Date: 20000512
Docket: A-201-98
CORAM: STRAYER J.A.
ISAAC J.A.
SEXTON J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
- and -
JAMSHID FARHADI
Respondent
Heard at Toronto, Ontario, on Friday, May 12, 2000
Judgment delivered at Toronto, Ontario, on Friday, May 12, 2000
REASONS FOR JUDGMENT BY: SEXTON J.A.
Date: 20000512
Docket: A-201-98
CORAM: STRAYER J.A.
ISAAC J.A.
SEXTON J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
- and -
JAMSHID FARHADI
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Friday, May 12, 2000)
SEXTON J.A.
[1] The learned Motions Judge certified 2 questions for consideration of this Court:
| 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? |
[2] The Motions Judge decided that he should not have regard to evidence that was not before the Minister. Neither party appealed from this holding and no submissions were made with respect to it on the appeal. Consequently, we do not propose to deal with it.
[3] With respect to the second question, we would say that for the reasons outlined by this Court in Suresh, a risk assessment and determination conducted in accordance with the principles of fundamental justice is a condition precedent to a valid determination to remove an individual from this country.
[4] It is our view that on the facts of this case, and having regard to the reasons of this Court in the Suresh1 case, the process by which the Minister of Citizenship and Immigration formed the opinion that the respondent constitutes a danger to the public in Canada, did constitute the prerequisite risk assessment and determination.
[5] For the same reasons given by the Court in Suresh relating to the impugned sections of the Immigration Act in that case, we are of the view while section 48 of the Immigration Act does infringe upon section 7 of the Canadian Charter of Rights and Freedoms, it is nevertheless saved under section 1 of the Charter.
[6] For these reasons, the appeal will be allowed, the judgment of the Trial Division will be set aside, question 1 will not be answered, question 2 in both its aspects will be answered in the affirmative; and the judgment of this Court will be stayed until May 19, 2000.
"J. Edgar Sexton"
J.A.
__________________1 Suresh v. Canada (M.C.I.) (A-451-99, January 18, 2000 F.C.A.).