Date: 19981203
Docket: A-724-97
CORAM: THE CHIEF JUSTICE
STRAYER J.A.
LINDEN J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
(Respondent in the Trial Division)
- and -
AHMAD ABDULAAL AL SAGBAN
Respondent
(Applicant in the Trial Division)
Heard at Ottawa, on Monday, November 23, 1998.
Judgment delivered at Ottawa, on December 3, 1998.
REASONS FOR JUDGMENT BY: LINDEN J.A.
CONCURRED IN BY: THE CHIEF JUSTICE
STRAYER J.A.
Date: 19981203
Docket: A-724-97
CORAM: THE CHIEF JUSTICE
STRAYER J.A.
LINDEN J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
(Respondent in the Trial Division)
- and -
AHMAD ABDULAAL AL SAGBAN
Respondent
(Applicant in the Trial Division)
REASONS FOR JUDGMENT
LINDEN J.A.
Introduction
[1] This is the second of two cases also released this day, which come before this Court on the issue of whether the Appeal Division of the Immigration and Refugee Board (the "IRB(AD)") may consider the country conditions in a country to which a person might be removed when it considers "all the circumstances of the case" under paragraph 70(1)(b) of the Immigration Act (the "Act"). The other case is Huor Chieu v. The Minister of Citizenship and Immigration, also released this day. In this case, the Motions Judge certified the following question for this Court:
| Is it within the jurisdiction conferred upon the Appeal Division of the Immigration and Refugee Board when considering an appeal of an individual, pursuant to paragraph 70(1)(b) of the Act to take into account the potential harmful consequences to the individual, arising as a result of persecution in his or her country of nationality or citizenship? |
Facts
[2] The respondent was born in Baghdad, Iraq, in 1964. He was landed in Canada with his parents and younger brother on August 3, 1986. The appellant has never claimed to be a Convention refugee. In September 1994, the respondent was ordered deported from Canada by an Immigration Adjudicator because of three criminal convictions: (a) using $40,000 (U.S.) with the intent to conceal or convert this money knowing that it was proceeds of crime; (b) making a false affidavit; and, (c) fabricating evidence. Mr. Al Sagban appealed to the Appeal Division of the Immigration and Refugee Board.
Decisions Below
1. Immigration and Refugee Board, Appeal Division
[3] The IRB(AD) reviewed the facts and outlined several important factors to be considered when making a determination under paragraph 70(1)(b) of the Act,1 which reads:
| Subject to subsections (4) and (5), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely, |
| (a) ... |
| (b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada |
[4] Specifically, the IRB(AD) considered the seriousness of offences committed, evidence of rehabilitation, establishment in Canada, and the nationality of the respondent. The IRB(AD) found that the respondent's criminal behaviour was the most damaging aspect of his record. It stated:
Throughout his criminal career in Canada, the appellant [Al Sagban] has shown a willful disregard for complying with the rules and has taken advantage of any opportunity, lawful or otherwise, to escape responsibility for his actions.2
[5] The IRB(AD) also recounted that Al Sagban had twice breached the terms of his parole,3 and had perjured himself in an attempt to escape criminal liability.4
[6] The IRB(AD) found that there was no evidence of rehabilitation, and noted that, throughout his testimony, Mr. Al Sagban "minimized the seriousness of his offences and his involvement in them."5 The IRB(AD) further found little establishment in Canada, including the fact that his family had little knowledge of his affairs since he left the family home in 1991.6
[7] Concluding, the IRB(AD) found that the most positive factor in Mr. Al Sagban's favour was the hardship he would suffer if returned to Iraq. It was made clear to the Board that the son of a prominent Iraqi family who was considered to be a deserter would be in "a very difficult position."7 The IRB(AD), however, citing Hoang v. M.E.I.8, decided that it could not consider this factor. It wrote:
Control over the location to which the appellant is removed is a matter solely for the Minister's decision.9
[8] The IRB(AD) concluded that the negative factors against Mr. Al Sagban weighed more heavily against him than the positive factor weighed in his favour. It found that Mr. Al Sagban had not shown the Board why, having regard to all the circumstances of the case, he should not be removed from Canada. Mr. Al Sagban applied to the Federal Court (Trial Division) for judicial review.
2. Federal Court (Trial Division).
[9] The Motions Judge focussed on whether it is appropriate for the IRB(AD) to consider the hardship that can befall a person when assessing whether that person should be removed from Canada. The Motions Judge considered the factors normally considered by the IRB(AD) in applications under paragraph 70(1)(b) of the Act,10 including (i) the seriousness of the offence committed, (ii) the possibility of rehabilitation, (iii) the length of time spent in Canada, (iv) the appellant's roots in Canada, (v) the support available to the appellant, and (v) the degree of hardship that would be caused to the applicant by return to the country of nationality.
[10] The Motions Judge held that the degree of hardship which would befall a person upon return to a country of origin was a relevant factor to be considered by the IRB(AD).
[11] The Motions Judge first noted that decisions of this Court direct the IRB(AD) to consider "every extenuating circumstance that can be adduced in favour of the deportee."11 Second, the contention that the potential deportee's destination country is unknown was disputed. The lex fori, it was said, creates a presumption that the potential deportee will be sent to the country of citizenship, which was described as "the only country to which the Minister is likely to be able to deport a person without consent of the receiving country."12 Third, the Motions Judge distinguished Markl13 reasoning that, in the Markl case the Board's refusal to consider country conditions was proper because there was little evidence regarding the harm that would befall Mr. Markl in his native Czechoslovakia, and because the appellant's argument in that case focussed on Canadian government policy regarding deportation to Czechoslovakia.
[12] The Motions Judge declined to follow Hoang14, concluding:
I cannot read these legislative provisions that grant authority to the Minister as detracting from the Board's jurisdiction under paragraph 70(1)(b) unless they expressly so provide. The Act sets out overlapping but not mutually exclusive procedures. ... The exercise of [the Board's] authority includes, as was said in Canepa, supra, an examination of every extenuating circumstance that can be adduced in favour of the deportee. It is difficult to understand why this should not include the circumstances that await the individual in his or her country of origin, that is the financial and social hardships as well as physical dangers (emphasis added).15
[13] The decision of the Board was vacated and the matter was referred back to the IRB(AD). The matter was stayed pending the resolution of a question, which the Motions Judge certified, the text of which appears above.
IV. Submissions of the Appellant
[14] The appellant makes three arguments in support of the conclusion that the appeal should be allowed. First, the appellant argues that "all the circumstances of the case" refers to actual, ascertainable circumstances rather than to speculative ones. As section 52 of the Act gives the Minister sole and exclusive jurisdiction to decide the destination country of deportees, the appellant argues that any consideration of country conditions is purely speculative. The appellant points out the various choices available to the Minister under the Act when determining the country to which a person will be deported. Second, the appellant contends that the rationale for the decision in Hoang , that consideration of country conditions by the IRB(AD) is premature, applies similarly to immigration appeals as it does to Convention Refugee determination cases. Third, the appellant submits that acceding to the Reasons of the Motions Judge would create a system whereby people with potential refugee claims might make claims under paragraph 70(1)(b). If the IRB(AD) were to find that people feared persecution in their countries of origin, those people would be allowed to remain in Canada without regard to the continuing conditions in their countries of origin, whereas Convention refugees may lose their status if conditions in their countries of origin change. The appellant argues that this would create an "alternate" refugee procedure which does not have any of the checks and balances of the Act's Convention Refugee determination system. The appellant also argues in the alternative that, even if country conditions are an appropriate consideration for the Board, the Board did consider the conditions in the respondent's native Iraq and decided that the respondent was a person who should be removed from Canada nevertheless.
V. Submissions of the Respondent
[15] The respondent makes several arguments in favour of his contention that the IRB(AD) may consider country conditions in the country to which the prospective deportee may be deported. First, the respondent argues that the panel in the Hoang case misapplied the IRB(AD) decision in Markl. Specifically, the respondent argues that Markl considered only whether the Board could allow an appeal based on the argument that the adjudicator had erred in not adjourning the matter to allow a claim for refugee status. Second, the respondent contends that the IRB(AD) has consistently held that the Hoang decision does not apply to non-refugee situations, and that it is open to the Board to consider the hardship that a person might face if she is deported to her country of origin. Third, the respondent urges that the legislation gives the Board broad jurisdiction to consider "all the circumstances of the case." The respondent contends that this Court's decision in Canepa properly instructs the IRB(AD) that "all circumstances of the case" means precisely that. Fourth, the respondent submits that the maximum number of countries to which a person might be deported is four, but that in most cases, including this one, prospective deportees have only one or two countries to which they might be deported. Fifth, the respondent argues that it would never be advantageous for a person to abandon a refugee claim in favour of the so-called "alternate refugee system," as the protection extended to Convention Refugees includes permanent protection from removal to that country.
Analysis
[16] This is the second of two cases involving certified questions to this Court on this issue. The case of Chieu v. Canada (Minister of Citizenship and Immigration)16 adjudicated the same issue and produced a certified question of general importance to this Court. This Court's decision in Chieu, released concurrently with this one, effectively disposes of this issue, explaining that the IRB(AD) may not consider country conditions in a country to which a person might be removed when considering "all the circumstances of the case" under paragraph 70(1)(b) of the Act. This Court explained:
[14] Let there be no confusion about it -- this Court affirms its adherence to Hoang and to its application in non-refugee cases such as this. The Board cannot, in exercising its equitable jurisdiction pursuant to paragraph 70(1)(b), consider, as a circumstance, country conditions in potential destinations of deportees. Moreover, evidence relating to these countries is irrelevant and, therefore, inadmissible. The Board's jurisdiction under paragraph 70(l)(b) is only to determine whether a person should be removed from Canada. The Board has no business considering the merits or demerits of any potential destination. For the IRB(AD) to consider such a matter would extend the jurisdiction of the Board to engage in premature speculation about hypothetical matters concerning the situation in the possible countries to which someone might be deported.
[15] In my view, not only is this view based on legal authority, it is more consistent with the overall scheme of the Act to leave consideration of the country conditions of the potential destination until that destination is definitively decided upon by the Minister under section 52 of the Act. To do otherwise would usurp the function of the Minister.
[16] The wording of paragraph 70(1)(b), viewed in total context, must be interpreted in this way. That section permits the Board to consider whether a removal order or conditional removal order made against a permanent resident should be quashed or stayed on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada. The Board is instructed to consider the validity and equity of the removal order. The question is: Should this person be removed or not? It is whether he or she would be removed, not to where he or she should go. The Board is not directed to consider questions extraneous to whether the removal order was properly and equitably made, such as the nature of the place where he or she may be sent.14, 15, 16
[17] While this Court's decision in Chieu is dispositive of this case, I should mention that the Farhadi17 case was briefly raised in the argument by counsel in this case. As was indicated in Chieu, I do not think that this Court should deal with that case at this time. It should be noted that, Farhadi deals with a person who is considered to be a "danger to the public," which may bring into play a different mechanism under the Act than the one at issue here. The Farhadi decision should be left open for this Court to deal with at the appropriate time on its own facts following full argument, free of any comments by this Court in this case.
Conclusion and disposition
[18] For these reasons, and for the other reasons given in the Chieu decision, I would answer the certified question as follows:
The Appeal Division of the Immigration and Refugee Board, in the exercise of its jurisdiction to have regard to all the circumstances of the case, under paragraph 70(1)(b) of the Immigration Act, may not consider the conditions and possible harm to the individual in the potential countries to which the non-refugee appellant might be removed (including the country of nationality or citizenship) when assessing whether the person should not be removed from Canada.
[19] The appeal is allowed, the judgment of the Motions Judge is set aside and the application for judicial review is dismissed.
"A.M. Linden"
J.A.
"I agree
Julius A. Isaac, C.J."
"I agree
B.L. Strayer, J.A."
FEDERL COURT OF APPEAL
Date: 19981203
Docket: A-724-97
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
(Respondent in the Trial Division)
- and -
AHMAD ABDULAAL AL SAGBAN
Respondent
(Applicant in the Trial Division)
REASONS FOR JUDGMENT
__________________
1 The IRB(AD) relied primarily on the factors listed in the Ribic decision [1985] I.A.B.D. No. 4 (I.A.B.) (QL). The factors enumerated in Ribic are widely cited in cases such as this.
2Decision of the IRB(AD), Appeal Book pages 11-12.
3Decision of the IRB(AD), Appeal Book pages 12.
4Decision of the IRB(AD), Appeal Book page 11.
5Decision of the IRB(AD), Appeal Book page 13.
6Decision of the IRB(AD), Appeal Book page 14-15.
7Decision of the IRB(AD), Appeal Book page 15-16.
8(1990), 13 Imm. L.R. (2d) 35 (F.C.A.).
9Decision of the IRB(AD), Appeal Book page 16.
10Quoted from Ribic, supra note 1.
11Citing Canepa v. MEI [1992] 3 F.C. 270 (Fed. C.A.) at 286.
12Decision, Appeal Book page 544.
13Markl v. MEI (May 27, 1985) No. V81-6127 (I.A.B.).
15Decision, Appeal Book page 548-549.
16Reported at (1996) 125 F.T.R. 76; [1996] F.C.J. No. 1680 (F.C.T.D.) (Q.L.).
17Farhadi v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 315 (T.D.); [1998] F.C.J. No. 381 (QL).