Halifax, Nova Scotia, March 16, 2006
PRESENT: The Honourable W. Andrew Mackay
BETWEEN:
IN THE MATTER OF a certificate pursuant to
Section 40.1 of the Immigration Act, R.S.C. 1985,
c. I-2, now deemed to be under s-s 77(1) of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27;
AND IN THE MATTER OF the referral of that
certificate to the Federal Court of Canada;
AND IN THE MATTER OF Mahmoud JABALLAH,
Re Lawfulness of September 23, 2005 decision on Application for Protection
Introduction and background
[1] These Reasons and accompanying Order concern my determination, pursuant to s-s. 79(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended (IRPA or the Act), that I find lawful the decision, made September 23, 2005, by a delegate of the Minister of Citizenship and Immigration (MCI), whereby Mr. Jaballah's application for protection under s. 112 of the Act was denied. That decision and this review are part of the process applicable in this case under IPRA in the consideration by the Court whether a security certificate issued in August 2001 with respect to Mr. Jaballah is reasonable.
[2] The decision here reviewed was the second one by a delegate of the Minister with respect to the application for protection, made by Mr. Jaballah on July 1, 2002. The first decision, dated December 30, 2003, was determined not to have been lawfully made (See: Re Jaballah, 2005 FC 399). It was set aside and referred to the Minister for reconsideration, and the proceedings to consider whether the security certificate respecting Mr. Jaballah is reasonable were suspended pursuant to ss. 79 and 80 of IRPA.
[3] As noted in Appendix A, on July 7, 2005, the Court directed that in continuing proceedings
a) this Court's determination of May 23, 2003, that the PRRA assessment of August, 2002 continue to be deemed to be the determination of the Minister concerning the risk to Mr. Jaballah if he were now returned to Egypt;
b) the matters for reconsideration by the Minister, to be reported to Mr. Jaballah and to the Court in accordance with subparagraph 113(d)(ii) of IRPA and s-s. 172(2) of the Regulations, are the danger that Mr. Jaballah constitutes to the security of Canada if he remains in this country, and the determination whether, despite the risk to him if he now be returned to Egypt, his application for protection should be refused; and
c) the Minister's decision on the application for protection should be filed on or before September 26, 2005, after Mr. Jaballah had opportunity to comment on the record to be considered by the Minister or his delegate. (The decision was subsequently filed as directed).
[4] The proceedings have been drawn out, as the summary in Appendix A to these reasons indicates. Before the second decision on Mr. Jaballah's application for protection was made on September 23, 2005, interlocutory proceedings were initiated in regard to an application by Mr. Jaballah for release from detention, in which he has been held since mid-August 2001. When argument was completed in respect of that motion, the Court resumed proceedings in relation to the reasonableness of the security certificate, initially in the following respects.
1) The Court agreed to, and did, review the confidential information in this matter which has been withheld from Mr. Jaballah and his counsel pursuant to subpara. 78(b) of IRPA, since it was originally considered its disclosure would be injurious to national security or to the safety of any person. Following that review some further information was revealed to Mr. Jaballah.
2) The Court allowed, without objection, a motion on behalf of Mr. Jaballah for leave to introduce evidence, and dates were established for hearing that evidence in early February 2006, in anticipation that this review of the lawfulness of the protection decision would be completed by that date. It was argued for Mr. Jaballah that the proposed timing was consistent with comments of Mr. Justice Rothstein, speaking for the Court of Appeal in Re Jaballah, 2004 FCA 257, [2004] F.C.J. No 1199 (CA), particularly at paras. 28-29, where he wrote:
[28] ...Under subsection 80(1), there are two determinations to be made by the designated judge: (1) whether the certificate is reasonable; and (2) whether the protection decision is lawfully made.
[29] ...Under subsection 80(2), if the judge finds that a protection decision is not lawfully made, the proceedings in respect of the security certificate are to be suspended until the MCI makes a new decision on the application for protection. In other words, once an application for protection is made, the designated judge cannot decide the reasonableness of the security certificate until he determines that the MCI has made a lawful protection decision.
While I am not persuaded that s. 80 of the Act requires that a determination on the lawfulness of the protection decision must precede the hearing of further evidence on the reasonableness of the security certificate, to be adduced on leave granted by the Court, that process, as urged by counsel for Mr. Jaballah, has here been followed. For the record, I note that process was not accepted by counsel for the Ministers but, without resolving this as a matter of law, this proceeding is in two stages, review of the lawfulness of the decision on protection, and review of the reasonableness of the security certificate, because of the timing and circumstances of this case.
3) Hearing of further evidence on behalf of Mr. Jaballah and argument, both concerning the reasonableness of the security certificate, has now been rescheduled for May 2006 in view of the limited mutual availability of counsel for the parties.
4) As Appendix A indicates, in December 2005 the Court heard argument on the lawfulness of the application for protection, the matter dealt with in these reasons. Further, on February 1, 2006 the Court filed Reasons and an Order dismissing Mr. Jaballah's application for release from detention (see: 2006 FC 115), and on February 10, 2006 the Court filed reasons and an Order dismissing Mr. Jaballah's motion that this judge recuse himself, on grounds raised of a reasonable apprehension of bias, in respect of further proceedings concerning the reasonableness of the security certificate (see: 2006 FC 180). I note that the motion to recuse specifically did not relate to the determination of the lawfulness of the protection decision, on which argument was heard in December, well before the motion was filed or the grounds arose in relation to the motion to recuse.
[5] In continuance of resumed proceedings relating to the reasonableness of the security certificate, I turn to the determination of the lawfulness of the decision on behalf of the Minister in regard to Mr. Jaballah's application for protection, as directed by s-s. 79(2) and s. 80 of IRPA, which provide:
| 79. (2) If a proceeding is suspended under subsection (1) and the application for protection is decided, the Minister shall give notice of the decision to the permanent resident or the foreign national and to the judge, the judge shall resume the proceeding and the judge shall review the lawfulness of the decision of the Minister, taking into account the grounds referred to in subsection 18.1(4) of the Federal Courts Act.
80. (1) The judge shall, on the basis of the information and evidence available, determine whether the certificate is reasonable and whether the decision on the application for protection, if any, is lawfully made. (2) The judge shall quash a certificate if the judge is of the opinion that it is not reasonable. If the judge does not quash the certificate but determines that the decision on the application for protection is not lawfully made, the judge shall quash the decision and suspend the proceeding to allow the Minister to make a decision on the application for protection. (3) The determination of the judge is final and may not be appealed or judicially reviewed. |
79. (2) Le ministre notifie sa décision sur la demande de protection au résident permanent ou à l'étranger et au juge, lequel reprend l'affaire et contrôle la légalité de la décision, compte tenu des motifs visés au paragraphe 18.1(4) de la Loi sur les Cours fédérales.
80. (1) Le juge décide du caractère raisonnable du certificat et, le cas échéant, de la légalité de la décision du ministre, compte tenu des renseignements et autres éléments de preuve dont il dispose. (2) Il annule le certificat dont il ne peut conclure qu'il est raisonnable; si l'annulation ne vise que la décision du ministre il suspend l'affaire pour permettre au ministre de statuer sur celle-ci.
(3) La décision du juge est définitive et n'est pas susceptible d'appel ou de contrôle judiciaire.
|
[6] Because he is a person named in a security certificate Mr. Jaballah's application for protection was subject to consideration in accord with subpara. 113(d)(ii) of the Act and s. 172 of the Immigration and Refugee Protection Regulations, SOR/2002-227 as amended. The Act directs that the application be considered on the basis of factors set out in s. 97, concerning the risk to the individual on deportation, and, since he is believed to be inadmissible on national security grounds, whether his application should be refused "because of the danger that the applicant constitutes to the security of Canada" (subpara. 113(d)(ii)). The same two assessments are dealt with by s. 172 of the Regulations which directs that in a case like this the assessment of factors set out in s. 97 of the Act and a written assessment on the basis of factors set out in sub-para. 113(d)(ii) of the Act shall be provided to the applicant before a decision is made. Those assessments, with any timely response by the applicant, are then to be considered in reaching a decision.
[7] Here the process required by s. 172 of the Regulations was followed and submissions on behalf of Mr. Jaballah were received in response to the assessment proposed for consideration by the Minister's delegate. These were considered and referred to in the decision made to deny the application for protection. The basic elements of procedural fairness appear to have been met in the process followed leading to the decision in this case.
The risk to Mr. Jaballah on return to Egypt
[8] The references to the assessment of factors set out in s. 97 relate to statutory qualifications there described for a person in need of protection, i.e., a person who, inter alia, if removed to their country of nationality, would be subject personally to a danger of torture prohibited by the international Convention Against Torture, or to a risk to their life, or of cruel and unusual punishment or treatment. In Mr. Jaballah's case, a Pre-Removal Risk Assessment officer determined and advised in August 2002 that he found Mr. Jaballah faced a risk to his life, or of torture or of cruel and unusual treatment or punishment, if he were removed to Egypt, his country of nationality. While that assessment was said to have been conveyed in error, this Court ultimately found that delay in determining Mr. Jaballah's application for protection in reasonable time, despite urging by the Court, constituted an abuse of process, and the Court deemed the PRRA officer's decision to be that of the Minister in regard to the risk likely to be faced by Mr. Jaballah if he were removed to Egypt.
[9] That finding was not disturbed by the Court of Appeal which decided in July 2004 that this Court's decision upholding the reasonableness of the security certificate should be quashed, in essence on the ground that the Court had acted without authority in proceeding to that step without first determining the lawfulness of the decision on the application for protection.
[10] That is the background to this Court's Order of July 7, 2005, set out above at para. [3], directing that the PRRA decision made in August 2002 continue to be deemed to be the determination of the Minister concerning the risk to Mr. Jaballah if he were returned to Egypt, i.e. he would face a risk to his life, or a risk of torture or of cruel and unusual punishment if he were removed to Egypt. Thus that assessment of risk was not in issue in the decision of the Minister's delegate, dated September 23, 2005, as that decision indicates, and it is not in issue here.
[11] I note that some information, not previously brought to the Court's attention, concerning potential risk to Mr. Jaballah does appear in the documents comprising the record before the Minister's delegate. The first concerns a notice of a change, dated 24/03/2003, made by Egyptian authorities, concerning the earlier Interpol notice dated July 1999 and the legal proceedings concerning an Egyptian national, one "SAID N/P MAHMOUD EL SAYED GABALLAH SAID", who was subsequently identified as Mahmoud Jaballah by an RCMP fingerprint expert. The change notes that while the original notice stated the maximum possible sentence is death, "the maximum probable sentence is hard labour for life".
[12] A second matter in the record is the inclusion of more current information concerning treatment of detainees in the custody of Egyptian security officials, information critical of Egypt's human rights record, provided in the main in responding submissions on behalf of Mr. Jaballah to the Minister's delegate, in reports of Human Rights Watch, Amnesty International, and the U.S. Department of State. Finally, counsel for Mr. Jaballah also submitted a chronology concerning Mr. Ahmad Abou El Maati, a Canadian citizen, detained in Syria in November 2001, transferred to Egypt in January 2002 and there detained and reportedly tortured until his release in January 2004. While all that information may be hearsay in legal proceedings for criminal or civil offences, it is here of relevance so far as it supports the conclusion of the PRRA officer in August 2002, subsequently accepted by this Court, that if Mr. Jaballah were removed to Egypt he would likely face a serious risk to his life or to torture or cruel and unusual punishment.
The issues and the standard of review
[13] The issues before the Court concern the decision of the Minister's delegate, pursuant to subpara. 113(d)(ii) to refuse the application for protection. That decision is based on an assessment whether the danger Mr. Jaballah constitutes to the security of Canada warrants refusal of the application for protection, despite the risk facing Mr. Jaballah if he were returned to Egypt. That assessment requires determination whether Mr. Jaballah constitutes a danger to the national security of Canada and a balancing of that danger in relation to the risk he would face if he were returned to Egypt.
