Date: 20000118
Dockets: A-413-99
and A-414-99
CORAM: DÉCARY J.A.
LINDEN J.A.
ROBERTSON J.A.
BETWEEN:
A-413-99
MANSOUR AHANI
Appellant
- and -
HER MAJESTY THE QUEEN
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondents
A-414-99
MANSOUR AHANI
Appellant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
Heard at Toronto, Ontario, on Wednesday, October 6, 1999
Delivered at Ottawa, Ontario, on Tuesday, January 18, 2000
REASONS FOR JUDGMENT BY: ROBERTSON J.A.
CONCURRED IN BY: DÉCARY J.A.
LINDEN J.A.
Date: 20000118
Dockets: A-413-99
and A-414-99
CORAM: DÉCARY J.A.
LINDEN J.A.
ROBERTSON J.A.
BETWEEN:
A-413-99
MANSOUR AHANI
Appellant
- and -
HER MAJESTY THE QUEEN
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondents
A-414-99
MANSOUR AHANI
Appellant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR JUDGMENT
ROBERTSON J.A.
The appeal in A-414-99 is an appeal from a judgment dismissing an application for judicial review with respect to an "opinion letter" issued by the Minister of Citizenship and Immigration under paragraph 53(1)(b) of the Immigration Act. In that letter, the Minister expresses the view that the appellant poses "a danger to the security of Canada". This finding enables the Minister to return ("refoule") the appellant, a Convention refugee, to the very country from which he sought refuge. However, the appellant"s status as a Convention refugee is undermined by the fact that there are reasonable grounds to support the allegation that he is a trained assassin with the Iranian secret service.
The other appeal, A-413-99, is from a judgment dismissing the appellant"s action for a declaration that certain provisions of the Immigration Act , including paragraph 53(1)(b), are unconstitutional. The appellant commenced this parallel proceeding presumably because he was afraid that the declaratory relief being sought was not available in a judicial review application. This, however, is not the case: see Moktari v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1864 (F.C.A.). Therefore, I need only respond to the appeal in the context of the judicial review application, A-414-99. The outcome of the other appeal will necessarily follow from my conclusions here.
The appeal in A-414-99 was heard immediately following the appeal in Suresh v. The Minister of Citizenship and Immigration and The Attorney General of Canada, A-415-99, for which lengthy reasons are being issued concurrently. As nearly all of the substantive issues raised in Suresh were raised in this appeal, it is unnecessary for me to repeat what is set out in that decision. Suffice it to say that I rejected all of the constitutional challenges to the validity of various provisions of the Immigration Act. However, I must touch briefly on one issue which involves a factual difference. That issue is whether the appellant"s suspected involvement as an assassin with the Iranian Ministry of Intelligence and Security ("MOIS") constitutes terrorism. This leaves for consideration only two other issues.
The first is whether in the circumstances of this case the decision to return the appellant to Iran would constitute a breach of the principles of fundamental justice under section 7 of the Charter of Rights and Freedoms for the reason that refoulement would expose him to the risk of torture. It is common ground that in order to sustain this argument the appellant must first establish that there are substantial grounds for believing that refoulement would expose him to a risk of torture. In other words, the appellant must establish, on a balance of probabilities, that he would be exposed to torture at the hands of the Iranian authorities, or as set out in Suresh a "serious" risk of harm. In the present case the Minister concluded that refoulement to Iran would only expose the appellant to a "minimal risk" of harm. This gives rise to the second issue: whether there is any basis on which the Minister"s decision may be set aside. On judicial review the Motions Judge, McGillis J., answered this question in the negative. In effect, she reached this conclusion having regard to two standards of review: "correctness" and "reasonableness". In my respectful view she did not err, nor correlatively did the Minister in issuing the opinion letter. I begin my analysis with a recitation of the relevant facts.
The appellant is a citizen of Iran who entered Canada by Vancouver on October 14, 1991 via Vancouver and claimed Convention refugee status based on his political opinion and his membership in a particular social group. Originally, the appellant based his fear of persecution of the basis of having been taken to the offices of the Islamic Revolutionary Committee and beaten by members of the Iranian Revolutionary Guard Corps for having been intoxicated. Later, before the Refugee Determination Division of the Immigration and Refugee Board in Toronto, the appellant maintained that during his mandatory military service in Iran he was trained as a drug enforcement officer stationed near the Pakistan and Afghanistan borders. He also indicated that he came to Canada from Iran via Bandar Abbas and Dhubai. [It was subsequently learned that prior to coming to Canada the appellant lived and worked for an indeterminate time in Singapore leaving behind his "first" wife.] The appellant maintains that he participated in a drug raid into Pakistan that turned out to be a raid on the home of an Iranian dissident. The appellant maintains that when he became aware of this fact and of the presence of women and children in the home, he refused to take part in the raid. He claims that as a result he spent four years in jail. The appellant maintains that he was released after he pretended to repent. Fearing that he would be conscripted into another mission, the appellant fled Iran by arranging for false travel documents. On arrival in Canada, the appellant sought and was granted refugee status.
Shortly after his refugee hearing, the appellant was contacted by one Akbar Khoshkooshk, an intelligence officer from Iran. "Akbar" is alleged to be a commander with the Iranian Ministry of Intelligence and Security ("MOIS") who coordinates the assassination of Iranian dissidents living in and outside Iran. The appellant speculates that Akbar was able to reach him through a contact within the Canadian immigration system. The appellant maintains that Akbar requested that they meet in Europe to discuss what the appellant had told the Canadian authorities. Initially, the appellant refused but relented after being warned that a failure to cooperate would place the appellant"s family at risk. The appellant arranged for a false passport from the same people who had helped him travel to Canada. The appellant was provided with money sent from Iran to a foreign exchange office in Toronto. The appellant then travelled to Zurich, Switzerland where he telephoned Akbar who was still in Iran. Ten to twelve hours later the appellant received a call from Akbar asking that they meet near a restaurant. They met and spoke with each other for a half hour. Then Akbar revealed that they might be under surveillance in Switzerland and, therefore, the appellant should travel to Urbino, Italy where the two would meet again. The two met in the appellant"s hotel room in Urbino with Akbar carrying an athletic bag containing a substantial sum of American currency. The next day both men travelled to Fermignano, Italy which is apparently the home of a number of Iranian dissidents. The appellant and Akbar went to a certain part of the city where Akbar instructed the appellant to photograph Akbar using certain buildings as the background. Both men were arrested by the Italian police. The appellant was held for ten to twelve hours and then "escorted" by the police out of Italy. [ The appeal record is unclear as to whether the appellant was charged and then released. If he was charged it was with respect, for example, to possession of a false passport.]
The appellant returned to Switzerland and then travelled to Istanbul, Turkey where he spent twenty five days. During his stay in Istanbul the appellant claimed that he phoned his father in Iran who had received a call that the appellant was to take the film that contained the photographs of Akbar to the Iranian Consulate in Istanbul. The appellant complied. In Istanbul the appellant was able to purchase another false passport with $2,000 received from his "second" wife in Toronto. After his return to Canada the appellant was contacted by the Canadian Security Intelligence Service ("CSIS") with whom he had several meetings. CSIS alleges that during those meetings the appellant admitted that his military training was part of his recruitment into the MOIS and that Akbar was a previous associate who worked with him. It is common ground that the appellant did disclose the details with respect to the assassination of two dissidents by the Iranian secret service.
On June 9 and June 15, 1993, the Solicitor General of Canada and the Minister respectively certified, under subsection 40.1(1) of the Immigration Act, that they were of the opinion that the appellant was a member of an inadmissible class specified in the anti-terrorism provisions in subparagraph 19(1)(e)(iii), clause 19(1)(e)(iv)(C), subparagraph 19(1)(f)(ii), clause 19(1)(f)(iii)(B) and paragraph 19(1)(g) of the Act. On June 17, 1993, the certificate of the Solicitor General of Canada and the Minister was filed with the Federal Court. The appellant was arrested under paragraph 40.1(2)(b) of the Act, and has remained in custody since that date.
The section 40.1 certificate was issued on the basis of a security report prepared by CSIS. In that report, CSIS alleged that there were reasonable grounds to believe that the appellant is a member of the Iranian Ministry of Intelligence Security (MOIS), which sponsors, or undertakes directly a wide range of terrorist activities including the assassination of political dissidents world-wide. CSIS also alleged that the appellant had received specialized training from this organization which qualifies him as an assassin. They further alleged that after he was granted refugee status, the appellant left Canada for Europe where he was arrested in the company of Akbar, a known MOIS assassin, and that even though the appellant is now back in Canada, there are reasonable grounds to believe that while in Europe, the appellant was participating in a plot to assassinate a known Iranian dissident living in Italy.
The appellant challenged the constitutional validity of section 40.1 of the Act but on September 12, 1995, McGillis J. found the section 40.1 statutory scheme to be valid: see Ahani v. Canada, [1995] 3 F.C. 669 (T.D.); affirmed (1996), 201 N.R. 233 (F.C.A.); application for leave to appeal to S.C.C. No. 25580 dismissed with costs July 3, 1997.
Once the constitutionality of section.40.1 had been affirmed, Denault J. conducted nine days of hearings in Toronto and two in camera hearings in Ottawa to determine the "reasonableness" of the section 40.1 certificate. On April 17, 1998, Denault J. determined that the ministerial certificate was reasonable on the basis of the evidence and available information. He expressed his agreement with the Ministers that there are reasonable grounds to believe that the appellant is a person who has engaged or will engage in terrorism or is or was a member of an organization that there are reasonable grounds to believe is or was engaged in terrorism. In so finding, Denault J. accepted evidence of CSIS that there are reasonable grounds to believe that the appellant is a member of the Iranian Ministry of Intelligence Security (MOIS), which sponsors, or undertakes directly a wide range of terrorist activities including the assassination of political dissidents world-wide. Before reaching these conclusions Denault J. acknowledged that "the credibility of Mr. Ahani is at the heart of the matter." In short, the appellant was found not to be credible.
On April 28, 1998, an adjudicator determined that the appellant was a person described in paragraph 27(2)(a), subparagraph 19(1)(e)(iii), clause 19(1)(e)(iv)(c), subparagraph 19(1)(f)(ii), clause 19(1)(f)(iii)(B) and paragraph 19(1)(g) of the Act, and ordered him deported from Canada.
On April 22, 1998, the appellant was informed of the intention of the Minister to issue a danger opinion under paragraph 53(1)(b) of the Immigration Act. That opinion has the effect of removing the prohibition against returning persons, who have been found to be Convention refugees, to the country from which they fled. In the April 22 letter, the appellant was informed that the Minister would assess the risk that he represented to Canadian society and the possible risk to which the appellant would be exposed if returned to Iran. The appellant was then given fifteen days to make written submissions. On May 13, 1998, then-counsel for the appellant provided a fourteen page submission [Appeal Book at 203-16]. In that submission, counsel pointed out that a person is to be given a reasonable time to locate a third safe country. Parenthetically, I note that there is no evidence that the appellant sought out a third country or the assistance of the Canadian government. For the most part, the appellant"s submission is directed at issues involving the constitutionality of the legislative scheme and a number of collateral attacks on the decision of Denault J. upholding the reasonableness of the section 40.1 certificate. With respect to the risk of torture issue, the appellant argued that he would be put at risk for having made a refugee claim and divulging information to the Canadian authorities with respect to the role he played in Iranian drug enforcement and the raid in Pakistan, information which is said to be embarrassing to the Iranian government. The appellant drew attention to the fact that the Iranian Embassy directly approached Canadian immigration authorities for information concerning the appellant, as well as attempting to obtain information directly from the R.C.M.P.. It is because of these circumstances that the appellant states that he has been willing to remain in detention in Canada since June 17, 1993. It follows from those submissions that the appellant does not admit to being an assassin with the Iranian secret service.
On July 31, 1998, Graham Alldridge, an analyst with the Case Management Branch of the Department of Citizenship and Immigration, prepared a memorandum for both the Acting Deputy Minister and the Minister"s consideration and attached the appellant"s submission together with other relevant documents [Appeal Book at 169]. That memorandum recommends that the appellant be declared a danger to the security of Canada. Mr. Alldridge sets out the various legal arguments raised by appellant in his submissions and deals with them in light of the jurisprudence of this Court at that time. [ The memorandum is accompanied by an opinion letter from the Minister"s legal services unit.] Mr. Alldridge notes that the appellant continues to deny that he is an Iranian operative but that he lacks credibility in light of the findings made by Denault J. in the section 40.1 proceedings. Referring to the international Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment , Mr. Alldridge notes that the standard to be applied in regard to the assessment of risk is expressed in terms of there being substantial grounds for believing that refoulement would expose a person to the risk of torture in the sense that an individual must be personally at risk. He then concludes that there is no credible allegation that the appellant would be at risk if refouled to Iran. Specifically, Mr. Alldridge notes that: (1) the appellant"s risk submissions were found to be "suspect" during the section 40.1 hearings; (2) the appellant"s submissions to the Minister refer to general country conditions in Iran which are applicable to opponents of the regime and not to persons such as the appellant; and (3) the appellant was in touch with the Iranian government ("Akbar") following his refugee hearing. The memorandum goes on to conclude that when the "serious" risk to Canadian security is weighed against the "minimal risk" of harm to the appellant if returned to Iran, the "danger outweighs the risk".
On August 12, 1998, the Minister issued her opinion, under paragraph 53(1)(b) of the Immigration Act, that the appellant constitutes a danger to the security of Canada.
On August 18, 1998, the appellant filed an application for leave and for judicial review of the Minister's decision in which he raised, among other things, various constitutional questions relating to paragraph 53(1)(b) of the Act. At the outset of the application for judicial review hearing held on June 15, 1999, counsel for the Minister made a preliminary motion requesting that the Motions Judge, McGillis J., apply the decision of McKeown J. in Suresh v. Minister of Citizenship and Immigration, (file No. IMM-117-98, June 11, 1999) to the present proceeding and the related files, to the extent that it decided the same constitutional questions. On June 15, 1999, McGillis J. delivered oral reasons in which she granted the motion, and adopted and applied the decision of McKeown J. to the extent that it decided the same constitutional questions.
Before McGillis J., the appellant submitted that the Minister's decision to declare the appellant a danger to the security of Canada under paragraph 53(1)(b) of the Immigration Act was "unreasonable". The appellant further submitted that it was unreasonable for the Minister to conclude that the appellant would only face "minimal risk" in Iran. McGillis J. concluded that there was ample evidence in the record to support the Minister's discretionary decision that the appellant constitutes a danger to the security of Canada under paragraph 53(1)(b) of the Immigration Act . She found the Minister"s decision to be reasonable. Alternatively, even if the standard of review was not one of reasonableness, McGillis J. concluded that the Minister committed no error of any nature that would require the intervention of the Court.
As noted at the outset, all of the constitutional challenges to various provisions of the Immigration Act raised in this appeal have been dealt with in Suresh, which is being released concurrently with these reasons. One of the arguments raised therein was that the word "terrorism" employed throughout section 19 of the Immigration Act (the inadmissible classes) is void for vagueness. Under the vagueness doctrine, a provision which lacks sufficient precision "so as to give sufficient guidance for legal debate" could violate the principles of fundamental justice under section 7 of the Charter. In Suresh it was argued that the word "terrorism" is incapable of being defined. In support of that argument the appellant noted that the international community has failed to reach a consensus as to its meaning. Ultimately, I rejected that argument [see Suresh, para 65 et seq] by holding that a group (the "Tamil Tigers") which seeks political reform through the use of violence directed at an innocent civilian population could be accurately described as a terrorist organization. Similarly, I have no difficulty in defining terrorism to include the act of assassination directed at silencing political dissidents who seek to bring about change through the exercise of free expression. I may not be able to give the term "terrorism" a comprehensive definition. But that does not mean that I do not recognize certain obvious acts of terrorism when I see them. While it is said that "One person"s freedom fighter may be another person"s terrorist", the distinguishing hallmarks are how and at whose expense those freedoms are to be realized.
It is common ground that the onus was on the appellant to establish that there are substantial grounds for believing that refoulement to Iran would expose him to the risk of torture. The Minister concluded that there was only a "minimal risk" of harm if the appellant were returned to that country and understandably so. Once the section 40.1 certificate alleging the appellant to be a trained assassin for the Iranian secret service was upheld as reasonable by Denault J., the appellant cannot revert to his refugee claim and the grounds for fearing persecution raised at that time. Before Denault J., the appellant was found to lack credibility, a finding which cannot be challenged in this Court by way of a collateral attack.
The appellant"s counsel spent much time in oral argument reviewing the transcript from the section 40.1 hearings in an attempt to establish that it made no sense that a suspected Iranian assassin would be willing to remain in detention since 1993, rather than simply returning to Iran. The Minister counters with the argument that even though the appellant"s cover as a foreign assassin has been exposed it is possible that he will be reactivated in future. As well, counsel for the Minister focussed on the appellant"s implausible explanation for his sojourn in Europe and his travels with Akbar, who is a known assassin for the Iranian secret service. But in my respectful view, all of these issues are irrelevant for purposes of determining this appeal. The Minister is entitled to carry out a risk assessment on the basis that the appellant is what CSIS alleged him to be - a trained assassin with the Iranian secret service (MOIS). For this reason alone the Minister could rightly conclude that the appellant would not be exposed to a serious risk of harm let alone torture.
Like McGillis J., I can find no basis on which to set aside the Minister"s decision to declare the appellant a danger to the security of Canada. I reach this conclusion irrespective of whether the proper standard of review of the Minister"s decision is correctness, reasonableness or patent unreasonableness. Moreover, the constitutional standard of review is of no application. Had the appellant been able to establish that refoulement will expose him to a serious risk of harm, he could have argued that the Minister"s decision violates the principles of fundamental justice under section 7 of the Charter . Under the constitutional standard of review it would have been necessary to ask whether the Minister"s decision to return the appellant to Iran would shock the Canadian conscience.
I would dismiss the appeal in A-414-99. It follows that the appeal in A-413-99 must be dismissed. The respondent is entitled to one set of costs for both appeals.
As in the companion appeal, Suresh v. Canada (M.C.I.), A-415-99, the appellant asked that we refrain from issuing formal judgment so as to allow him time to file a leave application in the Supreme Court and a motion for a stay in this Court thereby preventing his deportation pending consideration of those motions. That request is granted in accordance with the reasons set out in Suresh.
"J.T. Robertson"
J.A.
"I agree
Robert Décary J.A."
"I agree
A.M. Linden J.A."
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