Federal Court Decisions

Date: 20051118

Docket: IMM-10360-04

Citation: 2005 FC 1547

Ottawa, Ontario, November 18, 2005

PRESENT:    THE HONOURABLE MR. JUSTICE BLAIS

BETWEEN:

ANTHONY ARINZE

Applicant

and

THE SOLICITOR GENERAL OF CANADA

Respondent

REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of G.C. Alldridge (the Minister's delegate), dated December 1, 2004, in which Anthony Arinze (the applicant) was determined to constitute a danger to the public in Canada pursuant to paragraph 115(2)(a) of the Act.

FACTS

[2]                 The applicant is a citizen of Nigeria who was granted Convention refugee status in Canada on June 11, 1991. He applied for and obtained permanent resident status and was landed on October 22, 1992.

[3]                 Following his designation as a permanent resident, the applicant committed approximately 14 Criminal Code offences. As a result of numerous convictions, a report was written on May 6, 1998 pursuant to paragraph 27(1)(d) of the former Immigration Act. Following this report, a deportation order was issued on June 11, 1998. On January 11, 1999, an appeal to the Immigration Appeal Board against the deportation order resulted in the issuance of a stay of removal for a period of five years. This stay was conditional on the applicant's ability to keep the peace and be of good behaviour.

[4]                 The stay of removal was lifted following the applicant's 2003 Criminal Code convictions. On November 18, 2003, the applicant was informed of the intention of local officials to seek an opinion from the Minister that he was a danger to the public which could result in his removal from Canada.

[5]                 On December 1, 2004, the Minister's delegate issued the opinion that the applicant constituted a danger to the public, pursuant to paragraph 115(2)(a) of the Act.

[6]                 Since 1994, the applicant was convicted of approximately 28 Criminal Code offences.

ISSUES

1. Didthe Minister's delegate err in finding that the applicant was a danger to the public in Canada?

2. Did the Minister's delegate fetter his discretion and absent all the facts, unfairly reached a decision?

ANALYSIS

1.       Did the Minister's delegate err in finding that the applicant was a danger to the public in Canada?

[7]                 The danger opinion prepared in relation to the applicant is governed by the provisions of section 115 of the Act. The operative portions of section 115 provide as follows:

[8]                 Pursuant to paragraph 115(2)(a) of the Act, a valid danger opinion must be completed by the Minister in order for the Convention refugee to be removed from Canada. The removal from Canada of a person recognized as a Convention refugee is an exception to the principle of non-refoulement found in subsection 115(1) of the Act: that is, a person who has been found to be a Convention refugee should not be returned to the country where they would be at risk of persecution.

[9]                 There are two elements that must be established in order to support the issuance of a danger opinion under paragraph 115(2)(a) of the Act. The individual in question must be inadmissible on the basis of serious criminality and he or she must, in the opinion of the Minister, constitute a danger to the public in Canada.

[10]            Section 36 of the Act describes the concept of serious criminality in the following manner:

[11]            In this case, it is common ground that the applicant has been convicted of approximately 28 Criminal Code offenses since 1994, one in which a term of imprisonment of more than six months had already been imposed. I am satisfied that this is sufficient to establish the 'serious criminality' requirement under paragraph 115(2)(a) of the Act.

[12]            I will now address the second element in support of the issuing of a danger opinion, that is, whether the applicant constitutes a danger to the public.

[13]            In Thuraisingam v. Canada (Minister of Citizenship and Immigration), 2004 FC 607, [2004] F.C.J. No. 746, while commenting on how to prepare a danger opinion pursuant to section 115 of the Act, Justice Mactavish adopts the reasoning of the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R 3:      

As the Supreme Court of Canada noted in Suresh, supra, deportation to torture may deprive a refugee of the right to life, liberty or security. In determining whether this deprivation accords with fundamental justice, a balancing exercise must be carried out, weighing the protection of Canada's security interests against the refugee's interest in not being deported to torture. A similar exercise must be carried out when the danger opinion is based upon serious criminality.

[14]            In Ragupathy v. Canada (Minister of Citizenship and Immigration), 2005 FC 834, [2005] F.C.J. No. 1044, Chief Justice Lutfy maintains the reasoning of Suresh (supra) in that a balancing act must be carried out when determining if someone poses a danger to the public interest pursuant to section 115 of the Act. That is, a comparison must be performed regarding the protection of the public interest versus the protection of the refugee's interest in not being deported to torture. However, Chief Justice Lutfy has a preference as to how such an analysis should be structured and states at paragraph 10:

I continue to hold the view that the Minister's delegate must develop "a clear, distinct and separate rationale" as to whether the applicant is a danger to the public in Canada: Akuech v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 420, 2005 FC 337 at paragraph 7. This initial determination must be made independently from any consideration and balancing of the competing interests concerning the Convention refugee's presence in Canada or the injustice that could be caused to the individual upon deportation.

[15]            While Chief Justice Lutfy has expressed favoring a process whereby risk factors are not analyzed and taken into consideration until after a danger to the public determination has been made, he has acknowledged that it is the prerogative of the Minister and his or her delegate to choose the best procedures in making a danger opinion pursuant to section 115 of the Act. He states at paragraph 13:

In Suresh, the Supreme Court of Canada made clear that courts should exercise deference to the Minister's choice of procedures on how best to make a danger opinion. It is not for this Court to dictate to the Minister or his delegates on how best to structure a danger opinion. However, I am concerned that a danger opinion that begins with risk assessments prior to a clear, distinct and separate rationale that the applicant is in fact a danger to the public in Canada will lead to confusion.

[16]            I agree with Chief Justice Lutfy, in that a separate straightforward determination of whether the applicant is a danger to the public, independent of risk factors, needs to occur. However, I believe this can occur even if the Minister's delegate does not follow the preferred order of analysis regarding the making of a danger opinion, as outlined by Chief Justice Lutfy.

[17]            In the present case, the Minister's delegate analyzed the risk of persecution and torture the applicant would face if sent back to Nigeria before determining whether or not he is a danger to the public in Canada.

There is no indication in the material before me that Mr. Arinze would be of any interest to Nigerian authorities. He left that country in 1990 - some 14 years ago at the age of 26. There is no indication in the material before me that Mr. Arinze is wanted in Nigeria for having committed any criminal offences nor any indication that he would be punished there for the crimes he had committed in Canada. There is no doubt that he would be questioned upon arrival in Nigeria as is the case for virtually every deportee to any country but there is no indication that Mr. Arinze would be detained or otherwise subjected to ill treatment upon return.

(Decision of the Minister's delegate, respondent's record, tab 1 page 5)

[18]            Although this is not the preferred procedure outlined by Chief Justice Lutfy in Ragupathy (supra), I am of the opinion that the Minister's delegate was still able to provide a separate straightforward determination of whether the applicant is a danger to the public, independent of risk factors.

[19]            In order to make a finding on whether or not the applicant is a danger to the public, the Minister's delegate took into consideration the nature and frequency of the crimes committed. He had cogent evidence upon which to assess and then discretionally articulate the danger the person concerned poses to the security of Canada.

Pursuant to paragraph 115(2)(a) of IRPA, the second element of my determination involves an assessment of the danger that Mr. Arinze might or would pose to the public in Canada. I note that the numerous offences that Mr. Arinze has been convicted of do not involve the issue of physical violence against his victims. Having said that, I find that the personation through the use of fraudulently obtained credit cards and other means causes great mental stress to victims of this type of crime. Mr. Arinze has had in his possession identification for approximately 19 people. This is a potential group of 19 persons whose finances he is able to disrupt [...] It is for these reasons that I find that Mr. Arinze through the use of personation and identity theft poses both a current danger to the public and, as a result of this pattern of criminal activity, I see nothing that would provide me with a level of comfort that he will not continue on in the pattern of activity in the future.

(Decision of the Minister's delegate, respondent's record, tab 1, pages 7-8)

[20]            A danger opinion pursuant to section 115 of the Act is a discretionary determination made on the part of the Minister's delegate that has been assigned great deference on the part of this Court. In Thuraisingam v. Canada(Minister of Citizenship and Immigration) (supra), Justice Mactavish concludes that a danger opinion should only be set aside by this Court if it is patently unreasonable. She states a paragraphs 26-28:

In Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1, the Supreme Court of Canada noted that the discretionary determination of whether someone constitutes a danger to the security of Canada is one that calls for considerable deference:

The court's task ... is to determine whether the Minister has exercised her decision-making power within the constraints imposed by Parliament's legislation and the Constitution. If the Minister has considered the appropriate factors in conformity with these constraints, the court must uphold her decision. It cannot set it aside even if it would have weighed the factors differently and arrived at a different conclusion. (at para. 38)

A danger opinion should only be set if it is patently unreasonable - that is, if it was arbitrary, if it was made in bad faith, if it was not supported by the evidence, or if the Minister's delegate failed to consider the appropriate factors. (Suresh, supra, at paragraph 29)

[21]            The applicant submits that the nature of his convictions is insufficient to classify him as a danger to the public, pursuant to subsection 115(2) of the Act. He argues that these incidents are no more than "minor economic offences" in which violence was not a factor and as such, they should not be used to classify him as a danger to the public.

[22]            I disagree with the applicant's reasoning regarding section 115 and the parallel he draws between violent acts and the danger to the public classification. The wording of section 115 does not include limitations to only particular types of offences. It leaves the consideration of whether an individual constitutes a danger to the public to the discretion of the Minister's delegate. The Minister's delegate considered that violence was not used in the commission of the applicant's offences, but also acknowledged the number of crimes committed, their continuing nature, and the serious effect such crimes can and do have on the Canadian public. After weighing all the evidence before him, the Minister's delegate determined the applicant was a danger to the public based on the nature of his crimes.

[23]            What the applicant is really asking the Court to do is to re-weigh the evidence that was before the Minister's delegate. It is not the function of this Court to re-weigh the evidence of a discretionary decision. This evidence was sufficiently reliable to warrant the conclusion that the applicant is a danger to the public in Canada. Further, I find that applicant has failed to illustrate that the Minister's delegate improperly exercised his discretion, or made any other reviewable error.

2.       Did the Minister's delegate fetter his discretion and absent all the facts, unfairly reached a decision?

[24]            The applicant also submits that the Minister's delegate failed to consider or weigh relevant information provided by the applicant which illustrates that he does not pose a threat or danger to the public. The applicant suggests that in failing to take into account evidence that portrayed the applicant in a positive, non-violent way, the Minister's delegate fettered his discretion and unfairly reached a decision absent all the facts.

[25]            It is well established law that the decision-maker does not have to refer to every piece of evidence in its reasons. As stated by the Federal Court of Appeal in Florea v. Canada(Minister of Employment and Immigration), [1993] F.C.J. No. 598 at paragraph 1:

The fact that the Division did not mention each and every one of the documents entered in evidence before it does not indicate that it did not take them into account: on the contrary, a tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown.

[26]            The decision maker, in this case the Minister's delegate, is presumed to have considered all the evidence unless the contrary can be shown. The Minister's delegate confirms in his decision that he consulted the entirety of the submissions from the applicant in coming to his conclusion and I find that the applicant has failed to demonstrate the opposite to be true.

[27]            The applicant suggests a question for certification:

Can a non violent economic crime constitute a danger to the public within the meaning of section 115 of the Act?

[28]            The respondent opposes the certification of this question. In my view, this is not a question of general importance but a question of fact; therefore, this question will not be certified.

ORDER

THIS COURT ORDERS that:

• The application for judicial review be dismissed;
• No question for certification.

"Pierre Blais"

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-10360-04

STYLE OF CAUSE:                        

ANTHONY ARINZE

Applicant

and

THE SOLICITOR GENERAL OF CANADA

Respondent

PLACE OF HEARING:                    Halifax

DATE OF HEARING:                       October 31, 2005

REASONS FOR ORDER AND ORDER:             BLAIS J.

DATED:                                              November 18, 2005

APPEARANCES:

Elizabeth A. Wozniak	FOR THE APPLICANT
Melissa R. Cameron	FOR THE RESPONDENT

SOLICITORS OF RECORD:

Cragg Wozniak, Halifax	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT