CANADA IMMIGRATION NEWS www.karas.ca: September 2012

Friday, September 28, 2012

NEW LANGUAGE RULES FOR CITIZENSHIP

News Release — Minister Kenney announces new language rules for citizenship applicants

News Release — Minister Kenney announces new language rules for citizenship applicants

Ottawa, September 28, 2012 — Most citizenship applicants will soon be required to provide up-front objective evidence of their language ability at the time they apply, Citizenship, Immigration and Multiculturalism Minister Jason Kenney announced today.

This change will be implemented as of November 1, 2012. Currently, Citizenship and Immigration Canada (CIC) assesses the language ability of applicants, aged 18–54, solely through interactions with CIC staff and by using the results of the citizenship knowledge test.

“Extensive research has consistently shown that the ability to communicate effectively in either French or English is a key factor in the success of new citizens in Canada,” said Minister Kenney. “We believe it is important that new citizens to be able to participate fully in our economy and our society.”

The Citizenship Act already requires that applicants be able to communicate in one of Canada’s official languages. This regulatory change will not increase the language level required but will change the way that citizenship applicants aged 18–54 demonstrate their language ability.

Under the old rules, there was no objective way to test language abilities of applicants. Under the new rule, applicants must provide objective evidence that they meet the language requirement, achieving the Canadian Language Benchmark/Niveau de compétence linguistique canadien 4 in speaking and listening, when they file their application. Applicants will be required to submit acceptable evidence, such as:

the results of a CIC-approved third-party test; or

the evidence of completion of secondary or post-secondary education in English or French; or

the evidence of achieving the appropriate language level in certain government-funded language training programs.

While CIC will continue to use the applicant’s interaction with CIC staff and with citizenship judges as part of the language ability assessment, the new regulations mean that applicants must first provide objective evidence that they meet that requirement when they file their application. CIC will return the applications of those who do not provide evidence of language ability up front, enabling CIC to focus resources on processing those who do meet the requirements.

The requirement for adult applicants to provide objective evidence of their language ability with their citizenship submission applies to every application received as of November 1, 2012.

SERIAL CRIMINAL REFUGEE CAN BE DEPORTED

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

[2012] F.C.J. No. 998

[2012] A.C.F. no 998

2012 FC 929

Docket IMM-8848-11

Federal Court
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.

· (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.

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

· 1.

the application for judicial review is dismissed; and

· 2.

there is no question of general interest for certification.

Thursday, September 27, 2012

GANG MEMBER ORDERED DEPORTED TO CHINA

The court was not impressed with the applicant's record:

Shi v. Canada (Minister of Citizenship and Immigration)

Between Su Feng Shi, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 1146

2012 FC 1059

Docket IMM-8195-11

Federal Court
Toronto, Ontario

Mosley J.

Heard: July 19, 2012.
Judgment: September 7, 2012.

(35 paras.)

REASONS FOR JUDGMENT AND JUDGMENT

1 MOSLEY J.:-- The primary issue in this case is whether procedural fairness requires that counsel previously on record for an individual who is the subject of a request for a danger opinion be served with disclosure documents in addition to the individual concerned. Where counsel is known such disclosure is required. In the particular circumstances of this case, I find that the respondent can not be faulted for failing to provide the documents where they were not informed that the individual had counsel.

2 For the reasons that follow I find that the applicant was not denied procedural fairness and the application is dismissed.

BACKGROUND:

3 The applicant, a citizen of China born in 1980, came to Canada in 1999 and was granted refugee status on the ground of religious persecution in 2000. He became a permanent resident the same year. Within two years he was facing serious criminal charges including robbery. By reason of a conviction under the Criminal Code for assault causing bodily harm in 2004, he was found to be inadmissible under paragraph 36(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 (hereafter IRPA) in January 2005 and a removal order was issued. The applicant appealed that determination to the Immigration Appeal Division.

4 In 2007 the applicant's then immigration counsel withdrew from the record by reason of an inability to contact the applicant and the appeal was declared abandoned. A warrant was issued for the applicant's arrest. Later the same year, the applicant was convicted of robbery, disguise with intent and unlawful possession of a controlled substance and the warrant was executed while he was serving his sentence.

5 On November 5, 2007 the applicant was served with notice that a request for a determination had been made to the Minister of Public Safety and Emergency Preparedness with respect to whether the applicant constituted a danger to the public in Canada and should be removed subject to an assessment of the risk he might face in China, pursuant to 115(2)(a) of the IRPA. At that time he was provided with a list and copies of the material that would be provided to the Minister for consideration, notably documents relating to his immigration history, court records and police reports. That material did not include records relating to the 2007 criminal convictions.

6 The applicant retained counsel for the purposes of a detention review hearing late in 2007. He was released under terms and conditions including cash bonds on December 24, 2007. Counsel submitted written representations on December 31, 2007 with respect to the material included in the package served on the applicant, contending that they did not disclose a sufficient case to establish that the applicant represented a danger and that he continued to face a risk of persecution in China. The submissions were acknowledged by letter addressed to Mr. Shi care of the law firm in January, 2008. He had named the firm as his point of contact in a form entitled "Authority to Release Personal Information to a Designated Individual' dated October 11, 2007. The form states that such designated individual will not be a representative to conduct business with Citizenship and Immigration Canada or CBSA on the applicant's behalf. For that purpose, the form states, a different "Use of a Representative" form must be completed.

7 In May 2009 Mr. Shi was arrested and charged with additional criminal offences involving the shooting of a person in a public place. He was convicted of assault causing bodily harm on December 16, 2009. As a result, an updated disclosure package was prepared including the occurrence reports, certificates of conviction, the reasons for sentence in relation to the 2007 and 2009 convictions and country condition reports pertaining to religious freedom in China.

8 On August 9, 2010 while the applicant was on remand at the Toronto Jail awaiting trial on fresh criminal charges laid in April 2010 of assault and forcible confinement, he was visited by a CBSA officer, accompanied by another officer who is a native Mandarin speaker and qualified interpreter. On that occasion, the applicant was provided disclosure of the updated disclosure package and signed a disclosure receipt. The cover letter accompanying the additional materials indicated that Mr. Shi had fifteen days in which to make final representations and arguments or submit evidence before the documents would be presented to the Minister to form a danger opinion.

9 The August 2010 meeting was interpreted into Mandarin and the interpreting officer deposed that she gave the applicant the opportunity to ask questions and to indicate whether he did not understand. The officer serving the package deposed that his practice is to always ask if the client has counsel and if so, he contacts counsel to ensure they are aware of the current process and any disclosure materials in accordance with Ministerial Policy. In the officer's tracking system for danger opinion proceedings, no counsel was listed for Mr. Shi nor was there a "Use of Representative Form" which would authorize CBSA to conduct business with counsel on the applicant's behalf.

10 On August 20, 2010, the applicant was convicted of assault and forcible confinement and received two concurrent sentences of 18 months' imprisonment and 2 years of probation. On September 20, 2010, the Request for the Minister's Opinion document package was provided to the applicant in jail and he was informed that he could provide further submissions to the Minister's delegate before a decision would be made.

11 The applicant was visited again by a CBSA officer at the Central North Correctional Centre in Penetanguishene, Ontario on October 7, 2010 where he was serving his sentence for the 2010 convictions. The officer served two additional documents relating to the 2010 convictions and the applicant again signed a letter acknowledging that he had received disclosure. The letter reiterated that he had fifteen days in which to make further submissions.

12 None of the documents served on the applicant in 2010 were disclosed to the counsel who had represented Mr. Shi in 2007. Mr. Shi made no attempt to contact counsel when served with the updated disclosure packages. No supplementary representations or evidence were submitted by the applicant prior to the issuance of the Minister's opinion on December 13, 2010. Counsel first learned of the disclosure in 2011 when he was again retained to act on Mr. Shi's behalf for a detention review.

DECISION UNDER REVIEW:

13 Where a person is inadmissible to Canada by reason of serious criminality, the Minister or his or her delegate must determine whether the person is a danger to the public in Canada and, if so found, balance that against the risk faced by the individual if returned to his country of origin and any humanitarian and compassionate considerations.

