Date: 19980924
Docket: IMM-4250-97
IMM-4251-97
BETWEEN:
OMID BAYANI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
[Delivered from the Bench at Calgary, Alberta
on Tuesday, September 15, 1998, as edited]
ROTHSTEIN J.:
[1] In this judicial review of danger opinions issued under paragraph 53 (1) (d) and ss. 70 (5) of the Immigration Act, R.S.C. 1985, c.I-21, the applicant makes three arguments.
[2] The first argument is that the Ministerial Opinion Report and the Report for Minister's Opinion contain incorrect information and mischaracterize evidence and should have been provided to the applicant for response. The applicant does not say the information in the reports was not derived from material he was given.
[3] The only argument is that the reports contain incorrect information and mischaracterize evidence. There is no need to go into detail. Having heard counsel's argument and having considered the reports, suffice it to say I am not persuaded the reports contain incorrect information or mischaracterize evidence.
[4] Then the applicant says that the Minister's decision was perverse in that it failed to properly weigh humanitarian and compassionate considerations against the danger information. The applicant's argument here is that the Minster could not possibly have determined that the danger information outweighed the humanitarian and compassionate considerations. The applicant is a Convention refugee and his ties are in Canada not Iran. This information was before the Minister. So was the information as to the applicant having committed five armed robberies and demonstrating violent behaviour while in jail. It is not obvious to me that it was perverse for the Minister to conclude that the danger information outweighed humanitarian and compassionate considerations.
[5] Finally, the applicant says the Minister's opinion was rendered without affording the applicant an oral hearing contrary to s. 2 (e) of the Canadian Bill of Rights, R.S.C. 1970, App. III2. The applicant says that where credibility issues are at stake, as in this case, an oral hearing is mandatory.
[6] The applicant says that rights under s. 2 (e) are broader than those under s. 7 of the Canadian Charter of Rights and Freedoms3, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11. The applicant says that a danger opinion under paragraph 53 (1) (d) deprives him of the right not to be returned to the country where his life and freedom are threatened and that this constitutes elimination of a right protected under s. 2 (e) of theBill of Rights if not under s. 7 of the Charter. The applicant relies on s. 2 (e) of the Bill of Rights to avoid the response that proceedings under paragraph 53 (1) (d) are only with respect to the issuance of a danger opinion, do not automatically result in deportation to the country from which the Convention refugee originally fled, and do not engage the protection of s.7 of the Charter.
[7] I need not decide whether broader interests are protected under s. 2 (e) than under s. 7. In Williams v. Canada, [1997] 2 F.C. 646, Strayer, J. A. finds, in paragraph 44, that even if the interests protected by s. 2 (e) of the Bill of Rights are broader than those protected by s. 7 of the Charter, the requirements of fundamental justice under s. 2 (e) are no broader than those under s. 7. It is therefore relevant to consider the jurisprudence under s. 7 of the Charter as to the requirements of fundamental justice.
[8] The applicant relied heavily on the dicta of Beetz, J. in Singh v. M.E.I., [1985] 1 S.C.R. 177 at 213 that when threats to life or liberty by a foreign power are relevant, at least one full oral hearing is required before adjudication on the merits of a Convention refugee claim. However, in cases under 53(1)(d), the individual has already been determined to be a Convention refugee. What gives rise to the proceedings is that the applicant has also been involved in criminal activity.
[9] The danger assessment proceeding under paragraph 53(1)(d) is not an appeal from the applicant"s criminal convictions or other findings with respect to his behaviour. The criminal court proceedings gave the applicant the opportunity to avail himself of all the substantive and procedural protections relevant to such proceedings. Under the Corrections and Conditional Release Act, S.C. (1992), c. 20, determinations respecting the applicant's behaviour in jail, including in this case, the applicant's transfer to a maximum security institution, are subject to extensive procedural protection. Both with respect to his criminal convictions and findings with respect to his behaviour in jail, the applicant had, or had the opportunity, for oral hearings. The requirement for an oral hearing mandated by Singh is not applicable to proceedings under paragraph 53(1)(d) of the Immigration Act.
[10] In Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696, Marceau J.A. finds, in relation to proceedings under paragraph 46.01 (1) (e) (ii)4 of the Immigration Act, that oral hearings are not a requirement. Paragraph 46.01 (1) (e) (ii) provides that a person who claims to be a Convention refugee is not eligible to have his or her claim determined if the person has been convicted of an offence for which a term of 10 years or more may be imposed and is a person the Minister has certified as one who constitutes a danger to the public in Canada. It is apparent that paragraph 46.01 (1) (e) (ii), dealing with claimants for Convention refugee status, is very similar to paragraph 53 (1) (d), dealing with persons who have already been determined to be Convention refugees. In both cases, the danger opinion is a step in a process that may ultimately lead to removal. The finding of Marceau J.A., that there is no requirement for an oral hearing with respect to paragraph 46.01 (1) (e) (ii) is equally applicable to paragraph 53 (1) (d). This is the same conclusion to which McKeown, J. arrived in Ngo v. Canada (Minister of Citizenship and Immigration) (1997), 133 F.T.R. 285 at 290.
[12] The judicial review is dismissed.
[13] The applicant seeks to have a question certified for appeal with respect to the argument pertaining to an oral hearing. I am satisfied that the Federal Court of Appeal has pronounced on this issue in Nguyen, supra. Its finding that no oral
hearing is required with respect to paragraph 46.01 (1) (e) (ii) is clearly applicable to paragraph 53 (1) (d). It is therefore not necessary to certify a question for appeal.
"Marshall Rothstein"
Judge
OTTAWA, ONTARIO
SEPTEMBER 24, 1998
__________________1 53 (1)Prohibited Removal - Notwithstanding subsections 52 (2) and (3), no person who is determined under this Act or the regulations to be a Convention refugee, nor any person who has been determined to be not eligible to have a claim to be a Convention refugee determined by the Refugee Division on the basis that the person is a person described in paragraph 46.01 (1) (a), shall be removed from Canada to a country where the person's life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless ... (d) the person is a person described in paragraph 27 (1) (d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed and the Minister is of the opinion that the person constitutes a danger to the public in Canada.
70. (5) Where Limited Right of Appeal - No appeal may be made to the Appeal Division by a person described in subsection (1) or paragraph (2) (a) or (b) against whom a deportation order or conditional deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be (a) a member of an inadmissible class described in paragraph 19 (1) (c), (c.1), (c.2) or (d); (b) a person described in paragraph 27 (1) (a.1); or (c) a person described in paragraph 27 (1) (d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed.
2 2. ...no law of Canada shall be construed or applied so as to
...
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;
3 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
46.01 Access Criteria - A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the person ...
(e) has been determined by an adjudicator to be ...
(ii) a person described in paragraph 19(1)(c) or subparagraph 19(1)(c.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada or...