Date: 20041029
Docket: IMM-6639-03
Citation: 2004 FC 1533
Toronto, Ontario, October 29th, 2004
Present: The Honourable Mr. Justice Campbell
BETWEEN:
HUSSEIN SUMAIDA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant, a citizen of both Iraq and Tunisia, who, while found to be at risk by the Convention Refugee Determination Division (the "CRDD") and a Pre-Removal Risk Assessment ("PRRA") Officer if he is returned to either Iraq or Tunisia, received a negative humanitarian and compassionate ("H & C") decision on August 1, 2003 from an Immigration Officer (the "H & C Officer").
[2] The issue is whether the H & C decision is deficient, and, thus, unreasonable. For the reasons which follow, I find that it is not.
A. Factual background
[3] The Applicant worked for many years as an informant for the Iraqi secret police, the "Mukhabarat", and spied on members of the Al Da'wa party in the United Kingdom. He voluntarily acted as a "mole" and personally participated in exposing 30 to 35 persons and their families to probable torture and execution. Later, he switched sides and worked for Mossad, the Israeli secret service, and spied on members of the Palestine Liberation Organization ("PLO") until he felt that he was not safe in that position. The Applicant then disclosed names of Mossad members to the Iraqi authorities in return for an official pardon from Saddam Hussein and the agreement that he again work for the Mukhabarat. Henceforth, he reported on individuals targeted by the Mukhabarat and later supplied arms to a high-ranking PLO terrorist leader, Abu al-Abbas (Applicant's Application Record, pp. 21-22).
B. The legal history
[4] The Applicant arrived in Canada on April 26, 1990, after which he went to the United Kingdom and instituted a claim for asylum against Iraq. After eight days, he was rejected and was returned to Canada where, on October 19, 1990, he applied for refugee status against both Iraq and Tunisia. On August 6, 1991, the Applicant's wife arrived in Canada and made a refugee claim. On December 12, 1991, a hearing was held by the CRDD and, although the Applicant was found to have a well-founded fear of persecution due to his political opinion in both Iraq and Tunisia, his claim was denied on the basis that he was excluded pursuant to Articles 1F(a) and (c) of the 1951 United Nations Convention Relating to the Status of Refugees. Article 1F reads:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, war crimes, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
[5] The CRDD decision was judicially reviewed by the Trial Division of this Court; as a result, the decision was set aside and the matter was returned to the CRDD for redetermination. The Minister of Citizenship and Immigration appealed to the Federal Court of Appeal; as a result, by a decision dated January 7, 2000, the CRDD's original decision was upheld.
[6] The Applicant commenced an H & C application on May 25, 2002. As a feature of the consideration given to the H & C application, a risk opinion was rendered by a Pre-Removal Risk Assessment ("PRRA") Officer on June 25, 2003. On that date, the PRRA Officer found that the Applicant had a well-founded fear of persecution in respect of both Iraq and Tunisia as follows:
The applicant was born in Iraq to a Tunisian father and has a passport (both expired) for each country. He alleges risk of return to Iraq because he published a book in 1991 that included details of his dealings with various mid-east leaders and groups including Saddam Hussein, Iraq's the Mukhabarat, Israel's Mossad and the PLO. The applicant's father is a high-ranking Ba'ath Iraqi diplomat. The applicant's autobiography is entitled Circle of Fear and has been widely released and reviewed. The applicant has been in Canada since 1990 and was excluded from consideration for Convention Refugee Status on December 12, 1991 per Article 1F(a) and (c) of the Convention. An appeal was allowed by the Federal Court Trial Division who referred the matter back to the Immigration and Refugee Board (IRB). The appeal was then heard by the Federal Court of Appeal who restored the finding of the IRB January 7, 2000.
Although the IRB excluded the applicant per 1F of the Convention, they did find that he had a well-founded fear of persecution in Iraq or Tunisia.
I have read and considered the December 19, 2002 submissions and documentary evidence provided by the applicant for his application for permanent residence. I have also conducted extensive country condition research for both Iraq and Tunisia.
The situation in Iraq has changed considerably since the applicant provided documentary research in December of last year. Saddam Hussein's regime fell in April 2003 and the Ba'ath party is no longer officially in power. There are, however, reports that Ba'ath officials have been offered their jobs back by US military. (BBC New June 1003 on-line article). There are, however, significant restrictions on freedom of speech and freedom of the press, as the government is intolerant of public criticism. (Ibid).
I do find that the applicant currently faces a risk to life or a risk to security of the person in either Iraq or Tunisia. There is a security vacuum in Iraq right now and Tunisia does not at this time have adequate state protection for someone with the applicant's profile.
8. Results if Assessment
I find that, at present, the applicant faces a risk to life or security of the person if returned to Iraq or Tunisia.
(Tribunal Record, pp.140-141)
C. The standard of review
[7] It is agreed that the appropriate standard of review of an H & C assessment is reasonableness simpliciter (Baker v. M.C.I. (1991), 174 D.L.R. (4th) 193 (S.C.C.)).
D. Is the H & C decision made in reviewable error?
[8] In the decision, the H & C Officer recounts the Applicant's past personal history at length and in detail, and gives some lesser consideration to the present situation of the Applicant and members of his family. It is clear that in reaching the decision under review that the H & C Officer placed strong weight on the Applicant's past conduct, and, in particular, the fact that he was found to be excluded because he had committed crimes against humanity.
[9] The Applicant does not contest that the H & C Officer was at liberty to weigh his circumstances, and those of his family, against the public interest. Indeed, as support for this point, Counsel for the Respondent relies on the following passage from Legault v. Canada 212 D.L.R. (4th) 139:
17. Parliament chose, at s. 114(2), to restrain the discretionary exercise to cases where there are compassionate and humanitarian considerations. Once these grounds are established, the Minister may allow the exception, but he may also choose not to allow it. That is the essence of the discretion, which must be exercised within the general context of Canadian laws and policies on immigration. The Minister can refuse to allow the exception when he is of the view that public interest reasons supersede humanitarian and compassionate ones.
However, Counsel for the Applicant argues that, in the decision rendered by the H & C Officer, there is insufficient specificity of the considerations used in reaching the decision that the public interest is paramount. In particular, Counsel for the Applicant argues that the H & C Officer should have given precise consideration to the Applicant's unblemished record in Canada. While it is clear that, in the decision, the Applicant's conduct in Canada was given little weight compared to his past conduct, I find that the H & C Officer was entitled to come to this conclusion. As a result, I find no error in the decision to give paramountcy to the public interest.
[10] The Applicant's second argument is that the H & C decision does not meet the test for considering the best interests of the Applicant's children as required by s. 25(1) of the Immigration and Refugee Protection Act and the decision in Baker v. M.C.I. (1991), 174 D.L.R. (4th ) 193 (S.C.C.). In Baker, the requirements set out by Justice L'Heureux Dubé are as follows:
67. Determining whether the approach taken by the immigration officer was within the boundaries set out by the words of the statute and the values of administrative law requires a contextual approach, as is taken to statutory interpretation generally: see R. v. Gladue,[1999] 1 S.C.R. 688; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at paras. 20-23. In my opinion, a reasonable exercise of the power conferred by the section requires close attention to the interests and needs of children. Children's rights, and attention to their interests, are central humanitarian and compassionate values in Canadian society. Indications of children's interests as important considerations governing the manner in which H & C powers should be exercised may be found, for example, in the purposes of the Act, in international instruments, and in the guidelines for making H & C decisions published by the Minister herself. [Emphasis added]
.....
75. The certified question asks whether the best interests of children must be a primary consideration when assessing an applicant under s. 114(2) and the Regulations. The principles discussed above indicate that, for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children's best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is not to say that children's best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when children's interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada's humanitarian and compassionate tradition and the Minister's guidelines, the decision will be unreasonable.[Emphasis added]
[11] The consideration given to the best interests of the Applicant's children in the H & C decision is as follows:
In the best interest of the children, it is noted that Maya Sumaida age 9 and Daniel Sumaida age 6 could stay in the care of their mother, a Permanent Resident if Mr. Sumaida were asked to leave Canada. I have also taken into consideration the emotional difficulty, which may occur with the separation of Mr. Sumaida from his children, Maya Sumaida and Daniel Sumaida. However, the best interest of the children is only one of the many important factors that must be considered. I have considered the young age of the children, and I do recognize that they are in the Canadian school system. The children are Canadian citizens and would never be asked to leave Canada. However, at their young age, if the children wish to accompany their father outside Canada, I am satisfied that they would be able to integrate in a new society with the help of their father. [Emphasis added]
(Applicant's Application Record at p.24)
[12] It is agreed that, at the time the H & C Officer considered the application, there was no practical risk of removal of the Applicant to either Iraq or Tunisia, and because of the decided risk he would face in either country, the Applicant was not voluntarily going to travel to either country to make an application for landing from outside Canada. Consequently, Counsel for the Applicant argues that it is absurd for the H & C Officer to find that the children could go outside the country and integrate given the risk factor; therefore, it is argued that the decision is unreasonable.
[13] In response, Counsel for the Respondent argues that, on making an H & C decision, the decision-maker must assess the hardship the Applicant would suffer if he were to make an application for landing from a country where he would not be considered at risk. As a consequence, Counsel for the Respondent argues that the hardship to the members of the Applicant's family was properly considered on this basis. I agree.
[14] It is also argued that the only statement in the H & C Officer's decision, which is not directly responsive to the practical facts of the Applicant's situation, is the last sentence emphasized in the passage just quoted above. With respect to this sentence, Counsel for the Respondent argues that it is obiter, whereas, Counsel for the Applicant argues that it is a significant erroneous conclusion.
[15] I find that the consideration given to the best interests of the Applicant's children, on the available evidence on the date of the decision, does meet the test in Baker. In the decision, the consideration of the children is a factor balanced against the public interest. It is obvious from the decision that the decision-maker's view of the subject tips the balance sharply in favour of the public interest. On the available evidence I can understand this result. Consequently, I find that the decision reached is not unreasonable.
ORDER
For the reasons provided, I dismiss the application.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6639-03
STYLE OF CAUSE: HUSSEIN SUMAIDA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 26, 2004
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: OCTOBER 29, 2004
APPEARANCES BY:
Maureen Silcoff FOR THE APPLICANT
Marianne Zoric FOR THE RESPONDENT
SOLICITORS OF RECORD:
Maureen Silcoff
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto Ontario FOR THE RESPONDENT
FEDERAL COURT
Date: 20041029
Docket: IMM-6639-03
BETWEEN:
HUSSEIN SUMAIDA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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