IMM-3846-96
Jamshid Farhadi (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
IMM-566-97
Jamshid Farhadi (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Farhadiv. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Gibson J."Toronto, December 16, 1997; Ottawa, March 20, 1998.
Citizenship and Immigration — Exclusion and removal — Immigration inquiry process — As applicant landed in Canada under —backlog program—, no assessment of risk to him if returned to Iran — Subsequently found to constitute danger to public in Canada, ordered deported to Iran where fears torture — Danger opinion not assessing such risk, or providing insufficient attributes of natural, fundamental justice — Legislative scheme not requiring danger opinion to do more than determine danger to Canadian public — Removal decision not assessing risk — Canada's international obligations as signatory to Convention against Torture mandating risk assessment before removal — Informing interpretation of Charter — Procedural safeguards of danger opinion process may be inadequate to meet Charter requirements — Applicant entitled to risk assessment conducted in accordance with principles of natural, fundamental justice, rendered by competent authority — Question certified: whether risk assessment conducted in accordance with principles of natural justice, fundamental justice condition precedent to valid determination to remove individual, landed on basis of credible basis to Convention refugee claim; and if so, whether process used herein incorporating such assessment.
Constitutional law — Charter of Rights — Judicial review of decision to remove applicant to Iran where fears torture — Applicant landed under backlog program without examination of risk to him if returned to Iran — Neither opinion constituting danger to Canadian public nor removal decision involving risk assessment — Alleging removal without assessment of such risk violation of Charter, ss. 7, 12 rights — International human rights obligations informing interpretation of Charter — Canada signatory to international Convention prohibiting expulsion to state where —substantial grounds— for believing danger of torture — High evidentiary basis necessary to support Charter arguments — On material filed, no —substantial grounds— for believing applicant in danger of torture if returned to Iran — Determination of whether grounds for applicant's fear of torture must be made in fair, reasonable manner to honour Canada's international human rights obligations — Risk assessment, opportunity to assess fairness thereof, implicit in ss. 7, 12 — Applicant entitled to risk assessment in accordance with principles of natural, fundamental justice — Application allowed with respect to removal decision.
International law — Judicial review of decision to remove applicant to Iran where fears torture — Applicant landed under backlog program without examination of risk to him if returned to Iran — Neither opinion constituting danger to Canadian public nor removal decision involving risk assessment — Canada signatory to international Convention prohibiting expulsion to state where —substantial grounds— for believing danger of torture — Not implemented into relevant domestic law but informing Charter interpretation — Determination of whether grounds for applicant's fear must be made in fair, reasonable manner to honour Canada's international obligations — To support removal to Iran, risk assessment must be conducted in accordance with principles of natural justice, fundamental justice, rendered by competent authority.
Administrative law — Judicial review — Certiorari — Decision to remove applicant, refugee in respect of whom danger opinion issued, to Iran where torture feared — Filing affidavit evidence, not before original decision makers, regarding torture risk — Risk assessed at neither danger opinion nor removal decision stages of process — Question certified as to whether, in such circumstances, Court, on judicial review, may have regard to evidence not before decision makers.
These were applications for judicial review of decisions (1) that the applicant constituted a danger to the public in Canada; and (2) to remove the applicant to Iran. The applicant, an Iranian, was arrested, beaten and tortured for his labour union activity before fleeing to Canada where his Convention refugee claim was dealt with under the "backlog program". He was determined to have a credible basis for his claim, and was landed without further examination of his claim, or the risk that he would face if he returned to Iran. In 1996 he was convicted of conspiracy to traffic in a narcotic and sentenced to five years' imprisonment. The respondent's delegate, who was charged with deciding whether or not to issue a danger opinion, considered a summary entitled "Request for Minister's Opinion" wherein it was stated that there was reason to believe that should the applicant be returned to Iran he may face some form of persecution for his actions, the extent of which was unknown. The document concluded that removal action was warranted notwithstanding the possibilities of sanctions upon his return to Iran. The danger decision issued under Immigration Act , subparagraph 46.01(1)(e)(iv), and subsection 70(5). By virtue of subparagraph 46.01(1)(e)(iv) the applicant could not have his Convention refugee claim determined by the Immigration and Refugee Board, Convention Refugee Determination Division. By virtue of subsection 70(5), he had no recourse to the Appeal Division when the deportation order was later issued. The applicant was subsequently ordered deported without having had any opportunity to make written or oral representations regarding his fear of persecution if required to return to Iran.
Canada is a signatory to the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, article 3 of which prohibits the expulsion of a person to a state where there are substantial grounds for believing that he would be in danger of being subjected to torture. Although Canada has ratified the Convention, it has yet to be implemented into domestic law.
The applicant filed affidavit evidence in support of this application regarding the risk of torture he would face if he were to return to Iran, but that evidence was not before either the delegate who formulated the danger opinion or the immigration officer who made the removal decision.
The issues were: (1) whether the Court could consider affidavit evidence not before the decision maker; (2) whether the removal decision violated the applicant's Charter, sections 7 and 12 rights; (3) whether a risk assessment and determination, conducted in accordance with the principles of natural justice and fundamental justice, is a condition of a valid removal decision; and (4) if so, whether such a risk determination was conducted in respect of the applicant.
Held, the application in respect of the danger opinion should be dismissed; the application in respect of the removal decision should be allowed.
(1) New evidence is not admissible on judicial review, except where there is an issue of jurisdictional error. The issues herein pertained to the Charter and the adequacy of the procedural safeguards in any risk assessment process. Therefore this matter was decided without regard to the new evidence.
(2) Both international law and Canadian cases establish a high evidentiary basis necessary to support Charter arguments. On the material contained in the certified records there were no "substantial grounds" for believing that the applicant would be in danger of being subjected to torture. The applicant failed to meet the evidentiary requirements to support a Charter argument.
Further, a court conducting judicial review is not the proper forum to embark on a risk assessment and determination process.
(3) Because of the manner in which landing was granted and the danger decision issued, none of the typical avenues for risk determination and review were open to the applicant. It appeared that, on the whole of the applicant's dealing with the respondent's officials, the only assessment of risk faced upon return to Iran was that in the summary considered by the respondent's delegate who made the danger decision. The danger decision did not reach any final conclusion on the issue of risk to the applicant. It merely determined that, in the Minister's opinion, the applicant was a danger to the Canadian public. But the legislative scheme regarding danger opinions did not require it to do more. It was not a deportation decision, even less a decision to deport to Iran. Thus the respondent's delegate committed no reviewable error in issuing the danger opinion without deciding or concluding on the issue of risk, on the facts that were before the delegate at that time.
Clearly at international law, a determination of whether there are grounds for the applicant's fear of torture must be made in a fair and reasonable manner if Canada's international human rights obligations are to be respected. The Convention against Torture mandates a risk assessment, including a determination of the risk of torture, before removal may be effected. Although not implemented into domestic law, the Convention against Torture, as part of Canada's international human rights obligations, informs the interpretation of the Charter. 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. The danger opinion process did not assess the risk and if it did, it provided insufficient attributes of natural justice and fundamental justice, given the potential implications of a risk assessment decision adverse to the applicant. The removal decision process did not involve any risk assessment whatsoever.
The procedural safeguards applicable to a danger opinion matter may be inadequate to meet Charter requirements as the contents of Charter rights are informed by Canada's international obligations. The applicant was entitled to a risk assessment and determination, apart from the danger certification process that had already taken place, conducted in accordance with the principles of natural justice and fundamental justice and rendered by a competent authority.
The following questions were certified: (1) Where an individual has been landed in Canada on the basis of a "credible basis" to a Convention refugee claim, and faces removal without an assessment of the risk faced on removal in accordance with the principles of natural justice and fundamental justice, may a reviewing court have regard to evidence respecting such risk that was not before the federal board, commission or other tribunal that made the removal decision? and (2) Where an individual has been landed in Canada on the basis of a "credible basis" to a Convention refugee claim, is a risk assessment and determination conducted in accordance with the principles of natural justice and fundamental justice a condition precedent to a valid determination to remove the individual to that country? If so, on the facts herein, did the process by which the respondent formed the opinion that the applicant constituted a danger to the public in Canada incorporate such a risk assessment and determination?
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.
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, [1987] Can. T.S. No. 36.
Immigration Act, R.S.C., 1985, c. I-2, ss. 27(1)d) (as am. by S.C. 1992, c. 47, s. 78; c. 49, s. 16), 46.01(1)(e)(iv) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36; 1995, c. 15, s. 9), 52(1) (as am. by S.C. 1992, c. 49, s. 42), (2),(3), 70(5) (as am. by S.C. 1995, c. 15, s. 13), 83(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 19).
Immigration Regulations, 1978, SOR/78-172, ss. 2(1) (as am. by SOR/93-44, s. 1), 11.4 (as enacted idem, s. 10; SOR/93-412, s. 6).
cases judicially considered
applied:
Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; (1987), 78 A.R. 1; 38 D.L.R. (4th) 161; [1987] 3 W.W.R. 577; 51 Alta. L.R. (2d) 97; 87 CLLC 14,021; [1987] D.L.Q. 225; 74 N.R. 99; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; (1989), 59 D.L.R. (4th) 416; 26 C.C.E.L. 85; 89 CLLC 14,031; 40 C.R.R. 100; 93 N.R. 183; Arduengo v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 468 (T.D.); Sinnappu v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 791 (T.D.) (on issue of whether a court conducting judicial review is a proper forum to embark on a risk assessment); Suresh v. Canada, [1988] O.J. No. 296 (Gen. Div.) (QL); Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.); MacKay v. Manitoba, [1989] 2 S.C.R. 357; [1989] 6 W.W.R. 351; (1989), 61 Man. R. (2d) 270.
distinguished:
Sinnappu v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 791 (T.D.) (on issue of whether removal violated Canada's international human rights obligations).
considered:
Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696; (1993), 100 D.L.R. (4th) 151; 14 C.R.R. (2d) 146; 18 Imm. L.R. (2d) 165; 151 N.R. 69 (C.A.); Ismail Alan v. Switzerland, Communication No. 21/1995, U.N. Doc. Cat/C/16/D/21/1995 (1996); Kaveh Yaragh Tala v. Sweden, Communication No. 43/1996, U.N. Doc. CAT/C/17/D/43/1996; Tahir Hussain Khan v. Canada, Communication No. 15/1994, U.N. Doc. A/50/44 (1995); Kenbrent Holdings Ltd. et al. v. Atkey (1995), 94 F.T.R. 103 (F.C.T.D.); Sovereign Life Insurance Co. (The) v. Canada (Minister of Finance), T-3105-92, order dated 11/12/96; Kaberuka v. Canada (Minister of Employment and Immigration), [1995] 3 F.C. 252 (T.D.).
referred to:
Rahi v. Minister of Employment and Immigration, 90-A-1343, MacGuigan J.A., decision dated 28/5/90, not reported; Lemiecha et al. v. Minister of Employment and Immigration (1993), 72 F.T.R. 49; 24 Imm. L.R. (2d) 95 (F.C.T.D.); Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; (1990), 73 D.L.R. (4th) 686; 43 C.P.C. (2d) 165; 112 N.R. 362; Asafov v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 713 (T.D.) (QL); Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; (1985), 24 D.L.R. (4th) 536; [1986] 1 W.W.R. 481; 69 B.C.L.R. 145; 23 C.C.C. (3d) 289; 48 C.R. (3d) 289; 18 C.R.R. 30; 36 M.V.R. 240; 63 N.R. 266; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; (1992), 90 D.L.R. (4th) 289; 2 Admin. L.R. (2d) 125; 72 C.C.C. (3d) 214; 8 C.R.R. (2d) 234; 16 Imm. L.R. (2d) 1; 135 N.R. 161; Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1; Bhatti v. Canada (Minister of Citizenship and Immigration) (1996), 120 F.T.R. 123 (F.C.T.D.); Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.).
APPLICATIONS for judicial review of decisions (1) applicant constituting danger to public in Canada and (2) to remove the applicant to Iran. Application in respect of first decision dismissed; application in respect of second decision allowed.
counsel:
Lorne Waldman for applicant.
Kevin Lunney for respondent.
solicitors:
Waldman and Associates, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for orders rendered in English by
Gibson J.:
INTRODUCTION
These reasons arise out of applications for judicial review of two decisions involving the same parties. The first decision is a determination made on behalf of the respondent that, in the respondent's opinion, the applicant constitutes a danger to the public in Canada (the "danger opinion"). This decision is dated May 31, 1996 and was communicated to the applicant on or about July 9, 1996. The second decision directed the applicant to report for removal and constituted a decision to remove the applicant to Iran (the "removal decision"). This decision, made by an expulsions officer in the respondent's ministry, is dated January 30, 1997.
BACKGROUND
The applicant is a citizen of Iran born July 6, 1956. In 1985, he came under government scrutiny in Iran by reason of his labour union activity. He was twice arrested. On the first arrest, he was held for some four days and beaten daily. Upon his release, he was threatened with dire consequences unless he ceased his union activity. On the second arrest, he was held for two months and "brutally" tortured, both physically and mentally. He was charged with union related activities and released on bail subject to conditions. In 1986, while still on bail, the applicant fled Iran to Pakistan and thence to Canada where he claimed Convention refugee status. The applicant learned that, after his departure from Iran, his father had been taken into custody by reason of the applicant's flight and died as a result of his treatment in custody.
The applicant's Convention refugee claim was examined under the "backlog program". He was determined to have a credible basis to his claim. Without further examination of the claim, and, in particular, without examination in any formal way of the risk the applicant would face if he returned to Iran, the applicant was landed with effect from April 22, 1991.
On January 20, 1995, the applicant was convicted of conspiracy to traffic in a narcotic. He was sentenced to five years' imprisonment. He was made the subject of a report under paragraph 27(1)(d) of the Immigration Act1 (the Act) and directed to inquiry. On November 2, 1995, the applicant was served with notice that the respondent was considering whether or not to form the opinion that the applicant constituted a danger to the public in Canada. The applicant was invited to provide submissions and in fact filed submissions. Notwithstanding his submissions, the danger opinion issued. On July 9, 1996, following an inquiry, the applicant was ordered deported.
By decision dated September 16, 1996, the applicant was granted accelerated parole on the five- year sentence of incarceration that he was serving. He was released from custody on the 17th of October of the same year after serving one-third of his sentence. Since that time, except for a brief period when he was detained by immigration authorities, he has been at large in the community. He was released from immigration detention following a hearing at which, notwithstanding the danger opinion, he was not considered likely, in the opinion of an adjudicator, to pose a danger to the public.
No reasons were given for either of the decisions under review.
ISSUES
Despite the voluminous material before the Court, only two issues were argued before me. They can be summarized as follows:
1. Does the decision to remove the applicant to Iran violate his section 7 and section 12 rights under the Canadian Charter of Rights and Freedoms2 (the Charter) in that he will be subjected to torture upon return to Iran?
2. Was a risk assessment and determination in respect of the applicant, conducted in accordance with the principles of natural justice and fundamental justice, a condition of a valid removal decision to Iran? If so, was such a risk determination conducted in respect of the applicant?
ANALYSIS
(1) Charter Interpretation
In Slaight Communications Inc. v. Davidson,3 Chief Justice Dickson, writing for the majority, wrote at pages 1056 and 1057:
Given the dual function of s. 1 identified in Oakes, Canada's international human rights obligations should inform not only the interpretation of the content of the rights guaranteed by the Charter but also the interpretation of what can constitute pressing and substantial s. 1 objectives which may justify restrictions upon those rights.
Thus, I regard it as clear that "Canada's international human rights obligations" should inform the interpretation of the content of the rights guaranteed by sections 7 and 12 of the Charter.
(2) Canada's International Human Rights Obligations
Among Canada's international human rights obligations, the most relevant to the instant review applications is the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (the Convention against Torture).4 Canada is a signatory to the Convention against Torture and, although Canada has ratified it, it has yet to be implemented into domestic law that is applicable on the facts of this matter. Articles 1 and 3 provide:
Article 1
1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.
. . .
Article 3
1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
These provisions have been considered in several cases by the United Nations Committee against Torture, (the Committee) in examining the conduct of states, including Canada, when deporting persons to countries in the face of a credible allegation of a well-founded risk of torture. Three of the more relevant cases before the Committee are briefly summarized.
In Ismail Alan v. Switzerland,5 Mr. Alan, a Turkish citizen, claimed to have been tortured because of his affiliation with a political organization. His request for asylum in Switzerland was denied. Mr. Alan was then at risk of being removed to Turkey. The issue before the Committee was whether or not the forced return of Mr. Alan to Turkey would violate Switzerland's obligations under article 3 of the Convention against Torture. The Committee stated that specific grounds must exist which indicate that the individual concerned would personally be at risk. The Committee then reviewed the evidence before it, including Mr. Alan's ethnic background, alleged political affiliation and history of detention and internal exile. The Committee noted the absence of an internal flight alternative for Mr. Alan in Turkey. The Committee concluded Mr. Alan was at risk of being subjected to torture if returned to Turkey and that therefore, return would constitute a violation of article 3 of the Convention against Torture. Accordingly, the Committee held that Switzerland had an obligation to refrain from returning Mr. Alan to Turkey.
A similar approach was taken in Kaveh Yaragh Tala v. Sweden,6 where Mr. Tala, an Iranian citizen, alleged he would suffer torture upon return to Iran. Mr. Tala had been tortured in Iran because of his political activities. He requested asylum in Sweden. His claim was denied because of contradictions in his statements. After exhausting all available avenues of appeal in Sweden, Mr. Tala filed his complaint before the Committee. He submitted that a real risk of torture existed upon his return to Iran, a country where gross and wide-spread human rights violations continued unabated. Medical evidence adduced in respect of Mr. Tala was consistent with his allegations that he had previously been tortured.
The issue before the Committee was whether or not, under article 3 of the Convention against Torture, there were substantial grounds for believing that Mr. Tala would be at risk of torture on return to Iran. The Committee held that a pattern of human rights vio-lations was not sufficient grounds upon which to conclude that the individual would be personally at risk of torture. The Committee stated:
In the instant case, the Committee considers that the author's political affiliation with the People's Mujahedin Organization and activities, his history of detention and torture, should be taken into account when determining whether he would be in danger of being subjected to torture upon his return. The State party has pointed to contradictions and inconsistencies in the author's story, but the Committee considers that complete accuracy is seldom to be expected by victims of torture and that the inconsistencies as exist in the author's presentation of the facts do not raise doubts about the general veracity of his claims, especially since it has been demonstrated that the author suffers from Post Traumatic Stress Disorder. Further, the Committee has noted from the medical evidence that the scars on the author's thighs could only have been caused by a burn and that this burn could only have been inflicted intentionally by another person than the author himself.
In the result, the Committee considered that substantial grounds existed for believing that Mr. Tala would be in danger of being subjected to torture if returned to Iran. Accordingly, it concluded that Sweden had an obligation to refrain from forcibly returning Mr. Tala to Iran or to any other country where he ran a real risk of being expelled or returned to Iran.
Finally, in Tahir Hussain Khan v. Canada,7 the same conclusion was reached by the Committee. In that case, Mr. Khan claimed refugee status in Canada, alleging persecution in Pakistan by reason of his political opinion. The Immigration and Refugee Board denied the claim and judicial review of that decision was subsequently denied by this Court. Once again, after reviewing the evidence, the Committee concluded that substantial grounds existed for believing that Mr. Khan would be in danger of being subjected to torture. Consequently, it held that his expulsion or return to Pakistan by Canada would constitute a violation of article 3 of the Convention against Torture. Thus, Canada was deemed to have an obligation to refrain from forcibly returning Mr. Khan to Pakistan.
(3) Issue 1
Applicant's counsel submitted that removing the applicant to Iran where he will face torture and no due process would violate both sections 7 and 12 of the Charter.
In Nguyen v. Canada (Minister of Employment and Immigration),8 Marceau J.A. wrote:
It would be my opinion, however, that the Minister would act in direct violation of the Charter if he purported to execute a deportation order by forcing the individual concerned back to a country where, on the evidence, torture and possibly death will be inflicted. It would be, it seems to me, a participation in a cruel and unusual treatment within the meaning of section 12 of the Charter or, at the very least, an outrage to public standards of decency, in violation of the principles of fundamental justice under section 7 of the Charter.
The foregoing, while clearly obiter, is nonetheless a compelling statement from the Federal Court of Appeal.
In assessing the evidentiary basis necessary to support the Charter arguments in this case, I consider it appropriate to be guided by the international jurisprudence cited above as well as Canadian jurisprudence. In Nguyen, Marceau J.A. referred to evidence illustrating that torture "will be" inflicted. At international law, the citations above from the Committee suggest a standard of "substantial grounds for believing that he would be in danger of being subjected to torture". Both, in my view, establish a high evidentiary threshold. Indeed, a high threshold is consistent with Supreme Court jurisprudence on the necessary factual foundation to support a Charter claim. In MacKay v. Manitoba ,9 the Court stated:
Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues . . . Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel.
. . .
A factual foundation is of fundamental importance on this appeal. It is not the purpose of the legislation which is said to infringe the Charter but its effects. If the deleterious effects are not established there can be no Charter violation and no case has been made out. Thus the absence of a factual base is not just a technicality that could be overlooked, but rather it is a flaw that is fatal to the appellants' position. [Underlining added.]
In support of this application, the applicant filed affidavit evidence regarding the risk of torture he would face if he were to return to Iran. That evidence was not before either the delegate of the respondent who formulated the danger opinion or the immigration officer who made the removal decision.
It is trite law that a reviewing court is bound by the record filed before the federal board, commission or other tribunal the decision of which is under appeal.10 Reviewing court jurisprudence has followed this rule, noting that if evidence not before the initial tribunal is introduced on judicial review, the review application would effectively be transformed into an appeal or a trial de novo.11 While I am satisfied that a jurisdictional exception exists to the rule that new evidence is not admissible on judicial review,12 I am also satisfied that an issue as to jurisdictional error of the tribunals does not arise here. The issues before me pertain to the Charter and the adequacy of the procedural safeguards in any risk assessment process conducted in this case.
For these reasons then, I will decide this matter, without regard to the new evidence filed before me.
On the material contained in the certified records before me, there are no "substantial grounds for believing that [the applicant] would be in danger of being subjected to torture". Simply put, the applicant has failed to meet the evidentiary requirements to support a Charter argument.
Further, even if I were prepared to have regard to the new evidence, I am satisfied that a court conducting a judicial review is not the proper forum to embark on a risk assessment and determination process. I agree with holdings of my colleagues Cullen J. in Arduengo,13 and in particular, McGillis J. in Sinnappu v. Canada (Minister of Citizenship and Immigration),14 on this point. In Sinnappu at pages 820-821, McGillis J. wrote in response to an argument, allegedly based on dicta of Marceau J.A., in Nguyen15 that it fell to the Court to determine the state of country conditions in Sri Lanka:
. . . I see nothing whatsoever in the reasons of Marceau J.A. to indicate that the Court must determine the state of country conditions at any point in its analysis of the issues pertaining to the application of section 7 of the Charter. Indeed, I am of the opinion that it is simply not the function of a judge, in judicial review proceedings of this nature, to determine the state of country conditions. I am further of the opinion that it would be highly undesirable for a judge to engage in such an exercise, particularly given that the legislative scheme requires immigration officers, who have specialized training and expertise in relation to country conditions, to make such decisions. [Emphasis added.]
I am satisfied that the same can be said here.
Thus, it follows that the applicant's argument that his Charter rights will be violated because he will be tortured if he is returned to Iran, must be dismissed. This Court cannot adjudicate on Charter issues in an evidentiary vacuum.
Having reached the foregoing conclusion, I return briefly to the quotation from Nguyen16 that appears earlier in these reasons and that I repeat here for ease of reference:
It would be my opinion, however, that the Minister would act in direct violation of the Charter if he purported to execute a deportation order by forcing the individual concerned back to a country where, on the evidence, torture and possibly death will be inflicted. It would be, it seems to me, a participation in a cruel and unusual treatment within the meaning of section 12 of the Charter, or, at the very least, an outrage to public standards of decency, in violation of the principles of fundamental justice under section 7 of the Charter.
On the facts on this matter, Mr. Justice Marceau's opinion would appear to reflect the proposition that the respondent herein would be acting in "direct violation of the Charter if [s]he purported to execute a deportation order by forcing [the applicant] . . . back to a country where, on the evidence, torture and possibly death will be inflicted." He described such an action as "participation in a cruel and unusual treatment within the meaning of section 12 of the Charter, or, at the very least, an outrage to public standards of decency, in violation of the principles of fundamental justice under section 7 of the Charter." Could the same not be said where the respondent orders deportation of the applicant to Iran without assessing, in a fair and meaningful way, evidence of torture and possible death that he might face? I think the same could be said. To paraphrase Mr. Justice Lane of the Ontario Court of Justice (General Division)17 who was writing in a different but parallel context, in these very narrow circumstances, it is my view that to offer the applicant a forum to review his constitutional rights and then to remove him without opportunity for a resolution of the constitutionality of his removal would be an affront to Canadian ideas of justice.
The foregoing concerns express what I perceive to be the linkage between the two issues argued before me and briefly described earlier in these reasons.
(4) Issue 2
I now turn to an analysis of the adequacy of the risk determination process, if indeed there can be said to have been one, in the series of events that culminated in the decision to deport the applicant to Iran and whether, if there was such a process, it was sufficient to comply with the requirements of the principles of natural justice and fundamental justice in all the circumstances of this matter.
(a) General principles and legislative overview
The principles of fundamental justice are found in the basic tenets of our legal system and include procedural fairness and principles of natural justice. They are informed by a variety of sources, including Canada's international human rights obligations.18 Principles of fundamental justice and natural justice are variable standards. Their content will vary with the nature of the case, applicable statutory provisions and the nature of the matter to be decided.19 Where, for example, Charter rights are at issue, a higher degree of protection may be required.20 These general principles inform the analysis that follows.
Typically, refugee claimants are subjected to a risk determination through the Convention refugee determination process. Negative Convention refugee determinations are, of course, subject to judicial review on leave of this Court. Generally speaking, unsuccessful refugee claimants are deemed to apply for landing as members of the post-determination refugee claimants in Canada class (the PDRCC class).21 Consideration under the PDRCC class only occurs upon exhaustion of all other remedies in respect of a negative Convention refugee determination. As part of the PDRCC process, claimants are subjected to a further risk determination. Once again, with leave of the Court, negative PDRCC determinations are subject to judicial review. There may also be some inquiry into risk made by the Appeal Division of the Immigration and Refugee Board (the Appeal Division) on an appeal from a deportation order. Once again, with leave of the Court, any decision of the Appeal Division is subject to judicial review.
In the instant case, none of these avenues for risk determination and review were open to the applicant. As indicated earlier, the applicant was granted landing under the "credible basis" backlog program which involved no risk assessment. Since he was granted landing, he had no recourse to the Convention Refugee Determination Division of the Immigration and Refugee Board or the PDRCC process. The danger opinion issued against him under both subparagraph 46.01(1)(e )(iv) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36; 1995, c. 15, s. 9] and subsection 70(5) [as am. by S.C. 1995, c. 15, s. 13] of the Act. By virtue of subparagraph 46.01(1)(e)(iv), the applicant could not, at a later date, make a fresh Convention refugee claim due to his criminal conviction and the issuance of the danger opinion against him. By virtue of the danger opinion issued against the applicant under subsection 70(5), he was left with no recourse to the Appeal Division when the deportation order was later issued against him.
(b) The danger opinion
The issues before the respondent's delegate under subparagraph 46.01(1)(e)(iv) and subsection 70(5) of the Act, were clear: whether or not, in the respondent's opinion, the applicant constitutes a danger to the public in Canada. This was the sole issue before the delegate. In making the danger to the public determination, the delegate was authorized to consider, although he or she was not required in law to do so, material other than that relating strictly to danger to the public in Canada, including material that speaks to a risk assessment. The applicant was given an opportunity to provide written submissions, including representations going to humanitarian and compassionate grounds, that would militate against issuance of a danger opinion. As indicated earlier in these reasons, the applicant availed himself of this opportu-nity. But his submissions, as they related to risk on return to Iran, were far from being as extensive or well-documented as were the submissions put before this Court in evidence I have concluded I cannot consider.
With the material that was before the respondent's delegate who was charged with deciding whether or not to issue a danger opinion was the following summary entitled "Request For Minister's Opinion"A 70(5) and 46.01(1)(e )(iv)":
DANGER PROFILE"convicted 20 January 1995 of conspiracy to traffic in narcotics contrary to section 4(1) nca [Narcotic Control Act] sentenced to 5 years imprisonment
REMOVAL RISK CONSIDERATIONS
A submission has been received from Mr. Farhadi indicating a fear of return to Iran based on his participation in a trade Union. He states he was a member of a four person union board and he assisted in organizing a strike action. Mr. Farhadi believes he will be executed by the authorities if returned to Iran. Mr. Farhadi has not provided the name of the company he was working for or the name of the union he was involved with. The actions taken against Mr. Farhadi happened in 1986. There is no indication that the Government, 10 years later, is still looking for him and would persecute him for his past actions.
The Human Rights abuses in Iran are well documented, the Country reports on Human Rights Practices for 1995 indicates the Government reinforces its power by arrests, summary trials, and executions, as well as various other forms of intimidation. The Government continues to be a major abuser of human rights. There was no evidence of improvement in 1995.
The Country reports on Human Rights practices for 1994 indicates that the Government does not tolerate any strike deemed to be at odds with its economic and labour policies. In 1993, the parliament passed a law which prohibits strikes by government workers. There is no indication of what actions will be taken against persons who violate these laws. The Amnesty International report for 1995 states there were continuing reports of political arrests, torture, unfair trials and summary executions. Among the thousands of political prisoners, held during the year were prisoners of conscience, some were detained without charge or trial, others were serving long prison sentences imposed after unfair trials. There is reason to believe that should Mr. Farhadi be returned to Iran he may face some form of persecution for his actions, the extent of which is unknown.
REVIEWING OFFICER'S COMMENTS AND RECOMMENDATION
Mr. Farhadi was granted landing at the age of 35, he is now 39 years old. Mr. Farhadi denies any responsibility or involvement in any criminal activities. He has registered an appeal against his conviction and states he is innocent. He is considered to have been directly linked to a sophisticated, international drug ring. The organization was responsible for importing heroin, opium and cocaine at the multi-kilogram level with a conservative street value of one hundred thousand dollars. His motivation for these activities was purely greed, his complete denial of any responsibility leads me to believe that the risk of recidivism in this case is high.
He has been a landed immigrant of Canada for only four years and is now serving a federal term of imprisonment for five years. The length of sentence imposed by the courts for a first time offender is a clear indication of his level of involvement in these activities. The judges sentencing remarks indicate "without sophisticated organizations like this one, cocaine and other such narcotics would not be brought into Canada. Cocaine, of course, is a highly addictive type of drug that creates real harm and social evil in our communities'.
The humanitarian and compassionate considerations presented have been reviewed and weighed against all other factors in this case. It is my opinion that removal action is warranted notwithstanding the possibilities of sanctions upon his return to Iran.
I concur with the request that the Minister form an opinion that this person constitutes a danger to the public pursuant to section 70(5) and 46.01(1)(e)(iv) of the Immigration Act. [Emphasis added.]
The summary was submitted by a reviewing officer, concurred in, without comment, by a senior analyst, Case Review, Case Management Branch and another unidentified individual, and endorsed, also without comment, by the respondent's delegate. The applicant was provided with no hearing, was not provided a copy of the summary before the danger opinion was issued and, in the result, was provided no opportunity to respond to it. No reasons in support of the danger opinion were provided.
While the tribunal record on the danger opinion review indicates that substantial other material was also placed before the Minister's delegate, including the applicant's submissions and some "country conditions documentation", I can only assume that the foregoing summary was prepared for some purpose. I assume that purpose to be to aid the respondent's delegate in arriving at a decision on the sole issue before her or him; that is, whether or not to issue a danger opinion. I am conscious of the guidance from the Court of Appeal in Williams v. Canada (Minister of Citizenship and Immigration )22 to the effect that, in the absence of evidence to the contrary, I must assume that the respondent's delegate had regard to all of the material before her or him. I accept that guidance. That being said, I cannot refrain from speculating that not all such material would carry equal weight in the mind of the respondent's delegate. The foregoing summary would likely be of greater weight than some or all of the other material. Why else would such a summary be prepared? Regardless, I emphasize that the foregoing speculation on my part is not central to my decision herein.
I regard the summary as of particular significance on the facts of this matter since it appears to be the only document, other than the applicant's own submissions, that purported to review risk to the applicant upon return to Iran. Further it is clear, on the evidence before me, that, on the whole of the applicant's dealings with the respondent's ministry officials, the only assessment of risk faced upon return to Iran by the applicant was that just quoted and commented upon.
Counsel for the applicant argued that the foregoing risk assessment process was inadequate to comply with Canada's obligations under the Convention against Torture. The weakness in the process, it was submitted by counsel, is that in the absence of reasons, there is no basis on which to determine the respondent's delegate's conclusion on risk to the applicant if required to return to Iran where the applicant fears he will be tortured. The process, it was urged, is unfair because it results in removal being effected without any conclusion as to risk, let alone such a conclusion arrived at in a fair and reasonable manner. By contrast, counsel for the respondent submitted that there was an assessment of risk, that some risk was acknowledged, that that risk was weighed against the evidence of danger to the public with a resultant recommendation against the applicant, and that weighing or balancing of competing concerns was accepted by the respondent's delegate who rendered the danger opinion decision. The respondent further argued that the procedure fully complied with natural justice and fundamental justice requirements, given the nature of the danger opinion process.
I conclude that counsel for the applicant is correct in his submission that there is no decision or final conclusion on the issue of risk to the applicant in the decision of the respondent's delegate. The decision of the delegate is merely to the effect that, in the Minister's opinion, the applicant is a danger to the public in Canada; nothing more. Nor, in my view of the legislative scheme regarding danger opinions, need there be more.
The danger opinion is not a deportation decision, even less a decision to deport to Iran. In Williams,23 Mr. Justice Strayer wrote:
The Motions Judge describes the consequences of the Minister's opinion as follows [at page 448]:
The individual will be uprooted from family and returned to a country where he has not lived for over 20 years, and from which he came when only 9 years old.
In other words, she treats the Minister's opinion as a deportation order. With respect it seems to me that such a characterization of the effects of that opinion greatly exaggerates its importance and thus distorts any analysis of the requirements of fundamental justice in the circumstances.
. . .
The effect then of the Minister forming and giving notification of her opinion under subsection 70(5) is to substitute a right of judicial review for a right of appeal of the deportation order, a substitution of the exercise by the Minister of her discretion to relieve from lawful deportation for the exercise of a similar discretion of the Appeal Division under paragraph 70(1)(b), and the substitution of a right to seek a judicial stay in lieu of a statutory stay. I therefore find it difficult to characterize the Minister's opinion as the causa causans of the respondent's deporta-tion. It is not even possible to say that the Minister's opinion is a causa sine qua non because it cannot be assumed that in its absence the Appeal Division would have found some error of fact not discernible through judicial review or would have exercised under paragraph (b) a discretion more favourable to the respondent than that exercised by the Minister in considering humanitarian and compassionate grounds.
Mr. Justice Strayer was, of course, speaking only of a danger opinion issued under subsection 70(5) of the Act. Here, the danger opinion was issued under both subsection 70(5) and subparagraph 46.01(1)(e) (iv). The effect of a danger opinion under the latter provision is very different. It precludes the applicant herein who claims to be a Convention refugee, and who was determined to have a credible basis for such claim, from being eligible to have his claim to Convention refugee status determined by the Convention Refugee Determination Division of the Immigration and Refugee Board. While this is a very important effect for a person in the position of the applicant, like an opinion under subsection 70(5), it is not a deportation order, let alone an order for removal to the state where the applicant fears persecution.
Thus, I conclude, the respondent's delegate committed no reviewable error in issuing the danger opinion under review, without deciding or concluding on the issue of risk, on the facts that were before the delegate at that time. No requirements of natural justice or fundamental justice can be said to have been breached by the limited process then engaged in to examine the risk the applicant would face if removed from Canada to Iran and to weigh that risk against the danger the applicant would pose to the Canadian public.
(c) The removal decision
Subsection 52(1) [as am. by S.C. 1992, c. 49, s. 42] of the Act provides for voluntary departure of a person against whom a deportation order is made. It clearly is not applicable on the facts of this matter. Subsections 52(2) and (3) of the Act read as follows:
52. . . .
(2) Where a person is not allowed to leave Canada voluntarily and to select the country for which he wishes to depart pursuant to subsection (1), that person shall, subject to subsection (3), be removed from Canada to
(a) the country from which that person came to Canada;
(b) the country in which that person last permanently resided before he came to Canada;
(c) the country of which that person is a national or citizen; or
(d) the country of that person's birth.
(3) Where a person is to be removed from Canada and no country referred to in subsection (2) is willing to receive him, the person, with the approval of the Minister, or the Minister, may select any other country that is willing to receive that person within a reasonable time as the country to which that person shall be removed.
All alternatives for removal provided for in subsection 52(2) in respect of the applicant would appear to amount to Iran. While the applicant was never informed that Iran would not receive him and that therefore subsection 52(3) would apply, equally he was not informed on behalf of the respondent that Iran would receive him and that the respondent was proceeding to make removal arrangements to Iran. It was only when the decision to remove to Iran had been taken and arrangements finalized that the applicant was advised of the decision. This, despite the fact that the respondent was fully aware that the applicant fears persecution if required to return to Iran, had been found to have a credible basis to a Convention refugee claim and had had no opportunity to make written or oral representations regarding his fear before the Convention Refugee Determination Division or any other decision maker whose mandate it was to make a determination regarding the risk the applicant faces.
