Date: 20050118
Docket: IMM-2779-04
Citation: 2005 FC 17
Ottawa, Ontario, the 18th day of January 2005
PRESENT: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
PEDRO NLANDU-NSOKI
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] Historically, every association which becomes an organization or a branch of an organization whose purpose is to change a country or society, will eventually develop their own means and ends. Those means and ends have consequences for the organization or branch of the organization, and hence consequences for its members.
NATURE OF JUDICIAL PROCEEDING
[2] This is an application for judicial review from a decision by the Minister's representative dated February 2, 2004, filed pursuant to subsection 72(1) of the Immigration and Refugee Protection Act (the Act).[1]. In that decision, the Minister's representative dismissed the applicant's pre-removal risk assessment (PRRA) application.
FACTS
[3] In October 1999, the applicant Pedro Nlandu-Nsoki arrived in Canada and claimed refugee status under the Immigration Act.[2] On March 8, 2001 the Immigration and Refugee Board (the Board) dismissed Mr. Nlandu-Nsoki's claim after determining that, on account of his involvement in the Front for the Liberation of the Enclave of Cabinda (FLEC), Mr. Nlandu-Nsoki fell under the exclusion in clause 1F(a) of the Convention Relating to Refugee Status (the Convention), which provides the following:
| The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: |
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Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser : |
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| (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes . . . |
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a) Qu'elles ont commis un crime contre la paix, un crime de guerre ou un crime contre l'humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes . . . |
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[4] Mr. Nlandu-Nsoki filed an application for leave against the Board's decision. That application was dismissed on August 3, 2001.
[5] On June 28, 2002, the Immigration and Refugee Protection Act came into effect.
[6] On December 31, 2002, Mr. Nlandu-Nsoki filed a PRRA application, submitting only his completed PRRA form. He did not submit any documentary evidence or any other document in support of his PRRA application.
[7] On January 20, 2003, the PRRA officer rendered an opinion on the risks referred to by Mr. Nlandu-Nsoki in his PRRA application. In that opinion, the PRRA officer concluded that there were serious grounds for believing that Mr. Nlandu-Nsoki would be at risk as defined in section 97 of the Act if were to return to his country.
[8] On March 6, 2003, the head office case review analyst rendered an opinion on the restrictions mentioned in subparagraph 113(d)(ii) of the Act. In that opinion, the analyst concluded that because of the nature and severity of the acts in question, the PRRA application should be dismissed.
[9] On April 23, 2003, Mr. Nlandu-Nsoki received a letter with the opinion on risks and the opinion on restrictions attached. That letter informed Mr. Nlandu-Nsoki that he had 15 days following receipt of the letter to submit his final observations and arguments. On May 8, 2003, counsel for Mr. Nlandu-Nsoki requested an extension of the time in order to reply to the letter received on April 23, 2003. Although he was given additional time, Mr. Nlandu-Nsoki filed no observations or final argument regarding the two opinions.
[10] On February 2, 2004, the Minister's representative dismissed the PRRA application.
IMPUGNED DECISION
[11] First, the Minister's representative determined that Mr. Nlandu-Nsoki could be at risk if he were to return to his country. Second, he concluded that Mr. Nlandu-Nsoki was a member of the FLEC and that this terrorist organization had committed crimes against humanity. He then proceeded to a comparative assessment of the risks faced by Mr. Nlandu-Nsoki and the nature and severity of the acts committed or the danger Mr. Nlandu-Nsoki represented to Canadian security. He concluded that on account of the nature and severity of the acts committed, the general interests of Canada justified dismissing the PRRA application.
ISSUES
[12] 1. Did the Minister's representative err in not taking into account the fact that the applicant was at risk of torture and severe sanctions if he were to return to his country?
2. Does the decision by the Minister's representative infringe the Canadian Charter of Rights and Freedoms and Canada's international obligations?
3. Does the decision of the Minister's representative infringe the right to respect for family life?
4. Did the Minister's representative err in describing the FLEC as a terrorist organization which has committed crimes against humanity?
LEGISLATIVE BACKGROUND
[13] Paragraph 112(3)(c) of the Act provides as follows:
| (3) Refugee protection may not result from an application for protection if the person
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(3) L'asile ne peut être conféré au demandeur dans les cas suivants :
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| [...] (c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention . . .
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c) il a été débouté de sa demande d'asile au titre de la section F de l'article premier de la Convention sur les réfugiés . . .
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[14] As Mr. Nlandu-Nsoki was excluded by the Board pursuant to clause 1F(a) of the Convention, he therefore fell under paragraph 112(3)(c) of the Act.
[15] PRRA applications by persons falling under one of the paragraphs in subsection 112(3) are subject to special assessment, which is described in paragraph 113(d) of the Act:
| 113. Consideration of an application for protection shall be as follows:
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113. Il est disposé de la demande comme il suit :
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| (d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and |
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d) s'agissant du demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à l'article 97 et, d'autre part : |
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| (I) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or |
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(i) soit du fait que le demandeur interdit de territoire pour grande criminalité constitue un danger pour le public au Canada, |
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| (ii) in the case of any other applicant, whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada. (Emphasis added) |
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(ii) soit, dans le cas de tout autre demandeur, du fait que la demande devrait être rejetée en raison de la nature et de la gravité de ses actes passés ou du danger qu'il constitue pour la sécurité du Canada.
(La Cour souligne) |
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[16] Section 172 of the Immigration and Refugee Protection Regulations sets out the procedure to be followed:
| 172. (1) Before making a decision to allow or reject the application of an applicant described in subsection 112(3) of the Act, the Minister shall consider the assessments referred to in subsection (2) and any written response of the applicant to the assessments that is received within 15 days after the applicant is given the assessments. |
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172. (1) Avant de prendre sa décision accueillant ou rejetant la demande de protection du demandeur visé au paragraphe 112(3) de la Loi, le ministre tient compte des évaluations visées au paragraphe (2) et de toute réplique écrite du demandeur à l'égard de ces évaluations, reçue dans les quinze jours suivant la réception de celles-ci. |
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| (2) The following assessments shall be given to the applicant: |
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(2) Les évaluations suivantes sont fournies au demandeur : |
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| (a) a written assessment on the basis of the factors set out in section 97 of the Act; and |
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a) une évaluation écrite au regard des éléments mentionnés à l'article 97 de la Loi; |
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| (b) a written assessment on the basis of the factors set out in subparagraph 113(d)(I) or (ii) of the Act, as the case may be. |
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b) une évaluation écrite au regard des éléments mentionnés aux sous-alinéas 113d)(i) ou (ii) de la Loi, selon le cas. |
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| (3) The assessments are given to an applicant when they are given by hand to the applicant or, if sent by mail, are deemed to be given to an applicant seven days after the day on which they are sent to the last address that the applicant provided to the Department. |
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(3) Les évaluations sont fournies soit par remise en personne, soit par courrier, auquel cas elles sont réputées avoir été fournies à l'expiration d'un délai de sept jours suivant leur envoi à la dernière adresse communiquée au ministère par le demandeur. |
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ANALYSIS
1. Did the Minister's representative err in not taking into account the fact that the applicant was at risk of torture and severe sanctions if he were to return to his country?
[17] The Court clearly cannot agree that the Minister's representative did not take into account the very serious risk of torture and severe sanctions which Mr. Nlandu-Nsoki might face if he were to return to his country. At page 3 of his reasons, the Minister's representative indicated that in his assessment of January 20, 2003, the PRRA officer noted that Mr. Nlandu-Nsoki was at risk of being tortured or suffering cruel and unusual treatment or punishment if he were to return to Angola. Then, also at page 3 of his reasons, the Minister's representative indicated the following:
[TRANSLATION]
I would say that, after examining the documentation on Mr. Nlandu-Nsoki and the possible risks to which he would be subject if he was sent back to Angola or Cabinda, I agree with the PRRA officer's assessment.
It is thus clear that the Minister's representative in this case took into account the personal risk to Mr. Nlandu-Nsoki if he were to return to his country.
[18] However, under subparagraph 113(d)(ii) of the Act, the Minister's representative had to first consider this risk, and second, consider the limitations mentioned in that subparagraph, namely the fact that the application should be refused because of the nature and severity of the acts committed by the applicant or because of the danger the applicant constituted to the security of Canada. Consequently, the Minister's representative proceeded to analyze Mr. Nlandu-Nsoki's involvement in the FLEC. That involvement will be discussed below, in connection with the terrorist nature of the organization.
2. Does the decision by the Minister's representative infringe the Canadian Charter of Rights and Freedoms and Canada's international obligations?
[19] Mr. Nlandu-Nsoki argued that the analysis by the Minister's representative did not comply with the Canadian Charter of Rights and Freedoms (the Charter).[3] He maintained that there is no procedure in Canadian law preventing deportations which infringe absolute prohibitions against torture and extra-judicial executions covered by conventional and customary international law.
[20] To this the Court would answer that, in the case of the PRRA, the Act and its Regulations set out a complete procedure during which there is an exhaustive analysis of the risks and of other relevant factors. One only has to consider the various legislative provisions set out under the heading "Legislative Background" above.
[21] At the same time, in Suresh v. Canada (Minister of Citizenship and Immigration),[4] the Supreme Court of Canada held that in exceptional circumstances it is possible to deport a person to a country where he or she is at risk of being tortured. At paragraphs 77 and 78 of its decision, the Court wrote:
In Canada, the balance struck by the Minister must conform to the principles of fundamental justice under s. 7 of the Charter. It follows that insofar as the Immigration Act leaves open the possibility of deportation to torture, the Minister should generally decline to deport refugees where on the evidence there is a substantial risk of torture.
We do not exclude the possibility that in exceptional circumstances, deportation to face torture might be justified, either as a consequence of the balancing process mandated by s. 7 of the Charter or under s. 1.
[Emphasis added.]
[22] In this case exceptional circumstances do exist, namely the need to protect Canada's security. Accordingly, Mr. Nlandu-Nsoki cannot claim that the decision by the Minister's representative is inconsistent with the Charter or with Canada's international obligations.
