PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] For the third time in four years, a Minister's Delegate has found that Niranjan Claude Fabian is a danger to the public in Canada. Minister's Delegates have also twice found that Mr. Fabian would not be at substantial risk of torture or cruel and unusual punishment, were he to be returned to Sri Lanka.
[2] By this application, Mr. Fabian seeks to challenge the most recent danger opinion, asserting that the Minister's Delegate erred in determining that he was a danger to the public in Canada, by relying exclusively on his long-standing criminal convictions, without reference to, or consideration of, any other factors which would indicate that he poses a danger to the public.
[3] Mr. Fabian also says that the Minister's Delegate erred in assessing the risk that he faces in Sri Lanka by ignoring important evidence relating to that risk, and by applying an incorrect legal standard in finding that there had been a sufficient change in circumstances in Sri Lanka as to make it safe for him to return.
[4] For the reasons that follow, I am satisfied that the Minister's Delegate did not err, and that, as a result, the application will be dismissed.
Background
[5] This matter has had a long and tortuous history, and it is necessary to have some understanding of what has gone on in the past, in order to put the issues raised by this application into context.
[6] Mr. Fabian was born in Sri Lanka in 1968. In 1986, he was first taken into custody by Sri Lankan authorities. While in detention, he was beaten and tortured.
[7] Mr. Fabian left Sri Lankathat year, traveling to England, where he remained until 1990. He then returned to Sri Lanka, believing that it would be safe for him to do so. He was again arrested, and was interrogated at some length about his activities in England. In the course of his detention, Mr. Fabian was accused of having been involved with the Liberation Tigers of Tamil Eelam ("LTTE") in Sri Lanka.
[8] After paying a bribe, Mr. Fabian was released from custody, whereupon he fled to Canada, arriving here in June of 1990. On his arrival in this country, Mr. Fabian claimed refugee protection. His claim was ultimately accepted, and Mr. Fabian became a permanent resident of Canada in 1995.
[9] In 1998, Mr. Fabian was identified by the Metropolitan Toronto police as the second or third in command of the "VVT", a violent criminal Tamil gang active in the Greater Toronto Area.
[10] That same year, Mr. Fabian was convicted of conspiring to commit an assault causing bodily harm, conspiring to commit an indictable offence (forgery of a Canadian passport) and attempting to obstruct justice. For these offences, Mr. Fabian was sentenced to seven months imprisonment, in addition to the nine months that he had already spent in pre-trial detention. He was also put on probation for an additional two years.
[11] At the time of Mr. Fabian's sentencing, Justice Wake of the Ontario Court (Provincial Division) stated that:
In order to assess the criminality of Mr. Fabian's activities and to assess a proper sentence, I must consider that he was prepared, in order to protect his interest in the illicit trade of passports, to go as far as to resort to violence, in which innocent third parties could have been harmed. The full extent of his criminal activities and his criminal mindset discloses very little respect for the law.
Clearly if this is his mindset and that of his confederates with whom he was dealing, then the element of specific deterrence and general deterrence have a very real significance in sentencing.
I have to bear in mind that it is this criminal mindset reflected in the agreements which are the foundation of the conspiracy charges, and which are the evil to which this sentencing must be directed.
[12] Following the completion of his sentence, Mr. Fabian was detained under the provisions of the Immigration Act. In addition, Mr. Fabian was found to be a danger to the public, and was ordered deported from Canada in August of 1998, pursuant to section 53(1)(d) of the Immigration Act, as a result of his criminal convictions. An application for judicial review was then brought with respect to this decision.
[13] Mr. Fabian remained in immigration detention until July of 2000, when he was released on terms and conditions, including the condition that he not associate with any known criminals. Shortly after his release, Mr. Fabian was observed meeting with a fellow leader of the VVT, in breach of the conditions of his release. However, Mr. Fabian was not taken into custody at this time.
[14] Mr. Fabian says that the meeting was a chance encounter, and that he reported the incident to the authorities.
[15] In September of 2001, Mr. Fabian was arrested and charged with credit card fraud over $5000, and with breach of trust. The breach of trust charge related to an alleged sophisticated scam run through the gas station where Mr. Fabian worked. At this point, Mr. Fabian was taken back into custody.