14 In this instance, the delegate determined, on the balance of probabilities, that the violent and repetitive nature of the applicant's offences and poor prospects for rehabilitation meant that his continued presence constituted a present and future danger to the Canadian public.

15 The Minister's delegate was satisfied that the applicant would not be personally exposed to a risk to life, risk of torture or risk of cruel and unusual treatment, and would not be exposed to more than a mere possibility of persecution if returned to China, either as a member of the Tian Dao faith, the basis of his refugee claim, or by reason of a subsequent conversion to Christianity as claimed in 2007. If the applicant would have been at risk, the delegate found, the balance was in favour of his removal. There were no humanitarian and compassionate considerations to outweigh the fact that he was a danger to the public.

ISSUES:

16 The applicant contends:

· i.

that he was denied procedural fairness, and

· ii.

that the risk assessment was unreasonable.

ANALYSIS:

Standard of Review;

17 Questions of procedural fairness attract no deference: Canada (Attorney General) v. Sketchley, 2005 FCA 404, at para 53; and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at para 43. The proper approach is to ask whether, in the particular circumstances, the requirements of the duty have been met: Pusat v. Canada (Minister of Citizenship and Immigration) 2011 FC 428 at para 14.

18 Apart from questions of fairness in this context, the jurisprudence has satisfactorily established that the standard of review for a Minister's danger opinion is reasonableness: La v. Canada (Minister of Citizenship and Immigration), 2003 FCT 476 at paras 12-16; Randhawa v. Canada (Minister of Citizenship and Immigration), 2009 FC 310 at para 3; and Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at para 41.

19 As a preliminary matter, I noted at the outset of the hearing that the submission of an affidavit by a member of the same firm as counsel who appeared for the applicant was in apparent breach of Rule 82 of the Federal Courts Rules. Where necessary to submit such evidence, the proper course of action, in my view, would have been to refer the applicant to another law firm.

Was there a breach of procedural fairness?

20 The onus of ensuring procedural fairness is heightened in the context of a danger opinion considering the impact of the decision on a refugee and his rights under s 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: Canada (Minister of Citizenship and Immigration) v. Bhagwandass, 2001 FCA 49 at paras 30-31.

21 The applicant submits that he was denied procedural fairness by the manner in which he was served with documents and from the failure of the Minister to serve those documents on his counsel. As a result, the applicant contends, he was denied an opportunity to respond. As the issues under consideration by the delegate were fact dependent, the outcome could have been different had proper submissions been made.

22 It is well established from the jurisprudence and the Minister's own policy that the respondent had the duty to disclose all documentation to the applicant and his counsel, if known. This is set out in the respondent's operational manual: ENF 28, Ministerial Opinions on Danger to the Public and to the Security of Canada at section 7.5. See also Chernikov v. Canada (Minister of Citizenship and Immigration), 2011 FC 885 at para 27; and Ashour v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 7836 (FC) at para 8.

23 The respondent must be taken to have been aware that the applicant had immigration counsel in 2007 even if the proper form had not been completed because submissions from counsel were received and acknowledged. It is also clear that the two document packages served on the applicant in 2010 were not provided to the 2007 immigration counsel. That counsel did not learn of them until after the issuance of the danger opinion. What is not clear from the record is whether Mr. Shi's immigration counsel continued to represent the applicant between the events in 2007 and 2011 when the counsel again became engaged in Mr. Shi's legal problems.

24 This is not a case such as Ashour, above, which involved ongoing proceedings before a quasi-judicial body, the Immigration Appeal Board, where counsel was clearly listed as counsel of record and neither the applicant nor counsel were served with the relevant materials. Here, in my view, the duty of fairness was satisfied by disclosure of the materials directly to Mr. Shi. It was then incumbent upon him to inform the officers that he was represented or to inform his counsel he had received disclosure of documents, neither of which he did.

25 In my view, the respondent can not be faulted for the applicant's failure to take any action in his own interest when served with the document packages despite having been on notice since 2005 that he was subject to removal.

26 The applicant claims that he did not understand the two meetings he had with the CBSA officers. It is clear from the applicant's past dealings with the criminal justice system that he has some knowledge of English. While his 2004 sentencing hearing was interpreted, during the 2007 proceedings he responded to questions from the presiding judge and completed court documents without interpretation. The fact that he was taking English as a Second Language courses was submitted in mitigation.

27 Even if I were to accept the applicant's assertion that he has difficulty understanding English, the August 20, 2010 meeting with CBSA officers was interpreted by a native speaking Mandarin qualified interpreter. I do not accept the applicant's claim that he was unable to understand the interpreter, the purpose of the meeting as explained to him by the officers, or the disclosure letter that he signed. Even if I were to find that his affidavit evidence was credible, by his own statement the applicant claims he was told by the officers that he should give the package to his lawyer within fifteen days. He says he spoke with his wife shortly thereafter. There is no evidence that she made any efforts to contact counsel to inform them a package had been served upon Mr. Shi.

28 According to the officers' affidavit evidence, which I accept in preference to that of the applicant, the applicant did not complain of an inability to understand at the meeting or thereafter prior to the issuance of the decision. The absence of a complaint about the quality of interpretation at the earliest possible opportunity has been held to constitute a waiver: Mohammadian v. Canada (Minister of Citizenship and Immigration), 2001 FCA 191 at para 19; Singh v. Canada (Minister of Citizenship and Immigration), 2010 FC 1161 at para 3; and Mowloughi v. Canada (Minister of Citizenship and Immigration), 2012 FC 662 at paras 30, 32.

29 While the October 2010 meeting was not interpreted, the additional documents disclosed to the applicant on that occasion were clearly already within the applicant's knowledge as he had been present during his conviction in August 2010 and signed the order that formed part of his sentence. The applicant's assertion that he was unable to do anything in respect of the material delivered to him at the Central North Detention Centre as the papers were taken away from him because he was involved in a fight is simply not tenable. Nothing prevented the applicant from asserting his rights to instruct counsel.

30 Had I reached a different conclusion, this is not a case in which I would have applied the principle of inevitable outcome set out in Mobil Oil Canada Ltd v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 SCR 2002, [1994] S.C.J. No. 14 (QL) at para 53. Here the decision under review is fact based and did not turn on a question of law for which there is only one correct answer. The alleged breach precluded further submissions on important matters such as the applicant's recent convictions. While this is doubtful, the outcome might conceivably have been different.

Was the delegate's risk assessment reasonable?

31 The applicant was granted protection in 2000 on the strength of his claim that he was a follower of Tian Dao beliefs and practices in China. He submits that the Minister's delegate's risk assessment was unreasonable because the delegate did not assess the risk that the applicant would continue to be perceived to be a Tian Dao follower in China and did not base conclusions on persecution of Christians in China on the evidence.

32 The onus was on the applicant, once found to be a danger to the public in Canada, to persuade the delegate that there is a risk upon removal. The designated person cannot simply rely on his protected status as a Convention refugee: Jama v. Canada (Minister of Citizenship and Immigration), 2009 FC 781 at paras 85-86; Hasan v. Canada (Minister of Citizenship and Immigration), 2008 FC 1069 at para 22; and Camara v. Canada (Minister of Citizenship and Immigration), 2006 FC 168 at paras 58-60.

33 Here, the evidence that the applicant was a Tian Dao adherent in China was scant. In any event, it is a religion he did not continue to follow in Canada. The Minister's delegate reasonably concluded that since the applicant was no longer a Tian Dao follower and that a significant amount of time had passed since he was granted status, the applicant did not demonstrate he would face persecution in China for that reason. Nor did he establish that he would face risk by reason of a sur place conversion to Christianity.

34 It is clear from the record that the applicant is a long-time gang member with little or no regard for the safety of others or Canadian law. Overall, the decision falls well within the range of possible outcomes in light of the law and the facts: Dunsmuir v. New Brunswick, 2008 SCC 9 at para 47; and Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 16-18.

35 When given the opportunity at the hearing, counsel for the applicant did not propose a question for certification. Counsel for the respondent indicated that should I find that service on counsel was required in this instance, the Minister would wish to propose a question. As indicated above, I do not make such a finding.

JUDGMENT

THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. No question is certified.

SERIAL CRIMINAL LOSES BID FOR REVIEW

Interesting case, and as the court notes, it is puzzling why his earlier convictions did not result in deportation proceedings.

Liu v. Canada (Minister of Public Safety and Emergency Preparedness)

Between Liu, Hua Fu, Applicant, and
The Minister of Public Safety and Emergency Preparedness,
Defendant

[2012] F.C.J. No. 1148

2012 FC 1062

Docket IMM-6572-11

Federal Court
Ottawa, Ontario

Mosley J.

Heard: April 23, 2012.
Judgment: September 7, 2012.

(36 paras.)

REASONS FOR JUDGMENT AND JUDGMENT

1 MOSLEY J.:-- The applicant was ordered deported in July 2007 because he had been convicted of a serious criminal offense. He appealed that order on humanitarian and compassionate grounds. On November 15, 2010 the Immigration Appeal Division of the Immigration and Refugee Board denied the appeal. This is his application for judicial review under section 72 of the Immigration and Refugee Protection Act, SC 2001, c 27.

2 For the reasons that follow, the application is dismissed.

BACKGROUND:

3 The applicant was born in Vietnam of mixed Chinese and Vietnamese ethnicity. He was sponsored by his sister and landed in Canada from China in 1990 at the age of 16 with his parents and other siblings. The applicant married a Canadian citizen in 2005 and they have a child born in 2002. The wife and child live in British Columbia. He lives in Ottawa with a girlfriend and they have two children born in 2004 and 2006.

4 The applicant's criminal history, and that of several of his siblings, began shortly after their arrival in Canada. In police and Canada Border Security Agency documents in the Certified Tribunal Record, the applicant is alleged to have been a member of gangs in Ottawa and on Vancouver Island. The applicant incurred a series of convictions between 1993 and 1995. Other charges were laid but stayed or withdrawn between 1993 and 1999. An immigration inquiry was initiated in 1994 but, for reasons which are unclear in the record, did not result in a deportation order.

5 In 2006, the applicant was sentenced to time served (130 days) and 18 months' probation after being convicted of unlawfully being in a dwelling house and assault. As a result he was ordered deported pursuant to section 36(1) (a) of the Act on July 25, 2007. He appealed that decision to the Immigration Appeal Division (the "Board").

6 The first hearing date in 2008 was adjourned when the applicant filed additional materials after the deadline for doing so. It was rescheduled for June 2009 but adjourned again when the applicant's counsel removed himself from the record and new counsel was retained. The appeal hearing was rescheduled for October 19 and 20, 2010.

7 While on immigration bail, the applicant was charged with robbery and extortion with a firearm. Those charges were withdrawn when the applicant pleaded guilty in March 2010 to possession of stolen property for which he received time served and a suspended sentence.

8 On July 29, 2010, the applicant's counsel wrote to the Board to inform it that he had been unable to obtain instructions from the applicant in the previous 10 months and that he must therefore remove himself from the record. Counsel confirmed that he had advised the applicant of the hearing scheduled for the following October. Despite several attempts, a case management officer from the Board was unable to reach the applicant to advise him to bring his appeal record to the hearing and to verify whether he had new counsel.

9 The applicant came to the hearing as scheduled. On the first day, he stated that he did not have a lawyer because he could not afford one, and he asked the Board to recommend someone, which it declined to do. The applicant then stated that he was ready to proceed with the hearing. He did not have his appeal record. After some discussion, it was decided that, where necessary, the Minister's representative would show him documents from her copy of the appeal record. The first day of the hearing proceeded and the Board told the applicant to bring his appeal record the next day.

10 When the hearing resumed the next day, the applicant still did not have his full appeal record. He asked for an adjournment to allow him to retain counsel. The Board rejected this request in light of the previous adjournments, its view that the matter was straightforward, and the ample notice provided to the applicant after previous counsel withdrew. The hearing resumed with the applicant representing himself.

