Federal Court Decisions

IMM-2254-96

BETWEEN:

MOHAMAD SADEGH GHORVEI

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

JEROME A.C.J.:

     This application for judicial review of the decision of the Minister or her delegate determining that the applicant be removed from Canada pursuant to paragraph 53(1)(d) of the Immigration Act and communicated to the applicant on July 3, 1996, was heard in Toronto, Ontario on December 10, 1996 and January 27, 1997. At the conclusion of argument, I took the matter under reserve and indicated that these written reasons would follow.

     The applicant, a citizen of Iran, was granted Convention refugee status by the United Nations High Commission for Refugees (U.N.H.C.R.) after he had fled Iran for Iraq. He acquired landed immigrant status in Canada on January 25, 1993.

     Prior to the Iran-Iraq war the applicant supported the Mojahedine Kalq, a pro-democratic political movement in Iran. When Iraq invaded Iran the applicant enlisted in the army and was wounded during fighting on the front lines. He was wounded and was no longer able to serve either physically or emotionally. He requested a posting away from the front lines but was denied. He then deserted the Iranian Army and planned to flee to Iraq but was arrested before he could leave Iran. The applicant was held prisoner for twenty-three months during which he was repeatedly tortured and beaten. At one point he was beaten so severely that he required surgery which was performed in a civilian hospital. During his recovery from surgery, the applicant's friends and family planned his escape. He fled to Iraq where the U.N.H.C.R. found him to be a Convention refugee. The applicant's case was forwarded to Canadian authorities but before anything could be done vis a vis his acceptance by Canada, the region de-stabilized and the U.N.H.C.R. delegation retreated to safety. The applicant fled to Jordan and then subsequently to Israel. The Canadian government accepted the applicant as a Convention refugee and later granted him landed immigrant status on January 25, 1993.

     In Canada the applicant secured a position as a heavy equipment operator. He injured his back while at work and left his employment after only a few months. The applicant took a variety of medicines to try to combat the pain but could find nothing that would ease his discomfort. A friend recommended that the applicant try heroin and soon after this the applicant became an addict. In order to support his habit the applicant peddled heroin for his friend. He was arrested and charged but subsequently let out on bail which was posted by his friend. After his release the applicant visited his friend and was subsequently re-arrested and charged a second time with possession and trafficking narcotics. The applicant was sentenced to four and one-half years in prison for his offenses and the trial judge recommended that he be deported upon his release. On March 4, 1996, the Minister formed the opinion that the applicant is a danger to the public pursuant to subsections 70(5) and 53(1) of the Immigration Act. On July 2, 1996 the applicant received a removal letter stating that he would be sent to Iran.

     On July 3, 1996 the applicant brought an application for leave and judicial review of the Minister's decision to deport the applicant to Iran on the following grounds:

(1) that the Immigration Officer erred in failing to observe the principles of natural and fundamental justice in fettering her discretion;

(2) that the Applicant's removal from Canada to Iran violates his right to be free from cruel and unusual treatment under section 12 of the Charter of Rights and Freedoms, in that as a recognized Convention refugee from Iran, and by his conversion to Christianity which is viewed as apostacy in Iran and by his political dissent within Iran, and by his being guilty of desertion, and by his being guilty of defection to Iraq, and by his dealings with Israel, which is viewed as an enemy of Iran, mean that he will face imprisonment, torture, and likely death on his return to Iran;

(3) his removal from Canada to Iran violates his liberty and security of the person in the manner which does not conform with the principles of fundamental justice under the Charter of Rights and Freedoms in that the decision to remove him to Iran was made without compliance with the principles of fundamental justice.

     The applicant's notice of constitutional question presented the following issue:

1. The Applicant asserts that his interests under section 12 of the Charter of Rights and Freedoms to be free from cruel and unusual treatment are engaged by the determination to remove him to Iran. He asserts further that his interests under section 7 of the Charter of Rights and Freedoms are engaged for his removal to Iran would violate his liberty and security of the person in a manner which does not conform with the principles of natural justice under the Charter of Rights and Freedoms, and that such removal violates the principles of natural and fundamental justice.

     The Minister's opinion was made pursuant to paragraph (d) of subsection 53(1) which reads:

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.

     The applicant's submission that his section 7 and 12 Charter rights are engaged by his imminent deportation is an issue that has been dealt with in a number of cases before the Trial Division and the Court of Appeal. Justice MacKay in Bavi v. Canada (M.C.I.) (1996), 106 F.T.R. 153 (F.C.T.D.), found that neither section 7 nor section 12 were violated in the context of subsection 53(1) of the Immigration Act. MacKay, J. adopted the reasoning of a number of Supreme Court of Canada and Federal Court of Appeal cases, including Chiarelli v. Canada (M.E.I.), [1992] 1 S.C.R. 711, Hoang v. Canada (M.E.I.) (1990), 13 Imm.L.R. (2d) 35 (F.C.A.) andNguyen v. Canada (M.E.I.), [1993] 1 F.C. 696 (F.C.A.).

     Deportation under section 53 requires the satisfaction of a three part test. This test includes the minister's "danger" opinion, the commission by the deportee of a serious offence, and the requirement that the offence carry a possible sentence of 10 years or more, indicating that the offence was particularly serious. Generally, a Convention refugee should not be sent back to a country where he may fear persecution. However, pursuant to subsection 53(1) of the Immigration Act, Convention refugees may be deported to a country where they may be at risk. Article 33(2) of the Geneva Convention on Refugees allows this treatment. Although these Charter rights may be engaged, earlier cases have found that in circumstances such as these a deportee's s. 7 and s. 12 Charter rights had not been violated because these types of deportations were in accordance with the principles of natural justice.

     The applicant further submitted that the Minister, in forming her opinion, did not consider all of the relevant evidence put before her and that she based her decision on extrinsic evidence.

     Included in the evidence put before the Court was the "Criminal Backlog Review - Ministerial Opinion Report" ("danger" report) as completed by Ms. Bonnie Maystrenko, an immigration officer. In her report, which usually forms the basis for the Minister's decision, Ms. Maystrenko recommends that the Minister consider the applicant a "danger to the public" of Canada. Her recommendation is founded on two premises: that the applicant does not have a legitimate fear of persecution, and that he was convicted of a serious offence. She based her findings of no "fear of persecution" on the Joint Embassies Report which contradicted the major findings of the country reports normally relied upon by the Convention Refugee Determination Division and the Immigration Appeal Division. The Joint Embassies Report was compiled by several different embassies, including the Canadian Embassy and described human rights conditions in Iran. This report contradicts many of the findings of the standard Amnesty International, United Nations and U.S. State Department reports. The Joint Embassies Report found, among other things, that deserters from the army and persons convicted of offenses in other jurisdictions generally were not subject to any form of harsh treatment upon their return to Iran. The other country reports were consistent in finding that any anti-government activity carried extreme penalties. The "danger" report did not contain any references to either the applicant's desertion to the enemy, Iraq, his political activism in Iran, or the fact that he was found to be a refugee by the U.N.H.C.R.. The Minister erred in not considering these factors which are clearly relevant to this type of determination.

     In considering the applicant's drug convictions, the immigration officer did not refer to the plethora of positive endorsements and completed rehabilitation programs attesting to the fact that the applicant has not only conquered his addiction but has also bettered himself while incarcerated. Although the Minister has discretion in how she weighs the evidence, the lack of any recital of this newer evidence gives the impression that it was not considered. Clearly this contemporary evidence is also relevant to a determination of the danger posed by the applicant.

     Mr. Justice Gibson in Shayesteh v. Canada (M.C.I.) (1996), 112 F.T.R. 161, 34 Imm.L.R. (2d) 101 (F.C.T.D.) found that a review of a Minister's opinion is possible in situations such as these. The Shayesteh, supra, matter involving a U.N.H.C.R. refugee from Iran who was slated for deportation because of a "danger opinion" based on drug convictions, stated:

...[T]his Court has found a serious issue to be tried with regard to the validity of Minister's opinions. On the material before me, including the affidavit filed on behalf of the Respondent, I am satisfied that there is a serious issue to be tried with regard to the validity of the Minister's opinion. The affidavit filed on behalf of the Respondent attempted to show the basis for and, I take it, the reasonableness of the report made by an immigration officer, which apparently formed the basis for the Minister's opinion... The notes attached to the affidavit as an exhibit indicate some commentary of the officer who made the report, and indicate some of the considerations taken into account. I am satisfied, however, that there is an issue as to whether all of the relevant considerations went into the formation of the opinion, and whether all of the relevant evidence was considered.

In this case, Gibson, J. ordered a stay of execution of a deportation order because a serious issue was to be tried. Although the case at bar is a judicial review, these reasons of Gibson, J. are germane, as it is unclear from the immigration officer's report whether she considered very important evidence or whether she based her report on improper considerations when forming her recommendation to the Minister.

     Finally, the applicant submitted that the Joint Embassies Report on conditions in Iran constituted extrinsic evidence (as per Shah v. Canada (M.E.I.) (1994), 170 N.R. 238, 29 Imm.L.R. (2d) 82 (F.C.A.)). The applicant argued that this special non-annual report could not constitute "other publicly available documentary material." I would agree. (The phrase "other publicly available documentary material" is from the letter sent to the applicant notifying him of the case he had to meet.) The Report, not necessarily by its nature, but primarily because of its contents should have been properly disclosed to the applicant. Actual notice of the Joint Embassies Report should have been given to the applicant not only because it appears to be the only report relied upon by the immigration officer but more importantly because it contradicts the findings of the country reports typically used in these matters. This court has previously held that non-disclosure of publicly available documentary evidence does not amount to a breach of natural justice. However, the material must not only be publicly available but should be commonly available. When an immigration officer relies heavily on evidence that is not commonly consulted, this evidence should be disclosed to the applicant. In the case at bar, the applicant was not given proper notice of the Joint Embassies Report and as a result did not know the full case against him.

     For these reasons the application is allowed and the matter is sent back to the Minister for proper determination in accordance with these reasons.

O T T A W A

September 16, 1997                      "James A. Jerome"

                             A.C.J.