Date: 19990528
Docket: IMM-966-98
IMM-1625-98
BETWEEN:
JALIL ALI AKBAR BAHRAMI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SHARLOW J.:
[1] The applicant wants two decisions quashed. One is the decision of a delegate of the Minister, made under paragraph 53(1)(d) of the Immigration Act, that the applicant constitutes a danger to the public in Canada. The other is the decision of a senior immigration officer to order the applicant's removal to Iran. As the factual background for both applications is the same, I have issued one set of reasons for both.
[2] The applicant is a citizen of Iran, born January 1, 1966. In his youth he suffered severe abuse from his father and others. He had a number of traumatic experiences during his compulsory military service with the Iranian army, commencing at the age of 18 years. In 1985, in despair over the effects of the war between Iran and Iraq, he deserted the Iranian army by walking across a minefield to Iraq. He was taken into custody and treated as a spy by Iraq, and subjected to further abuse.
[3] In 1988, with the assistance of the Red Crescent and the UNHCR, he was determined to be a Convention refugee on the basis that he was an army deserter and an Iranian Kurd. At that time he faced severe persecution if he returned to Iran. He arrived in Canada as a Convention refugee on October 19, 1988.
[4] The record discloses that the applicant has sustained psychological damage arising from his experiences in Iran and Iraq. When he came to Canada he received no counselling or other assistance to deal with those problems and they worsened. He is frequently depressed and once attempted suicide. He had an addiction to alcohol as a teenager and by 1991 had become addicted to cocaine.
[5] Between 1990 and 1997, the applicant was convicted of 20 criminal offences. The latest of these are two convictions for trafficking in cocaine, each resulting in a sentence of imprisonment for 26 months, a conviction for possession of a narcotic resulting in a $500 fine, and a conviction for procuring for the purpose of prostitution resulting in a sentence of imprisonment for 14 months. The other offences include assault, possession of a narcotic, failing to attend court, failing to comply with a recognizance, obstruction, uttering threats and possession of a weapon. These convictions resulted in penalties ranging from small fines to imprisonment for 6 months. The record contains particulars of the most serious offences, and transcripts of the reasons for sentence.
[6] In 1994 the applicant married. He and his wife have one child, aged four. In 1995, the applicant converted from Islam to Christianity. Counsel for the respondent correctly noted that the applicant committed criminal offences after his conversion (possession and trafficking in a narcotic). However, in my view that fact, standing alone, does not support an inference that he has not adopted the Christian faith. No immigration official has expressed an opinion doubting the sincerity of his conversion.
[7] The fact that the applicant was declared to be a Convention refugee in 1988 means that he established to the satisfaction of the appropriate authorities at that time that he was a person with a well-founded fear of persecution by reason of race, religion, nationality, membership in a particular social group or political opinion, who was unable or, by reason of that fear, was unwilling to avail himself of the protection of his country of nationality, Iran.
[8] At the same time, the appropriate authorities will have determined that he was not excluded from the definition of Convention refugee by reason of past criminal activity of the kind referred to in Section F of Article 1 of the United Nations Convention Relating to the Status of Refugees.
[9] By virtue of subsection 46.04(3), a Convention refugee is entitled to be granted landing subject to certain conditions. Among other things, the appropriate officials must be satisfied of the absence of the kinds of criminal activity and criminal associations described in paragraphs 19(1)(c.1), (c.2), (d), (e), (f), (g), (j), (k), or (l). They must also be satisfied that the person has not been convicted of an offence under any Act of Parliament for which a term of imprisonment of more than six months has been imposed, or five years or more may be imposed. The applicant apparently met those conditions in 1988.
[10] The applicant's criminal offences engaged section 27. Under that provision, an immigration officer who learns certain information about a permanent resident must give the Deputy Minister a written report giving details. By virtue of subparagraph 27(1)(d)(ii)1 as it read at the relevant time, such a report is required if a permanent resident has been convicted of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been, or five years or more may be, imposed.
[11] When the applicant's convictions were noted, a report was made under section 27. That would have led to an inquiry under subsection 27(6). In this case, the inquiry led to a deportation order issued on June 8, 1994 pursuant to subsection 32(2).
[12] It would have been difficult for the applicant to challenge the validity of the deportation order. In Chiarelli v. Canada, [1992] 1 S.C.R. 711, the Supreme Court of Canada considered a number of challenges to a deportation order. Sopinka J., speaking for the Court, said this at page 733:
| The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country. At common law an alien has no right to enter or remain in the country: R. v. Governor of Pentonville Prison, [1973] 2 All E.R. 741; Prata v. Minister of Manpower & Immigration, [1976] 1 S.C.R. 376. |
| La Forest J. recently reiterated this principle in Kindler v. Canada (Minister of Justice), supra, at p. 834:2 |
| The Government has the right and duty to keep out and to expel aliens from this country if it considers it advisable to do so. This right, of course, exists independently of extradition. If an alien known to have a serious criminal record attempted to enter into Canada, he could be refused admission. And by the same token, he could be deported once he entered Canada. |
| . . . |
| If it were otherwise, Canada could become a haven for criminals and others whom we legitimately do not wish to have among us. |
[13] The Court held that the deportation of a permanent resident by the combined operation of paragraph 27(1)(d) and subsection 32(2) is not a breach of fundamental justice. That is because those who are deported on that basis have deliberately violated an essential condition under which they were permitted to remain in Canada.
[14] To similar effect is the decision of the Federal Court of Appeal in Hoang v. Minister of Employment and Immigration, (1990) 120 N.R. 193 (F.C.A.). In that case the issue was whether deportation of a convicted criminal who is found to be a danger to Canada violates the right to life, liberty and security of the person under section 7 of the Charter. MacGuigan J., speaking for the Court, said (at p.197):
| The distinction proposed by the appellant is that the result should be different where the deportee is a Convention refugee, in whose case one must presume persecution on return. No doubt the result is different, though not necessarily more calamitous for the deportee than extradition, as allowed by the Supreme Court in Schmidt v. Canada, [1987] 1 S.C.R. 500; 76 N.R. 12 and United States of America v. Cotroni, [1989] 1 S.C.R. 1469; 96 N.R. 321. However, we find the appellant's distinction untenable in that, on the authority of Hurd3 and Chiarelli,4 deportation for serious offences affects neither section 7 nor section 12 rights, since it is not to be conceptualized as either a deprivation of liberty or a punishment. |
[15] In Hoang, the Federal Court of Appeal also found that the statutory provisions for the removal of a Convention refugee who has been found to be a danger to Canada do not breach Canada's obligations under the United Nations Convention Relating to the Status of Refugees. That is because Article 33 of the Convention contemplates removal in such situations. It reads:
| 1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. |
| 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country. |
[16] From this it seems clear that neither the Charter nor the Convention limits the right of Canada to deport a permanent resident, including a Convention refugee, who has lost the right to remain in Canada because of serious criminal activities or other circumstances, if the Minister concludes that his continued presence constitutes a danger to Canada.
[17] Once a deportation order is issued, section 48 requires it to be executed as soon as reasonably practicable, subject to specified exceptions such as a statutory or judicial stay (sections 49 and 50). A deportation order does not become invalid by reason of any lapse of time between issuance and execution (section 51).
[18] In this case there was a statutory stay pursuant to subsection 49(1) because the applicant appealed the deportation order to the Appeal Division of the Immigration and Refugee Appeal Board pursuant to section 70. He did not challenge the validity of the deportation order but argued pursuant to paragraph 70(1)(b) that, having regard to all the circumstances of the case, he should not be removed from Canada. He thus invoked what is sometimes referred to as the "equitable jurisdiction" of the Appeal Division.
[19] A three member panel of the Appeal Division considered, among other things, evidence as to the applicant's history in Iran, Iraq and Canada, the circumstances of his criminal convictions, and his family situation (including the evidence of the applicant's wife). The record included current psychological reports and other documents tendered to establish that he had been rehabilitated. The Appeal Division held that the evidence did not establish that the applicant had been rehabilitated, but it did establish that there was a likelihood that he would re-offend. The appeal was dismissed on July 27, 1997. The applicant did not seek judicial review of that decision.
[20] The factors considered by the Appeal Division in the applicant's section 70 appeal were those referred to in a prior decision of the Immigration Appeal Board, Ribic v. M.E.I., (20 August 1985), 84-9623 (I.A.B.). One of the factors is "the degree of hardship that would be caused to the appellant by returning to the country of the appellant's nationality." With respect to this factor the Appeal Division said:
| As in most cases involving the deportation of an individual, there will be some emotional dislocation to the appellant and his family in Canada. The appellant may experience difficulty in establishing in Iran. The appellant testified that he has lost contact with his family. There is, however, no evidence that his family has left Iran. |
[21] The Federal Court of Appeal has said that it is outside the jurisdiction of the Appeal Division, in a section 70 appeal, to consider the degree of hardship that would be caused to the appellant by returning to the country of the appellant's nationality: Chieu v. Minister of Citizenship and Immigration, [1999] 1 F.C. 605 (F.C.A.); Al Sagban v. Minister of Citizenship and Immigration, [1998] F.C.J. No. 1775 (Q.L.) (F.C.A.). That is because at the point at which a deportation is ordered, the country of removal will not have been determined. The destination decision is governed by section 52, and is not made until after the section 70 proceedings are concluded (refer to the discussion below). Thus, the Appeal Division may well have been in error in considering any evidence at all about Iran, but that is not relevant to the present application. In any event, the Appeal Division did not comment on whether the applicant might face a risk to his life or freedom if removed to Iran.
[22] The statutory stay of the deportation order was lifted when the section 70 appeal was concluded and no application for judicial review was made within the statutory time limit. Thus, section 48 again applied to require the applicant's removal as soon as reasonably practicable.
[23] The execution of removal orders is governed by section 52 and, in the case of Convention refugees, section 53.
[24] Pursuant to subsection 52(1), a person who is the subject of a deportation order is entitled, subject to a contrary direction by the Minister, to leave Canada voluntarily and go to a country of his or her choice. I can find no indication in the record as to whether or not the Minister has made a direction that prevents the applicant from choosing the country of removal, nor can I find any indication that the applicant has attempted to exercise his right to choose the country of removal. I assume therefore that subsection 52(1) is not relevant in this case.
[25] Failing a voluntary departure under subsection 52(1), subsections 52(2) and (3) are engaged.
[26] Subsection 52(2) says that if a person is not allowed to leave Canada voluntarily and select the country of removal, the person must be removed to the country from which the person came or resided before entering Canada, or the country of the person's nationality or birth. Thus, depending upon the circumstances, there may be one, two, three or four countries to which the person might be removed. In the applicant's case, the only two possibilities are Iran and Iraq. I assume that Iran is the more likely choice, being the country of nationality and birth.
[27] According to subsection 52(3), if none of the countries referred to in subsection 52(2) is willing to receive the person, the Minister may choose or allow the person to choose another country. I infer that subsection 52(3) is not relevant to the applicant's case because the second decision under review is a removal decision evidenced by a letter dated April 7, 1998, which directs the applicant to report for removal to Iran. From this it appears that Iran was the country chosen for the applicant pursuant to subsection 52(2), and that Iran was willing to accept him. The relevant departure provision in this case, then, is subsection 52(2).
[28] Subsection 53(1) overrides subsection 52(2) in certain cases to prohibit the involuntary removal of a Convention refugee to a country where the person's life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion. It is argued on behalf of the applicant that for him, Iran is such a country.
[29] There are a number of exceptions to the special protection against involuntary removal that is afforded Convention refugees under subsection 53(1). The exceptions are set out in paragraphs 53(1)(a), (b), (c) and (d). A person who is within one of those exceptions is subject to involuntary removal pursuant to subsection 52(2), unless there is a voluntary departure.
[30] In the applicant's case only the exception in paragraph 53(1)(d) is relevant. By virtue of paragraph 53(1)(d), the applicant can be deported to Iran, despite the risks he may face there, if he has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed (which he has), and the Minister is of the opinion that the person constitutes a danger to the public in Canada.
[31] By letter dated January 5, 1998, the applicant was informed that an opinion would be sought under paragraph 53(1)(d) that he is a danger to the public in Canada. On March 3, 1998, the Minister's delegate issued an opinion to that effect. That opinion is the first decision under review in these proceedings. Counsel for the applicant argues that it was made in breach of the Minister's duty of fundamental justice.
[32] The procedure that culminated in the issuance of the danger opinion on March 3, 1998 started with the January 5, 1998 letter to the applicant, referred to above. It reads in part as follows:
| You are hereby advised that Citizenship and Immigration Canada (CIC) possesses evidence suggesting you are a person in Canada who is a danger to the public. We intend to request an opinion to that effect from the Minister of Citizenship and Immigration. This opinion, if given, will have serious consequences for you as explained below. |
| If the Minister is of the opinion that you are a danger to the public in Canada, under subsection 70(5) of the Immigration Act, you will not have a right to appeal a deportation order to the Immigration Appeal Division of the Immigration and Refugee Board, and pursuant to paragraph 53(1)(d) of the Act, you may be removed from Canada to the country from which you have been determined to be a Convention refugee. |
| The Minister will consider whether you are a danger to the public as well as any humanitarian and compassionate circumstances pertinent to your situation. This will require an assessment of the threat you pose to the public in Canada and the possibility of risk to you which could be precipitated by returning you to the country from which you came to Canada, the country of your permanent residence, the country of your nationality, or the country of your birth. |
[33] The letter goes on to list the documents that may be considered by the Minister, including reports relating to the applicant from prior immigration proceedings, correctional officials and criminal court proceedings, and publicly available reports about country conditions. The applicant was invited to make submissions by himself or by counsel.
[34] In response to the January 5, 1998 letter, counsel for the applicant made a submission to the Minister on February 19, 1998 dealing in great detail with the statutory scheme, the obligations of the Minister with respect to Convention refugees, the applicant's personal history, and all of the aspects of the various reports on file that were favourable to the applicant.
[35] There was no oral hearing. This is consistent with the Minister's usual practice with danger opinions under paragraph 53(1)(d) and similar provisions, including subparagraph 46.01(1)(e)(ii).
[36] There is ample authority that no oral hearing is required for danger opinions. I agree with the decision of Rothstein J. in Bayani v. Minister of Citizenship and Immigration, ( 24 September 1997), IMM-4250-97 and IMM-4251-97 (F.C.T.D.). He said in that case that proceedings leading to a danger opinion under paragraph 53(1)(d) are constitutionally valid even if there is no oral hearing.
[37] It is argued for the applicant that even if there is no general requirement for an oral hearing, in the circumstances of this case, it was a breach of fundamental justice to fail to interview the applicant, or at least give him a chance to correct some errors in two internal reports prepared for the Minister. Those reports are dated February 23 and February 27, 1998. Copies of those reports were not provided to the applicant before the danger opinion was issued.
[38] The February 23, 1998 report is entitled "Ministerial Opinion Report." It contains a very brief summary of the material on file. I am asked to assume that the danger opinion relied on this report, and I have done so. It is argued that there are errors in that report.
[39] For example, there is a statement that the applicant was forced to help his father in the drug trade (referring to the applicant's early years in Iran). The writer of the February 23, 1998 report then makes a wholly gratuitous comment that "seems very unlikely as a person would be sentenced to death for drug involvement in Iran." I fail to see why the possibility of a severe sentence under Iranian law would make it less likely that the applicant was forced to assist his father. The logical error is obvious.
[40] Counsel for the applicant notes that this comment is an indication that the applicant's credibility was assessed negatively on the basis of an erroneous fact, without giving the applicant a chance to correct the error. I cannot read that comment as being particularly important in the context in which it was made. Events in the applicant's early life were not the focus of the report, or the Minister's final opinion. Those events are relevant only to his status as a Convention refugee, which was never in doubt.
[41] The second alleged error in the February 23, 1998 report is a comment that the applicant was denied the right to private family visits while in Drumheller Institution. Counsel for the applicant argues that this statement was incorrect. It appears to be based on a report from an official of Drumheller Institution in May of 1997. However, a report dated February 15, 1998, entitled "Community Risk Assessment," prepared by a social worker at the request of applicant's counsel, suggested that there was such a visit in December 1997 that resulted in no problems. The Community Risk Assessment was prepared by someone who is not a prison official, based on information from an unknown source. I have no basis for concluding that the writer of the February 23, 1998 report erred in discounting the facts as stated in the Community Risk Assessment.
[42] The other report dated February 27, 1998 was prepared by a reviewing officer and concurred in by a senior analyst. This report repeats the comment about the denial of family visits. Again, I have no basis for finding that comment to be incorrect.
[43] The February 27, 1998 report deals at length with the submission of applicant's counsel as to the risks faced by the applicant if he returned to Iran. The report notes that the applicant is a deserter, a Kurd, and a converted Christian, and summarizes counsel's reasons why each of these was a basis for finding undue risk to the applicant upon removal to Iran.
[44] The reviewing officer consulted and discussed the submission of counsel, and the material on the record relating to all of these points. Her assessment of the situation is that army deserters in Iran are usually dealt with leniently, and that there is no harsh treatment of Kurds except those who are members of certain activitist or nationalist groups. She also says that the applicant's conversion to Christianity would result in some discrimination against him, but not persecution. She says:
| ... there is no indication that the subject would, in all likelihood, face more serious risks such as harsh or inhuman [sic] treatment. Considering the number of convictions and the escalating seriousness of his offences, I believe that the danger to Canadian society outweighs any risk that he may face upon return. |
[45] Counsel for the applicant suggests that I should assume, as with the other report, that the Minister read and relied upon this report. I have done so. She argues that the writer of this report seriously misunderstood the evidence and reached factual conclusions that were perverse. She relies particularly on the conclusion that the applicant's conversion to Christianity would not be a source of significant risk to the applicant. She points to evidence in the record that apostasy (understood as conversion from Islam to another religion) is punishable by death. However, there is other evidence in the record that this information is an incorrect representation of Iranian law. In my view, all of the conclusions stated in the February 27, 1998 report were reasonably open to the writer.
[46] The facts stated in the two reports are merely summaries of material in the record, and with the single exception referred to above are reasonably accurate. In terms of fairness and fundamental justice, it is not critical that the applicant was not given the opportunity to review those reports, or was not afforded an interview. What is critical is that the applicant had the opportunity to review and make a submission about the documents on which those reports were based. It is clear from the February 27, 1998 report that the applicant's submission was considered. The fact that much of it was rejected is not a ground for review.
[47] It follows that I must dismiss the application for judicial review of the decision to issue the danger opinion.
[48] After the issuance of the danger opinion, the applicant was a person described in paragraph 53(1)(d), and was subject to deportation order as soon as reasonably practicable (section 48). A removal officer made a decision to effect his removal to Iran, and so informed him by letter dated April 7, 1998, directing him to report for removal on April 14, 1998. The applicant seeks judicial review of that decision.
