Ahani v. Canada (Minister of Citizenship and Immigration),
[2002] 1 S.C.R. 72, 2002 SCC 2
Mansour Ahani Appellant
v.
The Minister of Citizenship and Immigration and
the Attorney General of Canada Respondents
Indexed as: Ahani v. Canada (Minister of Citizenship
and Immigration)
Neutral citation: 2002 SCC 2.
File No.: 27792.
2001: May 22; 2002: January 11.
Present: McLachlin C.J. and L’Heureux‑Dubé,
Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the federal court of appeal
Constitutional law — Charter of Rights —
Fundamental justice — Immigration — Deportation — Risk of torture — Whether
deportation of refugee facing risk of torture contrary to principles of
fundamental justice — Canadian Charter of Rights and Freedoms, s. 7 —
Immigration Act, R.S.C. 1985, c. I‑2, s. 53(1)(b).
Constitutional law — Charter of Rights —
Fundamental justice — Vagueness — Whether terms “danger to the security of
Canada” and “terrorism” in deportation provisions of immigration legislation
unconstitutionally vague — Canadian Charter of Rights and Freedoms, s. 7 —
Immigration Act, R.S.C. 1985, c. I‑2, ss. 19(1), 53(1)(b).
Constitutional law — Charter of Rights — Freedom
of expression — Freedom of association — Whether deportation for membership in
terrorist organization infringes freedom of association and freedom of
expression – Canadian Charter of Rights and Freedoms, ss. 2 (b), 2 (d) —
Immigration Act, R.S.C. 1985, c. I‑2, ss. 19(1), 53(1)(b).
Constitutional law — Charter of Rights —
Fundamental justice — Procedural safeguards — Immigration — Convention refugee
facing risk of torture if deported — Whether procedural safeguards provided
to Convention refugee satisfy requirements of fundamental justice — Canadian
Charter of Rights and Freedoms, s. 7 — Immigration Act, R.S.C. 1985,
c. I‑2, s. 53(1)(b).
Administrative law — Judicial review — Ministerial
decisions — Standard of review — Immigration — Deportation — Approach to be taken
in reviewing decisions of Minister of Citizenship and Immigration on whether
refugee’s presence constitutes danger to security of Canada and whether
refugee faces substantial risk of torture upon deportation — Immigration Act,
R.S.C. 1985, c. I‑2, s. 53(1)(b).
The appellant is a citizen of Iran who entered Canada
in 1991 and was granted Convention refugee status. In 1993, the Solicitor
General of Canada and the Minister of Citizenship and Immigration filed a
certificate under s. 40.1 of the Immigration Act with the Federal
Court, Trial Division, alleging that the appellant was a member of an
inadmissible class specified in the anti‑terrorism provisions of the Act.
The appellant was arrested and has remained in custody ever since. The appellant
was later informed of the Minister’s intention to issue a danger opinion under
s. 53(1)(b) of the Act and was given an opportunity to make
submissions. He claimed that if he is sent back to Iran, he will likely face
torture. A memorandum was prepared for the Minister’s consideration with the
appellant’s submissions and other relevant documents. That memorandum was
accompanied by an opinion letter from the Minister’s legal services unit. The
Minister issued her opinion, under s. 53(1)(b), that the appellant
constituted a danger to the security of Canada. The appellant filed an
application for judicial review of the Minister’s decision in which he raised,
among other things, various constitutional questions relating to s. 53(1)(b).
He also commenced an action raising the same constitutional questions, which
was heard with the application for judicial review. The Federal Court, Trial
Division granted the Minister’s preliminary motion requesting that the motion
judge’s decision in Suresh be applied to these proceedings to the
extent that it decided the same constitutional questions. The court
subsequently dismissed the application for judicial review. The Federal Court
of Appeal dismissed the appellant’s appeal.
Held: The appeal
should be dismissed.
When the analytical framework set out in Suresh
is applied, the appellant has not cleared the evidentiary threshold required to
access the protection guaranteed by s. 7 of the Canadian Charter of
Rights and Freedoms . The appellant has not made out a prima facie
case that there was a substantial risk of torture upon deportation. The
provisions allowing the Minister to deport a refugee for membership in a
terrorist organization do not unjustifiably infringe Charter rights of
freedom of expression and association. In this case, unlike Suresh, the
Minister provided adequate procedural protections. The appellant was fully
informed of the Minister’s case against him and given a full opportunity to
respond. Insofar as the procedures followed may not have precisely complied
with those suggested in Suresh, this did not prejudice him. The process
accorded to the appellant was consistent with the principles of fundamental
justice. Lastly, it was not patently unreasonable for the Minister to conclude
that the appellant would constitute a danger to the security of Canada under
s. 53(1)(b) of the Immigration Act since there was ample
support for the Minister’s decision. There is also no basis to interfere with
the Minister’s decision that the appellant’s deportation to Iran would only
expose him to a “minimal risk” of harm. The Minister applied the proper
principles and took into account the relevant factors.
