Date: 19980729
Dossier: IMM-3467-98
BETWEEN :
MOHAMED BULLE BARRE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM J.:
[1] On July 21, 1998, the applicant, Mohamed Bulle Barre, hereinafter referred to as "Barre" filed into the Federal Court Registry in Vancouver, B.C., a Notice of Motion for an Order staying the removal of the applicant to Somalia pending the outcome of the Application for Leave and for Judicial Review filed in this case.
[2] The Application for Leave and for Judicial Review in this case now before me is an application to review the decision made by Lisa Rae Devries, a removal officer with Citizenship and Immigration Canada, to remove Barre to Somalia. This decision was communicated to the applicant on July 6, 1998. As the applicant states in his Memorandum of Fact and Law filed with the Court for the stay proceedings, "The Applicant is not challenging the deportation order itself. The deportation order was made on July 6, 1998, and was based solely on the applicant's conviction for a criminal offence in Canada".
[3] Furthermore, the applicant states in his Memorandum of Fact and Law, "At this point, the Applicant is not even making any arguments with respect to whether the Minister's delegate erred in forming the opinion that he constituted a danger to the public in Canada" pursuant to section 70(5) of the Immigration Act which states:
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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 |
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(a) a member of an inadmissible class described in paragraph 19(1)(c), (c.1), (c.2) or (d); |
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(b) a person described in paragraph 27(1)(a.1); or |
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(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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[4] The applicant has filed a separate Application for Leave and Judicial Review with regard to that decision.
[5] Therefore, and as above stated, what is before me is a stay application to prevent the Minister from removing the applicant from Canada and to be returned to Somalia, his country of birth and citizenship.
[6] In order to better understand why it is that Canada wishes to remove the applicant from Canada and the legal issues arising out of the removal of the applicant from Canada to Somalia, I believe a detailed history of the applicant on who he is, why he came to Canada and what he did in Canada that has resulted in a deportation order being issued to remove the applicant from Canada.
[7] In an affidavit sworn to on July 22, 1998, Brad Young, an Immigration Officer states the following:
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The Applicant was born on February 18, 1965 in Bardera, Somalia. He was referred to Canadian Embassy officials in Rome, Italy by the United Nations High Commission for Refugees in 1990. The Applicant was landed in Canada as a Convention refugee on December 21, 1990. Attached and marked Exhibit "A" to this my Affidavit is a true copy of the Immigrant Visa and Record of Landing relating to the Applicant. |
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Commencing on November 4, 1992, when the Applicant was convicted in Toronto for assault contrary to section 266 of the Criminal Code, the Applicant has an ongoing criminal record in Canada, as outlined in a summary provided by the R.C.M.P. Identification Services, a true copy is attached to this my Affidavit as Exhibit "B". |
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On November 17, 1994, the Applicant was convicted in Toronto for assault using a weapon, mischief, and failing to comply with the conditions of a recognizance, all contrary to the Criminal Code, and was granted a sentence of 7 days imprisonment for the first charge, and three days imprisonment for the second charge, to be served concurrently. Attached as Exhibit "C" to this my Affidavit is a true copy of the Information and disposition relating to the Applicant. |
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On June 24, 1996, the Applicant was convicted in Vancouver for theft of a value not in excess of $5,000, contrary to section 334(b) of the Criminal Code and was granted a sentence of a $150 fine, or default sentence of 7 days imprisonment. Attached as Exhibit "D" to this my Affidavit is a true copy of the Information and disposition relating to the Applicant. |
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On August 19, 1996, the Applicant was convicted in Vancouver for knowingly uttering a threat with the intention to cause death or bodily harm, contrary to section 264.1 of the Criminal Code and was granted a suspended sentence, two years probation with conditions. Attached as Exhibit "E" to this my Affidavit is a true copy of the Information and disposition relating to the Applicant. |
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On or about July 19, 1996, the Applicant was convicted in New Westminster, B.C. for possession of a weapon, a knife, for a purpose dangerous to the public peace under s. 87 of the Criminal Code and for threatening death or bodily harm to a person, contrary to Section 264.1(1)(a) of the Criminal Code, and was sentenced to 9 months imprisonment for both charges, to be served concurrently, and a 3 year prohibition from having any weapons. Attached and marked as Exhibit "F" to this my Affidavit is a true copy of the Information and disposition relating to the Applicant. |
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[8] For ease of reference of the various offences for which the applicant was convicted, I include in this decision, exhibit "B" to the affidavit of Brad Young:
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1992-11-04 Assault Sec 266 CC Time served (4 days) plus |
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Toronto Ont 21 days & Probation 1 yr |
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1993-06-01 (1) Assault with a weapon (1) Time served (34 days) & |
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Toronto Ont Sec 267 (1)(A) CC 90 days intermittent & |
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(2) Fail to comply with (2) 90 days intermittent conc |
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1993-09-21 Assault Sec 266 CC 15 Days & Probation 6 mos |
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1993-09-24 (1) Assault Sec 266 CC (1) 45 days intermittent |
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Toronto Ont consec to sent serving & |
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(2) Fail to comply with (2) 15 days intermittent |
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recognizance consec & Probation 12 mos |
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1994-05-17 Fail to comply with Time served & 21 days |
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Toronto Ont recognizance Sec 145(3) CC |
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1994-08-05 (1) Poss of narcotics (1-2) Susp sent & Probation |
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Kitchener Ont Sec 3(1) N C Act 12 mos on each chg conc |
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1994-11-17 (1) Assault with a weapon (1) 7 days & (Time served |
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Toronto Ont Sec 267(1)(A) CC 60 days) |
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(2) Mischief under $1000 (2) 3 days conc |
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1996-06-24 Theft under $5000 $150 I-D 7 day(s) |
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Adult Court Sec 334(B) CC |
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Vancouver BC (BC030119603412) |
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1996-07-19 (1) Poss of a weapon |
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New Westminster Sec 87 CC |
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1996-08-19 Uttering threats |
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Vancouver BC (BC30119607838) |
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[9] On November 18, 1996, the applicant became the subject of a Report under section 27 of the Immigration Act. The applicant was as described in paragraph 27(1)(d) of the Act given the applicant's July 19, 1996 conviction. The applicant was also notified, by letter, on November 18, 1996 of the possible issuance of a Minister's Opinion pursuant to subsection 70(5) and 53(1)(d) of the Act, that he was a danger to the public. The applicant was invited to forward any representations, information or evidence regarding the issue of danger and any humanitarian and compassionate grounds or risk upon return to the country from which he sought refuge that could outweigh any danger that he might present. (see exhibit "H" to the affidavit of Brad Young) Counsel for the applicant sent in submissions on behalf of the applicant.
[10] On February 28, 1997, the Minister's delegate decided that in his opinion the applicant constitutes a danger to the public. On March 17, 1997 (affidavit of Brad Young in paragraph 15 states March 17, 1998 but exhibit "L" states March 17, 1997) a Report under section 27(3) of the Act was authorized directing that an inquiry be held to determine if the applicant is a person described in paragraph 27(1)(d) of the Act.
[11] On July 6, 1998 a deportation order against the applicant was issued pursuant to subsection 32(2) of the Act. On July 6, 1998 Brad Young and Lisa Rae Devries, the immigration officers assigned to the applicant's file met with the applicant to confirm deportation travel arrangements. The applicant does not contest the validity of the deportation order.
[12] As I have stated, on February 28, 1997, W.A. Sheppit, Minister's Delegate, Director General, Case Management, determined, pursuant to subsection 70(5) and paragraph 53(1)(d) of the Act that the applicant, Mohamed Bulle Barre constitutes a danger to the public in Canada.
[13] In coming to this conclusion, Mr. Sheppit, the Minister's Delegate, considered the following report signed by Bonnie Maystrenko, a Reviewing Officer, signed on February 25, 1997, Ian Munn, Senior Analyst signed on February 26, 1997 and the decision, on the report, signed by W.A. Sheppit, signed on February 28, 1997.
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Request for Minister's Opinion - A70(5) and A53(1)(d) |
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Applicant: BARRE, Mohammed Bull File: HQ8-12288 |
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Class: Permanent Resident Citizenship: Somalia |
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19July96 - Possession of a weapon, a knife, for a purpose dangerous to the public peace, Section 87 of CCC - Sentenced to 9 months imprisonment and prohibited from having any weapon for 3 years. |
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- Threaten Death or bodily harm to a person, contrary to Section 264.1(1) (a) of the CCC - Sentenced to 9 months imprisonment concurrent with the Section 87 conviction. |
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See judge's reasons, page 2, and counsel's submission page 3, for other convictions. |
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REMOVAL RISK CONSIDERATIONS |
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Counsel submits that "Mohamed would be at serious risk if he is returned to Somalia. He would be killed in Mogadishu because of his family background. Likewise, he would be killed if he went to the area around Kismayu because that area is controlled by General Morgan. He would be killed by the forces in this area because he deserted the military in 1988. It would also not be safe for him the north of Somalia because that area is controlled by the Issaq tribe. They know who he is and who his family is. He would be killed if he was sent there as well." |
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According to the Country Reports for Human Rights Practices for 1995, "Somalia has been without a central government since its last president, dictator Mohamed Siad Barre, fled the country in 1991. Subsequent fighting among rival faction leaders resulted in the killing, dislocation, and starvation of thousands of Somalis and led the United Nations to intervene militarily in 1992. |
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Widespread interclan fighting subsided in 1995, apart from occasional skirmishes in Mogadishu, Baidoa, and the lower Juba, and an ongoing conflict in the northwest. There was no progress, however, in reconciling the rival faction leaders and creating a new national government. In Mogadishu, faction leader Mohamed Farah Aideed was elected by his supporters to head a putative national government, while in the northwest, the breakway "Republic of Somalialand" continued to reclaim its independence. Neither administration, however, was recognized internationally. |
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The persistent absence of a central government led most regions to establish rudimentary local administrations, most based on the authority of the predominant clan and faction in the area. Local authority remained contested, however, in the lower Juba, parts of the northwest and Mogadishu... |
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Human rights abuses continued throughout the year. Due to the decrease in interclan fighting, however, there were fewer incidents of extrajudicial killing, rape and violations of humanitarian law than there had been in previous years. Other key problem areas remained the lack of political rights in the absence of a central authority, the reliance of some communities on harsh Sharia's punishments, societal discrimination against women, and the mistreatment of women and children, including the near universal practice of female genital mutilation." |
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Based on the above, the subject may be at risk upon return to Somalia, however, the danger to Canadian society outweighs any danger he may face upon return to Somalia. |
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REVIEWING OFFICER'S COMMENTS |
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I have reviewed the notification letter, the supporting documents identified in the letter, the danger opinion report and counsel's submissions. The foregoing documents comprise the entirety of the material provided to the Minister's delegate in support of the request that the Minister form an opinion that this person constitutes a danger to the public pursuant to section 70(5) and paragraph 53(1)(d) of the Immigration Act. |
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[14] It is important to note, that in the said Request for Minister's Opinion - A70(5) and A53(1)(d) is what I consider a detailed risk assessment under the heading Removal Risk Conditions.
[15] It is also important to note the last sentence under the heading Removal Risk Conditions, which states "Based on the above, the subject may be at risk upon return to Somalia, however, the danger to Canadian society outweighs any danger he may face upon return to Somalia" [underlining mine]
DISCUSSION
[16] As I have stated and I believe it is important to repeat, the applicant is not challenging the deportation order itself nor did the applicant, for the purposes of the present application for stay make any serious submission with respect to whether the Minister's delegate erred in forming the opinion that he constituted a danger to the public in Canada.
