[2001] 3 F.C. 629
IMM-1618-00
2001 FCT 487
Hung Pong Man (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Man v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Rouleau J.—Vancouver, March 30; Ottawa, May 16, 2001.
Citizenship and Immigration — Exclusion and Removal — Removal of permanent residents — Judicial review of immigration officer’s decision to remove applicant to China — Applicant became part of Refugee Backlog Program as person who had not had inquiry opened, but who had made known intention to make refugee claim — Later was landed under independent category — Subsequently convicted of criminal offences, ordered deported, found to be danger to public — Risk assessment, determination condition precedent to valid removal order — Ministerial Opinion Report not referring to removal risk considerations — Minister not addressing risk in issuing danger opinion — Process whereby danger opinion issued herein not risk assessment, determination — In interests of justice, Minister should not remove applicant until risk assessment made, even though applicant not alleging risk if returned to China until eve of deportation.
This was an application for judicial review of a senior immigration officer’s decision to remove the applicant to China. The applicant had entered Canada from the People’s Republic of China in 1988 as an undocumented arrival. A direction for inquiry was signed, but no inquiry was ever held. A refugee claim could only be made at an inquiry, and as a result the applicant made no refugee claim. The applicant was landed under the Refugee Backlog as a person in respect of whom an inquiry has not been opened, but who made known his intention to make a refugee claim prior to January 1, 1989. In 1991 applicant was landed under the independent category. In 1994, he was convicted of criminal offences and eventually ordered deported. A Minister’s opinion that the applicant constituted a danger to the public was issued in 1995. The applicant was convicted of further offences in 1998 and sentenced to 38 months’ in prison. After the applicant served this sentence, the Minister attempted to execute the deportation order, but a stay was granted. The applicant submitted that he faces significant risk of being tortured or executed by the Chinese government authorities. The Minister contested having any duty to conduct a risk assessment in that the applicant did not allege that he would face any risk if returned to China until the eve of his removal, despite having had numerous opportunities to do so in the six years since he was first ordered deported.
The issues were: (1) whether the immigration officer erred in not performing a formal risk assessment; and (2) whether the process whereby the danger opinion was issued constituted such an assessment.
Held, the application should be allowed.
(1) A risk assessment and determination conducted in accordance with the principles of fundamental justice is a condition precedent to a valid determination to remove an individual from Canada.
(2) Although the process by which the Minister formed the opinion that the applicant constitutes a danger to the public in Canada can constitute the prerequisite risk assessment and determination, the process herein did not meet this requirement. The Ministerial Opinion Report that formed the basis of the Minister’s danger opinion did not refer to any removal risk considerations and the Minister did not address the issue of risk in issuing the danger opinion.
Although the applicant did not allege that he would face any risk if returned to China until the eve of his deportation, and did not address this failure in his written statements, in the interests of justice, the Minister should not remove the applicant to China until a risk assessment and determination is made.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
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. 7, 12.
Immigration Act, R.S.C., 1985, c. I-2, ss. 27(1)(d) (as am. by S.C. 1992, c. 47, s. 78), 32(2) (as am. by S.C. 1992, c. 49, s. 21), 70(5) (as am. by S.C. 1995, c. 15, s. 13), 114(2) (as am. by S.C. 1992, c. 49, s. 102).
CASES JUDICIALLY CONSIDERED
APPLIED:
Farhadi v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 315 (1998), 52 C.R.R. (2d) 51; 144 F.T.R. 76 (T.D.); revd (2000), 6 Imm. L.R. (3d) 80; 257 N.R. 158 (F.C.A.); Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592 (2000), 183 D.L.R. (4th) 629; 18 Admin. L.R. (3d) 159; 5 Imm. L.R. (3d) 1; 252 N.R. 1 (C.A.); leave to appeal to S.C.C. granted, [2000] 1 S.C.R. xx.
DISTINGUISHED:
Jeyarajah v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1835 (T.D.) (QL); affd (1999), 236 N.R. 175 (F.C.A.); leave to appeal to S.C.C. dismissed, [1999] S.C.C.A. No. 109.
CONSIDERED:
Saini v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 325 (1998), 150 F.T.R. 148 (T.D.).
REFERRED TO:
R. v. Man, [1993] B.C.J. No. 2044 (C.A.) (QL).
APPLICATION for judicial review of an immigration officer’s decision to remove the applicant to China, on the ground that there had been no formal assessment and determination of the risk that he would face if returned to China. Application allowed.
APPEARANCES:
Darryl W. Larson for applicant.
Mark J. Sheardown for respondent.
SOLICITORS OF RECORD:
Larson Boulton Sohn Stockholder, Vancouver, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
[1] Rouleau J.: This is an application for judicial review of a decision of Cheryl Shapka, Senior Immigration Officer (hereinafter the immigration officer) dated March 23, 2000 and communicated on March 24, 2000, whereby she made the decision to remove Hung Pong Man (hereinafter the applicant) to China.
[2] The applicant is a citizen of the People’s Republic of China. He arrived in Canada on September 9, 1988 as an undocumented arrival at Vancouver International Airport.
[3] Upon entry, the applicant stated that he had never been convicted of a criminal offence or been abused by the police, the military or any other group in China because of his beliefs or actions, and that he was not a refugee and was not afraid for his life in China.
[4] A direction for inquiry was signed on September 9, 1988. However, no inquiry was ever held. A detention review hearing was held on September 12, 1988. The case presenting officer’s notes indicate that the applicant did wish to make a refugee claim at the inquiry. However, under the statutory framework prior to the introduction of Bill C-55, a refugee claim could only be made at an inquiry and, as a result, the applicant made no refugee claim.
[5] The applicant became part of the refugee backlog as a “Group 4” claimant. Group 4 refers to those persons who are in Canada who have not had an inquiry opened, but who made known their intention to make a refugee claim before January 1, 1989. The applicant was interviewed to determine whether there were any humanitarian or compassionate grounds to process him for landing in Canada. This constituted a request under subsection 114(2) of the Act [Immigration Act, R.S.C., 1985, c. I-2 (as am. by S.C. 1992, c. 49, s. 102)].
[6] On June 18, 1991, the applicant was landed under the independent category, ND2 and therefore, with the full knowledge of the applicant, no further action was taken on his claim for refugee status.
[7] In May 1992, the applicant was charged and convicted of two counts of counterfeiting. However, on October 3, 1993, the B.C. Court of Appeal [[1993] B.C.J. No. 2044 (C.A.) (QL)] overturned these convictions.
[8] On February 12, 1993, the applicant was charged with possession of a narcotic (heroine) for the purpose of trafficking. On February 16, 1994, the applicant was convicted and sentenced to a term of imprisonment of four years.
[9] The applicant was the subject of a section 27 report under the Act. The applicant was directed to an inquiry to determine if he was a person described at subparagraphs 27(1)(d)(i) and (ii) (now paragraph 27(1)(d)) of the Act.
[10] On November 17, 1994, the applicant was found to be a person described in subparagraph 27(1)(d)(i) (now paragraph 27(1)(d) [as am. by S.C. 1992, c. 47, s. 78]) of the Act and was ordered deported pursuant to subsection 32(2) [as am. by S.C. 1992, c. 49, s. 21] of the Act.
[11] On November 7, 1995, a Minister’s opinion that the applicant constituted a danger to the public in Canada was issued pursuant to subsection 70(5) [as am. by S.C. 1995, c. 15, s. 13] of the Act. According to the respondent, the applicant’s representative did provide submissions regarding the danger opinion. These submissions made no comments that related to any risk that the applicant could face should he be returned to China.
[12] On February 23, 1998, the applicant was convicted of possession of narcotics (cocaine) for the purpose of trafficking. He was sentenced to 38 months in prison.
[13] In March 2000, the respondent attempted to execute the deportation order after the applicant completed his term of imprisonment. However, a stay was granted on March 31, 2000.
[14] The questions before me are whether the respondent erred in not performing a risk assessment prior to the applicant’s removal and whether the process by which the danger opinion was issued in the case at bar can be considered as a risk assessment and determination.
[15] The applicant submits that by reasons of his drug convictions in Canada as well as the erroneous mention of convictions of uttering counterfeit money on the request for Chinese travel document for removal form, he faces significant risk of being tortured or executed by Chinese government authorities.
[16] The applicant argues that this Court has previously held that there is a constitutionally relevant deficiency in the removal process if the applicant can establish that he faces a risk of harm if deported, and such harm would be an affront to Canadian standards of decency.
[17] Accordingly, the applicant submits that he is legally entitled to a risk assessment that complies with the requirements of sections 7 and 12 of the Charter [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]].
[18] The applicant further submits that there is no evidence to establish that the danger opinion and removal order processes involved any degree of risk assessment and determination. The absence of any reasons in the danger opinion itself further emphasizes this position.
[19] The applicant submits that if the danger opinion process is found to have amounted to a risk assessment and determination, it did not provide sufficient attributes of natural or fundamental justice, and did not meet the requirements of sections 7 and 12 given the potential and very serious implications of a risk assessment decision adverse to the applicant.
[20] The materials provided to the Minister for consideration did not contain a similar document that was discussed in the matter of Farhadi v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 315(T.D.) which reviewed the applicant’s fear of persecution, human rights record, country report and set out the reviewing officer’s rationale. There were no documents on which an examination of country conditions in China could have been undertaken, nor was there any discussion of his fear of return, his attempts at rehabilitation or the impact removal might have on him and his family.
[21] The applicant further submits that the danger opinion was issued almost five years ago and therefore should not be accepted as an adequate risk assessment as there is evidence that the risk of harm to him has increased.
[22] The respondent concedes that it has not conducted any formal assessment of the risks that the applicant would face should he be returned to China. However, the applicant made no allegation of risk upon his return to China until the eve of his removal, despite having numerous opportunities to do so in the almost six years since he was first ordered deported. In such circumstances, the respondent is under no duty to conduct a risk assessment and therefore the immigration officer did not err.
[23] The respondent submits that this is a case in which the applicant has raised the issue of risk upon return simply in an attempt to avoid the execution of his removal order. In such circumstances, the Minister is under no duty to conduct a risk assessment prior to removal. At some point, there must be finality in the system.
[24] The respondent submits that the danger opinion process constituted the required risk assessment process. Within this process, the applicant had the opportunity to make submissions regarding the risk he faced upon his return. However, he did not allege any such risk. Therefore, the ministerial opinion report did not refer to any removal risk considerations. The Minister cannot be faulted for having failed to address the issue of risk in issuing the danger opinion when there was no allegation of risk before her.
[25] The respondent contends that this Court has held that persons who have failed to allege risk upon removal at earlier appropriate junctures cannot rely upon a failure to conduct an assessment.
[26] With regard to section 12 of the Charter, the respondent submits that the Supreme Court of Canada has stated that the deportation of a permanent resident, who has violated an essential condition of his permission to remain in Canada, cannot be said to outrage standards of common decency.
[27] The respondent also submits that there can be no violation of section 12 where the acts alleged to be cruel and unusual punishment are committed by a foreign state.
[28] The respondent further submits that no Charter violations have been established as there is no evidence that the applicant faced any risk and there is no indication that the Chinese authorities persecute individuals who have been convicted of and served sentences for drug offences committed outside of China.
[29] Moreover, a judicial review is not the proper forum to embark on a risk assessment and determination.
[30] The applicant seeks an order declaring the decision to remove him without conducting an adequate risk assessment in compliance with the rules of natural justice, fundamental justice and sections 7 and 12 of the Charter void, invalid and unlawful; and setting aside the decision to remove the applicant and referring the matter back for reconsideration after completion of a risk assessment in accordance with sections 7 and 12 of the Charter, and the principles of natural justice.
[31] In the context of the present judicial review, it is neither necessary nor desirable to examine whether or not the applicant will likely be subjected to torture or death should he be returned to China or examine whether or not the removal would be in violation of sections 7 and 12 of the Charter because of a possible risk of harm.
[32] What is necessary to examine is whether or not the immigration officer, in the case at bar, erred in not performing a formal risk assessment and determination and whether or not the process whereby the danger opinion was issued constitutes such an assessment.
[33] As the respondent has conceded in its further memorandum of argument, a risk assessment and determination is a condition precedent to a valid determination to remove an individual from Canada.
[34] In the matter of Farhadi v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 315 (T.D.); revd by (2000), 6 Imm. L.R. (3d) 80 (F.C.A.), leave to appeal to S.C.C. requested [[2000] S.C.C.A. No. 251 (QL)], Gibson J. wrote the following at paragraph 45:
The Convention against Torture, once again I emphasize, voluntarily entered into by Canada, mandates a risk assessment, including a determination on the risk of torture, before removal may be effected. Although not implemented into domestic law applicable in the circumstances of this matter, the Convention against Torture, as part of Canada’s international human rights obligations, informs the interpretation of the Charter. I am satisfied that a risk assessment, and an opportunity to test the fairness of that assessment, as well as the result, against the standards of sections 7 and 12 of the Charter, are implicit in those provisions of domestic law.
[35] The Court of Appeal confirmed this finding at paragraph 3:
With respect to the second question, we would say that for the reasons outlined by this Court in Suresh, a risk assessment and determination conducted in accordance with the principles of fundamental justice is a condition precedent to a valid determination to remove an individual from this country.
[36] However, Gibson J. in Saini v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 325 (T.D.) also wrote the following at paragraph 12 to explain his finding in the matter of Farhadi, supra:
Counsel for the applicant relied extensively on Farhadi for the proposition that a risk assessment had to be conducted and evaluated before the destination decision could be made against this applicant. Farhadi does not, in my view, stand for the proposition that a risk assessment and determination is always required before a destination decision flowing from a valid deportation order can be made involving a removal to a country in which persecution is feared. The ruling in Farhadi pertained, rather, to unique circumstances in which the applicant therein had made out a credible allegation that he would confront torture upon removal to Iran, had a “credible basis” refugee claim as against Iran and was landed in Canada. On those facts, I found that a risk assessment and determination was necessary, and that the danger opinion did not incorporate such an assessment and determination.
[37] The Court of Appeal in Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592 leave to appeal to S.C.C. granted [2000] 1 S.C.R. xx, at paragraph 73 found the following:
I acknowledge there are substantive differences and similarities between the extradition and immigration processes for removing persons from Canada. However, the above cases make clear that the Supreme Court accepts that a statute may not expressly require a balancing of state versus private interests. In extradition law, the test for constitutionality turns on whether the Minister of Justice exercises his or her discretion in accordance with the principles of fundamental justice. The same applies when the Minister of Citizenship and Immigration renders her decision to deport suspected terrorists. Thus, in cases where the right to security of a person is engaged by the application of a statutory provision, such as paragraph 53(1)(b) of the Immigration Act, it is section 7 of the Charter and the principles of fundamental justice that dictate the Minister must assess the risk of torture and, if necessary, balance competing interests. Furthermore, the principles of administrative law also dictate that a decision maker, in the exercise of his or her discretion, must weigh all relevant factors even if they are not prescribed by statute. Therefore, it is irrelevant that the impugned legislation fails to make express provision for a balancing of interests.
[38] Despite Gibson J.’s caveat, in light of the foregoing, I am of the view that the Court has held that there is an obligation to perform a risk assessment and determination. In the case at bar, no formal risk assessment and determination was made.
[39] Although the respondent is correct in stating that the process by which the Minister formed the opinion that the applicant constitutes a danger to the public in Canada can constitute the prerequisite risk assessment and determination (see Farhadi, supra), I am not satisfied that the process in the case at bar can be considered to have met the forementioned requirement.
[40] Again, as was conceded by the respondent in its further memorandum of argument, the ministerial opinion report that formed the basis of the Minister’s danger opinion did not refer to any removal risk considerations and the Minister did not address the issue of risk in issuing the danger opinion. Accordingly, the process whereby the danger opinion was issued cannot be considered as a risk assessment and determination.
[41] The respondent takes the position that the Minister cannot be faulted for having failed to address the issue of risk in issuing the danger opinion when the applicant made no allegation of risk before her. The respondent directs us to various jurisprudence, including Jeyarajah v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1835 (T.D.) (QL); affd (1999), 236 N.R. 175 (F.C.A.), leave to appeal to S.C.C. dismissed, [1999] S.C.C.A. No. 109, in support of its position.
[42] In my opinion, this jurisprudence is not useful or can easily be distinguished given the fact that these cases were decided prior to the matter of Farhadi, supra, wherein the Court of Appeal confirmed that a risk assessment is a prerequisite to a removal.
[43] From the material filed by the parties it does appear that the applicant, although he was invited to do so, failed to make known any risk upon his return until the eve of his deportation. The applicant has not addressed this failure in his written submissions. That said, in the interests of justice, I am of the opinion that the Minister should not remove the applicant to China until a risk assessment and determination be made.
[44] In light of the foregoing, this application is granted.
[45] It was suggested by counsel for the respondent that a serious question for certification should be entertained dealing with risk assessment prior to removal. I am satisfied that this issue has already been determined and no question need be submitted.