Date: 20000712
Docket: IMM-1942-99
BETWEEN:
BEHZAD SIAVASHI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The Applicant seeks judicial review of a decision of the Immigration Appeal Division (IAD) of the Immigration and Refugee Board dated April 12, 1999, wherein the Applicant was ordered to be removed to Iran.
[2] The issues are whether it is a violation of sections 7 and 12 of the Charter for the Respondent to return the Applicant to Iran, where there is good reason to fear torture, without first conducting an assessment of the risks he may face in accordance with principles of fundamental justice. Secondly, if so, did the danger opinion process afford the Applicant a risk assessment meeting the requirements of sections 7 and 12 of the Charter. Thirdly, was the process before the IAD in accordance with fundamental justice and natural justice.
FACTS
[3] The Applicant is a citizen of Iran who fled Iran in July 1990. He subsequently received Convention Refugee status. While in Canada in 1997 and 1998 he was convicted of crimes under the Criminal Code. On October 1, 1998, he was served with a Notice of Intention to seek the Minister"s opinion that the Applicant was a danger to the public in Canada. The Applicant"s counsel filed submissions to the Minister and the Minister subsequently issued an opinion that he was a danger to the public. The Applicant sought judicial review of the Minister"s opinion and leave was denied in 1999.
ANALYSIS
[4] The Court of Appeal in Farhadi v. M.C.I. (May 12, 2000) A-201-98 (F.C.A.), reversed the decision of the Trial Division in the Minister of Citizenship and Immigration v. Farhadi. This recent decision dealt with many of the points argued by the Applicant who was relying on the Trial Division"s decision. The Court of Appeal had decided in Suresh v. M.C.I. (January 18, 2000) A-415-99 (F.C.A.), that:
| There can be no violation of section 12 where the acts of torture are committed by another state. |
[5] In Farhadi, supra, the Court of Appeal stated at paragraph 5:
| For the same reasons given by the Court in Suresh relating to the impugned sections of the Immigration Act, in that case we are of the view while section 48 of the Immigration Act does infringe upon section 7 of the Canadian Charter of Rights and Freedoms, it is nevertheless saved under section 1 of the Charter. |
Accordingly, the first issue is that there is no violation of sections 7 and 12 of Charter.
[6] The second issue is also dealt with by the Court of Appeal in Farhadi, supra, when they decided 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 pre-requisite risk assessment and determination. |
[7] While the facts of this case are somewhat different from Farhadi, I cannot look at the substance of the reasons with respect to the danger to the public since judicial review has been denied to the Applicant on the question of the danger opinion and the matter is res judicata.
[8] The process in this case was properly followed by the Immigration Officer and the IAD. Both Farhadi and Suresh, supra have found that the risk assessment by the removals officer being based on the risk assessment in the danger opinion is sufficient. The question of the adequacy of the reasons has been dealt with in the danger opinion review by the Court.
[9] The Applicant also relied on Mr. Justice Gibson"s opinion in Bhagwandas v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1905, Court file IMM-6496-98, December 10, 1999. Mr. Justice Gibson stated:
| By analogy to the reasoning in Baker, I am satisfied that the failure on the part of the respondent to share the summary reports with the applicant, and to provide an opportunity to the applicant to respond to them, and to then include any response to those summary documents in the material forwarded to the respondent"s delegate without further analysis on the part of anyone other than the respondent"s delegate himself or herself, constituted a breach of the duty of fairness owed by the respondent to the applicant on the facts of this matter. I reach this conclusion by reason of a particular concern, consistent with the analysis in Baker, for the ultimate importance to the applicant of the outcome of the "danger review" |
[10] I cannot agree with this analysis since the Baker case specifically provides that the summary document constitutes the reasons. It is not normal to provide reasons to the parties for comments before the issuance of the decision. The failure to disclose the summary report would only cause a problem if new facts were included in the summary which were not known to the Applicant. This is not the situation in this case.
[11] For these reasons, the application for judicial review is dismissed. Three of the four questions requested for certification have already been definitively answered by the Federal Court of Appeal in Suresh v. M.C.I. (January 18, 2000) A-415-99 and M.C.I. v. Farhadi (May 12, 2000) A-201-98. The fourth question is not a question of general importance.
"W. P. McKeown"
JUDGE
OTTAWA, ONTARIO
July 12, 2000
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