2011 FC, 2011 FC 1473

Date: 20111214 Docket: IMM-4510-11 Citation: 2011 FC 1473 BETWEEN: SHARMARKE MOHAMED Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER HARRINGTON J. [ 1 ] Mr. Mohamed, a permanent resident of Canada , has amassed a number of convictions for serious crimes. If he had come from, say, Sweden , he would not only have been found inadmissible pursuant to

section 36 of the Immigration and Refugee Protection Act for serious criminality, but in all likelihood would have been deported long ago. However, he is a refugee from Somalia and is protected under section 115(1) of IRPA in that Canada , as a signatory to the United Nations Convention Relating to the Status of Refugees , recognizes the principle of “non-refoulement”.

We will not return persons to their country of origin if 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 ] However, there is an exception. Section 115(2) of IRPA provides:

(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 .

(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. [ 3 ] The Minister’s delegate carried out a danger opinion. She was of the view that Mr. Mohamed constituted a danger to the public in Canada, and that such danger outweighed the risk of danger to him should he be returned to Somalia. This is the judicial review of that decision.

DANGER OPINION – APPLICABLE LEGAL PRINCIPLES [ 4 ] The legal principles applicable to a case such as this were summarized by the Federal Court of Appeal in Ragupathy v Canada (Minister of Citizenship and Immigration) , 2006 FCA 151 , [2006] FCJ No 654 (QL) . [ 5 ] The first step is to determine whether Mr. Mohamed is inadmissible on grounds of serious criminality. On this point there can be no doubt. [ 6 ] The second step is to decide whether, in the opinion of the Minister, Mr. Mohamed constitutes a danger to the Canadian public.

More shall be said on the reasonableness of that determination. [ 7 ] If the Minister’s delegate is of the opinion that a person is a danger to the public, then there must be an assessment as to the risk to which that person would be subjected if removed, and that risk must be balanced against the danger to the public should the person be let loose here.

This balancing takes into account humanitarian and compassionate circumstances. [ 8 ] Although the Minister’s delegate must assess the danger to the person under sections 96 and 97 of IRPA, those sections only come into play indirectly ( Jama v Canada (Minister of Citizenship and Immigration) , 2009 FC 781 , 350 FTR 61 ; Alkhalil v Canada (Minister of Citizenship and Immigration) , 2011 FC 976 , [2011] FCJ No 1198 ). The key sections which require balancing are sections 7 and 12 of the Canadian Charter of Rights and Freedoms which provide:

7. Everyone has the right to life,liberty and security of the personand the right not to be deprivedthereof except in accordancewith the principles offundamental justice. 12. Everyone has the right not tobe subjected to any cruel andunusual treatment orpunishment. 7. Chacun a droit à la vie, à laliberté et à la sécurité de sapersonne; il ne peut être portéatteinte à ce droit qu'enconformité avec les principes dejustice fondamentale. 12. Chacun a droit à la protectioncontre tous traitements ou peinescruels et inusités. See Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002]1 SCR 3.

WAS THE DECISION THAT MR. MOHAMED CONSTITUTES A DANGER TO THE PUBLIC REASONABLE? [9] The Minister’s delegate’s analysis is not a pure analysis of law and, therefore, is entitled to deference; to a review on thereasonableness standard (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190). [10] Mr. Mohamed entered Canada in 1990 and was determined to be a Convention refugee. He became a permanent resident thefollowing year. [11] He has been convicted of various crimes, with greater violence being evident. He was convicted of assault with a weapon andconvicted on three counts of robbery.

His anger management issues have been fuelled by drugs and alcohol. [12] More recently, he completed a National Substance Abuse Moderate Intensity Program, a rehabilitation program which wasoffered to him while in custody. It is suggested that he is now able to recognize the link between his substance abuse and hisinvolvement in criminal activity. [13] What I find somewhat disturbing is that he was about to be let out of prison on parole. However, a halfway house was notavailable, and the authorities decided not to let him loose without supervision and control.

It might have been reasonable to conclude thathe did not constitute a danger. However, the Minister’s delegate interpreted these facts as suggesting that without supervision and controlhe is a danger. Although I may well have come to a different conclusion had I been the decision maker in first instance, I have to concedethat the decision was not unreasonable. As Mr.

Justice Iacobucci said in Canada (Director of Investigation and Research) v Southam Inc, (SCC), [1997] 1 SCR 748, 209 NR 20, at paragraph 80: I wish to observe, by way of concluding my discussion of this issue, that a reviewer, and even one who has embarked upon review on astandard of reasonableness simpliciter, will often be tempted to find some way to intervene when the reviewer him- or herself wouldhave come to a conclusion opposite to the tribunal’s. Appellate courts must resist such temptations.

My statement that I might not havecome to the same conclusion as the Tribunal should not be taken as an invitation to appellate courts to intervene in cases such as this onebut rather as a caution against such intervention and a call for restraint. Judicial restraint is needed if a cohesive, rational, and, I believe,sensible system of judicial review is to be fashioned. DANGER ON RETURN TO SOMALIA [14] The Minister’s delegate went into some length to describe Somalia as a lawless state, one of the most dangerous places onearth. She acknowledged a UNHCR plea that no one be sent back to Somalia.

However, under both the Convention and section 115(2) ofIRPA, we are not obliged to keep someone here who is a danger to the public. [15] Mr. Mohamed’s original refugee claim was based on political opinion. He opposed the Siad Barre regime which has now beenoverthrown. Nor is he at personal risk of torture or cruel and unusual treatment or punishment. There is a risk to his life. He is at risk oflosing his life in

an act of random violence. However, according to the Minister’s delegate, that is a generalized risk under

section 97 of

IRPA, a risk faced by everyone, in one form or another, everywhere in Somalia . [ 16 ] Mr. Mohamed’s counsel raised every point which could possibly be raised to support the proposition that his risk was personal. He would be returning as an educated westerner who would be out of place as he left more than 20 years ago. However, in her decision the Minister’s delegate pointed out that large numbers of Somalis go about their daily business under risks which are less than the balance of probabilities, the burden required under

section 97 of IRPA ( Li v Canada (Minister of Citizenship and Immigration) , 2005 FCA 1 , [2005] 3 FCR 239 ). [ 17 ] If the decision in first instance had been mine to make, I might have come to a different conclusion by giving more weight to reports from the United Nations, and less to the latest United Kingdom Report. However, in so doing, I would be merely weighing the evidence in a manner different from that of the Minister’s delegate. As per Dunsmuir and Southam , judicial restraint must be exercised, and so I cannot say that the danger opinion is unreasonable.

HUMANITARIAN AND COMPASSIONATE CONSIDERATIONS [ 18 ] The Minister’s delegate took account of the fact that Mr. Mohamed is estranged from his first wife and two children. Indeed, there are court orders against him. While he is separated from his second wife, she has supported him. The Minister’s delegate also took into account the best interest of his child with his second wife. His relatives are either in Canada or in the United States , but one cannot say they are particularly close. Again the analysis was not unreasonable.

SERIOUS QUESTION OF GENERAL IMPORTANCE FOR CERTIFICATION [ 19 ] As discussed at the hearing, counsel for the unsuccessful party, in this case Mr. Mohamed, shall have a reasonable opportunity to submit a serious question of general importance which would support an appeal. Given the Christmas recess, Mr. Mohamed shall have until Monday, 9 January 2012 to submit such a question or to inform the Registry to the contrary.

If a question is submitted, counsel for the Minister shall have until Monday, 16 January 2012, to reply. “Sean Harrington” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-4510-11 STYLE OF CAUSE: MOHAMED v MCI

PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA DATE OF HEARING: DECEMBER 7, 2011 REASONS FOR ORDER: HARRINGTON J. DATED: DECEMBER 14, 2011 APPEARANCES : Jennifer L. Godwin Peter Edelman FOR THE APPLICANT Caroline Christiaens FOR THE RESPONDENT SOLICITORS OF RECORD : Edelman & Co. Law Offices Barristers & Solicitors Vancouver , British Columbia FOR THE APPLICANT Myles J. Kirvan Deputy Attorney General of Canada Vancouver, British Columbia FOR THE RESPONDENT