Date: 20121227
Docket: IMM-3680-12
Citation: 2012 FC 1545
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, December 27, 2012
Present: The Honourable Madam
Justice Tremblay-Lamer
BETWEEN:
|
|
SAID NAMOUH
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 63(3) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act], of a negative decision
rendered by the Immigration Appeal Division [IAD] of the Immigration and
Refugee Board on March 13, 2012, with respect to the appeal of a removal
order issued against the applicant on June 5, 2009.
FACTUAL BACKGROUND
[2]
The
applicant is a citizen of Morocco. Sponsored by his spouse, he obtained
permanent residence upon his arrival in Canada on September 9, 2003. In
2006, he divorced his spouse.
[3]
On
November 27, 2007, the applicant pleaded guilty to a charge of breaking
and entering into a residential dwelling (that of his ex-spouse) with intent to
commit an indictable offence therein, contrary to subsection 349(1) of the
Criminal Code, RSC 1985, c C-46 [CrC]. On the same day, the
applicant was found guilty under paragraph 145(5.1)(a) of the CrC
of failing to comply with a condition of an undertaking to appear. He was later
found to be inadmissible for serious criminality under paragraph 36(1)(a)
of the Act. A removal order was issued against him on June 5, 2009, by the
Immigration Division [ID] of the Immigration and Refugee Board pursuant to
paragraph 45(d) of the Act.
[4]
On
October 1, 2009, the applicant was convicted of the following offences by
the Court of Québec (R v Namouh, 2009 QCCQ 9324 [R v Namouh]):
a. conspiring to deliver, place,
discharge or detonate an explosive or other lethal device to, into, in or
against a place of public use with intent to cause death or serious bodily
injury or with intent to cause extensive destruction of such a place (paragraph 465(1)(c)
and subsection 431.2(2) CrC), for which he received a sentence of life
imprisonment without parole for 10 years;
b. participating in or
contributing to, directly or indirectly, an activity of a terrorist group for
the purpose of enhancing the ability of any terrorist group to facilitate or
carry out a terrorist activity (section 83.2 CrC), for which he was
sentenced to four years’ imprisonment;
c. facilitating a terrorist
activity (section 83.19 CrC) and committing extortion for the benefit of,
at the direction of or in association with a terrorist group (section 83.2
CrC). He received an eight-year sentence for each count, which he must serve
consecutively. All of these sentences must be served concurrently with the
original life sentence.
[5]
In
his appeal before the IAD, the applicant did not challenge the legality of the
removal order but rather sought a stay of the order on humanitarian and
compassionate grounds.
DECISION OF THE IAD
[6]
To
determine whether there existed humanitarian and compassionate considerations
warranting special relief, such as the best interests of the child, the IAD
took into account the factors in Ribic v Canada (Minister of Employment and
Immigration), [1985] IABD no 4 [Ribic], as reiterated by the Supreme
Court in Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC
3 [Chieu].
[7]
However,
considering the life sentence that the applicant is currently serving with no
possibility of parole before September 2017, in addition to the other sentences
ranging from four to eight years that he must serve concurrently, the IAD found
that there was no evidence that the applicant’s removal was imminent. It
concluded that it was impossible to predict what the situation would be in
Morocco in 2017 or later, or whether the applicant, once released and returned
to Morocco, would indeed be detained.
[8]
While
recognizing Morocco’s troubling human rights record, the IAD concluded that the
applicant’s particular circumstances made it difficult to assess the extent of
the hardship he might face in the event of his return to Morocco in several
years, finding that any such assessment would be speculative at this stage. Ultimately,
it gave more weight to the other Ribic factors, such as the seriousness
of the applicant’s offences, and found that there were insufficient
humanitarian and compassionate considerations warranting special relief to
allow the appeal or stay the removal order.
ISSUE
[9]
The
issue in this case is whether it was unreasonable for the IAD to conclude,
given the applicant’s incarceration until 2017, that any assessment of the hardship
he might face in the event of a removal to Morocco would be premature.
STANDARD OF REVIEW
[10]
Section 67
of the Act grants the IAD a wide discretion for assessing the humanitarian and
compassionate considerations in the context of an appeal of a removal order.
This case is similar to Khosa v Canada (Minister of Citizenship and
Immigration), 2009 SCC 12, which involved the review of an IAD decision
regarding whether humanitarian and compassionate considerations warranted granting
a stay of the applicant’s removal. At paragraph 58, the Supreme Court
wrote the following:
. . . [the applicant] accepted that the removal order
had been validly made against him pursuant to s. 36(1) of the IRPA. His attack was simply a frontal challenge to the
IAD’s refusal to grant him a “discretionary privilege”. The IAD decision to
withhold relief was based on an assessment of the facts of the file. The IAD
had the advantage of conducting the hearings and assessing the evidence
presented, including the evidence of the respondent himself. IAD members have
considerable expertise in determining appeals under the IRPA. Those factors, considered
altogether, clearly point to the application of a reasonableness standard of
review. There are no considerations that might lead to a different result.
(Emphasis added.)
[11]
The
Supreme Court continues at paragraph 59 with, “The question whether [the
applicant] had shown ‘sufficient humanitarian and compassionate considerations’
to warrant relief from his removal order . . . was a
decision which Parliament confided to the IAD, not to the courts.” Accordingly,
this Court must show considerable deference in determining whether the panel’s
findings are justified, transparent and intelligible, and therefore falling
within “a range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at
paragraph 47).
ANALYSIS
Applicant’s arguments
[12]
The
applicant submits that the panel failed to consider the particular
circumstances relating to a substantial risk of torture upon his return to
Morocco. These warrant the granting of special relief in the form of a stay of
the removal order. Executing the removal order would expose him to a
substantial risk of torture by Moroccan law enforcement agents, and there is no
evidence that the risk will diminish in the near future. No assurances can be
obtained from the Moroccan authorities, despite the fact that the Moroccan
legislature has made torture an offence and that Morocco is a party to the Convention
Against Torture. It has been established not only that torture is a common
practice among the Moroccan law enforcement authorities, but also that it is
basically encouraged as a result of the impunity enjoyed by the perpetrators of
torture in Morocco.
[13]
The
applicant also submits that he is expecting a judgment from the Quebec Court of
Appeal in the coming months that could result in a reduction of his sentence.
His removal would therefore be imminent if the Court of Appeal were to order
his release or reduce the length of his sentence of imprisonment, a fact that
the IAD neglected to consider in reaching its decision.
[14]
He
is therefore asking the Federal Court, on the grounds of the substantial risk
of torture to which he would be exposed, to order a permanent stay of the
removal order issued against him pursuant to paragraph 36(1)(a) of
the Act by the ID.
Respondent’s arguments
[15]
The
respondent is of the view, for the reasons that follow, that it was reasonable
for the IAD to find that an assessment of the risks to which the applicant
could be exposed should he return to Morocco was premature.
[16]
Under
paragraph 50(b) of the Act, the applicant benefits from a
regulatory stay of his removal order until 2017, in other words, “until the
sentence [of a term of imprisonment in Canada] is completed”. At the time of
his appeal to the IAD, the applicant’s removal was not only uncertain but also
contrary to the Act. The hypothetical nature of the applicant’s potential
removal is accentuated by the fact that he has not yet exhausted his
administrative remedies. When the time comes, he would have the option of
applying for a PRRA under sections 112 and following of the Act, in which
case the applicant’s potential hardship in Morocco would be assessed by the
Minister.
[17]
Moreover,
the applicant could obtain Canada’s protection after the Minister has weighed
the factors listed in section 97 of the Act and reviewed whether the
applicant is a danger to the public in Canada. Pursuant to subsection 114(1)
of the Act, a decision to allow the application for protection would have the
effect of staying the removal order issued against the applicant. Moreover, in Balathavarajan
v Canada (Minister of Citizenship and Immigration), 2006 FCA 340 [Balathavarajan],
the Federal Court of Appeal noted that in some circumstances, it is not
necessary for the IAD to consider the potential hardship of an applicant in the
event of his removal from Canada. Justice Linden wrote the following for
the Court at paragraph 9: “. . . It was, at the time of the
IAD appeal, not only unlikely but legally improper to remove the appellant to
Sri Lanka. For the IAD to consider potential hardship the appellant might face
if deported to Sri Lanka would have been a hypothetical and speculative
exercise. This it need not do.”
[18]
The
IAD did not need to speculate on facts that could not be established until 2017
at the earliest and did not have to take into account the potential outcome of
the applicant’s appeals to the Quebec Court of Appeal.
[19]
None
of the four remedies sought by the applicant can be granted by this Court. Not
only are these applications premature, but it is for the IAD alone to exercise
its jurisdiction to grant the regulatory stay referred to in subsection 68(1)
of the Act and to impose the conditions referred to in subsection 68(2). Paragraph 67(1)(c)
and subsection 68(1) of the Act grant the IAD a wide discretion to assess
the humanitarian and compassionate considerations raised in the context of a
removal order appeal (Chieu at paragraph 66; Khosa at paragraph 60).
ANALYSIS
[20]
In
this case, the IAD did not fail to consider the effect of the applicant’s
particular circumstances on whether he would be exposed to a substantial risk
of torture in Morocco. It explicitly mentioned his concerns about the human
rights situation in that country but concluded that that the issue was
premature. For the reasons below, I am of the view that this decision was
reasonable.
[21]
First,
it should be noted that the removal order issued against the applicant has yet
to be executed. He has been incarcerated since September 2007 and therefore
benefits from an automatic stay under paragraph 50(b) of the Act
until he has served his entire sentence, which, in this case, constitutes a
life sentence plus additional sentences to be served concurrently. He will not
be eligible for parole before 2017.
[22]
The
issue will remain premature as long as the removal order has not been executed.
As explained by Justice Lagacé in Shephard v Canada (Minister of
Citizenship and Immigration), 2003 FC 379 at paragraph 32 [Shephard],
a removal order has two stages. The distinction is “. . . plain
in the Act, and the importance of the distinction is that only an ‘enforceable
removal order’ allows for a person to be removed (subsection 48(2) of the
Act), unlike a removal order that has ‘come into force’, which becomes
enforceable only if it is not stayed (subsection 48(1)
of the Act)” (Shephard at paragraph 32).
[23]
Moreover,
a removal order does not become enforceable automatically, given section 232
of the Regulations, under which the removal order is stayed as soon as the
Department notifies the applicant, in accordance with subsections 160(1) and (3) of the Regulations, that he may make an
application under subsection 112(1) of the Act, which will have the effect
of staying the removal order against him. Furthermore,
“. . . the risks faced by the applicant, as listed in
section 97 of the Act, will not be considered at any point before the
removal order becomes enforceable, unless he waives the risk assessment. In the
event that his application is allowed, the applicant will be granted a stay of
removal for an unlimited time, or until it is revoked by the Minister for good
cause” (Shephard at paragraph 37).
[24]
The
removal order issued against the applicant was not enforceable when the IAD
rendered its decision, nor is it enforceable now. It would be premature at the
very least to conclude that it will become enforceable. No arrangements have
been made in this respect and no date has been set for a removal (Anandappa v
Canada (Minister of Citizenship and Immigration), 2002 FCT 701); see also Derbas
v Canada (Minister of Citizenship and Immigration), 2007 FC 1194 at paragraph 33
and Balathavarajan). As long as an applicant has not in fact been
granted a reduced sentence or parole, is not at risk of imminent removal
because the order has become enforceable, has not exhausted all of his administrative
remedies and has not been subjected to breaches of procedural fairness on account
of institutional bias, the IAD would be dealing in pure speculation. Therefore,
the IAD was not required to enter into a detailed review of the Ribic factors.
[25]
For
these reasons, the applicant’s application is dismissed and no question is
certified. Given this finding, this Court need not consider the admissibility
of the remedies sought by the applicant.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that the application for judicial review be dismissed. No question is
certified.
“Danièle Tremblay-Lamer”
Certified true translation,
Francie Gow, BCL, LLB
Email this Content