committed over twenty fraud, identity theft, and forgery offences, for which he
pleaded guilty and was convicted.
[7]
On November 19, 2015, the applicant received a
notice of intent from the Canada Border Services Agency [CBSA] regarding the
request for the Minister’s opinion under paragraph 115(2)(a) of the IRPA.
The applicant made submissions on December 4, 2015, and
August 12, 2016, after additional information was released by the
CBSA.
IV.
Decision
[8]
On October 6, 2016, the Minister’s delegate
found that the applicant constituted a danger to the public in Canada pursuant
to paragraph 115(2)(a) of the IRPA and that he could be returned to the
DRC.
[9]
The delegate initially expressed her
satisfaction that the applicant was inadmissible in Canada for serious
criminality under paragraph 36(1)(a) of the IRPA, in light of his
convictions between 1999 and 2014.
[10]
The delegate then considered the applicant’s
numerous repeat criminal offences, as well as the lack of engagement in his
rehabilitation. She found that the applicant constituted a risk to the public
in Canada.
[11]
The delegate then assessed the level the risk
for the applicant should he be returned to the DRC. She noted that there was no
evidence allowing her to find that the applicant was currently at risk as
someone who was close to the former regime. Furthermore, although the human
rights situation is unstable in certain areas of the DRC, this is not the case in
the Kinshasa region, where the applicant lived before he left for Canada. On a
balance of probabilities, the delegate found that the applicant’s life, freedom,
and safety would not be at risk if he returned to the DRC.
[12]
The delegate finally examined the humanitarian
and compassionate considerations raised by the applicant, namely the best
interests of his four Canadian daughters and of the two children of his current
wife. The delegate referred to the following claims by the applicant: he has a
good relationship with his biological daughters; one of his daughters suffers
from a pervasive developmental disorder; his spouse’s two children are close to
him. She noted, however, that no document had been submitted to support the
nature of his relationship with his daughters and how often he sees them, or to
establish the financial or emotional support that he provides to them. She also
considered that although the applicant’s departure may sadden his spouse’s
children, they had already been separated during his incarceration and could
stay in touch through technology.
V.
Issues
[13]
The applicant is not challenging the evaluation
by the Minister’s delegate regarding the danger that he represents for the
public in Canada.
[14]
Therefore, the issues in this case are as
follows:
1.
Did the delegate err in her assessment of the
risk that the applicant would face if returned to the DRC?
2.
Did the delegate err in her assessment of the
humanitarian and compassionate considerations vis-à-vis the best interests of
the affected children?
[15]
The decision by the Minister’s delegate to issue
an opinion pursuant to paragraph 115(2)(a) of the IRPA, as well as her
assessment of the risk faced by the applicant and humanitarian and
compassionate considerations, is subject to the reasonableness standard (Nagalingam,
above, at para 32; Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9
at para 47).
VI.
Relevant provisions
[16]
Paragraph 115(2)(a) of the IRPA sets out
the exception to the non-refoulement:
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Principle of Non-refoulement
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Principe du non-refoulement
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Protection
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Principe
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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.
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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.
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Exceptions
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Exclusion
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(2) Subsection (1) does not apply in the case of a person
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(2) Le paragraphe (1) ne s’applique pas à l’interdit de territoire
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(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
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a) pour grande criminalité qui, selon le ministre, constitue un
danger pour le public au Canada;
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(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.
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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.
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VII.
Analysis
[17]
For the following reasons, the application for
judicial review is dismissed.
A.
Risk faced by the applicant in the DRC
[18]
The applicant submits that the delegate’s
decision is unreasonable because of the errors made in her assessment of the risks
that he would face to his life, freedom, and safety should he return to the
DRC. First, the applicant faulted the delegate for holding that he would be
safe in the DCR even though she quoted the U.S. State Department’s Country
Report of Human Rights Practices 2015 on the DRC, which outlines serious
human rights deficiencies in that country. This apparent contradiction would
vitiate the delegate’s decision because it would lack justification,
transparency, and intelligibility (Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708, 2011 SCC 62 at
para 16). Second, the applicant criticizes the delegate’s selective treatment
of the evidence. He claims that the delegate supposedly ignored that passage of
a document corroborating his fears and referring to persecution of individuals
having “held a very senior visible position in the
party, the government or the security forces, or from overt opposition to the
current government” (Democratic Republic of the Congo (DRC): Update
to RDC33027.F of November 25, 1999, on the treatment by the Congolese
government of former diplomats who return to Kinshasa and other individuals who
are perceived as Mobutu sympathizers (2001–2002). Thus, the delegate
allegedly made a reviewable error (Thomas v Canada (Citizenship and
Immigration), 2007 FC 838).
[19]
On the other hand, the respondent argues that
the delegate properly analyzed the risk that the applicant might face should he
return to the DRC, since he has not established that there are substantial
grounds to believe that he would personally be exposed to the alleged risks.
Thus, given the documentary evidence submitted and the lack of documentation
establishing the existence of a current risk, the delegate’s decision would be
reasonable, and no error would justify the intervention of the Court. It was up
to the delegate to assess the evidence submitted and weigh the value of the
applicant’s allegations (Sidhu v Canada (Minister of Citizenship and
Immigration), 2004 FC 39; Jarada v Canada (Minister of Citizenship and
Immigration), 2005 FC 409).
[20]
The Federal Court of Appeal, in Nagalingam,
above, sets out the principles governing the application of paragraph 115(2)(a)
of the IRPA:
[44] By way of summary then, the
principles applicable to a delegate’s decision under paragraph 115(2)(b)
of the Act and the steps leading to that decision are as follows:
(1) A protected person or a
Convention refugee benefits from the principle of non-refoulement recognized by
subsection 115(1) of the Act, unless the exception provided by paragraph
115(2)(b) applies;
(2) For paragraph 115(2)(b) to
apply, the individual must be inadmissible on grounds of security (section 34
of the Act), violating human or international rights (section 35 of the Act) or
organized criminality (section 37 of the Act);
(3) If the individual is inadmissible
on such grounds, the delegate must determine whether 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;
(4) Once such a determination is
made, the delegate must proceed to a section 7 of the Charter analysis. To this
end, the delegate must assess whether the individual, if removed to his country
of origin, will personally face a risk to life, security or liberty, on a
balance of probabilities. This assessment must be made contemporaneously; the
Convention refugee or protected person cannot rely on his or her status to
trigger the application of section 7 of the Charter (Suresh, at
paragraph 127).
(5) Continuing his analysis, the
delegate must balance the nature and severity of the acts committed or of the
danger to the security of Canada against the degree of risk, as well as against
any other humanitarian and compassionate considerations (Suresh, at
paragraphs 76–79; Ragupathy, at paragraph 19)).
[21]
The Court notes that the applicant’s alleged
fears are limited to his father’s ties to the Mobutu regime and his involvement
in activities with the Congolese community in Canada denouncing the current
president of the Democratic Republic of the Congo [DRC] (Applicant’s record, at
page 55), without specifying how he could personally be a target of interest or
persecution in the DRC. The Court also notes that the document to which the
applicant refers, regarding the treatment of people who were close to the
Mobutu regime, is an update from 2002. It cannot be said that this is evidence
establishing the recent fate of collaborators of the former regime in the DRC.
Finally, the Court notes that the Minister’s delegate considered the evidence
relating to the human rights situation in the DRC, while qualifying the
information contained in the report; she found that the applicant was from Kinshasa,
a more stable region than the east of the country, where the most serious
violations occur.
[22]
Thus, the Court finds that it was open to the
delegate’s conclusion that the applicant would not personally be exposed to
risks to his life, freedom, or safety if returned to the DRC. Therefore, there
is no basis for the Court to intervene on this point.
B.
Humanitarian and compassionate considerations:
the best interests of the affected children
[23]
The applicant faulted the delegate’s finding
with respect to humanitarian and compassionate considerations. She allegedly
breached her duty to be receptive, attentive, and sensitive to the best
interests of the children affected by the decision (Kanthasamy v Canada (Citizenship
and Immigration), [2015] 3 S.C.R. 909, 2015 SCC 61 at paras 36–39; Baker v
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817). She
allegedly failed to assess the impact of the applicant’s departure on the
children, downplaying the importance of the evidence of good relationships by
comparing the separation resulting from the removal to that of his
incarceration, and by suggesting that the children could stay in touch with
their father through Skype. Furthermore, the applicant argues that the delegate
allegedly erred in considering the seriousness of the inadmissibility in her
assessment of the children’s best interests:
[translation]
I find that, overall, separation from the
children is not a sufficient factor to prevent removal given the seriousness of
the inadmissibility. For these reasons, I find that the best interests of the
affected children have not been established.
(Delegate’s decision, p. 33; Applicant’s
record, p. 38)
[24]
The applicant argues that the delegate allegedly
erred by considering the seriousness of the admissibility in her analysis of
the best interests of the children and relied on the decision in Williams v
Canada (Citizenship and Immigration), 2012 FC 166, made by Justice James
Russell of this Court:
[63] When assessing a child’s best
interests an Officer must establish first what is in the
child’s best interest, second the degree to which the child’s
interests are compromised by one potential decision over another, and then
finally, in light of the foregoing assessment determine the weight that this
factor should play in the ultimate balancing of positive and negative factors
assessed in the application [Emphasis in original.]
[25]
The respondent first argues that the delegate
properly considered all the applicant’s submissions before ruling on the best
interests of the children affected by the decision (Owusu v Canada (Minister
of Citizenship and Immigration), 2004 FCA 38 [Owusu]). Then,
according to the respondent, it was open to the delegate to find that, although
the applicant’s departure could cause hardship to his children in Canada, the extent
of the danger that he poses outweighs this hardship (Legault v Canada (Minister
of Citizenship and Immigration), [2002] 4 FCR 358, 2002 FCA 125 [Legault];
Hawthorne v Canada (Minister of Citizenship and Immigration), 2002 FCA 475,
[2003] 2 FC 555 [Hawthorne]).
[26]
With respect to the assessment of the evidence
regarding the best interests of the children, the Court finds that the delegate
did not make a reviewable error. In her decision, the delegate considered all
the evidence submitted by the applicant and was sensitive to the sadness that
the applicant’s departure would cause the children. Nevertheless, as the
respondent points out, it is up to the applicant to submit sufficient evidence
to establish that the best interests of the children would be jeopardized if he
returned to the DRC (Owusu, above). It is clear that the burden of proof
was not discharged, and that the applicant did not satisfy the delegate.
[27]
The Court agrees with the respondent’s arguments
and finds that the delegate considered all the circumstances, including the
best interests of the children, before finding that there were insufficient
humanitarian and compassionate grounds to justify not removing the applicant (Legault
and Hawthorne, above).
VIII.
Conclusion
[28]
The application for judicial review is dismissed.
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