Date: 20060324
Docket: IMM-1470-06
Citation: 2006 FC 382
Ottawa, Ontario, March 24, 2006
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
MOSTAFA DADAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
[1] Mr. Dadar seeks an order staying his deportation from Canada to Iran, scheduled for March 26, 2006, pending determination of his application for leave and judicial review of the Minister's decision that he is "ineligible for a pre-removal risk assessment (PRRA) on the basis that he is a Convention refugee".
[2] As a preliminary matter, on the request of the Minister and the consent of the applicant, the style of cause will be amended to add the Minister of Public Safety and Emergency Preparedness as a respondent.
[3] It is common ground that the applicant must meet the tri-partite test articulated in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.) (Toth) that there exists a serious issue, that irreparable harm will result if the stay is not granted and that the balance of convenience favours the applicant. It is also common ground that the test is conjunctive so that failure to meet any one of the requirements will be fatal to the motion.
I. Background
[4] For context, a synopsis of the factual and procedural background is required. Mr. Dadar was granted mandate refugee status in Pakistan by the United Nations High Commissioner for Refugees (UNHCR). He became a permanent resident of Canada on December 2, 1988, "following the issuance of an immigrant visa by Canadian immigration officials in Islamabad as a Convention refugee".
[5] Mr. Dadar was a member of the Imperial Iranian Air Force during the reign of the Shah of Iran. In 1982, he actively participated in an unsuccessful coup d'état against the Iranian regime. He and others were imprisoned and tortured. In 1987, he escaped from prison, fled to Pakistan and from there, came to Canada with his wife (now estranged).
[6] In Canada, Mr. Dadar was convicted of assaults on his wife and theft under $5000. After he and his wife separated, and while he was on probation, he was convicted of an aggravated assault upon his girlfriend. She was seriously injured, was hospitalized for several months, and was left permanently disabled. He was sentenced to 8 years in prison. He was incarcerated until his statutory release date on May 15, 2002, when he was placed in immigration detention. Mr. Dadar's appeal of his conviction was dismissed, as was his application for leave to appeal to the Supreme Court of Canada.
[7] At an inquiry held before an Immigration Adjudicator, under the Immigration Act, R.S.C. 1985, c. I-12 (the former Act), Mr. Dadar was found to be a person described in paragraph 27(1)(d) of the former Act (he had been convicted of an offence for which a term of imprisonment of more than six months had been imposed). On June 18, 2001, he was ordered deported pursuant to subsection 32(2) of the former Act. A danger opinion under subsections 53(1) and 70(5) of the former Act was issued on October 30, 2000, finding Mr. Dadar to be a danger to the public. The Minister consented to an application for judicial review of that decision.
[8] On November 21, 2002, a second danger opinion was issued under paragraph 115(2)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). Again, the Minister consented to an application for judicial review of the determination that Mr. Dadar was a danger to the public.
[9] On March 8, 2004, a ministerial delegate determined, for the third time, that Mr. Dadar constitutes a danger to the public. The application for judicial review of that danger opinion (which included a risk assessment) was dismissed: Dadar v. Canada(Minister of Citizenship and Immigration) (2004), 42 Imm. L.R. (3d) 260 (F.C.) (Dadar). It is significant that, on judicial review, the court conducted an extensive and detailed analysis of the ministerial delegate's decision with respect to the danger posed by Mr. Dadar as well as with respect to the risk that he faced, if returned to Iran. The Minister's delegate had concluded that the human rights situation in Iran is precarious and that Mr. Dadar would be subject to questioning on his return. The Minister's delegate also concluded that he would be of limited interest to Iranian authorities due to his former membership in a pro-monarchist organization which no longer posed a threat to the current regime. On judicial review, Madam Justice Dawson determined that the view of the ministerial delegate was "supported by the evidence that monarchists no longer posed a threat to the regime and there had been no politically motivated arrests or prosecution of monarchists over the past several years". Justice Dawson concluded that the risk assessment portion of the danger opinion was based upon a proper consideration of the relevant factors. Neither party sought certification of a question in relation to Justice Dawson's decision.
[10] On November 29, 2004, Mr. Dadar issued a communication to the office of the United Nations Committee Against Torture (UNCAT) alleging that he would be subjected to torture and execution if he were deported to Iran. On November 25, 2005, after considering the submissions of Mr. Dadar and Canada, UNCAT concluded that "substantial grounds exist for believing that the complainant may risk being subjected to torture if returned to Iran". UNCAT urged Canada to inform it, within 90 days, of the steps taken by Canada in response to the UNCAT decision. On March 10, 2006, orally, and on March 22nd , in writing, Canada informed UNCAT that "[w]hile Canada takes its international rights obligations very seriously, the (sic) Canada wishes to confirm that it is Canada's intention to remove [Mr. Dadar] to Iran".
II. Preliminary Ruling
[11] After the motion records were filed, a number of further affidavits were submitted by Mr. Dadar. I reviewed those affidavits, but ultimately directed that they not be accepted for filing. At the outset of the hearing of this motion, I provided a formal ruling with respect to the affidavits. A copy of that ruling is attached to these reasons as Schedule "A".
III. Serious Issue
[12] Mr. Dadar claims that, as a mandate refugee, he is entitled to a PRRA. He refers to Kim v. Canada(Minister of Citizenship and Immigration) (2005), 30 Admin. L.R. (4th) 131; 44 Imm. L.R. (3d) 201 (F.C.) to indicate the distinction between a mandate refugee and a Convention refugee. He argues that because subsection 115(1) of the IRPA refers only to a Convention refugee, he is, by virtue of subsection 112(1) of the IRPA, eligible to apply for and receive a PRRA.
[13] There is no debate that Mr. Dadar was a mandate refugee. However, on the record, the evidence indicates that he was issued an immigrant visa, as a Convention refugee, by Canadian immigration officials in Islamabad. Mr. Dadar does not dispute that this is the case. In either case, he is a person referred to in paragraph 95(1)(a) of the IRPA and qualifies as a protected person under subsection 115(1).
[14] Next, Mr. Dadar argues that because the PRRA is "rolled into the danger opinion", section 7 of the Charter applies. He contends that since the risk assessment is now two years old and there is no provision in the IRPA to consider new evidence, there is a gap in the system "that creates an anomaly".
[15] In Dadar, the court disposed of a section 7 Charter argument on the basis of the ministerial delegate's conclusion that Mr. Dadar would be of limited interest to Iranian authorities and that, therefore, he did not face a substantial risk of torture or death on deportation. There was no evidentiary basis to engage the protection guaranteed by section 7 of the Charter.
[16] Mr. Dadar's argument implicitly acknowledges that the danger opinion (under subsection 115(2) of the IRPA) provides a mechanism equivalent to the PRRA in terms of assessing the risk to an individual who is to be removed. It is correct that a person whose PRRA is rejected and who has remained in Canada may make another PRRA application, but that subsequent application does not result in a stay of a removal order: Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations), section 165. While Mr. Dadar now argues that no provision exists for "reconsideration" of risk, he still does not provide any evidence to refute or challenge the conclusion arrived at by the ministerial delegate that he does not face a substantial risk of torture or death on deportation. He points only to the UNCAT decision in support of his position.
[17] I will refer to the UNCAT decision later in these reasons. For now, it is sufficient to say that its decision is not binding on Canada: Ahani v. Canada(Attorney General) (2002), 58 O.R. (3d) 107 (Ont. C.A.), leave to appeal dismissed, [2002] 2 S.C.R. v (Ahani). Canada's election not to follow a non-binding recommendation cannot be construed so as to found a constitutional challenge. Further, having carefully reviewed the UNCAT decision, it does not refer to any evidence that impeaches that relied upon by the ministerial delegate in the danger opinion that was sustained by this court. In addition, there is no evidence before me that suggests a change in country conditions from those referenced earlier by the ministerial delegate and this court.
[18] In Mr. Dadar's submission, the Minister did not deem him ineligible to apply for a PRRA on the basis that he is a refugee. Rather, Mr. Dadar submits, it was because he was determined to be a danger. Because a danger opinion does not preclude a PRRA, Mr. Dadar submits, he is entitled to apply for a PRRA.
[19] It seems to me that this issue has been canvassed in the foregoing analysis. What Mr. Dadar seeks is a risk assessment. Although he is ineligible to apply for a PRRA (pursuant to subsection 112(1) of the IRPA), his risk assessment was incorporated into the danger opinion. Therefore, he is not being deported without the benefit of an analysis of the risk he faces.
[20] Referring to the decision of the Supreme Court of Canada in Suresh v. Canada(Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 (Suresh), Mr. Dadar contends that the "exceptional circumstances" threshold for the justification of deportation to a risk of torture does not apply to him and should not be condoned. Mr. Dadar is misinformed. This matter does not give rise to the application of the "exceptional circumstances" threshold referred to in Suresh. The ministerial delegate concluded that Mr. Dadar would not be at risk if returned to Iran. Moreover, I reiterate that, on judicial review, Justice Dawson determined that the finding that monarchists are no longer at risk was supported by the evidence.
[21] Mr. Dadar's arguments, in substance, constitute a disguised attempt to challenge the ministerial delegate's danger opinion. That determination was sustained on judicial review by this court. Mr. Dadar was represented by counsel in that proceeding as he is on this motion. No question for certification was posed to Justice Dawson. A motion for a stay of deportation is not a forum in which to challenge a decision that has already been the subject of an unsuccessful judicial review application.
[22] Last, Mr. Dadar argues that Canada's response to the UNCAT decision should not be tolerated by the court. He states that this is the first time Canada has not acceded to the views of UNCAT. The UNCAT decision, it is said, constitutes new evidence giving rise to a serious issue.
