Date: 19981119
Docket: IMM-5451-97
BETWEEN:
THANASINGAM BALASINGAM
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM J.:
INTRODUCTION
[1] This is an application for judicial review of the opinion of the Minister"s delegate issued pursuant to paragraph 53(1)(d) and subsection 70(5) of the Immigration Act (Act), whereby the applicant, Thanasingam Balasingam, was declared to constitute a danger to the public in Canada. The applicant seeks an order quashing the opinion of the Minister"s delegate, permission to proceed with the appeal he filed before the Immigration and Refugee Division against a deportation order issued on September 10, 1997 or, in the alternative, an order remitting the matter to the Minister"s delegate with appropriate directions.
FACTS
[2] The applicant, a citizen of Sri Lanka born on April 18, 1969, came to Canada on February 13, 1992 and was granted convention refugee status by the Refugee Division of the Immigration and Refugee Board on April 6, 1992. He became a permanent resident in May 1993. On March 19, 1997, the applicant pleaded guilty to charges of conspiracy to kidnap a person under paragraph 465(1)c) and assault causing bodily harm under paragraph 267(1)b) of the Criminal Code and, as a result, became liable to imprisonment for a term not exceeding ten years pursuant to paragraph 465(1)c) of the Criminal Code. The respondent submits that the applicant was also convicted under paragraph 279(1) a) of the Criminal Code (kidnapping) and that pursuant to 279(1.1) b) of the said Code he was guilty of an indictable offence liable to imprisonment for life. In this respect, the applicant submits that this information, upon which the deportation order is based, is erroneous as he only pleaded guilty to two counts under paragraph 267(1)b) and 465(1)c). On April 28, 1997, the applicant was sentenced to one year imprisonment and two years probation for each count to be served concurrently. On September 10, 1997, an inquiry was held and a deportation order was issued against him pursuant to paragraph 27(1)d) of the Act, which is based on the conviction of an offence for which a term of imprisonment of more than six months has been, or five or more years may be, imposed. On the same day, September 10, 1997, the applicant filed an appeal before the Appeal Division of the Immigration and Refugee Board from the deportation order. On October 14, 1997, the applicant was served with a notice of intention to seek the opinion of the Minister pursuant to subsection 70(5) and paragraph 53(1)(d) of the Immigration Act, and invited to file written submissions, which was done by letter dated November 5, 1997. On November 25, 1997, the Minister"s delegate issued an opinion declaring that the applicant constitutes a danger to the public in Canada. The applicant became aware of this opinion when his counsel was notified with a "Requête pour défaut de compétence" by the Canadian Immigration Centre ("CIC"), Montreal, submitting that the Appeal Division had lost jurisdiction when the Minister"s delegate issued the opinion that the applicant was a danger to the public in Canada.
SUBMISSIONS
[3] The applicant submits the following arguments:
| 1) The Minister"s decision is predicated on bad faith, bias, prejudice and irrelevant considerations, is made in violation of the principle of natural justice, and is vitiated by errors of law; |
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| 2) The Minister erred in failing to consider the application of section 7 of the Charter of Rights and Freedoms, which raises an unresolved issue of general concern (The applicant made no oral submissions relating to the section 7 Charter issue.); |
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| 3) The Minister made no attempt to address the risk of deporting of a Convention Refugee to a country where the applicant still has fears of persecution. |
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[4] The respondent, in his written submission, contends that section 7 of the Canadian Charter of Rights and Freedoms is not engaged by the Minister"s opinion as it is not tantamount to a deportation order. Further, the respondent submits that the Minister"s assessment of the facts is well founded in light of the evidence and the principles set out in the jurisprudence which dealt with opinions relating to "danger to the public in Canada". In short, the respondent argues that the Minister did not commit a reviewable error in concluding that the applicant constitutes a danger to the public in Canada.
ISSUES
[5] The applicant raises the following issues:
| (a) In writing, whether the section 7 of the Charter of Rights and Freedoms is engaged by the Minister"s opinion that a convention refugee constitutes a danger to the public in Canada; |
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| b) Whether the opinion of the Minister"s delegate is based on bad faith, prejudice and irrelevant considerations or made in violation of the principles of natural justice; |
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| c) Whether the Minister erred in fact or in law in its conclusion that the application constitutes a danger to the public in Canada. |
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[6] The first issue to be addressed is that of whether the documents found at pages 80 to 120 of the Applicant"s Record can be considered by the Court as "fresh" evidence, in that none of these documents were before the Minister when the Minister considered the evidence before him and came to the decision that the applicant is, pursuant to 53(1)(d ) and 70(5) of the Act, a danger to the public in Canada.
[7] Counsel for the respondent objected to the production of these documents in the Applicant"s Record and stated that I did not have the jurisdiction to give any consideration to the documents or to what the documents contain.
[8] I am satisfied that on an application for judicial review only those materials that were before the tribunal can be considered.
[9] In the case of Sergey Asafov et al. v. M.E.I., IMM-7425-93, unreported, May 14, 1994, Mr. Justice Nadon, on pages 1 and 2 of his decision states:
| The Applicants have filed an application for leave and for judicial review of a negative decision of the Refugee Division ("the tribunal") dated December 9, 1993. By their present application, the Applicants seek to introduce into the record evidence which was not before the tribunal when it rendered its decision. |
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| The purpose of the judicial review process is to examine the tribunal"s decision in light of the evidence adduced before it at the hearing and to decide whether or not there are grounds for review. From that perspective, the evidence which the Applicants now seek to introduce is irrelevant. By granting this application, I would be transforming the judicial review process into that of an appeal. |
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| For these reasons, the Applicants" motion for leave to file further and fresh evidence must be dismissed. |
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[10] In the case of Wlodzimierz Lemiecha et al. v. M.E.I. (1993) 72 F.T.R. 49 at 51, Mr. Justice Gibson states:
| It is trite law that judicial review of a decision of a federal board, commission or other tribunal should proceed on the basis of the evidence that was before the decision-maker. |
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[11] See also Bakhtawar Singh v. M.E.I., IMM-1794-96, Paban Kumar Bara v. M.E.I., IMM-3286-97 and Franz v. M.E.I. (1995) 80 F.T.R. 79.
[12] For the above reason, I maintain the objection of counsel for the respondent.
[13] The opinion issued by the Minister"s delegate that the applicant is a danger to the public in Canada was made pursuant to paragraph 53(1)(d ) and subsection 70(5) of the Immigration Act, which reads as follows:
| 53. (1) Notwithstanding subsections 52(2) and (3), no person who is determined under this Act or the regulations to be a Convention refugee, nor any person who has been determined to be not eligible to have a claim to be a Convention refugee determined by the Refugee Division on the basis that the person is a person described in paragraph 46.01(1)(a), shall be removed from Canada to a country where the person's life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless
(d) the person is a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed and the Minister is of the opinion that the person constitutes a danger to the public in Canada.
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53. (1) Par dérogation aux paragraphes 52(2) et (3), la personne à qui le statut de réfugié au sens de la Convention a été reconnu aux termes de la présente loi ou des règlements, ou dont la revendication a été jugée irrecevable en application de l'alinéa 46.01(1)a), ne peut être renvoyée dans un pays où sa vie ou sa liberté seraient menacées du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques, sauf si, selon le cas_:
d) elle relève, pour toute infraction punissable aux termes d'une loi fédérale d'un emprisonnement maximal égal ou supérieur à dix ans, du cas visé à l'alinéa 27(1)d) et que, selon le ministre, elle constitue un danger pour le public au Canada.
70(1) Subject to subsections (4) and (5), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely,
(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.
(5) No appeal may be made to the Appeal Division by a person described in subsection (1) or paragraph (2)(a) or (b) against whom a deportation order or conditional deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be
(a) a member of an inadmissible class described in paragraph 19(1)(c), (c.1), (c.2) or (d);
(b) a person described in paragraph 27(1) (a.1); or
(c) a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed.
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| 70. (1) Sous réserve des paragraphes (4) et (5), les résidents permanents et les titulaires de permis de retour en cours de validité et conformes aux règlements peuvent faire appel devant la section d'appel d'une mesure de renvoi ou de renvoi conditionnel en invoquant les moyens suivants_:
a) question de droit, de fait ou mixte;
b) le fait que, eu égard aux circonstances particulières de l'espèce, ils ne devraient pas être renvoyés du Canada.
(5) Ne peuvent faire appel devant la section d'appel les personnes, visées au paragraphe (1) ou aux alinéas (2)a) ou b), qui, selon la décision d'un arbitre_:
a) appartiennent à l'une des catégories non admissibles visées aux alinéas 19(1)c), c.1), c.2) ou d) et, selon le ministre, constituent un danger pour le public au Canada;
b) relèvent du cas visé à l'alinéa 27(1)a.1) et, selon le ministre, constituent un danger pour le public au Canada;
c) relèvent, pour toute infraction punissable aux termes d'une loi fédérale d'un emprisonnement maximal égal ou supérieur à dix ans, du cas visé à l'alinéa 27(1)d) et, selon le ministre, constituent un danger pour le public au Canada.
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Reasonableness of the Opinion of the Minister"s Delegate |
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[14] The applicant"s counsel submits that the opinion of the Minister"s delegate is predicated on bad faith, bias, prejudice and irrelevant considerations, is made in violation of the principle of natural justice, and is vitiated by errors of law. In short, it is submitted that the Minister"s opinion is based on irrelevant considerations such as press clippings, which are unreliable, inflammatory and clear evidence of bias; that there was no risk assessment of recidivism or danger to the public or any psychological expertise; and that a comment in the police report that the applicant is a "petit King qui fait la loi à la Plaza Côte des Neiges" is unsubstantiated. |
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[15] The respondent relies onWilliams v. Canada, [1997] 2 F.C. 646 (F.C.A.) for the propositions that a reviewable error occurs where a discretionary decision is either perverse or where the evidence manifestly requires a different result, and that a court sitting on appeal cannot substitute its opinion as to whether a person presents a danger to the public in Canada. |
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[16] In Williams, supra, some of the facts and issues were virtually identical to the present case. The applicant appealed a deportation order issued pursuant to subsection 27(1), but before the appeal was heard the Minister"s delegate issued an opinion that the applicant constituted a danger to the public in Canada under subsection 70(5), thereby removing his right of appeal against the deportation order. The opinion of the Minister"s delegate was set aside by the Federal Court, Trial Division, but reinstated on appeal by the Federal Court of Appeal. As with the present case, one of the main issues was whether the Minister"s delegate erred in issuing an opinion pursuant to subsection 70(5). Justice Strayer, speaking for the Court of Appeal, states at pages 663-664, paragraph 17: |
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It is striking that subsection 70(5) says that no appeal may be made under subsection 70(1) "where the Minister is of opinion" [underlining added], not "where a judge is of the opinion" that the deportee constitutes a danger. Nor did Parliament put the matter in objective terms whereby a certificate precluding further appeal could only be issued where it is "established" or "determined" that the appellant constitutes a danger to the public in Canada. Instead the power to make such a finding is stated in subjective terms: the test is not whether the permanent resident is a danger to the public but whether "the Minister is of the opinion" [underlining added] that he is such a danger. There is ample authority that, unless the overall scheme of the Act indicates otherwise through e.g. an unlimited right of appeal of such an opinion, such subjective decisions cannot be judicially reviewed except on grounds such as that the decision maker acted in bad faith, or erred in law, or acted upon the basis of irrelevant considerations. Further, when confronted with the record which was, according to undisputed evidence, before the decision maker, and there is no evidence to the contrary, the Court must assume that the decision maker acted in good faith in having regard to that material. |
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[17] Justice Strayer concluded that the opinion of the Minister"s delegate was based on relevant evidence and considerations, and that the court was not asked to confirm the correctness of the decision, but only to determine whether there was any unlawful basis for its review. |
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[18] In the present case, the material submitted to the Minister"s delegate for consideration is listed in the Notice of Intention to seek the opinion of the Minister, dated February 4, 1998, (Record of the Applicant, at page 20). The evidence clearly shows that the applicant was convicted of conspiracy to kidnap under 465(1)c) and assault causing bodily harm under 267(1)b), for which he was sentenced to one year imprisonment and two years probation for each count to be served concurrently. Further, the report produced by the Service de renseignement, Gestion du programme Région du Québec, also indicates that the applicant was involved, as a victim and a suspect , nothing more, in a number of illegal incidents between 1993 and 1996. The applicant argues however that out of the eight incidents mentioned therein, he was convicted in one incident, acquitted in another, that he was a victim in two of them and is unrelated to the others. The report concludes that the applicant, his brothers, and other individuals of Tamil origin are involved in criminal activities. The applicant submits that this conclusion is unsubstantiated. Furthermore, the applicant objects to a letter signed by L. Castonguay, an investigating officer from CIC (Canada Immigration) Montreal. The letter reports the incidents for which he pleaded guilty and states that he was involved in seven other incidents relating to threats and assault for which charges were not laid because the victims refused to testify. The letter also states that the applicant is a gang member of "Gandhi Power" related to the "Liberation Tigers of Tamil Eelam". In this respect, the applicant argues that the information is unreliable as the source of information is unidentified and that it amounts to sheer lunacy. |
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[19] The applicant further submits that the evidence for consideration submitted to the Minister"s delegate did not represent the totality of the material which should have been considered. There was no risk assessment of recidivism or danger to the public or any psychological assessment. Further, the applicant also complains of the absence of humanitarian considerations, such as his status as a convention refugee and the genuine risks of persecution if returned to Sri Lanka, in the material submitted to the Minister"s delegate. |
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[20] The Guidelines to which the applicant refers lists the factors which must be considered by officers in applying for the Minister"s opinion. These factors include the nature and circumstances of the offence, the sentence, the commission of multiple offences, as well as humanitarian and compassionate considerations. However, I observe, as did the Court of Appeal in Williams , supra, at page 671, "that the guidelines are not law, are not binding, and they do not purport to be exhaustive". Also, in Williams , supra, the Court of Appeal found that it need not be proven that a person will re-offend and that there is no basis to assert that a particular kind of material must be submitted to the Minister"s delegate to form an opinion as to the danger a person represents to the public, at pages 668-669: |
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It need not be proven--indeed it cannot be proven--that the person will reoffend. What I believe the subsection adequately focusses the Minister's mind on is consideration of whether, given what she knows about the individual and what that individual has had to say in his own behalf, she can form an opinion in good faith that he is a possible re-offender whose presence in Canada creates an unacceptable risk to the public. I lay some stress on the word "unacceptable" because, with the impossibility of proof of future conduct, there is always a risk and the extent to which society should be prepared to accept that risk can involve political considerations not inappropriate for a minister. She may well conclude, for example, that people convicted of narcotics offences have a greater likelihood of recidivism and that trafficking represents a particular menace to Canadian society. I agree with Gibson J. in the Thompson case that "danger" must be taken to refer to a "present or future danger to the public". But I am reluctant to assert that some particular kind of material must be available to the Minister to draw a conclusion of present or future danger. I find it hard to understand why it is not open to a minister to forecast future misconduct on the basis of past misconduct, particularly having regard to the circumstances of the offences and, as in this case, comments made by one of the sentencing judges. A reviewing court may disagree with the Minister's forecast, or consider that more weight should have been given to certain material, but that does not mean that the statutory criterion is impermissibly vague just because it allows the Minister to reach a conclusion different from that of the Court. |
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[21] In my view, the evidence submitted does refer to the multiples incidents the applicant was involved in or suspected of being involved in, and I am unable to conclude that the opinion is vitiated because the material did not contain a formal risk assessment of recidivism per se or a psychological assessment. Further, I considered the evidence submitted to the Minister"s delegate and I find that the documentary evidence does put forth humanitarian considerations. For example, the Minister"s delegate had the applicant"s personal information for people claiming convention refugee status, as well as the notice of decision dated April 6, 1992 whereby the applicant was granted convention refugee status. Moreover, the Minister"s delegate had for consideration the information submitted by applicant"s counsel with respect to the risk of return. I can see no basis upon which I can determine that this documentary evidence was not considered by the Minister"s delegate. In my view, what is crucial is that this information was available to the Minister"s delegate so a well informed opinion could be formed based on the totality of the material required in light of the conditions for such an opinion. As mentioned in Williams , supra, at page 670, the conditions for the issuance of such an opinion are as follows: |
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Again it is important to remember the conditions for the issue of such an opinion: the commission of offences by a non-citizen, an order for his deportation issued in accordance with the laws of Parliament and due process, the requirement that his offences be of a particularly serious nature carrying possible sentences of ten years or more, and then the confirming of the Minister"s opinion only after the requirements of fairness are met through enabling the party to make submissions. |
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[22] As I have stated, it is well established that the decision-making power of the Minister"s delegate is broadly discretionary and that he is not bound by the factors listed in the guidelines: Nguyen v. Canada (Minister of Employment & Immigration) (1993), 18 Imm. L.R. (2d) 165 (Fed.C.A.); Thompson v. Canada (Minister of Citizenship & Immigration) (1996) 37 Imm. L.R. (2d) 9 (Fed. T.D.); Williams v. Canada, supra. |
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[23] In light of the evidence and the applicant"s submissions, I am not convinced that I should interfere with the decision of the Minister"s delegate. In my view, the evidence submitted for consideration reasonably substantiates the opinion of the Minister"s delegate that the applicant is a danger to the public. Furthermore, I have considered the allegedly unrelated news clippings in the file and the allegations of unsubstantiated conclusions, but I not persuaded by the applicant"s argument that the opinion of the Minister"s delegate is in any way unlawful. In this respect, I appreciate the applicant"s submissions based on Sam v. Canada , [1997] F.C.J. 1640, that newspaper articles are unreliable and highly prejudicial. However, in Sam, Justice Reed found the article highly prejudicial to the applicant because it recounted the incident from the victim"s point of view. In this case, the newspaper article merely refers to gang members of Sri-Lankan origin and does not refer to the applicant in any way. For these reasons, I am unable to find that the newspaper article was highly prejudicial to the applicant and I find that it could not have been determinative of the result. The Minister"s delegate is presumed to act in good faith in the absence of evidence to the contrary. The burden imposed upon the applicant to rebut this presumption is a heavy one, and I am not satisfied that the applicant has overcome this hurdle. |
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Section 7 of the Canadian Charter of Rights and Freedoms (not argued at the hearing, but not withdrawn) |
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[24] The applicant also submits that the opinion of the Minister"s delegate in the case of a convention refugee pursuant to subsection 70(5) of the Immigration Act engages section 7 of the Charter. In other words, that the Minister"s opinion which deprives him of a right of appeal pursuant to subsection 70(5) of the Immigration Act , amounts to a deprivation of life, liberty or security of the person. |
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[25] The issue of whether the Minister"s opinion pursuant to subsection 70(5) engages section 7 of the Canadian Charter of Rights and Freedoms was considered in Williams , supra. The Court of Appeal held that it did not engage section 7 of the Charter. Speaking for the Court of Appeal, Justice Strayer stated the following at pages 665-667: |
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Firstly, for the reasons set out above I am not prepared to assume that an opinion given under subsection 70(5) should be seen as the equivalent of a deportation order. At worst it replaces an appeal on law and facts with judicial review, substitutes the Minister's humanitarian discretion for that of the Appeal Division, and substitutes the possibility of a judicial stay of deportation for the certainty of a statutory stay. |
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Secondly, even accepting the Motions Judge's premise that it is the Minister's opinion which causes the removal of Williams, I am not persuaded that this engages a "liberty" or "security of the person" interest under section 7 of the Charter. |
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It is necessary to distinguish this case from those such as Singh et al. v. Minister of Employment and Immigration in which three of the six judges held section 7 to be engaged in the disposition of a refugee claim. Fundamental to that opinion was the consideration that refugee claimants potentially face removal to countries where, they allege, they would be in danger of death or imprisonment. In the present case, there is no suggestion that Williams cannot return safely to Jamaica even though he would prefer not to. He has none of the "rights" under the Refugee Convention [United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6], as implemented by the Immigration Act, on which three of the judges of the Supreme Court based their conclusion that section 7 interests were affected and three others based their conclusion that paragraph 2(e) of the Canadian Bill of Rights was engaged. |
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The jurisprudence of this Court on this subject has not been entirely consistent. There is one line of authority in which it has been clearly held that deportation is not a deprivation of liberty and therefore section 7 is not engaged. There have been some views to the contrary. When Chiarelli was before this Court the judges all found there to be a potential deprivation of liberty in the deportation of a permanent resident, although the Supreme Court in reversing the decision on other grounds found it unnecessary to address this issue. In Nguyen v. Canada (Minister of Employment and Immigration) Marceau J.A. at one point stated that a declaration that a person is ineligible to make a refugee claim does not in itself affect life, liberty or security of the person. He later says that when this declaration is combined with the requirement that non-citizens who commit serious crimes be deported, the overall scheme concerns the "deprivation of liberty". It is not clear to what extent this observation depends on the person in question being a refugee claimant who would, by definition, be able to assert a potential danger to himself in returning home. It also appears that such findings were unnecessary as the Court found there to be no breach of fundamental justice. |
