Docket: IMM-8756-03
Citation: 2005 FC 337
Ottawa, Ontario, March 9, 2005
Present: The Chief Justice
BETWEEN:
JOSEPH MALONG KOCH AKUECH
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] On November 29, 1997, the applicant was issued an immigrant visa and record of landing
document as a permanent resident in Canada. His entry into Canada was facilitated by Canada's acceptance of his status as a Convention refugee recognized by the United Nations High Commissioner for Refugees. The applicant obtained his Convention refugee status while studying in Cuba under a tri-partite agreement among Ethopia, Cuba and Sudan, his country of birth.
[2] On October 26, 2001, the applicant was convicted of sexual assault pursuant to section 271 of the Criminal Code and sentenced to serve a three-year term of imprisonment. The assault was committed on September 4, 2000, in Lethbridge, Alberta.
[3] On November 28, 2002, a removal order was issued against the applicant. His appeal to the Immigration Appeal Division against the removal order was dismissed. Accordingly the applicant lost his permanent resident status. He has not been able to obtain Canadian citizenship. He is still a citizen of Sudan.
[4] On February 10, 2003, the minister's delegate issued an opinion that the applicant was "a danger to the public in Canada", pursuant to paragraph 115(2)(a) of the Immigration and Refugee Protection Act. The relevant statutory provisions read as follows:
| 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
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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, consitute un danger pour le public au Canada;
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[5] On October 24, 2003, the danger opinion was communicated to the applicant, just prior to his incarceration ending on the date of his statutory release. He was then transferred to immigration custody. On October 28, 2003, he was released by a member of the Immigration Division as a result of a detention review.
[6] The minister's delegate supported her opinion with a rationale which weighed the danger factors of the applicant remaining in Canada against his fears of returning to Sudan:
In coming to this opinion, I have weighed the following factors:
Mr. Koch Akuech fears return to the Sudan as he believes that other persons who were sent to Cuba disappeared after their return to Sudan. He also points out that he left that country when he was 10 years old so he does not know the country and has no support system there. Mr. Koch Akuech has been convicted of a very serious crime, sexual assault of a minor. He received a sentence of 3 years for this offence.
Mr. Koch Akuech has no family in Canada. He appears to have no support network in Canada. According to reports from his case management team at the institution, he has no firm action plan to follow upon release. He wants to go back to Brooks, Alberta, but the caseworkers are concerned that he will fall into the same pattern of drinking and partying with friends. Therefore, they are trying to encourage him to come up with a plan for release. In addition, they indicated that Mr. Koch Akuech has not adequately followed the recommended courses in sex offence. As an indication of this, full parole was denied to the offender.
It is true that Sudan does not have a good record in terms of human rights and there has been a civil war raging for many years. However, in July and October, talks in Kenya have been successful in coming to agreement on allowing human aid workers into the country and on allowing the south six years of self-rule before a referendum to decide whether or not it wishes to succeed.
On balance, I feel that the significant risk to the public in Canada must be given greater weight.
(Emphasis added)
[7] In my view, the rationale of the minister's delegate discloses an error in law. No where in her reasons did the minister's delegate conclude that the applicant was a danger to the public in Canada. Rather, she decided "on balance" that the applicant's ongoing presence in Canada was a greater danger to the public in Canada than the risk he might face upon his return to Sudan.
[8] It was incumbent on the minister's delegate to develop a clear, distinct and separate rationale and decision as to whether the applicant was a danger to the public in Canada. She was required to make this determination separate from and prior to any analysis of the risks which might result from his return to Sudan. In the circumstances of this proceeding, a discrete finding under ss. 115(2) that the applicant is a danger to the public in Canada must be made before the non-refoulement rights he may have under ss. 115(1) can be said not to apply to him. No such finding was made. Without such a finding, it was wrong for the Minister's delegate to embark on a balancing of danger factors against risk factors: see also Mahjoub v. Canada (Minister of Citizenship and Immigration), 2005 FC 156 at paragraph 56.
[9] For this reason, the application for judicial review will be granted. Neither party suggested certification of a serious question and none will be certified.
[10] I choose to make one or two closing comments.
[11] The danger opinion concerning this applicant was based in large measure on the reports of correctional officers, the last of which is dated September 2002. The danger opinion was made in February 2003, yet not communicated to the applicant until October 2003, at the time of his statutory release from incarceration. There is no information on the record to explain this delay. Also, because of the date of the danger opinion, there is no information concerning the applicant's behaviour during the last year of his incarceration.
[12] The applicant has been released from immigration detention since October 28, 2003. Again, there is little information before the Court to explain the difference, if any, between the danger opinion and the decision by the Immigration Division to order the applicant's release, one presumably made under Division 6 of the Immigration and Refugee Protection Act. The Court acknowledges the time that has lapsed to complete this proceeding. The applicant's status in Canada now merits expeditious review by the respondent.
ORDER
This application for judicial review is granted. The danger to the public in Canada opinion made by the minister's delegate on February 10, 2003, and communicated to the applicant on or about October 24, 2003, is set aside and remitted for redetermination by a different delegate.
"Allan Lutfy"
C.J.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-8756-03
STYLE OF CAUSE: Joseph Malong Kock Akuech v. MCI
PLACES OF HEARING: Edmonton, October 26, 2004 and continuation
Ottawa, December 14, 2004
DATES OF HEARING: October 26-27, 2004, and December 14, 2004
REASONS FOR ORDER BY: Chief Justice Allan Lutfy
DATED: March 9, 2005
APPEARANCES BY:
Ms. Wendy Bowman-Oake For the Applicant
780-429-3391
Mr. Rich Garvin For the Respondent
780-495-4317
SOLICITORS OF RECORD:
Ms. Wendy Bowman-Oake For the Applicant
John H. Sims, Q.C. For the Respondent
Deputy Attorney General of Canada