Date: 20010130
Docket: IMM-4922-97
BETWEEN:
ALI REZA MOKTARI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON J.
Background:
[1] The applicant seeks judicial review of a decision made by Senior Immigration Officer Kathleen Galloway. In his application for leave and for judicial review, the applicant sets forth as follows the decision under attack:
| The Applicant seeks leave of the Court to commence an Application for Judicial Review to appeal the decision of a single member tribunal acting in the capacity of a [sic] Immigration Officer. The decision was made by Ms. Kathy Galloway, acting in the capacity of an Immigration Officer, denying the right to the Applicant [sic] leave Canada to a country of his choice. The decision was made by Kathy Galloway, Immigration Officer, Citizenship and Immigration Centre, 10032 - 103 Street, Edmonton, Alberta, T5J 4K8, Telephone 429-3391 in a letter to the Applicant's solicitor dated October 30th, 1997 and communicated to the Applicant on or about November 7th, 1997. |
[2] On December 1, 1997, Lutfy J. (as he then was) allowed the applicant to amend the last sentence of the above paragraph by adding the words "and in her letter of November 19, 1997" immediately after the words "November 7, 1997".
[3] Ms. Galloway's letters dated October 30 and November 19, 1997, both addressed to the applicant's solicitors, read as follows:
| (a) Letter of October 30, 1997 - |
| As you know, the removal order made against Mr. Moktari is now executable, the Federal Court having dismissed his application for leave and judicial review of the Minister's opinion that he constitutes a danger to the public in Canada. |
| We are advised by the prosecution that although the charges faced by Mr. Moktari are serious, having regard to all of the circumstances they will be stayed once his removal order is confirmed. Removal arrangements are underway and the necessity to address release pending removal is not anticipated. |
| (b) Letter of November 19, 1997 - |
| We are unable to accommodate your November 17th request to postpone Mr. Moktari's removal pending the outcome of his forthcoming Section 114(2) application. Further, the Director of Immigration for the Prairie Region has reviewed a request submitted by the Edmonton Police Service and instructed that removal is to proceed as scheduled. |
| As you may be aware, on May 13, 1996 the Minister of Immigration issued opinions pursuant to Section 53(1)(d) and A70(5) of the Immigration Act that Mr. Moktari constitutes a danger to the public in Canada. The deportation order made against him on September 5, 1996 was based on a 27(1)(d) report which outlined his criminal convictions in Canada. On April 25, 1997 the Federal Court dismissed the application for leave and judicial review of the Minister's opinions. |
| On October 30, 1997, we responded to Mr. Moktari's former lawyer, Tita De Rousseau of Andrew, Donahoe & Oake, that removal arrangements were underway and we did not anticipate the need to address release pending removal. Mr. Moktari has been advised that his luggage must be delivered to this office no later than 3:00 p.m. tomorrow afternoon. |
The Facts:
[4] The facts relevant to the determination of the matter before me are as follows. The applicant is a citizen of Iran. On April 23, 1990, he was landed in Canada as a Convention refugee, following a determination made at the Canadian Embassy in Kuwait.
[5] Between 1992 and 1994, the applicant was convicted of a number of criminal offences in Canada. The convictions and sentences are as follows:
April 22, 1992
July 28, 1993
February 2, 1994
June 17, 1994
Obstructing a Peace Officer
Theft under $1000
Possession of a narcotic
Trafficking in a narcotic
Trafficking in a narcotic
(4 counts)
Possession of an unregistered restricted weapon
$150 fine in default 15 days
$200 fine in default 30 days
$3000 in default 60 days
4 years in prison
3 years in prison on each charge
1 year in prison and prohibition of possession or use of firearms, ammunition & explosives for 5 years
[6] On September 8, 1994, the applicant was reported for inquiry by a Senior Immigration Officer, pursuant to subsection 27(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), because he was convicted of offences for which a term of imprisonment of more than six months had been imposed and for which a term of imprisonment of five years or more could have been imposed.
[7] By letters dated September 22, 1995 and January 11, 1996, the applicant was informed that the Minister would be considering the issuance of opinions under subsection 70(5) and paragraph 53(1)(d) of the Act, i.e. opinions that the applicant constitutes a danger to the public in Canada. Further, the letters informed the applicant that the Minister would consider the existence of humanitarian and compassionate circumstances relevant to his situation. The relevant part of the January 11, 1996 letter reads as follows:
| The Minister will consider whether you are a danger to the public as well as any humanitarian and compassionate circumstances pertinent to your situation. This will require an assessment of the threat you pose to the public in Canada and the possibility of risk to you which could be precipitated by returning you to the country from which you came to Canada, the country of your permanent residence, the country of your nationality, or the country of your birth. |
[8] On May 13, 1996, a delegate of the Minister issued opinions, pursuant to subsection 70(5) and paragraph 53(1)(d) of the Act, to the effect that the applicant constitutes a danger to the public in Canada. Before issuing his opinions, the Minister's delegate considered, inter alia, the current reports from the Immigration and Refugee Board Documentation Centre relating to the prevailing conditions in Iran, submissions made by the applicant on September 28, 1995, and further submissions made by the applicant's solicitors. The concluding paragraphs of the applicant's solicitors' submissions are the following:
| Balanced against the finding by the Prole [sic] Board which specializes in assessing criminal offenders that he shows little potential for re-offending is the finding by the Refugee Board that his life is in danger if he should return to Iran. It is no mere speculation - the IRB has accepted that the danger exists, and has decided he needs international protection. |
| We provide for your information an excerpt from the Economic and Social Council of the United Nations, Commission on Human Rights Final Report on the situation of human rights in the Islamic Republic of Iran. As the article is lengthy, we have reproduced only the first 28 pages, and pages 50 and 51, and have hi-lighted the relevant passages. The Human Rights Watch World Report for 1994 is enclosed as well, confirming the lack of protection for individuals in Iran who are in conflict with the government. |
| The report further confirms that the situation has not changed significantly since the time Mr. Moktari fled the country. Iran is still a country in which gross violations of human rights occur. Mr. Moktari would put his remaining family in Iran in jeopardy by returning, and may well "disappear" himself if forced to return. |
| The humanitarian factors are overwhelming in this case, and we submit the Minister should exercise his compassionate jurisdiction not to invoke section 70(5) in Mr. Moktari's case. |
[9] The Minister's delegate also considered submissions made by solicitors who represented the applicant in regard to a criminal offence for which he, as of October 11, 1995, was serving a four-year term of imprisonment. The penultimate paragraph of this letter, dated October 11, 1995, reads as follows:
| Mr. Moktari has represented to you that he will be executed upon his return to Iran if a deportation order is made. He may very well be tortured and subjected to cruel, inhuman treatment as he awaits his ultimate demise. I can confirm that during the course of my career I have acted for other people whose country of origin is Iran. They have consistently reported that under circumstances similar to Mr. Moktari's a returning refugee cannot escape death at the hands of the political authorities. |
[10] I should also add that the Minister's delegate, before issuing his opinions, had before him an assessment of the risk of removing the applicant to Iran, which assessment was conducted by Mr. Graham Alldridge, a review officer. Mr. Alldridge's risk assessment reads as follows:
| REMOVAL RISK CONSIDERATIONS |
| Mr. Moktari has been put on notice by local immigration officials of the intention to remove a person who has been declared to be a Convention Refugee from Canada pursuant to paragraph 53(1)(d) of the Immigration Act. |
| It is noteworthy that this applicant became a permanent resident of Canada on April 23, 1990 at the age of 21; he is now 26 years of age. He was admitted to Canada as a permanent resident following the issuance of an immigrant visa as a Convention Refugee. Mr. Moktari's entire family remains in Iran. |
| A submission forwarded by Mr. Moktari's legal representative addresses the issue of "risk of return". The lawyer indicates that her client would encounter risk because he had deserted from the Iranian army during the Iran/Iraq war. Mr. Moktari's lawyer also includes two publications outlining the various human rights abuses in Iran. Mr. Moktari also indicated that he was imprisoned for several years as a suspected member of an anti-government organization. He was later released with no charges being filed. He feels he would be placed in jeopardy should he be required to return to Iran. Deserters may be required to complete their entire period of military service, undergo a court martial and additional punishment. In practice, a fine may well be imposed on the deserter which is an indication of an element of leniency on the part of Iranian authorities. |
| While Mr. Moktari may encounter difficulties should he be required to return to his country of citizenship, any such assessment must be balanced against the element of protection of Canadian society. This issue is dealt with in the section immediately hereunder. |
| -- Amnesty International Reports for 1995 -- entry under |
| -- U.S. Senate Country Reports 1994 -- entry under "Iran"; |
| -- Human Rights Watch World Report 1994 - entry under |
| "Iran" (In Counsel's submission); |
| -- U.N.E.S.C.O. Report on Iran dated February 2, 1994 |
| (In Counsel's submission). |
| REVIEWING OFFICER'S COMMENTS AND RECOMMENDATION |
| Mr. Moktari was involved in the sale of large quantities of cocaine to police undercover agents. The first conviction involved the sale of cocaine in ounce-sized amounts and the second instance involved the sale of a half-kilogram of cocaine for $21,000. A subsequent search of Mr. Moktari's residence revealed the presence of some $48,000 in cash along with a loaded firearm. Mr. Moktari also has convictions registered against him as follows: (1) 1992 -- Obstructing a Police Officer; (2) 1993 -- Theft Under $1000. |
| A lengthy submission has been received from Mr. Moktari's legal counsel. I have carefully reviewed this submission and the documents forwarded to Mr. Moktari by local immigration officials and I find that there are insufficient humanitarian and compassionate considerations present which would outweigh the danger to the public aspect of this case. Mr. Moktari was part of a sophisticated organization utilizing modern communication methods to sell cocaine in ounce and above sized quantities -- the sentencing judge indicated that the subject was a "wholesale commercial trafficker". Mr. Moktari's very participation in the sale of large amounts of the highly addictive drug cocaine renders him a danger to the public. While drug offences in Iran are regarded very seriously by Iranian authorities, it is unlikely that Mr. Moktari will encounter difficulties for these types of convictions and punishments which occurred in Canada. |
| I concur with the request that the Minister form an opinion that this person constitutes a danger to the public pursuant to sections A70(5) and A53(1)(d) of the Immigration Act. |
[11] On September 5, 1996, the applicant was found to be a person described in paragraph 27(1)(d) of the Act and, as a result, was ordered deported, pursuant to subsection 32(2) of the Act.
[12] On September 9, 1996, the applicant filed an application for leave and for judicial review of the danger opinions issued by the Minister's delegate on May 13, 1996.
[13] On September 18, 1996, the applicant's solicitors wrote to Immigration authorities to express the applicant's concerns regarding his possible deportation to Iran. The letter reads as follows:
| As Mr. Moktari has been ordered deported, he is concerned that Canada Immigration not make any inquiries or requests to the Government of Iran regarding him. |
| Mr. Moktari came to Canada as a refugee after defecting from the Iranian military during a time of war with Iraq. He believes the Iranian government does not know he defected, as it was believed he had died in the conflict. |
| He is concerned for his family in Iran, who will suffer if the authorities learn he is alive and is returning. |
| We request that every effort to maintain the confidentiality afforded to refugees be made in this case, as there is a real danger to Mr. Moktari and his family. |
| We are concurrently notifying the United Nations High Commission for Refugees with a request that they monitor this case to see that information regarding Mr. Moktari is not released to the Iranian authorities. |
[14] In October of 1996, while out of prison on parole, the applicant was arrested on further criminal charges under the Narcotics Control Act, R.S.C. 1985, c. N-1 [NOTE: Act repealed in 1996].
[15] On October 3, 1996, Randy Gurlock, the Supervisor of the Enforcement Unit of Citizenship and Immigration in Edmonton, wrote to the applicant's solicitors, informing them that if the applicant provided his Unit with a valid travel document allowing him to enter Iran or a third country willing to accept him, Immigration Canada would not, in those circumstances, contact the Iranian Embassy for a passport for the applicant. Mr. Gurlock's letter reads as follows:
| This is in reference to your letter of September 18, 1996. As you know, Mr. Moktari is now facing new charges under the Narcotics Control Act. His removal from Canada is now on hold until this matter is dealt with. |
| We would only contact the Iranian authorities if we have no other way to secure a travel document. If he can provide a valid travel document allowing his entry to Iran or a third country willing to accept him we would not have to ask the Iranian embassy for a passport. It is not our intention to flag his case for the Iranian authorities. However, eventually he will have to be removed from Canada and we will take whatever steps as are necessary, including applying for a travel document from the Iranian authorities if all else fails. If you have any questions please give me a call at 495-2105. |
[16] On April 25, 1997, Richard J. (as he then was) dismissed the applicant's application for leave and for judicial review of the danger opinions issued by the Minister's delegate on May 13, 1996 (Court file IMM-3200-96).
[17] By letter dated October 24, 1997, the prosecutor assigned to conduct the criminal prosecution of the applicant's most recent infraction informed Ms. Galloway that the criminal charges would be stayed, should the applicant be removed from Canada. The letter reads as follows:
| Further to our most recent correspondence and conversations in regard to the above-noted matter I am writing to confirm that I am the prosecutor assigned conduct of the same. |
| The charges faced by Mr. Moktari are serious but having regard to all of the circumstances, if this office can be assured that Mr. Moktari will be immediately removed from this country upon expiation of his current term of incarceration, no objection to said procedure will be raised by this office. Upon confirmation that Mr. Moktari has been removed from Canada and accepted by the destination in question, the charges will be stayed. |
| Trusting that the above is self explanatory, I look forward to hearing from you in this regard. |
[18] On October 29, 1997, the applicant's solicitors wrote the following letter to the Enforcement Division of the Edmonton Canadian Immigration Centre:
| Mr. Moktari is due for release from Bowden in the latter part of November, 1997. As he is awaiting trial on a criminal matter, which is scheduled for earlier summer 1998, we expect he will be released on bail to await that trial. |
| Would CIC accept whatever the terms of the bail will be, to release Mr. Moktari from Immigration hold as well? It is my understanding that his criminal lawyer, Sid Tarrabain, will be arranging for the bond shortly, and details can be obtained from him. |
| The terms and conditions ordered on the criminal bond could be extended to include the ones CIC will require. If this is not possible, can you give me a rough idea of what your office will be looking for in the way of a bond? |
[19] On October 30, 1997, Ms. Galloway wrote to the applicant's solicitors to inform them that the removal order made against their client was now enforceable as a result of Richard J.'s order dated April 25, 1997, dismissing their client's application for leave and for judicial review of the danger opinions issued by the Minister's delegate. Ms. Galloway further advised the applicant's solicitors that the prosecutor of the applicant's most recent criminal infraction had agreed to stay the charges if the applicant was removed from Canada. Ms. Galloway concluded her letter by stating that "[r]emoval arrangements are underway and the necessity to address release pending removal is not anticipated".
[20] On November 18, 1997, the applicant filed an application for leave and for judicial review of Ms. Galloway's decision of October 30, 1997.
[21] On November 18, 1997, Ms. Galloway received a letter from the applicant's solicitors, advising her that they had been instructed to file an application for humanitarian and compassionate considerations pursuant to subsection 114(2) of the Act and requesting her to postpone the applicant's removal until that application had been dealt with. The solicitors also requested Ms. Galloway to reconsider her October 30, 1997 decision to enforce the removal order, so as to allow the applicant "... an opportunity to depart Canada to a country where he will not face danger". The solicitors then went on to say that "[i]f he has to return to Iran, he is very likely to be arrested and severely punished. In addition, his family in Iran will suffer a similar fate."
[22] On November 19, 1997, Ms. Galloway wrote to the applicant's solicitors to inform them that she was not prepared to postpone the applicant's removal from Canada, pending the outcome of his subsection 114(2) application.
[23] On December 1, 1997, Lufty J. (as he then was) allowed the applicant's application for a stay of the execution of the deportation order made against him. In concluding as he did, Lutfy J., at paragraphs 9 and 10 of his Reasons, explained the serious issue as follows:
| [9] The serious issue raised in this case is not substantially different from those in Sivakumar and Sivaraj. In all three cases, the execution of deportation orders is challenged on Charter grounds. In our case, the application of section 52 and its constitutionality are put in issue in the context of the danger to the public opinions, one of which was issued pursuant to paragraph 53(1)(d). The opening words of section 53 are: "Notwithstanding subsections 52(2) and (3), ..." I am satisfied that the applicant has raised a serious issue. |
| [10] There is no serious issue raised, however, in asserting that the deportation must be postponed pending the outcome of an application, yet to be filed, pursuant to subsection 114(2). The respondent's delegate received representations concerning a humanitarian and compassionate consideration prior to the issuance of the danger opinions in May 1996. There is no evidence of any subsequent material change in circumstances on this issue. |
It does not appear that the applicant ever filed an application pursuant to subsection 114(2) of the Act.
[24] In his application for leave and for judicial review, commenced on November 18, 1997, the applicant seeks the following relief: a declaration that section 52 of the Act is unconstitutional and that the applicant's rights pursuant to the Canadian Charter of Rights and Freedoms (the "Charter") have been infringed; an order pursuant to section 18.1(3)(b) of the Federal Court Act, R.S.C. 1985, c. F-8, quashing or setting aside the decision of Senior Immigration Officer Galloway; a declaration that the applicant is entitled to depart from Canada to a country of his choice, or in the alternative, is entitled to a reasonable opportunity to determine whether or not he can depart to a country of his choice; and a declaration that the respondent is required to make reasonable efforts to remove the applicant to a country where his life will not be in danger.
Relevant Provisions of Law and Relevant Principles:
[25] A number of sections of the Act, namely sections 48, 52 and 53(1)(d), are relevant for the present determination. They read as follows:
| 48. Time of Execution -- Subject to sections 49 and 50, a removal order shall be executed as soon as reasonably practicable.
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48. Délai d'exécution -- Sous réserve des articles 49 et 50, la mesure de renvoi est exécutée dès que les circonstances le permettent.
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| 52. (1) Voluntary Departure -- Unless otherwise directed by the Minister, a person against whom an exclusion order or a deportation order is made may be allowed to leave Canada voluntarily and to select the country for which that person wishes to depart.
|
52. (1) Départ avant exécution forcée -- Sauf instruction contraire du ministre, quiconque est frappé d'une mesure d'exclusion ou d'une mesure d'expulsion peut être autorisé à quitter le Canada avant l'exécution forcée de celle-ci et à choisir le pays de sa destination.
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| (2) Place to Which Removed -- Where a person is not allowed to leave Canada voluntarily and to select the country for which he wishes to depart pursuant to subsection (1), that person shall, subject to subsection (3), be removed from Canada to
(a) the country from which that person came to Canada;
(b) the country in which that person last permanently resided before he came to Canada;
(c) the country of which that person is a national or citizen; or
(d) the country of that person's birth.
|
(2) Pays de destination -- Dans tous les autres cas, l'individu est, sous réserve du paragraphe (3), renvoyé:
(a) soit dans le pays d'où il est arrivé;
(b) soit dans le pays où il avait sa résidence permanente avant de venir au Canada;
(c) soit dans le pays don't il est le ressortissant;
(d) soit dans son pays natal.
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| (3) -- Where a person is to be removed from Canada and no country referred to in subsection (2) is willing to receive him, the person, with the approval of the Minister, or the Minister, may select any other country that is willing to receive that person within a reasonable time as the country to which that person shall be removed.
|
(3) -- Si aucun de ces pays ne veut le recevoir, l'individu peut, avec l'agrément du ministre, choisir comme pays de destination tout autre pays disposé à le recevoir dans un délai raisonnable. Ce choix appartient également au ministre.
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| (4) -- Notwithstanding subsections (1) and (2), where a removal order is made against a person described in paragraph 19(1)(j), the person shall be removed from Canada to a country selected by the Minister that is willing to receive the person.
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| (4) -- Par dérogation aux paragraphes (1) et (2), l'individu faisant l'objet d'une mesure de renvoi et appartenant à la catégorie non admissible visée à l'alinéa 19(1)(j) est renvoyé dans un pays choisi par le ministre et disposé à le recevoir.
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| 53. (1) Prohibited Removal -- 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 fo race, religion, nationality, membership in a particular social group or political opinion unless
(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 is of the opinion that the person constitutes a danger to the public in Canada.
|
53. (1) Renvoi des réfugiés au sens de la Convention -- 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 don't 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:
(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.
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[26] Section 48 provides that a removal order must be executed as soon as reasonably practicable. Subsection 52(1) provides that a person against whom a deportation order has been made may be allowed, unless otherwise directed by the Minister, to leave Canada voluntarily and to choose the country which he or she wishes to go to. If a person is not allowed to voluntarily depart from Canada, his or her removal is governed by subsections 52(2) and (3). Subsection 52(2) provides that the person shall be removed to the country from which he or she came to Canada, the country in which he or she last permanently resided before coming to Canada, the country of which he or she is a national or a citizen, or the country of his or her birth. Finally, pursuant to subsection 52(3), if none of the countries mentioned in subsection 52(2) is willing to receive him or her, the person, with the Minister's approval, or the Minister may choose another country. Subsection 52(4) is of no relevance to this appeal.
[27] Subsection 53(1) provides that notwithstanding subsections 52(2) and (3), no person, determined under the Immigration Act or the regulations to be a Convention refugee, shall be removed from Canada to a country where his or her life or freedom would be threatened on Convention grounds. There are exceptions to this, however, and paragraph 53(1)(d) is one of them. The paragraph provides that a person described in paragraph 27(1)(d) of the Act, 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 in regard to whom the Minister is of the opinion that he or she constitutes a danger to the public in Canada, may be removed to a country where his or her life or freedom may be threatened.
[28] A brief review of some important principles will be useful. In Chiarelli v. M.C.I., [1992] 1 S.C.R. 711, the Supreme Court of Canada stated that the most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada. The Court concluded that the removal of a permanent resident did not constitute a breach of fundamental justice. In the Court's view, those permanent residents subject to a deportation order had violated an essential condition under which they were permitted to remain in Canada.
[29] In Hoang v. M.C.I. (1990), 120 N.R. 193 at 197, McGuigan J.A., speaking for the Federal Court of Appeal, stated in unequivocal terms that on the authority of the Supreme Court's decision in Chiarelli, supra, and the Federal Court of Appeal's decision in Hurd v. M.C.I., [1989] 2 F.C. 594, deportation for serious offenses did not bring into play sections 7 and 12 of the Charter, because deportation did not constitute deprivation of liberty or a punishment.
[30] In Bahrami v. Canada (M.C.I.) (2000), 168 F.T.R. 190, Sharlow J. (as she then was), after reviewing the above-cited authorities, came to the following conclusion at page 194:
| [16] From this it seems clear that neither the Charter nor the Convention limits the right of Canada to deport a permanent resident, including a Convention refugee, who has lost the right to remain in Canada because of serious criminal activities or other circumstances, if the Minister concludes that his continued presence constitutes a danger to Canada. |
With these principles in mind, I now turn to the issues.
The Issues:
[31] These proceedings raise a number of issues:
| 1. whether Ms. Galloway's decisions of October 30 and November 19, 1997, are decisions within the meaning of the Federal Court Act; |
| 2. whether the applicant can rely on evidence that was not before Ms. Galloway when she made her decisions; |
| 3. whether the Minister breached his duty of fairness or a principle of fundamental justice, in not giving to the applicant an opportunity, as the applicant contends, to leave Canada voluntarily and select the country which he wishes to go to; and |
| 4. whether the applicant's Charter rights were breached. |
Analysis:
[32] The first issue is whether Ms. Galloway's decisions are decisions reviewable under section 18.1 of the Federal Court Act. The obvious purpose of Ms. Galloway's letters of October 30 and November 18, 1997 is to advise the applicant that he will be removed from Canada to Iran1. In Bahrami, supra, Sharlow J., in response to an argument by the Minister that a removal decision was not reviewable, made the following remarks at pages 199-200, paragraph 50:
| [50] Counsel for the respondent also argues that a removal decision is not reviewable at all: Borhani v. Minister of Citizenship and Immigration (21 September 1998), IMM-4788-98 (F.C.T.D. per Pinard J.). I do not accept that. A removal decision is a decision made pursuant to a federal statute and it has an element of discretion with respect to timing, and to some extent with respect to destination. I cannot accept that it is not a decision within the scope of s. 18 of the Federal Court Act. That would suggest that an erroneous decision to deport someone to [sic] country not referred to in s. 52(2) is not reviewable. That cannot be. |
[33] Although the scope for review of a removal decision is, in my view, a limited one, such a decision nonetheless remains a reviewable decision under the Federal Court Act. It can no longer be argued, in my view, that a removal decision does not constitute a reviewable decision. In Minister of Citizenship and Immigration v. Farhadi (2000), 6 Imm.L.R. (3d) 80, the Federal Court of Appeal heard an appeal from the Trial Division, where the motions judge had set aside a removal decision. It is clear, in my view, from a reading of the Court of Appeal's decision, that the Court considered the removal decision to be a reviewable decision. As I have already indicated, such a decision, while the scope of review thereof is narrow, remains reviewable.
[34] The second issue is whether the applicant can rely on evidence that was not before Ms. Galloway when she made her decision. Specifically, the applicant seeks to rely on the affidavit evidence of Paul R. Foisy, which evidence was not before Ms. Galloway. I made it clear during the hearing that I would not consider this evidence in making my decision. In Farhadi v. M.C.I., [1998] 3 F.C. 315, Gibson J. refused to consider affidavit evidence pertaining to the risk of torture that the applicant might face should he return to Iran. In rendering its decision on the appeal taken from Gibson J.'s decision, the Court of Appeal, at paragraph 2 of its Reasons, pointed out that no appeal had been taken from the motions judge's decision that he would not have regard to evidence that had not been put before the Minister. I cannot but agree with Gibson J.'s decision in Farhadi v. M.C.I., supra, that evidence not before the decision maker should not be considered by this Court in judicial review proceedings.
[35] As the remaining issues are intertwined, I shall deal with them together. At paragraphs 12 to 15 of her Memorandum of Argument, Ms. Bowman, counsel for the applicant, summarizes these issues as follows:
| 12. Is the determination of the Senior Immigration Officer ("SIO") to deport the Applicant, a Convention Refugee, to the country from which he had successfully sought and obtained refugee status a violation of his rights as set out in the Canadian Charter of Rights & Freedoms (the "Charter"). |
| 13. In the alternative, in the circumstances of this case and knowing the Applicant to be a Convention Refugee, does the Respondent have an obligation under s. 52 of the Immigration Act (the "Act"), to make reasonable efforts to find another country to which the Applicant can be deported, such that a failure to do so is a breach of the Applicant's Charter rights and/or makes the decision of the SIO patently unreasonable? |
| 14. Is the decision of the SIO refusing the Applicant the opportunity to choose another country to which he can deport a violation of the applicant's Charter rights? |
| 15. Is the Minister's direction preventing the Applicant from leaving Canada voluntarily and choosing a country to which he may deport a decision made contrary to the duty of fairness and principles of fundamental justice? |
[36] Although sections 7 and 12 of the Charter were raised by the applicant, Ms. Bowman informed me during the hearing that the section 12 issue was moot and that she would not be pressing it. Also, since the applicant did not give notice to the attorneys general of the provinces, pursuant to section 57 of the Federal Court Act, the constitutionality of section 52 of the Act is not one of the issues before me. At the hearing, Ms. Bowman made it clear that the real issue, as far as she was concerned, was whether the applicant had been given an opportunity to choose his country of destination, in accordance with subsection 52(1) of the Act. In my view, in the circumstances of this case, the applicant was given that opportunity.
[37] It will be recalled that the Minister's delegate issued opinions on May 13, 1996, that the applicant constituted a danger to the public in Canada. The letters giving notice to the applicant that the Minister would be considering the issuance of such opinions, clearly stated that the issuance of the Minister's opinions could precipitate, inter alia, his return to Iran. That notice was clearly understood by the applicant, as he and his solicitors made detailed submissions to the Minister as to why he should not be returned to Iran.
[38] Following the May 1996 opinions, the applicant was ordered deported on September 5, 1996. On September 18, 1996, his solicitors wrote to the Immigration authorities, expressing concern regarding the applicant's possible deportation to Iran. On October 3, 1996, Mr. Gurlock, of the Enforcement Unit, informed the applicant's solicitors that if the applicant could obtain valid travel documents allowing him to enter Iran or a third country, the Enforcement Unit would not, in those circumstances, make arrangements to remove him to Iran. At the end of October 1997, Ms. Galloway informed the applicant's solicitors, following this Court's dismissal of his application for leave and for judicial review of the Minister's danger opinions, that the removal order had now become enforceable and that, consequently, removal arrangements were underway. Subsequently, the applicant was informed that he would be removed on November 20, 1997.
[39] There is no evidence before me that the applicant or his solicitors made any attempt to secure travel documents. In his letter to the applicant, dated October 3, 1996, Mr. Gurlock clearly stated that Immigration Canada fully intended to remove him from Canada, and that all steps necessary to effect his removal would be taken. Thus, from the middle of October 1996, the applicant knew, or ought to have known, that his removal would take place unless his judicial review proceedings were successful.