[17] A preliminary issue raised by the respondent is that this Court does not have jurisdiction to order a stay when there is no actual challenge to the deportation order. After a reading of the decision of Mr. Justice Campbell in the case of Muncan v. MCI IMM-2701-97, February 24, 1998 (unreported) F.C.T.D., I state that I agree with him that pursuant to section 18.2 of the Federal Court Act, I have the necessary jurisdiction to hear an application for stay where there is no actual challenge to the deportation order.
[18] In the case of Toth v. Canada (1988) 6 Imm. L.R. (2nd) 123, the Federal Court of Appeal has held that on an application for an order staying the execution of a deportation order, the applicant must show: 1) that he has raised a serious issue to be tried, 2) he would suffer irreparable harm if the order was executed and 3) the balance of convenience considering the total situation of both parties favours the applicant.
[19] I am satisfied after reading all the material placed before me, including the jurisprudence, that the applicant has failed to convince me that he has a serious issue to be tried and that the balance of convenience does not favour the immediate carrying out of the deportation order.
SERIOUS ISSUE TO BE ARGUED
[20] The applicant, in setting forth his submission on this requirement of the Toth (supra) test relies entirely on the decision of Mr. Justice Gibson in Farhadi v. MCI IMM-3236-96 and IMM-566-97 March 20, 1998 (unreported) F.C.T.D.
[21] The applicant, in his written submission states the following:
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The Applicant relies on the decision in Farhadi v. The Minister of Citizenship and Immigration, IMM-3846-96 and IMM-566-97, March 20, 1998, as authority that there is a serious issue to be tried in this case. The Farhadi case dealt with an individual in a similar position as the Applicant. In that case, there was an indication that the person would face torture if he were removed to Iran. He had been landed under the "backlog program" without a full hearing into his refugee claim. There was no formal examination of the risk that the individual in the Farhadi case would face if he was removed to Iran. |
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In examining whether the Minister's delegation in that case committed a reviewable error in finding that Farhadi was a danger to the public. Gibson J. stated the following at page 21: |
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Thus, I conclude, the respondent's delegate committed no reviewable error in issuing the danger opinion under review, without deciding or concluding on the issue of risk, on the facts that were before the delegate at that time. No requirements of natural justice or fundamental justice can be said to have been breached by the limited process then engaged in to examine the risk the applicant would face if removed from Canada to Iran and to weigh that risk against the danger the applicant would pose to the Canadian public. |
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On the other hand, in assessing whether the removal decision itself satisfied the principles of natural justice and fairness, Gibson J. stated the following: |
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In oral argument before me, counsel for the respondent did not strongly contest the proposition that removal, in the face of a credible allegation of risk of torture, requires that a risk assessment be conducted and that a risk determination follow. I am satisfied that the danger opinion process simply did not amount to a risk assessment and determination and that, if it did, it provided insufficient attributes of natural justice and fundamental justice, given the potential implications of a risk assessment decision adverse to the applicant. Further, there was absolutely no evidence before me that the removal decision process involved any risk assessment and determination whatsoever. |
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Previous decisions of this Court, at least impliedly, reflected upon the importance of a risk assessment prior to deportation to a state where the deportee fears persecution... |
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In summary then, I conclude the applicant is entitled to a risk assessment and determination apart from the danger certification process that has already taken place. Such an assessment, to support a decision to remove the applicant to Iran, would have to be conducted in accordance with the principles of natural justice and fundamental justice and rendered by a competent authority. |
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The Applicant is in a similar situation to the applicant in Farhadi. Although he does not claim specifically that he will be tortured, he fears that something worse will happen to him. He believes that he will be killed if he is removed to Somalia because of his membership in his clan and because his own clan will feel that he has betrayed them. |
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There has been no examination of the risk that the Applicant will face if he is returned to Somalia. |
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The Applicant submits that there is a serious issue as to whether the decision made by Lisa Rae Devries should be quashed and a risk assessment completed with respect to the Applicant. |
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[22] Let me first state that I am satisfied a risk assessment must be made before an individual such as the applicant is returned to the country where he is a citizen.
