Date: 19990806
Docket: IMM-966-98
Ottawa, Ontario, the 6th day of August 1999
PRESENT: THE HONOURABLE MADAME JUSTICE SHARLOW
BETWEEN:
JALIL ALI AKBAR BAHRAMI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent:
ORDER
The application to reconsider the order of June 11, 1999 is allowed. The application to certify a question is dismissed.
Karen R. Sharlow
Judge
Date: 19990806
Docket: IMM-1625-98
Ottawa, Ontario, the 6th day of August 1999
PRESENT: THE HONOURABLE MADAME JUSTICE SHARLOW
BETWEEN:
JALIL ALI AKBAR BAHRAMI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent:
ORDER
The application to reconsider the order of June 11, 1999 is allowed. The application to certify a question is dismissed.
Karen R. Sharlow
Judge
Date: 19990806
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] On May 28, 1999 I issued reasons indicating that I would dismiss two applications for judicial review, deferring the order pending submissions on a certified question. The applicant filed a submission, as did the respondent. On the basis of those submissions I issued an order on June 11, 1999, to the effect that no question would be certified. The applicant has moved in both cases for reconsideration of the order on the basis that I failed to take into account a reply submission filed before the deadline I had fixed for submissions. I agree with the applicant that my failure to consider that second submission by the applicant requires me to reconsider the matter of the certified question. For that reason, the motions to reconsider are allowed.
[2] I have now reviewed all of the submissions in the context of the revised suggestion for a certified question as set out in the applicant's reply submission. I have concluded that for the following reasons, no question should be certified.
[3] As indicated above, there were two decisions under review. One was the decision of a delegate of the Minister made on March 3, 1998, under paragraph 53(1)(d) of the Immigration Act, that the applicant constitutes a danger to the public in Canada. The other was the decision of a senior immigration officer made on April 7, 1998 to order the applicant's removal to Iran.
[4] The applicant is a citizen of Iran who was found in 1988 to be a Convention refugee based on his fear of persecution in Iran. He came to Canada in that year. He was later convicted of criminal offences, including trafficking in cocaine, and those convictions led to a deportation order. The applicant appealed the deportation order under paragraph 70(1)(b) of the Immigration Act on the ground that, having regard to all the circumstances of the case, he should not be removed from Canada. It is undisputed that in that appeal, the question of any risk posed by removal to any particular country could not be taken into account.
[5] The paragraph 70(1)(b) appeal was dismissed on July 27, 1997. That caused section 48 to apply to require his removal from Canada as soon as reasonably practicable. The Immigration Act provides for several different possibilities as to the country of destination, but in this case the facts dictated Iran as the most likely choice, perhaps even the only possible choice. In any event, Iran was the destination indicated by the decision of the removal officer. That is indicated in a letter to the applicant dated April 7, 1998.
[6] The applicant sought to have the decision of the removal officer quashed on the basis of the failure to consider the question of the risk the applicant might face in Iran. I found that in the circumstances of this case, the removal officer made no error in that regard, and dismissed the application to quash the decision of the removal officer.
[7] An important basis for my decision was the fact that, shortly before the removal decision was made, the question of risk had been undertaken by a different decision maker in the course of a making a different decision. That was the danger opinion issued March 3, 1998, the other decision under review.
[8] In dismissing the applications for judicial review I said that once a risk assessment with respect to that country has been undertaken in the context of a danger opinion, as occurred in this case very shortly before the removal decision, 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.
[9] It must be recognized that in this particular case, the danger opinion and the removal decision are related, not only by virtue of the statutory scheme, but also factually because they were made within a month of each other during the process of deporting the applicant.
[10] In the applicant's reply submission it is argued that the following question should be certified:
| Where an individual has been landed in Canada as a Convention refugee claimant, and the individual faces a risk of torture or death in his country of origin, or a country in which he fears persecution, is a risk assessment and determination conducted in accordance with the principles of natural justice and fundamental justice a condition precedent to the decision to remove the individual to that country? |
[11] Similar questions were certified in Saini v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 325 (T.D.) and Farhadi v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 315 (T.D.), which are currently before the Federal Court of Appeal. It appears that those appeals have not yet been set down for hearing.
[12] Those cases are similar to this case in many respects, but there is also an important factual distinction. In both Saini and Farhadi, the applicant was being removed in circumstances where no assessment of risk had ever been conducted, not even in the course of considering the danger opinion.
[13] I said before and still believe that the question of whether a risk assessment is an essential step in the removal of a Convention refugee is a serious and important question of law. However, having considered the applicant's reply submission together with the initial submissions, I continue to be of the view that a positive answer to that question would not be determinative of the applicant's case.
[14] Here a risk assessment was in fact done, albeit as part of the process that let ultimately to the danger opinion. The risk assessment aspect of the danger opinion was challenged in the judicial review of the danger opinion. I found no breach of any principle of fundamental justice, and no other reviewable error. For these reasons, I conclude that this is not an appropriate case for a certified question.
Karen R. Sharlow
Judge
Ottawa, Ontario
August 6, 1999