The consequences of removal for the presuma-bly limited number of persons similarly situated to the applicant are recognized in Canada's international human rights obligations. On its face, article 3 of the Convention against Torture, voluntarily entered into by Canada, enjoins this country's removal of an individual to a state where there are substantial grounds for believing he or she would be at risk of torture. Clearly, then, at international law, whether or not specific procedures have been enacted into domestic law that are applicable in the class of cases in which the applicant finds himself, a determination of whether or not there are grounds for the applicant's fear of torture must be made in a fair and reasonable manner if Canada's international human rights obligations are to be respected. The same can also be said in respect of the rights under the Charter to which the applicant has become entitled, and which are at stake, if they are to be considered as anything more than a mere mockery. In Reference Re Public Service Employee Relations Act (Alta.),24 Chief Justice Dickson stated:
Furthermore, Canada is a party to a number of international human rights Conventions which contain provisions similar or identical to those in the Charter. Canada has thus obliged itself internationally to ensure within its borders the protection of certain fundamental rights and freedoms which are also contained in the Charter. The general principles of constitutional interpretation require that these international obligations be a relevant and persuasive factor in Charter interpretation. As this Court stated in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344, interpretation of the Charter must be "aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter 's protection". The content of Canada's international human rights obligations is, in my view, an important indicia of the meaning of "the full benefit of the Charter 's protection". I believe that the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.
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.
In oral argument before me, counsel for the respondent did not strongly contest the proposition that removal, in the face of a credible allegation of risk of torture, requires that a risk assessment be conducted and that a risk determination follow. I am satisfied that the danger opinion process simply did not amount to a risk assessment and determination and that, if it did, it provided insufficient attributes of natural justice and fundamental justice, given the potential implications of a risk assessment decision adverse to the applicant. Further, there was absolutely no evidence before me that the removal decision process involved any risk assessment and determination whatsoever.
Previous decisions of this Court have, at least impliedly, reflected upon the importance of a risk assessment prior to deportation to a state where the deportee fears persecution.25 In Sinnappu v. Canada (Minister of Citizenship and Immigration),26 McGillis J. considered, inter alia, an argument as to whether removal of unsuccessful Convention refugee claimants and PDRCC class members to ongoing civil war in Sri Lanka violated Canada's international human rights obligations under the Convention against Torture. Madam Justice McGillis wrote at page 833:
I cannot accept that submission, as I am of the opinion that the legislative criteria for assessing risk outlined in subsection 2(1) of the Regulations are consistent with our international obligations in the Convention. Furthermore, in the PDRCC class guidelines, officers conducting risk assessments are specifically instructed to consider the relevant portions of the Convention.
. . .
In my opinion, the legislative scheme for post-claim review respects and complies with Canada's international human rights obligations.
No such legislative or regulatory scheme complying with Canada's international human rights obligations can be said to exist and to be applicable on the facts of this matter. This is particularly the case where Charter review if foreclosed as I have determined it to be, not by law, but rather by the way this applicant's arrival in Canada, acquisition of status in Canada and loss of any right to stay in Canada has unfolded.
In Sinnappu, there was evidence before McGillis J., that the element of risk was not properly evaluated in the PDRCC class application that was under consideration before her. She therefore enjoined the Minister from removing the applicants before her until a satisfactory risk assessment was done. She wrote at page 828:
Despite my conclusion that the applicants have failed to establish a breach of their section 7 Charter rights, it must be recalled that the evidence of the respondent's witness Mr. Troutet indicated that the element of risk was not properly evaluated in their application for membership in the PDRCC class. Since the applicants instituted the present proceedings rather than taking steps to challenge the PDRCC class decision, and did not make an application for admission on humanitarian or compassionate grounds until a much later point in time, the question of risk has not yet been properly assessed. In the interests of justice, the Minister should therefore not remove the applicants to Sri Lanka until her officials have made a decision on the outstanding application for humanitarian or compassionate relief, which is based at least in part on the risks allegedly facing the applicants on their return to [their] Sri Lanka. [Emphasis added.]
To the same effect, see also Arduengo v. Canada (Minister of Citizenship and Immigration).27 I have some concern as to whether the procedural safeguards applicable to a "humanitarian and compassionate grounds" application, or indeed a "danger opinion" matter, are adequate to meet Charter requirements, as the contents of Charter rights are informed by Canada's international human rights obligations, on the facts of this matter. The implications of depor-tation to Iran are, for the applicant, potentially extreme.28
SUMMARY
In summary then, I conclude the applicant is entitled to a risk assessment and determination apart from the danger certification process that has already taken place. Such an assessment, to support a decision to remove the applicant to Iran, would have to be conducted in accordance with the principles of natural justice and fundamental justice and rendered by a competent authority.
I make no finding that the risk assessment process must necessarily involve an oral hearing. Indeed, on this latter point, counsel for the respondent relied upon Kaberuka v. Canada (Minister of Employment and Immigration),29 for the proposition that if there were no credibility issue in the risk assessment and determination, that is to say, there were no possibility the factual basis for the applicant's fear would be disbelieved, an oral hearing would not be required. I agree with that submission.
Equally clear from the decision in Kaberuka, however, is that where the credibility of an applicant is put at issue, an oral hearing would be necessary to the conduct of a fair risk assessment, having regard to the nature of the interests at stake and the effect of the removals procedure upon the individual potentially subject to removal. Mr. Justice Heald, in Kaberuka, reviewed the procedural protection given by an immigration officer to an applicant who alleged a fear of persecution in Kenya, where he had been recognized as a Convention refugee based on a fear of persecution in Rwanda. The applicant was given the right to counsel and the right to make written submissions. He was not, however, given the right to an oral hearing or found to be entitled to reasons. Mr. Justice Heald reviewed the evidence and submissions provided to the immigration officer, and concluded [at page 275], in light of Singh et al. v. Minister of Employment and Immigration:30
Given this, [the submissions and evidence], the SIO's conclusion that the applicant failed to identify a personal risk "directed solely at him" must have been based in part on an adverse assessment of the applicant's credibility. I arrive at this conclusion on the facts before me in light of the supporting documentary evidence. In these circumstances an oral hearing and a fuller opportunity to know the case to meet would normally be required . [Emphasis added.]
CONCLUSION
In the result, the judicial review application in respect of the danger opinion will be dismissed. The judicial review application in respect of the removal decision will be allowed, the decision quashed and the matter will be referred back to the respondent for redetermination following a risk assessment and determination regarding removal to Iran in accordance with these reasons. In his originating notice of motion regarding the removal decision, the applicant also sought an order enjoining the respondent from moving him to Iran. The latter relief was granted on an interim basis. In light of the fact that the removal decision will be quashed, I adopt the position that no injunction is required. None will be granted.
CERTIFICATION
At the close of the hearing of these applications for judicial review, I undertook to circulate draft reasons and to provide an opportunity for counsel to submit representations on certification of a question or questions. Draft reasons were circulated and I proposed for consideration by counsel two questions in the following form:
(1) Where an individual has been landed in Canada on the basis that he or she has a "credible basis" to a Convention refugee claim against a particular country, and faces removal to that country without the risk that he or she faces on removal having been assessed in a manner that respects the principles of natural justice and fundamental justice, may a court that is conducting a judicial review of the removal decision affecting the individual have regard to evidence respecting such risk that was not before the federal board, commission or other tribunal that made the removal decision?
(2) Where an individual has been landed in Canada on the basis that he or she has a "credible basis" to a Convention refugee claim against a particular country, is a risk assessment and determination conducted in accordance with the principles of natural justice and fundamental justice a condition precedent to a valid determination to remove the individual to that country? If so, on the facts of this matter, did the process by which the respondent formed the opinion that the applicant constitutes a danger to the public in Canada constitute or incorporate such a risk assessment and determination?
Counsel for the applicant agreed to certification of the second question in the form proposed and recommended certification of a modification of the first question so that it would read somewhat as follows:
(1) Where an individual has been landed in Canada and is a person who has been denied access to the refugee determination procedure as a result of "Ministerial certification", and that person faces removal to a country against which he or she claims to have a fear of persecution for a Convention reason, if the risk that he or she faces has not otherwise been assessed in a manner that respects the principles of natural justice and fundamental justice, may a court that is conducting a judicial review of the removal decision affecting the individual have regard to evidence respecting such fear that was not before the federal board, commission or other tribunal that made the removal decision?
Counsel for the respondent recommended certification of the second proposed question and against certification of any form of the first question as, in his submission, "it is trite law that a reviewing court is bound by the record filed before the federal board, commission or other tribunal the decision of which is under appeal".
Both questions will be certified in the form originally proposed.
The modification of the first question as proposed by counsel for the applicant would extend the scope of the question beyond the ambit of the issues under review on the facts of this matter and would thus, effectively, convert the certification process to a reference. I am satisfied that to extend the question as proposed would be inconsistent with the objectives of subsection 83(1) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 19] of the Act.
While my conclusion, on the facts of this matter, accords with the position of counsel for the respondent that this Court is restricted on an application for judicial review to consideration of the record that was before the federal board, commission or other tribunal, the decision of which is under review, I am not satisfied that the law is entirely settled in this regard where Charter interests are at issue.
In submitting the proposed questions for review by counsel, I expressed some concern that the second question was not a matter of "general importance" because of the limited number of persons that are likely to find themselves similarly situated to the applicant in this matter. I am reassured by representations from counsel for the respondent that the second question can be considered to be of "general impor-tance".
1 R.S.C., 1985, c. I-2 [as am. by S.C. 1992, c. 47, s. 78; c. 49, s. 16].
2 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].
3 [1989] 1 S.C.R. 1038. See also: Reference Re Public Service Employee Relations Act (Alta), infra, note 24.
4 [1987] Can. T.S. No. 36.
5 Communication No. 21/1995, U.N. Doc. CAT/C/16/D/21/1995 (1996).
6 Communication No. 43/1996, U.N. Doc. CAT/C/17/D/43/1996.
7 Communication No. 15/1994, U.N. Doc. A/50/44 (1995), at p. 46.
8 [1993] 1 F.C. 696 (C.A.), at pp. 708-709.
9 [1989] 2 S.C.R. 357, at pp. 361-362 and 366. See also Danson v. Ontario (Attorney General), [1990] 2 S.C.R 1086, following MacKay.
10 Rahi v. Minister of Employment and Immigration (28 May 1990), 90-A-1343 (F.C.A.), per MacGuigan J.A.
11 In Arduengo v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 468 (T.D.), at p. 482, Cullen J., on a judicial review of a removal decision, adopted the dicta in Asafov v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 713 (T.D.) (QL), per Nadon J., and stated:
. . . the proper evidentiary basis to proceed on is, nevertheless, the record of what was before the tribunal i.e., the IEO [immigration expulsion officer]. If this Court were to hear additional evidence that was not before the IEO, that would have the effect of transforming the judicial review process into that of an appeal. Therefore, not only are the above affidavits submitted on behalf of the applicants inadmissible, but so too, is the affidavit of Janice Rodgers concerning country conditions in Chile, submitted on behalf of the respondent, inadmissible.
See also: Lemiecha et al. v. Minister of Employment and Immigration (1993), 72 F.T.R 49 (F.C.T.D.).
12 In Kenbrent Holdings Ltd. et al. v. Atkey (1995), 94 F.T.R. 103 (F.C.T.D.), at p. 106, I wrote:
Affidavit evidence was filed with the court both on behalf of the applicants and the respondent. . . . Counsel for the parties acknowledged that much of it was new evidence relating to issues that were not argued before the adjudicator or, presumably from the face of his reasons, considered by him. Generally speaking, it is the nature of judicial review to determine whether or not the decision of the board, commission or other tribunal that is under review was open to it on the evidence that was before it. Thus, new evidence is irrelevant to the judicial review. I am satisfied that an exception to this principle exists where the issue in question is one of the jurisdiction of the federal board, commission or other tribunal the decision of which is under review. [Citations omitted and emphasis added.]
See also: The Sovereign Life Insurance Co. v. Canada (Minister of Finance) (Order dated 11 December 1996), T-3105-92 (F.C.T.D.) where, without reasons, two affidavits going to the question of jurisdictional error were added to a statutory appeal case notwithstanding that, in their context, they constituted evidence that was not before the statutory decision maker.
13 Supra, note 11.
14 [1997] 2 F.C. 791 (T.D.).
15 Supra, note 8.
16 Supra, note 8.
17 Suresh v. Canada, [1998] O.J. No. 296 (Gen. Div.) (QL).
18 ;Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486.
19 ;Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711.
20 ;Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177.
21 See: Immigration Regulations, 1978, SOR/78-172, ss. 2(1) [as am. by SOR/93-44, s. 1] and 11.4 [as enacted idem, s. 10; SOR/93-412, s. 6].
22 [1997] 2 F.C. 646 (C.A.).
23 Supra, note 22, at pp. 659-660 and 663.
24 [1987] 1 S.C.R. 313, at p. 349.
25 See, for example, Bhatti v. Canada (Minister of Citizenship and Immigration) (1996), 120 F.T.R. 123 (F.C.T.D.).
26 Supra, note 14.
27 Supra, note 11.
28 See, for example, Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.) and Williams, supra, note 22, at p. 678.
29 [1995] 3 F.C. 252 (T.D.).
30 Supra, note 20.