[23] Unlike, in the case of Farhadi, where Mr. Justice Gibson states "I am satisfied that the danger opinion process simply did not amount to a risk assessment and determination and that, if it did, it provided insufficient attributes of natural justice and fundamental justice; given the potential implications of a risk assessment decision adverse to the applicant" I am satisfied that in the Request for Minister's Opinion - A70(5) and A53 (1)(a) (supra) there is a detailed risk assessment.
[24] If my reading of Mr. Justice Gibson's decision is correct, then it would appear that it is his opinion that there must be a separate or stand-alone risk assessment.
[25] I find no such requirement in the law nor do I accept the submission that this is a requirement for the purpose of fairness or natural justice. I do not accept the proposition, as stated by Mr. Justice Gibson in Farhadi, that the applicant is entitled to a risk assessment and determination apart from the danger certification.
[26] Therefore, and as I have said, the applicant was given a risk assessment in accordance with fairness and natural justice and therefore fails to show a serious issue to be argued.
BALANCE OF CONVENIENCE
[27] The applicant makes the following submission in his written argument:
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Considering that the Applicant faces a serious risk of harm if he is removed to Somalia and considering that there is an obligation on the Respondent in this kind of case to undertake a risk assessment with respect to an individual before returning him to a country where he faces persecution, it is the Applicant's submission that the balance of convenience favours staying the removal of the Applicant until the final determination of this Application for Leave and for Judicial Review. |
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[28] It is stated in the Request for Minister's Opinion - A70(5) and A53(1)(d):
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Based on the above, the subject may be at risk upon return to Somalia, however, the danger to Canadian society outweighs any danger he may face upon return to Somalia. |
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[29] I am satisfied that in considering the issue of Balance of Convenience, the prime consideration is not the risk to the applicant if returned to his country of citizenship but the risk to Canada and to the citizens of Canada.
[30] The facts in the present case is an excellent example where there has been serious risk to the citizens of Canada and, based on the applicant's past criminal record, could be a serious danger to Canadian Society.
[31] The applicant was landed in Canada as a convention refugee on December 21, 1990. He was, I assume, granted refugee status because of the serious risk he would face if he returned to Somalia from Italy. He was given an opportunity to live in a free and democratic country where no one fears persecution . How does the applicant repay Canada for this opportunity? He embarks on his career of crime.
[32] In determining the balance of convenience, the type of crime committed must be considered and how that crime may affect the individual canadian. For example, if the crime is trafficking in drugs, this crime can be most serious as it affects the lives of young and older canadians at a considerable cost to the canadian taxpayer.
[33] Therefore the issue of balancing must be taken into account and without any doubt this issue was considered in the present case. The balance of convenience certainly does not favour the applicant.
IRREPARABLE HARM
[34] This issue was also considered by the respondent when, as the report states, "the subject may be at risk".
[35] I agree that the applicant may be subject to risk or may be subject to irreparable harm but this fact alone is not sufficient reason not to be removed from Canada.
CONCLUSION
[36] The applicant has failed to show an arguable case nor that the balance of convenience favours not carrying out the valid deportation order.
[37] The respondent is not bound by law or by fairness or by natural justice to hold a "stand alone" risk assessment and the fact that an applicant may be at serious risk if removed from Canada is not reason alone for such a person to remain in Canada if he has been determined to be a danger to the canadian public pursuant to section 70(5) and paragraph 53(1) of the Immigration Act.
[38] I am satisfied Canadian Immigration Policy was not made to allow criminals, who were determined to be refugees, to remain in Canada. The protection of the canadian citizen is of prime importance. It is not the refugee who commits serious criminal acts in Canada and who has been, pursuant to section 70(5) determined a danger to the public in Canada.
[39] The application for stay is denied.
Judge
OTTAWA, Ontario