[40] By the end of April 1997, the applicant knew that his application for judicial review of the Minister's opinions had been dismissed and that, pursuant to paragraph 53(1)(d) of the Act, he could very well be deported to Iran. I agree with Mr. Hardstaff, counsel for the Minister, that it is no answer to suggest that the applicant was relying on the Minister's advice that the deportation order would not be enforced while he was in jail, or until his outstanding charges had been dealt with.
[41] I also note that although the applicant was advised in early November 1997 that he would be removed in the near future, there is no evidence that he made any attempt to find a third country prepared to accept him. On the evidence before me, I can only conclude that the applicant made no attempt whatsoever to find such a country.
[42] One of the arguments put forward by the applicant is that Ms. Galloway ought to have conducted a risk assessment before taking steps to remove him. In my view, that argument cannot possibly succeed. Firstly, a risk assessment was conducted prior to the issuance of the danger opinions in May 1996. In Bahrami, supra, Sharlow J. spoke to that issue in the following terms at page 200, paragraphs 53 to 55 of her Reasons:
| [53] I do not accept that a removal decision, even a removal decision with respect to a Convention refugee, always requires a separate risk assessment in respect of the destination country. Once a risk assessment is undertaken in the context of a danger opinion, as occurred in this case, a requirement for a further assessment at the removal stage would entail a duplication of effort that cannot be justified on grounds of fundamental justice. |
| [54] There may be some situations where a Convention refugee is about to be deported to the country in which the refugee claim arose and because of some combination of events, the question of risk in that country is never considered. It could somehow fall between the procedural cracks. I would not wish to close the door on a deportee's rights to judicial review in such circumstances. However, the hypothetical possibility that a situation of that kind may arise does not justify the conclusion that in every case of the deportation of a Convention refugee, a risk determination must be made at the removal stage. It certainly does not justify such a conclusion in this case. |
| [55] In my view, there was no duty on the part of the person making the removal decision to consider the risks that might be faced by the applicant upon removal to Iran. It follows that the application for judicial review of the removal decision must be dismissed. |
[43] I am in full agreement with Sharlow J.'s reasoning. In M.C.I. v. Farhadi, supra, the Court of Appeal, at paragraph 4 of its Reasons, held that "... the process by which the Minister of Citizenship and Immigration formed the opinion that the respondent constitutes a danger to the public in Canada, did constitute the prerequisite risk assessment and determination." The Court of Appeal arrived at this conclusion by reason of the facts of the case and the reasons given by the Court in Suresh v. Canada (M.C.I.) (2000), 252 N.R. 1 (F.C.A.). Consequently, I conclude that in the circumstances of this case, there was no duty upon Ms. Galloway to consider the risk that the applicant might face if he were removed to Iran.
[44] The applicant also argued that removing him to Iran would violate his rights under section 7 of the Charter. In dealing with a similar argument in Farhadi v. M.C.I., supra, Gibson J. made the following remarks at paragraphs 18 through 24 (pages 328-30):
| [18] In assessing the evidentiary basis necessary to support the Charter arguments in this case, I consider it appropriate to be guided by the international jurisprudence cited above as well as Canadian jurisprudence. In Nguyen, Marceau J.A. referred to evidence illustrating that torture "will be" inflicted. At international law, the citations above from the Committee suggest a standard of "substantial grounds for believing that he would be in danger of being subjected to torture". Both, in my view, establish a high evidentiary threshold. Indeed, a high threshold is consistent with Supreme Court jurisprudence on the necessary factual foundation to support a Charter claim. In MacKay v. Manitoba, [1989] 2 S.C.R. 357, at pp. 361-362 and 366, the Court stated: |
| Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues... Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel. |
| A factual foundation is of fundamental importance on this appeal. It is not the purpose of the legislation which is said to infringe the Charter but its effects. If the deleterious effects are not established there can be no Charter violation and no case has been made out. Thus the absence of a factual base is not just a technicality that could be overlooked, but rather it is a flaw that is fatal to the appellants' position. |
| [19] In support of this application, the applicant filed affidavit evidence regarding the risk of torture he would face if he were to return to Iran. That evidence was not before either the delegate of the respondent who formulated the danger opinion or the immigration officer who made the removal decision. |
| [20] It is trite law that a reviewing court is bound by the record filed before the federal board, commission or other tribunal the decision of which is under appeal. Reviewing court jurisprudence has followed this rule, noting that if evidence not before the initial tribunal is introduced on judicial review, the review application should effectively be transformed into an appeal or a trial de novo. While I am satisfied that a jurisdictional exception exists to the rule that new evidence is not admissible on judicial review, I am also satisfied that an issue as to jurisdictional error of the tribunals does not arise here. The issues before me pertain to the Charter and the adequacy of the procedural safeguards in any risk assessment process conducted in this case. |
| [21] For these reasons then, I will decide this matter, without regard to the new evidence filed before me. |
| [22] On the material contained in the certified records before me, there are no "substantial grounds for believing that [the applicant] would be in danger of being subjected to torture". Simply put, the applicant has failed to meet the evidentiary requirements to support a Charter argument. |
| [23] Further, even if I were prepared to have regard to the new evidence, I am satisfied that a court conducting a judicial review is not the proper forum to embark on a risk assessment and determination process. I agree with holdings of my colleagues Cullen J. in Arduengo v. Canada (M.C.I.), [1997] 3 F.C. 468 (T.D.), and in particular, McGillis J. in Sinnappu v. Canada (M.C.I.), [1997] 2 F.C. 791 (T.D.), on this point. In Sinnappu at pages 820-821, McGillis J. wrote in response to an argument, allegedly based on dicta of Marceau J.A., in Nguyen that it fell to the Court to determine the state of country conditions in Sri Lanka: |
| ... I see nothing whatsoever in the reasons of Marceau J.A. to indicate that the Court must determine the state of country conditions at any point in its analysis of the issues pertaining to the application of section 7 of the Charter. Indeed, I am of the opinion that it is simply not the function of a judge, in judicial review proceedings of this nature, to determine the state of country conditions. I am further of the opinion that it would be highly undesirable for a judge to engage in such an exercise, particularly given that the legislative scheme requires immigration officers, who have specialized training and expertise in relation to country conditions, to make such decisions. |
| I am satisfied that the same can be said here. |
| [24] Thus, it follows that the applicant's argument that his Charter rights will be violated because he will be tortured if he is returned to Iran, must be dismissed. This Court cannot adjudicate on Charter issues in an evidentiary vacuum. |
[45] On the evidence before me, I cannot conclude, as the applicant invites me to, that his life will be in danger should he be removed to Iran. The fact that the applicant came to Canada as a refugee is not sufficient to satisfy the burden of proof which rests upon him to show that there are substantial grounds for believing that removal to Iran would likely cost him his life. In Suresh, supra, at page 61, Robertson J.A., for the Federal Court of Appeal, dealt with that issue in the following terms at paragraph 149:
| [149] A person cannot meet the onus of establishing that there are substantial grounds for believing that refoulement would expose that person to the risk of torture by resting their case on the fact they had been declared a Convention refugee. This is true for two obvious reasons. First, assessment must be carried out as of the date the Minister informs the appellant that consideration is being given to the issuance of an opinion letter under s. 53(1)(b) of the Immigration Act. What is relevant are the conditions which presently exist in the country to which the person is to be refouled, not those which existed at the time refugee status was granted. The possibility of a change in country conditions is well recognized in jurisprudence. Second, the risk of torture may not be related to the grounds outlined in the refugee claim. The present case is illustrative of this point. |
[46] Since, in my view, the applicant has not met his burden of proof regarding the risk which he would face should he be forced to return to Iran, his submissions regarding the breach of his Charter rights cannot succeed. Further, it must not be forgotten that a risk assessment was conducted prior to the issuance of the Minister's opinions and in particular, the Minister's opinion that the applicant, pursuant to paragraph 53(1)(b) of the Act, constitutes a danger to the public in Canada. That decision was challenged, but the applicant's proceedings were dismissed by this Court. Consequently, the applicant cannot now complain of that decision. His proceedings herein are, in my view, an indirect attack on the Minister's opinions. The applicant can no longer challenge these opinions.
[47] As I have already indicated, there was no duty on Ms. Galloway to conduct a risk assessment. The applicant and his solicitors were given full opportunity to make representations concerning his return to Iran in connection with the Minister's opinions under paragraph 53(1)(d). Mr. Alldridge considered these representations and concluded that the applicant would not face a serious risk to his life if he were to return to Iran. If the applicant felt that more recent information would demonstrate the danger which he would face upon his return to Iran, he should have filed an application under subsection 114(2) of the Act. For these reasons, the applicant's application for judicial review will be dismissed.
[48] At the end of the hearing, Ms. Bowman submitted that I should certify the following question:
| Does a letter by Immigration officials, informing a person described in paragraph 27(1)(d) that his removal order is executable and that arrangements are being made for removal, constitute a reviewable decision under section 18.1 of the Federal Court Act? |
[49] In my view, the question submitted for certification is not one that ought to be certified. As I have already indicated, the Court of Appeal, in M.C.I. v. Farhadi, supra, heard an appeal of a decision of Gibson J., who had set aside a removal order. The Court of Appeal allowed the appeal, but did not hear nor decide the question which Ms. Bowman invites me to certify. However, I have no doubt, on my reading of the Court of Appeal's decision, that the Court was not troubled by the question which I am asked to certify.
[50] In Bahrami, supra, Sharlow J. had no difficulty concluding that a removal decision was a reviewable decision. A great number of this Court's decisions have considered removal decisions to be reviewable. It is now too late in the day, in my view, to challenge the reviewability of these decisions. I am therefore of the view that I should not certify this question.
Marc Nadon
JUDGE
OTTAWA, Ontario
January 30, 2001.
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1 Although Ms. Galloway's letters do not say that the applicant will be removed to Iran, the litigation was conducted and the submissions were made on the premise that the applicant would indeed be removed to Iran.
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