Saini v. Canada (Minister of Citizenship and Immigration), 2003 FCT 154

20030212

Docket: IMM-826-02

Neutral citation: 2003 FCT 154

Toronto, Ontario, Wednesday, the 12^th day of February, 2003

PRESENT:      THE HONOURABLE MADAM JUSTICE SNIDER

BETWEEN:

                                                         PARMINDER SINGH SAINI

Applicant

- and -

THE MINISTER

OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]              This is an application for judicial review of a decision of the Citizenship and Immigration Officer (the "Immigration Officer") dated February 7, 2002 wherein the Immigration Officer determined that Parminder Singh Saini (the "Applicant") had insufficient humanitarian and compassionate ("H & C") grounds for the processing of the application for permanent residence from within Canada.

BACKGROUND

[2]              In 1984, the Applicant, a citizen of India, was convicted in Pakistan of hijacking a passenger airliner from India to Pakistan. After serving 10 years in jail in Pakistan, the Applicant came to Canada in February 1995 under a false name and made a successful claim for refugee status. In or about September 1995, his true identity came to light and he was arrested by immigration authorities.

[3]              The Applicant was made the subject of a report pursuant to s. 19(1)(c) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") and it was concluded that the Applicant was inadmissible to Canada. A conditional removal order was made against the Applicant and the Minister notified him that she was considering certifying him as a danger to the public. Ultimately, after several other proceedings, the Applicant was so certified in 1997.

[4]              The Applicant was granted a pardon for the offence committed in Pakistan and commenced Federal Court proceedings for a declaration that he could not be removed as a result of the pardon. The Applicant was successful in the Trial Division (Saini v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 253 (T.D.)) but it was overturned by the Federal Court of Appeal (Saini v. Canada (Minister of Citizenship and Immigration, [2001] S.C.C.A. No. 622. Leave to appeal that decision to the Supreme Court of Canada was dismissed.

[5]              In June 2000, the Applicant applied for an exemption from the subsection 9(1) requirement to apply for permanent residence outside Canada, based upon H & C considerations, pursuant to subsection 114(2) of the Act. As part of the application, the Applicant submitted documentation concerning the risk he would face if returned to India, his University educational pursuits in Canada, letters of support from numerous sources, proof of his economic independence, his pardon letter from the Pakistani government and a personal statement. The Immigration Officer denied the application for the exemption.

[6]              Since the decision of the Immigration Officer that is in issue in this case, the Applicant has also applied for a reconsideration of the danger opinion. That application was denied and an application for leave to appeal that decision is before this Court.

THE IMMIGRATION OFFICER'S DECISION

[7]              The Immigration Officer reviewed the evidence that was submitted by the Applicant and stated:

Applicant's counsel, Mr. Lorne Waldman submitted that applicant was very young at the time when the offence was committed. He responded emotionally to a historical moment, after the attack on the Golden Temple by the Indian army and many were killed including innocent Sikhs. He is fearful of returning to India because of the human rights violations in India and others in similar situation who have returned have been killed. Counsel submitted that the applicant, a high profile person given the fact that he committed a high profile crime, is at risk of serious mistreatment in India. Counsel has provided documentation, including reports on human rights abuses against Sikhs in the Punjab, declaration from individuals, such as a human rights lawyer from the Punjab who is currently a foreign legal consultant with the law society of British Columbia. Counsel also submitted that many years have passed and that was the only offence applicant was convicted of. For the 7 years in Canada, almost 4 years since his release from immigration detention, he has not posed a danger to the public, nor has he been convicted of any further offences.

[8]              The Immigration Officer, however, concluded that the personal risk the Applicant may face upon returning to India was outweighed by the risk that he posed to the public of Canada. He found:

I have reviewed documents provided and I recognize the risk factors applicant and counsel submitted. I also note that the applicant committed an offence terrifying to the civilized world. He was found guilty, convicted of such an offence and served 10 years imprisonment. The Federal Court of Canada has determined that the pardon applicant received from the Pakistani government does not have the same effect as the pardon system in Canada. I also note that the Federal Court of Canada has upheld the effectiveness of deportation order and that the danger opinion certified by the Minister is also effective. The passage of time does not in itself reduce the seriousness of the crime committed. Therefore, I am not satisfied that the personal risk he may face upon returning to India would outweigh the risk that applicant poses to the public of Canada. Having considered all the information provided, I am not satisfied that the hardship on returning to India would be disproportionate or undeserved.

[9]              In conclusion, the Immigration Officer did not find that the establishment of the Applicant warranted a waiver of subsection 9(1) of the Act.

ARGUMENTS

Applicant's Submissions

[10]          The Applicant raised three issues in his written submissions. They are:

• ·                        Did the Immigration Officer err in law in concluding that the Applicant posed a danger to the public in Canada at the present time and with respect to her conclusions on the existence of humanitarian and compassionate grounds?
• ·                        Is Section 7 of the Charter engaged in the determination as to whether the Applicant should be returned to India in circumstances where he might be at risk of torture?

[11]          During oral submissions, the Applicant commented that his Section 7 Charter issue has been superceded due to the availability of a pre-removal risk assessment ("PRRA") provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). Accordingly, arguments related to this issue were not pursued.

[12]          With respect to the first issue, the Applicant argued that the procedure followed by the Immigration Officer was deficient and did not accord with fundamental justice. The Immigration Officer was required in this case to assess the risk to the Applicant and to balance that against the risk to the public. While the Immigration Officer acknowledged that the Applicant was at risk, she failed to assess or quantify the nature and extent of the risk that the Applicant faced. Her reasons do not provide the Applicant with any information on how the balancing was carried out. The only negative factor for the Applicant was the danger opinion. In the view of the Applicant, this decision could not withstand a probing examination; it was not a reasonable decision on any standard.

[13]          With respect to the second issue, the Applicant submitted that the Immigration Officer erred in concluding that the Applicant was a risk to the public. He argued that the passage of time is directly relevant to the issue of whether, at the time of the decision, the Applicant still posed a danger to the public. The Immigration Officer is required to make a present determination as to whether or not the Applicant posed a danger to the public. The past determination by the Minister is insufficient. That danger opinion was made in 1997 while the Applicant was in detention. He has now been at large for over five years without any criminal offences.

The Respondent's Submissions

[14]          The Respondent made the submission that the Court must consider the nature of the Immigration Officer's decision. If granted, the Applicant would be allowed an exemption from the requirement to apply from outside Canada for landed immigrant status.

[15]          The Respondent submitted that the Immigration Officer's decision should be reviewed with considerable deference.

[16]          In the Respondent's submission, the Immigration Officer's decision was reasonable. The officer did not ignore the factors in the Applicant's favour. He noted the applicant's ties to Canada, the human rights abuses in India and the fact that he had not re-offended. These facts were weighed against the fact that the Applicant was a terrorist who endangered many lives. This was a reasonable finding and the Court should not re-weigh the evidence. The Supreme Court has held that a delegate of the Minister who weighs security issues against the risk of returning an applicant is entitled to considerable deference (Suresh v. Canada (Minister of Citizenship and Immigration), [2002] S.C.J. No. 3 (QL)).

ANALYSIS

[17]          For the reasons that follow, I am of the view that this application should be dismissed.

[18]          It is important to note the nature of the decision of the Immigration Officer. The relevant statutory provisions are as follows:

[19]          I agree with the Respondent when he stated that:

The existence of a humanitarian and compassionate (H & C) review offers an individual special and additional consideration for an exemption from Canadian immigration laws, which are otherwise universally applied:

Those that complain that they have not been made the beneficiary of a regulation adopted under s. 114(2) are in effect complaining that they have not received a special benefit.. the Court should not interfere with the exercise of discretion by an Officer or body authorized by statute to exercise that discretion unless it is clear that the discretion has been exercised in bad faith or on grounds unrelated to the purposes for which the discretion is granted.

Vidal v. Canada (M.E.I.) (1991), 13 Imm. L.R. (2d) 123, 49 Admin. L.R. 118, 41 F.T.R. 118

Respondent's Memorandum of Argument, para. 7

(Emphasis in original)

[20]          This was not a process that could lead to a danger opinion or a reconsideration of a danger opinion. Nor was it a PRRA. In that context, I note that the Applicant is currently pursuing a reconsideration of the danger opinion and would be eligible to pursue a PRRA, in accordance with the provisions of IRPA.

[21]          The Immigration Officer clearly considered all the relevant factors in favour of the Applicant including:

• ·                        the risk to the Applicant of a return to India;
• ·                        the fact that he had not "posed a danger to the public, nor has he been convicted of any further offences" in the four years since his release from detention;
• ·                        the family and community support given to the Applicant.

[22]          These factors were weighed against the seriousness of the offence committed by the Applicant, the existence of a deportation order and the danger opinion certified by the Minister.

[23]          In my view, the Applicant is arguing that I should re-weigh the factors, giving more weight to those factors in favour of the Applicant. I decline to do so.

[24]          Specifically, the Applicant argues that the Minister ought to have "quantified" or assessed the factors in her reasons. I believe that the Immigration Officer was not required, in these particular circumstances, to provide further analysis to support her weighting. Her decision was, in my view, reasonably open to her on the evidence. Of particular importance is the danger opinion that is still in effect. As long as that opinion is in effect, it provides strong support for the statement of the Immigration Officer that "I am not satisfied that the personal risk he may face upon returning to India would outweigh the risk the Applicant poses to the public of Canada." The Immigration Officer accepted as valid the conclusion of the Minister who issued the danger opinion. This was not a proceeding in which the status of that opinion was in question. Accordingly, it was reasonable, in this case, for the Officer to give it considerable weight in her decision.

[25]          With respect to the second issue raised by the Applicant, the argument is that the Immigration Officer should have considered the passage of time since the danger opinion. During that time, the Applicant has been at large and not engaged in criminal activity. The Applicant referred to several cases of this Court where the passage of time was considered relevant.

[26]          I do not find the three cases referred to as particularly helpful; two of them involved judicial reviews of denial of application for rehabilitation in order to become permanent residents (Dee v. Canada (Minister of Citizenship and Immigration), [2000] F.C. 345 (T.D.); Thamber v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 332 (T.D.) (QL)) and one of them involves a determination in relation to a danger opinion (Thompson v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1097 (T.D.) (QL)). That is not the situation here.

[27]          Further distinction can be made in these cases by the nature of the original offences. With respect to the offence of the Applicant, this is what was stated by the Federal Court of Appeal in Canada Minister of Citizenship and Immigration v. Parminder Singh Saini [2002] 1 F.C. 200 at paragraph 43:

... The gravity of the crime of hijacking is obvious; it is universally condemned and punished severely. Although there is no evidence of the particular circumstances of this offence, hijacking is an offence that is always very serious. Section 76 of the Criminal Code makes it an offence punishable by life imprisonment. Canada has ratified international treaties, such as the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16 December 1970, 860 U.N.T.S. 105, and the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, concluded at Montréal on 23 September 1971, 974 U.N.T.S. 178, which recognize that hijacking aircraft jeopardizes the safety of persons and property, seriously affects the operation of air services, and undermines the confidence of the peoples of the world in the safety of civil aviation. These international instruments do no require Canada to deny entry to any person convicted of hijacking, but strongly emphasize the serious nature of the crime and encourage signatories to severely punish hijacking, take actions to discourage it, and generally co-operate [page 227] in the international condemnation of this crime. It is clear that hijacking is considered to be among the most serious of criminal offences. Hijacking may combine, in one act, numerous offences including kidnapping, unlawful confinement, theft, assault, extortion, and potentially murder. It entails the violation of individual human rights such as the right to life, personal security and freedom of movement. It financially damages airlines, associated industries and the economy as a whole. Hijacking is not the mere seizure of an aircraft for its own sake; it exploits control over the aircraft as "a weapon of psychological coercion and extortion directed against governments" (see P. Wilkinson, Terrorism and the Liberal State (London: MacMillan Press, 1977), at page 207). Moreover, the victims of this crime are not limited to those persons unfortunate enough to be physically affected, nor are the effects of hijacking limited to one government. Hijacking terrorizes all nations and society as a whole.

[28]          Contrary to the arguments of the Applicant, the Immigration Officer did not ignore the time that is passed; it was specifically referred to in the decision. Nevertheless, she found that the seriousness of the offence carried very heavy weight. That weighting was reasonably undertaken. Accordingly, the conclusion that she reached that "I am not satisfied that hardship would be unusual, undeserved, or disproportionate should applicant be required to leave Canada and apply for an immigrant visa in the normal manner" is not unreasonable.

[29]          In all the circumstances of this case, I am of the view that the decision of the Immigration Officer should stand.

Question for Certification

[30]          The Respondent suggested the following question for certification:

1.          In a H & C application based on an allegation of risk to the Applicant, is the Immigration Officer required to quantify the risk? If so, what are the minimum standards for quantification of risk?

[31]          I note that this case, which is one of a considerable number of cases involving the Applicant that have been dealt with by immigration officials and which have come before the Court, is very unusual. I doubt whether this question is one of general importance. Accordingly, I decline to certify the question.

                                                  ORDER

This application for judicial review is dismissed.

            "Judith A. Snider"                   

J.F.C.C.

FEDERAL COURT OF CANADA

TRIAL DIVISION

Names of Counsel and Solicitors of Record

DOCKET:                                              IMM-826-02

STYLE OF CAUSE:              PARMINDER SINGH SAINI

Applicant

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

DATE OF HEARING:                        WEDNESDAY, FEBRUARY 5, 2003

PLACE OF HEARING:                      TORONTO, ONTARIO

REASONS FOR ORDER

AND ORDER BY:                              SNIDER J.

DATED:                                                 WEDNESDAY, FEBRUARY 12, 2003

APPEARANCES BY:                          Mr. Lorne Waldman

                                                                                                                     For the Applicant

Mr. David Tyndale

                                                                                                                      For the Respondent

SOLICITORS OF RECORD:           Lorne Waldman

Barrister & Solicitor

281 Eglinton Avenue East

Toronto, Ontario.

M4P 1L3

For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent

FEDERAL COURT OF CANADA

                                                               Date: 20030212

                                                                 Docket: IMM-826-02

BETWEEN:

PARMINDER SINGH SAINI

Applicant

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER

AND ORDER