Jama v. Canada (Minister of Citizenship and Immigration), 2009 FC 781

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: July 14, 2009
• Jurisdiction: Canada (Federal)
• Citations: 2009 FC 781;(2009), 350 F.T.R. 61 (FC)

Jama v. Can. (M.C.I.) (2009), 350 F.T.R. 61 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. AU.020

Mohamed Said Jama (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-5691-08; 2009 FC 781)

Indexed As: Jama v. Canada (Minister of Citizenship and Immigration)

Federal Court

Russell, J.

July 29, 2009.

Summary:

Jama applied for judicial review of a decision of the delegate of the Minister of Citizenship and Immigration finding that Jama constituted a danger to the public of Canada under s. 115(2)(a) of the Immigration and Refugee Protection Act.

The Federal Court dismissed the application.

Aliens - Topic 1314

Admission - Refugee protection, Convention refugees and persons in need of protection - Persons in need of protection - General (incl. what constitutes) (IRPA, s. 97) - [See first Aliens - Topic 1645 ].

Aliens - Topic 1322

Admission - Refugee protection, Convention refugees and persons in need of protection -Grounds - Well-founded fear of persecution - [See first Aliens - Topic 1645 ].

Aliens - Topic 1645

Exclusion and expulsion - Immigration - Deportation - Grounds for - Danger to the public - Jama fled Somalia and was granted refugee status in Canada in 1992 - From 1995 to 2007, Jama was convicted of several violent offences, including robbery, aggravated assault and assault with a weapon - A delegate of the Minister of Citizenship and Immigration found that Jama constituted a danger to the public of Canada under s. 115(2)(a) of the Immigration and Refugee Protection Act - Jama applied for judicial review - Jama submitted that the danger determination required by law was not just a determination of the danger he posed to society - It was rather a balancing inquiry that weighed the risk to society if he remained in Canada against risk to him on his return to Somalia and those humanitarian considerations which argued against removal - Jama asserted that, for reasons that were not clear, the delegate left s. 96 of the IRPA out of her analysis and only took s. 97 risks into account when conducting the weighing exercise required by s. 115(2) - The Federal Court dismissed the application - When the Risk Assessment was read as a whole, it was clear that, although the delegate did not formally refer to s. 96 risks, she certainly addressed the actual s. 96 risks raised by Jama and made factual findings concerning those risks - These findings of fact addressed and rejected all of the risks raised by Jama, whether as a refugee under s. 96 or as a person in need of protection under s. 97 - In the end, the delegate did not leave the s. 96 risks out of account in her determination of what risks Jama faced upon return to Somalia - The risks that everyone from Somalia faced because of inter-clan fighting were not s. 96 risks in a country where it appeared everyone had a clan affiliation and faced the same risk - The personalized risk claimed by Jama because of his family and clan connections was not established because "he will not be remembered or be of any particular interest to any of those factions currently vying for control in Somalia" - This held for both ss. 96 and 97 - See paragraphs 61 to 81.

Aliens - Topic 1645

Exclusion and expulsion - Immigration - Deportation - Grounds for - Danger to the public - Jama fled Somalia and was granted refugee status in Canada in 1992 - From 1995 to 2007, Jama was convicted of several violent offences, including robbery, aggravated assault and assault with a weapon - A delegate of the Minister of Citizenship and Immigration found that Jama constituted a danger to the public of Canada under s. 115(2)(a) of the Immigration and Refugee Protection Act - Jama applied for judicial review - Jama submitted that the danger determination required by law was not just a determination of the danger he posed to society - It was rather a balancing inquiry that weighed the risk to society if he remained in Canada against risk to him on his return to Somalia and those humanitarian considerations which argued against removal - Jama asserted that he was determined to be a Convention refugee because his father was a general of the marines in the government of a former Somali dictator - The delegate's assessment that the risk to Jama had abated with time was not within her power to make (IRPA, s. 108) - Cessation could occur if there was a determination that the reasons for which the person sought refugee protection had ceased to exist - Jama contended that there was no such determination and that a determination was made by the Immigration and Refugee Board which could not be made by the delegate - The Federal Court dismissed the application - There was no statutory or legal authority for the proposition that s. 108 criteria had to be considered - The delegate was not involved in a cessation analysis under s. 115(2)(a) - The cessation principles did not apply in this context - The delegate simply found that Jama had not established risk and that as a result of the effluxion of time in the full context of this case, there was no personalized risk - There was no reviewable error - See paragraphs 82 to 87.

Aliens - Topic 1645

Exclusion and expulsion - Immigration - Deportation - Grounds for - Danger to the public - Jama fled Somalia and was granted refugee status in Canada in 1992 - From 1995 to 2007, Jama was convicted of several violent offences, including robbery, aggravated assault and assault with a weapon - A delegate of the Minister of Citizenship and Immigration found that Jama constituted a danger to the public of Canada under s. 115(2)(a) of the Immigration and Refugee Protection Act - Jama applied for judicial review - Jama submitted that the danger determination required by law was not just a determination of the danger he posed to society - It was rather a balancing inquiry that weighed the risk to society if he remained in Canada against risk to him on his return to Somalia and those humanitarian considerations which argued against removal - Jama asserted that, in her review of humanitarian and compassionate (H&C) factors, the delegate left out of account the risk Jama faced in Somalia - His argument was that, even if he was unable to establish s. 96 or s. 97 risk, he did face some risk in Somalia and this should have been taken into account - The Federal Court dismissed the application - There was no authority that supported Jama's position - The court agreed that if an H&C application were under consideration then such risk would be a factor - However, s. 115(2)(a) involved a very different kind of analysis and balance - The purpose of s. 115(2)(a) and the balancing exercise required by the jurisprudence was not to determine whether there were sufficient H&C considerations to exempt Jama from a requirement of the Act - The objective was to determine whether the risk that Jama posed to the Canadian public outweighed the risks he faced if returned and "other humanitarian and compassionate circumstances." - The risk to Jama was addressed separately in the weighing process and "other humanitarian and compassionate factors" could not mean anything other than humanitarian and compassionate factors "other" than risk - See paragraphs 88 to 92.

Cases Noticed:

La v. Canada (Minister of Citizenship and Immigration) (2003), 232 F.T.R. 220; 2003 FCT 476, refd to. [para. 8].

Nagalingam v. Canada (Minister of Citizenship and Immigration) et al. (2008), 377 N.R. 151; 2008 FCA 153, refd to. [para. 25].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 25].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1, refd to. [para. 25].

Genex Communications Inc. v. Canada (Attorney General) et al. (2005), 338 N.R. 268; 2005 FCA 283, refd to. [para. 25].

Canadian Cable Television Association v. American College Sports Collective of Canada Inc., [1991] 3 F.C. 626; 129 N.R. 296 (F.C.A.), refd to. [para. 25].

Sittampalam v. Canada (Minister of Citizenship and Immigration) et al. (2009), 340 F.T.R. 53; 2009 FC 65, refd to. [para. 26].

Ragupathy v. Canada (Minister of Citizenship and Immigration) (2006), 350 N.R. 137; 2006 FCA 151, refd to. [para. 30].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [para. 36].

Salibian v. Ministre de l'Emploi et de l'Immigration, [1990] 3 F.C. 250; 113 N.R. 123 (F.C.A.), refd to. [para. 37].

Osman v. Canada (Minister of Citizenship and Immigration) (1995), 90 F.T.R. 230 (T.D.), refd to. [para. 41].

Pinter v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 188; 2005 FC 296, refd to. [para. 44].

Ragupathy v. Canada (Minister of Citizenship and Immigration) (2005), 275 F.T.R. 311 (F.C.), refd to. [para. 50].

Sittampalam v. Canada (Minister of Citizenship and Immigration) et al. (2007), 316 F.T.R. 142; 2007 FC 687, refd to. [para. 50].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 50].

Fabian v. Canada (Minister of Citizenship and Immigration) (2003), 244 F.T.R. 223; 2003 FC 1527, refd to. [para. 50].

Camara v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 86; 2006 FC 168, refd to. [para. 51].

Schaaf v. Minister of Employment and Immigration, [1984] 2 F.C. 334; 52 N.R. 54 (F.C.A.), refd to. [para. 57].

Nawaratnam v. Canada (Minister of Citizenship and Immigration) (2001), 210 F.T.R. 311; 2001 FCT 976, refd to. [para. 57].

Canada (Secretary of State) v. Dee (1995), 90 F.T.R. 113 (T.D.), refd to. [para. 57].

Romero et al. v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 871; 2005 FC 1423, refd to. [para. 57].

Retnem and Rajkumaar v. Minister of Employment and Immigration (1991), 132 N.R. 53 (F.C.A.), refd to. [para. 60].

Isa v. Canada (Secretary of State) (1995), 91 F.T.R. 71 (T.D.), refd to. [para. 80].

Hasan v. Canada (Minister of Citizenship and Immigration) (2008), 339 F.T.R. 21; 2008 FC 1069, refd to. [para. 86].

Statutes and Works Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 96, sect. 97, sect. 115(2)(a) [para. 24].

Authors and Works Noticed:

Feller, Erika, Turk, Volker, and Nicholson, Frances, Refugee Protection in International Law, United Nations High Commissioner for Refugees' Global Consultations on International Protection, generally [para. 32].

Lauterpacht, Elihu, and Bethlehem, Daniel, The Scope and Content of the Principle of Non-Refoulement: Opinion, in Feller, Erika, Turk, Volker, and Nicholson, Frances, Refugee Protection in International Law, United Nations High Commissioner for Refugees' Global Consultations on International Protection, generally [para. 32].

Counsel:

David Matas, for the applicant;

Nalini Reddy, for the respondent.

Solicitors of Record:

David Matas, Winnipeg, Manitoba, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on July 14, 2009, at Winnipeg, Manitoba, by Russell, J., of the Federal Court, who delivered the following judgment at Ottawa, Ontario, on July 29, 2009.