Date: 20030825
Docket: IMM-3360-02
Citation: 2003 FC 995
BETWEEN:
MOHAMOUD SHEIKH MURSAL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
INTRODUCTION
[1] These reasons follow the hearing of an application for judicial review of a decision of the Appeal Division (the "Appeal Division") of the Immigration and Refugee Board wherein the Appeal Division denied the Applicant's Appeal from a deportation order made against him. The deportation order is dated the 4th of December, 2001. The decision of the Appeal Division is dated the 21st of June, 2002. By way of relief, the Applicant seeks a writ of certiorari quashing the decision of the Appeal Division.
BACKGROUND
[2] The Applicant is a citizen of Somalia. In February, 1991, he fled Somalia. He arrived in Canada on the 23rd of August, 1991, after transiting Malaysia and Japan. He claimed Convention refugee status. Both he and his wife were determined to be Convention refugees by decision dated the 19th of November, 1993. Thereafter, the Applicant and his wife applied for landing in Canada.
[3] The processing of the Applicant's application for landing was halted in February, 1995 following preparation of a report made pursuant to section 27 of the Immigration Act[1] (the "former Act"). The report alleged that the Applicant was a member of an inadmissible class described in paragraph 19(1)(l) of the former Act in that the Applicant was a senior member or official in the service of the Siad Barre Regime in Somalia, a regime that was engaged in systematic or gross human rights violations.
[4] The relevant portions of subsection 19(1), and subsection 19(1.l) of the former Act read as follows:
19.(1) No person shall be granted admission who is a member of any of the following classes:
...
19.(1) Les personnes suivantes appartiennent à une catégorie non admissible
...
(l) persons who are or were senior members of or senior officials in the service of a government that is or was, in the opinion of the Minister, engaged in terrorism, systematic or gross human rights violations or war crimes or crimes against humanity within the meaning of subsection 7(3.76) of the Criminal Code, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest.
(l) celles qui, à un rang élevé, font ou ont fait partie ou sont ou ont été au service d'un gouvernement qui, de l'avis du ministre, se livre ou s'est livré au terrorisme, à des violations graves ou répétées des droits de la personne ou à des crimes de guerre ou contre l'humanité, au sens du paragraphe 7(3.76) du Code criminel, sauf si elles convainquent le ministre que leur admission ne serait nullement préjudiciable à l'intérêt national.
(1.1) For the purpose of paragraph (1)(l), "senior members of or senior officials in the service of a government" means persons who, by virtue of the position they hold or have held, are or were able to exert a significant influence on the exercise of government power and, without limiting its generality, includes
(a) heads of state or government;
(b) members of the cabinet or governing council;
(c) senior advisors to persons described in paragraph (a) or (b);
(d) senior members of the public service;
(e) senior members of the military and of the intelligence and internal security apparatus;
(f) ambassadors and senior diplomatic officials; and
(g) members of the judiciary. [emphasis added]
(1.1) Les personnes visées par l'alinéa (1)l) sont celles qui, du fait de leur présentes ou anciennes fonctions, sont ou étaient en mesure d'influencer sensiblement l'exercice du pouvoir par leur gouvernement, notamment:
(a) le chef d'état ou le chef du gouvernement;
(b) les membres du cabinet ou du conseil exécutif;
(c) les principaux conseillers des personnes visées aux alinéas a) and b);
d) les hauts fonctionnaires;
(e) les responsables des forces armées, des services de renseignement ou de la sécurité intérieure;
(f) les ambassadeurs et les membres du service diplomatique de haut rang;
g) les juges. [je souligne]
[5] In Somalia, the Applicant had worked as a civil servant for approximately twenty-three (23) years. The highest positions that he achieved in the Somali civil service were Deputy Minister of Post and Telecommunications, a position he held from February, 1980 to June 1984, and Deputy Minister of Mineral and Water Resources, a position he held from June, 1984 to March, 1988. The Applicant was also a member of the Somali National Assembly from February, 1980 to October, 1990. From March 1988 until October 1990, he was Chairman of Social Services Committee of the National Assembly.
[6] Following a hearing, a deportation order was issued against the Applicant.
[7] The Applicant appealed the deportation order issued against him to the Appeal Division. By Order dated the 30th of January, 1997, the deportation order was overturned and the Respondent was directed to examine the Applicant as a person seeking admission at a port of entry.
[8] Counsel on behalf of the Applicant made submissions to the Respondent seeking an exemption from the application of paragraph 19(1)(l) of the former Act on the basis that admission of the Applicant to Canada would "...not be detrimental to the national interest".
[9] The Respondent rejected the Applicant's submissions that his admission to Canada would not be detrimental to the national interest in a decision dated the 29th of March, 2000. In the result, a second inquiry was convened before an adjudicator on the 4th of December, 2001. Before that adjudicator, the Applicant admitted that he had held the Deputy Ministerial posts earlier referred to, in the time periods also referred to. Once again, the Adjudicator found the Applicant to be a person described in paragraph 19(1)(l) of the former Act and, in this case, a person who had been unable to satisfy the Respondent that his admission to Canada would not be detrimental to the national interest. The Applicant was ordered deported.
[10] The Applicant appealed the second deportation order issued against him to the Appeal Division. In a decision dated the 21st of June, 2002, the Appeal Division dismissed the Applicant's second appeal holding that, among other things, the issuance of the deportation order did not engage section 7 of the Canadian Charter of Rights and Freedoms[2] (the "Charter"). Section 7 of the Charter reads as follows:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.
[11] The Applicant had alleged before the Appeal Division that the issuance of the deportation order against him put at risk his "life, liberty and security of the person" in Somalia and that he was deprived of that right without being accorded fundamental justice.
[12] It is the second decision of the Appeal Division relating to the Applicant that is before the Court on this application for judicial review.
THE ISSUES
[13] In the Memorandum of Argument filed on behalf of the Applicant, counsel for the Applicant succinctly describes the issues on this application for judicial review in the following terms:
In deciding that the application of subsection 19(1)(l) of the Immigration Act did not violate the Applicant's rights under section 7 of the Charter:
1. Did the Appeal Division member err in finding that the Applicant's section 7 Charter rights were not engaged? and
2. Did the member err by finding that the application of subsection 19(1)(l), was consistent with the principles of fundamental justice?
[14] When this application for judicial review first came on for hearing before the Court, the Court noted that no notice of constitutional question had been served on the Attorneys General in accordance with section 57 of the Federal Court Act[3] and expressed concern that the constitutional applicability or operability of the former Act was in question. The Court also expressed concern that the written materials before the Court did not fully respond to the issue question of whether or not the Appeal Division had erred in finding that the Applicant's section 7 Charter rights were not engaged. In the result, the hearing was adjourned and reconvened on the 8th of August, 2003, following service of a notice of constitutional question and the filing of supplementary material.
ANALYSIS
[15] I am satisfied that the Appeal Division made no reviewable error in finding that the Applicant's section 7 Charter rights were not engaged by the process leading to the issuance of the second deportation order against the Applicant and by the issuance of that order. I am also satisfied that the foregoing finding is fully determinative on this application for judicial review.
