Digests

Thuraisingam v. Canada (Minister of Citizenship and Immigration)

IMM-4506-03

2004 FC 607, Mactavish J.

26/4/04

21 pp.

Judicial review of Minister's delegate confirming earlier danger opinion, finding applicant involved in serious criminality, danger to public in Canada--Applicant challenging decision on two grounds: (1) Minister's delegate erred in finding applicant member of criminal organization; (2) Minister's delegate erred in finding applicant not at risk of persecution, torture if returned to Sri Lanka--Applicant came to Canada in 1989, recognized as Convention refugee shortly thereafter--In 1990, applicant landed as permanent resident-- As to first ground, nothing in Immigration and Refugee Protection Act, requiring respondent to proceed under Act, s. 44(2) where of view individual danger to public, based upon membership in criminal organization--As consequence, open to respondent to proceed under s. 115--Two elements must be established to support issuance of danger opinion under s. 115--Individual must be inadmissible on basis of serious criminality and, in opinion of Minister, must constitute danger to public in Canada--Common ground applicant convicted of number of criminal offences, one of which carries possible term of imprisonment of up to 10 years--Sufficient to establish "serious criminality" requirement under s. 115(2)-- Whether Minister's delegate entitled to rely on unproven allegations relating to applicant's alleged gang membership in coming to conclusion he posed present, future danger to others in Canada--Fact individual convicted of serious criminal offence not, on its own, sufficient foundation for danger opinion--Minister's delegate concluded applicant clearly posed present, future danger for people in Canada as result of being high-ranking member of gang involved in criminal activities--Threshold question whether Minister's delegate can base danger opinion on something less than charges having resulted in convictions--Distinction must be drawn between reliance on fact someone charged with criminal offence, reliance on evidence underlying charges in question --Fact someone charged with offence proves nothing as simple allegation--In contrast, evidence underlying charge may be sufficient to provide foundation for good-faith opinion individual poses present, future danger to others in Canada-- Applicant not charged with membership in criminal organiza-tion, nor evidence applicant currently facing other type of criminal charges--Thus, no reliance on existence of charges here--Rather, question whether evidence before Minister's delegate supported conclusion applicant posed present, future danger to others in Canada, as result of being high-ranking member of gang involved in criminal activities--Minister's delegates decision supported by evidence--As to second ground, Act, s. 115 creates exception to principle of non- refoulement--Person found to be Convention refugee should not be returned to country where they would be at risk of persecution--Risk assessment largely outside expertise of reviewing courts, not possessing significant legal dimension-- As such, significant deference must therefore be accorded to risk assessments--In assessing risk to applicant if returned to Sri Lanka, Minister's delegate examined general situation facing returning Tamil refugees, finding situation much improved, work being done to smooth way for returning deportees--No consideration given to specific circumstances of applicant's own situation, to particular risk he might face from Sri Lankan authorities--Danger opinion set aside-- Matter remitted to Minister's delegate for new risk assessment --Application allowed--Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 44(2), 115.