[16] Although these criminal charges were withdrawn in the Spring of 2002, Mr. Fabian has remained in immigration detention to this day. While his detention has been reviewed periodically by the Adjudication Division (latterly known as the Immigration Division) of the Immigration and Refugee Board, Mr. Fabian has remained in custody as a result of the Board's finding that he has not been rehabilitated, and continues to be a danger to the public.
[17] In March of 2002, this Court quashed the 1998 danger opinion, on the consent of the parties, as the requirements of procedural fairness articulated by the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1, had not been followed in Mr. Fabian's case.
[18] In December of 2002, a second danger opinion was issued, again concluding that Mr. Fabian was a danger to the public in Canada. The Minister's Delegate also found that Mr. Fabian would not face persecution, torture or cruel and unusual punishment if he were returned to Sri Lanka and, as a result, allowed for his removal to that country.
[19] Mr. Fabian's removal was then stayed by order of this Court, and on December 30, 2003, the second danger opinion was quashed by order of Justice Russell: Fabian v. Canada(Minister of Citizenship and Immigration), 2003 FC 1527.
[20] Justice Russell was satisfied that the Minister's Delegate's finding that Mr. Fabian no longer faced a risk of torture from State authorities as a result of the change of conditions within Sri Lanka was reasonable and ought not be disturbed.
[21] Justice Russell was also satisfied as to the serious nature of Mr. Fabian's criminal activities. In relation to the fact that Mr. Fabian was involved in dealing in forged passports, Justice Russell found no error in the Delegate's conclusion that this sort of activity would be viewed by any reasonable observer to be the sort of activity that could be related to potentially assisting terrorists.
[22] However, Justice Russell found that the Minister's Delegate erred in assessing the threat posed to Mr. Fabian by the LTTE, by ignoring evidence relating to an alleged death threat supposedly emanating from the LTTE. As a consequence, the danger opinion was set aside, and the matter referred back for re-determination.
[23] On June 14, 2005, a third danger opinion was issued with respect to Mr. Fabian, again concluding that he poses a danger to the public in Canada, and that he would not be at substantial risk of torture or cruel or unusual punishment in Sri Lanka. It is this opinion that forms the subject matter of this application for judicial review.
The Minister's Delegate's Decision
[24] The Minister's Delegate found that Mr. Fabian's criminal activities, and, in particular, his admitted involvement with a criminal gang, were very serious, and that he was a likely re-offender whose presence in Canada posed an unacceptable risk to the public.
[25] The Minister's Delegate did not accept Mr. Fabian's explanation that his meeting with a known VVT leader shortly after his release from detention in 2000 was a 'chance encounter', noting that the donut shop where the meeting took place was a well-known gang meeting spot. Moreover, the police observed that on his arrival at the donut shop, the gang leader went directly to Mr. Fabian's car, and that the meeting lasted some ten minutes.
[26] With respect to Mr. Fabian's claim that he had reported this meeting to the authorities, the Minister's Delegate noted that there was some doubt as to whether this reporting actually took place, as the immigration officer allegedly involved reportedly did not recall any mention of such a meeting. Whether or not the meeting was reported, the Minister's Delegate found that it took place, and that Mr. Fabian did not actively try to avoid it, demonstrating very poor judgment.
[27] In relation to the question of rehabilitation, the Minister's Delegate was not satisfied that the passage of time alone provided a basis for concluding that Mr. Fabian no longer posed a danger to the public. While noting the various submissions, expressions of remorse and letters from social workers, clerics, friends and family filed in support of Mr. Fabian, the Minister's Delegate pointed out that similar letters had been submitted in support of Mr. Fabian's release from detention in 2000, yet he proceeded to violate the terms of his release order within days of his release. The Delegate thus found that Mr. Fabian's past conduct weakened the impact of these submissions, and that Mr. Fabian had not persuaded him that he had fundamentally changed his ways, or that he would no longer be a danger if released.