[16] In the reasons for the decision of the Appeal Division that is under review, the Appeal Division wrote:
The appellant submits that as a Convention refugee his right to liberty and security of the person is engaged by the deportation order pursuant to paragraph 19(1)(L). His deportation would deprive him of his section 7 rights, therefore, his removal from Canada must be done in accordance with the principles of fundamental justice. The appellant argues that paragraph 19(1)(L) is not consistent with the principles of fundamental justice, because persons described in the paragraph do not have the opportunity to rebut the presumption that they are or were able to exert significant influence on the exercise of government power. The panel finds that there has been no deprivation of the appellant's section 7 rights and that paragraph 19(1)(L) is consistent with the principles of fundamental justice. The panel relies on the reasoning of the Appeal Division panel in Shirdon. The appellant in Shirdon was a Convention refugee found to be a person described in paragraph 19(1((L). He was an ambassador in the government of Siad Barre. Here, as in Shirdon, the Minister is obliged by section 53(1) of the Immigration Act not to remove the appellant to a country where his life and freedom would be threatened. No action has been taken by the Minister against the appellant with respect to paragraph 53(1) of the Act. In Suresh, the Supreme Court provided guidelines as to procedures that it considers constitutionally acceptable when the Minster [sic] exercises his powers under paragraph 53(1) of the Act. The Minister is obliged to act accordingly. Thus, it is premature to say that the appellant's section 7 rights have been infringed. [citations omitted, emphasis added]
[17] Subsection 53(1) of the former Act read as follows:
53.(1) Notwithstanding subsection 52(2) and (3), no person who is determined under this Act or the regulations to be a Convention refugee, nor any person who has been determined to be not eligible to have a claim to be a Convention refugee determined by the Refugee Division on the basis that the person is a person described in paragraph 46.01(1)(a), shall be removed from Canada to a country where the person's life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless
(a) the person is a member of an inadmissible class described in paragraph 19(1)(c) or subparagraph 19(1)(c.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada;
(b) the person is a member of an inadmissible class described in paragraph 19(1)(e), (f), (g), (j), or (l) and the Minister is of the opinion that the person constitutes a danger to the security of Canada; or
(c) the person is a person described in subparagraph 27(1)(a.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada; or
53.(1) Par dérogation aux paragraphes 52(2) et (3), la personne à qui le statut de réfugié au sens de la convention a été reconnu aux termes de la présente loi ou des règlements, ou dont la revendication a été jugée irrecevable en application de l'alinéa 46.01(1)(a), ne peut être renvoyée dans un pays où sa vie ou sa liberté seraient menacées du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques, sauf si, selon le cas:
(a) elle appartient à l'une de catégories non admissibles visées à l'alinéa 19(1)c) ou au sous-alinéa 19(1)(c.1)(i) et que, selon le ministre, elle constitue un danger pour le public au Canada;
b) elle appartient à l'une des catégories non admissibles visées aux alinéas 19(1)(e), f), g), j), k) ou l) et que, selon le ministre, elle constitue un danger pour la sécurité du Canada;
c) elle relève au cas visé au sous-alinéa 27(1)a.1(i) et que, selon le ministre, elle constitue un danger pour le public au Canada;
(d) the person is a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed and the Minister of the opinion that the person constitutes a danger to the public in Canada.
d) elle relève, pour toute infraction punissable aux termes d'une loi fédérale d'un emprisonnement maximal égal ou supérieur à dix ans, du cas visé à l'alinéa 27(1)d) et que, selon le ministre, elle constitue un danger pour le public au Canada.
[18] It is far from certain at this point in time that the impact of the deportation order outstanding against the Applicant and of the rejection of an appeal from the issuance of that deportation order will inevitably lead to the deportation of the Applicant to Somalia, a country in relation to which he has been determined under the former Act and related regulations to be a Convention refugee and where he alleges that his life or freedom would be threatened for reasons enumerated in the opening words of subsection 53(1) of the former Act.
[19] Subsections 115(1) and (2) of the Immigration and Refugee Protection Act[4] (the "new Act") are somewhat akin to subsection 53(1) of the former Act. Those subsections read as follows:
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.
(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.
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.
(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.
[20] Because the Applicant has been determined in Canada to be a Convention refugee from Somalia, by virtue of the foregoing provisions, he may not be returned to Somalia unless the Respondent forms the opinion that the Applicant should not be allowed to remain in Canada by reasons of the nature and severity of acts committed or of danger to the security of Canada. No such opinion has yet been published. Were the Respondent to form and publish to the Applicant such an opinion, I am satisfied that it would constitute a decision that would be open to judicial review.[5]
[21] In Jekula v. Canada (Minister of Citizenship and Immigration)[6], Justice Evans, then of the Trial Division of the Federal Court, considering a finding of ineligibility under paragraph 46.01(1)(a) of the former Act which, I am satisfied, is of equivalent effect to the deportation order issued against the Applicant, wrote at paragraphs [31] to [33]:
However, before the content of the principles of fundamental justice is considered in this context, the administrative action under review must deprive the applicant of the right to life, liberty and security of the person. The question is, therefore, whether a decision under paragraph 46.01(1)(a) has this effect. In my opinion it does not. First, while it is true that a finding of ineligibility deprives the claimant of access to an important right, namely the right to have a claim determined by the Refugee Division, this right is not included in "the right to life, liberty and security of the person": Berrahma v. Minister of Employment and Immigration ...; Nguyen v. Canada (Minister of Employment and Immigration),... .
Second, it may well be a breach of the rights protected by section 7 for the government to return a non-citizen to a country where she fears that she is likely to be subjected to physical violence or imprisoned. However, a determination that a refugee claimant is not eligible to have access to the Refugee Division is merely one step in the administrative process that may lead eventually to removal from Canada. The procedure followed at the risk assessment to which the applicant will be entitled under section 53 before she is removed can be subject to constitutional scrutiny to ensure that it complies with the principles of fundamental justice, even though the procedure is not prescribed in the Act or regulations: Kaberuka v. Canada (Minister of Employment and Immigration), ... . Moreover, while holding that it was not inconsistent with section 7 for the Immigration Act to limit access to the Refugee Division, Marceau J.A. also said in Nguyen v. Canada (Minister of Employment and Immigration), ...:
It would be my opinion, however, that the Minister would act in direct violation of the Charter if he purported to execute a deportation order by forcing the individual concerned back to a country where, on the evidence, torture and possibly death will be inflicted. It would be, it seems to me . . . at the very least, an outrage to public standards of decency, in violation of the principles of fundamental justice under section 7 of the Charter.
In summary, section 7 rights are not engaged at the eligibility determination and exclusion order stages of the process. However, the applicant cannot be lawfully removed from Canada without an assessment of the risks that she may face if returned to Sierra Leone. And the manner in which that assessment is conducted must comply with the principles of fundamental justice. [citations omitted]
[22] I am satisfied that the foregoing analysis applies on the facts of this matter.
[23] Further, it remains open to the Applicant to apply for landing from within Canada on humanitarian and compassionate grounds under section 25 of the new Act. Once again, if the Applicant were to pursue such an application without success, the rejection of that application would be open to judicial review.
[24] Finally, it is by no means certain that, if the deportation order outstanding against the Applicant were enforced, he would be removed to Somalia or to another country from which he would in turn inevitably be removed to Somalia. Sections 238, 239 and 241 of the Immigration and Refugee Protection Regulations[7] read as follows;
238. (1) A foreign national who wants to voluntarily comply with a removal order must appear before an officer who shall determine if
(a) the foreign national has sufficient means to effect their departure to a country that they will be authorized to enter; and
(b) the foreign national intends to voluntarily comply with the requirements set out in paragraphs 240(1)(a) to (c) and will be able to act on that intention.
238. (1)L'étranger qui souhaite se conformer volontairement à la mesure de renvoi doit comparaître devant l'agent afin que celui-ci vérifie :
a) s'il a les ressources suffisantes pour quitter le Canada à destination d'un pays où il sera autorisé à entrer;
b) s'il a l'intention de se conformer aux exigences prévues aux alinéas 240(1)a) à c) et s'il sera en mesure de le faire.
(2) Following the appearance referred to in subsection (1), the foreign national must submit their choice of destination to the officer who shall approve the choice unless the foreign national is
(a) a danger to the public;
(b) a fugitive from justice in Canada or another country; or
(c) seeking to evade or frustrate the cause of justice in Canada or another country.
(2) L'étranger doit ensuite soumettre à l'approbation de l'agent le pays de destination qu'il a choisi; l'approbation n'est refusée que dans les cas suivants :
a) l'étranger constitue un danger pour le public;
b) il est un fugitif recherché par la justice au Canada ou dans un autre pays;
c) il cherche à échapper à des contraintes juridiques au Canada ou dans un autre pays.
239. If a foreign national does not voluntarily comply with a removal order, a negative determination is made under subsection 238(1) or the foreign national's choice of destination is not approved under subsection 238(2), the removal order shall be enforced by the Minister.
...
239. Si l'étranger ne se conforme pas volontairement à la mesure de renvoi, si une décision défavorable est rendue aux termes du paragraphe 238(1) ou si son pays de destination n'est pas approuvé aux termes du paragraphe 238(2), le ministre exécute la mesure de renvoi.
...
241. (1) If a removal order is enforced under section 239, the foreign national shall be removed to
(a) the country from which they came to Canada;
(b) the country in which they last permanently resided before coming to Canada;
(c) a country of which they are a national or citizen; or
(d) the country of their birth.
