Omar v. Canada (Citizenship and Immigration)
Between
Abdimalik Omar, Applicant, and
Citizenship and Immigration Canada, Respondent
Abdimalik Omar, Applicant, and
Citizenship and Immigration Canada, Respondent
[2013] F.C.J. No. 227
2013 FC 231
Docket IMM-9484-11
Federal Court
Ottawa, Ontario
Mandamin J.
Heard: September 6, 2012.
Judgment: March 5, 2013.
Docket IMM-9484-11
Federal Court
Ottawa, Ontario
Mandamin J.
Heard: September 6, 2012.
Judgment: March 5, 2013.
(56 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 MANDAMIN J.:-- This is an application for
judicial review of the determination of Sabine Daher, Delegate of the Minister
[the Delegate], in which the Delegate decided on November 18, 2011 that
Abdirmalik Abdi Omar [the Applicant] may be deported to Somalia despite
subsection 115(1) of the Immigration and Refugee
Protection Act [IRPA] since he constitutes a danger to the public in Canada and further
his removal would not violate rights under section 7 of the Canadian Charter of Rights and Freedoms [the Charter].
2 The
Applicant submits the Delegate erred in coming to her determination with regard
to the Applicant's likelihood of rehabilitation, the health consequences for
the Applicant on removal, and the implications arising because of the
Applicant's conversion to Christianity.
3 I
have determined that the Delegate's decision on each of these questions fall
"within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law." Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 SCR 190.
4 I
would dismiss this application for the reasons that follow.
Background
5 The
Applicant is a 31 year old citizen of Somalia. His family is from the
north-west region of Somalia known as Somaliland. He arrived in Canada at age
11, in 1992 with his mother and siblings. His family were determined to be
Convention refugees in 1993. In 1999, the Applicant became a permanent resident
of Canada. He has fathered two children in Canada.
6 As
a youth, the Applicant was convicted of 5 Criminal Code offences:
August 16, 1996
Break, Enter and Theft s. 348(1) CC, 36 days secure custody (time served) & 30 days
open custody & probation 12 months
Failure to Appear s.145(5) CC, 15 days open custody
March 26, 1997
Assault s. 226 CC, 3 months open custody & probation 9 months
December 15, 1997
Assault Causing Bodily
Harm s. 267(b) CC, 3 months secure custody &
probation 12 months
March 25, 1998
Robbery s. 344 CC, 6 months secure custody & 6 months open custody
& probation 12 months
7 As
an adult, he was convicted of 21 Criminal Code offences:
March 19, 2001
Fail to comply with
conditions of undertaking given by officer in charge s.
145(5.1) CC, $150 fine and surcharge
July 29, 2003
Assault with a weapon s. 267(a) CC, 3 months & 33 days pre-sentence custody
Fail to comply with
probation order s. 733.1 CC, 1 month
Fail to comply with
probation order s. 733.1 CC, 1 month
October 19, 2005
Fail to comply with
recognizance s.145(3) CC, 30 days & 12 days
pre-sentence custody
Fail to comply with
recognizance s. 145(3) CC, 30 days
November 3, 2006
Mischief under $5,000 s. 430(4) CC, 15 days
Mischief under $5,000 s. 430(4) CC, suspended sentence & probation 1 day
December 21, 2006
Break Enter and Commit s. 348(1) CC, 22 days & 79 days pre-sentence custody &
probation 2 years
Fail to comply with
recognizance's s. 145(3) CC
Assault s. 266 CC, 22 days & 2 years probation for (2) & (3)
January 18, 2007
Escape lawful custody s. 145(1)(a) CC, suspended sentence & probation 1 day
Possession of a
schedule II substance s. 4(1) Controlled
Drugs and Substances Act, suspended sentence &
probation 1 day
March 7, 2007
Uttering Threats s. 264.1(1)(a) CC, 3 months jail plus 65 days credit pre-trial
custody
Possession of a Weapon s. 88(1) CC, 2 months jail
Assault s. 266 CC, 2 months jail
Fail to comply with
recognizance s. 145(3) CC, 1 month
Criminal Harassment s. 264(3)(a) CC, 1 month
Fail to comply with
recognizance s. 145(3) CC, 1 month
Uttering Threats s. 264.1(1)(a) CC, 3 months conditional sentence order
concurrent
Uttering Threats s. 264.1(1)(a) CC, 2 months conditional sentence order
concurrent
8 On
January 22, 2007, following his convictions, the Applicant became subject of an
inadmissibility report under s. 44 of the Act for serious criminality. On March 22, 2007, the Applicant became
the subject of a second inadmissibility report under s. 44 of the Act.
9 On
June 4, 2007, Canada Border Services Agency (CBSA) issued an immigration
warrant against the Applicant for an Admissibility Hearing. The Applicant was
found inadmissible for serious criminality, pursuant to s. 36(1)(a) of the Act. A Deportation Order was issued against
him, and he was detained on June 11, 2007.
10 The
Applicant remained detained until January 7, 2008 when he was released on the
condition that he attend the Anchorage Addiction Treatment Program. On June 12,
2008, the Applicant graduated from the Anchorage Program and was released from
immigration conditions.
11 On
March 30, 2009, CBSA submitted a Danger Opinion package to the National
Headquarters of Citizenship and Immigration Canada.
12 In
September of 2010, the Applicant incurred charges by the Ontario Provincial
Police. He was acquitted of these charges on February 1, 2011, and they do not
constitute part of his criminal record. On February 8, 2011, CBSA executed an
immigration warrant during the detention review because the Applicant had
breached conditions of his release. The detention was maintained on the grounds
that he posed a danger to the Canadian public and that he was a flight risk.
13 On
March 11, 2011, at a detention review, the Applicant's counsel proposed that
the Applicant attend at the Anchorage Addiction Treatment Program again, but
this was denied. On April 8, 2011, an Immigration Appeal Division member
allowed for the Applicant to be released from detention to attend at the
Christian residential treatment program called the Jericho Road Addiction
Treatment Program. The Applicant entered the Jericho Road program where he
participated in the program including attending Christian church services and
studying the Bible.
14 On
November 18, 2011, the Delegate issued her Danger Opinion.
Decision Under Review
15 The
Delegate issued a Danger Opinion pursuant to s. 115(2)(a) of the Act. The Delegate considered the Applicant's
overall criminal record, his prospects for rehabilitation, and the risk he
poses to Canadian society. She concluded that the Applicant constitutes a
danger to the Canadian public.
16 The
Delegate began with a review of the legislation and case law on which her
Danger Opinion rests. She canvassed the relevant legislation and also relied on
Suresh v Canada (Minister of Citizenship and
Immigration), 2002 SCC 1, [2002] 1 SCR 3 for compliance
with section 7 of the Charter.
17 The
Delegate stated that pursuant to s. 115(2)(a) of the Act, she had to assess whether the Applicant constitutes a present or
future danger to the public of Canada. She examined his particular
circumstances to determine whether he is a potential re-offender whose presence
in Canada poses an unacceptable risk to the public.
18 She
summarized the Applicant's immigration file, his criminal record, and the
chronology of events. She reviewed court documents and Ottawa Police Service
records and reviewed details of the Applicant's criminal acts. The Delegate
followed with a danger assessment which was the foundation of her
inadmissibility decision.
19 She
found that the Applicant had a propensity to violence and he was involved in
gang activities such as swarming and robberies, he threatened his ex-girlfriend
and family with death and had been in possession of crack cocaine. The Delegate
found that the Applicant's crimes had escalated through the years, and he was
constantly breaching court orders.
20 The
Delegate also noted that after the Applicant's last detention, he participated
in a treatment program at the Jericho Road Addiction Treatment Program as a
condition of his release.
21 The
Delegate considered evidence from Dr. Philip Chiefetz, who treated the
Applicant for substance abuse problems. Dr. Chiefetz wrote in 2008 that the
Applicant had a good prognosis for full recovery from substance abuse disorder
and major depression. The Delegate noted that in 2011, Dr. Chiefetz found that
the Applicant had a poor prognosis for a full recovery from Post-Traumatic
Stress Disorder and depression "unless he is able to work out his feelings
about the trauma early in his life and he is able to return to full and
constructive function."
22 The
Delegate found that the Applicant did not demonstrate a complete divorce with
his past activities. She considered the Applicant's relapse into substance
abuse since his 2008 detention. The Delegate noted that substance abuse had
contributed to his criminal activity. Given the connection between the
Applicant's problem with substance abuse and his criminal activity, the
Delegate found that the Applicant was not rehabilitated.
23 The
Delegate then considered the Applicant's claims that he will face persecution
based on the country situation in Somalia, the Applicant's tribal ancestry, no
family in Somalia to protect him, inadequate mental health and medical support,
and the fact that he is a Christian.
24 The
Delegate, after reviewing these submissions relating to the potential for
persecution, found that the Somaliland region of Somalia is a relatively
peaceful and democratic area. While acknowledging that human rights violations
do occur in Somalia, the Delegate found that the Applicant would not be at any
more risk than the general public in the region.
25 With
respect to his tribal ancestry, the Delegate found that the Applicant was a
member of the Gadabursi clan, a sub-clan of the Dir clan, which has peaceful
relations with the governing clan in Somaliland and his tribal affiliation
would not subject him to persecution. The Delegate found that his tribal
affiliation would allow him to find clan protection with the Dir clan in either
Somaliland or in the south-central region of Somalia, where the Dir also
reside.
26 The
Delegate found that the medical treatment he would receive in Somaliland would
be unlikely to be at the same level as the care available to him in Canada.
However, these difficulties are the same as those faced by the general public
in Somalia. Moreover, the Delegate found the lack of specific information with
regard to the Applicant's condition meant one could not assume what may happen
if the Applicant does not find adequate medical attention on return to Somalia.
27 The
Delegate found that the Applicant's attendance at the Jericho Road faith-based
rehabilitation centre was for his rehabilitation and not because of a change in
religious faith. She noted that the Applicant did not produce any baptism
certificate or other substantive documentation which would attest to his
conversion to his Christianity. The Delegate continued on to assess whether
Christians in Somaliland are persecuted, and found that they are not. Coupling
this with the limited documentation about the Applicant's Christian beliefs,
the Delegate found that the Applicant would not be personally subjected to
persecution on grounds of religion in Somaliland.
28 The
Delegate's conclusion was that there was no evidence that the Applicant would
be personally at risk of persecution upon return to Somalia or Somaliland. The
Applicant's risk, if he was returned to Somalia or Somaliland, would not be any
more than the risk to the general public in that region.
29 The
Delegate found the minimal risk the Applicant would face in Somalia or
Somaliland is greatly outweighed by the dangerousness he poses for the Canadian
public.
30 The
Delegate then considered the humanitarian and compassionate considerations and
conducted a best interests of the child analysis. She found that the Applicant
did not adequately establish his presence in his children's lives to support a
claim that his removal to Somalia would be against the best interests of his
children.
31 The
Delegate concluded by deciding that the Applicant represents such a danger to
Canadian society that he should be deported, notwithstanding any risk he might
face upon return to Somalia.
Relevant Legislation
32 Sections
36 & 115 of Immigration and Refugee Protection Act, S.C. 2001, c. 27 state, in part:
(1) A permanent
resident or a foreign national is inadmissible on grounds of serious
criminality for
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;
· ...
(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.
* * *
(1) Emportent
interdiction de territoire pour grande criminalité les faits suivants :
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;
· ...
(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.
Standard of Review
33 The
standard of review that applies to the assessment of fact and law and fact is
reasonableness. Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]
This Court has determined that the standard of review of a Delegate's danger
opinion is that of reasonableness. Alkhali v Canada
(Minister of Citizenship and Immigration), 2011 FC 976
[Alkhali].
Issue
34 Both
Applicant and Respondent submit that the issue is whether the Delegate's
decision that the Applicant poses a danger to the public and that he should be
removed pursuant to s. 115(a) of the IRPA was reasonable.
35 I
agree the issue is whether the Delegate's determination is reasonable or not.
Analysis
36 More
specifically, three points arise under the reasonableness analysis. First, did
the Delegate err when in not giving more weight to the fact that the Applicant
had been free of criminal convictions for five years? Second, did the Delegate
err in interpreting the Dr. Chiefetz 2008 and 2011 medical reports? Third, did
the Delegate err in assessment of the risk that the Applicant would face upon
his return to Somalia due to his tribal affiliation, health, or religion?
Did the Delegate ignore passage of time since the
last criminal convictions?
37 The
passage of time since criminal convictions alone is insufficient to determine
the risk posed to the Canadian public. Fabian v Canada
(Minister of Citizenship and Immigration), 2006 FC 851
at para 48. If a delegate transparently and reasonably gives reasons for the
danger opinion, even though an applicant has not been convicted in several
years, the opinion may withstand judicial scrutiny.
38 The
Delegate assessed the nature of the Applicant's crimes, noting that the
Applicant was convicted of assault causing bodily harm under subsection 267(b)
of the Criminal Code which
carries a maximum term of imprisonment of at least ten years and falls within
the section 36 of IRPA
definition of "serious criminality". The Delegate also considered the
violent circumstances surrounding a number or the Applicant's criminal
convictions and took note of a trend to increasing violence.
39 The
Delegate was concerned with the Applicant's possession of crack cocaine in
2006. She noted the connection between his criminal activities and his problems
with substance abuse. The Delegate considered his relapse which followed the
first treatment program and the most recent medical prognosis provided in the
second medical report. She decided that the Applicant's substance abuse remains
an issue.
40 The
Delegate acknowledged that it had been five years since the Applicant's last
criminal conviction. She also noted, however, that he had spent much of the
intervening time in detention.