DECISION UNDER REVIEW:

11 The Board's decision was rendered on November 15, 2010. At the outset, the Board reiterated the reasons that had been stated at the hearing when the adjournment request was denied, relying on Mervilus v Canada (Minister of Citizenship and Immigration), 2004 FC 1206.

12 Dealing with the merits of the appeal, the Board considered the factors affirmed in Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3, and reviewed the applicant's testimony relevant to each factor. The Board found the applicant's testimony not to be credible and that he had not accepted responsibility for his actions. The Board gave the most weight to the seriousness of the offense and the lack of evidence of rehabilitation.

13 The Board found that the evidence of the applicant's establishment in Canada was weak notwithstanding his 21 years in Canada as of the time of the decision. This finding was based on his irregular work history, lack of assets, and lack of close contact with family members who are in Canada and failure to become a citizen. It was noted that the applicant has a brother in China and speaks Cantonese which would lessen the hardship that his relocation to China would cause.

14 The Board considered the impact that the applicant's deportation would have on his children but noted that they are in the care of their mothers, both of whom are employed. He concluded that the children's best interests would be served because they would remain in Canada in their mothers' care.

ISSUES:

15 The issues raised in this application are as follows:

· a.

Was the applicant denied procedural fairness?

· b.

Is the Board's decision on the merits of the appeal reasonable?

ANALYSIS:

Standard of Review:

16 Where procedural fairness is in question, as here, the proper approach is to ask whether the requirements of natural justice in the particular circumstances of the case have been met: Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43.

17 The Board's decisions about whether humanitarian and compassionate considerations warrant relief on appeal from a deportation order are reviewable on the reasonableness standard: Khan v Canada (Minister of Citizenship and Immigration), 2009 FC 762 at para 21.

Was the applicant denied procedural fairness?

18 The applicant submits that he was not afforded due process because his adjournment request was denied. Because he did not have counsel at the hearing, counsel argues, "many relevant questions militating for the applicant could not be raised." He contends further that the Board had a duty to assist him and that the Board should have called the two witnesses listed by previous counsel in December 3, 2008: his wife and girlfriend. Because these witnesses were not called, the applicant argues, significant evidence of his establishment in Canada was not before the Board.

19 The Board had no obligation to call witnesses for the applicant even if the witnesses were listed by his prior counsel. Although the applicant stated that he did not know his girlfriend could have attended the hearing, he was asked on the first day of the hearing whether he would be calling any witnesses and his answer was no. Even when he indicated that he had not realized she could attend, he does not mention having her testify but rather talks about how he would have liked to have her there to support him. As the applicant's wife lived in British Columbia, she was not available as a witness.

20 The applicant had several months' notice that his counsel had withdrawn, but he did not retain new counsel by the date of the hearing nor did he seek legal aid. The applicant's explanation to the Board that he did not seek legal aid because he does not believe that lawyers who work for free are competent was unreasonable given the issues at stake. The right to counsel is not absolute: Yanez Tecuapetla v Canada (Minister of Citizenship and Immigration), 2012 FC 225 at para 25.

21 The applicant's education is limited, but that does not excuse his effective lack of participation in the proceedings, as demonstrated by his failure to inform the Board that his phone number had changed and the fact that he did not bring his copies of the appeal record to the hearing. His prior counsel withdrew because of the applicant's failure to instruct him.

22 The applicant agreed to proceed on the first day of the hearing without counsel. Given that the matter had already been delayed more than three years and that a full day of the hearing had already transpired, the Board did not breach procedural fairness by proceeding with the rest of the hearing.

23 At paragraph 25 of Mervilus, above, cited by the Board, the Court held the following:

· [A]lthough the right to counsel is not absolute in an administrative proceeding, refusing an individual the possibility to retain counsel by not allowing a postponement is reviewable if the following factors are in play: the case is complex, the consequences of the decision are serious, the individual does not have the resources - whether in terms of intellect or legal knowledge - to properly represent his interests.

24 Here, the matter was straightforward and, although the consequences serious in that the applicant faces deportation, no evidence of hardship he would face by having to relocate to China was presented. As set out above, the applicant was in a position to properly represent his interests and to the extent that he did not do so, it was of his own doing. The Board adapted its usual procedure because the applicant was representing himself, and he was given the opportunity to call witnesses and to make submissions. The applicant had the chance to put forward any other evidence or raise any other issues not raised in the hearing, and he cannot now complain that the Board did not have all of the information when he had the opportunity to put that information forward.

25 Counsel for the applicant has also suggested that the Board member disclosed bias by a reference in the decision to the applicant's "lengthy record...a total of 150 pages". He contends that the only conviction that is relevant is that leading to the deportation order.

26 I agree that for the purposes of determining whether the deportation order was validly issued under paragraph 36 (1) (a) of the Act, the only relevant conviction is that for the predicate offence which is the basis for the order. However, in considering whether there are humanitarian and compassionate grounds to grant relief from the deportation order the applicant's entire criminal history is relevant. In this matter, the Board had before it a lengthy dossier concerning the applicant compiled by the police and the CBSA over two decades. In my view, it was entirely reasonable for the Board to have made reference to it.

27 I am satisfied that the Board did not breach its duty of procedural fairness to the applicant and that there is no basis for a finding of a reasonable apprehension of bias.

· Is the Board's decision on the merits of the appeal reasonable?

28 The applicant submits that the Board erred in assessing the humanitarian and compassionate factors in favour of a stay of his deportation. He contends that the Board did not properly consider the factors identified in Chieu, above. Regarding the seriousness of his offence, he suggests several questions that could have been asked and states that they are unanswered. On the possibility of rehabilitation, he raises arguments regarding dependence on alcohol or drugs or anger management issues.

29 In terms of his establishment, the applicant notes that he has not left Canada since his arrival in 1990 and has never been on social assistance. He submits that the Board failed to consider the hardship he would face returning to China after leaving more than 20 years ago and given that he is not in touch with his brother who lives there following deportation from Canada.

30 Finally, the applicant submits that the Board failed to fully consider his children's best interests. In particular, he notes that the Board did not mention the handwritten schedule provided two years earlier that showed how he and his wife take turns caring for their autistic son. He also argues that the Board failed to ask how he supports his other two children both emotionally and financially.

31 I note that by the time this matter came on for hearing before the Board the wife and autistic son had returned to British Columbia and there was no indication that the applicant continued to be involved in his son's care. The Board did not err by failing to refer to evidence that was two years old at the time of the hearing and was no longer accurate.

32 With regard to the two other children, the applicant has failed to demonstrate that the Board did not adequately consider their interests. Although the applicant said that he is somewhat involved in caring for them, he did not provide any evidence - at any point since the appeal was initiated - to this effect, despite his prior counsel having entered into the record several pictures of him, his wife, and their child. Given the total lack of evidence about the other two children, the Board cannot be faulted for concluding that the children's interests did not warrant a stay.

33 Nor did the Board err in considering the Chieu factors. The applicant has a lengthy criminal record dating back to within a few years of his arrival in Canada. He has repeatedly been charged with extortion and uttering threats. At least one of his charges allegedly involved a firearm. While awaiting a hearing on his appeal from the deportation order he was charged with additional offences and pleaded guilty to one. Although the 2006 conviction that led to the deportation order was not a violent offence, the police records indicate that there were children present and that the applicant repeatedly threatened to "kill everyone" and implied that he was in possession of a firearm.

34 The applicant's criminal history is relevant to the prospect of rehabilitation. When he was questioned about this record at the hearing, he insisted that the charges were falsified, that the victims had since apologized to him for having contacted the police, that a police officer was out to get him, or that the Minister's counsel had falsified the police records. Given his complete failure to take responsibility for his actions, the Board's finding that there was no possibility of rehabilitation is entirely reasonable.

35 The applicant did not put forward any evidence that he faces hardship if he must return to China other than the assertion that he was no longer familiar with the country having lived here for over two decades and only minimal evidence of his involvement in his children's lives. The applicant bore the burden of establishing that humanitarian and compassionate grounds warranted a stay of his deportation and he simply failed to do so.

36 The application is dismissed. No questions for certification were proposed.

JUDGMENT

THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. No questions are certified.

MOSLEY J.