Date: 19981207
Docket: IMM-6056-98
| BETWEEN: MOHAMMAD MEHRABNIA, |
Plaintiff
| AND: HER MAJESTY THE QUEEN and |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION, |
Defendants
REASONS FOR ORDER and ORDER
DENAULT J:
[1] In this case, a deportation order was issued against the plaintiff on August 24, 1994. On November 30, 1995, a delegate of the Minister of Citizenship and Immigration issued an opinion, pursuant to subsection 70(5) of the Immigration Act, that the plaintiff was a danger to the public, thereby removing his right to appeal the deportation order against him before the Immigration Appeal Board.
[2] The plaintiff now seeks an interim injunction in a declaratory action brought against the defendants to enjoin the Minister of Citizenship and Immigration from deporting him on December 9, 1998. In his action, the plaintiff seeks to demonstrate that the removal of someone to a country where he faces a risk of torture, in the absence of undertaking a proper risk assessment prior to removal, violates sections 7 and 12 of the Charter of Rights and Freedoms.
[3] In the instant case, this Court, having carefully considered all of the circumstances, is not satisfied that the plaintiff has met the first requirement of the tripartite test for the granting of an interim injunction, namely the existence of a serious issue to be tried.
[4] The plaintiff arrived in Canada in 1987 and was granted permanent resident status following a determination that his claim to refugee status had a credible basis. In 1991, he was convicted of possession of narcotics and, in 1993, he was convicted of conspiracy to import and distribute narcotics. The plaintiff was sentenced to 10 years and 5 years consecutively for a total of 15 years imprisonment.
[5] In August 1994, based on his criminal convictions in Canada, the plaintiff was the subject of an immigration enquiry before an adjudicator. In the result, a prohibition order was issued against him. At the time, the plaintiff did not avail himself of the opportunity to claim refugee status before the adjudicator and have his claim referred to the Convention Refugee Determination Division of the Immigration and Refugee Board for an assessment of the alleged risk associated with his potential return to Iran.
[6] Following the issuance of a danger opinion by the Minister in November 1995, the plaintiff had yet another opportunity to raise the issue of risk of harm on removal to Iran within the context of a request for a humanitarian and compassionate exemption pursuant to subsection 114(2) of the Act, a procedure frequently used in such circumstances. The plaintiff, however, failed to avail himself, until very recently, of the opportunity to request a risk assessment, doing so only in the context of the present action, on November 6, 1998, which is to say on the eve of his deportation. Significantly, as stated by madame Justice McGillis in Sinnappu v. Canada (Minister of Citizenship and Immigration) [1997] 2 F.C. 791, at page 827, the plaintiff "... had an obligation to pursue actively and agressively all the legislative avenues available... in an attempt to obtain status in this country."
[7] In the instant case, I am of the opinion that the plaintiff, having failed to avail himself, at appropriate junctures, of opportunities to have risk assessments carried out, cannot now allede that the current provisions of the Immigration Act do not provide for such opportunities.
[8] Furthermore, the Court is neither satisfied that the plaintiff would suffer irreparable harm, should he be removed to Iran, nor that the balance of convenience, in the circumstances of the case, lies in his favour.
[9] Consequently, the application is dismissed.
O R D E R
The application is dismissed.
Pierre Denault
J.F.C.C.
Federal Court of Canada
Trial Division
Date : 19981207
Docket : IMM-6056-98
Between :
MOHAMMAD MEHRABNIA
Plaintiff
AND
HER MAJESTY THE QUEEN
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Defendants
REASONS FOR ORDER
and ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-6056-98
STYLE OF CAUSE: MOHAMMAD MEHRABNIA,
Plaintiff
AND:
HER MAJESTY THE QUEEN and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Defendants
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 30, 1998
REASONS FOR JUDGMENT OF DENAULT J.
DATED: December 7, 1998
APPEARANCES:
Mr. Lorne Waldman for the Plaintiff
Mr. Ian Hicks for the Defendants
SOLICITORS OF RECORD:
Jackman, Waldman & Associates
Toronto, Ontario for the Plaintiff
Morris Rosenberg
Deputy Attorney General of Canada
c/o Department of Justice Canada
Toronto, Ontario for the Defendants