Digests

Almrei v. Canada (Minister of Citizenship and Immigration)

IMM-8537-03

2005 FC 355, Blanchard J.

11/3/05

56 pp.

Judicial review of decision by Minister's delegate applicant not at risk if returned to Syria and, in alternative, poses such danger to Canadian security may be sent back under Immigration and Refugee Protection Act (IRPA), s. 115(2)(b) --Applicant, Syrian national, arrived in Canada with false United Arab Emirates passport, claimed refugee status--Claim granted by CRDD--Ministers signed security certificate under s. 40.1 of former Immigration Act--Opinion based on Security Intelligence Report (SIR)--Canadian Security Intelligence Service (CSIS) of belief applicant falls within inadmissible class--Belief will engage in terrorism, member of Usama bin Laden network--Applicant in detention since October 19, 2001--Designated Judge Tremblay-Lamer found certificate reasonable--Applicant notified Minister seeking opinion applicant security danger, clearing way for his removal--At inquiry, applicant found inadmissible for terrorist activities, deportation ordered--Notified Minister's delegate decided to refoule him to Syria--Case referred back to Minister for reconsideration after judicial review-- Minister's delegate later determined applicant not at risk of torture if returned to Syria or, in alternative, removal to torture justified because he is danger to Canadian security--Removal date chosen but exact date not revealed for security reasons-- Court stayed removal pending this application--Minister moved under IRPA, s. 87 for non-disclosure of secret information considered by delegate--Court read secret affidavit at in camera hearing--Non-disclosure application granted--Second in camera hearing conducted at which Judge questioned CSIS confidential affidavit deponent, determined confidential information, only information before delegate not in tribunal record, consisted only of narrative portion of original SIR, not appendices to SIR--Court received further submissions on new information, very recent Federal Court of Appeal, House of Lords, New Zealand Supreme Court case law--In making impugned decision, delegate did not have before her secret appendices--Delegate guided by Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, acknowledged home state's human rights record, refugee's personal risk had to be considered in application of test in Suresh--While concluding torture common practice in Syria, evidence of applicant's personal risk less conclusive-- Concluded applicant not at substantial risk if returned-- Further concluded applicant posed substantial danger to security of Canada--Found applicant squarely within exceptional circumstances contemplated by S.C.C. in which danger to Canada outweighed risk to individual--Delegate's decisions result of fact-driven inquiries, so set aside only if patently unreasonable--Detailed review of delegate's reasons necessary as case turning on facts, delegate's particular decision--As for applicant's suggestion at increased risk because linked to terrorist organization, delegate stated evidence was that Syria's participation in war against terrorism is illusory, its treatment of terrorism suspects unclear--Opinion letter from Amnesty International applicant at grave risk of detention, torture if sent back, expressing concern about removals to Syria since Canadian citizen Maher Arar deported by U.S.A. to Syria where alleged torture leading to public inquiry in Canada--Reference to U.S. State Department country report on Syria, documents provided by three professors (names of two of them withheld for security reasons) concluding applicant at serious risk of torture if returned--Professors not, however, qualified as experts able to give opinion evidence--While worthy of less probative weight, delegate should have expressly dealt with this evidence in reasons, indicated weight, if any, given it--While not in itself sufficient to quash decision, delegate also failed to consider Amnesty International letter, which pointed to different conclusion from that arrived at by delegate--Risk assessment in letter supported by detailed analysis of independently sourced evidence--It was fact specific and, if believed, of significant probative value--Decision maker's mere statement totality of evidence considered not always sufficient: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (F.C.T.D.)--Delegate had duty to explain why evidence in Amnesty International letter rejected--Court could only conclude delegate overlooked this important evidence, thereby committing reviewable error--Delegate's decision based on erroneous findings of fact, made in perverse manner--In Suresh, S.C.C. held refugee not to be returned to torture absent evidence of serious threat to national security--S.C.C. left for future case determination of "ambit of an exceptional discretion to deport to torture, if any"--Determination would require balancing real possibility of adverse effect on Canada if individual allowed to remain against possible injustice to individual if deported--Delegate found applicant direct, exceptional threat to Canada--Based conclusion on findings applicant linked to Al-Qaida, organization having publicly identified Canada as target; applicant not just passive supporter but furnished travel documents that could allow Al- Qaida operatives to move internationally--Review of evidence of danger considered in delegate's reasons-- Delegate satisfied applicant having links to bin Laden network, applicant's involvement with fraudulent travel documents constituting direct, serious threat to Canada's security--Applicant arguing more required than that person be inadmissible on security grounds and that here no evidence of "something more" than mere association with bin Laden network--Suggesting delegate's decision based on discriminatory assumption that because, as Muslim teenager, he participated in jihad against Afghanistan, now represents danger to Canada's security--Also arguing delegate erred in law in failing to review secret evidence on which security risk based and to weigh same against torture risk--Delegate's reasons cited reasons of Tremblay-Lamer J. in Almrei (Re) (2001), 19 Imm. L.R. (3d) 297 (F.C.T.D.), for finding security certificate reasonable and found no reason to differ from conclusion applicant posing danger to security of Canada-- But Tremblay-Lamer J. concluded only that certificate reasonable--Neither SIR nor decision of Tremblay-Lamer J. directed primarily at assessing nature, extent of national security risk posed by applicant--Judge's decision evidence reasonable grounds existed to believe certain facts but not that those facts do exist--Therefore, not open to delegate to rely on SIR, ensuing security certificate, decision of Tremblay-Lamer J. for conclusion applicant danger to Canada--In Suresh, S.C.C. clearly held "danger to the security of Canada" means more than that person is described in Immigration Act, s. 19(1)--Since delegate not having before her confidential appendices to SIR, conclusion not based on independent assessment of report's underlying secret evidence--Delegate unable to properly assess degree to which applicant poses threat to national security--While delegate did have memo prepared by Director of Security review, could not adopt conclusions in memo without seeing secret evidence on which conclusions based--Director of Security not decision maker --Appears delegate based findings re: applicant's links to bin Laden network on information not before her--Much of what she relied on was based on secret evidence she did not consider--Not open to delegate to substitute beliefs of Service, recommendations of Director, opinions of designated Judge for her own--Delegate's decision made without regard to evidence--Not able to properly balance competing interests at final stage of analysis--Delegate's decision patently unreasonable, had to be set aside--Constitutional issues raised by applicant not dealt with in absence of proper evidentiary record--Following teaching in Suresh should guide Minister in balancing danger to Canadian security against injustice to individual if deported: (1) while Act leaves open possibility of deportation to torture, Minister should decline to deport refugee where evidence of substantial risk of torture; (2) while ambit of exceptional discretion to deport to torture remains undefined, S.C.C. predicted outcome of balance process will rarely be struck in favour of expulsion to torture; (3) deportation to torture might be justified under Charter, s. 7 balancing process or Charter, s. 1 in exceptional circumstances such as natural disaster, war, epidemic--Minister must establish such special circumstances before deporting to torture--No doubt S.C.C. envisaged high threshold before Canada can constitutionally deport to torture--Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 80(1), 84(2), 87, 115--Immigration Act, R.S.C., 1985, c. I-2, ss. 19 (as am. by S.C. 1992, c. 49, s. 11), 40.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4; 1992, c. 49, s. 31)--Immigration and Refugee Protection Regulations, SOR/2002-227, s. 327-- 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], ss. 1, 7.