IMM-1712-97
Parminder Singh Saini (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Sainiv. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Gibson J."Toronto, April 7; Ottawa, June 29, 1998.
Citizenship and Immigration — Exclusion and removal — Immigration inquiry process — Judicial review of destination decision — Applicant, citizen of India, convicted in Pakistan for role in hijacking of Air India plane — Upon release from jail, arriving in Canada without status — In immigration detention since 1995 — Conditional removal order issued — Before Convention refugee claim determined, danger opinion issued — Ineligible to have Convention refugee claim determined — Applicant making submissions as to risk faced if returned to India — Removal officer informing applicant would be removed to India — No assessment of risk of harm to applicant if returned to India — Application allowed — Risk assessment, determination required on facts herein — Under Immigration Act, s. 48 removal officers having discretion to delay execution of removal order pending risk assessment determination — Removal officer may have regard to evidence of risk in removal to particular destination, and as to whether risk assessment conducted, evaluated, solely for purpose of exercising discretion regarding deferral — Appropriate risk assessment not conducted — Danger opinion process not amounting to risk assessment — Removal officer's failure to consider whether or not to exercise discretion under Immigration Act, s. 48, pending conduct of appropriate risk assessment, making of risk determination, reviewable error in nature of failure, refusal to exercise jurisdiction — Questions certified.
This was an application for judicial review of a destination decision made under the Immigration Act. The applicant is a citizen of India. He was convicted and served 10 years in jail in Pakistan for his role in the hijacking of an Air India plane flying from India to Pakistan. Following his release on parole, he was ordered to leave Pakistan. He arrived in Canada without status. He has been held in immigration detention since 1995. A conditional removal order was issued, which did not determine the date of removal or place of destination on removal. Before the applicant's claim to Convention refugee status was determined, he was found to be a "danger to the public in Canada". He became ineligible to have his claim to Convention refugee status determined. The danger opinion was confirmed and the conditional removal order became a valid and subsisting deportation order that could be executed at any time. The applicant made extensive submissions as to the risk that he might face if returned to India. The removal officer communicated to the applicant that he would be removed to India. There was no indication that the removal officer had evaluated and determined the risk the applicant might face if removed to India.
The issues were: (1) whether a risk assessment and determination were necessary before the removal officer made the destination decision; (2) whether the applicant's materials addressing risk were properly part of the record before the removal officer; (3) whether an appropriate risk assessment was conducted and determination made in this case; and (4) whether the removal officer committed a reviewable error in failing to consider whether or not to exercise discretion to delay the applicant's removal pending the conduct of such an assessment and appropriate consideration of the result.
Held, the application should be allowed.
(1) The applicant raised before the removal officer an allegation that he will be tortured or otherwise suffer persecution if returned to India, and that no risk assessment had been carried out or determination made. On the narrow and unusual facts of this case, a risk assessment and determination were required.
(2) There is no discretion to take into account risk under Immigration Act, section 52. However, under section 48 removal officers have a discretion to delay the execution of a deportation order. Section 48 provides that, subject to sections 49 and 50, a removal order shall be executed as soon as reasonably practicable. Sections 49 and 50 were not applicable. Section 48 covers a broad range of circumstances, including discretion to consider whether it is reasonable to defer the making of removal arrangements pending a risk assessment and determination. A removal officer may have regard to cogent evidence of risk in removal to a particular destination, and as to whether or not an appropriate risk assessment has been conducted and evaluated, solely for the purpose of informing his or her exercise of discretion regarding deferral.
(3) On the record, neither an appropriate risk assessment was conducted nor a determination made.
(4) The removal officer's failure to consider whether or not to exercise his or her discretion under section 48, pending the conduct of an appropriate risk assessment and the making of a risk determination, constituted a reviewable error in the nature of a failure or refusal to exercise jurisdiction. Presumably the removal officer had regard to all of the material before him or her, which indicated no appropriate risk assessment was done or determination made. The material disclosed no evidence that an exercise of the discretion to delay was considered.
The following questions were certified: (1) Where a person claims that he faces a risk of torture or death in his country of origin, and faces removal to that country without the risk faced on removal having been assessed and determined in a manner that respects the principles of natural justice and fundamental justice, may a Court that is conducting a judicial review of the destination decision have regard to evidence respecting such risk that was before the federal board, commission or other tribunal that made the destination decision? (2) Where a person claims that he faces a risk of torture or death in his country of origin, is a risk assessment and determination conducted in accordance with the principles of natural justice and fundamental justice a condition precedent to a valid determination to remove the individual to that country, without delay to allow for such an assessment and determination? If so, on the facts herein, did the process by which the respondent formed the opinion that the applicant constitutes a danger to the public in Canada constitute or incorporate such a risk assessment and determination? (3) When an immigration officer is making removal arrangements for a person under a removal order and the person being removed claims that he is at risk of torture or death in the country to which he will be removed, must the immigration officer consider whether a risk assessment and determination has been carried out?
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].
Immigration Act, R.S.C., 1985, c. I-2, ss. 46.01(1)(e)(i) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36; 1995, c. 15, s. 9), 48, 52 (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 7; S.C. 1992, c. 49, s. 42).
cases judicially considered
applied:
Poyanipur v. Canada (Minister of Citizenship and Immigration) (1995), 116 F.T.R. 4 (F.C.T.D.); Pavalaki v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 338 (T.D.) (QL); Farhadi v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 315 (T.D.) (as to the issue of whether the danger opinion process incorporated an appropriate risk assessment and determination procedure).
distinguished:
Farhadi v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 315 (T.D.) (as to the issue of whether a risk assessment and determination were required before the removal officer made the destination decision).
referred to:
Gerist v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1584 (T.D.) (QL); Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.); Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97; (1995), 124 D.L.R. (4th) 129; 31 Admin. L.R. (2d) 261; 39 C.R. (4th) 141; 180 N.R. 1; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; (1984), 9 D.L.R. (4th) 161; 20 Admin. L.R. 1; 11 C.C.C. (3d) 481; 8 C.R.R. 193; 53 N.R. 169; 3 O.A.C. 321.
authors cited
Hogg, Peter. Constitutional Law of Canada, 3rd ed., Scarborough: Carswell, 1992.
APPLICATION for judicial review of a destination decision to remove the applicant, who had been found to constitute a danger to the public in Canada, to India, notwithstanding his submissions as to the risk of harm he might face if removed thereto. Application allowed.
appearances:
H. Lorne Waldman for applicant.
David W. Tyndale 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
Gibson J.:
BACKGROUND
These reasons arise out of an application for judicial review of a decision or order made, or a matter arising, under the Immigration Act1 in the form of a communication from an immigration officer (the removal officer) to the applicant indicating that he would be removed from Canada May 5, 1997 via Amsterdam to Delhi, India. The communication (the destination decision) is dated April 29, 1997.
The factual background giving rise to the destination decision is essentially not in dispute and can be summarized as follows.
The applicant is a citizen of India. He was a member of the All India Sikh Student Federation. In 1984, pursuant to a plan formulated by that organization, he participated in the hijacking of an Air India passenger flight from India to Pakistan. The applicant was apprehended, convicted and sentenced to death in Pakistan. His sentence was later commuted to life imprisonment. He served 10 years and then was released on parole in Pakistan. Following his release on parole, he was ordered to leave Pakistan. He arrived in Canada without status. He has relatives in this country.
In September of 1995, the applicant was apprehended by immigration authorities. Since that time he has been held in immigration detention.
A conditional removal order was issued against the applicant. That order did not determine the date of removal or place of destination on removal. The applicant made a claim to Convention refugee status in Canada based on an alleged well-founded fear of persecution if required to return to India. Before the applicant's refugee claim was determined, the applicant received notice that the respondent was considering issuing a "danger to the public in Canada" opinion (danger opinion) against him pursuant to subparagraph 46.01(1)(e )(i) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36; 1995, c. 15, s. 9] of the Immigration Act. The applicant was invited to make submissions. A delegate of the respondent determined the applicant to constitute a "danger to the public in Canada". In the result, he became ineligible to have his claim to Convention refugee status determined.
The respondent agreed to reconsider the danger opinion. Following reconsideration, despite extensive submissions on behalf of the applicant regarding the risk that he might face if returned to India, the danger opinion was confirmed.
The conditional removal order made against the applicant became a valid and subsisting deportation order that could be executed at any time.
The applicant again made extensive submissions to the officials responsible for removal arrangements in the respondent's ministry, as to the risk that he might face if removed to India. It was not in dispute before me that removal officers, such as the immigration officer who made the destination decision in respect of the applicant, do not have jurisdiction to evaluate and determine risk prior to making removal arrangements. There is no indication that the removal officer varied from the established practice and jurisdiction to evaluate and determine risk in this case, despite the voluminous material before her or him.
The applicant applied for leave and for judicial review of the danger opinion issued on behalf of the respondent against him. Leave was denied.
ISSUES
The applicant raised a number of issues, including the constitutional validity of sections 48 and 52 [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 7; S.C. 1992, c. 49, s. 42] of the Immigration Act when read together with sections 7 and 12 of the Canadian Charter of Rights and Freedoms2 and against the factual background of this matter. Before turning to the Charter submissions, I will first consider the following questions:
1. was a risk assessment and determination necessary before the removal officer made the destination decision;
2. were the applicant's materials addressing risk properly part of the record before the removal officer;
3. was an appropriate risk assessment conducted and determination made in this case; and
4. if no appropriate risk assessment was carried out and determination made, did the removal officer commit a reviewable error in failing to consider whether or not to exercise discretion to delay the applicant's removal pending the conduct of such an assessment and appropriate consideration of the result.
ANALYSIS
The factual background to this matter, and the argument presented on behalf of the applicant, are substantially similar to those that were before me in Farhadi v. Canada (Minister of Citizenship and Immigration)3 (Farhadi). The factual differences are the following. Mr. Farhadi had been determined to have a "credible basis" to a refugee claim in Canada, as against Iran and was landed on that basis. Thus, unlike the applicant here, he had status in Canada. Further, in Farhadi , I had both the destination decision and the danger opinion decision before me for judicial review.
Counsel for the applicant relied extensively on Farhadi for the proposition that a risk assessment had to be conducted and evaluated before the destination decision could be made against this applicant. Farhadi does not, in my view, stand for the proposition that a risk assessment and determination is always required before a destination decision flowing from a valid deportation order can be made involving removal to a country in which persecution is feared. The ruling in Farhadi pertained, rather, to unique circumstances in which the applicant therein had made out a credible allegation that he would confront torture upon removal to Iran, had a "credible basis" refugee claim as against Iran and was landed in Canada. On those facts, I found that a risk assessment and determination was necessary, and that the danger opinion did not incorporate such an assessment and determination.
The applicant herein has similarly raised before the removal officer an allegation that he will be tortured or otherwise suffer persecution if returned to India, and that no risk assessment has been carried out or determination made. On the distinct, but similarly narrow and unusual facts of this case, I find that a risk assessment and determination are required.
As earlier indicated, the applicant filed before the removal officer extensive submissions as to the risk he might face if removed to India, including the representations made in advance of the danger to the public redetermination. Those submissions are now before this Court as a part of the certified tribunal record, despite what is acknowledged to be the limited jurisdiction of the removal officer. The question then arises whether the removal officer had discretion to consider the risk submissions and, by implication, whether those submissions are properly before this Court on this judicial review application.
As noted earlier in these reasons, it was not disputed that removal officers do not have jurisdiction to conduct risk assessments and make risk determinations in the course of making destination decisions. The options open to removal officers in making destination decisions are circumscribed by section 52 of the Immigration Act, which leaves them little, if any, discretion unless there is a voluntary departure or unless removal to a country as provided in subsection (2) of that section cannot be made. In such circumstances, with the approval of the respondent, or on the respondent's initiative, any destination country may be selected. There is no discretion to take into account risk under section 52 of the Act.
However, under section 48 of the Immigration Act, removal officers have a discretion to delay the execution of a deportation order. Section 48 provides:
48. Subject to sections 49 and 50, a removal order shall be executed as soon as reasonably practicable.
Sections 49 and 50 are not applicable on the facts of this matter.
In Poyanipur v. Canada (Minister of Citizenship and Immigration),4 Madam Justice Simpson wrote at page 6:
What is clear, however, is that removal officers have some discretion under the Immigration Act concerning, among other things, the pace of the removal once they become involved in making deportation arrangements. This is so because the May Affidavit indicates in paragraph 8 that removals are to be carried out as soon as "reasonably" practicable. This language is also found in section 48 of the Immigration Act . In my view, this language covers a broad range of circumstances which might include a consideration of whether it would be reasonable to await a pending decision on a H&C application before removal. [Emphasis added.]
Similarly, in Pavalaki v. Canada (Minister of Citizenship and Immigration),5 Madam Justice Reed stated at paragraph 12:
I accept that removal officers have, in certain circumstances, authority to defer execution of a removal order (certainly if an applicant was ill, or if the scheduled flight was cancelled, such must exist).
Although Madam Justice Reed did not comment on whether a removal officer had discretion to delay removal to await the determination of a humanitarian and compassionate grounds application, I conclude that she acknowledged, in principle, that a removal officer has discretion in such circumstances.6
I conclude that the "broad range of circumstances" that Madam Justice Simpson found to be contemplated by section 48 of the Immigration Act includes discretion to consider whether it is reasonable to defer the making of removal arrangements pending a risk assessment and determination. Accordingly, it follows that a removal officer may have regard to cogent evidence of risk in removal to a particular destination and as to whether or not an appropriate risk assessment has been conducted and evaluated, solely for the purpose of informing his or her exercise of discretion regarding deferral.
Based on the foregoing considerations, I conclude that the applicant's materials in respect of risk filed before the removal officer were properly before that officer, but only for the limited purpose of determining whether or not an appropriate assessment had been conducted and evaluated and whether or not a delay in making removal arrangements is warranted. As such, the representations in respect of risk and the alleged lack of an appropriate assessment and evaluation that were placed before the removal officer properly constitute a part of the certified record filed before me in this matter.
In this regard, the facts here are distinguishable from those in Farhadi. In that case, certain of the evidence as to risk that was placed before me was not before the federal boards, commissions or other tribunals the decisions of which were under review. The evidence was introduced for the first time on the judicial review application. In deciding that case without regard to the new evidence filed on judicial review, I stated [at page 329]:
It is trite law that a reviewing court is bound by the record filed before the federal board, commission or other tribunal the decision of which is under [review].
By contrast, the evidence as to risk in this matter was before the decision-maker whose decision is under review. The applicant's evidentiary submissions as to risk, including material that was before the respondent's delegate charged with arriving at a danger opinion decision, are therefore properly before me.7
I turn then, to the third issue enumerated above, that being whether an appropriate risk assessment was, in fact, conducted and determination made in this case. The applicant argued that no such assessment had been conducted or determination made.
By contrast, the respondent essentially took the position that the danger opinion effectively addressed risk of return, it then being "known" to the parties that removal, if effected, would be to India. The relevant portion of the summary prepared for the respondent's delegate who rendered the danger opinion specifically noted that the applicant feared persecution upon return to India. As such, it was urged, an appropriate risk assessment had been conducted and determination made. All of this evidence, counsel for the respondent pointed out, was before the removal officer.
On the record before me, I find nothing to satisfy me that an appropriate risk assessment had been conducted or determination made. Moreover, nothing on the relevant facts here is distinguishable from Farhadi on whether the danger opinion process incorporated an appropriate risk assessment and determination procedure. Clearly, it did not. In Farhadi, I wrote [at pages 333, 337 and 341]:
The issues before the respondent's delegate under subparagraph 46.01(1)(e)(iv) and subsection 70(5) of the Act, were clear: whether or not, in the respondent's opinion, the applicant constitutes a danger to the public in Canada. This was the sole issue before the delegate. In making the danger to the public determination, the delegate was authorized to consider, although he or she was not required in law to do so, material other than that relating strictly to danger to the public in Canada, including material that speaks to a risk assessment.
. . .
I conclude that counsel for the applicant is correct in his submission that there is no decision or final conclusion on the issue of risk to the applicant in the decision of the respondent's delegate. The decision of the delegate is merely to the effect that, in the Minister's opinion, the applicant is a danger to the public in Canada; nothing more.
. . .
I am satisfied that the danger opinion process simply did not amount to a risk assessment and determination and that, if it did, it provided insufficient attributes of natural justice and fundamental justice, given the potential implications of a risk assessment decision adverse to the applicant. [Emphasis added.]
CONCLUSION
Accordingly, I can only conclude in the affirmative on the issue of whether the removal officer erred in failing to consider whether or not to exercise his or her discretion to delay the applicant's removal. It must be presumed that the removal officer had regard to all of the material before him or her.8 That material indicates no appropriate risk assessment was done or determination made. The material discloses no evidence that exercise of discretion to delay was considered. In my view, the removal officer's failure to consider whether or not to exercise his or her discretion under section 48 of the Immigration Act, pending the conduct of an appropriate risk assessment and the making of a risk determination, constituted a reviewable error in the nature of a failure or refusal to exercise jurisdiction.
For the foregoing reasons, this application for judicial review will be allowed. In light of the above analysis, it is unnecessary and, indeed, undesirable, to consider the constitutional issues raised.9
CERTIFICATION OF A QUESTION OR QUESTIONS
At the close of the hearing of this matter, I reserved my decision and undertook to distribute draft reasons to allow counsel to consider the reasons and make further submissions if considered appropriate and to make recommendations regarding certification of a question or questions. Draft reasons were distributed under cover of a letter from the Registry of the Court dated May 28. Brief further submissions in written form were received from counsel for the respondent. An acknowledgement was received from counsel for the applicant without further submissions.
On June 25, 1998, the Court received from counsel for the respondent a proposal for certification of three questions in the following form:
1. Where a person has made a claim that the person faces a risk of torture or death in the person's country of origin, and faces removal to that country without the risk that he or she faces on removal having been assessed in a manner that respects the principles of natural justice and fundamental justice, may a Court that is conducting a judicial review of the removal decision affecting the individual have regard to evidence respecting such risk that was before the federal board, commission or other tribunal that made the removal decision?
2. Where a person has made a claim that the person faces a risk of torture or death in the person's country of origin, is a risk assessment and determination conducted in accordance with the principles of natural justice and fundamental justice a condition precedent to a valid determination to remove the individual to that country? If so, on the facts of this matter, did the process by which the respondent formed the opinion that the applicant constitutes a danger to the public in Canada constitute or incorporate such a risk assessment and determination?
3. When an immigration officer is making removal arrangements for a person under removal order and the person being removed claims that he/she is at risk of torture or death in the country to which he/she will be removed, must the immigration officer consider whether a risk assessment has been done? If yes, what is the extent of the Officer's obligation to decide whether an appropriate risk assessment has been conducted?
During a teleconference held on the 26th of June, some modifications to the proposed questions was discussed and the Court advised that modifications would be made. The modifications, generally speaking, are technical in nature. The most important, perhaps, is the deletion of the second sentence in the proposed third question. In the opinion of the Court, that sentence represented a request for legal advice rather than a proposal of a question that would be determinative on an appeal from the order herein.
Accordingly, the following three questions will be certified.
1. Where a person has made a claim that the person faces a risk of torture or death in the person's country of origin, and faces removal to that country without the risk that he or she faces on removal having been assessed and determined in a manner that respects the principles of natural justice and fundamental justice, may a Court that is conducting a judicial review of the destination decision affecting the individual have regard to evidence respecting such risk that was before the federal board, commission or other tribunal that made the destination decision?
2. Where a person has made a claim that the person faces a risk of torture or death in the person's country of origin, is a risk assessment and determination conducted in accordance with the principles of natural justice and fundamental justice a condition precedent to a valid determination to remove the individual to that country, without delay to allow for such an assessment and determination? If so, on the facts of this matter, did the process by which the respondent formed the opinion that the applicant constitutes a danger to the public in Canada constitute or incorporate such a risk assessment and determination?
3. When an immigration officer is making removal arrangements for a person under a removal order and the person being removed claims that he/she is at risk of torture or death in the country to which he/she will be removed, must the immigration officer consider whether a risk assessment and determination has been carried out?
1 R.S.C., 1985, c. I-2.
2 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 [1998] 3 F.C. 315 (T.D.). Notice of Appeal filed 26 March, 1998 to the Federal Court of Appeal; A-201-98.
4 (1995), 116 F.T.R. 4 (F.C.T.D.).
5 [1998] F.C.J. No. 338 (T.D.) (QL).
6 See also Gerist v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1584 (T.D.) (QL).
7 I note, however, that there is also evidence before this Court which appears to not have been before the removal officer: see, for example, Applicant's Application Record, Tab 3, at p. 6. For the reasons set out in Farhadi, supra, I have not had regard to such material in deciding this matter.
8 ;Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.).
9 See generally, P. Hogg, Constitutional Law of Canada (Scarborough: Carswell, 1992), at p. 56-18; Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97; and Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357.