[14] Assessing each of those aspects of the decision is to take into account the grounds set out in s-s. 18.1(4) of the Federal Court Act as the standard of review. For Mr. Jaballah it is urged that while the determination of a danger to national security may warrant a measure of deference, the decision balancing that danger with the risk he would face if returned to Egypt should be reviewed on a basis of correctness, particularly in view of the serious risk facing him.
[15] In Suresh v. Canada(Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 281 N.R. 1, 208 D.L.R. (4th) 1, 18 Imm. L.R. (3d) 1, 37 Admin. L.R. (3d) 159 (S.C.C.), the Supreme Court of Canada reviewed a decision of the Minister to deport a refugee, despite a prima facie case that he would face a risk of torture if deported to Sri Lanka, the country of which he was a national. The Minister's decision was set aside on grounds of a lack of procedural fairness leading to the decision, but the Court wrote at length on constitutional and other issues raised by the circumstance of possible deportation where the person concerned may face a risk to life, or torture. The Court wrote that the Minister's decision that the person concerned constituted a danger to the security of Canada warranted substantial deference on the basis of the factors considered in the pragmatic and functional approach to review. In the view of the Court, at paras. 29:
We agree...that the reviewing court should adopt a deferential approach to this question and should set aside the Minister's discretionary decision if it is patently unreasonable in the sense that it was made arbitrarily or in bad faith, it cannot be supported on the evidence, or the Minister failed to consider the appropriate factors. The court should not reweigh the factors or interfere merely because it would have come to a different conclusion.
[16] It is urged that standard is not appropriate so far as the decision balances the danger to Canada's security and the threat to Mr. Jaballah if he be returned to Egypt. It is said that the provisions of IRPA differ from those of its predecessor, the Immigration Act, which were in issue in Suresh. In particular, it is urged that the enactment of s-s. 3(3)(f) of IRPA, which came into force in 2002, after the proceedings in Suresh were concluded except for the Supreme Court's decision, directs that the Act be construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory. It is urged that provision effectively incorporates Canada's obligation under the international Convention Against Torture, to which Canada is a signatory, that no person is to be deported to torture. Yet significant as that obligation is and though it may be persuasive in interpretation, it is not determinative of the application of IRPA. (See De Guzman v. Minister of Citizenship and Immigration 2005 FCA 436 per Evans, J.A. for the Court of Appeal, at para. 89; see also Re Charkaoui, 2005 FC 1670 [2005] F.C.J. No 2038 per Noël J. at paras. 26-44.)
[17] In my opinion, any legal obligation of Canada to prohibit deportation to death or torture, under the Charter or in light of international undertakings, may arise only when a decision to deport is made, and the decision to reject the application for protection does not constitute a decision to deport Mr. Jaballah.
[18] Suresh teaches that the standard of review of the delegate's decision that Mr. Jaballah constitutes a danger to national security of Canada, and of the decision that on balance that danger outweighs the risk of death or torture he would face if returned to Egypt, is patent unreasonableness. Parliament has vested broad discretion in the Minister or his delegate, a person especially qualified to consider the factors, both those concerning Mr. Jaballah and those concerning Canada's security, as part of the process of maintaining standards for immigration and for excluding those considered to present a danger to national security. The exercise of that discretion warrants deference unless it be determined that the exercise in a given case is patently unreasonable.
[19] I turn to review of the decision in question in light of that standard of review, and to consider the decision that Mr. Jaballah constitutes a danger to Canada's national security, and the decision that this danger outweighs the risk to him of death or torture if he be returned to Egypt.
The decision in question
[20] In the decision of September 23, 2005 the Minister's delegate described in Part I the material he had considered. That included public and confidential reports and documents, and all reference and appendix documents upon which they were based. The materials considered also included all of the evidence provided by submissions of counsel and by Mr. Jaballah for the consideration of the Minister since 2001. The record before the delegate consisted of 9 volumes of papers, and a total of more than 3000 pages.
[21] One of the shortcomings found in relation to the first decision in December 2003 on the application for protection, i.e., a failure to consider reference and appendix documents upon which the original Security Intelligence Report and the public summary of it were based, was avoided and all documents were appropriately dealt with in the process of reconsideration leading to the decision here reviewed. I also note that a second shortcoming of the first decision, reliance in part on my earlier decision concerning the Ministers' security certificate, which decision was later quashed by the Court of Appeal, was not a factor considered by the delegate in reaching the second decision here in question.
[22] Part II of the decision, facts of the case, provides a brief summary of Mr. Jaballah's background, his travels from Egypt to Saudi Arabia in 1991, to Pakistan that same year, to Yemen in 1994, to Azerbaijan in 1995, and thence to Canada. The summary includes reference to his claimed experience of arrests, detention and torture on seven occasions before he left Egypt, some years before his arrival, with his wife and four children, in Canada in 1996. Two other children have been born to the family in Canada. Since then, his wife and four children born abroad, have been determined to be Convention refugees, but Mr. Jaballah's claim for refugee status was denied during the time that he has been detained under the security certificate issued in August 2001. Part III of the decision in question, relating to Law and Legal Proceedings, reviews summarily the legal background in proceedings leading to the second decision on the application for protection.
[23] Parts IV and VI of the decision set out the delegate's danger assessment and his balancing of that against the risk to Mr. Jaballah if he should be returned to Egypt. Those are the primary concerns of this review.
[24] In part V of the decision it is noted and accepted that the PRRA assessment of August 2002, as affirmed by this Court in May of 2003, constitutes the risk to Mr. Jaballah, i.e., of death or torture, should he be returned to Egypt. Part VII concerning best interests of the children and part VIII concerning removal to a safe third country, are brief, peripheral to the main issue here raised, and they are dealt with only summarily in this review.
The Danger Assessment
[25] The Minister's delegate relied on the definition of "a danger to the security of Canada" as set out by the Supreme Court of Canada in Suresh, at para. 90, that is,
...a person constitutes a danger to the security of Canadaif he or she poses a serious threat to the security of Canada, whether direct or indirect, and bearing in mind the fact that the security of one country is often dependant on the security of other nations. The threat must be 'serious' in the sense that it must be grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible.