Cases Cited
Applied: Suresh v. Canada (Minister of Citizenship and Immigration),
[2002] 1 S.C.R. 3, 2002 SCC 1; Pushpanathan v. Canada (Minister of
Citizenship and Immigration), [1998] 1 S.C.R. 982.
Statutes and Regulations Cited
Canadian
Charter of Rights and Freedoms, s. 7 .
Immigration Act, R.S.C. 1985, c. I‑2, ss. 19(1)(e)(iii), (iv)(C),
(f)(ii), (iii)(B) [am. 1992, c. 49, s. 11(2)], (g), 40.1, 53(1)(b)
[rep. & sub. idem, s. 43].
APPEAL from a judgment of the Federal Court of Appeal
(2000), 252 N.R. 83, 3 Imm. L.R. (3d) 159, 73 C.R.R. (2d) 156, [2000] F.C.J.
No. 53 (QL), upholding a judgment of the Trial Division (1999), 1 Imm. L.R.
(3d) 124, [1999] F.C.J. No. 1020 (QL). Appeal dismissed.
Barbara Jackman and Ronald
Poulton, for the appellant.
Urszula Kaczmarczyk and
Donald A. MacIntosh, for the respondents.
The following is the judgment delivered by
1
The Court — In this
appeal we hold that the appellant, Mansour Ahani, is not entitled to a new
deportation hearing under the Immigration Act, R.S.C. 1985, c. I-2. Ahani
is a citizen of Iran who entered Canada in 1991 and claimed Convention refugee
status. The Canadian government now seeks to deport him to Iran, because of
his association with the Iranian Ministry of Intelligence and Security
(“MOIS”), which the government alleges is an Iranian terrorist organization.
Ahani claims that if he is sent back to Iran, he will likely face torture.
2
This appeal raises the same constitutional issues as Suresh v. Canada (Minister of Citizenship and Immigration),
[2002] 1 S.C.R. 3, 2002 SCC 1 (released concurrently). Applying the analytical
framework set out in Suresh to the facts of this case, we conclude that
Ahani has not cleared the evidentiary threshold required to access the s. 7
protection guaranteed by the Canadian Charter of Rights and Freedoms .
As found in Suresh, the provisions allowing the Minister of Citizenship
and Immigration to deport a refugee for membership in a terrorist organization
do not unjustifiably infringe Charter rights of freedom of expression
and association. In this case, unlike Suresh, the Minister provided
adequate procedural protections. The appeal is therefore dismissed.
I. Facts
3
Ahani is a citizen of Iran. He entered Canada on October 14, 1991 and
was granted Convention refugee status based on his political opinion and
membership in a particular social group. After arriving, the Canadian Security
Intelligence Service (“CSIS”) began to suspect that Ahani was a member of the
MOIS, which sponsors a wide range of terrorist activities, including the
assassination of political dissidents worldwide. CSIS also believed that Ahani
received specialized training in the MOIS that qualified him as an assassin.
4
Shortly after his refugee hearing, Ahani was contacted by an
intelligence officer from Iran, who is alleged to be a commander of the
MOIS. Ahani arranged for a false passport, and met the commander in Zurich,
Switzerland. From there, they traveled separately, but met again in
Fermignano, Italy, which is apparently the home of a number of Iranian
dissidents. Ahani returned to Switzerland, then traveled to Istanbul, Turkey,
where he obtained another false passport and returned to Canada.
5
Upon his return to Canada, Ahani met with CSIS agents. CSIS alleges
that during those meetings, Ahani admitted that his military training was part
of his recruitment into the MOIS, and that the intelligence officer he met in
Europe was a previous associate.
6
After receiving a report from CSIS, the Solicitor General of Canada and
the Minister of Citizenship and Immigration filed on June 17, 1993 a s. 40.1
security certificate with the Federal Court, Trial Division, alleging that
Ahani was a member of the inadmissible classes described in ss. 19(1)(e)(iii),
19(1)(e)(iv)(C), 19(1)(f)(ii), 19(1)(f)(iii)(B) and 19(1)(g)
of the Act. Ahani was arrested under s. 40.1(2)(b) of the Act and has
remained in custody ever since.
7
Ahani challenged the constitutional validity of s. 40.1 of the Act
before the Federal Court, Trial Division. McGillis J. found the s. 40.1
statutory scheme to be valid: [1995] 3 F.C. 669 (aff’d (1996), 201 N.R. 233
(F.C.A.), application for leave to appeal dismissed, [1997] 2 S.C.R. v). Ahani
also challenged the reasonableness of the certificate, and Denault J. found
that the certificate was reasonable, and that Ahani lacked credibility: (1998),
146 F.T.R. 223.
8
Ahani was later informed of the Minister’s intention to issue a danger
opinion under s. 53(1)(b) of the Act. At the Minister’s invitation,
Ahani made submissions that he would be put at risk for having made a refugee
claim and divulging information to the Canadian authorities with respect to his
work with the Iranian government. Ahani denied the allegation that he was an
assassin with the MOIS.
9
Shortly thereafter, an analyst with the Case Management Branch of the
Department of Citizenship and Immigration, prepared a memorandum for both the
Acting Deputy Minister and the Minister’s consideration and attached Ahani’s
submissions together with other relevant documents. That memorandum was
accompanied by an opinion letter from the Minister’s legal services unit. The
Minister later issued her opinion, under s. 53(1)(b) of the Act, that
Ahani constituted a danger to the security of Canada, following which Ahani
filed an application for leave and for judicial review of the Minister’s
decision. Ahani raised a number of constitutional questions relating to s.
53(1)(b) of the Act. Ahani also commenced an action in which he raised
the same constitutional questions.
10
On June 15, 1999, at the outset of the proceedings, counsel for the
Minister made a preliminary motion requesting the court to apply the recent
decision of McKeown J. in Suresh v. Canada (Minister of Citizenship and
Immigration) (1999), 65 C.R.R. (2d) 344 (F.C.T.D.), insofar as it decides
the same constitutional issues raised in the present cases. This motion was
granted: (1999), 170 F.T.R. 153.
11
On the remaining issues, the Federal Court, Trial Division concluded on
June 23, 1999 that there was ample evidence in the record to support the
Minister’s discretionary decision that the appellant constituted a danger to
the security of Canada: (1999), 1 Imm. L.R. (3d) 124. The Minister’s decision
was found to be reasonable, and no error was committed that required the
intervention of the court.
12
Ahani subsequently appealed. Robertson J.A. determined that the
declatory relief being sought in the action was available in the context of the
judicial review application. The Federal Court of Appeal dismissed all of the
constitutional challenges. Ahani also sought judicial review of the Minister’s
s. 53(1)(b) opinion, but that application was also dismissed: (2000), 3
Imm. L.R. (3d) 159. Ahani now appeals to this Court.
II. Legislation
13
Immigration Act, R.S.C. 1985, c. I-2
19. (1) No person shall be granted
admission who is a member of any of the following classes:
.
. .
(e) persons who there are reasonable grounds to believe
.
. .
(iii) will engage in terrorism, or
(iv) are members of an organization that there are reasonable grounds
to believe will
.
. .
(C) engage in terrorism;
(f) persons who there are reasonable grounds to believe
.
. .
(ii) have engaged in terrorism, or
(iii) are or were members of an organization that there are reasonable
grounds to believe is or was engaged in
.
. .
(B) terrorism,
except persons who have satisfied the Minister that their admission
would not be detrimental to the national interest;
.
. .
(g) persons who there are reasonable grounds to believe will
engage in acts of violence that would or might endanger the lives or safety of
persons in Canada or are members of or are likely to participate in the
unlawful activities of an organization that is likely to engage in such acts of
violence;
53. (1) Notwithstanding subsections 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
.
. .
(b) the person is a member of an inadmissible class described in
paragraph 19(1)(e), (f), (g), (j), (k) or (l)
and the Minister is of the opinion that the person constitutes a danger to the
security of Canada;
III. Issues
14
We propose to consider the issues in the following order:
1. Did the Minister err in the exercise of
her discretion?
2. Are the conditions for deportation in the
Immigration Act constitutional?
3. Are the procedures for deportation set
out in the Immigration Act constitutionally valid?
IV. Analysis
1. Did the
Minister Err in the Exercise of her Discretion?
15
We are asked to review decisions of the Minister on: (1) whether Ahani
constitutes a danger to the security of Canada; and (2) whether he faces a
substantial risk of torture on deportation.
16
For the reasons discussed in Suresh, the standard of review on
the first decision is whether the decision is patently unreasonable in the
sense that it was made arbitrarily or in bad faith, cannot be supported on the
evidence, or did not take into account the appropriate factors. A reviewing
court should not reweigh the factors or interfere merely because it would have
come to a different conclusion. Applying the functional and pragmatic approach
mandated by Pushpanathan v. Canada (Minister of Citizenship
and Immigration), [1998] 1 S.C.R. 982, we conclude that the Parliament
intended to grant the Minister a broad discretion in issuing a s. 53(1)(b)
opinion, reviewable only where the Minister makes a patently unreasonable
decision.
17
Likewise, on the second question, we conclude that the court may
intervene only if the Minister’s decision is not supported on the evidence, or
fails to consider the appropriate factors. The reviewing court should also
recognize that the nature of the inquiry may limit the evidence required.
While the issue of deportation to risk of torture engages s. 7 of the Charter
and hence possesses a constitutional dimension, the Minister’s decision is
largely fact-based. The inquiry into whether Ahani faces a substantial risk
of torture involves consideration of the human rights record of the home
state, the personal risk faced by the claimant, any assurances that the
claimant will not be tortured and their worth and, in that respect, the ability
of the home state to control its own security forces, and more. Such issues
are largely outside the realm of expertise of reviewing courts and possess a
negligible legal dimension. Considerable deference is therefore required.
18
Returning to the first question, we find that it was not
patently unreasonable for the Minister to conclude that Ahani would constitute
a danger to the security of Canada under s. 53(1)(b) of the Act.
McGillis J. found that the Minister’s decision with respect to whether Ahani
constitutes a danger to the security of Canada was reasonable and did not
warrant any intervention of the court. Robertson J.A. did not decide the
standard of review, but concluded that even on the stringent standard of correctness,
the Minister’s decision should be upheld. We agree that on any standard of
review there was ample support for the Minister’s decision.
19
We are of the view that the Minister’s decision is also
unassailable on the second question.
20
Mr. Alldridge, an analyst with the Case Management
Branch of the Department of Citizenship and Immigration, prepared a memorandum
for both the Minister and the Acting Deputy Minister and attached the
appellant’s submissions together with other relevant documents for their
consideration. Mr. Alldridge correctly noted that there must be substantial
grounds for believing that the individual would face torture upon
deportation. He notes that: (a) Ahani’s risk submissions were found to be
“suspect” during the s. 40.1 hearings; (b) Ahani’s submissions refer to
conditions in Iran which are applicable to opponents of the regime and not to
persons such as the appellant; and (c) Ahani was in contact with the Iranian
government after his refugee hearing. He concluded that the serious risk to
Canadian security was outweighed against the minimal risk of harm to Ahani if
returned to Iran.
21
Based on this memo and supporting information, the Minister
issued her opinion on August 12, 1998 under s. 53(1)(b) of the Immigration
Act that Ahani constitutes a danger to the security of Canada.
22
We conclude that the Minister applied the proper principles and took
into account the relevant factors. We find no basis to interfere with her
decision.
2. Are the
Conditions for Deportation in the Immigration Act Constitutional?
23
We have dealt with this issue in Suresh, and need not repeat the
analysis.
3. Was
Ahani Fairly Dealt With?
24
In Suresh, we found that in circumstances where a Convention
refugee makes out a prima facie case that there may be a
substantial risk of torture upon deportation, the duty of fairness requires
greater procedural protection than required by the Act under s. 53(1)(b).
In cases of that kind, a person facing a declaration under s. 53(1)(b)
and, accordingly, deportation to a country in which he or she may face torture,
must be provided with all relevant information and advice produced for the
Minister’s consideration by the Department of Citizenship and Immigration and
other sources, with an opportunity to address that evidence in writing and with
written reasons.
25
Ahani was made aware of the allegations against him and was provided
with the opportunity to make written submissions. Specifically, by letter dated
April 22, 1998, he was informed of the intention of the Minister to issue
an opinion under s. 53(1)(b) and that the effect of that opinion would
be the removal of the prohibition against returning persons, who have been
found to be Convention refugees, to the country from which they fled. In the
April 22, 1998 letter, Ahani was also informed that the Minister would assess
the risk that the appellant represented to the security of Canada and the possible
risk to which the appellant would be exposed if returned to Iran. Ahani was
then given 15 days to make written submissions, which he did. On July 31, 1998,
an analyst with the Case Management Branch of the Department of Citizenship and
Immigration prepared a memorandum for both the Acting Deputy Minister and the
Minister’s consideration and attached the appellant’s submissions together with
other relevant documents. In that memorandum, the analyst set out Ahani’s
various legal arguments and dealt with them in light of the jurisprudence. That
memorandum was accompanied by an opinion letter from the Minister’s legal
services unit. This process culminated in the opinion issued by the Minister,
under s. 53(1)(b), that Ahani constitutes a danger to the security of
Canada and that he faced only a minimal risk of harm upon deportation.
26
We are satisfied that Ahani was fully informed of the Minister’s case
against him and given a full opportunity to respond. Insofar as the procedures
followed may not have precisely complied with those we suggest in Suresh,
we are satisfied that this did not prejudice him. We conclude that the process
accorded to Ahani was consistent with the principles of fundamental justice,
and would reject this ground of appeal.
V. Conclusion
27
The appeal is dismissed. The respondents are entitled to costs.
28
The constitutional questions are answered as in Suresh.
Appeal dismissed with costs.
Solicitors for the appellant: Jackman, Waldman &
Associates, Toronto.
Solicitor for the respondents: The Deputy Attorney
General of Canada, Toronto.
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