[23] I have already noted that, as a matter of law, the UNCAT decision is not binding on Canada. As in Ahani, this case demonstrates the proper role of the executive and the proper role of the judiciary. It is not for the judiciary to second guess Canada's decision not to adopt the UNCAT decision. Rather, it is a matter for a "court of public or international opinion, not for a court of law".
[24] I am unable to conclude that Mr. Dadar has demonstrated the existence of a serious issue.
IV. Irreparable Harm
[25] Mr. Dadar maintains that the UNCAT decision constitutes prima facie evidence of irreparable harm. He notes that UNCAT referred to a newspaper article that reported his detention and trial and he complains that the ministerial delegate did not refer to it because it was not translated.
[26] Again, that is a collateral challenge to a decision that has been subject to judicial review. Moreover, the ministerial delegate's decision did not conclude that Mr. Dadar would not have been at risk in Iran several years ago.
[27] As for the UNCAT decision constituting prima face evidence of irreparable harm, as stated earlier, nowhere in the UNCAT decision is there reference to any evidence which impeaches that relied upon by the ministerial delegate and that formed the record before this court on judicial review. There is nothing in the UNCAT decision that suggests that the ministerial delegate's conclusion - that monarchists no longer pose a threat to the current Iranian regime and that there have been no politically motivated arrests or prosecution of monarchists over the past several years - is anything other than accurate. Rather, the UNCAT decision appears to turn on the ministerial delegate's alternative finding that even if Mr. Dadar were at risk, there are exceptional circumstances justifying his deportation. As I have already stated, Justice Dawson found no fault with the ministerial delegate's primary finding that Mr. Dadar would not be at risk, if returned to Iran. This case does not raise the issue of "exceptional circumstances" referred to in Suresh.
[28] The jurisprudence of this court has consistently held that the irreparable harm prong of the Toth test is not satisfied by speculation. There must be a reasonable likelihood, or substantial reasons for believing, that irreparable harm will result: Toth; Suresh v. Canada(Minister of Citizenship and Immigration), [2000] 2 F.C. 592 (C.A.). Mr. Dadar has not satisfied this prong of the test because he has not provided any evidence to establish that there is a reasonable likelihood that he will suffer irreparable harm.
V. Balance of Convenience
[29] The balance of convenience favours the respondents. There is a public interest in enforcing the IRPA and it is not outweighed by delaying Mr. Dadar's deportation. Subsection 48(2) of the IRPA requires the enforcement of a removal order as soon as is reasonably practicable. That requirement must prevail in this case.
ORDER
THIS COURT ORDERS THAT the motion is dismissed.
"Carolyn Layden-Stevenson"
SCHEDULE "A"
to the
Reasons for order and order dated March 24, 2006
in
MOSTAFA DADAR
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
IMM-1470-06
RULING (regarding the submission of additional affidavits by the applicant after the filing of the motion records)
Subsequent to the filing of the motion records of both parties, the applicant submitted four additional affidavits, specifically the affidavits of:
Abid Sheikh sworn March 22, 2006 with exhibits "A" to "F" attached;
Kenneth Douglas Burns Fitch sworn March 23, 2006;
Laurette M. Walker sworn March 23, 2006 with exhibits "A" to "F" attached;
Second affidavit of Laurette M. Walker sworn March 23, 2006.
The affidavits were not accepted for filing. The nature of this proceeding is narrow. It is an interlocutory motion wherein the applicant is seeking a stay of deportation pending a determination on his application for leave and judicial review, that is, pending a determination on his underlying application. The underlying application was filed on March 20, 2006 as Court File No. IMM-1470-06. It identifies the impugned decision as being a decision of the Minister on November 29, 2005 to deny the applicant a pre-removal risk assessment (PRRA) prior to deportation as required by subsection 112(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
It is evident, from the written submissions of counsel for both parties that counsel are conversant with the requisite conditions regarding a stay of deportation. The applicant must meet the tri-partite test articulated in Toth v. Canada(Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.) and establish: the existence of a serious issue and irreparable harm and that the balance of convenience lies in his favour. The conditions are conjunctive.
The serious issue prong of the test relates to the underlying application. Therefore, the applicant's task is to identify a serious issue in relation to the refusal to grant a PRRA. Affidavits that purport to deal with the merits of a prior criminal investigation, or of the applicant's criminal conviction, or of the ministerial delegate's danger opinion dated March 8, 2004 in relation to which an application for judicial review was dismissed on October 12, 2004; or of the decision of the UN Committee Against Torture dated November 25, 2005 are not relevant for purposes of this motion. The serious issue in this motion is confined to one that arises out of the underlying application.
Consequently, since the affidavits in question relate to matters other than those arising out of the underlying application, they are irrelevant, were not accepted and will not be considered.
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