IMM-169-98
IMM-170-98
Dawod Noori Said (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Saidv. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Rothstein J."Toronto, January 27 and February 11, 1999.
Constitutional law — Charter of Rights — Life, liberty and security — Judicial review of Minister's opinion applicant danger to Canadian public, immigration officer's decision notifying him of removal date — Immigration Act, s. 53(1)(d) permitting refoulement of Convention refugees when found to constitute danger to public in Canada — Applicant, Convention refugee, convicted of trafficking in heroin — Arguing contrary to Charter, s. 7 to remove person to country where found to have well-founded fear of persecution — Question of constitutional validity cannot be determined on judicial review as no tribunal decision thereon — Requiring action for declaration of invalidity.
Administrative law — Judicial review — Minister's opinion applicant danger to Canadian public, immigration officer's decision notifying him of removal date — Immigration Act, s. 53(1)(d) permitting refoulement of Convention refugees when found to constitute danger to public in Canada — Charter challenge against validity of s. 53(1)(d) cannot be determined on judicial review application because no tribunal decision deciding constitutional validity of s. 53(1)(d) — Action necessary.
Citizenship and Immigration — Exclusion and removal — Immigration and inquiry process — Judicial review of Minister's opinion applicant danger to Canadian public, immigration officer's decision notifying him of removal date — Applicant, Convention refugee, convicted of trafficking in heroin — Upon notification Minister considering issuing danger opinion, applicant filing submissions with Minister regarding risks faced if returned to Afghanistan — February 1996 Ministerial Opinion Report concluding applicant not at risk if returned to Afghanistan; risk to Canadian society outweighing any risk applicant might face on return — Danger opinion issued — Removal date delayed almost two years because applicant not cooperating in obtaining Afghan travel documents — Neither statutory requirement nor other reason for risk assessment separate from assessment of applicant's danger to public — Even if separate risk assessment undertaken, results would have to be balanced against danger individual posing to Canadian public — No prejudice to applicant requiring separate assessments — Combining two in one procedure more efficient — No requirement for oral hearing as no indication anything applicant submitted relative to risk of danger upon return to Afghanistan of own personal knowledge, and disbelieved — No duty on courts, tribunals to provide reasons where not required by statute — No evidence danger opinion formulated without regard to risk assessment contained in Ministerial Opinion Report — Risk assessment adequate — No general obligation on Minister to provide periodic updated risk assessments.
This was an application for judicial review of the Minister's opinion that the applicant constituted a danger to the Canadian public and of the immigration officer's decision notifying the applicant of the date scheduled for his removal to Afghanistan.
The applicant came to Canada in 1986 as a Convention refugee. In 1992 he was convicted on five counts of trafficking in heroin and sentenced to five years' imprisonment. In 1993 a deportation order was issued as a result of the narcotics convictions. In December 1995, the applicant was notified that the Minister was considering whether to issue danger opinions under Immigration Act, subsection 70(5) and paragraph 53(1)(d). In January 1996 he filed submissions with the Minister regarding the risks he would face if returned to Afghanistan. The Ministerial Opinion report concluded that the applicant would not be at risk if returned, and that the risk to Canadian society outweighed any risk that the applicant might face on return. On February 15, 1996 opinions were issued that the applicant was a danger to the public. The applicant was detained for almost two years after his release date from penitentiary because he refused to apply for Afghan travel documents. When the Minister finally obtained travel documents from Afghanistan, the applicant was advised of his removal date, but his removal was stayed pending disposition of the judicial review applications.
Paragraph 53(1)(d) prohibits the removal of a person to a country where his life or freedom could be threatened on a Convention ground. This prohibition does not, however, apply in the case of a permanent resident who has been convicted of an offence for which a term of imprisonment of 10 years or more may be imposed and in respect of whom the Minister is of the opinion that he constitutes a danger to the Canadian public.
The applicant argued that it was contrary to Charter, sections 7 and 12 to deport a Convention refugee to a country where he was found to have a well-founded fear of persecution, or that deportation may not take place without a risk assessment, and that no valid risk assessment was done.
Held, the application should be dismissed.
The validity of paragraph 53(1)(d) could not be determined upon this application for judicial review because there were no tribunal decisions deciding its constitutional validity to review. An action would be necessary to determine the validity of paragraph 53(1)(d).
The question of whether the normal balancing approach under Charter, section 7 between the interests of the government and those of the individual applies to the return of Convention refugees to the country from which they have sought refuge, goes to the constitutional validity of paragraph 53(1)(d). It is not a question of whether discretion is being exercised in a manner that contravenes Charter principles. That question cannot be determined on judicial review, but must be resolved in an action for declaration that paragraph 53(1)(d) is invalid.
The applicant argued that the procedures followed were deficient because the risk assessment was made in conjunction with the assessment of the applicant's danger to the public in Canada, there was no oral hearing, and because no reasons were given by the Minister's delegate. While a risk assessment is required before a Convention refugee may be returned to the country from which he has sought refuge, there is no statutory requirement for a stand-alone risk assessment. Nor is there any reason why a separate risk assessment should be conducted. On the contrary, section 7, upon which the applicant relies, contemplates a balancing of an individual's right to liberty against the government's obligation to protect the public of Canada from danger. Even if a stand-alone risk assessment were undertaken, its results would have to be weighed against an assessment of the danger an individual poses to the public. There is no reason in principle why the two assessments must be done separately. No prejudice to the applicant was identified which would require separate assessments. Indeed, combining the two in one procedure is more efficient for an applicant who need only incur the time and expense of one proceeding.
There was no requirement for an oral hearing since there was no indication that anything the applicant submitted relative to the risk of danger upon return to Afghanistan was of his own personal knowledge and was disbelieved.
The basic tenets of our legal system do not impose a duty on courts or tribunals to provide reasons where not required by statute.
The applicant alleged that the risk assessment contained in the Ministerial Opinion Report was inadequate, as the danger opinion itself did not contain the risk assessment and it was not possible to know whether the risk faced by the applicant if returned to Afghanistan was considered by the decision maker who formulated the danger opinion. There was no evidence suggesting that the danger opinion was unlawful or that it was formulated without regard to the risk assessment that was contained in the Ministerial Opinion Report. An adequate risk assessment was performed, and the procedures followed did not violate principles of fundamental justice.
There is no general obligation on the Minister to provide periodic updated risk assessments when an applicant's removal is delayed, particularly when the delay is caused by the applicant's own failure to cooperate. An applicant may always make a humanitarian and compassionate application with new evidence since the last risk assessment.
statutes and regulations judicially considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 12.
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, [1987] Can. T.S. No. 36, Arts. 1, 3(1).
Immigration Act, R.S.C., 1985, c. I-2, ss. 2(1) "Convention refugee" (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1), 53(1)(as am. by S.C. 1992, c. 49, s. 43; 1995, c. 15, s. 12), (2) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 17; S.C. 1992, c. 49, s. 43), 70(5) (as am. by S.C. 1995, c. 15, s. 13), Sch. (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 34).
United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Arts. 1F(a),(b),(c), 33.
cases judicially considered
applied:
Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1; Barre v. Canada (Minister of Citizenship and Immigration) (1998), 150 F.T.R. 257 (F.C.T.D.); 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.); Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; (1989), 59 D.L.R. (4th) 416; 26 C.C.E.L. 85; 89 CLLC 14,031; 40 C.R.R. 100; 93 N.R. 183.
not followed:
Farhadi v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 315; (1998), 52 C.R.R. (2d) 51; 144 F.T.R. 76 (T.D.).
considered:
Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; (1998), 160 D.L.R. (4th) 193; 226 N.R. 201; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; (1993), 107 D.L.R. (4th) 342; [1993] 7 W.W.R. 641; 56 W.A.C. 1; 82 B.C.L.R. (2d) 273; 34 B.C.A.C. 1; 85 C.C.C. (3d) 15; 24 C.R. (4th) 281; 158 N.R. 1.
referred to:
Sivaraj v. Canada (Minister of Citizenship and Immigration) (1996), 107 F.T.R. 64 (F.C.T.D.); Nagarajah v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 703 (C.A.) (QL).
APPLICATION for judicial review of the Minister's opinion that the applicant constituted a danger to the Canadian public, and of the immigration officer's decision notifying the applicant of the date scheduled for his removal to Afghanistan. Application dismissed.
appearances:
Lorne Waldman for applicant.
Sally E. Thomas for respondent.
solicitors of record:
Jackman, Waldman & Associates, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Rothstein J.:
INTRODUCTION
The applicant seeks judicial review of two decisions in this consolidated proceeding of two court files:
1. The opinion of the Minister of Citizenship and Immigration dated February 15, 1996 pursuant to paragraph 53(1)(d) [as am. by S.C. 1992, c. 49, s. 43; 1995, c. 15, s. 12] of the Immigration Act, R.S.C., 1985, c. I-2, that the applicant constitutes a danger to the public in Canada.
2. The decision of Nina Stireno, immigration officer, dated January 7, 1998 notifying the applicant that his removal to Afghanistan had been scheduled for January 17, 1998.1
By orders dated January 16, 1998 Pinard J. stayed the applicant's removal to Afghanistan pending disposition of the judicial review applications in respect of both the above decisions. By orders dated September 8, 1998, Lutfy J. ordered that the time to serve and file the application for judicial review respecting the February 15, 1996 opinion of the Minister be extended and granted leave for judicial review in respect of both decisions.
FACTS
The applicant came to Canada in 1986 as a Convention refugee. In January 1992, he was convicted of five counts of trafficking in heroin and sentenced to five years in jail. On March 31, 1993, a deportation order was issued in respect of the applicant as a result of his narcotics convictions. In December 1995, he was given notice that the Minister was considering whether to issue danger opinions under subsection 70(5) [as am. by S.C. 1995, c. 15, s. 13] and paragraph 53(1)(d) of the Immigration Act. He was told the Minister was going to have regard to the elements of risk of returning him to Afghanistan. He was invited to make representations to the Minister. On January 11, 1996, the applicant filed submissions with the Minister. On February 15, 1996 opinions were issued under subsection 70(5) and paragraph 53(1)(d) that the applicant was a danger to the public.
The applicant's release date from jail was February 26, 1996,2 and was then detained by the Minister pending his removal, subject to detention reviews every 30 days. Apparently, removal was delayed because the applicant refused to cooperate in making an application for Afghan travel documents. Eventually, in January 1998, the Minister obtained travel documents from Afghanistan. On January 7, 1998, the letter of the immigration officer, Nina Stireno, was given to the applicant advising him that his removal to Afghanistan had been arranged for January 17, 1998.
ISSUES
The applicant makes two arguments. The applicant's basic argument is that it is contrary to sections 7 and 12 of the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]3 to deport a Convention refugee to a country where he was found to have a well-founded fear of persecution. The alternative argument is that if the Convention refugee may be deported to such country, deportation may not take place without a risk assessment and no valid risk assessment was done in this case.
The applicant's basic argument seems to be a Charter challenge against the validity of paragraph 53(1)(d) of the Immigration Act which expressly authorizes removal of a Convention refugee, in certain circumstances, to a country where his life or freedom could be threatened for a Convention reason. His alternative argument, while accepting that a Convention refugee may be removed, challenges the procedure followed in this case. While such procedural challenge may imply a deficiency in the legislation that constitutes a violation of the Charter, it may also be directed to an infringing process which is permitted by an imprecise discretion conferred by the Immigration Act on the Minister.
The parties agreed that in the circumstances of this case, if the validity of paragraph 53(1)(d) of the Immigration Act is in issue, that question cannot be determined in these proceedings. The applicant did not ask the Minister or the immigration officer to find paragraph 53(1)(d) unconstitutional and even had he done so, it would appear they would not have had the jurisdiction to do so. There are, therefore, no tribunal decisions deciding the constitutional validity of paragraph 53(1)(d) to review. In the circumstances, an action is necessary in order to determine the constitutional validity of paragraph 53(1)(d). See Sivaraj v. Canada (Minister of Citizenship and Immigration) (1996), 107 F.T.R. 64 (F.C.T.D.), at page 66 per Tremblay-Lamer J., affirmed in Nagarajah v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 703 (C.A.) (QL), per Robertson J.A.
Even though the validity of paragraph 53(1)(d) may not be decided in these proceedings, the applicant argues that he may still challenge the constitutional validity of the decisions thereunder. However, it seems to me that in making a constitutional challenge, an aggrieved individual must decide whether it is the legislation that infringes the Charter or whether it is the exercise of an imprecisely conferred discretion that results in a decision that infringes the Charter. See Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, per Lamer J. (as he then was) at page 1079. For the reasons outlined in paragraph 7, if it is the former, the applicant must proceed by action; if it is the latter, the proceeding is by way of judicial review.
IS THE APPLICANT'S BASIC ARGUMENT A CHARTER CHALLENGE TO THE VALIDITY OF PARAGRAPH 53(1)(d) OR TO THE DISCRETION EXERCISED BY THE MINISTER?
An analysis of the legislative scheme whereby individuals may be denied the benefit of Convention refugee status is set forth in the majority reasons of Bastarache J. in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at paragraphs 4 to 13. The Immigration Act implemented the United Nations Convention Relating to the Status of Refugees [July 28, 1951, [1969] Can. T.S. No. 6] as part of Canadian domestic law. Subsection 2(1) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1] of the Act defines "Convention refugee". The definition contains the following exception:
2. (1) . . .
"Convention refugee" . . . but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act.
Article 1F of the Convention provides:
Article 1
Definition of the Term —Refugee—
. . .
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
Those persons described in Article 1F of the Convention are denied Convention refugee status from the outset.
Section 53 of the Immigration Act implemented Article 33 of the Convention.4 Article 33(1) provides that a refugee may not be returned to the place where his life or freedom would be threatened on account of a Convention ground. However Article 33(2) states that the benefit of Article 33(1) may not be claimed by a refugee where there are reasonable grounds for regarding him or her as a danger to the security of the country in which he or she claims refuge or where, having been convicted, by a final judgment, of a particularly serious crime, he or she constitutes a danger to the community of that country.
Section 53 of the Immigration Act particularizes the circumstances envisaged by Article 33(2). Paragraph 53(1)(d) provides that no person may be removed to a country where his life or freedom would be threatened for a Convention ground except a permanent resident who has been convicted of an offence for which a term of imprisonment of 10 years or more may be imposed and in respect of which the Minister is of the opinion that he constitutes a danger to the public in Canada.
In Pushpanathan, Bastarache J. noted the distinction between persons falling under Article 1F of the Convention, who are automatically excluded from protection of the Convention and the Immigration Act on the one hand, and persons who have been found to be Convention refugees or who are permanent residents on the other, in whose cases there must be the added determination that the person constitutes a danger to the security of Canada or to the public of Canada. At page 1024 of Pushpanathan, Bastarache J. stated:
The purpose of Article 33 of the Convention, by contrast, is not to define who is and who is not a refugee, but rather to allow for the refoulement of a bona fide refugee to his or her native country where he or she poses a danger to the security of the country of refuge, or to the safety of the community. This functional distinction is reflected in the Act which adopts Article 1F as part of s. 2, the definitional section, and provides for the Minister's power to deport an admitted refugee under s. 53, which generally incorporates Article 33. Thus, the general purpose of Article 1F is not the protection of the society of refuge from dangerous refugees, whether because of acts committed before or after the presentation of refugee claims; that purpose is served by Article 33 of the Convention.
In Pushpanathan, Bastarache J. referred to the balancing mechanism in Article 1F(b) of the Convention and section 53 of the Immigration Act"weighing the seriousness of the danger posed to Canadian society against the danger of persecution of the individual upon "refoulement". At page 1034 he stated:
Article 1F(b) identifies non-political crimes committed outside the country of refuge, while Article 33(2) addresses non-political crimes committed within the country of refuge. Article 1F(b) contains a balancing mechanism in so far as the specific adjectives "serious" and "non-political" must be satisfied, while Article 33(2) as implemented in the Act by ss. 53 and 19 provides for weighing of the seriousness of the danger posed to Canadian society against the danger of persecution upon refoulement . This approach reflects the intention of the signatory states to create a humanitarian balance between the individual in fear of persecution on the one hand, and the legitimate concern of states to sanction criminal activity on the other.
This balancing between an individual's liberty interest and the protection of society is well established in the application of principles of "fundamental justice" in section 7 of the Charter. In Rodriguez v. British Columbia (Attorney General) , [1993] 3 S.C.R. 519, Sopinka J. stated at pages 593-594:
This concept of balancing was confirmed in a very recent judgment of this Court. In Cunningham v. Canada, [1993] 2 S.C.R 43, McLachlin J. concluded that the appellant had been deprived of a liberty interest protected by s. 7. She then considered whether that deprivation was in accordance with the principles of fundamental justice (at pp 151-52):
The principles of fundamental justice are concerned not only with the interest of the person who claims his liberty has been limited, but with the protection of society. Fundamental justice requires that a fair balance be struck between these interests, both substantively and procedurally . . . . [Emphasis in original.]
Where there is evidence of both danger to a Convention refugee upon refoulement and danger to the public in Canada if the individual remains in this country, the balancing exercise may be particularly difficult. This is because an important function of government is protecting the security and safety of Canadians while, at the same time, it may be inconsistent with Canadian values to force an individual into a situation of serious danger by government action. One objective is not invariably paramount to the other. That is why a balancing of these two alternatives under paragraph 53(1)(d) of the Immigration Act is what one would normally think is consistent with, and indeed required, by section 7 of the Charter.
Notwithstanding this rationale for the balancing approach under section 7, the applicant says that the balancing approach under paragraph 53(1)(d) is not applicable in the case of a Convention refugee and that there is an absolute prohibition against refoulement with respect to such persons. This argument is based on the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment [December 10, 1984, [1987] Can. T.S. No. 36]. Article 1 provides:
Article 1
1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Article 3(1) provides:
Article 3
1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
The applicant concedes that this Convention has not been enacted as part of the domestic law of Canada. However, Canada has ratified the Convention. The parties are agreed that in the circumstances, the interpretation of Charter rights is to be informed by such ratified Convention, but that the Convention is not binding as if it were enacted as part of domestic law. In Slaight Communications, supra, Dickson C.J., writing for the majority, stated at pages 1056-1057:
Given the dual function of s. 1 identified in Oakes, Canada's international human rights obligations should inform not only the interpretation of the contents of the rights guaranteed by the Charter but also the interpretation of what can constitute pressing and substantial s. 1 objectives which may justify restrictions upon those rights.
On the basis that Article 3(1) of the Convention Against Torture should inform the interpretation of section 7 of the Charter, does that mean that Convention refugees may not be returned to the country from which they have sought refuge and that the normal balancing approach under section 7 between the interests of the government and those of the individual is not applicable? In my opinion, that question goes to the constitutional validity of paragraph 53(1)(d) of the Immigration Act which, by its terms, allows refoulement of Convention refugees when they are found to constitute a danger to the public in Canada. It is not a question of whether discretion is being exercised in a manner that contravenes Charter principles. Indeed, the basis of the applicant's argument is that there is no discretion to be exercised. For the reasons I have already given, that question cannot be determined on judicial review, but must be resolved in an action for a declaration that paragraph 53(1)(d) is invalid by reason of section 7 of the Charter.
THE ALTERNATIVE ARGUMENT
The applicant's alternative argument is that before subjecting a Convention refugee to refoulement, a risk assessment is required, that the risk assessment must be a stand-alone assessment separate and apart from the danger opinion process, that an oral hearing is required, that judicial review be available, that reasons be provided and that if the risk assessment indicates substantial grounds for believing that the applicant would be in danger of being subjected to torture, that he cannot be returned. I will discuss these in turn.
In the present case the applicant was notified on December 7, 1995 of the possible issuance of an opinion by the Minister that he was a danger to the public in Canada. The notice invited the applicant to make representations and provide evidence regarding his being a danger to the public in Canada and the risk upon his return to Afghanistan which may outweigh the danger he presents. The notice stated:
It should also be noted that the following sources may be considered in assessing any risk upon return to the country from which you were granted refugee status:
Country Reports on Human Rights
Practices for 1994 and other publicly
available documentary material.
In order to provide you with the opportunity to address the above noted evidence, you may forward to the address noted above, within 15 days of receipt of this notice, any representations, information or evidence regarding your being a danger to the public, any humanitarian and compassionate factors in your favour, or risk upon return to the country from which you sought refuge, which may outweigh any danger you present.
By letter dated January 11, 1996 counsel for the applicant made submissions with respect to the risk to the applicant upon returning to Afghanistan. Counsel's letter stated:
With regard to the risk upon return to his country of origin, I wish to emphasize the fact that this individual was found to be a Convention Refugee from Afghanistan. The Personal Information Form contained in the materials notes that despite efforts to recruit him he opposed the government forces and allied to some extent with the Muja Haddeen rebels. Inevitably he refused to join forces with the Muja Haddeen as well and fled the country.
Although I have not had an opportunity to gather supporting documentation on the current situation in Afghanistan, it is my understanding that the country is embroiled in a fierce multi-factional war, one of the factions of which is the Muja Haddeen. Consequently any return of Mr. Noori Said to Afghanistan would result in his being placed in a very dangerous position as a perceived deserter from both the Muja Haddeen forces and former government forces.
By further letter dated January 23, 1996 applicant's counsel forwarded information updates on the ongoing conflict in Afghanistan. It appears that the Minister's officials had some 80 pages of country reports on Afghanistan before them.
The Ministerial Opinion Report was issued on February 14, 1996. It is apparent from the Report that the submissions of applicant's counsel were received and reviewed. The Report concluded that the applicant would not be at risk if he was returned to Afghanistan.
Based on the above, it appears that the subject will not be at risk because of his refusal to join the army in 1980 as the government has changed since then. Nor is he likely to be at risk because of his limited 3-month association with the Muja- Haddeen. It is noted that there are many different factions of Mujahaddeen who are engaged in civil war with each other. The subject has not identified the particular group of Mujahaddeen from whom he may be at risk.
A balancing of the applicant's interest against those of the government concluded:
Due to the subject's serious trafficking convictions and the devastating effect of heroin on Canadian society, the risk to Canadian society outweighs any risk that the subject may face upon return.
The Manager's comments follow.
Subject left Afghanistan in 1980. It is unlikely that he would be at risk, because of his personal circumstances, upon return to his home country. Moreover, I believe that the danger he poses to Canadian society outweighs any potential risk.
The danger opinion of February 15, 1996 stated:
On the basis of the information considered by me, I am of the opinion, pursuant to paragraph 53(1)(d) of the Immigration Act that
Dawod (Noori Said)
DOB 01Nov60-Afghanistan
constitutes a danger to the public in Canada.
The Ministerial Opinion Report made no reference to the applicant being in danger of being subjected to torture. Rather the risk to the applicant upon return was not considered to be great. Applicant's counsel before me does not argue that the risk assessment was not based on the evidence before the appropriate officials nor that it was otherwise substantively deficient.
Rather, the argument is that the procedures followed were deficient because the risk assessment was made in conjunction with the assessment of the applicant's danger to the public in Canada, that there was no oral hearing, and because there were no reasons given by the Minister's delegate.
In Farhadi v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 315 (T.D.), on the facts before him, Gibson J. concluded that the applicant, who had been found to have a credible basis for a refugee claim, was entitled to a risk assessment and determination apart from the danger certification process. In Barre v. Canada (Minister of Citizenship and Immigration) (1998), 150 F.T.R. 257 (T.D.), Teitelbaum J. came to the opposite conclusion in respect of an applicant who had been admitted to Canada as a Convention refugee. In his view, there was no requirement for a risk assessment and determination apart from the danger certification.
I agree with Gibson J. in Farhadi and Teitelbaum J. in Barre, that a risk assessment is required before a Convention refugee may be returned to the country from which he or she has sought refuge. However, I cannot see a statutory requirement for a stand-alone risk assessment. Nor can I see any reason why a separate risk assessment need be conducted. On the contrary, section 7 of the Charter, upon which the applicant relies in this case, contemplates a balancing of an individual's right to liberty against the government's obligation to protect the public of Canada from danger.5 Even if a stand-alone risk assessment were undertaken, its results would have to be weighed against an assessment of the danger an individual poses to the public in Canada. There is no reason in principle why the two assessments must be done separately. No prejudice to the applicant has been identified which would require separate assessments. Indeed, combining the two in one procedure is more efficient for an applicant who need only incur the time and expense of one proceeding. The applicant has not satisfied me that he suffers any disadvantage by having his risk assessment performed as part of the danger opinion process or why principles of fundamental justice would require that such procedure be found to be deficient. At the same time, I recognize that Gibson J. came to a different conclusion in Farhadi, and for that reason, a question will be certified for appeal on this issue.
Nor can I agree with the applicant that a risk assessment always requires an oral hearing. The applicant relies on Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177. It is well accepted that while Singh mandates an oral hearing in certain circumstances, it does not require an oral hearing at every stage of proceedings dealing with the admission or return of Convention refugees. Nor is an oral hearing called for whenever section 7 Charter rights are at issue. The applicant made submissions with respect to his risk of danger upon return to Afghanistan. There is no indication that anything he submitted relative to the risk of danger upon return to Afghanistan was of the applicant's own personal knowledge and was disbelieved. In these circumstances, there was no requirement for an oral hearing. See Farhadi, supra, at page 343, paragraph 51.
As to the availability of judicial review with respect to a decision to return the applicant to Afghanistan, I take it as obvious that judicial review has been made available in this case. That is what the present proceedings are.
Finally, there is the question of whether reasons are required. I think Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.) is dispositive of this issue. While Strayer J.A. dealt with a danger opinion under subsection 70(5) of the Immigration Act, I can discern no reason in principle why his conclusions are not applicable to the decisions in this case. I refer particularly to his rationale at pages 672-675, paragraphs 38-44. As he has pointed out, while reasons are preferable, the basic tenets of our legal system do not impose a duty on courts or tribunals to provide reasons where they are not required by statute.
While the Ministerial Opinion Report contains a risk assessment, the applicant says this is inadequate as the danger opinion itself does not contain the risk assessment and it is not possible to know whether the risk of the applicant returning to Afghanistan was considered by the decision maker who formulated the danger opinion. Again I think the reasons of Strayer J.A. in Williams are an answer to this argument. At page 675, paragraph 43 he states:
With respect, it seems to me that this approach is based on the premise that decisions by tribunals and officials are presumptively wrong unless they can be proven correct. But the separation of powers and ordinary principles of judicial deference require that it is for the person attacking a discretionary decision to demonstrate that it is unlawful. This may be easy in some cases where the decision is patently perverse, patently unlawful as dealing with matters outside the jurisdiction of the decision maker, or explicable only on the assumption of bad faith. Absent such factors, it is for the applicant for judicial review to bring forth evidence or argument as to why the decision is unlawful.
There is no evidence here to suggest the danger opinion was unlawful or that it was formulated without regard to the risk assessment that was contained in the Ministerial Opinion Report that was before the decision maker.
For these reasons I find that an adequate risk assessment was performed in this case, and that the procedures followed did not violate principles of fundamental justice as required by section 7 of the Charter.
Finally, I must address the fact that the applicant remained in Canada for almost two years before his removal could be arranged, and no updated risk assessment was performed. The record indicates that this delay was due to his own failure to cooperate to obtain travel documents from Afghanistan. While each case must be decided on its own facts, I do not think there is any general obligation on the Minister to provide periodic updated risk assessments when an applicant's removal is delayed, and in particular, when it is delayed by reason of the applicant's own failure to cooperate. Of course, an applicant is always free to make a humanitarian and compassionate application with new evidence since the last risk assessment.
The judicial review is dismissed. The order is withheld for seven days to provide the parties an opportunity to submit questions for certification for appeal.
1 The application for judicial review referred to a decision dated January 13, 1998 but applicant's counsel confirmed that the decision under review was the letter dated January 7, 1998.
2 According to the Ministerial Opinion Report, dated February 14, 1996.
3 Ss. 7 and 12 of the Charter provide:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof in accordance with the principles of fundamental justice.
. . .
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
4 S. 53 [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 17; S.C. 1992, c. 49, s. 43; 1995, c. 15, s. 12] of the Immigration Act provides:
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
(a) the person is a member of an inadmissible class described in paragraph 19(1)(c) or subparagraph 19(1)(c.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada;
(b) the person is a member of an inadmissible class described in paragraph 19(1)(e), (f), (g), (j), (k) or (l) and the Minister is of the opinion that the person constitutes a danger to the security of Canada; or
(c) the person is a person described in subparagraph 27(1)(a.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada; or
(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.
(2) Notwithstanding subsections 52(2) and (3), no person who has been determined not to be 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)(b) shall be removed from Canada to any country other than the country from which the person came to Canada as determined for the purposes of that paragraph unless
(a) the country to which the person is to be removed is a prescribed country under paragraph 114(1)(s); or
(b) the person, following a reference of the claim to the Refugee Division pursuant to section 46.03, is determined by the Refugee Division not to be a Convention refugee.
Art. 33 of the Convention provides:
Article 33
Prohibition of Expulsion or Return (—Refoulement—)
1. No Contracting State shall expel or return ("refouler") a refugee in any matter 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.
5 Unless the applicant is successful in his action challenging the validity of s. 53(1)(d) of the Immigration Act.