241. (1) En cas d'exécution forcée, l'étranger est renvoyé vers l'un des pays suivants :
a) celui d'où il est arrivé;
b) celui où il avait sa résidence permanente avant de venir au Canada;
c) celui dont il est le citoyen ou le national;
d) son pays natal.
(2) If none of the countries referred to in subsection (1) is willing to authorize the foreign national to enter, the Minister shall select any country that will authorize entry within a reasonable time and shall remove the foreign national to that country.
(3) Despite section 238 and subsection (1), the Minister shall remove a person who is subject to a removal order on the grounds of inadmissibility referred to in paragraph 35(1)(a) of the Act to a country that the Minister determines will authorize the person to enter.
(2) Si aucun de ces pays ne veut recevoir l'étranger, le ministre choisit tout autre pays disposé à le recevoir dans un délai raisonnable et l'y renvoie.
(3) Malgré l'article 238 et le paragraphe (1), si l'étranger fait l'objet d'une mesure de renvoi du fait qu'il est interdit de territoire au titre de l'alinéa 35(1)a) de la Loi, le ministre le renvoie vers le pays qu'il détermine et qui est disposé à le recevoir.
[25] Thus, there is some flexibility, both for the Applicant himself and for the Respondent, to determine a destination of removal other than Somalia or another country that would be a mere transit to Somalia destination.
[26] As noted earlier in these reasons, in coming to Canada from Somalia, the Applicant transited both Malaysia and Japan. The evidence before the Court provides no basis for a determination that either of those countries would accept the Applicant on a secure basis. That being said, neither does the evidence indicate that neither of those countries would accept the Applicant nor does it indicate that no other country of safe and secure destination exists.
CONCLUSION
[27] Based upon the foregoing analysis, I conclude that the Appeal Division made no reviewable error in concluding that it would have been premature for it to have undertaken a full analysis of whether or not the Applicant's rights under section 7 of the Charter had been infringed by the mere issuance of a deportation order against him.
[28] In the result, this application for judicial review will be dismissed.
CERTIFICATION OF A QUESTION
[29] These reasons will issue without an accompanying Order. Counsel for the Applicant will have seven (7) days from the date these reasons are issued to serve and file submissions on any serious question of general importance that the Applicant would wish to propose for certification.
Thereafter, counsel for the Respondent will have seven (7) days to serve and file any responding submissions and counsel for the Applicant will have a further three (3) days to serve and file any reply submissions. Thereafter, an Order will issue.
_______________________________
Judge
Ottawa, Ontario
August 25, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3360-02
STYLE OF CAUSE: Mohamoud Sheikh Mursal v
The Minister of Citizenship and Immigration
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: August 8, 2003
REASONS FOR ORDER : THE HONOURABLE MR. JUSTICE GIBSON
DATED: August 25, 2003
APPEARANCES:
Mr. Michael Bossin FOR APPLICANT
Ms. Lynn Marchildon FOR RESPONDENT
SOLICITORS OF RECORD:
Community Legal Services FOR APPLICANT
Ottawa, Ontario
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
[2] Part I of the Constitution Act, 1982 (R.S.C. 1985, Appendix II, No. 44), being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[5] The position enunciated in this paragraph was urged on behalf of the Respondent and was not substantially challenged on behalf of the Applicant. However, since the close of the hearing, the Court has developed some reservations with regard to it. While its merit is compelling, section 95(2) of the new Act provides that a protected is a person on whom refugee protection is conferred under subsection 95(1) of the new Act and whose claim or application has not subsequently been deemed to be rejected under certain other provisions of the new Act. The Applicant is not a person on whom refugee protection was conferred under the new Act but rather under the former Act. Nor does the evidence before the Court establish that he would be recognized as a Convention refugee by Somalia. Thus, subsection 115(1) of the new Act may not afford the Applicant protection against removal to Somalia. As the application of subsection 115(1) to the Applicant is not of itself determinative, the Court did not seek to reopen the hearing to examine this issue.
[6] [1999] 1 F.C. 266 (F.C.T.D.), affirmed, [2000] F.C.J. No. 1956 (C.A.).
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