3. Does the decision of the Minister's representative infringe the right to respect for family life?
[23] Mr. Nlandu-Nsoki claimed that the decision by the Minister's representative infringed the right to respect for family life, as it did not take into account the fact that Mr. Nlandu-Nsoki is married to a permanent resident and is the sole financial support of the family, which includes two children.
[24] That argument is irrelevant in this case, as the impugned decision is a decision on a PRRA application, not a decision on an application based on humanitarian considerations. In this case the decision-maker's jurisdiction was limited to determining whether Mr. Nlandu-Nsoki's allegations met the criteria of section 97 of the Act and whether the limitations mentioned in subparagraph 113(d)(ii) meant that the PRRA application had to be dismissed. Section 97 and subparagraph 113(d)(ii) do not provide that humanitarian considerations, such as those mentioned by Mr. Nlandu-Nsoki, should be taken into account. Such considerations are analyzed in connection with an application for permanent residence based on humanitarian considerations (section 25 of the Act).
[25] Moreover, in Thambirajah v. Canada (Minister of Citizenship and Immigration),[5] the applicant claimed that the PRRA officer had erred by not taking into account the harm his wife and child would suffer if he was deported. At paragraph 12, this Court indicated the following:
However, in accordance with sections 96-98 of the IRPA, the officer only assesses the harm that may occur to the person himself should he be removed. Irreparable harm that would occur to the Applicant's family members should they be left in Canada when the Applicant is deported is not within the purview of a PRRA assessment.
In that case the applicant was not covered by subsection 112(3), but the same principle applies to persons who are covered by subsection 112(3), such as Mr. Nlandu-Nsoki. Subparagraph 113(d)(ii) also does not provide that harm to the applicant's family members must be considered.
4. Did the Minister's representative err in describing the FLEC as a terrorist organization which has committed crimes against humanity?
[26] Mr. Nlandu-Nsoki argued that the FLEC is not a terrorist group which has committed crimes against humanity. He added that he filed several pieces of evidence in support of his allegations regarding the FLEC in connection with an application on humanitarian grounds.
[27] As indicated earlier in these reasons, Mr. Nlandu-Nsoki filed no evidence in support of his PRRA application. Further, as appears from page 4 of the Board's decision, which was in evidence before the Minister's representative, the FLEC is a terrorist organization which has committed crimes against humanity:
Although [the claimant] minimized his activities in the FLEC/FAC, the panel finds that he faces a "reasonable possibility" of persecution if he returns to Cabinda. However, the claimant must be excluded because he was an active member of the FLEC/FAC, a group that committed and continues to commit acts of terrorism and war crimes, which the claimant approves and considers justified. The FLEC/FAC has been responsible for the torture and execution of unarmed civilians (Exhibits -4 and A-7). FLEC/FAC is said to have engaged in hostage taking (Exhibits -8 and -3). Exhibit -3, page 5, refers to a teacher who was beheaded for refusing to give a course to children. According to Exhibit -9, FLEC/FAC is one of the terrorist movements.
Although the claimant claims not to have participated, the panel has serious reasons to believe that the claimant was complicit, that he had information and knew the plans of attack. Not only did he know about the commission of certain acts, but he could also give the official line to explain the mistakes.
[Emphasis added]
[28] Further, contrary to Mr. Nlandu-Nsoki's allegation that there was no significant source which concluded that the FLEC was a terrorist group, the Board wrote that "According to Exhibit -9, FLEC/FAC is one of the terrorist movements". At the end of its reasons, the Board indicated that Exhibit -9 was titled "Terrorist and Insurgency Groups".
[29] Mr. Nlandu-Nsoki submitted no arguments to contradict the opinion on the restrictions indicating that the FLEC is a terrorist organization which has committed crimes against humanity.
[30] Mr. Nlandu-Nsoki referred to the Board's decision dated November 4, 2002, in docket M98-06616, and maintained that the Board member concluded that the FLEC had not committed crimes against humanity. The Court notes that that case concerned another applicant and that the analysis related to the FLEC-R, not the FLEC/FAC (to which Mr. Nlandu-Nsoki belonged). Further, it appeared from the Board's reasons in this case that the evidence before it showed that the FLEC/FAC was a terrorist organization which had committed crimes against humanity.
CONCLUSION
[31] The Court answers the questions at issue in the negative. Consequently, the application for judicial review is dismissed.
ORDER
THE COURT ORDERS that this application for judicial review be dismissed. No question is certified.
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"Michel M.J. Shore"
Judge |
Certified true translation
K.A. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2779-04
STYLE OF CAUSE: PEDRO NLANDU-NSOKI
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JANUARY 10, 2005
REASONS FOR ORDER AND ORDER BY: THE HONOURABLE MR. JUSTICE SHORE
DATE OF ORDER AND ORDER: JANUARY 18, 2005
APPEARANCES:
Stewart Istvanffy FOR THE APPLICANT
Marie-Claude Demers FOR THE RESPONDENT
SOLICITORS OF RECORD:
STEWART ISTVANFFY FOR THE APPLICANT
Montréal, Quebec
JOHN H. SIMS FOR THE RESPONDENT
Deputy Attorney General of Canada