Date: 19980810
Docket: IMM-1612-98
BETWEEN:
MASHA ALLAH ZAND-VAKILI,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
REED, J.
[1] This is an appeal from a decision of an immigration officer, dated March 10, 1998, refusing to allow the applicant on humanitarian and compassionate grounds to make an application for landing from within Canada.
[2] The applicant argues that the decision should be set aside because: (1) the immigration officer should not have taken into account the fact that the applicant was excluded by the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD"), from convention refugee protection in accordance with Article 1F(a) of the United Nations Convention Relating to the Status of Refugees (the "Convention") as incorporated into domestic law by subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-5; (2) if the officer was entitled to take into account this fact, he evaluated the evidence in a perverse manner, ignoring the evidence that was before him, or that should have been before him; (3) the immigration officer's decision leads directly to the applicant's removal to Iran and such removal would constitute an infringement of section 12 of the Canadian Charter of Rights and Freedoms (the "Charter"), an argument supported by Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was ratified by Canada on June 24, 1987. Article 3 states, in part:
| 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. |
[3] The applicant is a citizen of Iran. He served under the Shah as a military judge. On February 8, 1979, three days before the Iranian revolution, he learned that the Shah's army was going to capitulate. He went into hiding and left Iran about ten to twelve days later. Between 1979 and 1986, he lived in several countries including Turkey, Italy, Spain and Argentina.
[4] On May 25, 1986, the applicant arrived in Canada and claimed refugee status. The applicant has two daughters; one lives in Germany and the other lives in British Columbia. He currently lives at his daughter's house in British Columbia and states that he is financially supported by her.
[5] On August 20, 1990, a credible basis tribunal found that the applicant had a credible basis for his refugee claim. The applicant, however, was found, at the time, to be criminally inadmissible to Canada under paragraph 19(1)(c) of the Immigration Act, due to his conviction for assault with a weapon in 1986, and was medically inadmissible under paragraph 19(1)(a) of the Immigration Act. Thus, he was referred to the CRDD for a full hearing.
[6] On November 27, 1992 the CRDD held that the applicant would be at risk of persecution if returned to Iran. It also held that he was not a convention refugee because he was excluded from protection under Article 1F(a) of the Convention. The CRDD held that the applicant had participated in sentencing political opponents to death penalties, been unconcerned about whether witnesses were tortured before confessions, had a long and proud association with an oppressive and abusive system and knowingly participated in persecutorial acts in Qum by awarding death penalties to Mullahs and clergymen and other Muslim fundamentalists. The applicant sought leave to seek judicial review of this CRDD decision. The application for leave was dismissed by the Federal Court of Appeal on March 5, 1993. The respondent subsequently conducted what is referred to as a "back-end" humanitarian and compassionate review to determine whether the applicant should be processed for landing from within Canada on humanitarian and compassionate grounds. This is essentially a similar evaluation to that which takes place under subsection 114(2) of the Immigration Act.
[7] With respect to the argument that the immigration officer should not have considered the 1F(a) finding of the CRDD when making a decision on the "back-end" humanitarian and compassionate review, I am of the view that that finding was relevant to the decision being made. The question being addressed is whether the Minister should facilitate the person's admission to Canada by exempting that person from general requirements of the law. The individual's conduct is relevant to that determination. As counsel for the respondent argues, if the immigration officer was required to weigh only the factors in favour of the applicant, i.e. the risk he would face on returning to Iran, this would constitute a fettering of the officer's discretion contrary to the principle enunciated in Yhap v. Canada (Minister of Citizenship and Immigration) (1990), 9 Imm. L.R. (2d) 243 (F.C.T.D.). The decision making process contemplates a weighing of all relevant factors and the applicant's past conduct, that is, conduct that gave rise to his present situation is one such relevant factor.
[8] With respect to the argument that the weighing of the evidence by the immigration officer was perverse, counsel for the respondent argues that this was not the case and that some of the evidence upon which the applicant seeks to rely (e.g. the transcript of the proceedings before the CRDD) was not before the immigration officer. I agree that, contrary to counsel for the applicant's argument, there was no duty on the immigration officer to search out this additional information. The immigration officer was entitled to confine his assessment to the material before him. That material included the CRDD decision and the refusal of leave by the Federal Court of Appeal, but not the transcript of the CRDD hearing. I accept counsel for the respondent's argument that the transcript of the 1992 CRDD hearing must be disregarded for the purposes of the present application. This document was not submitted to the immigration officer; it was not part of the record that was before him when he made his decision.
[9] In part, counsel for the applicant's argument that the weighing of the evidence by the immigration officer was perverse is based on a mischaracterization of the effect of the decision under review. He sees that decision as effecting the removal of the applicant from Canada. One can understand this characterization since the documentation indicates that the consequence of a negative decision is removal. Also the applicant was advised by immigration officials, ahead of time, that if the decision was negative he would be removed to Iran, and, at least at one time, the arguments from departmental officials before this Court were that removal officers had no discretion but to remove a person who was illegally in Canada, and that the removal order itself was not reviewable by this Court. I do not understand that now to be the law.
[10] The difference between a "back-end" humanitarian and compassionate review decision and the removal order itself is relevant to the applicant's third argument, as well as to his second. The third argument, as noted, is that it is contrary to section 12 of the Charter to remove the applicant to Iran, given the risk he would face there of being detained and abused and possibly killed. Counsel for the respondent argues that it is the removal decision, dated April 7, 1998 by the removal officer Randy Jordan, that should be the subject of this constitutional attack since that officer decided when and to where the applicant would be deported. The decision in Farhadi v. Minister of Citizenship and Immigration (March 20, 1998, IMM-3846-96) was referred to for the proposition that it is the removal order that is properly the subject of the constitutional challenge. Counsel for the respondent argues, in addition, that the Notice of Constitutional Question should be struck out because the decision to which it relates, i.e. the immigration officer's negative humanitarian and compassionate decision of March 10, 1998 and the exclusion order of July 14, 1997 are not the relevant decisions to which the constitutional issue relates.
[11] As will be obvious from what has been said above, I accept counsel for the respondent's argument that the wrong decision has been attacked, and that it is the removal order itself that should be challenged. Since the record of that decision is not before me, I cannot exercise any discretion to convert this application into the one that should have been made in order to deal with the Charter issue. With respect to counsel's related argument, however, I do not think it appropriate to strike out the Notice of Constitutional Question. It gave notice of a time, place and date of hearing that is now past. Striking out the Notice would not serve any useful purpose.
[12] It is clear that the applicant has been repeatedly told in this case that removal to Iran will be effected if he does not arrange for his own departure to some other country. He apparently has refused to attempt to make any such arrangements. Counsel notes that he has lived elsewhere since the fall of the Shah and that there are avenues open to him of which he has intransigently refused to avail himself.
[13] In that context, then, I return to the immigration officer's negative humanitarian and compassionate decision. The discretionary nature of such decisions is well known, as is the burden on an applicant seeking to set aside such a decision; see Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.). I am not able to conclude that the decision refusing to allow the processing of an application by the applicant for landing from within Canada, given the 1F(a) finding that had been made, is based on an erroneous finding of fact made in a perverse or capricious manner, or without regard to the material on the record, or that it was based on an error of law. A finding that there are serious reasons to believe that a person has committed crimes against humanity is relevant to whether or not such discretionary authority should be exercised. Also, in the absence of being given reason to doubt the correctness of the CRDD decision, the immigration officer was entitled to rely upon that decision and the subsequent refusal of the Federal Court of Appeal to grant leave for that decision to be reviewed.
[14] For the reasons set out this application must be dismissed.
[15] As agreed, I will not issue a final order until counsel for the applicant has had an opportunity to decide whether submissions should be made with respect to the possible certification of a question. If such are to be made, they must be served and filed within seven days of the date of these reasons. Counsel for the respondent will have seven days after the filing and serving of such submissions, if any, within which to respond, and counsel for the applicant five days thereafter for reply.
(Sgd.) "B. Reed"
Judge
Vancouver, British Columbia
10 August 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1612-98
| STYLE OF CAUSE: MASHA ALLAH ZAND-VAKILI |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: WEDNESDAY, JULY 29, 1998
PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA
REASONS FOR ORDER BY: REED, J.
DATED: AUGUST 10, 1998
APPEARANCES:
Mr. Darryl Larson
For the Applicant
Ms. Esta Resnick
For the Respondent
SOLICITORS OF RECORD:
| Mr. Darryl Larson |
| Larson Suleman Sohn Boulton |
| 6th Floor, 609 West Hastings Street |
| Vancouver, B.C. |
| V6B 4A2 |
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent