Jama v. Canada (Citizenship and Immigration)

Jama v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2009-07-29
Neutral citation
2009 FC 781
File numbers
IMM-5691-08
Decision Content
Federal Court
Cour fédérale
Date: 20090729
Docket: IMM-5691-08
Citation: 2009 FC 781
Ottawa, Ontario, July 29, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
MOHAMED SAID JAMA
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
[1] This is an application pursuant to subsection 72 (1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a decision of the Minister’s Delegate (Delegate), dated December 8, 2008 (Decision) finding that the Applicant constitutes a danger to the public of Canada under 115 (2)(a) of the Act.
BACKGROUND
[2] The Applicant entered Canada at the Fort Erie Peace Bridge on June 16, 1991 and claimed refugee status. On March 11, 1992, he was determined to be a Convention refugee by the Refugee Division of the Immigration and Refugee Board (IRB). On October 2, 2002, his application for permanent residence was declared abandoned and a deportation order was issued against him on June 21, 2007.
[3] On November 5, 2007, Citizenship and Immigration Canada (CIC) officials in Winnipeg informed the Applicant of their intention to seek the opinion of the Minister that he is a danger to the public and should be removed to Somalia. The Applicant refused to acknowledge receipt of this information.
[4] The Applicant’s criminal record is as follows:
November 15, 1995 Burnaby, B.C. Convicted of:
Driving While Ability Impaired-Section 253(a) of the Criminal Code. He was sentenced to $300 fine, in default of 3 days imprisonment, and prohibition of driving for 1 year.
May 18, 2005 Winnipeg, MB. Convicted of:
Possession of a Weapon-Section 88 of the Criminal Code. He was sentenced to 9 months and a mandatory prohibition order under section 109 of the Criminal Code.
Public Mischief-Section 140(1)(b) of the Criminal Code. He was sentenced to 8 months concurrent.
Robbery-Section 344(b) of the Criminal Code. He was sentenced to 6 months concurrent and a mandatory prohibition order under section 109 of the Criminal Code concurrent.
Failure to Comply with Recognizance (x2)-Section 145(3) of the Criminal Code. He was sentenced to 3 months on each count concurrent and concurrent to the other convictions.
August 25, 2005 Winnipeg, MB. Convicted of:
Fail to Comply with Recognizance-Section 145(3) of the Criminal Code. He was sentenced to 1 day (and 15 days pre-sentence custody).
December 4, 2006 Winnipeg, MB. Convicted of:
Robbery-Section 344(b) of the Criminal Code. He was sentenced to 7 years (with credit for the equivalent of 27 months pre-sentence custody) and mandatory prohibition order under section 109 of the Criminal Code on each charge concurrent.
Aggravated Assault- Section 268(1) of the Criminal Code. He was sentenced to 7 years (with credit for the equivalent of 27 months pre-sentence custody) and mandatory prohibition order under section 109 of the Criminal Code on each charge concurrent.
Assault with a Weapon- Section 267(a) of the Criminal Code. He was sentenced to 7 years (with credit for the equivalent of 27 months pre-sentence custody) and mandatory prohibition order under section 109 of the Criminal Code on each charge concurrent.
April 16, 2007 Winnipeg, MB. Convicted of:
Failure to Comply with Recognizance—Section 145(3) of the Criminal Code. He was sentenced to 30 days of time served on each charge concurrent.
Failure to Attend Court- Section 145(2)(a) of the Criminal Code. He was sentenced to 30 days of time served on each charge concurrent.
[5] The Applicant appealed his December 4, 2006 sentence and the appeal was heard on June 7, 2007. He was given additional credit for 13 months (and 15 days pre-sentence custody). The Applicant also has a criminal record in the United States.
DECISION UNDER REVIEW
[6] The Delegate concluded that, based on the Applicant’s convictions for robbery and aggravated assault, he is inadmissible on grounds of serious criminality.
[7] The Delegate noted that the determination of public danger has to be accompanied by the balancing of risk: the risk to the Applicant in Somalia against the risk he poses to Canadian society. The Applicant indicated to the Delegate in a letter that he took a “bad turn” and has “embraced the opportunity to turn his life around.” He also said that “he can and will live up to his responsibilities as a member of Canadian society and be a contributing member.”
Danger Assessment and Conclusion
[8] The Delegate cites La v. Canada (Minister of Citizenship and Immigration) 2003 FCT 476 (F.C.T.D.) at paragraph 17:
17 The proper approach to the issue before me was set out by Justice Strayer in Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.) at paragraph 29, where he outlined the meaning of “danger to the public” as expressed in the Act and the kind of analysis this phrase compelled:
par. 29 It has been said by the Supreme Court in R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606... that a law is unconstitutionally vague “if it so lacks in precision as not to give sufficient guidance for legal debate”. In the context of judicial review of a ministerial decision as to whether she “is of the opinion that a person constitutes a danger to the public in Canada” the question must be: does this phraseology give sufficient direction to the Minister so that both she and the Court can determine whether she is exercising the power for the purposes intended by Parliament? In my view the formulation in subsection 70(5) is sufficiently clear for that purpose. In the context the meaning of “public danger” is not a mystery: it must refer to the possibility that a person who has committed a serious crime in the past may seriously be thought to be a potential re-offender. It need not be proven -- indeed it cannot be proven -- that the person will reoffend. What I believe the subsection adequately focuses the Minister's mind on is consideration of whether, given what she knows about the individual and what that individual has had to say in his own behalf, she can form an opinion in good faith that he is a possible re-offender whose presence in Canada creates an unacceptable risk to the public.
[9] The Delegate found it positive that the Applicant has successfully completed many programs offered to him while incarcerated and has positive reports from his teachers. He has taken responsibility for his actions, expressed remorse and regrets his actions. However, this remorse and taking of personal responsibility have not occurred until recently.
[10] The Delegate found the April 26, 2004 assault to be particularly aggressive and indicative of the “type of senseless harm that [the Applicant’s] actions have inflicted on members of the Canadian public.” The Applicant and his co-aggressors preyed upon two unarmed victims who were in their apartment. When one of the victims attempted to flee the scene of the crime, the Applicant ran after him and stabbed him in the face. Although the Delegate acknowledged that the Applicant has taken steps to deal with his anger and aggression, “on balance, [the Applicant] is a potential re-offender who is capable of committing a similar violent offence again.”
[11] The Delegate also concluded that the Applicant has shown himself to be a recidivist with a pattern of aggression and violence towards his victims. The Delegate noted that, although the Applicant claims to have turned his criminal behaviour around since being incarcerated and taking programs, his conduct reveals a person with a propensity to threaten and commit violent acts against members of the community with the use of weapons. He has multiple criminal convictions, including aggravated assault, assault with a weapon and robbery and his conduct cannot be described as an isolated event where he made a mistake and then learned from his initial interaction with the criminal justice system. The Applicant has a “cumulative effect” of criminal conduct indicative of a person who has repeatedly shown disrespect for and violated Canadian laws. This supports a finding that he is likely to re-offend in the future.
[12] The Delegate also comments on the Applicant’s lack of respect for Canada’s judicial system. He has failed to comply with orders, failed to attend court, and has breached conditions of release on more then one occasion; all which indicate a pattern of conduct of someone who is likely to re-offend. The Delegate notes that the “threat of further punishment did not deter [the Applicant] from re-offending…A person who disregards Court imposed conditions is, on balance, a person who is likely to re-offend and is also a person who poses a danger to the safety and well-being of Canadians.”
[13] In relation to the Applicant’s behaviour in custody, the Delegate notes that it has been described as problematic. The Applicant has received several charges stemming from threats and abuse to staff, contravening rules during a Code Red lock down, promoting gang activity, as well as assault and attempted assault against his fellow inmates. The Applicant has not taken the blame for this conduct and has “deflected blame onto the staff of the corrections facility.” The Applicant’s Preliminary Assessment Report (with respect to his claim of motivation to follow his correctional plan and to change his life), said that “motivation seems to be directed more toward ‘playing the system’ and ‘beating the system’ rather than any sincere desire to change.”
[14] The Delegate concludes on this point by stating that, although the Applicant has “made strides towards positive pro-social living,” on a balance of probabilities, the Applicant is likely to re-offend and shows a trend toward recidivism and against a finding that he is rehabilitated. The Delegate states that the Applicant “is a possible re-offender whose presence in Canada creates an unacceptable risk to the public and as a result I find he constitutes a danger to the Canadian public…[the Applicant] is a danger to the Canadian public now and in the future, I have considered the criminal convictions on record without considering withdrawn charges or his drug conviction from the United States.”
Risk Assessment
[15] The Delegate points out that subsection 115(2)(a) of the Act creates an exception to the general protection provided to Convention refugees that they not be returned to a country where they would be at risk of persecution. This is the embodiment into Canada’s domestic legislation of Article 33(2) of the U.N. Convention relating to the status of refugees. The Delegate considered all of counsel’s submissions regarding country conditions in Somalia and, in particular, the personal circumstances of the Applicant. The Delegate considered, on a balance of probabilities, whether the Applicant would be personally subject to any of the grounds of risk enumerated under section 97 of the Act.
[16] The Delegate felt that the Applicant’s belonging to one of the strongest remaining clans in Somalia would, on balance, ameliorate the risks he faces upon return. Although counsel submitted that there was no faction in Somalia that would be willing and able to offer the Applicant protection there, the Delegate concluded that his membership in the Darod clan would give him a connection, as well as clan protection in those areas of the country where the Marehan clan is more prevalent.
[17] The Delegate also pointed out that the Applicant has been in Canada for the past 18 years and has not been singled out, sought after or targeted as the son of a person formerly affiliated with the Said Barre regime. The Delegate found the allegation that the Applicant will face the same fate as his father and brother to be speculative and the potential risk based on this allegation did not satisfy him that it is more likely than not that the Applicant would be specifically targeted because of his father’s previous affiliation with Said Barre’s regime. The Delegate found it more likely that he will not be remembered and will not be of any particular interest to any of those factions currently vying for control in Somalia.
[18] The Delegate goes on to say that the Applicant’s clan and sub-clan affiliation does not place him at any greater risk of harm than any other individual from Somalia, where inter-clan fighting is the norm. Although the Applicant would have difficulty reintegrating into Somalia, the Delegate was satisfied, on a balance of probabilities, that “any difficulties [the Applicant] would face in assimilating back into Somalian society, particularly in those areas where his sub-clan the Marehan reside, would not, on the evidence…subject him personally to those risk enumerated under section 97 of IRPA.”
[19] The Delegate concludes that the Applicant will not personally face a risk of torture, a risk to his life, or a risk of cruel and unusual treatment or punishment based on the current country conditions in Somalia and that he may be removed to an area of the country in Somalia, other than Mogadishu, where it would be safer for members of his particular ethnic clan, the Marehan. The Delegate found that the Applicant was a danger to the public in Canada and the need to protect Canadian society outweighs any possible risk that he might face if he is returned to Somalia.
Humanitarian and Compassionate Considerations and Best Interests of the Child
[20] The Applicant is separated from his wife and child in Canada and, in 2006, had had no contact with them in five years. The Applicant also has four children in the United States from previous relationships. He stated in 2006 that he is in contact with the mother of three of his children. The Delegate was not aware of any regular contact of the Applicant with his foreign-born children at the present time. The Delegate commented that “the best interests of [the Applicant’s] children would not be significantly impacted by his removal from Canada in light of the paucity of information relating to how his children’s interests would be negatively affected, if he is removed from Canada.”
[21] The Delegate noted that there were no letters of support filed by the Applicant’s family members. Due to the lack of evidence to support the Applicant’s apparent long-term desire to be with his wife and child from the United States, the Delegate gave very little weight to “family reunification and establishment factors which might have warranted allowing [the Applicant] to remain in Canada on these grounds.”
[22] The Delegate concluded on this issue as follows:
… there are insufficient positive humanitarian and compassionate factors that would warrant allowing [the Applicant] to remain in Canada. Given the lack of humanitarian and compassionate factors weighing in [the Applicant’s] favour when balanced against the potential danger that he poses to the Canadian public should he be allowed to remain, I find this balance tips heavily in favour of his removal.
ISSUES
[23] The Applicant has not presented a formal list of issues but has set out various grounds for error in his arguments. I have dealt with them roughly in the order presented by the Applicant.
STATUTORY PROVISIONS
[24] The following provisions of the Act are applicable in these proceedings:
36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;
(b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or
(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.
Convention refugee
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
Person in need of protection
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.
115. (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.
Exceptions
(2) Subsection (1) does not apply in the case of a person
(a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger to the public in Canada; or
(b) who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada.
36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants :
a) être déclaré coupable au Canada d’une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans ou d’une infraction à une loi fédérale pour laquelle un emprisonnement de plus de six mois est infligé;
b) être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans;
c) commettre, à l’extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans.
Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
Personne à protéger
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.
115. (1) Ne peut être renvoyée dans un pays où elle risque la persécution du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques, la torture ou des traitements ou peines cruels et inusités, la personne protégée ou la personne dont il est statué que la qualité de réfugié lui a été reconnue par un autre pays vers lequel elle peut être renvoyée.
Exclusion
(2) Le paragraphe (1) ne s’applique pas à l’interdit de territoire :
a) pour grande criminalité qui, selon le ministre, constitue un danger pour le public au Canada;
b) pour raison de sécurité ou pour atteinte aux droits humains ou internationaux ou criminalité organisée si, selon le ministre, il ne devrait pas être présent au Canada en raison soit de la nature et de la gravité de ses actes passés, soit du danger qu’il constitue pour la sécurité du Canada.
STANDARD OF REVIEW
[25] The Respondent submits that the Delegate’s assessment of whether an individual constitutes a danger to the public in Canada and whether that individual may face risk on refoulment is entitled to a high degree of deference for which the applicable standard of review is reasonableness: Nagalingam v. Canada (Minister of Citizenship and Immigration) 2008 FCA 153 at paragraph 32 (Nagalingam); Dunsmuir v. New Brunswick 2008 SCC 9 (Dunsmuir) at paragraph 51; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at paragraphs 29 and 41. The Respondent says that questions of law are reviewable on a standard of correctness and an inconsequential error of law, which could have no effect on the outcome, does not require this Court to set aside the decision under review: Genex Communications Inc. v. Canada (Attorney General), 2005 FCA 283 at paragraph 42 and Canadian Cable Television Assn. v. American College Sports Collective of Canada, Inc., [1991] 3 F.C. 626 (F.C.A.) at paragraph 41.
[26] Sittampalam v. Canada (Minister of Citizenship and Immigration) 2009 FC 65 at paragraph 13 provides as follows:
13 At the time of the July 2006 Opinion, the standard of review applied to assess whether the Applicant posed a danger to the public and ought to be removed from Canada because of the nature and severity of the acts committed was patent unreasonableness. Dunsmuir, has merged patent unreasonableness with reasonableness simpliciter into the reasonableness standard…
[27] In Dunsmuir, the Supreme Court of Canada recognized that, although the reasonableness simpliciter and patent unreasonableness standards are theoretically different, “the analytical problems that arise in trying to apply the different standards undercut any conceptual usefulness created by the inherently greater flexibility of having multiple standards of review”: Dunsmuir at paragraph 44. Consequently, the Supreme Court of Canada held that the two reasonableness standards should be collapsed into a single form of “reasonableness” review.
[28] The Supreme Court of Canada in Dunsmuir also held that the standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to the particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.
[29] Thus, in light of the Supreme Court of Canada’s decision in Dunsmuir and the previous jurisprudence of this Court, I find the standard of review applicable to the Decision generally on this application to be reasonableness. However, during the course of argument, the Applicant also raises a variety of legal issues which, as my analysis will show, I have reviewed on a standard of correctness. When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir at paragraph 47. Put another way, the Court should only intervene if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
ARGUMENTS
The Applicant
Risk Assessment
i) Categories of Risk
[30] The Applicant submits that the danger determination required by law is not just a determination of the danger he poses to society. It is rather a balancing inquiry that weighs the risk to society if he remains in Canada against risk to him on his return to Somalia and those humanitarian considerations which argue against removal. This balancing is grafted onto the Act through the Canadian Charter of Rights and Freedoms. The Applicant cites Ragupathy v. Canada (Minister of Citizenship and Immigration) 2006 FCA 151 at paragraphs 18 and 19:
18 If the delegate is of the opinion that the presence of the protected person does not present a danger to the public, that is the end of the subsection 115(2) inquiry. He or she does not fall within the exception to the prohibition in subsection 115(1) against the refoulement of protected persons and may not be deported. If, on the other hand, the delegate is of the opinion that the person is a danger to the public, the delegate must then assess whether, and to what extent, the person would be at risk of persecution, torture or other inhuman punishment or treatment if he was removed. At this stage, the delegate must determine how much of a danger the person's continuing presence presents, in order to balance the risk and, apparently, other humanitarian and compassionate circumstances, against the magnitude of the danger to the public if he remains.
19 The risk inquiry and the subsequent balancing of danger and risk are not expressly directed by subsection 115(2), which speaks only of serious criminality and danger to the public. Rather, they have been grafted on to the danger to the public opinion, in order to enable a determination to be made as to whether a protected person's removal would so shock the conscience as to breach the person's rights under section 7 of the Charter not to be deprived of the right to life, liberty and security of the person other than in accordance with the principles of fundamental justice. See Suresh v. Canada (Minister of Citizenship and Immigration), especially at paras. 76-9.
[31] The Applicant contends that the Delegate in the present case transforms the Charter risk analysis into an IRPA section 97 analysis. Yet the two are legally not the same. The Applicant also says that the Delegate has not assessed section 96 risks. The Applicant contends that it is not clear why the Delegate has done only a partial risk assessment and abandoned the persecution component which the Federal Court of Appeal has indicated is required. He says it may be the result of confusion about the relationship between Article 33(2) of the Refugee Convention and section 115(2) of the Act.
[32] The Applicant submits that the interpretation of Article 33(2) of the Refugee Convention and Canadian law and its interpretation of section 115(2) of the Act necessitates the same conclusion. There has to be a balancing of risks to the individual against the risks to society. The Applicant cites the Office of the United Nations High Commissioner for Refugees in a publication called Refugee Protection in International Law edited by Erika Feller, Volker Turk and Frances Nicholson, in a chapter contributed to by Sir Elihu Lauterpacht and Daniel Bethlehem in an article titled “The Scope and Content of the Principle of Non-Refoulement: Opinion”:
(v) The requirement of proportionality
177. Referring to the discussions in the drafting conference, Weis put the matter in the following terms:
The principle of proportionality has to be observed, that is, in the words of the UK representative at the Conference, whether the danger entailed to the refugee by expulsion or return outweighs the menace to public security that would arise if he were permitted to stay.
178. The requirement of proportionality will necessitate that consideration be given to factors such as:
(a) the seriousness of the danger posed to the security of the country;
(b) the likelihood of that danger being realized and its imminence;
(c) whether the danger to the security of the country would be eliminated or significantly alleviated by the removal of the individual concerned;…
(d) the nature and seriousness of the risk to the individual from refoulement;
(e) whether other avenues consistent with the prohibition of refoulement are available and could be followed, whether in the country of refuge or by the removal of the individual concerned to a safe third country.
179. It must be reiterated that a State will not be entitled to rely on the national security exception if to do so would expose the individual concerned to a danger of torture or cruel, inhuman or degrading treatment or punishment or a risk coming within the scope of other non-derogable principles of human rights. Where the exception does operate, its application must be subject to strict compliance with principles of due process of law.
(c) The interpretation and application of the “danger to the community” exception
180. Article 33(2) provides that the prohibition of refoulement cannot be claimed by a refugee “who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.”
181. Many of the elements considered above in respect of the interpretation of the national security exception will apply mutatis mutandis to the interpretation and application of the “danger to the community” exception. It, too, is clearly prospective in nature. While past conduct will be relevant to this assessment, the material consideration will be whether there is a danger to the community in the future.
183. Other elements discussed above in respect of the national security exception that will also apply to the “danger to the community” exception include the requirement to consider individual circumstances and the requirement of proportionality and the balancing of the interests of the State and the individual concerned.”
[33] The Applicant suggests that the Delegate seems to assume from Article 33(2) of the Refugee Convention that risk to society alone can obviate consideration of section 96 risks. Therefore, she has misunderstood the Refugee Convention and her Charter analysis is defective. The Applicant says that it is not the law that section 7 of the Charter equates to section 97 of the Act. The risks set out in sections 96 and 97 of the Act are both of equal relevance to an assessment of the risk of violation of section 7 of the Charter. The Applicant also says that the reasoning of the Delegate that what may prevent the removal of the Applicant under the Charter is section 97 risks only, and not section 96 risks, is wrong in law.
ii. Cessation
[34] The Applicant submits that he was determined to be a Convention refugee because his father was a general of the marines in the government of former Somali dictator Said Barre. The assessment of the Delegate that the risk to the Applicant had abated with time was not within her power to make. The Applicant relies upon section 108 of the Act:
108. (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances:
(a) the person has voluntarily reavailed themself of the protection of their country of nationality;
(b) the person has voluntarily reacquired their nationality;
(c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality;
(d) the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or
(e) the reasons for which the person sought refugee protection have ceased to exist.
108. (1) Est rejetée la demande d’asile et le demandeur n’a pas qualité de réfugié ou de personne à protéger dans tel des cas suivants :
a) il se réclame de nouveau et volontairement de la protection du pays dont il a la nationalité;
b) il recouvre volontairement sa nationalité;
c) il acquiert une nouvelle nationalité et jouit de la protection du pays de sa nouvelle nationalité;
d) il retourne volontairement s’établir dans le pays qu’il a quitté ou hors duquel il est demeuré et en raison duquel il a demandé l’asile au Canada;
e) les raisons qui lui ont fait demander l’asile n’existent plus.
[35] The Applicant submits that cessation can occur if there is a determination that the reasons for which the person sought refugee protection have ceased to exist. In this case, the Applicant contends that there was no such determination and that a determination was made by the IRB which cannot be made by the Delegate. The Applicant cites Nagalingam at paragraph 43:
…To this end, I agree with the respondent that the Ragupathy approach ensures that the Delegate maintains his jurisdiction as his role is not in any way to remove or alter the subject's status as Convention refugee (respondent's memorandum at paragraph 71). Proceeding in this manner guarantees that the Delegate's function will not usurp the role of the Refugee Protection Division on a cessation determination pursuant to subsection 108(2) of the Act.
[36] The Applicant submits that the Delegate has done what the Federal Court of Appeal has said she cannot do. She has made a cessation determination when only the Refugee Protection Division of the IRB can do that. The Applicant points out that the Delegate has made a legally incorrect risk assessment and does not have a cessation jurisdiction, as the test is change of circumstances in the country of origin and not the passage of time. The Applicant cites Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at paragraph 48:
…Moreover, it would seem to defeat the purpose of international protection if a claimant would be required to risk his or her life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness.
iii. Generalized Violence
[37] On this issue, the Applicant says that the Delegate found that he did not fall within section 97 of the Act. The Applicant cites Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 (F.C.A.) (Salibian) at paragraph 17:
17 It can be said in light of earlier decisions by this Court on claims to Convention refugee status that
(1) the applicant does not have to show that he had himself been persecuted in the past or would himself be persecuted in the future;
(2) the applicant can show that the fear he had resulted not from reprehensible acts committed or likely to be committed directly against him but from reprehensible acts committed or likely to be committed against members of a group to which he belonged;
(3) a situation of civil war in a given country is not an obstacle to a claim provided the fear felt is not that felt indiscriminately by all citizens as a consequence of the civil war, but that felt by the applicant himself, by a group with which he is associated, or, even, by all citizens on account of a risk of persecution based on one of the reasons stated in the definition; and
(4) the fear felt is that of a reasonable possibility that the applicant will be persecuted if he returns to his country of origin (see Seifu v. Immigration Appeal Board, A-277-82, Pratte J.A., judgment dated 12/1/83, F.C.A., not reported, cited in Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.), at page 683; Darwich v. Minister of Manpower and Immigration, [1979] Employment and Immigration [1979] 1 F.C. 365 (C.A.); Rajudeen v. Minister of Employment and Immigration (1984), 55 N.R. 129 (C.A.), at pages 133 and 134).
[38] The Applicant alleges that the Delegate ignored some of the reasoning set out by the Court of Appeal in Salibian because she only considered section 97 risks and not section 96 risks. The Delegate does not base her reasoning on the appropriate risk which the Applicant faces as a member of a clan because the Delegate takes the position that all Somalis face a risk by reason of clan membership.
[39] The Applicant again cites Ward at paragraph 50:
50 The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state [page725] protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.
[40] The Applicant submits that the Supreme Court of Canada views the complete breakdown of state apparatus as meeting the requirements of risk, but the Delegate in this case has, contrary to law, placed the Applicant completely outside of the notion of risk.
[41] The Applicant also cites and relies upon Osman v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 131 at paragraph 17:
…The Board cannot hide behind the civil war situation and automatically find that claimants from Somalia are not refugees…
[42] The Applicant says that the failure of the Delegate to consider section 96 risks makes a real difference because the Delegate applied an exception which negates only a section 97 claim of risk. If the Delegate had considered section 96 risks, and had not applied a g