[28] Having determined that Mr. Fabian was still a danger to the public, the Minister's Delegate then turned to the question of whether he faced a substantial risk of torture or cruel or unusual treatment or punishment if returned to Sri Lanka.
[29] In this regard, the Minister's Delegate canvassed the documentary evidence before him, noting that while no permanent solution had been found to resolve the long-standing conflict in Sri Lanka, there was a peace process in place. While there was still some violent activity occurring, it was limited to specific regions, namely the Batticaloa and Trincomalee areas.
[30] Insofar as the treatment experienced by individuals returning from abroad was concerned, Dutch, Swiss, British and United Nations High Commission for Refugees reports all indicated that returning nationals no longer seem to face the same "inappropriate attention" that they used to.
[31] The Minister's Delegate then addressed Mr. Fabian's specific circumstances, finding that while there had been press reports in Canadian and Sri Lankan newspapers about his activities in Canada, there was no indication of sustained reporting or interest by the press or other groups that would appear to have raised his profile or jeopardized his return to Sri Lanka.
[32] Moreover, the Minister's Delegate found that any profile that Mr. Fabian might have had could operate to his benefit, as the international and human rights community would be monitoring his status in Sri Lanka upon his return.
[33] The Minister's Delegate gave little weight to the evidence concerning the alleged death threat that Mr. Fabian said he received from a member of the LTTE in 1999 or 2000, as there was no corroborating evidence of the threat, few details about how the death threat was conveyed, and no explanation as to why Mr. Fabian believed the threat remained in force. The Delegate also noted that there was no evidence that the threat has been repeated during the past few years, at a time when things had changed politically in Sri Lanka.
[34] The Delegate also noted that the violent activity that had been reported had taken place in the eastern part of Sri Lanka, an area with which Mr. Fabian had no connection, and have involved individuals who are actively engaged in the activities of the LTTE or other militant groups. Mr. Fabian asserts that he has no connection with the LTTE, and thus is unlikely to be targeted.
[35] The Minister's Delegate found that there was no evidence that Mr. Fabian was at greater danger than were other Sri Lankans who would be returning to that country. As a consequence, the Delegate concluded that Mr. Fabian faced no reasonable chance of persecution, torture or cruel and unusual punishment from the Sri Lankan authorities if he were returned to Sri Lanka.
[36] Finally, the Minister's Delegate considered the humanitarian and compassionate aspects of Mr. Fabian's situation, noting in particular that many of his family members are in Canada, and that he has a young daughter in this country. However the Delegate observed that because of his long-term incarceration, Mr. Fabian had lived apart from his daughter for most of her life. In all of the circumstances, family considerations did not outweigh the Delegate's concerns about the danger Mr. Fabian posed to the public in Canada.
Issues
[37] Mr. Fabian asserts that the Minister's Delegate's finding that he was a danger to the public in Canada was unreasonable, in that the Delegate relied exclusively on his long-standing criminal convictions, without reference to, or consideration of, any other factors which would indicate that he still poses a danger to the public.
[38] Mr. Fabian further asserts that the Minister's Delegate erred in his assessment of the conditions within Sri Lanka by ignoring material evidence.
[39] Finally, Mr. Fabian says that the Minister's Delegate applied an incorrect legal standard in determining that circumstances within Sri Lanka had changed such that Mr. Fabian was no longer at risk.
Standard of Review
[40] In Ahani v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 72, 2002 SCC 2, at ¶ 16, the Supreme Court of Canada indicated that the determination that an individual constitutes a danger to the security of Canada is to be reviewed against the standard of patent unreasonableness. That is, the question for the Court is whether the decision in question was made arbitrarily or in bad faith, cannot be supported on the evidence, or did not take into account the appropriate factors. The Court is not to reweigh the relevant factors, or otherwise interfere, merely because it would have come to a different conclusion.
[41] With respect to the question of whether Mr. Fabian faces a substantial risk of torture should he be removed to Sri Lanka, the Supreme Court in Ahani stated at ¶ 17 that:
[T]he court may intervene only if the Minister's decision is not supported on the evidence, or fails to consider the appropriate factors. The reviewing court should also recognize that the nature of the inquiry may limit the evidence required. While the issue of deportation to risk of torture engages s. 7 of the Charter and hence possesses a constitutional dimension, the Minister's decision is largely fact-based. The inquiry into whether Ahani faces a substantial risk of torture involves consideration of the human rights record of the home state, the personal risk faced by the claimant, any assurances that the claimant will not be tortured and their worth and, in that respect, the ability of the home state to control its own security forces, and more. Such issues are largely outside the realm of expertise of reviewing courts and possess a negligible legal dimension. Considerable deference is therefore required.
[42] Both parties are of the view that the standard of review applicable to all of the issues raised in this application is that of patent unreasonableness. Based upon the decision in Ahani, previously cited, which dealt with the predecessor provision to section 115(2)(a) of the Immigration and Refugee Act, I agree that this is clearly the standard of review to be applied with respect to Mr. Fabian's first and second issues.
[43] Insofar as Mr. Fabian's third issue is concerned, that is, his claim that the Minister's Delegate applied an incorrect legal standard in assessing the change in circumstances within Sri Lanka, this issue appears, on its face, to raise a question of law. As a consequence, this aspect of the Minister's Delegate's decision arguably could attract a less deferential standard of review. However, for reasons that will be explained in the course of my analysis, I am satisfied that what Mr. Fabian takes issue with is, at its heart, a finding of fact made by the Minister's Delegate. As such, the standard of review applicable to this finding is indeed that of patent unreasonableness.
Analysis
[44] The first issue for the Court is to determine whether the Minister's Delegate erred in finding that Mr. Fabian still poses a danger to the public in Canada, by relying exclusively on his long-standing criminal convictions, without reference to, or consideration of any other relevant factors.
[45] While acknowledging that this is the third time that Mr. Fabian has been found to be a danger to the public in Canada, and that Justice Russell found a previous finding to this effect to be reasonable, Mr. Fabian nonetheless says that in this case, the Minister's Delegate relied unduly on his criminal convictions, without properly considering other relevant factors. In particular, he points to the fact that he has not been convicted of any criminal offences in a number of years, submitting that, at some point, his record has become so old that its significance diminishes.
[46] A review of the Minister's Delegate's decision discloses that he was well aware of the fact that Mr. Fabian's last criminal convictions were in 1998. It also discloses that the Delegate did not base his decision solely on the fact of these convictions. The Minister's Delegate was also concerned with the nature of these convictions, specifically the conviction for passport fraud.
[47] Moreover, the Delegate was also concerned by Mr. Fabian's apparent willingness to disregard the conditions of his release, by meeting with a VVT leader within days of his release from detention.
[48] The Minister's Delegate was also quite reasonably of the view that the fact that Mr. Fabian had not been convicted of a criminal offence since 1998 was of limited value as proof of rehabilitation, given that Mr. Fabian had been in detention for most of the intervening period.
[49] The delegate also gave lucid and compelling reasons for discounting the letters of support filed by Mr. Fabian's friends and family, based upon his past history.
[50] Finally, there is no indication that the Minister's Delegate relied on criminal charges that were withdrawn, and did not result in a conviction.
[51] In these circumstances, I am satisfied that the Minister's Delegate's conclusion that Mr. Fabian continued to pose a danger to the public in Canada was one that was quite reasonably open to him on this record, and should not be disturbed.
[52] The next question is whether the Minister's Delegate's assessment of the conditions within Sri Lanka for returning former asylum seekers was patently unreasonable, as a result of his having ignored material evidence.
[53] In support of this contention, counsel for Mr. Fabian points primarily to several paragraphs in a 27-page report prepared by Professor Anthony Good in relation to the case of another individual facing deportation to Sri Lanka. Professor Good is a Professor of Social Anthropology at the University of Edinburgh, where he is involved in teaching, writing and research on South Asian society, history and culture, with special reference to the Tamils.
[54] The portions of the report relied upon by Mr. Fabian indicate that Sri Lankan authorities have a computerized database of wanted persons, and that this database is accessible to officers performing passport control for passengers arriving in Sri Lanka
[55] As a general rule, the Board does not have to specifically refer to every piece of evidence, and will be presumed to have considered all of the evidence in coming to its decision: see Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102 and Hassan v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 946, 147 N.R. 317.
[56] That said, the more important the evidence that is not specifically mentioned and analyzed in a decision, the more willing a court will be to infer from the silence that the Board made an erroneous finding of fact without regard to the evidence: Cepeda-Gutierrez v. Canada (MCI) (1998), 157 F.T.R. 35 at ¶ 14 - 17.
[57] There was an enormous volume of material before the Minister's Delegate with respect to the conditions within Sri Lanka. It is common ground that the initial disclosure of country condition information consisted of some 1,300 pages, with the relevant material ultimately exceeding 2,000 pages.
[58] It is clear from a review of the Minister's Delegate's decision that he specifically turned his mind to the treatment afforded returning Sri Lankan nationals, including those with a profile such as that of Mr. Fabian, finding that the prevailing conditions were such that Mr. Fabian would not be at any greater risk than any other returning Sri Lankan national.
[59] The isolated paragraphs that Mr. Fabian has singled out for scrutiny out of the mass of information that was before the Minister's Delegate do not specifically contradict this finding, and I am not persuaded that, in these circumstances, the probative value of evidence cited by Mr. Fabian is such that the failure of the Minister's Delegate to specifically refer to them in his decision amounts to a reviewable error.
[60] The final question for the Court is whether the Minister's Delegate applied an incorrect legal standard in determining that circumstances within Sri Lanka had changed such that Mr. Fabian was no longer at risk in that country.
[61] In this regard, Mr. Fabian submits that the jurisprudence establishes a detailed standard for determining whether there has been a change in country conditions, and that any such change has to be "durable, effective and substantial". Moreover, it is not enough, Mr. Fabian says, for a decision- maker to find that there has been a change in country conditions, without explaining how the appropriate legal principles were applied. According to Mr. Fabian, this did not happen in this case, constituting a reviewable error.
[62] Mr. Fabian's submission is answered by the decision of the Federal Court of Appeal in Yusuf v. Canada (Minister of Employment and Immigration) [1995] F.C.J. No. 35, at ¶ 2, where the Federal Court of Appeal observed that:
[T]he issue of so-called "changed circumstances" seems to be in danger of being elevated, wrongly in our view, into a question of law when it is, at bottom, simply one of fact. A change in the political situation in a claimant's country of origin is only relevant if it may help in determining whether or not there is, at the date of the hearing, a reasonable and objectively foreseeable possibility that the claimant will be persecuted in the event of return there. That is an issue for factual determination and there is no separate legal "test" by which any alleged change in circumstances must be measured. The use of words such as "meaningful" "effective" or "durable" is only helpful if one keeps clearly in mind that the only question, and therefore the only test, is that derived from the definition of Convention Refugee in s.2 of the Act: does the claimant now have a well founded fear of persecution? [emphasis added]
[63] In this case, the Minister's Delegate carefully examined the voluminous documentation before him with respect to the prevailing conditions in Sri Lanka, and considered these conditions as they related to the situation of returning Sri Lankans generally, and to Mr. Fabian in particular, having regard to his personal profile. After considering this evidence, the Delegate came to the conclusion that Mr. Fabian would not be at risk should he return to Sri Lanka, and explained why, in his view, that was so.
[64] It cannot be said that the conclusion of the Minister's Delegate was not one that was reasonably open to him on the evidence before him, and I see no basis for interfering with his factual finding.
Conclusion
[65] For these reasons, the application for judicial review is dismissed.
Certification
[66] Neither party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This application for judicial review is dismissed; and
2. No serious question of general importance is certified.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3853-05
STYLE OF CAUSE: NIRANJAN CLAUDE FABIAN v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 15, 2006
REASONS FOR JUDGMENT
AND JUDGMENT BY: Mactavish J.
APPEARANCES BY:
Mr. Joel Sandaluk FOR THE APPLICANT
Ms. Anshumala Juyal
Ms. Mary Matthews FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mamann & Associates
Barristers and Solicitors
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT