Al Sagban v. Canada (Minister of Citizenship and
Immigration), [2002] 1 S.C.R. 133, 2002 SCC 4
Ahmad Abdulaal Al Sagban Appellant
v.
Minister of Citizenship and Immigration Respondent
and
Immigration and Refugee Board Intervener
Indexed as: Al Sagban v. Canada (Minister
of Citizenship and Immigration)
Neutral citation: 2002 SCC 4.
File No.: 27111.
2000: October 10;
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
Immigration ‑‑ Removal orders ‑‑
Appeals by permanent residents ‑‑ Scope of discretionary
jurisdiction of Immigration Appeal Division of Immigration and Refugee Board
under s. 70(1)(b) of Immigration Act ‑‑ Whether Immigration
Appeal Division entitled to consider potential foreign hardship when
dealing with appeals from removal orders by permanent residents ‑‑
Interpretation of phrase “having regard to all the circumstances of the case”
in s. 70(1)(b) ‑‑ Immigration Act, R.S.C. 1985, c. I‑2,
s. 70(1)(b).
The appellant was born in Iraq in 1964, the son of a
high‑ranking economist in the Iraqi government that preceded the
presidency of Saddam Hussein. The appellant left Iraq permanently in 1981 in
order to avoid the military draft, then lived in the United States, Egypt and
England before being landed in Canada in 1986, at which time he became a
permanent resident. A removal order was entered against the appellant in 1994,
as a result of the application of s. 27(1)(d) of the Immigration
Act, as he had been convicted of three property‑related offences for
which a term of imprisonment of 12 months was imposed. The Immigration Appeal
Division (“I.A.D.”) of Canada’s Immigration and Refugee Board dismissed the
appellant’s appeal of the removal order, concluding that it could not consider
potential hardship in the country of removal. The Federal Court, Trial
Division allowed the appellant’s application for judicial review but the
Federal Court of Appeal set aside that decision.
Held: The appeal
should be allowed.
For the reasons given in Chieu, the I.A.D. can
take potential foreign hardship into consideration under s. 70(1)(b)
of the Immigration Act whenever a likely country of removal has been
established by an individual facing removal. The Minister remains free to
determine the country a person will be removed to, pursuant to s. 52 of
the Act, provided that the removal order has not been quashed or stayed by the
I.A.D. The Minister may make submissions regarding the country of removal at
the hearing of a s. 70(1)(b) appeal or make a s. 52 decision
prior to the hearing.
In this case, the matter should be returned to the
I.A.D. for a new hearing. It is clear that the country of removal is Iraq and
that the I.A.D., having found that the appellant would suffer extreme hardship
if returned to Iraq, might have exercised its discretion to allow the appellant
to remain in Canada if it had believed it was able to consider this potential
foreign hardship. This is an administrative decision requiring a complex
balancing of numerous foreign and domestic factors by the I.A.D. It is the
I.A.D., not this Court, which possesses the necessary expertise to make this
decision and apply the appropriate remedy.
Cases Cited
Applied: Chieu v.
Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, 2002
SCC 3; referred to: Ribic v. Canada (Minister of Employment and
Immigration), [1985] I.A.B.D. No. 4 (QL); Canepa v. Canada
(Minister of Employment and Immigration), [1992] 3 F.C. 270; Hoang v.
Canada (Minister of Employment and Immigration) (1990), 13 Imm. L.R. (2d)
35; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1
S.C.R. 3, 2002 SCC 1; Ahani v. Canada (Minister of Citizenship and
Immigration), [2002] 1 S.C.R. 72, 2002 SCC 2.
Statutes and Regulations Cited
Immigration Act, R.S.C. 1985, c. I‑2, ss. 27(1)(d) [am.
1992, c. 47, s. 78; am. 1992, c. 49, s. 16], 32(2),
52, 70(1)(b) [am. c. 28 (4th Supp.), s. 18; am.
1995, c. 15, s. 13].
APPEAL from a judgment of the Federal Court of Appeal
(1998), 234 N.R. 173, 48 Imm. L.R. (2d) 1, [1998] F.C.J. No. 1775 (QL),
reversing a judgment of the Trial Division, [1998] 1 F.C. 501, 137 F.T.R. 283,
[1997] F.C.J. No. 1349 (QL), setting aside a decision of the Immigration Appeal
Division, [1996] I.A.D.D. 859 (QL), dismissing the appellant’s appeal from a
removal order. Appeal allowed.
Rod Holloway and Christopher
Elgin, for the appellant.
Judith Bowers, Q.C.,
for the respondent.
Brian A. Crane, Q.C.,
and Krista Daley, for the intervener.
The judgment of the Court was delivered by
Iacobucci J. –
I. Introduction
1
This appeal was heard with Chieu v. Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 84, 2002 SCC 3, reasons in
which are being released concurrently herewith. For the reasons given in Chieu,
the Immigration Appeal Division (“I.A.D.”) of Canada’s Immigration and Refugee
Board is able to consider the foreign hardship potentially faced by a permanent
resident being removed from Canada when deciding whether to quash or stay a
removal order under its “equitable jurisdiction” conferred by s. 70(1)(b)
of the Immigration Act, R.S.C. 1985, c. I-2 (the “Act”). The I.A.D. can take potential foreign hardship into consideration
whenever a likely country of removal has been established by an individual
facing removal.
2
The respondent Minister of Citizenship and Immigration remains free to
determine, pursuant to s. 52 of the Act, where a permanent resident will
be removed to. The Minister’s jurisdiction to make a decision under s. 52 only
exists while an individual has a removal order entered against them. If the
I.A.D. quashes or stays a removal order,
the Minister no longer has anyone to remove and so no longer has the
jurisdiction to make a decision under s. 52. But it is open to the Minister to
make submissions at the hearing of a s. 70(1)(b) appeal with regard to
the country the Minister intends to remove a permanent resident to, or to make the s. 52 decision prior to the
hearing. Submissions regarding the country of removal are only
necessary where the country of removal is in dispute, which will generally be
the case only when the intended country of removal is one other than the
individual’s country of nationality or citizenship. The appellant Ahmad
Abdulaal Al Sagban’s appeal can be disposed of by applying these holdings to
the facts of this case.
II. Relevant
Statutory Provisions
3
The provisions of the Act relevant to this appeal are largely set out in
Chieu, supra. For ease of reference, the primary provision in
dispute -- s. 70(1)(b) -- is repeated here (although not law, I have
once again included the marginal notes of the Act in these reasons as an
explanatory aid):
70. (1) [Appeals by permanent residents and
persons in possession of returning resident permits] Subject to subsections
(4) and (5), where a removal order or conditional removal order is made against
a permanent resident or against a person lawfully in possession of a valid
returning resident permit issued to that person pursuant to the regulations,
that person may appeal to the Appeal Division on either or both of the
following grounds, namely,
.
. .
(b) on the ground that, having regard to all the
circumstances of the case, the person should not be removed from Canada.
4
An additional provision relevant to the particular facts of this appeal
is s. 27(1)(d):
27. (1) [Reports on permanent residents] An
immigration officer or a peace officer shall forward a written report to the
Deputy Minister setting out the details of any information in the possession of
the immigration officer or peace officer indicating that a permanent resident
is a person who
. . .
(d) has been convicted of an offence under any Act of
Parliament, other than an offence designated as a contravention under the Contraventions
Act , for which a term of imprisonment of more than six months has been, or
five years or more may be, imposed . . . .
III. Facts
5
The appellant was born in Iraq on August 27, 1964. His father was a
high-ranking economist in the Iraqi government in power prior to the presidency
of Saddam Hussein. The appellant lived with his family in Egypt from 1972-78,
while his father was secretary general of the Council of Arab Economic Unity in
Cairo. He and his family then returned to Iraq, but the appellant left
permanently in 1981 in order to avoid military service. He lived in the United
States, Egypt and England before being landed in Canada with his parents and
brother on August 3, 1986. He became a permanent resident at that time. The
appellant entered Canada as an independent immigrant and has not applied for
refugee status.
6
A removal order was entered against the appellant on September 22, 1994
at Prince Albert, Saskatchewan, pursuant to s. 32(2) of the Act. The basis for
the removal order was that the appellant was a person described in s. 27(1)(d)
of the Act, having been convicted in November 1993 of three property-related
offences for which a term of imprisonment of 12 months was imposed. As was the
case in Chieu, the appellant appealed the removal order to the I.A.D.
solely on equitable grounds pursuant to s. 70(1)(b).
IV. Decisions
Below
A. Immigration Appeal Division, [1996]
I.A.D.D. No. 859 (QL) (Board Members Clark, Dossa and Singh)
7
The I.A.D. dismissed the appellant’s appeal of the removal order made
against him. Applying Ribic v. Canada (Minister of Employment and
Immigration), [1985] I.A.B.D. No. 4 (QL), the I.A.D. held that the relevant
domestic factors did not favour allowing the appellant to remain in Canada.
The I.A.D. did refer at para. 16 to the hardship the appellant would face
if returned to Iraq:
. . . the most positive factor in his
favour is the hardship that he would suffer if returned to
Iraq. . . . Iraq is not a safe place to be. As a person
considered to be a deserter, and as the eldest son of a prominent Iraqi family
which was opposed to the government of Sadam Hussein, he would be in a very
difficult position. His stepmother said that the only thing that would happen
would be that they would hang him. . . . The Appeal Division
finds that it would be an extreme hardship for the appellant to be returned to
Iraq.
However, relying on Hoang v. Canada (Minister of Employment and
Immigration) (1990), 13 Imm. L.R. (2d) 35 (F.C.A.), the I.A.D. concluded
that it could not consider this factor, noting that “control over the location
to which the appellant is removed is a matter solely for the Minister’s
decision” (para. 16). It therefore concluded that “the negative factors weigh
more heavily against the appellant than the positive ones weigh in his favour”
(para. 17), and upheld his removal.
B. Federal Court, Trial Division, [1998] 1 F.C. 501
8
On an application for judicial review before the Federal Court, Trial
Division, Reed J. set aside the I.A.D.’s decision and referred the appeal back
to a differently constituted panel of the I.A.D. for reconsideration. She held
that Hoang does not prevent the I.A.D. from considering potential
foreign hardship under the Ribic test when dealing with appeals by
permanent residents, and that the I.A.D. therefore erred in not fully
considering the hardship the appellant would face if returned to Iraq. Reed J.
relied in part on the Federal Court of Appeal’s decision in Canepa v. Canada
(Minister of Employment and Immigration), [1992] 3 F.C. 270, at p. 286,
where it was stated that “every extenuating circumstance that can be adduced in
favour of the deportee” should be considered by the I.A.D. when hearing an
appeal pursuant to s. 70(1)(b). She held that it was not premature for
the I.A.D. to consider potential foreign hardship prior to the Minister making
the decision as to the country of removal under s. 52, as the likely country of
removal will usually be the individual’s country of nationality or
citizenship. Reed J. was aware that a question of general importance had
already been certified on this matter by Muldoon J. in Chieu, and she
certified an almost identical question in this case.
C. Federal
Court of Appeal (1998), 234 N.R. 173
9
The Minister successfully appealed this decision to the Federal Court of
Appeal. For the reasons given in Chieu, supra, which was
released on the same day, Linden J.A., for the court, allowed the appeal, set
aside Reed J.’s decision and dismissed the application for judicial review.
V. Analysis and Disposition
10
For the reasons set out in Chieu, the appropriate standard of
review in this case is correctness. Turning to the substantive issues, and
also applying the approach set out in Chieu, it must first be asked
whether the appellant has established a likely country of removal. At the
hearing of the s. 70(1)(b) appeal, the appellant presented evidence
regarding the conditions he would face in Iraq, his country of nationality.
And in fact, after the s. 70(1)(b) appeal was dismissed, the government
acted to remove the appellant to Iraq. As Reed J. stated at p. 506:
. . . Mr. Justice McKeown, on April 28, 1997 . . .,
granted a stay of the deportation order that had been issued against this
applicant, to prevent the applicant’s deportation until this application for
judicial review was heard. The travel plans that were in place at that time
would have seen the applicant deported to Iraq.
The booking of
travel arrangements is the administrative process by which the Minister makes
the s. 52 decision as to the country of removal. In this case it is therefore
clear that the likely country of removal is Iraq.
11
As a result, the second issue to be addressed is whether the I.A.D.
would have exercised its discretion under s. 70(1)(b) to allow the
appellant to remain in Canada, and if so, what remedy it would have provided.
The I.A.D. found that “it would be an extreme hardship for the appellant to be
returned to Iraq” (para. 16). It therefore appears that the I.A.D. would have
exercised its discretion to allow the appellant to remain in Canada if it had
believed it was able to consider this potential foreign hardship. However,
this is an administrative decision which requires a complex balancing of
numerous factors. It is the I.A.D., not this Court, that has the expertise to
balance domestic and foreign concerns properly. More importantly, it is the I.A.D.
that should make the decision regarding the appropriate remedy if the appeal is
allowed. The I.A.D. has the expertise to decide whether the removal order
should be quashed or whether a stay would be preferable, as well as to
determine what the terms and conditions of a stay would be.
12
The appeal is therefore allowed. The judgment of the Federal Court of
Appeal is set aside and the appeal under s. 70(1)(b) is returned to the
I.A.D. for a new hearing, taking into account the reasons set out herein and in
Chieu. At the new hearing, the likely country of removal will be Iraq,
unless the Minister can establish otherwise.
VI. Addendum
13
Both this appeal and Chieu were heard prior to the hearings
before this Court in Suresh v. Canada (Minister of Citizenship and
Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1, and Ahani v. Canada
(Minister of Citizenship and Immigration), [2002] 1 S.C.R. 72, 2002 SCC 2.
Pursuant to the reasoning of the Court in those cases, if the appellant in this
case can establish that there are substantial grounds to believe that he will
face a risk of torture upon return to Iraq, he cannot be removed to that
country.
Appeal allowed.
Solicitors for the appellant: McPherson, Elgin &
Cannon, Vancouver.
Solicitor for the respondent: The Attorney General of
Canada, Vancouver.
Solicitors for the intervener: Gowling Lafleur Henderson,
Ottawa.
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