Mahjoub v. Canada (Minister of Citizenship and Immigration) et al., 2006 FC 1503

• Judge: Tremblay-Lamer, J.
• Court: Federal Court (Canada)
• Case Date: December 14, 2006
• Jurisdiction: Canada (Federal)
• Citations: 2006 FC 1503;(2006), 304 F.T.R. 290 (FC)

Mahjoub v. Can. (M.C.I.) (2006), 304 F.T.R. 290 (FC)

MLB headnote and full text

Temp. Cite: [2006] F.T.R. TBEd. DE.042

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

(IMM-98-06; 2006 FC 1503)

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

Federal Court

Tremblay-Lamer, J.

December 14, 2006.

Summary:

Mahjoub, a Convention refugee, was detained since 2000 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 (212 F.T.R. 42). In a July 2004 decision, the Minister of Citizenship and Immigration (the Minister) determined that Mahjoub was a danger to the security of Canada, and upon being returned to Egypt would probably be detained and could suffer human rights abuses. Notwithstanding the finding of a "substantial risk of ill-treatment and human rights abuses", the Minister decided that Mahjoub should be removed to Egypt pursuant to s. 115(2)(b) of the Immigration and Refugee Protection Act. Mahjoub applied for judicial review.

The Federal Court, in a decision reported 261 F.T.R. 95, found that the Minister's decision on the danger issue was based on incomplete evidence. The Minister's delegate had relied only on a CSIS narrative report, and lacked the detailed confidential information upon which the narrative was based. Consequently, the court found that the delegate could not properly assess the danger posed by Mahjoub, and by extension, could not properly balance the competing interests at stake. The application for judicial review was allowed, and the matter was remitted for re-determination by another delegate of the Minister. On re-determination of the matter, a different delegate of the Minister (the delegate) concluded in a decision dated January 3, 2006, that Mr. Mahjoub posed a danger to the security of Canada, that there were sufficient grounds for believing he would not be at substantial risk of torture or other ill-treatment in Egypt, and therefore that he should be returned there. Mahjoub applied for judicial review of the January 3, 2006 decision.

The Federal Court allowed the application and set aside the delegate's decision that Mahjoub should be returned to Egypt and remitted the matter for re-determination by another delegate of the Minister. The court found that the delegate's decision with regard to the substantial risk of torture faced by Mahjoub on his return to Egypt was patently unreasonable.

Aliens - Topic 1783

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Place of deportation (incl. deportation to place of torture (non-refoulement)) - A delegate of the Minister of Citizenship and Immigration found that a Convention refugee, an Egyptian national, posed a danger to the security of Canada, that there were sufficient grounds for believing he would not be at substantial risk of torture or other ill-treatment in Egypt, and therefore that he should be returned there (Immigration and Refugee Protection Act, s. 115) - The refugee applied for judicial review - The Federal Court stated that "both the danger to the security of Canada and the substantial risk of torture questions are predominantly fact-driven inquiries ... Parliament has vested the Minister with broad discretion to balance both these factors in making the relevant determinations ... Accordingly, a deferential approach must be taken and the delegate's decision must only be set aside if it is patently unreasonable. In order to intervene, a reviewing court 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 ... As the Supreme Court of Canada stated in Law Society of New Brunswick v. Ryan ... '[...] a patently unreasonable defect, once identified, can be explained simply and easily, leaving no real possibility of doubting that the decision is defective' and '[...] [a] decision that is patently unreasonable is so flawed that no amount of curial deference can justify letting it stand'" - See paragraph 11.

Aliens - Topic 1783

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Place of deportation (incl. deportation to place of torture (non-refoulement)) - A delegate of the Minister of Citizenship and Immigration found that Mahjoub, a Convention refugee, posed a danger to the security of Canada and that he should be returned to Egypt, there being sufficient grounds for believing he would not be at substantial risk of torture or other ill-treatment in Egypt (Immigration and Refugee Protection Act, s. 115) - Mahjoub applied for judicial review, arguing that Canadian officials relied on evidence from Egypt in making its case against him which might have been obtained by torture - The Federal Court stated that reliance on evidence likely to have been obtained by torture was an error of law - However there had to be a credible evidentiary basis linking torture to the specific evidence at issue in order to justify its exclusion - Where someone in Mahjoub's position offered a plausible explanation why evidence was likely to have been obtained by torture, the decision maker then had to consider the issue in light of the public and classified information - If the decision-maker found reasonable grounds to suspect that evidence was likely obtained by torture, it should not be relied on in making a determination - The issue ultimately concerned the weight the delegate gave the information that specific evidence was likely obtained by torture - Having reviewed the evidence, the court rejected the argument that the delegate in this case relied on evidence likely to have been obtained by torture - See paragraphs 19 to 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)) - A delegate of the Minister of Citizenship and Immigration found that Mahjoub, a Convention refugee, posed a danger to the security of Canada and that he should be returned to Egypt, there being sufficient grounds for believing he would not be at substantial risk of torture or other ill-treatment in Egypt (Immigration and Refugee Protection Act, s. 115) - Mahjoub applied for judicial review, arguing that the delegate ignored exculpatory explanations he offered in response to the allegations against him - The Federal Court rejected this argument, holding that the delegate did not ignore his explanations, but rather found them not to be credible - The court noted that in her reasons for her findings, the delegate was under the inherent constraints imposed by classified information which could not be disclosed - See paragraphs 43 to 54.

Aliens - Topic 1783

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Place of deportation (incl. deportation to place of torture (non-refoulement)) - A delegate of the Minister of Citizenship and Immigration found that Mahjoub, a Convention refugee, posed a danger to the security of Canada and that he should be returned to Egypt, there being sufficient grounds for believing he would not be at substantial risk of torture or other ill-treatment in Egypt (Immigration and Refugee Protection Act, s. 115) - Mahjoub applied for judicial review - The Federal Court allowed the application and remitted the matter for redetermination where the delegate's decision was patently unreasonable - The court found that the delegate selectively relied on information that went against the bulk of the evidence in concluding that there was no institutionalized torture in Egypt - That is, there was an arbitrary rejection of important, credible evidence on this issue (especially human rights documentation from Amnesty International and Human Rights Watch) - The court held that it was a reviewable error for a decision-maker to arrive at its conclusion by ignoring relevant and apparently overwhelming evidence to the contrary - See paragraphs 55 to 82.

Aliens - Topic 1783

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Place of deportation (incl. deportation to place of torture (non-refoulement)) - A delegate of the Minister of Citizenship and Immigration found that Mahjoub, a Convention refugee, posed a danger to the security of Canada and that he should be returned to Egypt, there being sufficient grounds for believing he would not be at substantial risk of torture or other ill-treatment in Egypt (Immigration and Refugee Protection Act, s. 115) - Mahjoub applied for judicial review - The Federal Court allowed the application where the delegate's decision was patently unreasonable - The court held that the delegate erred in failing to properly evaluate Egypt's assurances not to torture or mistreat Mahjoub should he be returned to Egypt in accordance with the framework set out by the Supreme Court of Canada in Suresh - Further the delegate erred when she disregarded the bulk of evidence from a multitude of sources that cited Egypt's non-compliance with assurances - See paragraphs 83 to 97.

Aliens - Topic 1783

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Place of deportation (incl. deportation to place of torture (non-refoulement)) - A delegate of the Minister of Citizenship and Immigration found that Mahjoub, a Convention refugee, posed a danger to the security of Canada and that he should be returned to Egypt, there being sufficient grounds for believing he would not be at substantial risk of torture or other ill-treatment in Egypt (Immigration and Refugee Protection Act, s. 115) - In reaching her decision, the delegate considered the submissions made by Mahjoub's wife that his deportation would have a detrimental impact on their children but concluded that "[h]owever detrimental the effect that Mr. Mahjoub's deportation would have [sic] on his children, I am unable to find that their best interest outweighs my findings that Mr. Mahjoub is a danger to the security of Canada." - Mahjoub applied for judicial review, arguing that this statement suggested that the best interests of the children could not outweigh the danger he posed to Canada; without a corresponding analysis of the evidence, it does not meet the requirement to provide cogent reasons - The Federal Court rejected this argument, stating that the delegate deserved considerable deference with regard to this issue - The court stated that it was not persuaded that the delegate made her determination without regard to the information before her - See paragraphs 98 to 102.

Aliens - Topic 4062

Practice - Judicial review and appeals - Powers of review of appellate court (incl. standard of review) - [See first Aliens - Topic 1783 ].

Cases Noticed:

Almrei v. Canada (Minister of Citizenship and Immigration) (2005), 262 F.T.R. 7; 2005 FC 355, refd to. [para. 11].

Jaballah, Re (2006), 278 F.T.R. 90; 2006 FC 346, refd to. [para. 11].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 11].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 11].

Lai v. Canada (Minister of Citizenship and Immigration) - see Sing et al. v. Canada (Minister of Citizenship and Immigration).

Sing et al. v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 97; 2004 FC 179, refd to. [para. 22].

Sing et al. v. Canada (Minister of Citizenship and Immigration) (2005), 332 N.R. 344; 2005 FCA 125, refd to. [para. 23].

Charkaoui, Re (2004), 260 F.T.R. 238; 2004 FC 1031, refd to. [para. 24].

Harkat, Re (2005), 261 F.T.R. 52; 2005 FC 393, refd to. [para. 25].

A et al. v. United Kingdom (Secretary of State for the Home Department), [2005] N.R. Uned. 168; [2005] UKHL 71, refd to. [para. 26].

India v. Singh, [1996] B.C.J. No. 2792 (S.C.), refd to. [para. 29].

Henrie v. Security Intelligence Review Committee et al. (1988), 24 F.T.R. 24; 53 D.L.R.(4th) 568 (T.D.), affd. (1992), 140 N.R. 315; 88 D.L.R.(4th) 575 (F.C.A.), refd to. [para. 42].

Harkat, Re (2003), 231 F.T.R. 19; 2003 FCT 285, refd to. [para. 42].

Almrei v. Canada (Minister of Citizenship and Immigration), [2004] 4 F.C.R. 327; 249 F.T.R. 53; 2004 FC 420, refd to. [para. 42].

Canada (Minister of Citizenship and Immigration) et al. v. Mahjoub (2005), 270 F.T.R. 101; 2005 FC 1596, refd to. [para. 51].

Via Rail Canada Inc. v. National Transportation Agency et al., [2001] 2 F.C. 25; 261 N.R. 184 (F.C.A.), refd to. [para. 53].

Charkaoui, Re, [2003] F.T.R. Uned. 959; 2003 FC 1418, refd to. [para. 53].

Suresh v. Canada (Minister of Citizenship and Immigration) (2000), 252 N.R. 1 (F.C.A.), refd to. [para. 67].

Li (Y.) v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 239; 329 N.R. 346; 2005 FCA 1, refd to. [para. 67].

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81, refd to. [para. 73].

Buri v. Canada (Minister of Citizenship and Immigration), [2001] F.T.R. Uned. 843; 2001 FCT 1358, refd to. [para. 74].

Kazi v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 94; 2002 FCT 178, refd to. [para. 74].

Thang v. Canada (Solicitor General), [2004] F.T.R. Uned. 270; 2004 FC 457, refd to. [para. 75].

Rosales et al. v. Minister of Employment and Immigration (1993), 72 F.T.R. 1 (T.D.), refd to. [para. 81].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 115(1) [para. 9].

Authors and Works Noticed:

Houle, France, Le fonctionnement du régime de preuve libre dans un système non-expert: le traitment symptomatique des preuves par la Section de la protection des réfugiés (2004), R.J.T. 263, para. 71, fn. 136 [para. 72].

United Nations, Human Rights Watch, Black Hole: The Fate of Islamists Rendered to Egypt, generally [para. 90].

United Nations, Human Rights Watch, Empty Promises: Diplomatic Assurances No Safeguard Against Torture (2004), generally [para. 90].

United Nations, Human Rights Watch, Still at Risk: Diplomatic Assurances No Safeguard Against Torture (2005), p. 5 [para. 90].

United Nations, Report of the Special Rapporteur, Letter from Theo van Boven, Special Rapporteur on Torture of the Commission on Human Rights, to his Excellency the Minister of Foreign Affairs of Canada (April 2, 2000), generally [para. 96].

Counsel:

Barbara Jackman, and John Norris, for the applicant;

Donald A. MacIntosh, Alison Engel-Yan and Mielka Visnic, for the respondents.

Solicitors of Record:

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

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

This application was heard at Toronto, Ontario, on November 15 and 16, 2006, before Tremblay-Lamer, J., of the Federal Court, who delivered the following decision on December 14, 2006.