A litany of convictions since he set foot in Canada still required a lengthy multi-year process for deportation because this dangerous individual is a refugee, a status which allowed him to continue to commit crimes without immediate deportation. Contrast this case against those of persons who committ otehr offences but are not "refugees".
Sufane v. Canada (Minister of Citizenship and
Immigration)
Between
Thomas Guy Sufane, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No. 998
[2012] A.C.F. no 998
2012 FC 929
Docket IMM-8848-11
Docket IMM-8848-11
Federal Court
Montréal, Quebec
Scott J.
Heard: June 5, 2012.
Judgment: July 25, 2012.
Montréal, Quebec
Scott J.
Heard: June 5, 2012.
Judgment: July 25, 2012.
(33 paras.)
· REASONS FOR JUDGMENT AND JUDGMENT
SCOTT J.:--
I. Introduction
1 This
is an application for judicial review filed by Thomas Guy Sufane (applicant) in
accordance with subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (IRPA), of the
decision by Sabine Daher, the Minister's delegate, dated November 4, 2011, that
the applicant is inadmissible to Canada under subsection 36(1) and paragraph
115(2)(a) of the IRPA because he
constitutes a danger to the public in Canada.
2 For
the following reasons, the application for judicial review is dismissed.
II. Facts
3 The
applicant is a citizen of Sierra Leone.
4 On
September 8, 2000, the United Nations High Commissioner recognized the
applicant as a refugee from Sierra Leone.
5 He
arrived in Canada on November 24, 2001, and claimed refugee protection
immediately. He was 16 years of age at the time. On May 14, 2003, the
Immigration and Refugee Board allowed the applicant's refugee claim.
6 Since
August 29, 2002, the applicant was convicted of, among other things, the
following criminal offences: breaking and entering, theft, possession of
substances listed in Schedule I, as described in subsections 4(1) and 4(5) of
the Controlled Drugs and Substances Act, SC 1996, c 19, obstructing a peace officer, robbery, theft under
$5,000.00, failure to comply with an undertaking, assaults, breaking and
entering with intent, breach of stay order, obstruction and possession of
property obtained by crime not exceeding $5,000.00, uttering threats and
possession of substances listed in Schedule I of the Controlled
Drugs and Substances Act.
7 On
July 10, 2007, the applicant was inadmissible on grounds of serious criminality
pursuant to subsection 36(1) of the IRPA.
8 On
December 5, 2011, the applicant filed an application for leave and judicial
review of the decision by the Minister's delegate.
9 In
her decision, the Minister's delegate found that the applicant [TRANSLATION]
"can be deported despite subsection 115(1) of the IRPA because his removal
to Sierra Leone would not violate his rights under 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 (U.K.), 1982, c 11 (Charter)]".
III. Legislation
10 Subsection
36(1) and section 115 of the IRPA specify the following:
· 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;
· (b) having been
convicted of an offence outside Canada that, if committed in Canada, would
constitute an offence under an Act of Parliament punishable by a maximum term
of imprisonment of at least 10 years; or
· (c) committing an act
outside Canada that is an offence in the place where it was committed and that,
if committed in Canada, would constitute an offence under an Act of Parliament
punishable by a maximum term of imprisonment of at least 10 years.
· 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.
· (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.
* * *
· 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;
· b) être déclaré coupable, à l'extérieur du
Canada, d'une infraction qui, commise au Canada, constituerait une infraction à
une loi fédérale punissable d'un emprisonnement maximal d'au moins dix
ans;
· c) commettre, à l'extérieur du Canada, une
infraction qui, commise au Canada, constituerait une infraction à une loi
fédérale punissable d'un emprisonnement maximal d'au moins dix ans.
· 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.
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.
IV. Issue and standard of review
A. Issue
Did the Minister's
delegate err by finding that the applicant represents a danger to the Canadian
public under paragraph 115(2)(a) of the IRPA?
B. Standard of review
11 In
Jeyamohan v Canada (Minister of Citizenship and
Immigration), 2010 FC 1081 at paragraphs 34 and 35, the
Court stated the following:
· [34] The standard of review that applies to the issue of an
administrative decision maker's assessment of the evidence is the
reasonableness standard (Dunsmuir v. New Brunswick, 2008 SCC 9; Sidhu v. Canada (Minister of
Citizenship and Immigration), 2004 FC 39; Joseph v. Canada (Minister of Citizenship and Immigration), 2004 FC 344).
· [35] Therefore, this Court will not substitute its decision for that
of the Minister's delegate unless it is satisfied that she made abusive or
arbitrary findings without taking into account the evidence before her, and
only if her decision does not fall within the range of possible, acceptable
outcomes in respect of the facts and law ... .
12 Thus,
the Court must inquire 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" (see Dunsmuir, above, at paragraph 47).
V. Position of the parties
A. Position of the applicant
13 The
applicant argues that the Minister's delegate did not consider that he suffers
from post-traumatic stress disorder because of events surrounding the civil war
in Sierra Leone. In fact, the applicant points out that he submitted several
pieces of evidence demonstrating that he suffers from serious psychological
problems that require medical follow-up.
14 The
Minister's delegate notes that there is a legislation and a cooperation
strategy between Sierra Leone and the World Health Organization (WHO) to ensure
the provision of medical care. However, the applicant states that the finding
is unreasonable because Sierra Leone is unable to provide psychiatric care to
its citizens.
15 Furthermore,
the Correctional Service of Canada noted in the correctional plan that the
applicant [TRANSLATION] "was at the RMHC to benefit from care specific to
his case. The psychological service recommends stabilization of his mental
state before considering a referral to correctional programs because his
current condition would not allow for an investment in those types of
efforts" (see page 132 of the Tribunal Record, volume 1).
16 The
applicant alleges that the lack of adequate treatment in Sierra Leone would
lead to harmful consequences on his health. For these reasons, the Court must
review the decision by the Minister's delegate.
B. Position of the respondent
17 The
respondent notes that the applicant does not challenge the findings that he
constitutes a danger to the Canadian public. The respondent also points out
that the applicant committed several criminal offences. The Correctional
Service of Canada also states that the applicant's reintegration potential is
low.
18 Furthermore,
the documentation on the situation in Sierra Leone demonstrates that free
elections took place in 2007 and that the civil war is over. The applicant
would therefore not be at risk if he were to return to Sierra Leone. The
respondent points out once again that the applicant does not challenge this
important finding in the decision.
19 The
applicant alleges that the Minister's delegate erroneously assessed the
evidence concerning his mental health condition. The respondent replies that
the applicant did not submit any medical evidence in support of his position.
20 According
to the respondent, the findings by the Minister's delegate are reasonable
because health care is available in Sierra Leone. The delegate took into
account all of the evidence in the record and her findings were reasonable in
light of Ragupathy v Canada (Minister of Citizenship and
Immigration), 2006 FCA 151 (Ragupathy), of the Federal Court of Appeal.
VI. Analysis
· a. Did the Minister's delegate err by finding that the applicant
represents a danger to the Canadian public under paragraph 115(2)(a) of the
IRPA?
21 The
Federal Court of Appeal specified the following in Ragupathy with respect to the Minister's delegate's analysis under paragraph
115(2)(a) of the IRPA:
· [16] ... First, paragraph 115(2)(a) expressly requires that the protected person is inadmissible on
grounds of serious criminality. It is not disputed that the offences committed
by [the applicant] render him inadmissible on this ground.
· [17] Second, paragraph 115(2)(a) provides that, before being liable to deportation, a protected
person must also be, in the opinion of the Minister, a danger to the public.
This determination is to be made on the basis of the criminal history of the
person concerned, and means a "present or future danger to the
public": Thompson v. Canada(Minister of Citizenship
and Immigration) (1996), 118 F.T.R. 269 at para. 20. At
this stage of the inquiry, the delegate's task is to form an opinion on whether
the person concerned is a danger to the public, rather than to determine the
relative gravity of any danger that he may pose, in comparison to the risk of
persecution: Suresh v. Canada (Minister of Citizenship
and Immigration), [2000] 2 F.C. 592 (C.A.) at para.
147.
· [18] If the delegate is of the opinion that the presence of the
protected person does not present a danger to the public, that is the end of
the subsection 115(2) inquiry. He or she does not fall within the exception to
the prohibition in subsection 115(1) against the refoulement of protected persons and may not be deported. If, on the other
hand, the delegate is of the opinion that the person is a danger to the public,
the delegate must then assess whether, and to what extent, the person would be
at risk of persecution, torture or other inhuman punishment or treatment if he
was removed. At this stage, the delegate must determine how much of a danger
the person's continuing presence presents, in order to balance the risk and,
apparently, other humanitarian and compassionate circumstances, against the
magnitude of the danger to the public if he remains.
· [19] The risk inquiry and the subsequent balancing of danger and
risk are not expressly directed by subsection 115(2), which speaks only of
serious criminality and danger to the public. Rather, they have been grafted on
to the danger to the public opinion, in order to enable a determination to be
made as to whether a protected person's removal would so shock the conscience
as to breach the person's rights under section 7 of the Charter not to be
deprived of the right to life, liberty and security of the person other than in
accordance with the principles of fundamental justice. See Suresh v. Canada(Minister of Citizenship and Immigration), especially at paras. 76-9.
22 On
July 10, 2007, the applicant was found to be inadmissible under paragraph
36(1)(a) of the IRPA on grounds
of serious criminality. However, in order to be deported from Canada, a protected
person must constitute, according to the Minister, a danger to the public by
virtue of subsection 115(2) of the IRPA, which constitutes an exception to the
principle of non-refoulement.
The Minister's delegate analyzed the applicant's criminal record and found that
he represents a present or future danger to the Canadian public. She
subsequently determined that the balance of convenience favoured the Canadian
public and that removal of the applicant was necessary. According to her,
removal of the applicant did not violate section 7 of the Charter. Finally, the
delegate weighed the humanitarian and compassionate considerations under which
the applicant suffers from post-traumatic stress disorder because of the civil
war in Sierra Leone. She also found that the applicant would not be at risk if
he were to return to Sierra Leone.
23 It
is important to note that the applicant is challenging only the Minister's
delegate's analysis of the humanitarian and compassionate considerations. In
short, the applicant states that the delegate did not take his psychological
health into account. He maintains that he would not be able to receive medical
care in Sierra Leone. Even though there is a legislative framework and a
cooperative program between the government of Sierra Leone and the World Health
Organization, the applicant alleges that the services offered are insufficient.
24 The
respondent contends that the applicant did not submit any evidence
demonstrating that he suffers from post-traumatic stress. He also points out
that the solutions advanced by the State of Sierra Leone are sufficient of
themselves to allow the applicant to benefit from certain medical treatments.
The delegate's decision is therefore reasonable because it relies on the
evidence in the record.
25 The
Court would like to point out that the Correctional Service wrote several
reports on the applicant's mental health. The initial correctional plan states,
among other things, that [TRANSLATION] "Mr. Sufane had a difficult childhood
in a country in the midst of war, and he therefore emerged with many
psychological after-effects, including a possible post-traumatic stress
disorder" (see page 128 of the Tribunal Record). The Correctional Service
added the following: [TRANSLATION] "we believe it was Mr. Sufane's
psychological and emotional state that led him to a marginal lifestyle,
substance abuse and the constitution of a utilitarian and maladjusted social
network" (see page 128 of the Tribunal Record).
26 Mathieu
Goyette, psychologist, wrote the following in his psychological and psychiatric
assessment report:
· [TRANSLATION]
· We are of the opinion that Mr. Sufane could benefit from
psychological support through regular establishment of IMHIs or regular psychological
services with respect to his relationship problems, emotions management and, if
need be, the consequences of his trauma. It should be noted that he verbalized
his fears with respect to discussing this topic in a relationship where no
trust was established and where he doubted the possible results of discussing
his suffering. Insofar as his PTSD symptoms seem to be of secondary importance,
it does not seem necessary to discuss the problem at this time. It would not be
surprising to observe a marginal increase in activity level and slight
instability after a transfer. We will be willing to do psychological follow-ups
until June 2011 insofar as his transfer to the Archambault Institution
materializes. Also, in accordance with his correctional plan, a substance abuse
program would still be appropriate (see page 153 of the Tribunal Record).
27 The
Correctional Service points out that the applicant must benefit from
supervision before being able to return to the community. The parole officer
stated the following:
· [TRANSLATION]
· We believe that it would instead be beneficial to continue with his
program while benefiting from the structure of incarceration. He must first
stabilize his mental situation completely before returning to the community...
. We think transitional leave of the community project type would be a
progressive, structuring and guiding strategy, but that option is not
encouraged at this time. In fact, the many pending proceedings, the possibility
of deportation, the low RP and the high risk of recidivism leads us to believe
that the prognosis for Mr. Sufane is poor. (see page 142 of the Tribunal
Record).
28 The
Minister's delegate found the following:
· [TRANSLATION]
· Through his counsel, Mr. Sufane states that he suffers from
post-traumatic stress disorder and head trauma. His counsel states that he
would not have any psychological or social assistance under the circumstances
of the country. She adds that it is impossible to think that Mr. Sufane could
rehabilitate himself in a country like Sierra Leone. However, I note that there
are more than 550,000 people in the country that require psychiatric care for
post-traumatic stress disorder caused by the civil war of 1991 to 2002,
depression or substance abuse. That being said, I do not believe that the fact
that Mr. Sufane suffers from post-traumatic stress disorder represents a risk
of return in itself. Even though the medical resources in mental health
services remain limited, Sierra Leone nevertheless benefits from a legislative
act to that effect. The treatment of mental health illnesses is part of the
country's health system and many non-governmental organizations participate in
treating and rehabilitating people suffering from mental illnesses. Therapeutic
drugs are also available for treating patients. In order to better manage the
country's medical situation, Sierra Leone, together with the World Health
Organization, put in place a Cooperation Strategy (2008-2013). The strategy
considers the country's objectives and ensures the harmonization and alignment
of action by the WHO on those objectives (see pages 24 and 25 of the Tribunal
Record).
29 The
Minister's delegate rejected the connection alleged by the applicant between
his post-traumatic stress and the risk he faces if he were to return to Sierra
Leone. However, the Federal Court of Appeal specified, in Ragupathy, above, at paragraph 18, that
"the delegate must determine how much of a danger the person's continuing
presence presents, in order to balance the risk and, apparently, other
humanitarian and compassionate circumstances, against the magnitude of the
danger to the public if he remains". In this case, it is clear that the
applicant requires close supervision and that his continued presence in Canada
constitutes a risk to the Canadian public. Even though there are therapeutic
drugs in Sierra Leone, the Minister's delegate, in the absence of evidence
submitted on this point by the applicant, cannot determine the amount of
supervision offered by non-governmental organizations or how the cooperation
strategy between Sierra Leone and the World Heath Organization takes into
account that country's health objectives.
30 Upon
reading the decision and the evidence in the record, the finding by the
Minister's delegate regarding the humanitarian and compassionate considerations
can, however, fall within the range of "possible, acceptable outcomes ...
in respect of the facts and law" (see Dunsmuir, above, at paragraph 47) in this case. The delegate considered all
of the evidence submitted. She noted that [TRANSLATION] "the medical
resources in mental health services remain limited" (see page 24 of the
Tribunal Record) in Sierra Leone but that [TRANSLATION] "treatment of
mental health illnesses is part of the country's health system and many
non-governmental organizations participate in treating and rehabilitating
people suffering from mental illnesses. Therapeutic drugs are also available
for treating patients."
31 Our
role, as a reviewing court, is not to substitute our assessment of the evidence
for that of the decision-maker, but rather to ensure that the delegate's
decision falls within the possible outcomes in respect of the facts and law. In
this case, it is clear that the Minister's delegate considered every piece of
evidence in the record when she weighed the risk for the Canadian public versus
the psychological care available in Sierra Leone for the applicant and the
impact of the quality of that care on his state of health. There is therefore
no reason for the Court to intervene.
32 For
the above-mentioned reasons, this application for judicial review is dismissed.
VII. Conclusion
33 The
decision by the Minister's delegate falls within the range of "possible,
acceptable outcomes ... in respect of the facts and law" in this case.
JUDGMENT
· THE COURT ORDERS AND ADJUDGES that
the application for
judicial review is dismissed; and
there is no question of
general interest for certification.
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