Moktari v. Canada (Minister of Citizenship and Immigration), docket IMM-4923-97

Date: 19971201

Docket: IMM-4923-97

BETWEEN:

     ALI REZA MOKTARI

     Plaintiff

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Defendant

     REASONS FOR ORDER

LUTFY J.

[1]      The plaintiff seeks a stay of his deportation to Iran, his country of citizenship. He fled Iran as an army deserter, was found to be a Convention refugee and has since been convicted of criminal offenses in Canada. His application for injunctive relief is based on two proceedings between the same parties, raising substantially the same issues and commenced on the same day.

[2]      In this action, a statement of claim has been issued contesting his deportation to Iran. The plaintiff seeks a declaration that his deportation should be to a country where he will not be in danger and that either the refusal to have him removed to another country selected pursuant to section 52 of the Immigration Act or the statutory provision itself is an infringement of his right to life, liberty and security pursuant to section 7 of the Canadian Charter of Rights and Freedoms. Section 52 sets out when, with the approval of the defendant, the person being deported may select the country to which the removal will be executed.

[3]      In IMM-4922-97, the applicant seeks leave and judicial review of the decision of an immigration officer denying his request to depart Canada to a country where he will not face danger. The decision also refuses to postpone his departure pending the outcome of a forthcoming application for humanitarian and compassionate consideration pursuant to subsection 114(2) and to discuss conditions for his release from his possible immigration detention. This decision of the immigration officer is communicated in her letters of October 30, 1997 and November 19, 1997. The application for leave and for judicial review raises the same Charter arguments as in the action.

[4]      In Sivaraj v. Canada (Minister of Citizenship and Immigration) (1996), 107 F.T.R. 64, my colleague Justice Tremblay-Lamer concluded, on the basis of subsection 18(3) of the Federal Court Act, that declaratory relief under the Charter with respect to a deportation order must be pursued by way of judicial review and not through an action. Her decision was affirmed by the Court of Appeal on May 23, 1996, [1996] F.C.J. no. 700 (QL). On the following day, in Sivakumar v. Canada (Minister of Citizenship and Immigration), [1996] 2 F.C. 872, the Court of Appeal granted injunctive relief in an action for a declaration that the plaintiff's removal to Sri Lanka would violate his rights under sections 7 and 12 of the Charter. The procedural issue does not appear to have been raised in Sivakumar. In the proceedings before me, there is no motion to strike either the application for judicial review or the action. In any event, the urgency surrounding the application for injunctive relief did not permit a thorough review of the procedural issues and, of equal importance, the distinction that may exist between Sivaraj and Sivakumar concerning the choice of proceedings.

[5]      The plaintiff claims that he was arrested and detained by Iranian authorities for over two years in the 1980's for his political views and, for similar reasons, his sister was arrested and killed. He states that he was subsequently conscripted in the Iranian army and sent to the Iraq-Iran border to become engaged in combat. He was reported to his military superior as being unwilling to participate in the killing of Iraqi soldiers and, upon fear of his being executed for treason, he deserted. The plaintiff was determined to be a Convention refugee abroad prior to his arrival in Canada in April 1990.

[6]      In June 1994, after three prior convictions since his arrival in Canada, the plaintiff was sentenced to a four-year of imprisonment for trafficking in cocaine. On May 13, 1996, the defendant's delegate issued opinions pursuant to paragraph 53(1)(b) and subsection 70(5) of the Immigration Act that the plaintiff constitutes a danger to the public in Canada. On September 5, 1996, a deportation order was issued against the plaintiff on the grounds that he had been convicted of an offence for which a term of imprisonment of more than six months had been imposed. While on parole in October 1996, he was arrested for alleged further serious offenses under the Narcotic Control Act and has since been within a federal penitentiary. Counsel for the defendant proffered that the plaintiff's removal, which had been scheduled for November 24, 1997, would be kept in abeyance pending this decision on the motion to stay.

[7]      In Sivakumar, the plaintiff had been found by the Immigration and Refugee Board to have good reason for fearing persecution if returned to Sri Lanka. However, he was excluded from determination as a Convention refugee by virtue of his crimes against humanity. In seeking injunctive relief against deportation, there was evidence from the former visa officer for the Sri Lankan High Commission in India to support the plaintiff's own affidavit that he would be arrested, detained and subjected to severe forms of torture upon his return to Sri Lanka. While in Canada, the plaintiff developed a working relationship with officials of the Canadian Security Intelligence Service. On the basis of this and other uncontradicted evidence, the Court of Appeal was satisfied that a serious issue was raised where the plaintiff challenged his deportation to Sri Lanka on the basis of sections 7 and 12 of the Charter. In the words of Mr. Justice Stone, at page 880:

[8]      In Sivaraj, Tremblay-Lamer J. concluded that there existed an arguable case in the Charter challenge against the deportation to Sri Lanka of persons who were determined not to be Convention refugees. The statements of claim in Sivakumar and Sivaraj contest the deportation on the basis of Charter issues without alleging that any specific provision of the Immigration Act is unconstitutional. In her reasons in Sivaraj, however, Tremblay-Lamer J. did refer to section 52. In Ghorvei v. Canada (Minister of Citizenship and Immigration) (July 5, 1996), IMM-2254-96 (F.C.T.D.), Rothstein J. granted a stay without reasons where an Iranian army deserter and Convention refugee was being deported after a danger to the public opinion pursuant to paragraph 53(1)(d) of the Act. On September 16, 1997, the application for judicial review was granted by the Associate Chief Justice, [1997] F.C.J. no. 1198 (QL).

[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 plaintiff 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 defendant'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.

[11]      The plaintiff's evidence concerning irreparable harm is general and limited. As the result of his desertion from the army during a time of war, he is sure that he will be arrested and will suffer very severe punishment upon his re-entry into Iran. Documentary evidence from 1993 is that deserters "... experience severe forms of punishment such as systematic torture, imprisonment and general ill-treatment, which sometimes cause death or physical and psychological impairment." There is no evidence of any risk assessment having been made by the defendant concerning the plaintiff's return to Iran.

[12]      In Shayesteh v. Canada (Minister of Citizenship and Immigration) (1996), 112 F.T.R. 161, it was held that an Iranian army deserter and Convention refugee who had converted to Christianity while in Canada could come to irreparable harm if deported to his country of citizenship. In Bavi v. Canada (Minister of Citizenship and Immigration) (1996), 106 F.T.R. 149, where the applicant's profile was similar to the one in this case, the motions judge concluded that the evidence disclosed neither a serious issue nor irreparable harm.

[13]      The plaintiff is relying on the Charter to assure that his deportation is made to a country other than Iran. I am mindful that the affidavit and documentary evidence before me may not be as specific as in Sivakumar. There is sufficient uncontradicted evidence, however, that as an army deserter, the plaintiff would face certain consequences in Iran not compensable in damages. This is not to suggest that a term of imprisonment for an offence will, in all circumstances, constitute irreparable harm upon one's return to the country of citizenship. In this case, however, the irreparable harm is linked directly to the serious issue. Any success the plaintiff may achieve in this proceeding would be of no practical effect if, as an army deserter, he has been returned to Iran.

[14]      The balance of convenience also rests with the plaintiff. The plaintiff's criminal conduct in Canada has seriously jeopardized the privileges attached to his refugee status. Nevertheless, the Court must weigh the irremediable consequences of his return to Iran against the defendant's authority and statutory duty in executing the deportation order. The plaintiff's delay in commencing this Charter challenge is explained, if only to some extent, by his expectation that the additional criminal charges he faces would have further postponed the execution of the deportation order. There is no evidence to suggest that the plaintiff was aware of the defendant's recent consultations with senior counsel for the Attorney General of Canada concerning staying the outstanding criminal charges upon his removal from Canada. The plaintiff is currently incarcerated and not yet in immigration detention. A warrant for his arrest pursuant to subsection 103(1) of the Immigration Act was issued on November 12, 1996 and an order under section 105 to allow for his transfer to immigration detention was signed on November 20, 1997. The balance of convenience in this case, as in Sivakumar and Sivaraj, favours the granting of the stay.

[15]      For these reasons, the application for a stay of the execution of the deportation order will be granted. The parties will want to have determined whether the substantive issues in this litigation will be resolved by way of the application for judicial review or the action.

     Judge

Ottawa, Ontario

December 1, 1997