Mahjoub v. Canada (Minister of Citizenship and Immigration) et al., (2005) 261 F.T.R. 95 (FC)

• Judge: Dawson, J.
• Court: Federal Court (Canada)
• Case Date: December 17, 2004
• Jurisdiction: Canada (Federal)
• Citations: (2005), 261 F.T.R. 95 (FC);2005 FC 156

Mahjoub v. Can. (M.C.I.) (2005), 261 F.T.R. 95 (FC)

MLB headnote and full text

Temp. Cite: [2005] F.T.R. TBEd. FE.030

Mohamed Zeki Mahjoub (applicant) v. The Minister of Citizenship and Immigration and The Solicitor General of Canada (respondents)

(IMM-6880-04; 2005 FC 156)

Indexed As: Mahjoub v. Canada (Minister of Citizenship and Immigration) et al.

Federal Court

Dawson, J.

January 31, 2005.

Summary:

On June 26, 2000, Mahjoub, a Convention refugee, was ordered detained on the basis of a security certificate signed by the Solicitor General and the Minister of Citizenship and Immigration. It was alleged that Mahjoub was a high-ranking member of an Egyptian Islamic terrorist organization. The security certificate was found to be reasonable. Thereafter, a delegate of the Minister of Citizenship and Immigration determined that Mahjoub should be removed to Egypt pursuant to s. 115(2)(b) of the Immigration and Refugee Protection Act, notwithstanding that Mahjoub "could be at substantial risk of ill-treatment and human rights abuses such that it would preclude his removal based on s. 115(1) of the Act". Mahjoub applied for judicial review of that decision.

The Federal Court allowed the application and remitted the matter for reconsideration.

Aliens - Topic 1645.1

Exclusion and expulsion - Immigration - Deportation - Grounds for - Danger to the security of Canada - [See first three 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) - On June 26, 2000, Mahjoub, a Convention refugee, was ordered detained under a security certificate because of terrorist activities - The security certificate was found to be reasonable - Thereafter, a delegate of the Minister of Citizenship and Immigration determined that Mahjoub should be removed to Egypt pursuant to s. 115(2)(b) of the Immigration and Refugee Protection Act, notwithstanding that he "could be at substantial risk of ill-treatment and human rights abuses such that it would preclude his removal based on s. 115(1) of the Act" - Mahjoub applied for judicial review - The Federal Court allowed the application and remitted the matter for reconsideration - The court held that the delegate's conclusion as to the danger posed by Mahjoub was not supported on the evidence before the decision maker and therefore the decision was unreasonable (i.e., the delegate relied on, for example, the CSIS security intelligence report and the reasonableness decision) - See paragraphs 42 to 58.

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) - The Federal Court, per Dawson, J., stated that "given the principles enunciated by the Supreme Court in Suresh, I conclude that anyone exercising discretion under s. 115(2) of the Act [to deport to torture] must have evidence before him or her that allows the decision-maker to conclude that the person concerned poses a danger to the security of Canada. The decision-maker cannot rely simply upon the fact that the person is described in what is now s. 34(1) of the Act. The decision-maker must carefully analyse all of the relevant evidence before him or her ... The delegate must consider all of the evidence before him or her relating to the danger posed to Canada's security, and weigh the factors which go to the reliability of that information ... Conflicting evidence relating to danger must be weighed and reasons given for rejecting evidence of significance. The effect of the passage of time, and the effect of the person's apprehension and detention, should be considered so that not just the person's past actions but their future behaviour may be assessed ... At the end, after considering these and other relevant factors, the nature of the danger posed by the person concerned should be articulated. By articulating the nature of the danger posed, the decision-maker may, at the final stage of the analysis, properly balance the competing interests ..." - See paragraphs 54 and 55.

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) - A delegate of the Minister of Citizenship and Immigration determined that Mahjoub should be removed to Egypt pursuant to s. 115(2)(b) of the Immigration and Refugee Protection Act, notwithstanding that he "could be at substantial risk of ill-treatment and human rights abuses such that it would preclude his removal based on s. 115(1) of the Act" - The Federal Court stated that "both the decision whether Mr. Mahjoub constitutes a danger to the security of Canada and the decision whether Mr. Mahjoub faces a substantial risk of torture if deported to Egypt are in large part fact-driven inquiries. As such, the Court must adopt a deferential approach to these questions, and intervene to set aside the delegate's decision only if patently unreasonable. This means that, in order for the Court to intervene, it must be satisfied that the decision was made arbitrarily, or in bad faith, or without regard to the appropriate factors, or the decision cannot be supported on the evidence. The Court is not to re-weigh the factors considered or interfere simply because the Court would have reached a different conclusion" - See paragraph 42.

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) - The Federal Court reviewed the principles governing the court in exercising its exceptional discretion to deport to torture - See paragraph 43.

Practice - Topic 687

Parties - Adding or substituting parties - Intervenors - Amicus curiae - In the course of proceedings involving s. 115 of the Immigration and Refugee Protection Act respecting whether Mahjoub, a Convention refugee allegedly involved in terrorism, could be deported to torture, Mahjoub sought the appointment of an amicus curiae to be present when he and his counsel were not - The Federal Court denied Mahjoub's request for an amicus curiae where the appointment was not necessary in order for the court to exercise the jurisdiction conferred upon it by the Act nor to meet the requirements of fundamental justice, the appointment would not be in accordance with Parliament's intent as expressed in the Act, the request was made late in the proceeding and would result in further delay, and the procedure set out in the Act provided the designated judge with the power and flexibility to properly assess both the s. 87 application and the confidential information considered by the Minister's delegate in the s. 115 determination - See paragraphs 59 to 62.

Cases Noticed:

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1, refd to. [para. 12].

Ahani v. Canada (Minister of Citizenship and Immigration) et al. (2000), 261 N.R. 40 (F.C.A.), refd to. [para. 35].

Harkat, Re (2004), 259 F.T.R. 98; 2004 FC 1717, refd to. [para. 62].

Westray Mine Tragedy - see Phillips et al. v. Richard, J.

United Steelworkers of America, Local 9332 and Richard, J. v. Phillips et al. - see Phillips et al. v. Richard, J.

Nova Scotia Commission of Inquiry into the Westray Mine Tragedy - see Phillips et al. v. Richard, J.

Phillips et al. v. Richard, J., [1995] 2 S.C.R. 97; 180 N.R. 1; 141 N.S.R.(2d) 1; 403 A.P.R. 1; 39 C.R.(4th) 141; 98 C.C.C.(3d) 20; 28 C.R.R.(2d) 1, refd to. [para. 65].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 65].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 115(1), sect. 115(2)(b) [para. 8].

Counsel:

John Norris and Barbara Jackman, for the applicant;

Mielka Visnic and Donald MacIntosh, for the respondents.

Solicitors of Record:

Ruby & Edwardh, Toronto, Ontario and Jackman & Associates, Toronto, Ontario, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents.

This application was heard in Toronto, Ontario, on December 17, 2004, before Dawson, J., of the Federal Court, who delivered the following decision on January 31, 2005.