Jaballah, Re, 2005 FC 399

• Judge: MacKay, D.J.
• Court: Federal Court (Canada)
• Case Date: August 16, 2004
• Jurisdiction: Canada (Federal)
• Citations: 2005 FC 399;(2005), 261 F.T.R. 35 (FC)

Jaballah, Re (2005), 261 F.T.R. 35 (FC)

MLB headnote and full text

Temp. Cite: [2005] F.T.R. TBEd. AP.004

In The Matter Of a certificate pursuant to Section 40.1 of the Immigration Act, R.S.C. 1985, c. I-2, now deemed to be under subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27

And In The Matter Of the referral of that certificate to the Federal Court of Canada

And In The Matter Of Mahmoud Jaballah

(DES-4-01; 2005 FC 399)

Indexed As: Jaballah, Re

Federal Court

MacKay, D.J.

March 22, 2005.

Summary:

In 1999 the Minister of Citizenship and Immigration issued a certificate stating the opinion that Jaballah, a foreign national, was inadmissible for security reasons. This certificate was found to be unreasonable and quashed (see [1999] F.T.R. Uned. 791). Subsequently, in August 2001, a second certificate was issued under s. 40.1 of the Immigration Act. While the reasonableness of the second certificate was under consideration, the Immigration Act was repealed and the matter proceeded under the new Immigration and Refugee Protection Act (IRPA). The IRPA set out a new procedure which allowed a person in Jaballah's situation to apply to the Minister of Citizenship and Immigration for protection in accordance with s. 112 of the Act. Jaballah did so, and on his request, pursuant to s. 79(1) of IRPA, in early July 2002, the court suspended the proceedings with respect to the certificate in order for the Minister to decide the application for protection. As of April 2003, no final decision had been made by the Minister on his application for protection. In the meantime Jaballah remained in detention in solitary confinement, where he had been since mid August 2001. In April 2003, Jaballah, claiming an abuse of process, moved to have the court resume the suspended proceedings, quash the certificate and release him from detention.

The Federal Court of Canada, Trial Division, in a decision reported 234 F.T.R. 26, held that the delay constituted an abuse of process and ordered that reasonableness proceedings resume and leave to the Minister the decision on the application for protection as the IRPA directed. On the merits, the court ruled that the second certificate (i.e., the August 2001 certificate) was reasonable. The Minister of Citizenship and Immigration and the Solicitor General of Canada (the Ministers) appealed, arguing that the designated judge erred in finding an abuse of process and in providing a remedy for that abuse which departed from the statutory scheme under the IRPA. Jaballah cross-appealed.

The Federal Court of Appeal, in a decision reported 325 N.R. 90, dismissed the Ministers' appeal, but allowed Jaballah's cross-appeal holding that the judge's resumption of the security certificate reasonableness proceedings without waiting for the Minister to decide the protection application was not consistent with the requirements of the legislation. Therefore the designated judge's finding that the certificate was reasonable was set aside and that matter along with the lawfulness of the Minister's protection decision (which was rendered on December 30, 2003) were remitted to the designated judge for determination. In the December 30 decision, Jaballah's application for protection was refused on the basis that despite the assessment that he was at substantial risk of death or torture if he was returned to his own country, Egypt, the extraordinary risk he posed to national security of Canada required that he be removed from Canada (IRPA, s. 113(d((ii)).

The Federal Court, in the decision reported below, held that the protection decision made by a delegate on behalf of the Minister was patently unreasonable. The court therefore quashed that decision and suspended the proceedings (incl. the reasonableness determination) in accord with s. 80(2) of the IRPA to allow the Minister to make a new decision on the application for protection.

Aliens - Topic 1589.1

Exclusion and expulsion - Pre-removal risk assessment (Immigration and Refugee Protection Act, ss. 112 - 116) - Protection where applicant inadmissible (IRPA, s. 113(d)(ii)) - [See Aliens - Topic 1783 ].

Aliens - Topic 1783

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Place of deportation (incl. deportation to place of torture (non-refoulement)) (IRPA, s. 115) - Jaballah, a foreign national, was being detained under a security certificate - While the issue of the reasonableness of the certificate was being decided by the court, Jaballah applied for protection under s. 112 of the Immigration and Refugee Protection Act (IRPA) - His application was refused on the basis that despite the assessment that he was at substantial risk of death or torture if he was returned to his own country, Egypt, the extraordinary risk he posed to national security of Canada required that he be removed from Canada (IRPA, s. 113(d)(ii)) - Jaballah applied for judicial review - The Federal Court allowed the application holding that the protection decision was patently unreasonable because it was based upon a finding of facts made without appropriate regard to all the evidence and circumstances of the case - The Minister's delegate erred in law by undue reliance on certain matters (i.e., an earlier reasonableness decision which was quashed by the Court of Appeal and a confidential summary of a CSIS security narrative report) - The delegate also erred by failing to describe the danger to Canadian security that Jaballah was said to represent, by failing to consider as a factor the effect of his continued restraint in one form or another while he remained in Canada, and by failing to consider adequately the best interests of Jaballah's children - See paragraphs 1 to 56.

Cases Noticed:

Suresh v. Canada (Minister of Citizenship) and Immigration, [2002] 1 S.C.R. 3; 281 N.R. 1, refd to. [para. 22].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 26].

Mahjoub v. Canada (Minister of Citizenship and Immigration) (2005), 261 F.T.R. 95; 2005 FC 156, refd to. [para. 31].

Almrei v. Canada (Minister of Citizenship and Immigration (2005) 262 F.T.R. 7; 2005 FC 355, refd to. [para. 35].

Mobil Oil Canada Ltd. et al. v. Canada- Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202; 163 N.R. 27; 115 Nfld. & P.E.I.R. 334; 36 A.P.R. 334, refd to. [para. 37].

Vezina v. Minister of National Revenue, [2003] F.C.J. No. 201, refd to. [para. 37].

Cartier v. Canada (Attorney General), [2003] F.C. 317 (F.C.A.), refd to. [para. 37].

Sogi v. Canada (Minister of Citizenship and Immigration) (2004), 254 F.T.R. 129; 2004 FC 853, refd to. [para. 43].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; 48 C.R.(3d) 289; 23 C.C.C.(3d) 289; [1986] 1 W.W.R. 481, refd to. [para. 45].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 45].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 112, sect. 113(d)(ii) [para. 3 et seq.].

Counsel:

Donald A. MacIntosh and Negar Hashemi, for the applicant;

Barbara Jackman and John R. Norris, for the respondent.

Solicitors of Record:

John H. Sims, Deputy Attorney General of Canada, Toronto, Ontario, for the applicant;

Barbara Jackman, Toronto, Ontario, and Ruby & Edwardh, Toronto, Ontario, for the respondent.

This application was heard in Toronto, Ontario, on August 16, 2004, before MacKay, D.J., of the Federal Court, who delivered the following decision on March 22, 2005.