Digests

Moktari v. Canada (Minister of Citizenship and Immigration)

IMM-4922-97

Nadon J.

30/1/01

28 pp.

Judicial review of senior immigration officer's decision denying applicant right to leave Canada to country of choice--In 1990, applicant, citizen of Iran, landed in Canada as Convention refugee--Between 1992, 1994 convicted of criminal offences for which term of imprisonment of more than six months imposed--Reported for inquiry pursuant to Immigration Act, s. 27(1)--In May 1996 Minister's delegate issued opinions applicant constituted danger to public in Canada pursuant to ss. 70(5), 53(1)(d), after considering current reports from Immigration and Refugee Board Documentation Centre relating to prevailing conditions in Iran, submissions by applicant's solicitors, submissions by solicitors representing applicant in regard to criminal offence--Also had before him assessment of risk of removing applicant to Iran prepared by review officer--In September 1996 applicant found to be person described in s. 27(1)(d), ordered deported--In October 1996, Supervisor of Enforcement Unit of Citizenship and Immigration informing applicant's solicitors if applicant providing valid travel document allowing him to enter Iran or third country, would not make arrangements to remove him to Iran--Application for judicial review of danger opinions dismissed in April 1997--In October 1997 senior immigration officer informing applicant removal order now enforceable as result of dismissal of judicial review application, most recent criminal charges would be stayed if applicant removed from Canada, removal arrangements under way--Applicant filed application for leave, judicial review--Immigration Act, s. 48 providing removal order must be executed as soon as reasonably practicable--S. 52(1) providing person against whom deportation order made may be allowed to leave Canada voluntarily and to choose country to which wants to go--S. 52(2) providing person shall be removed to country from which came, country in which last permanently resided or country of birth--S. 52(3) providing if none of those countries willing to receive him, person or Minister may choose another country--S. 53(1) providing Convention refugee shall not be removed to country where life or freedom threatened on Convention grounds, except person found to constitute danger to public in Canada (s. 53(1)(d))--Non-citizens not having unqualified right to remain in Canada; as permanent residents subject to deportation order had violated essential condition under which permitted to remain in Canada, their removal not breach of fundamental justice: Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711--Application dismissed--(1) Although scope of review limited, removal decision reviewable--(2) Evidence not before decision maker should not be considered by Court in judicial review proceedings: Farhadi v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 315 (T.D.)--(3) Applicant given opportunity to choose country of destination in accordance with s. 52(1)--In May 1996 applicant notified Minister would be considering issuance of danger opinions--No evidence applicant made any attempt to secure travel documents in response to October 3 letter, clearly stating intention to remove applicant from Canada, and that all steps necessary to effect removal would be taken--From mid-October 1996 applicant knew or ought to have known removal would take place unless judicial review proceedings successful--By end of April 1997, applicant knew application for judicial review of Minister's opinions dismissed, and pursuant to s. 53(1)(d) could be deported to Iran--No evidence applicant attempted to find country prepared to accept him--Risk assessment conducted prior to issuance of danger opinions in May 1996--Removal decision, even one concerning Convention refugee, not always requiring separate risk assessment in respect of destination country: Bahrami v. Canada (Minister of Citizenship and Immigration) (1999), 168 F.T.R. 190 (F.C.T.D.)--In circumstances no duty on senior immigration officer to consider risk applicant might face if removed to Iran--(4) No evidence applicant's life in danger if removed to Iran--That came to Canada as refugee not sufficient to satisfy burden of proof to show substantial grounds for believing removal to Iran would likely cost applicant his life--Since not meeting burden of proof regarding risk would face if returned to Iran, no breach of Charter, s. 12 rights--Further, risk assessment conducted prior to issuance of Minister's opinion applicant danger to public in Canada--Challenge to that decision dismissed--Proceedings herein indirect attack on Minister's opinions--Applicant can no longer challenge these opinions--Applicant given full opportunity to make representations concerning return to Iran in connection with Minister's opinions under s. 53(1)(d)--Immigration Act, R.S.C., 1985, c. I-2, ss. 27(1) (as am. by S.C. 1992, c. 49, s. 16), 48, 52 (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 7; S.C. 1992, c. 49, s. 42), 53 (as am. by S.C. 1992, c. 49, s. 35; 1995, c. 15, s. 12) , 70(5) (as am. by S.C. 1995, c. 15, s. 13)--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 12.