[26] The decision here includes a summary review of the evidence with references to sources where those are public. It refers to Mr. Jaballah's involvement as a student in the Badr group at Zagazig University in Egypt when he was there in the early 1980's, when it was considered a base for Islamic fundamentalists. The Badr group was believed to be opposed to the government of Egypt and his association with the group brought Jaballah to the attention of the authorities, leading to his detention and torture on a number of occasions through the 1980's. His difficulties also led to the detention and torture of his wife.
[27] The decision refers to Mr. Jaballah's testimony before the Immigration Refugee Board, including reference to his family's travel to Saudi Arabia in 1991, then later that year to Peshawar in Pakistan, where both he and his wife were employed as teachers in schools, assisted by the International Islamic Relief Organization, a major relief operation based in Saudi Arabia and supported by the Saudi government. Some persons of that organization were considered to be linked to Al-Qaeda. The school where Mr. Jaballah was principal for a time was known to have ties to Arab militants who were actively involved in Afghanistan, leading the Minister's delegate to infer that Mr. Jaballah was sympathetic to the cause espoused by the Taliban and Al-Jihad, an Egyptian terrorist organization.
[28] Mr. Jaballah's later travel to Yemen for a year from August 1994 and to Azerbaijaan for nine months from September 1995, said to be undertaken to avoid being returned to Egypt, left him without regular employment. The delegate noted he had no satisfactory explanation how costs had been met for his travel, his living and that of his family, or for acquisition of false passports, including the Saudi passport on which he traveled to Canada in 1996. I note that in earlier testimony, before Mr. Justice Cullen in 1999, he testified that his expenses had been met from savings realized in Pakistan, while his wife's earnings as a teacher provided support for herself and their four children in Peshawar. Both Yemen and Azerbaijaan were known to be used by terrorist organizations when he was there and the delegate inferred that Mr. Jaballah was associated with and supported by those organizations while he was in those countries.
[29] The decision refers to the Egyptian Al-Jihad, an organization responsible for the 1981 slaying of President Sadat, for attempted assassinations of other Egyptian leaders in 1993, for the bombing of the Egyptian embassy in Islamabad in 1995 and for plotting to destroy the US embassy in Albania in 1998. Al-Jihad is a terrorist organization, in recent years formally affiliated with Al-Qaeda, and it was declared by the government of Canada in July 2002 (P.C. SOR/2002) to be a terrorist organization. The Minister's delegate concludes that Mr. Jaballah's radical beliefs led him to join Al-Jihad and that he continues to hold these beliefs. It refers to the Interpol notice of July 1999 alleging one, "Mahmoud Said", to be "a member of a terrorist organization responsible for the logistics for attacks carried out in Egypt". As noted above (para. [11]) the person so named in that report was found to be Mr. Jaballah on the basis of fingerprint analysis by the RCMP in 2002.
[30] The Minister's delegate then reviews Mr. Jaballah's associations and conduct in Canada, including references to evidence of his participation from within Canada in relation to the bombings in 1998 of the US embassies in Kenya and Tanzania and to his associations with others who were known to have connections with terrorist organizations or causes. Those associations were said to be oral, and by regular and international telephone calls, through a rental postal box and by home computer with internet access. His admitted relations with certain individuals in Canada or abroad who were well placed in Al-Qaeda or other terrorist organizations are set out in some detail. Those associations the delegate infers are more than coincidental. In his view they demonstrate Mr. Jaballah's intent to continue his involvement with terrorist causes and his commitment to build and expand on his contacts.
[31] The decision refers to a Canadian Security Intelligence Service Bulletin dated June 24, 2005, which reports on "several cases" where extremists released from detention have returned to their pre-detention activities. In those cases, detention did not act as a deterrent or a neutralizing factor for extremists held in detention who, it is believed, consider any suffering for their cause to be rewarded in the after life. In the view of CSIS, extremists will rejoin their networks on release, possibly remaining quiet for some time but not likely to give up on their views on jihad and the use of violence. In hearings in this matter, a witness appearing on behalf of CSIS, for the Ministers, acknowledged that available statistics indicated comparatively few of persons held, then released, returned to terrorist activities; nevertheless, the number who have returned to unacceptable activities is not minimal among the number whose whereabouts after release are known.
[32] In the view of the Minister's delegate Mr. Jaballah is within the profile of individuals described in the CSIS bulletin and in view of his conduct over time both before and after his arrival in Canada, his detention "will not lessen the nature or extent of the danger he presents to Canada". Moreover, the delegate believes that increasing Mr. Jaballah's liberty by conditional release would enlarge his opportunity to carry out further terrorist activities.
[33] Submissions of counsel for Mr. Jaballah are then summarized in the decision, including criticisms by counsel of a Restriction Assessment prepared for consideration of the Minister's delegate, and of the CSIS bulletin relied upon by the delegate. Not all of counsel's submissions to the delegate are dealt with in the decision, though a number are, in particular those considered by the delegate to be relevant are discussed. As for the comments concerning the Restriction Assessment, the delegate specifically noted that the Assessment was only one of the many documents and information sources considered in reaching the decision. With respect to the criticism of the CSIS bulletin the delegate says: "I agree that the material in the bulletin is general in nature, and that each person's situation must be assessed on its own merits. At the same time, as I have stated, I do believe that Mr. Jaballah's past conduct does place him within the broad profile described in the bulletin. This is, however, just one of the many factors I have considered in arriving at my decision, which is based on the totality of evidence I have received."
[34] With respect to danger, in view of the fact that Canada has been named as a possible target of attack by terrorist organizations, that others so named have been attacked, and given the belief that Mr. Jaballah was/is a member of Al-Jihad, in light of its activities and his behavior, the delegate concluded that Mr. Jaballah presents a danger to the security of Canada and also a danger to the security of Canada's allies in the struggle against terrorism.
Balancing
[35] When the Minister's delegate turns to balancing the danger to the national security of Canada and the risk to Mr. Jaballah if he were returned to Egypt, the decision refers to Suresh at para. 76 that, barring extraordinary circumstances, deporting anyone to face death or torture would infringe fundamental rights assured by section 7 of the Charter.
[36] The decision refers to the delegate's belief that Mr. Jaballah presents a danger to Canada, as a member of Al-Jihad, a very active and dangerous terrorist organization, and that his activities and the nature of his associations before and after his arrival in Canada demonstrate a continuing commitment to terrorist causes, including a role from within Canada in relation to the bombings of American embassies in Kenya and Tanzania in 1998. The Minister's delegate then refers to his conclusion with reference to the CSIS bulletin that imprisonment of Islamic extremists does not deter their commitment to their beliefs. He concludes that Mr. Jaballah poses an extraordinary threat to the security of Canada for, as he writes,
...there is evidence to indicate that the nature of the terrorist threat has evolved in recent years. Governments of predominantly Islamic countries are no longer the primary focus of activities; Western countries, including Canada, are now being specifically and publicly targeted. As the bombings in Bali, Madrid and Londonindicate, activities are being organised and carried out by local cells rather than through a central organization. It is interesting to note that these countries were all publicly identified by Al-Qaeda as targets - and that all these threats were followed up with terrorist attacks by local cells whose members demonstrated by their actions agreement with Al-Qaeda's extremist philosophy. Canada was also included on the list. I believe that Mr. Jaballah's associations and activities indicate that he shares this extremist philosophy and that, as such, that he poses an extraordinary danger to the security of Canada.
[37] The delegate concludes that he believes "the 'extraordinary circumstances' test prescribed by the Supreme Court in Suresh is met in this case", and that "Mr. Jaballah's continued presence in Canada constitutes a significant and extraordinary danger to the security of Canada that outweighs the risk that he might face torture upon his return to Egypt".
Other matters considered
[38] The delegate briefly considered the best interests of the children, a matter on which it is said counsel made minimal submissions. Acknowledging the status of Mr. Jaballah's wife and four children as refugees in Canada with "a strong case for remaining permanently in this country regardless of the eventual outcome of Mr. Jaballah's case" and recognizing that two other children who are Canadian citizens have the right to remain in Canada, the delegate acknowledges that any unfortunate outcome for Mr. Jaballah if he were returned to Egypt would not be in the best interests of the children. Nevertheless, the best interests of the children did not outweigh his conclusion that Mr. Jaballah's continued presence in Canada poses a risk to the security of this country, presumably outweighing the risk to Mr. Jaballah if he be returned to Egypt.
[39] Counsel for Mr. Jaballah also submitted comments to the delegate but made no specific suggestions about possible safe third countries. The delegate simply had no information that would enable him to identify such a country, and so he did not.
Assessment of submissions on behalf of Mr. Jaballah
[40] On behalf of Mr. Jaballah it is urged the Minister's delegate erred in his decision in numerous ways. First, it is said the decision exaggerates the danger posed to Canada's national security by inferences based on mere association of Mr. Jaballah with groups or persons or activities, or based on general evidence, not specifically dealing with Mr. Jaballah, produced for the Immigration and Refugee Board and used in considering his refugee claim, or produced by CSIS in its appraisal of the threat of terrorism to Canada, or its assessment of terrorists generally. The decision, it is said, relies on selective use of evidence or information, or on confidential information obtained through torture in Egypt though there is no basis for such speculation, and on stereotyping by use of a general profile of persons in detention and their likely continuing threat to security if they were released even on conditions.
[41] It is urged that the delegate's belief that "Mr. Jaballah's past conduct does put him within the broad profile described in the bulletin", is simply stereotyping, speculation without evidence of Mr. Jaballah's own activities. In my view, general descriptive profiles based on more than one individual may be information of use in intelligence assessments, and the use of such a profile, by the Minister or his delegate, provided it is not the exclusive or principal information relied upon, is not so unreasonable in assessing threats to national security that the Court should intervene on review. In this case it is not the exclusive or principal evidence relied upon.
[42] In my opinion, these submissions on the assessment of the evidence and information by the delegate are concerned with the weight given to the information on which he relied in reaching his decision, a matter that does not lead to review of the facts he found or the inferences drawn. I am not persuaded that his findings and inferences of fact are made without reference to the information before the delegate, or that in light of that information they can be characterized as capricious within the meaning of the term in s-s. 18.1 (4)(d) of the Federal Court Act.
[43] Counsel for Mr. Jaballah urges that in view of the serious consequences of the decision, the evidence should support the conclusions reached on the basis of a balance of probabilities as though this were a case of civil liability, by analogy to the standard of proof discussed by the Supreme Court of Canada in Continental Insurance Co. v. Dalton Cartage Co., [1982] 1 S.C.R. 164. This is not such a case.
[44] Moreover, the inferences drawn from the information before the delegate are not to be set aside provided they are reasonably supportable on the evidence, even if the court might not have drawn all of the same inferences if it were assessing the information. As the Supreme Court commented in Suresh (at para. 90) in defining a danger to the security of Canada, "the threat must be "serious" in the sense that it must be grounded on objectively reasonable suspicion based on evidence..." In my view, reasonable inferences based on information in the record qualify as objectively reasonable suspicion and the decision warrants deference for it is an exercise of deference by the delegate acting for the Minister, to whom Parliament has entrusted responsibility for considering matters relating to national security.
[45] It is urged further that the delegate's conclusion about the continuing danger to Canada's national security is based at least in part on his assessment of Mr. Jaballah's credibility without having heard orally from Mr. Jaballah. There is no particular reference in the decision to credibility, but Mr. Jaballah's statements about his past associations and activities, recorded in documents or transcripts included in the record before the delegate, were not all accepted as true. I am not persuaded that, to the extent the decision depended on findings or inferences other than those expressed by Mr. Jaballah, an oral hearing was required. (See Suresh, para. 121 where the Supreme Court commented that in that case an oral hearing was not required.)
[46] Finally it is said the decision does not adequately set out the reasons for the delegate's conclusions about the danger to security constituted by Mr. Jaballah or about the balancing of that with the risk he faces if returned to Egypt. In particular, it is said the decision does not adequately express reasons for the balancing decision, or to put it another way, why the circumstances of this case are exceptional, as the Supreme Court indicated in Suresh would be required to support a decision to deport to torture.
[47] In my opinion the decision does provide reasons for its two primary conclusions, and the reasons expressed are adequate to support those conclusions. Thus, for the conclusion that Mr. Jaballah constitutes a danger to the national security of Canada the delegate referred to his involvement with a student group opposed to the Egyptian government, which brought him to the attention of the authorities, to his employment at a school in Pakistan, which had known ties to Arab militants who contributed to the war in Afghanistan, to his travel and living without employment in Yemen and Azerbaijan, both known at the time to be used by terrorist organizations, when he had no fully satisfactory explanation of the sources of funds to meet his expenses. The delegate concluded that Mr. Jaballah was at one time an active member of Al-Jihad, an Egyptian terrorist organization, that he was sought by Egypt as a member of a terrorist organization, that he had associated, before and after coming to Canada, with a number of named persons known to be involved with international terrorist groups, that he is believed to have played a role in the bombings of American embassies in East Africa in 1998 after he arrived in Canada, and that he was unlikely to waiver in his support for terrorist causes. In my view the facts so found and the inferences drawn with relation to assessing whether Mr. Jaballah constituted a danger to Canada's security are reasonable, based on the evidence and information before the delegate. That Mr. Jaballah constitutes a danger to Canada's security, is not a conclusion that can be determined to be patently unreasonable.
[48] For his conclusion that the danger posed to Canada's security by Mr. Jaballah outweighs the risk he faces if returned to Egypt, the Minister's delegate inferred that his main activity in Canada until his detention in 2001 was to advance terrorist causes. That and his denial of involvement with Al-Jihad or other terrorist organizations despite his continued detention led the delegate to conclude it was unlikely he would re-enter Canadian society as a person inclined to respect the Canadian legal and government systems. Whether or not that hypothetical conclusion might prove true, is not, in my opinion, of significance in weighing the danger and the risk to Mr. Jaballah, but that conclusion is not a prime factor in the decision.
[49] The significant factors in the decision are the evolving nature of the threat of international terror which has brought western countries, including Canada, forward to be attacked, or to be threatened as targets. This and the emerging threat of terrorist activities carried out by local cells, not directed by a central organization, constitute, in the view of the Minister's delegate, extraordinary circumstances of danger to Canadian security. In the delegate's view, in these circumstances the danger to Canadian security outweighs the risk to Mr. Jaballah if he were returned to Egypt and that warrants termination of his continuing presence in Canada.
[50] Clearly, the threat of international terrorism facing Canada has become more pressing, not abated, in recent years. There is substantial information in the record from a variety of public sources in Canada and abroad concerning the threat of international terrorism to western countries and to this country. Considering the delegate's assessment of the danger posed by Mr. Jaballah and of the circumstances the threat of terrorism now presents, the conclusion to deny the application for protection is not patently unreasonable, in my opinion.
[51] Whether those circumstances are extraordinary in the sense intended by the Supreme Court of Canada in Suresh, sufficient to support a determination to deport Mr. Jaballah to torture is not a question to be determined in this decision, in my opinion, though it was argued otherwise for Mr. Jaballah. Insofar as that argument is based on the implications of s-s. 3 (3)(f) of IRPA I have earlier indicated that in light of the decision of the Court of Appeal in De Guzman a principle of international law acknowledged by a treaty to which Canada is a signatory, such as the prohibition against deportation to death or torture, may be relevant in interpretation of Canadian law, but it is not determinative of that interpretation unless it is specifically incorporated by legislation. The prohibition in this case is not expressly incorporated in IRPA or other legislation.
[52] In Suresh (at para. 78) the Supreme Court of Canada left open the possibility of deportation to torture as an exception to the statutory prohibition against refoulement where the refugee in that case was considered to constitute a danger to Canada's security. The Court indicated that extraordinary circumstances might permit such action, though in most cases that would be considered to infringe on s. 7 Charter rights. While the Court left open that possibility either as a consequence of the balancing process under s. 7 or under s.1 of the Charter, it did not reach a conclusion in that case. It is urged that the decision of the delegate in this case gives no indication which of those possible methods was followed here to reach the conclusion that the danger to Canada's security outweighs the risk to Mr. Jaballah if he be returned to Egypt. Further, it is urged that in keeping with the decision of the Supreme Court in R. v. Malmo-Levine, [2003] 3 S.C.R. 571, the balancing of social factors with fundamental rights recognized under s. 7 of the Charter ought to be done under s. 1, with the onus on the Ministers in this case to establish the basis for an exemption from infringement under s.7.
[53] I am not persuaded that the Minister's delegate is required to spell out his understanding of unresolved constitutional issues in balancing fundamental rights and the danger to national security, balancing that, in accord with Suresh, will be required where the decision is to deport one who faces a substantial risk of death or torture in an intended destination country. We must recall that Suresh concerned review of a deportation order, and the process leading to it.
The nature of the decision in question
[54] In this case the underlying thesis of arguments on behalf of Mr. Jaballah is that the decision as a result of balancing in this case is a decision to deport Mr. Jaballah to torture. That is not this case. The decision here in question concerns the determination that Mr. Jaballah's application for protection is denied. It is true that one qualification to be recognized as a person in need of protection is that the claimant, if removed to his country of nationality, would be personally subject to a danger of torture or a risk to his or her life or a risk of cruel and unusual treatment or punishment (IRPA, s.97) unless the application is refused inter alia because of the danger the applicant constitutes to the security of Canada (IRPA, s-s. 113(3)(d)(ii)). The determination that Mr. Jaballah's application for protection is refused is not a deportation order or a removal order. It is a determination to refuse an application that the applicant should be considered a person is need of protection.
[55] When a decision to deny the application for protection is made, as in this case, it is a step in the process of considering the reasonableness of the security certificate concerning Mr. Jaballah. If that certificate is found to be unreasonable it will be quashed. If the certificate is found to be reasonable, Mr. Jaballah will be inadmissible to Canada and the determination is a removal order that is not subject to appeal "and that is in force without the necessity of holding or continuing an examination or an admissibility hearing" (IRPA, s.81).
[56] If the decision on the security certificate constitutes a removal order, and Mr. Jaballah is unwilling to leave Canada voluntarily, as I understand the process under IRPA and the Regulations, the order may be enforced but it is not self executing. If it were deemed to be or were converted to a deportation order, other decisions, about a destination, a means of transport and travel arrangements would have to be made. Then, the circumstances of this case would parallel those in Suresh and the questions concerning the constitutionality of deportation to death or torture may then be raised and dealt with. They are important questions in my opinion but they need not be determined at this stage in these proceedings.
[57] In Re Charkaoui, 2005 FC 1670 [2005] F.C.J. No. 2038, Mr. Justice Noël, considering the circumstances of a person subject to a security certificate who raised constitutional issues about the process under IRPA while awaiting a PRRA decision, commented, in part (at paras. 32 and 34)
[32] ... We must remember that possibilities may arise other than return when a person both represents a danger and faces a risk of torture if returned. While there may be a risk of torture in a country, a person might nonetheless be returned because the country in question had negotiated a return protocol that included a satisfactory plan for supervision of detention. In such a case it would have to be decided whether there was a violation of the Canadian Charter...
...
[34] ... it is conceivable having regard to the decision of the Supreme Court in Suresh, supra, that there could be special treatment for persons named in a security certificate but who cannot be returned, given the risk of torture. Such treatment might or might not withstand constitutional scrutiny. It is not the role of this Court, in this case, to decide whether such treatment would comply with the Canadian Charter or with Canada's international commitments. At this stage of these proceedings that is a hypothetical question...Mr. Charkaoui is awaiting a PRRA and no effort to deport him to a country where there is a risk of torture has been made...
[58] In this case the decision to refuse the application for protection is not one to deport Mr. Jaballah to Egypt. It is not inconceivable that if it is decided to remove him it would be to another country. The Minister's delegate made reference to the possibility of a safe third country destination although no submission concerning such a country was before him. I agree with comments of counsel for Mr. Jaballah that the Minister has some responsibilities to consider a possible alternative to Egypt if deportation is to occur, responsibilities implicit in s. 241 of the regulations under IRPA which provides possible alternatives as a county of removal.
[59] Counsel for Mr. Jaballah urged that the Court should now determine the constitutional issues raised by the decision as though it were a decision to deport to death or torture. Since, in my opinion, the process under IRPA at this stage does not yet result in such a decision, any determination I might made about constitutional questions would be dicta. The Supreme Court has cautioned that constitutional and Charter issues should not be decided unless it is necessary to do so, and if then, only on a proper evidentiary basis. See Mahjoub v. Minister of Citizenship and Immigration et al. 2005 F.C. 156 per Dawson J. at paras. 64, 65.
[60] If the security certificate should be found to be reasonable in this case and if a decision is made to enforce that determination as a removal order by deporting Mr. Jaballah to Egypt, there will be a factual basis for determining whether deportation to death or torture can be effected in light of the Charter for a person found inadmissible to Canada on grounds of security, even if the person is not a protected person under s. 115 of IRPA. That would be an important constitutional question, a question which, in my understanding of the implications of Suresh, would warrant consideration by the courts of this country before any step is taken to enforce removal of Mr. Jaballah by deportation to Egypt
Conclusion
[61] Pursuant to s-s. 79 (2) of IRPA, for the reasons set out I find lawful the decision of the Minister's delegate, dated September 23, 2005 made pursuant to subpara. 113(d)(ii) of the Act, whereby the application by Mr. Jaballah for protection was denied.
[62] The proceedings with respect to the security certificate concerning Mr. Jaballah continue, with the opportunity for him to adduce evidence and for the hearing of argument concerning the reasonableness of the certificate in accord with a schedule set during a telephone conference with counsel for the parties, a schedule to be confirmed by separate order.
ORDER
IT IS ORDERED that the decision of the delegate of the Minister of Citizenship and Immigration dated September 23, 2005, denying Mr. Jaballah's application for protection, is found to be lawful under s-s. 79 (2) of IRPA.
"W. Andrew MacKay"
Background and summary record of proceedings in regard to security certificates concerning Mr. Jaballah.
I. Excerpt from Reasons for Order 2006 FC 115, dated 20060201, paragraphs 2, 3 and 4.
[2] Mr. Jaballah, a foreign national who is a citizen of Egypt, has been held in detention since August 14, 2001, when a security certificate was issued against him under s. 40.1 of the Immigration Act (1978), now continued in effect by s-s. 77(1) of the Act. Mr. Jaballah and his family had earlier arrived in Canada, in 1996, and then claimed Convention refugee status, a claim not determined when he was detained in 1999 under an earlier security certificate that was later quashed by Mr. Justice Cullen in November 1999 (see: Canada (Minister of Citizenship and Immigration) v. Jaballah, [1999] F.C.J. No. 1681 (QL)). He remained in Canada as a foreign national pending determination of his refugee claim. That claim was denied, but that decision was set aside on judicial review in October, 2000 and the refugee claim was still outstanding when he was the subject of a second security certificate of the Ministers, and he was detained, without a warrant, on August 14, 2001. Mr. Jaballah's refugee claim, after it was heard again, was denied in April 2003, but the claims of his wife and four of his children were allowed and they were declared to be Convention refugees.
[3] The second certificate, issued by the Minister of Citizenship and Immigration and the then Solicitor General of Canada, the latter now replaced by the Minister of Public Safety and Emergency Preparedness of Canada, set out their opinion that Mr. Jaballah is inadmissible to Canada on specified grounds of national security. He was detained, without warrant or order in accord with s-s. 82(2) of the Act, and the certificate was referred to this Court, and to me as a judge designated in accord with the Act, for determination whether the certificate is reasonable.
[4] That determination has been delayed longer than anyone might have contemplated. These proceedings I summarize very briefly.
1) In July 2002 Mr. Jaballah applied under IRPA to be found to be a person in need of protection and, in accord with the Act (s-s. 79(1)), the proceedings for consideration of the certificate were suspended.
2) In August 2002 an immigration department PRRA officer completed a risk assessment, which was released to Mr. Jaballah, indicating the officer's opinion that the respondent would be at risk of torture, death or cruel or unreasonable treatment if he were returned to Egypt. That determination was subsequently found by this Court not to constitute, by itself, the decision required of the Minister under the Act and Regulations concerning the application for protection made by Mr. Jaballah.
3) After repeated urging by the Court to counsel for the Minister of Citizenship and Immigration that a decision be made on the application for protection, all to no avail, this Court on a motion by Mr. Jaballah, heard in April 2003, found that in the circumstances failure to determine the application for protection constituted an abuse of process under IRPA. The Court then proceeded to consider the reasonableness of the Ministers' certificate, and that certificate was upheld as reasonable on May 23, 2003 (see Re Jaballah, [2003] 4 F.C. 345, [2003] F.C. J. No. 822, 2003 FCT 640).
4) The Ministers initiated an appeal of the decision insofar as it determined an abuse of process, and Mr. Jaballah initiated a cross-appeal and a separate appeal concerning the finding that the certificate was reasonable.
5) On November 20, 2003, this Court heard a motion for Mr. Jaballah that he be released from detention, in accord with s-s. 84(2) of the Act, after continuing in detention more than 120 days after the certificate had been found to be reasonable. That motion was denied (see See Jaballah v. Canada(Minister of Citizenship and Immigration), [2004] F.C. J. No. 420, 2004 FC 299).
6) On December 30, 2003, Mr. Jaballah was advised by the Minister of Citizenship and Immigration that his July 2002 application for protection was denied. The Court was advised of the result but not of the decision by letter received January 6, 2004. Mr. Jaballah sought judicial review of that decision of the Minister, an application not heard before the appeals were considered.
7) In July 2004, the Federal Court of Appeal determined the appeals by the Ministers and by Mr. Jaballah concerning the May 2003 decisions, respectively that there was abuse of process and that the Ministers' certificate was reasonable. The former determination was upheld as was this Court's remedy of the abuse, that is the August 2002 PRRA decision should be deemed to be that of the Minister of Citizenship and Immigration concerning the risk to Mr. Jaballah if he were to be returned to Egypt. Yet the Court was found to have acted without authority in its decision concerning the reasonableness of the certificate since that decision was taken without waiting for a Ministerial decision on the application for protection. The decision on the certificate was quashed and the matter was referred to this Court for reconsideration. The Court, with the undersigned as designated judge, then resumed reconsideration of the certificate pursuant to s-s. 79(2) of IRPA.
8) After hearing arguments in August 2004 and considering further written submissions of counsel, in March 2005 I found the Minister's decision concerning Mr. Jaballah's application for protection was not lawfully made. That decision was quashed and proceedings with respect to the certificate were again suspended, in accord with s-s. 80(2), to allow the Minister of Citizenship and Immigration to make a new decision on the application for protection.
9) By Order of July 7, 2005, I directed that in continuing proceedings
a) this Court's determination of May 23, 2003, that the PRRA assessment of August, 2002 continue to be deemed to be the determination of the Minister concerning the risk to Mr. Jaballah if he were now returned to Egypt;
b) the matters for reconsideration by the Minister, to be reported to Mr. Jaballah and to the Court in accordance with subparagraph 113(d)(ii) of IRPA and s-s. 172(2) of the Regulations, are the danger that Mr. Jaballah constitutes to the security of Canada if he remains in this country, and the determination whether, despite the risk to him if he now be returned to Egypt, his application for protection should be refused; and
c) the Minister's decision on the application for protection should be filed on or before September 26, 2005, as it subsequently was, after Mr. Jaballah had opportunity to comment on the record to be considered by the Minister or his delegate.
II. Further developments, since July 2005,
10) On July 11, 2005 Mr. Jaballah applied for habeas corpus and other relief to the Ontario Superior Court of Justice, an application stayed in expectation his application for release based on constitutional grounds, could be dealt with in this Court in reasonable time (see Jaballah v. Attorney General of Canada, Attorney General of Ontario et al. Court file M-77-05, 2005/08/22, Ont. S.C.J.). Thereafter an application was made to this Court on August 24, 2005 for an order for Mr. Jaballah's release from detention pending final determination of matters in this security certificate proceeding. The motion was heard during 5.5 days in September and 3 days in October 2005, and with further written submissions in December 2005. The application was dismissed by Order of this Court dated February 1, 2006 (see 2006 FC 115).
11) In proceedings relating to his application for release from detention in September 2005 Mr. Jaballah testified and was cross examined, a role as witness he had declined to assume in earlier stages of these proceedings prior to his most recent application for release from detention. That hearing continued with respect to the matter now dealt with in these reasons, i.e. whether the decision of the Minister's delegate, dated September 23, 2005, in regard to the application for protection was lawful. Submissions of counsel for the parties in relation to the latter decision, on the refusal of the application for protection, were made over 4 days in December 2005.
12) On February 7, 2006 when the Court resumed to hear, upon leave granted to Mr. Jaballah, further evidence with respect to the reasonableness of the certificate, it heard an oral motion by Mr. Jaballah, presented with notice, that this judge should recuse himself from further proceedings in relation to the certificate on the basis that certain findings included in 2006 FC 115 Reasons and Order, concerning release from detention, raised an apprehension of bias. That motion was dismissed for reasons set out in 2006 FC 180, filed February 10, 2006. I note here that the motion to recuse on behalf of Mr. Jaballah specifically excluded from its ambit, this Court's function in assessing the lawfulness of the decision of the Minister's delegate refusing the application for protection.
13) On March 16, 2006the Reasons and Order, for which this Appendix A is provided, set out the Court's determination that the decision of September 23, 2005 denying Mr. Jaballah's application for protection was lawfully made.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: DES-4-01
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND
IMMIGRATION & SOLICITOR GENERAL OF
CANADA -and- MAHMOUD JABALLAH
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 30, 2005
December 1, 2 and 7, 2005
AND ORDER: MacKay, D.J.
APPEARANCES:
Mr. Donald A. MacIntosh FOR THE APPLICANTS
Mr. Robert Batt
Ms. Melkia Visnick
Mr. David Tyndale
Ms. Barbara Jackman FOR THE RESPONDENT
Mr. John R. Norris FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada FOR THE APPLICANTS
Barbara Jackman FOR THE RESPONDENT
Barrister and Solicitor
Toronto, Ontario
John R. Norris FOR THE RESPONDENT
Barrister and Solicitor
Ruby & Edward
Toronto, Ontario