41 Given
the Delegate considered not only the passage of time of the Applicant's last
criminal offences but also related factual evidence, I find the Delegate's
assessment the Applicant remains a risk to the Canadian public reasonably comes
within a range of possible outcomes. Dunsmuir.
Did the Delegate err in finding that the
Applicant's prognosis for full recovery had gone from "good" to
"poor"?
42 The
Delegate examined the documentary evidence from Dr. Chiefetz, which included a
"good" prognosis for full recovery in 2008 and a later
"poor" prognosis for full recovery in 2011.
43 The
first psychiatric report by Dr. Chiefetz consists of an email enclosing a
Health Status Report. The email reported the Applicant's prognosis for recovery
from substance abuse disorder with major depression was good. It is to be noted
that the conditions described in the Health Status Report listed the
Applicant's mental health diagnosis as substance abuse, depression and post traumatic stress disorder. Subsequently,
in 2011, Dr. Chiefetz reported the Applicant's prognosis for recovery from post
traumatic stress disorder was poor.
44 Given
the above two reports were from the same treating psychiatrist and both
diagnosed post traumatic stress disorder, it was reasonable for the Delegate to
conclude that the Applicant's mental health condition had deteriorated.
Did the Delegate err in finding that the Applicant
would not face an individualized risk of persecution or harm due to his tribal
affiliation, his mental health or religion if he were refouled to Somalia?
45 The
Applicant claims he would be persecuted or suffer harm on several grounds
should he be removed to Somalia being his tribal affiliation, his need for
mental health treatment, and his religion.
46 The
Delegate considered that the Applicant's tribal affiliation might instead
afford him some degree of protection in either Somaliland or the south-central
region of the country. She examined the tribal relations as they exist in
Somalia, and transparently found that the Applicant faced no particularized
risk as a member of the Gadabursi clan given his clan had peaceful relations
with the governing clan in Somaliland. Any risk arising from recent security
issues was a risk faced by the general population and would not be
particularized to the Applicant.
47 The
Delegate found the evidence was wanting in regards to what consequences would
arise for the Applicant if he could not access the psychiatric medications and
treatment he received in Canada.
48 The
Delegate considered the condition of mental health services and patient
experiences in Somalia. While the state of mental health services in Somalia is
among the worst in the world, the Delegate found there is no reason to believe
that the Applicant would face particularized risk if he were to return. Rather,
the Applicant might face risk, but that this risk is no greater than other
Somali mental health patients.
49 In
response to the Applicant's claim of a newfound faith in Christianity, the
Delegate explained why she questioned his conversion. While several individuals
testified that the Applicant was genuinely practising Christianity, the
Delegate balanced these testimonies against the near absence of other
supporting evidence.
50 The
Delegate acknowledged the Applicant was attending a faith-based treatment
program, but she found that his attendance was more for his substance abuse
issues than his religious beliefs. Finally, she found there were Christians in
Somaliland who kept a low profile. Since the Applicant wasn't active in
proselytizing Christianity, he would not likely face persecution as a Christian
in Somalia.
51 The
Applicant supplied letters indicating that the Applicant had converted to
Christianity. However, I agree with my colleague Justice Pinard who said that
"it would be absurd" to allow an application for judicial review to
succeed simply because an Applicant provided a letter attesting to his newfound
faith. Jin v Canada (Minister of Citizenship and
Immigration), 2012 FC 595. It was reasonable for the
Delegate to give this evidence of conversion little weight in the present case
given the Applicant's limited indicia of Christian practice and the absence of
reference to his Christian belief by others closest to the Applicant. In any
event, the Delegate did consider the likelihood of persecution the Applicant
might face as a Christian in Somaliland and found it at a lower level of risk.
52 I
consider it was reasonable for the Delegate to find that the Applicant's
conversion to Christianity would not put him at risk of persecution should he
be refouled to Somalia.
53 In
my view, the Delegate's determination that the Applicant does pose a danger to
the Canadian public and the risks he may face on refoulment to Somalia or
Somaliland did not offend section 7 of the Charter.
54 The
Parties have not proposed a question of general importance for certification.
Conclusion
55 The
Delegate reasonably assessed whether the Applicant represents a present or
future risk to the Canadian public. The Delegate considered the evidence,
identified the facts upon which she relied and set out reasons for her
conclusions. She reasonably balanced the risk he poses to the Canadian public
against the risks he faces should he be refouled to Somalia. Her Danger Opinion
transparently and reasonably outlines why she decided he constitutes a danger
to the public in Canada.
56 I
would not disturb the Delegate's Opinion.
JUDGMENT
THIS COURT'S JUDGMENT is that:
The application is
dismissed.
No question of general
importance is certified.
MANDAMIN J.
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