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Without purporting to decide the question in respect to refugees, I have difficulty understanding how the refusal of a discretionary exemption from a lawful deportation order, as applied to a non-refugee who has no legal right to be in the country, must be seen as involving a deprivation of liberty. Unless "liberty" is taken to include the freedom to be anywhere one wishes, regardless of the law, how can it be "deprived" by the lawful execution of a removal order? |
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Counsel for the respondent has invoked pronouncements of the Supreme Court in cases having little to do with immigration in order to assert a broader interpretation for "liberty" and "security of the person". He cited Wilson J. in R. v. Morgentaler to the effect that liberty interests include a general guarantee of "personal autonomy over important decisions intimately affecting . . . private lives". Suffice it to say that the four judges who concurred in the result declined to consider the application of "liberty" in this context and based their decision on "security of the person". It was clear that their conclusion that section 7 was engaged was directly related to the very intrusive character of abortion availability and the fact that criminal sanctions were potentially involved. Two judges found no violation of section 7. Counsel cited to us another invocation of "personal autonomy" as an aspect of "liberty", in the case of B. (R.) v. Children's Aid Society of Metropolitan Toronto in which four judges of the Supreme Court considered that the protection of "liberty" in section 7 gave parents the right to refuse medical treatment for their children. It may be noted that four other judges declined to give "liberty" that scope and one judge considered it unnecessary to decide the matter as he found no violation of section 7 requirements of fundamental justice. |
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On the basis of the jurisprudence to date, then, I am unable to conclude that "liberty" includes the right of personal choice for permanent residents to stay in this country where, as the Supreme Court said in Chiarelli: |
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They have all deliberately violated an essential condition under which they were permitted to remain in Canada. |
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Accordingly I would answer question 1 in the negative. |
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[26] In support of his position, the applicant relies on Nguyen v. ME.I. (1993) 18 IMM L.R. (2d) 165 for the proposition that the removal of a claimant to a country where he would be at risk violates sections 7 and 12 of the Charter. Further it is submitted that the finding in Williams, supra, that the Minister"s opinion given under subsection 70(5) does not engage section 7 of the Charter does not resolve the present issue because in Williams the applicant was not a convention refugee as the applicant in this case. |
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[27] For the respondent, counsel relies on Williams for the proposition that the Minister"s opinion is not tantamount to a deportation, is not the cause of the removal or deportation of an individual, and as such is extraneous to the Minister"s opinion. |
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[28] Subsection 53 (1) of the Immigration Act stipulates that a convention refugee may not be removed from Canada to a country where the person"s life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless: |
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(c) the person is a person described in subparagraph 27(1)(a.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada; |
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(d) the person is a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed and the Minister is of the opinion that the person constitutes a danger to the public in Canada. |
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[29] As I understand it, the applicant"s position is predicated on the premiss that a convention refugee is entitled to the rights and privileges under the Refugee Convention and as such should be distinguished from a non-refugee. While it is accurate that convention refugees are entitled to particular rights by virtue of their status under the Immigration Act , their rights or privileges are not analogous to the rights accorded to Canadian citizens. The rights of convention refugees were defined in Boun-Leua v. Minister of Employment and Immigration, [1981] 1 F.C. 259, at page 263-264: |
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A Convention refugee, on the other hand, is not given the right to reside permanently in Canada nor, by being designated such, is he given the right to remain in Canada for a specific period of time. Presumably his right to remain is dependent upon his continuing to be a refugee from the country of his nationality. If for any reason, he no longer can fulfil the requirements to be characterized as a Convention refugee, he is subject to a removal or deportation order. The duration of his stay, as a Convention refugee, can only be fixed by a Ministerial permit issued pursuant to section 37 of the Act. If no such permit issued then, if he is within an inadmissible class, he may be the subject of a removal or deportation order. The only rights accorded to a Convention refugee are first, not to be returned to a country where his life or freedom would be threatened, a right granted by virtue of section 55 of the Act, and, second, to be able to appeal a removal order or a deportation order made against him on a question of law or fact or of mixed law and fact and "on the ground that, having regard to the existence of compassionate or humanitarian considerations" he should not be removed from Canada (sections 72(2) (a) and (b) and 72(3)). |
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From all of the above, I can only conclude that the determination by the Minister that a person is a Convention refugee does not, as urged by applicant's counsel, confer on that person a status of some undefined nature. It gives him only the rights to which I have previously alluded. In this case the applicant as a refugee admitted to France can return to France at least so long as his travel permit, issued by that country to him, is valid. France having found him to be a refugee, then Canada as a signatory to the United Nations Convention Relating to the Status of Refugees would find it difficult to determine that he was not a refugee. Whether or not such is the case is immaterial in this case. Since he can return to France, which is not the country of his nationality, or where his life or freedom would be threatened, there is no obligation on the Minister to permit him to remain in Canada. The applicant has no legal right to do so. In my view, therefore, applicant counsel's submission that the determination by the Minister that his client was a Convention refugee gave him the right to remain in Canada must fail. |
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[30] While I appreciate the proposition that, without necessarily agreeing with it, the adjudication of refugee status claims or the deportation of a convention refugee engages section 7 of the Charter, I am not convinced that the opinion of the Minister declaring a convention refugee to be a danger in Canada engages section 7 of the Charter. In Williams, supra, the Court of Appeal clearly reviewed the two lines of authority on this point and stated that the opinion of the Minister is not tantamount to a deportation order, and that even if the Minister"s opinion caused the removal of the Applicant, it was not convinced that it engaged liberty or security interests under section 7 of the Charter. |
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[31] The decision-making powers of the Minister"s delegate to issue an opinion are broadly discretionary and should not be interfered with lightly. The applicant has the heavy burden of showing that the evidence substantiates a different result from that reached by the Minister"s delegate. In my view, the applicant was unsuccessful in this respect and failed to show a reviewable error of fact or law. |
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[32] The parties were asked if they had a question to submit for certification in accordance with subsection 83(1) of the Immigration Act which states: |
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| 83. (1) A judgment of the Federal Court-Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court-Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question.
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83. (1) Le jugement de la Section de première instance de la Cour fédérale rendu sur une demande de contrôle judiciaire relative à une décision ou ordonnance rendue, une mesure prise ou toute question soulevée dans le cadre de la présente loi ou de ses textes d'application " règlements ou règles " ne peut être porté en appel devant la Cour d'appel fédérale que si la Section de première instance certifie dans son jugement que l'affaire soulève une question grave de portée générale et énonce celle-ci.
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[33] Therefore, before a question may be certified, it must be "a serious question of general importance". |
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[34] The applicant asked that the Court certify two questions that allegedly are of general importance. They are: |
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1. WHETHER an investigating officer from the Department of Citizenship and Immigration preparing a danger profile and recommendation towards a 70(5) and 53(1)d opinion is bound to seek out and present for consideration by the minister all information both favourable and unfavourable regarding a criminal profile; |
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2. WHETHER failure by the Immigration Department and attorney representing a person who received a notice of intent under sections 70(5) and section 53(1)d to present to the minister relevant information and documents available at the time the notice was sent and representations made can serve to invalidate a decision and whether a court may consider it on judicial review. |
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[35] I am satisfied that neither question should be certified. My reading of the cases of Nguyen, supra and Williams, supra, indicates that there does not exist a formal guideline as to what must or must not be submitted to the Minister in order to enable the Minister to form his opinion in respect of paragraph 53(1)(d) and subsection 70(5) of the Act. |
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[36] What is of importance is that the Minister have before him sufficient evidence to conclude that the applicant can be a danger to the public in Canada and that the applicant was given an opportunity to disabuse the Minister to make such a finding. |
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[37] In the case at bar, the Minister"s representative had more than sufficient evidence before him to conclude as he did after the applicant was given an opportunity to make whatever submissions the applicant wanted to. |
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