CITIZENSHIP AND IMMIGRATION
Exclusion and Removal
Removal of Refugees
Applicant, Convention refugee, became permanent resident in 1999—Now inadmissible for serious criminality under Immigration and Refugee Protection Act (IRPA), s. 36—Issue whether opinion of Minister’s delegate that applicant public danger discloses error in law—Not Minister’s position applicant no longer Convention refugee—As such, cannot be removed unless concluded applicant danger to public: IRPA, s. 115(1), (2)(a), which implement Canada’s obligations under Art. 33 of United Nations Convention Relating to the Status of Refugees—Determination made applicant “danger to the public in Canada”—Removal of person having Convention refugee status exception to non‑refoulement principle enshrined in Convention Art. 33, IRPA, s. 115(1)—Danger opinion is sine qua non to removal—Danger opinion to be made on basis of criminality, without regard to risk factors refugee may face if returned to country from which refuge sought—Fact that criminal record found to justify danger opinion, of itself not allowing for removal—Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, holding Charter, s. 7 demands balancing of risks to deportee against adverse effects of refugee remaining here—Delegate must develop “clear, distinct and separate rationale” as to whether applicant danger to public in Canada—This initial determination must be made independently of balancing of competing interests—Convicted of attempted theft, applicant given 20 days plus 18 months’ probation and while on probation convicted of aggravated assault, sentenced to three years with one year concurrent for weapon possession—While not for Court to dictate how danger opinion to be structured, concerned that opinion beginning with risk assessment before providing clear, distinct rationale refugee in fact danger will lead to confusion—Delegate rated danger high, noting serious nature of crimes, not first‑time offender, on probation when most recent crime committed—This does not constitute clear determination applicant present, future danger to public— Found need to protect Canadian society outweighed humanitarian aspects and therefore determined applicant danger to public—Phrase “considering and balancing all facets of this case” understood as referring to danger to public if applicant remains and risk to him if deported— “Humanitarian aspects” seemingly including deportation risk factors—But until danger determination made, applicant’s return to Sri Lanka not at issue—Minister’s delegate not appreciating necessity for providing separate, distinct danger rationale, unrelated to balancing of competing interests, which becomes relevant at a later stage—Danger opinion set aside for error of law on face of record, matter referred to different delegate for redetermination—Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 36, 115(1),(2)(a)— United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 33—Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7.
Ragupathy v. Canada (Minister of Citizenship and Immigration) (IMM‑3377‑04, 2005 FC 834, Lutfy C.J., order dated 13/6/05, 9 pp.)