Date: 19971119
Docket: IMM-4651-97
IMM-4856-97
BETWEEN:
RAZI SOLTAN-ABADI,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
AND BETWEEN:
RAZI SOLTAN-ABADIRAMHORMOZI,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
GIBSON, J.
[1] The Applicants described in the foregoing styles of cause are one and the same person. On file IMM-4651-97, the Applicant, by application filed the 3rd of November, 1997, seeks leave to commence a judicial review proceeding and judicial review of: "... the decision made by the Minister of Citizenship and Immigration dated the 3rd Day of November, 1997, and received by the Applicant on the 3rd day of November, 1997, to deport the Applicant to Iran.". On file IMM-4856-97, the Applicant seeks leave to commence a judicial review proceeding and judicial review of: "... the decision made by the Minister of Citizenship and Immigration dated the 4th day of June, 1996 [1997], and received by the Applicant on the 10th day of November, 1997, whereby the Applicant's application [for] permanent residence was refused and the Minister of Citizenship and Immigration's representative determined that insufficient humanitarian and compassionate grounds existed to allow the Applicant to remain in Canada on a Minister's permit.".
[2] These reasons arise out of applications on both files to stay execution of the deportation order made against the Applicant on the 23rd of September, 1992 until such time as the applications for leave and judicial review have been determined.
[3] The factual background underlying these applications for stays is rather extensive and unique. Because the factual background is particularly important to the decision that I have reached, it follows at some length.
[4] The Applicant is a citizen of Iran. Some members of his family were politically active against the current regime in that country. A brother of the Applicant was apparently executed by reason of his political activities. The Applicant was twice arrested, detained and abused.
[5] The Applicant was born the 25th of September, 1963. He entered Canada at Port Cartier, Québec on the 15th of November, 1991 when, as a sailor aboard an Iranian vessel, he "jumped ship". A conditional deportation order was made against the Applicant on the 23rd of September, 1992 and became unconditional in July of 1995.
[6] On the 31st of May, 1993, the Convention Refugee Determination Division of the Immigration and Refugee Board determined that the Applicant was not a Convention refugee. On the 3rd of December, 1993, an application for judicial review of the decision of the Convention Refugee Determination Division was dismissed with reasons.1
[7] On the 4th of April, 1994, after the Applicant had been determined not to be a Convention refugee, he confronted, in public, Iranian Officials here in Canada at a sporting event in which Iranian athletes were competing. He now claims that this confrontation adds to his fear of persecution.
[8] On the 25th of May, 1995, the Applicant married here in Canada, apparently to a Canadian citizen. He and his spouse have one child born the 29th of December, 1995.
[9] In July of 1995, the Applicant was determined not to be a member of the Post- Determination Refugee Claimants in Canada class. In reasons supporting that decision,
reference is made to the event here in Canada at which the Applicant confronted Iranian officials. The reasons note:
| The current risk submission is vague and imprecise as to his [the Applicant's] past activities and as to any specific punishment. |
Later, the reasons continue:
| The claim that the applicant is outspoken on his opposition to the regime and exposed himself to notice by Iranian embassy "spies" in Canada lacks substantive evidence. It appears to be speculation on his part and is without proof of his being a prominent leader or spokesperson for opposition groups in Canada. During what the press has described as an emotional sporting event, which had many factional expatriate groups in attendance, his conduct may be more related to an attempt to create an argument of a "sur place" refugee claim than in being indicative of his having any genuine, sustained and visible active opposition profile. |
[10] An application by the Applicant for landing from within Canada, apparently supported by his wife, was approved in principle on the 1st of May, 1996. Apparently some time after that date, the Applicant was convicted of theft under $5,000.00. In an affidavit filed in support of his application for a stay, the Applicant described the activity that resulted in this conviction as a "simple mistake". Following the conviction, the Applicant apparently breached a probation order made against him. In the same period, apparently the Applicant's wife obtained a "no contact" order against him although in her affidavit in support of the stay applications, the Applicant's wife attests that difficulties in their marriage have now been overcome.
[11] By letter dated the 4th of June, 1997, the Applicant's application for landing from within Canada was rejected, notwithstanding that it had earlier been approved in principle, the rejection apparently being based on the Applicant's conviction. The letter advising of the rejection also advises that:
| It has been determined that insufficient humanitarian and compassionate factors exist to allow you to remain in Canada on a Minister's Permit. |
The Applicant alleges that he never received the letter informing him of this decision until the 10th of November, 1997, although it appears to have been sent to him at an address provided by him to the Respondent.
[12] On the 29th of October, 1997, the Applicant was removed from Canada, destined for Iran by way of Amsterdam, Netherlands.
[13] What transpired at Amsterdam's international airport is described in an affidavit filed on behalf of the Respondent, by a person who was not there present, in the following terms:
| I am advised by Patrick Patterson, a Canadian escort officer, who is currently ill with the flu, that travel arrangements were made to take the Applicant back to Iran that involved transiting through Amsterdam. During the stopover in Amsterdam to transfer to another airline, the Applicant was taken to the In-Transit Lounge where he began acting up. The Dutch authorities went over to deal with the Applicant and the Applicant stated that he wanted to make a refugee claim. The Dutch authorities gave the Applicant the opportunity to make his claim to asylum, heard his claim and denied him access to the asylum system. When the Canadian escort officers became aware that the Applicant was in the process of making a refugee claim to the Netherlands, they contacted the Canadian Embassy in The Hague and spoke to Robert Radcliffe. Mr. Radcliffe came down to the Amsterdam airport and spoke with the Dutch authorities. Mr. Ratcliffe prepared and signed a statement, ...because Mr. Ratcliffe believed that Canada was responsible for the Applicant since Canada had transported the Applicant to the Netherlands and did not believe it was appropriate to simply leave the Applicant in Amsterdam. Mr. Ratcliffe's letter shows that the Canadian Immigration officials were willing to return the Applicant to Canada. Upon the Applicant's return to Canada he could avail himself of any rights remaining to him surrounding his refugee claim in Canada. The Applicant was returned to Canada on November 1, 1997 and to my knowledge has not made another refugee claim. |
[14] This is to be contrasted with the Applicant's version of events reflected in his affidavit filed the 13th of November, 1997 which reads in part as follows:
| 7. When I arrived in Amsterdam on October 29, 1997 I was taken to a transit lounge where I started to complain that I was being deported to Iran. Officials from Amsterdam Immigration came and talked to me and I told them I wanted to make a refugee claim, and that I had been tortured in Iran previously and that my brother had been killed in Iran by the authorities. I showed the scars on my body from the torture I had received in Iran. They advised me that I was allowed to make a refugee claim and that they would not allow me to be deported to Iran as they do not allow any persons to be deported to Iran. |
| 8. Dutch Immigration advised me that I would be given a hearing within 24 hours and that if I passed that hearing I would be able to stay in Netherlands indefinitely. I was also told that if I failed the 24 hour hearing I would be permitted to Appeal that decision within 28 days and if I still lost I would be allowed to further appeal which could take two years or more. I stated that I wanted to avail myself of that procedure. |
| 9. After I was told all of the above information by the authorities in Netherlands I was contacted by a lawyer in Netherlands who assured me that Mr. Ratcliffe had agreed to allow me to return to Canada and pursue a refugee claim here. I stated that I did not trust this and that I wanted it in writing which I received. That now produced and shown to me and marked as Exhibit "F" to this my Affidavit is a copy of the letter from Mr. Ratcliffe which states that I was to [be] escorted back to Canada where I could undertake to make a refugee claim. I wanted assurance that I would not be deported to Iran and that is what I thought I had received in the form of Exhibit "F" attached hereto. When I arrived back in Canada on November 1, 1997, I was taken directly to jail, stripped naked, kept in a cold cell for two days with no clothes on. I did not receive access to a lawyer, despite my repeated demands, until Monday morning November 3, 1997. When I did receive access I had to speak on the phone, with no clothes on, with a police officer standing right next to me. When I talked to my lawyer over the phone on November 3, 1997, he told me that Immigration was going to deport me the very next day back to Iran, but not through Amsterdam. I could not believe that I had been so misled by a high ranking official in the Canadian Government. I am deathly afraid of returning to Iran and the only reason I had agreed to return to Canada was that I was given the understanding that I would not be deported to Iran. |
Exhibit "F" to the Applicant's affidavit, also referred to in the above quotation from the affidavit on behalf of the Respondent, reads as follows:
| 31 October, 1997 |
| Dear Mr. Soltan-Abadi, |
| This is in relation to your present status as an asylum claimant in The Netherlands. In that you have indicated that your preference would be to pursue such a claim in Canada this is to advise you that the Canadian Immigration and Citizenship is prepared to escort you back to Vancouver where you could undertake to make such claim. |
| Canada is signatory to the Geneva Convention on Refugees through the Protocol of New York and as such attempts to meet its international responsibilities. |
| I trust that this letter addresses your concerns. |
| (Signature) |
| Robert Ratcliffe |
| Immigration Office |
| Canadian Embassy |
| The Hague |
On the same page in the exhibits to the Applicant's affidavit and that filed on behalf of the Respondent, the following handwritten note appears, apparently signed by a legal aid lawyer at Schiphol Airport:
| I Hilde van Asperen, lawyer in The Netherlands, hereby declare, that Mr. Robert Ratcliffe of the Canadian Embassy just gave me by phone the assurance that you, Mr. Soltan-Abadi Ramhormozi, will be given the opportunity to see a lawyer in Vancouver, as soon as you ask for a lawyer! You will get all the normal rights in asylum procedures in Canada. |
[15] An exhibit to one of the affidavits filed on behalf of the Respondent indicates that at some stage, perhaps in Amsterdam, perhaps on the return flight to Canada or perhaps on arrival in Canada, the Applicant was suicidal, violent and stabbed his escort. Nowhere is this directly attested to nor does it appear to be put forward as an explanation as to why the Applicant was apparently held in detention, naked, following his return to Canada.
[16] As indicated in the foregoing quotation from the affidavit of the Applicant, on the 3rd of November, 1997, he was advised that he would again be deported to Iran on the 4th of November, 1997. It was not until the 3rd of November that the Applicant obtained access to a lawyer. On that day, the first of the applications for leave and judicial review referred to herein was filed with the Court, together with an application to stay the deportation scheduled for the 4th of November, and counsel for the Applicant appeared before Mr. Justice Joyal. Mr. Justice Joyal ordered:
| The within application for a stay of the execution of a deportation order against the applicant scheduled to take place on the morning of November 4th, 1997, is hereby granted. |
| The stay is to enable the applicant to consult counsel on his rights and privileges in the face of the outstanding deportation order against him. |
| On Thursday, November 13, 1997, at 4:00 p.m. counsel for the applicant is to appear in Court to show cause why, after consultation with the applicant, the order for stay should not be rescinded and the deportation order duly carried out. |
| In the meantime, the applicant is to remain in detention under the care and control of the Immigration authorities. |
[17] All of the foregoing is perambulatory to what transpired in Court before me on the 13th of November, 1997.
[18] Counsel for the Applicant represented before me that he wished to amend the application for leave and judicial review that was filed in the Court on the 3rd of November, 1997. That he would wish to do so was entirely consistent with the very brief interval that counsel had had to consider options open to exercise the right or privilege afforded to his client by the undertaking given in the Netherlands. Counsel also indicated that he wished to file a further application for judicial review with respect to the denial of the Applicant's request for landing from within Canada.
[19] After hearing counsel for the Applicant and for the Respondent, I advised counsel that I would continue the stay originally granted by Mr. Justice Joyal, and grant a stay in the case of the application for judicial review related to the decision not to grant landing from within Canada, if that application for judicial review were filed in the Registry of the Court at Vancouver before the close of business on Friday, November 14, 1997.
[20] I further indicated that I would lift the portion of the Order of Mr. Justice Joyal providing for continued detention of the Applicant and leave the question of detention for determination in accordance with the provisions of the Immigration Act.
[21] I arrived at the decision which I conveyed to counsel on the basis that I was satisfied that, in the case of the application for judicial review already filed, and, in the case of the forthcoming application for judicial review, if it was suitably framed, the two applications would disclose serious issues to be tried although, in the case of the first application, it may now be moot. Further, I concluded that the Applicant would suffer irreparable harm if removed from Canada following the undertaking given to him in the Netherlands and his voluntary return to Canada on the basis of that undertaking, without being provided a full and complete opportunity, not only to "make" an asylum claim on return to Canada, in whatever form he and his counsel determined to be appropriate, but to fully and effectively prosecute such claim from within Canada. I concluded that anything less than such a liberal interpretation of the undertaking given would be inconsistent with the provision of the undertaking to the effect that Canada, as a signatory to the Geneva Convention on Refugees through the Protocol of New York, attempts to meet its international responsibilities.
[22] Finally, I concluded that the balance of convenience favours the Applicant in light of my finding regarding irreparable harm and the impact of the undertaking given to the Applicant.
[23] By the close of business in the Registry of the Court at Vancouver on Friday, November 14, 1997, the second application for judicial review contemplated during the course of the hearing before me on November 13, 1997 and referred to earlier in these reasons was filed. In the result, on file IMM-4651-97, I have continued the stay until the application for leave therein has been finally disposed of and, if leave be granted, until the application for judicial review has been finally disposed of, and I have rescinded the order for detention put in place by Mr. Justice Joyal. On file IMM-4856-97, I have granted a stay until the application for leave therein has been finally disposed of and, if leave be granted, until the application for judicial review therein has been finally disposed of and I have made no order with respect to detention.
(Sgd.) "Frederick E. Gibson"
Judge
November 19, 1997
Vancouver, British Columbia
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DATED: November 19, 1997
COURT NO.: IMM-4651-97
IMM-4856-97
STYLE OF CAUSE: Razi Soltan-Abadi v. MCI
and
Razi Soltan-Abadiramhormozi v. MCI
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF GIBSON, J.
dated November 19, 1997
APPEARANCES:
Mr. D. Blake Hobson for Applicant
Ms. Esta Resnick for Respondent
SOLICITORS OF RECORD:
D. Blake Hobson for Applicant
Vancouver, BC
George Thomson for Respondent
Deputy Attorney General
of Canada
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