[49] Counsel for the respondent argued that the application for judicial review of the removal decision is moot. The removal order has no effect, as it was spent on April 14, 1998. However, given my decision with respect to the danger opinion, it seems to me reasonable to anticipate a new removal decision affecting the applicant. The general question of the applicant's rights on removal is far from moot. The absence of a decision on the April 7, 1988 removal decision would simply invite a new application on the same point with respect to any new decision. For that reason, I reviewed the removal decision despite the fact that it is spent.
[50] Counsel for the respondent also argues that a removal decision is not reviewable at all: Borhani v. Minister of Citizenship and Immigration (21 September 1998), IMM-4788-98 (F.C.T.D., per Pinard J.). I do not accept that. A removal decision is a decision made pursuant to a federal statute and it has an element of discretion with respect to timing, and to some extent with respect to destination. I cannot accept that it is not a decision within the scope of section 18 of the Federal Court Act. That would suggest that an erroneous decision to deport someone to country not referred to in subsection 52(2) is not reviewable. That cannot be.
[51] Counsel for the applicant argues that the decision of the removal officer to execute the deportation order should be quashed because the removal decision was made without any separate determination of the risk he faced upon removal to Iran. She relies on Farhadi v. Minister of Citizenship and Immigration, [1998] 3 F.C. 315 (T.D.) (appeal pending), and in particular the following words of Gibson J. in that case (at p. 341):
| The Convention Against Torture [...] mandates a risk assessment, including a determination on the risk of torture, before removal may be effected. Although not implemented into domestic law applicable in the circumstances of this matter, the Convention Against Torture, as part of Canada's international human rights obligation, informs the interpretation of the Charter. I am satisfied that a risk assessment, and an opportunity to test the fairness of that assessment, as well as the result, against the standards of sections 7 and 12 of the Charter, is implicit in those provisions of domestic law. |
[52] Counsel for the respondent argues against this, citing Saini v. Minister of Citizenship and Immigration, [1998] 4 F.C.325 (T.D.), in which Gibson J. clarified that Farhadi does not stand for the proposition that a risk assessment is always required before making a destination decision flowing from a valid deportation order. Counsel for the respondent also points out that the argument of applicant's counsel was rejected outright in Barre v. Minister of Citizenship and Immigration (1998) 150 F.T.R. 257.
[53] I do not accept that a removal decision, even a removal decision with respect to a Convention refugee, always requires a separate risk assessment in respect of the destination country. Once a risk assessment is undertaken in the context of a danger opinion, as occurred in this case, a requirement for a further assessment at the removal stage would entail a duplication of effort that cannot be justified on grounds of fundamental justice.
[54] There may be some situations where a Convention refugee is about to be deported to the country in which the refugee claim arose and because of some combination of events, the question of risk in that country is never considered. It could somehow fall between the procedural cracks. I would not wish to close the door on a deportee's right to judicial review in such circumstances. However, the hypothetical possibility that a situation of that kind may arise does not justify the conclusion that in every case of the deportation of a Convention refugee, a risk determination must be made at the removal stage. It certainly does not justify such a conclusion in this case.
[55] In my view, there was no duty on the part of the person making the removal decision to consider the risks that might be faced by the applicant upon removal to Iran. It follows that the application for judicial review of the removal decision must be dismissed.
[56] I have deferred the issuance of the orders in both applications pending the receipt of written submissions on the matter of a certified question. A written submission by applicant's counsel is to be served and filed within 10 days of the date of these reasons. Within 7 days of service of that submission, a written submission in response is to be served and filed by respondent's counsel. Within 3 days of service of the response, applicant's counsel may serve and file a written reply.
Karen R. Sharlow
Judge
Ottawa, Ontario
May 28, 1999
__________________1The same provision, amended in a manner that is not relevant to this case, now appears in paragraph 27(1)(d).
3Hurd v. Minister of Employment and Immigration, [1989] 2 F.C. 594 (C.A.).