Date : 19990623
Docket: IMM-6546-98
BETWEEN:
IQBAL SINGH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
McGILLIS J.
INTRODUCTION
[1] The applicant has challenged by way of judicial review the decision of the Minister of Citizenship and Immigration ("Minister") that he constitutes a danger to the security of Canada, within the meaning of paragraph 53(1)(b) of the Immigration Act , R.S.C. 1985, c. I-2 as amended ("Act").
FACTS
[2] The applicant was born in Jammu on the border of the Punjab state in India. He came to Canada on March 4, 1991, and immediately claimed Convention refugee status. The Immigration and Refugee Board found that he was not a Convention refugee. However, following his successful appeal of that decision, the Board reconsidered his claim in 1993, and determined that he was a Convention refugee. The applicant applied for permanent residence in Canada, and received provisional approval in March 1994.
[3] On May 9, 1997, the applicant brought an application for mandamus, requesting a final decision on his application for permanent residence.
[4] On January 25, 1998 and March 16, 1998, the Solicitor General of Canada and the Minister respectively signed a certificate under subsection 40.1(1) of the Act indicating that they were of the opinion, based on a security intelligence report received and considered by them, that the applicant was a member of an inadmissible class specified in the anti-terrorist provisions in subparagraph 19(1)(e)(ii), clause 19(1)(e)(iv)(B), clause 19(1)(e)(iv)(C), subparagraph 19(1)(f)(ii) and clause 19(1)(f)(iii)(B) of the Act.
[5] On April 2, 1998, the certificate of the Solicitor General of Canada and the Minister was filed with the Court. The applicant was arrested under paragraph 40.1(2)(b) of the Act, and has remained in custody since that date.
[6] Following a hearing conducted under the statutory scheme in section 40.1 of the Act, Rothstein J. (as he then was) determined, on August 11, 1998, that the certificate was reasonable.
[7] On August 14, 1998, an adjudicator determined that the applicant was a person described in paragraph 27(2)(a), subparagraph 19(1)(e)(ii), clause 19(1)(e)(iv)(B), clause 19(1)(e)(iv)(C), subparagraph 19(1)(f)(ii) and clause 19(1)(f)(iii)(B) of the Act, and issued a deportation order against him.
[8] On August 28, 1998, the applicant was served with a letter from an official in the Department of Citizenship and Immigration ("Department") providing notice of its intention to seek the opinion of the Minister, under s. 53(1)(b) of the Act. That letter stated as follows:
| You are hereby advised that [the Department] possesses evidence suggesting you constitute a danger to the security of Canada. We intend to request an opinion to that effect from the Minister of Citizenship and Immigration. This opinion, if given, will have serious consequences for you as explained below. |
| This request is being made based upon the existence of a certificate issued by the Minister of Citizenship and Immigration and the Solicitor General of Canada pursuant to subsection 40.1(1) of the Immigration Act that you are an inadmissible person described in paragraphs/subparagraphs 19(1)(e)(ii), 19(1)(e)(iv)(B), 19(1)(e)(iv)(C), 19(1)(f)(ii) and 19(1)(f)(iii)(B) of the Immigration Act (copy attached). This certificate was determined to be reasonable by the Federal Court of Canada Trial Division (copy attached). In addition you were found to be described by these allegations at an Immigration Inquiry (copy of deportation order attached). |
| If the Minister if of the opinion that you constitute a danger to the security of Canada, pursuant to paragraph 53(1)(b) of the Act you may be removed from Canada to the country from which you have been determined to be a Convention refugee. |
| The Minister will consider whether you constitute a danger to the security of Canada as well as any humanitarian and compassionate circumstances pertinent to your situation. This will require an assessment of the threat you pose to the security of Canada and the possibility of risk to you which could be precipitated by returning you to the country from which you came to Canada, the country of your permanent residence, the country of your nationality, or the country of your birth. |
| Please note, [the Department] may refer to your refugee claim material (where applicable) and the most recent and current country information available at the Immigration and Refugee Board Documentation Centres. This includes the "Human Rights Package", the "Contextual Package", the "Indexed Media Review" and the "Weekly Media Review" covering the country or countries to which you may be removed. [The Department] may also use other annually published and publicly available material such as the United States Department of State Country Reports on Human Rights Practices, the Lawyers" Committee for Human Rights Critique , Amnesty International Reports, Reporters Sans Frontier Rapport, World Europa, and the Human Rights Watch World Report. |
| Before the Minister forms her opinion, you may make such written representations or arguments as you deem necessary and submit any documentary evidence you believe relevant. Any such representations, arguments or evidence will be considered by the Minister but must be received by this office at the address noted below, to the attention of Bryn Evans-Immigration Investigator #2807 on or before the expiration of 15 days from receipt of this letter. Your evidence, argument or other representations should address whether or not you constitute a danger to the security of Canada, whether compelling compassionate or humanitarian considerations are present in your case, or the extent to which your life or freedoms are threatened by removal from Canada. |
[9] According to the letter, the applicant was required to make submissions on or before September 12, 1998.
[10] By letter dated September 10, 1998, counsel for the applicant wrote to the Mississauga, Ontario address specified in the Department's abovenoted letter, and enclosed a copy of a letter dated September 11, 1998 to the Minister, addressed to her ministerial office. The letter to the Minister, dated September 11, 1998, contained the applicant's submissions on whether he was a danger to the security of Canada. The letter to the departmental official at the address in Mississauga stated as follows:
| Enclosed please find a copy of my submissions to the Minister of Citizenship & Immigration. As noted in the letter, I have forwarded these submissions to the Minister directly, as she is the decision maker. |
...
| Although normally I would ask for your submissions before Mr. Singh has to make his, I am sending my submissions to you because of the unilateral administrative time limit you have imposed on him. I would appreciate receiving your submissions once you have completed them so that I may reply to them. |
[11] The submissions forwarded by counsel for the applicant were received by the Department outside of the time period specified in the departmental letter dated August 28, 1998. However, the submissions were nevertheless accepted by the Minister for consideration under paragraph 53(1)(b) of the Act. The submissions of the applicant"s counsel addressed, among other things, his concerns in relation to the section 53 process, the risk of cruel and unusual treatment for the applicant, the element of danger to the public, the country conditions in India particularly in relation to the treatment of members or sympathizers of a terrorist group like the Babbar Khalsa. Counsel for the applicant also forwarded to the Minister affidavits from two Indian human rights experts.
[12] By Statement of Claim dated September 25, 1998, in file No. IMM-4825-98, the applicant challenged the constitutional validity of the relevant portions of subsections 19(1)(e) and (f), as well as subsection 53(1), of the Act.
[13] On September 14, 1998, the following letter from Amnesty International was faxed to
counsel for the applicant:
| Amnesty International is informed that the Federal Court recently found that there are reasonable grounds to uphold the security certificate issued under section 40.1 of the Immigration Act against Iqbal Singh, a Sikh from India. We understand that the Federal Court accepted that there are reasonable grounds to believe that Mr. Singh belonged to the Babbar Khalsa, and that this group is associated with acts of violence and terrorism. |
| We further understand that submissions envisaged by section 53.1 [sic] of the Immigration Act are now going forward to the Minister. You have asked whether Amnesty International has concerns about this case. |
| Amnesty International has reviewed documents relating to Mr. Singh"s refugee claim and to the security certificate proceedings. On the basis of this review, and consultations with our research Secretariat, we believe that should Mr. Singh be returned to India because of the allegations against him - whether or not they are based in reality - he would be at risk of serious human rights violations, in particular imprisonment and torture. |
| Amnesty International continues to receive numerous reports of Sikhs, forcibly deported to India, who are imprisoned arbitrarily or on fabricated charges. In India, imprisonment always carries with it the risk of torture. Indeed torture is endemic through the country. Suspected political activists are typical torture victims. |
| In the event that Iqbal Singh would be returned to India it appears likely to Amnesty International that he will be detained on re-entry and would thereafter be at risk of torture. |
| Article 33(2) of the 1951 UN convention relating to the Status of Refugees places a limitation on a state"s obligation of non-refoulement under the Convention in the case of "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" [sic] |
| Notwithstanding the 1951 Convention, the principle of non-refoulement itself is a fundamental principle of international law, and as with other instruments dealing with extreme forms of human rights violations such as torture, extra judicial execution and disappearance, permits no exceptions. If it were determined, after a fair hearing complying with international standards, that Iqbal Singh should not benefit from refugee status, the principle of non-refoulement means he could nevertheless not be sent back to a country where he would be at risk of serious human rights violations. |
| In Mr. Singh"s case, the risk to him includes torture. Article 3 of the UN Convention against Torture and other Cruel Inhuman or Degrading Treatment , to which Canada is a party states: |
| (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. |
| There are no exceptions to this total prohibition. |
| Similar provisions are contained in article 8(1) of the UN Declaration on the Protection of All Persons from Enforced Disappearance and Principle 5 of the UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions. None of these instruments permits any exception to the principle of non-refoulement. |
...
| Amnesty International calls on the Canadian authorities to comply with Canada"s International obligations and ensure that Iqbal Singh is not returned to India as this may put him at risk of serious human rights violations. Amnesty International also urges Canadian authorities, if they have evidence that Mr. Singh is guilty of human rights abuses, to bring him to justice without delay. |
[14] By letter dated October 23, 1998, counsel for the applicant sent to the Minister, at her ministerial office, the letter from Amnesty International concerning the applicant. The covering letter sent by counsel for the applicant referred to the applicant by his name and his departmental identification number, and stated as follows:
| Further to my submissions under section 53.1 [sic] of the Immigration Act which were forwarded to your office recently, enclosed please find a letter from Lynn Horton of Amnesty International concerning the above-named and the likelihood that he would be detained and tortured if returned to India. |
[15] By memorandum dated December 4, 1998, the Deputy Minister of the Department, Janice Cochrane, wrote to the Minister to seek her opinion, under paragraph 53(1)(b) of the Act, as to whether the applicant constitutes a danger to the security of Canada.
[16] In her memorandum, the Deputy Minister outlined the question to be determined by the Minister and provided a brief summary of the background facts. In the section of her memorandum entitled "Considerations", the Deputy Minister reviewed the submissions made by counsel for the applicant, in his letter dated September 11, 1999, and summarized the country conditions in India. In her analysis of the country conditions, the Deputy Minister relied on various country reports, including the 1998 Amnesty International Report, in arriving at her conclusion that the applicant "... personally faces little or no risk of harsh or inhumane treatment upon his return to India."
[17] Following her analysis, the Deputy Minister recommended to the Minister that she issue an opinion that the applicant constitutes, under paragraph 53(1)(b) of the Act, a danger to the security of Canada.
[18] On December 9, 1998, the Minister wrote on the Deputy Minister's memorandum that she concurred with the recommendation. The Minister therefore formed the opinion, on that date, that the applicant constitutes a danger to the security of Canada, under paragraph 53(1)(b) of the Act.
[19] The letter from Amnesty International, sent to the Minister by counsel for the applicant by letter dated October 23, 1998, was never provided to the Minister prior to the making of her decision under paragraph 53(1)(b) of the Act. The letter from Amnesty International stated, among other things, that the applicant "...would be at risk of serious human rights violations, in particular imprisonment and torture".
[20] On December 17, 1998, the applicant filed an application for leave and for judicial review challenging the Minister's decision under s. 53(1)(b) of the Act. On May 5, 1999, I granted the application for leave. I also ordered the present judicial review and the related action in file no. IMM-4825-98 to be heard together with two other files raising the same constitutional questions, namely the application for judicial review in file no. IMM-4204-98, Ahani v. Minister of Citizenship and Immigration, and the action in file no. T-1767-98, Ahani v. Her Majesty the Queen et al.
[21] At the outset of the hearing on June 15, 1999, counsel for the respondent made a preliminary motion requesting that I apply the recent decision of McKeown J. in Suresh v. Minister of Citizenship and Immigration, (file No. IMM-117-98, June 11, 1999) to the present proceeding and the related files, to the extent that it decided the same constitutional questions. On June 15, 1999, I delivered oral reasons in which I granted the motion, and adopted and applied the decision in Suresh v. Minister of Citizenship and Immigration, supra, to the extent that it decided the same constitutional questions. Following that ruling, I heard the submissions of counsel on the remaining issues raised in the present application for judicial review.
ISSUE
[22] The principal question to be determined is whether the Minister committed a breach of procedural fairness by failing to consider the letter from Amnesty International forwarded by counsel for the applicant to her ministerial office by letter dated October 23, 1998, over a month before she made her decision under paragraph 53(1)(b) of the Act.
ANALYSIS
[23] Counsel for the applicant submitted, among other things, that the Minister committed a breach of procedural fairness by failing to consider the letter from Amnesty International which was sent to her ministerial office over one month prior to the making of her decision under paragraph 53(1)(b) of the Act. I agree with that submission. By letter dated October 23, 1998, counsel for the applicant forwarded the Amnesty International letter to the Minister. In his letter, counsel for the applicant referred to the applicant's name and immigration identification number, as well as the "recent" submissions forwarded to the Minister's office under subsection 53(1) of the Act. Counsel for the applicant also indicated that the letter from Amnesty International related to "...the likelihood that [the applicant] would be detained and tortured if returned to India". In my opinion, the basic tenets of procedural fairness required the Minister to review and consider the letter from Amnesty International in making her decision under paragraph 53(1)(b) of the Act, particularly given that the letter was forwarded to her ministerial office over one month before she made her decision. The requirements of procedural fairness cannot be frustrated or negated by apparent bureaucratic inefficiencies in the operation of the Minister's correspondence unit.
[24] The application for judicial review is allowed in part. The decision of the Minister dated December 9, 1998 is quashed and the matter is remitted to her for reconsideration under paragraph 53(1)(b) of the Act. In all other respects, the application for judicial review is dismissed. Counsel for the parties shall make written representations, if any, on or before June 28, 1999, for the certification of any question of general importance under Rule 18(1) of the Federal Court Immigration Rules, 1993, SOR/93-22. My formal Judgment in this matter, and my Judgments in all of the related proceedings, will be issued no later than June 29, 1999.
| D. McGillis |
| ______________________ |
| Judge |
OTTAWA
June 23, 1999