Date: 20041012
Docket: IMM-2734-04
Citation: 2004 FC 1381
Ottawa, Ontario, Tuesday, the 12th day of October 2004.
PRESENT: The Honourable Madam Justice Dawson
MOSTAFA DADAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DAWSON J.
[1] Mostafa Dadar is a 54-year old citizen of Iran. He says that, as a result of his involvement in 1982 in a failed military coup d'état, he was imprisoned and tortured by the Iranian authorities for approximately four years. He also says that, in 1986, he escaped from prison in Iran to Pakistan where he was granted status as a Convention Refugee. Accompanied by his then wife, Mr. Dadar arrived in Canada as a permanent resident on December 2, 1988.
[2] After his arrival in Canada, Mr. Dadar exhibited violence toward his wife. On July 12, 1995, Mr. Dadar was convicted of assault and sentenced to four days in jail and a period of probation. In December of 1995, Mr. Dadar was convicted of theft under $5,000 and, in consequence, was fined $100. On January 14, 1997, Mr. Dadar was convicted of an aggravated assault upon his then girlfriend. This assault occurred while Mr. Dadar was on probation in respect of the 1995 assault conviction. As a result of his conviction on the charge of aggravated assault, Mr. Dadar was sentenced to eight years incarceration. He remained incarcerated until his statutory release date when he was placed in immigration detention.
[3] As a person recognized to be a Convention refugee, Mr. Dadar would be protected from removal to Iran but for the fact that, on March 8, 2004, a delegate of the Minister of Citizenship and Immigration formed the opinion, pursuant to paragraph 115(2)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("Act"), that Mr. Dadar constitutes a danger to the public in Canada.
[4] Subsections 115(1) and (2) of the Act are as follows:
| 115. (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment. 115(2) Subsection (1) does not apply in the case of a person (a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger to the public in Canada; or (b) who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada. [underlining added]
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115. (1) Ne peut être renvoyée dans un pays où elle risque la persécution du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques, la torture ou des traitements ou peines cruels et inusités, la personne protégée ou la personne dont il est statué que la qualité de réfugié lui a été reconnue par un autre pays vers lequel elle peut être renvoyée.
115(2) Le paragraphe (1) ne s'applique pas à l'interdit de territoire_: a) pour grande criminalité qui, selon le ministre, constitue un danger pour le public au Canada; b) pour raison de sécurité ou pour atteinte aux droits humains ou internationaux ou criminalité organisée si, selon le ministre, il ne devrait pas être présent au Canada en raison soit de la nature et de la gravité de ses actes passés, soit du danger qu'il constitue pour la sécurité du Canada. [Le souligné est de moi.]
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[5] In this application for judicial review, Mr. Dadar seeks an order setting aside the opinion of the Minister's delegate that Mr. Dadar constitutes a danger to the public in Canada.
THE ISSUES
[6] In his written representations, Mr. Dadar framed the issues to be decided as follows:
1. Does the Minister's opinion offend the rights of Mr. Dadar as enshrined in sections 7, 11 and 12 of the Canadian Charter of Rights and Freedoms ("Charter")?
2. Does paragraph 115(2)(a) of the Act contravene Canada's non-refoulement obligations under international law?
3. Is the Minister's opinion supported by the totality of the evidence presented? Was the Minister's decision that Mr. Dadar is a danger to the public in Canada perverse or capricious because he does not constitute such a danger?
4. Was the Minister's decision that Mr. Dadar is a danger to the public in Canada perverse or capricious because if he is deported to Iran he will be tortured and/or killed by the authorities?
5. Is the Minister's decision an abuse of process since it is the third such decision rendered on the same issue, with respect to Mr. Dadar, in four years?
[7] In oral argument, counsel for Mr. Dadar confirmed that he was not pursuing any argument based upon section 11 of the Charter and that he was not challenging the constitutional validity, applicability or operability of paragraph 115(2)(a) of the Act. Counsel for Mr. Dadar agreed that, in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, the Supreme Court of Canada determined that the predecessor provision to paragraph 115(2)(a) was constitutionally valid but that, in exercising ministerial discretion under such provision, the Minister must conform to principles of fundamental justice under section 7 of the Charter. In any event, no notice of constitutional question was served as required by subsection 57(1) of the Federal Courts Act, R.S.C. 1985, c. F-7 so that the Court is without jurisdiction to decide the constitutional validity or operability of paragraph 115(2)(a) of the Act.
The Decision Under Review
[8] In her lengthy opinion, the Minister's delegate canvassed: the legislative scheme; the relevant facts; Mr. Dadar's submission as to the risk he would face if returned to Iran; the information before the Minister's delegate with respect to current country conditions; the information before the delegate assessing the danger posed by Mr. Dadar; and the existing humanitarian and compassionate considerations.
[9] With respect to the danger posed by Mr. Dadar, the Minister's delegate wrote that:
[...] Mr. Dadar is a person with a demonstrated propensity for extreme violence against loved ones. He was on parole from the conviction for beating his (now ex) wife when he beat his then girlfriend into a semi-conscious state. The psychological, emotional and physical injuries that he inflicted on both of these women (and indeed his children) are well documented in the material before me and need not be re-stated. His ongoing refusal to accept responsibility for his deeds speaks loudly towards the fact that these heinous incidents may well occur again. The comments from CSC officials which indicate that he participated in various treatment programs but failed to understand the impact of his actions are telling. He has not taken the requested and necessary High Intensity Family Violence Program in order to demonstrate that he is committed to controlling his violent tendencies. He has also not addressed the devastating effects of alcohol and prescription drug consumption. The extensive comments from CSC officials concerning Mr. Dadar which were prepared over a series of years indicate that his failure to take responsibility for his actions demonstrates that he is a dangerous individual.
Mr. Dadar was convicted of a very serious offence which, according to the sentencing judge, could have resulted in the loss of his victim's life. The lengthy sentence imposed by the Court (8 years imprisonment) is reflective of the violence used in the commission of this crime and the seriousness that society views this type of victim assault.
In the material before me, it is clear that Mr. Dadar is a very dangerous individual who, in my opinion, presents a current and future danger to any future spouse or partner and therefore, a danger to the public of Canada.
[10] With respect to the risk Mr. Dadar would face if returned to Iran, the Minister's delegate wrote that:
I acknowledge that Mr. Mostafa Dadar was admitted to Canada as a refugee - that is to say a person in need of protection and resettlement. He indicates that he fears that there is a risk to his life or a risk of torture or to cruel and unusual treatment or punishment if he is returned to Iran. (In this instance, I note that Mr. Dadar has not presented any evidence that the activities of a person who has been convicted of criminal offences are of any interest to Iranian government officials.) He has indicated that when he was arrested in 1982, he was a member of an opposition group called "NIMA" (National Iranian Movement Association) with the goal of instituting a constitutional monarchy system to govern Iran. Following his arrest, he was subjected to torture and managed to obtain a day pass in order to receive medical treatment for his injuries. He escaped to Pakistan with the assistance of the "Sepah Roylist (sic) organisation. [I note that the story outlined by Mr. Dadar differs significantly from that given by his ex-spouse. Ms. Jafari indicated that Mr. Dadar was sentenced to two years imprisonment (rather than life imprisonment) and did not escape from prison but was released following the completion of his sentence.] In a letter dated April 22, 2002, Mr. Dadar disputes the allegations from his ex-spouse that she fears for her safety "I had not been in touch or tried to be in touch with her in any way shape or form, there is no police report that can indicate or support that she had been threaten (sic) in any given time. This is a pure speculation and exadurations (sic) of facts." This contradicts information contained in a document indicating that in fact Mr. Dadar had been in contact with his ex-spouse.
I cannot, however, disregard the country conditions present in Iran at this time when considering whether or not a person who has been found to be a Convention refugee may be "refouled". I also cannot ignore the material prepared by the Immigration and Refugee Board concerning the lack of force of the monarchist movement in Iran at this time. While there is no doubt in my mind that the human rights situation in Iran is precarious, it is my opinion that Mr. Dadar would be of limited interest to Iranian authorities due to his former membership in this organization; though I do acknowledge that he claims that he is still a supporter of this movement. He left Iran some 17 years ago and was imprisoned some 21 years ago. There is also no indication in the material before me that Mr. Dadar would be charged again with the crimes for which he has been convicted in Canada. In other words, there is no indication that he would be charged with two counts under Islamic law of assaulting his ex-spouse and ex-partner (or for that matter, for theft). There is no doubt that he would be subjected to questioning if he is returned to Iran - as are all persons returned under deportation.
[11] The delegate concluded that the danger Mr. Dadar posed to the Canadian public outweighed any risk he faced on return to Iran.
[12] In the alternative, the Minister's delegate found that, if Mr. Dadar would be in danger of being subjected to torture, death or to cruel and unusual punishment, this case fell within those exceptional circumstances contemplated by the Supreme Court of Canada in Suresh, supra where deportation to face torture might be justified.
ANALYSIS
1. Standard of Review
[13] Central to the opinion of the Minister's delegate were her conclusions regarding whether Mr. Dadar posed a danger to the public in Canada and whether he faces a substantial risk of torture or death if deported to Iran. The parties agree that the appropriate standard of review to be applied to both of these determinations is that of patent unreasonableness. This requires the Court to adopt a deferential approach so that the Court is not to re-weigh the evidence. The decision should be upheld unless the decision is unreasonable on its face, made arbitrarily or in bad faith, unsupported by the evidence or vitiated by a failure to consider proper factors or to apply the appropriate procedures.
2. The determination that Mr. Dadar poses a danger to the public in Canada.
[14] The Minister's delegate noted that the aggravated assault upon Mr. Dadar's girlfriend left her permanently disabled. The delegate reviewed the various Corrections Canada reports before her including an intake assessment, progress summaries, correctional plan, progress reports, community assessments, pre-sentence reports and psychological assessments. Those documents report Mr. Dadar's lack of remorse, lack of commitment to treatment programs, poor attitude towards women, hostile and belligerent attitudes to authority figures during situations he perceives as being negative or opposed to his views, and his refusal to accept responsibility for his crimes. In April of 2002, the National Parole Board noted that:
You have participated in a number of programs to address your contributing factors including living without violence, anger and emotions, cognitive skills and most recently a moderate intensity family violence program. Reports from these programs indicate that while you are receptive to the programming, your [sic] remain resistant to utilizing the skills learned, believing that you do not have a problem or that you need to change. In addition, you apparently have no community support and accommodation has been identified as a need area.
During your hearing today, it was apparent to the Board that you have gained little benefit from programming to date. You continue to completely deny responsibility for the assault on your partner and you minimized the abuse against your ex-wife. Indeed, the impression the Board was left with was that the abuse within your relationships, which you did not admit, was more the fault of your partners than yourself. The Board is left with the distinct impression that you have not progressed during incarceration and in fact, appeared to have regressed, in respect of accepting responsibility. The Board agrees with the view of your case management team and psychologist that you continue to pose a significant risk of violence towards an intimate partner and children and that this risk would increase dramatically if there were conflict in the relationship, or if you are experiencing stress.
As late as October 2003, Mr. Dadar still maintained his innocence in respect of the conviction for aggravated assault as evidenced by his application to the Association in Defence of the Wrongly Convicted.
[15] In addition, the Minister's delegate referred to the psychological report submitted on Mr. Dadar's behalf. The report indicated that:
[...] Overall his risk for violent recidivism against a spousal partner should be considered MODERATE in the absence of further long-term counselling. However, his risk is context-dependent. If Mr. Dadar were to become involved in a conflicted spousal relationship his risk would increase to HIGH. However, with long-term intensive counselling to address spousal violence and substance abuse, his likelihood of re-offending would remain at moderate or could be reduced to low.
Therefore, overall, according to actuarial information, Mr. Dadar currently represents a low risk to the general public and a moderate risk in the context of a spousal relationship.
[16] In oral argument, counsel for Mr. Dadar fairly conceded that, at law, a person can pose a danger to the public by posing a danger to a person or persons who are members of the public. See, for example, Gillespie v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1850 (T.D.) where the Court held that it is unacceptable to attempt to minimize the seriousness of an offence because it is directed only at family members.
[17] I am satisfied on the basis of the record before the Minister's delegate that her decision as to the danger posed by Mr. Dadar to the public was supported by the evidence, made with regard to the appropriate factors and was not made arbitrarily or in bad faith.
3. The determination that Mr. Dadar would be of limited interest to Iranian authorities.
[18] Mr. Dadar bears the onus of establishing that there are substantial grounds upon which to believe that, if removed to Iran, he would be in danger of subjection to torture, death, or cruel or unusual treatment or punishment. Mr. Dadar, in oral argument, conceded that the fact that he came to Canada as a Convention refugee is, by itself, insufficient evidence to satisfy the burden of proof upon him. See, for example, Moktari v. Canada (Minister of Citizenship and Immigration) (2001), 200 F.T.R. 25 at paragraph 45.
[19] The material forwarded by Mr. Dadar in support of his submission as to risk consists largely of his own narrative, a letter from the secretariat of His Majesty Reza II which states that Mr. Dadar "escaped the wrath of the present regime" and that his "return to Iran would be tantamount to recrimination of every possible kind". While Mr. Dadar submitted a newspaper article written in Persian, he did not provide a translation. Mr. Dadar did not provide copies of any of the documents he provided to the United Nations High Commissioner for Refugees in Pakistan and did not provide any medical reports to support his statement that he was treated in Canada for injuries resulting from torture in Iran.
[20] With respect to Mr. Dadar's own narrative, as the Minister's delegate noted, Mr. Dadar's version of his treatment was contradicted by his former wife. The following statement was contained in the request for the Minister's opinion, a copy of which was provided to Mr. Dadar:
[...] While I have no reason to question his imprisonment, I have some doubt about whether his alleged prison escape ever occurred, given the presence of conflicting information on this point from two other sources. Specifically, in the Community Assessment document dated September 1, 1998, subject's former wife stated that he was sentenced to two years' imprisonment for his political activities and was released within that time frame, less 22 days for good behaviour. She further stated that he left Iran illegally, as did she, but he did not escape from prison. Another reference to this scenario is contained in the psychological assessment dated June 15, 2000. Specifically, subject's discharge summary from Centracare (a psychiatric hospital), dated December 8, 1988, indicates that "he was in prison in Iran for 26 months... After release from jail, they went to Pakistan".
[21] While the request for the Minister's opinion was provided to Mr. Dadar so that he might respond to it, Mr. Dadar made no specific comment to the doubt expressed as to his story of prison escape. The state of the relationship between Mr. Dadar and his former wife may be disputatious so as to support Mr. Dadar's general submission that she is not truthful, however, Mr. Dadar cast no doubt and made no response to the remarks attributed to him in 1988 in the hospital discharge statement.
[22] The Minister's delegate also noted that Mr. Dadar had falsely advised Corrections Canada officials that he had persons available to assist him upon his release and provided a fraudulent letter to Corrections Canada officials which purported to contain an offer of accommodation and support upon release. This letter was said by Corrections Canada to be part of a plan contrived by Mr. Dadar with another inmate. The Minister's delegate characterized this as a scheme in order to dupe Corrections Canada officials into believing that Mr. Dadar had community support when he did not.
[23] Further material in the record, noted by the Minister's delegate as touching upon Mr. Dadar's credibility, concerned Mr. Dadar's fabrication of a story exculpating him from the aggravated assault, and his statement that he had not breached the terms of a court order prohibiting contact with his former wife, which statement was contradicted by Corrections Canada records.
[24] The Minister's delegate also had before her reports from independent agencies with respect to country conditions in Iran. The United States Department of State report for the year 2002 noted:
The Government's human rights record remained poor, and deteriorated substantially during the year, despite continuing efforts within society to make the Government accountable for its human rights policies.
[...]
The Constitution forbids the use of torture; however, there were numerous credible reports that security forces and prison personnel continued to torture detainees and prisoners. Some prison facilities, including Tehran's Evin prison, were notorious for the cruel and prolonged acts of torture inflicted upon political opponents of the Government.
[25] Amnesty International, for the calendar year 2002, reported:
Torture and ill-treatment, including of prisoners of conscience, continued to be used, usually in cases where judicial or security officials denied detainees access to lawyers and relatives.
[...]
The death penalty and cruel, inhuman and degrading punishments were used against people charged for trying to exercise their rights to freedom of expression and association.
[26] The Human Rights Watch World Report for 2003 stated:
Human rights progress in Iran was caught in a continuing political power struggle between popularly elected reformers, who controlled both the presidency and Parliament, and clerical conservatives, who exercised authority through the office of the Leader (held by Ayatollah Ali Khamenei), the Council of Guardians, the judiciary, and the armed forces. Despite landslide electoral victories in every major election from 1997 to 2002, the reformers were unable to dislodge repressive policies favored by the clerical leadership, including far-reaching restrictions on freedom of expression, association, and political participation.
The Council of Guardians repeatedly blocked bills passed by the Parliament in such areas as women's rights, family law, the prevention of torture, and electoral reform. The judiciary, deployed as one of the conservative's strongest weapons, further undermined the rule of law with arbitrary closures of newspapers and imprisonment of political activists.
[27] The Documentation, Information and Research Branch of the Immigration and Refugee Board prepared two documents that touched upon treatment of monarchists, such as Mr. Dadar, in Iran. Relevant extracts are as follows:
Article IRN 33937.FE, dated March 3, 2000:
...According to two specialists in Iranian studies, the monarchists are no longer organized and active in Iran... For a long time now, they have no longer posed a threat to the current regime, as can be seen from the fact that there have been no politically motivated arrests or prosecutions of monarchists over the past several years... A number of individuals with monarchist political tendencies wanted to be candidates in the February 2000 elections, but the Guardian Council refused to authorize their candidacy. As long as they do not campaign publicly, the authorities do not bother them...
Article IRN 40084.E, dated October 15, 2002:
Specific information on the status and treatment of pro-monarchists (monarchists) in Iran between 1996 and 2001 could not be found among the sources consulted by the Research Directorate.
In February 2001 the Iranian police reportedly used tear gas to disperse a demonstration by monarchists... According to news reports, dozens of demonstrators were arrested and "[a] number of others were injured (ibid)".
[28] In the face of this evidence, the Minister's delegate concluded that the human rights situation in Iran is precarious and Mr. Dadar would be subject to questions on his return to Iran. She formed the opinion that Mr. Dadar would be of limited interest to Iranian authorities due to his former membership in a pro-monarchist organization which no longer posed a threat to the current regime.
[29] In Suresh, supra at paragraph 39, the Supreme Court of Canada concluded that the question of whether a refugee faces a substantial risk of torture upon deportation is in large part fact-driven. It requires consideration of the human rights record of the home state, the personal risk faced by the claimant, and it may involve re-assessment of the refugee's original claim. Intervention by the Court is warranted only if the decision is not supported by the evidence or fails to consider appropriate factors.
[30] In my view, the decision of the Minister's delegate was supported by evidence that monarchists no longer posed a threat to the regime and there had been no politically motivated arrests or prosecution of monarchists over the past several years. The decision was based upon consideration of the relevant factors. As such, the decision was not patently unreasonable and intervention by the Court is not warranted.
4. Does the Minister's opinion offend Mr. Dadar's sections 7 and 12 Charter rights?
[31] The conclusion of the Minister's delegate that Mr. Dadar would be of limited interest to Iranian authorities, and that, therefore, he did not face a substantial risk of torture or death on deportation, is dispositive of his claim to relief pursuant to section 7 of the Charter because Mr. Dadar has not established the evidentiary basis needed in order to engage the section 7 protection guaranteed by the Charter. See, for example, Ahani v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 72.
[32] To the extent that Mr. Dadar also relies upon section 12 of the Charter, in United States of America v. Burns, [2001] 1 S.C.R. 283, the Supreme Court of Canada confirmed that the proper place for the "state responsibility" debate is under section 7 of the Charter. This was because the degree of causal remoteness between the extradition order to face trial and the potential imposition of capital punishment (as one of the many possible outcomes of the prosecution) made the case more appropriately reviewed under section 7 than under section 12 (because the values underlying various sections of the Charter, including section 12, form part of the balancing process engaged in under section 7 of the Charter).
[33] While Burns, supra arose in the context of extradition, and not refoulement, I am satisfied that the same analysis applies to refoulement so that Mr. Dadar's rights are properly determined under section 7 of the Charter. No separate analysis is required pursuant to section 12 of the Charter.
5. Is the decision of the Minister's delegate an abuse of process?
[34] Mr. Dadar points out that this is the third danger opinion issued on behalf of the Minister. Two prior decisions were challenged on judicial review by Mr. Dadar. In those cases, the Minister of Citizenship and Immigration consented, on procedural grounds, to the applications being allowed. While issue estoppel and res judicata are not asserted by Mr. Dadar, he asks the Court to bear in mind the risk of interminable litigation. He notes that, after the expiry of his criminal sentence, he remains in detention on an immigration warrant.
[35] In order to find an abuse of process, a Court must be satisfied that "the damage to the public interest in the fairness of the administrative process should the proceedings go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted". See: Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at page 376.
[36] While the two prior danger opinions were set aside on consent, each time the matter was remitted for redetermination on the merits. In the context of proceedings concerning an opinion that Mr. Dadar is a danger to the public, there is a compelling societal interest in obtaining a decision on the merits. I am satisfied therefore that, on the facts of this case, the public interest in the enforcement of the Act is such that no abuse of process exists such as to warrant quashing an otherwise reasonable opinion as to danger.
6. Conclusion
[37] It follows from my findings above that the application for judicial review should be dismissed. It is not necessary to consider the delegate's alternate conclusion that "exceptional circumstances", as contemplated in Suresh, supra exist.
7. The proper respondent
[38] The parties consent to the Solicitor General of Canada being substituted for the Minister of Citizenship and Immigration as respondent and an order will so issue.
8. Certification of a question
[39] Neither party sought certification of a question of general importance. I am satisfied that this case turns on its own facts so that no question should be certified.
ORDER
[40] IT IS THEREFORE ORDERED THAT:
1. The Solicitor General of Canada is substituted for the Minister of Citizenship and Immigration as respondent in this proceeding.
2. The application for judicial review is dismissed.
"Eleanor R. Dawson"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2734-04
STYLE OF CAUSE: MOSTAFA DADAR v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: September 14, 2004
APPEARANCES:
M. Lee Cohen, Q.C. FOR THE APPLICANT
Lori Rasmussen FOR THE RESPONDENT
SOLICITORS OF RECORD:
M. Lee Cohen, Q.C.
Barrister & Solicitor
Halifax, Nova Scotia FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT