IMM-4279-96
Ahmad Abdulaal Al Sagban (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Al Sagbanv. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Reed J."Vancouver, September 10; Ottawa, October, 15, 1997.
Citizenship and Immigration — Exclusion and removal — Removal of permanent residents — Judicial review of Immigration and Refugee Board, Appeal Division's refusal to declare deportation order invalid — Board holding F.C.A. decision in Hoang v. Canada (M.E.I.) precluding assessment of possible physical harm to applicant if returned to country of origin — Immigration Act, s. 70(1)(b) permitting Board to consider all circumstances on appeal from removal order — Hoang not determining issue herein — In absence of s. 70(5) danger to public opinion, Board having jurisdiction to stay deportation order against permanent resident on equitable grounds — Including every extenuating circumstance i.e. financial, social hardships, physical dangers awaiting individual in country of origin — Dangers assessed as of Board hearing date.
This was an application for judicial review of the Immigration and Refugee Board, Appeal Division's refusal to declare a deportation order invalid. The Board felt that it was precluded by Hoang v. Canada (Minister of Employment & Immigration) (1990), 13 Imm. L.R. (2d) 35 (F.C.A.) from considering physical harm, arising as a result of persecution, that could befall a person, in his or her country of nationality, when considering whether that person should be removed from Canada pursuant to a valid deportation order.
The applicant came to Canada from Egypt as a dependant of his father who had been granted asylum in Egypt. Immigration Act, paragraph 70(1)(b) gives a permanent resident against whom a removal order has been made a right of appeal on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada. The respondent argued that it was premature for the Board to consider the potential harm to the applicant if he were returned to Iraq, because it was unknown to which country he would be deported. The deportation order was stayed pending disposition of this application for judicial review. The travel plans that were in place at that time would have seen the applicant deported to Iraq.
Held, the application should be allowed.
The focus of the determination in Hoang was whether or not the Board had jurisdiction to determine the country of destination for the applicant in this type of case. There was no express statement that the Board was not entitled to assess the harm that would befall an applicant in his country of origin if he were returned there. This issue was unresolved.
The Act sets out overlapping, but not mutually exclusive procedures. In the absence of a subsection 70(5) danger to the public opinion, the Board has jurisdiction to stay a deportation order issued against a permanent resident on equitable grounds. The exercise of authority includes an examination of every extenuating circumstance that can be adduced in favour of the deportee. This should include the circumstances that await the individual in his or her country of origin, that is, the financial and social hardships as well as physical dangers, at the time of the Board hearing. Not only was no danger opinion issued herein, but the applicant could not claim the benefit of subsection 53(1) (preventing removal of a Convention refugee to a country where the individual would be persecuted), because he had never been determined to be a Convention refugee.
A question was certified for appeal.
statutes and regulations judicially considered
Immigration Act, R.S.C., 1985, c. I-2, ss. 4(1), 52(2),(3), 53(1) (as am. by S.C. 1992, c. 49, s. 43; 1995, c. 15, s. 12), 70(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1995, c. 15, s. 13), (5) (as enacted idem), 114(2) (as am. by S.C. 1992, c. 49, s. 102).
Immigration Act, 1976, S.C. 1976-77, c. 52, s. 55.
cases judicially considered
considered:
Hoang v. Canada (Minister of Employment & Immigration) (1990), 13 Imm. L.R. (2d) 35; 120 N.R. 193 (F.C.A.); Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (I.A.B.) (QL); Canepa v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 270; (1992), 10 C.R.R. (2d) 348 (C.A.); Markl v. Minister of Employment and Immigration, V81-6127, judgment dated 27/5/85, I.A.B., not reported; Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646; (1997), 147 D.L.R. (4th) 93; 212 N.R. 63 (C.A.).
referred to:
Canada (Minister of Citizenship and Immigration) v. Jhatu (1996), 124 F.T.R. 183 (F.C.T.D.); Al Sagban v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 632 (T.D.) (QL); Chieu v. Canada (Minister of Citizenship and Immigration) (1996), 125 F.T.R. 76 (F.C.T.D.).
authors cited
Goodwin-Gill, G. S. International Law and the Movement of Persons between States. Oxford: Clarendon Press, 1978.
APPLICATION for judicial review of Immigration and Refugee Board, Appeal Division's refusal to declare a deportation order invalid (Sagban v. Canada (Minister of Citizenship and Immigration), [1996] I.A.D.D. No. 859 (QL)) because it did not have the jurisdiction to consider the physical harm that might befall the applicant if he was returned to his country of nationality. Application allowed.
counsel:
Christopher Elgin for applicant.
Esta Resnick for respondent.
solicitors:
McPherson, Elgin & Cannon, Vancouver, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Reed J: The question raised by this judicial review application is whether the Appeal Division of the Immigration and Refugee Board (the Board) can consider physical harm, arising as a result of persecution, that could befall a person, in his or her country of nationality, when considering whether that person should be removed from Canada pursuant to a valid deportation order. The Board [Sagban v. Canada (Minister of Citizenship and Immigration), [1996] I.A.D.D. No. 859 (QL)] did not take such factors into account in this case (about which more will be said later). The Board felt it was precluded from doing so because of the decision in Hoang v. Canada (Minister of Employment & Immigration) (1990), 13 Imm. L.R. (2d) 35 (F.C.A.).
I turn first to the legislative basis for the Board's authority. Subsection 70(1) of the Immigration Act, R.S.C., 1985, c. I-2, as amended by [R.S.C., 1985, (4th Supp.), c. 28, s. 18]; S.C. 1995, c. 15, s. 13, provides:
70. (1) . . . 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:
(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.
Appeals based on paragraph (a) attack the validity of the removal order; appeals based on paragraph (b) invoke the equitable (or compassionate) jurisdiction of the Board. Under this latter, the Board can exercise its jurisdiction to stay the execution of a removal order and often does so on terms, for example, by staying the order so long as the individual meets certain conditions and has no further convictions.
The factors that the Board considers in deciding whether or not to exercise its equitable jurisdiction were set out in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL), August 20, 1985, No. T84-09623 (I.A.B.) [at pages 12-13 (QL)]:
Whenever the Board exercises its equitable jurisdiction pursuant to paragraph 72(1)(b) [now paragraph 70(1)(b)] it does so only after having found that the deportation order is valid in law. In each case the Board looks to the same general areas to determine if having regard to all the circumstances of the case, the person should not be removed from Canada. These circumstances include the seriousness of the offence or offences leading to the deportation and the possibility of rehabilitation or in the alternative, the circumstances surrounding the failure to meet the conditions of admission which led to the deportation order. The Board looks to the length of time spent in Canada and the degree to which the appellant is established; family in Canada and the dislocation to that family that deportation of the appellant would cause; the support available for the appellant not only within the family but also within the community and the degree of hardship that would be caused to the appellant by his return to his country of nationality. [Underlining added.]
These have been referred to by the Federal Court, for example, in Canada (Minister of Citizenship and Immigration) v. Jhatu (1996), 124 F.T.R. 183 (F.C.T.D.).
In Canepa v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 270 (C.A.), the Court described the analysis to be undertaken by the Board when exercising its equitable jurisdiction as one "depending precisely upon an assessment of the appellant's personal merits and demerits".1 The Court stated that the statute requires an assessment of whether "having regard to all the circumstances of the case, the person should not be removed from Canada".2 And:
The statutory language does not refer only to the circumstances of the person, but rather to the circumstances of the case. That must surely be taken to include the person in his total context, and to bring into play the good of society as well as that of the individual person . . . every extenuating circumstance that can be adduced in favour of the deportee.3 [Underlining added.]
Counsel for the respondent argues that conditions in the person's country of nationality or citizenship are not relevant because at the date of the Board's hearing, the country to which the person will be deported is not known. This is not a persuasive argument. In general, Canada can only deport an individual to a country that agrees to accept the individual.4 However, under international law, it is an established principle that a country of which a person is a national or a citizen, has a duty to receive that person.5 Furthermore, if one were to apply the rule of lex fori, in the absence of proof of foreign law, a statutory presumption would be created by subsection 4(1) of the Immigration Act that an individual has a right to enter his or her country of citizenship. Thus the only country to which the Minister is likely to be able to deport a person without the consent of the receiving country, is that person's country of nationality or citizenship.
In the present case, the applicant came to Canada from Egypt. He had come with his parents, when he was still a dependent child. His father had been granted asylum, at that time, in Egypt. Counsel for the respondent argued that it was premature for the Board to consider the potential harm to the applicant that might arise if he were returned to Iraq, because the country to which he would be deported was unknown; he might be returned to Egypt. Yet, Mr. Justice McKeown, on April 28, 1997 [[1997] F.C.J. No. 632 (T.D.) (QL)], 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. I am not persuaded that it is premature for the Board to consider the circumstances existing in the person's country of nationality or citizenship when deciding whether or not to exercise its equitable jurisdiction and stay a removal order, given the great likelihood that it will be to that country that the individual will be returned.
I turn now to the jurisprudence that the Board considers precludes it taking into account the potential physical harm to an applicant that could occur as a result of persecution, should the applicant be returned to his country of origin. The starting point appears to be the Immigration Appeal Board decision in Markl v. Minister of Employment and Immigration (May 27, 1985) No. V81-6127 (I.A.B.). This was an appeal of a deportation order filed by a person who had been admitted to Canada as a Convention refugee. The Board was asked to find that the deportation order was invalid and, if it was not, to exercise its equitable jurisdiction to stay that order. The attack on the validity of the order was based on the fact that the inquiry officer did not adjourn that proceeding to allow the Minister to determine whether the applicant was a Convention refugee. In rejecting that argument the Board noted that the appellant was a Convention refugee when he entered Canada and that he continued to have the rights, as a result of that status, conferred on him by the Act. This included paragraph 55(c) of the Immigration Act, 1976, S.C. 1976-77, c. 52 (now paragraph 53(1)(d) [as am. by S.C. 1992, c. 49, s. 43; 1995, c. 15, s. 12]6 which provided that:
55. Notwithstanding subsections 54(2) and (3), a Convention refugee shall not be removed from Canada to a country where his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group or political opinion unless he is
. . .
(c) a person who has been convicted in Canada of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed,
and the Minister is of the opinion that the person should not be allowed to remain in Canada.
The Board refused to declare the deportation order invalid and to refer the matter back for another inquiry on the ground that there had been a breach of natural justice when the inquiry officer had not adjourned the inquiry. The Board noted, however, that in deciding whether to exercise its equitable jurisdiction and stay the valid deportation order, that:
. . . the appellant's entry as a Convention refugee is one of the factors to be kept in mind by the Board when considering the second ground of appeal pursuant to paragraph 72(1)(b) [now paragraph 70(1)(b)]; that is to say "on the ground that having regard to all the circumstances of the case the person should not be removed from Canada."
In considering the potential harm to the appellant should he be returned to Czechoslovakia there was little discussion of the evidence concerning harm that would likely befall the applicant in that country. The focus of the appellant's argument appears to have been that, at the time, it was Canadian government policy not to return people to Czechoslovakia and, therefore, the Board should exercise its equitable jurisdiction in conformity with that policy and stay the removal order. The Board refused to take the government policy into account:
. . . government policy as it pertains to the removal of permanent residents and Convention refugees after admission to Canada probably changes from time to time according to the world situation. It is not something of which the Board could take judicial notice or even a matter with which the Board is familiar through its experience. The statutory duty of this tribunal is clearly set out in its empowering statute and there is no residual power vested in the Board to enable it to make decisions other than those it is empowered to do in accordance with the Act. The Board has no jurisdiction to deal with Convention refugees under subsection 55(c), previously referred to; it is a matter requiring a decision of the Minister.
. . .
One of the matters raised during the invocation of the Board's jurisdiction to grant special relief following paragraph 72(1)(b) [now paragraph 70(1)(b)], was the problem of which country would accept Mr. Markl should he be deported. As his counsel has said "There aren't that many countries around the world seeking people who have criminal records." (Transcript, p. 43). Again, this is a matter for the Minister to deal with.
I turn next to the Federal Court of Appeal decision in Hoang, supra. That decision concerned a Board decision with respect to a permanent resident who had obtained such status after being found to be a Convention refugee. The individual was stateless and therefore to what country he would be deported, if the deportation order was executed, became an issue. The majority of the Board cited the Markl decision for the proposition that the Board did not have jurisdiction to decide to what country a person would be deported; this was a matter for the Minister. The Board went on to state that the protection of Canadian society outweighed the factors that operated in the appellant's favour and the deportation order would therefore not be stayed. The Federal Court of Appeal endorsed the majority decision of the Board stating [at page 38]:
With respect to its non-consideration of the country of destination, we believe the Board properly followed its earlier decision in Markl v. Canada (Minister of Employment & Immigration) (27 May 1985), Doc. V81-6127 (Imm. App. Bd.), at 5, viz., that the Board's jurisdiction is only over whether a person should be removed from Canada, not as to the country of removal:
. . .
In fact, until the issue of deportation is settled, the Minister cannot make a decision as to the country of removal. Hence the statement at one point in the proceedings by the Minister's representative (Appeal Book at 136: "MS. COMSTOCK: All I can say, Mr. Member, is that I have instructions in this particular case that if the Board dismisses the appeal that through External Affairs we will be endeavouring to remove Mr. Hoang to Vietnam") as to the Minister's disposition to deport the appellant to Vietnam cannot be taken as a formal expression of the Minister's decision since he is not yet empowered to make that decision.
The focus of this comment appears to have been on whether or not the Board had jurisdiction to determine the country of destination for the applicant in this type of case. There is no express statement that the Board is not entitled to assess the harm that would befall an applicant in his country of origin if he were returned there. I consider this issue to be unresolved.
Since the Hoang decision the legislation, as noted above, has been amended. The application of subsection 53(1) (previously paragraph 55(c)) preventing removal of a Convention refugee to a country where the individual would be persecuted is now suspended when "the Minister is of the opinion that the person constitutes a danger to the public in Canada". Previously application was suspended when "the Minister [was] of the opinion that the person should not be allowed to remain in Canada".7 The expression of a danger to the public opinion has two effects: it divests the Board of its equitable jurisdiction to stay the removal order under paragraph 70(1)(b); it allows for the return of the individual to a country where his life or freedom might be threatened, as an exception to the general prohibition against such action set out in subsection 53(1). A danger to the public opinion, pursuant to paragraph 70(5)(c) [as enacted by S.C. 1995, c. 15, s. 13]8 may be made with respect to any permanent resident. This includes those who have entered Canada as immigrants not based on a Convention refugee claim. There is no provision comparable to subsection 53(1) applicable to permanent residents who are not Convention refugees. At the same time, the Federal Court of Appeal, in Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646, at page 662, held that the Minister has authority pursuant to subsection 114(2) [as am. by S.C. 1992, c. 49, s. 102] of the Act to stay the removal of a deportation order for humanitarian and compassionate reasons for persons for whom a "danger to the public" opinion has been issued.9 This would encompass all permanent residents regardless of whether they had obtained that status as a result of being a Convention refugee or otherwise.
In any event, I cannot read these legislative provisions that grant authority to the Minister as detracting from the Board's jurisdiction under paragraph 70(1)(b) unless they expressly so provide. The Act sets out overlapping but not mutually exclusive procedures. In the absence of a subsection 70(5) "danger to the public" opinion: the Board has jurisdiction to stay a deportation order issued against a permanent resident on equitable grounds. The exercise of that authority includes, as was said in Canepa , supra, an examination of every extenuating circumstance that can be adduced in favour of the deportee. It is difficult to understand why this should not include the circumstances that await the individual in his or her country of origin, that is the financial and social hardships as well as physical dangers. The dangers are assessed at the time of the Board hearing, not as of some earlier date, for example, when the individual first came to Canada.
In this particular case, it is important to note that not only was no danger opinion issued by the Minister, but the applicant cannot claim the benefit of subsection 53(1) because he has never been determined to be a Convention refugee. He entered Canada as a dependant of his father.
Counsel for the respondent argues that the Board, in any event, did assess in this case the potential harm to the applicant should he be returned to Iraq and found that it did not weigh sufficiently in his favour to justify staying the deportation order. I do not read the decision in that way. I read the decision as recognizing that considerable harm could befall the applicant, he would likely be hanged, but the Board did not consider it had jurisdiction to take that factor into account. For the reasons given the decision in question will be set aside and the appeal referred back for reconsideration by a differently constituted panel of the Appeal Division.
It was brought to my attention that the same issue as that under consideration in this application was considered by another Judge of this Court, who reached a different conclusion, see Chieu v. Canada (Minister of Citizenship and Immigration) (1996), 125 F.T.R. 76 (F.C.T.D.). A question was certified for appeal in that case. As agreed by counsel, I will similarly certify a question in this case. The subject matter of the question is a serious one of general importance and would be determinative of the case.
1 [1992] 3 F.C. 270 (C.A.), at p. 284.
2 Ibid., at p. 285.
3 Ibid., at p. 286.
4 See generally Immigration Act, R.S.C., 1985, c. I-2, ss. 52(2) and 52(3).
5 See G. Goodwin-Gill. International Law and the Movement of Persons between States (1978), at p. 136.
6 53. (1) Notwithstanding subsections 52(2) and (3), no person who is determined under this Act or the regulations to be a Convention refugee, nor any person who has been determined to be not eligible to have a claim to be a Convention refugee determined by the Refugee Division on the basis that the person is a person described in paragraph 46.01(1)(a), shall be removed from Canada 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 unless
. . .
(d) the person is a person described in paragraph 27(1)(d) who 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 and the Minister is of the opinion that the person constitutes a danger to the public in Canada.
7 See note 6, supra.
8 70. . . .
(5) No appeal may be made to the Appeal Division by a person described in subsection (1) or paragraph (2)(a) or (b) against whom a deportation order or conditional deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be
. . .
(c) a person described in paragraph 27(1)(d) who 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.
9 114. . . .
(2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations.