Date: 20020508
Docket: IMM-1742-02
Neutral citation: 2002 FCT 522
BETWEEN:
CHIEN QUYET TY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] These are my reasons for dismissing the applicant's motion for an order staying his removal from Canada.
[2] Mr. Ty, a citizen of Vietnam, was landed in Canada in October of 1991 as a government sponsored Convention refugee.
[3] His evidence is that in November of 1983 after participating in a student protest in Vietnam he was arrested, accused of organizing against the Vietnamese nation, labelled a traitor, and sent to a re-education through labour camp to await trial. At the camp he was regularly beaten by the guards. Before he was brought to trial he escaped, and fled to China. In July of 1988, he returned briefly to Vietnam to say goodbye to his family and to take his now wife back to China with him.
[4] After his arrival in Canada Mr. Ty was convicted of four criminal offenses during the period from August, 1992 to November of 1994. Those offenses were theft under $1,000, theft over $1,000, possession of property obtained by crime over $1,000, and conspiracy to traffic in cocaine. The conviction for trafficking led to a sentence of 43 months in jail.
[5] In the fall and winter of 1995, Mr. Ty was notified of the intention of immigration authorities to seek opinions from the Minister that he was a danger to the public pursuant to subsection 70(5) and subsection 53(1) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act"). In response, Mr. Ty's counsel made submissions on his behalf with respect to both danger opinions, which included submissions regarding the risk to Mr. Ty if he was returned to Vietnam based upon his previous experience in Vietnam, the effect of his criminal conviction in Canada, and country conditions in Vietnam particularly as they related to the treatment of returnees to Vietnam.
[6] On January 23, 1996, Mr. Ty was advised that a danger opinion had been issued under subsection 70(5) of the Act which removed his right of appeal to the Immigration Appeal Division should a deportation order be issued. Mr. Ty filed an application for leave and judicial review challenging the subsection 70(5) danger opinion, but leave was denied by the Court.
[7] With respect to the request for a subsection 53(1) danger opinion, the reviewing officer conducted a risk assessment in response to Mr. Ty's submissions relating to his risk on return to Vietnam. It was the recommendation of the reviewing officer that the Minister form an opinion that Mr. Ty constituted a danger to the public. A director of case research and review concurred with the report and that recommendation.
[8] In February of 1996, the Minister's delegate rendered an opinion pursuant to paragraph 53(1)(a) of the Act that Mr. Ty constituted a danger to the public. No application for leave and for judicial review was brought in respect of that decision.
[9] Meanwhile, an immigration inquiry was directed to determine if Mr. Ty was a person described pursuant to subparagraph 27(1)(d)(i) of the Act. While Mr. Ty had been granted full parole after serving 14 months of his sentence, he was detained pursuant to an immigration warrant to appear for the immigration inquiry. Subsequently that inquiry was adjourned and Mr. Ty was ordered released from detention.
[10] The immigration inquiry was further postponed at Mr. Ty's request while he awaited access to his immigration file material which he had requested pursuant to the Privacy Act, R.S.C. 1985, c. P-21.
[11] In May of 1996, an immigration adjudicator found Mr. Ty to be a person described under subparagraphs 27(1)(d)(i) and (ii) of the Act and a deportation order was issued. An appeal to the Immigration Appeal Division pursuant to section 70 of the Act was dismissed for lack of jurisdiction in October of 1997.
[12] Thereafter, in November of 1997, Mr. Ty failed to report to his parole officer and to immigration authorities. Mr. Ty remained at-large until December 7, 2001 when he was arrested pursuant to a warrant issued for breach of parole, as well as an immigration warrant. Shortly thereafter, his parole was revoked and he was incarcerated. His statutory release date was April 19, 2002.
[13] In April of 2002, counsel for Mr. Ty requested that immigration authorities stay any effort to remove Mr. Ty pending determination of Mr. Ty's request for reconsideration of the earlier danger opinions, or alternatively so that Mr. Ty could make further submissions with respect to a risk assessment.
[14] On April 16, 2002, counsel for Mr. Ty forwarded to the removal officer responsible for Mr. Ty's file a copy of the submissions filed with the Minister's delegate seeking reconsideration of the danger opinions. The removal officer was requested to exercise his discretion to defer removal based on the possibility that if the danger opinion was rescinded on reconsideration, but Mr. Ty was removed before he could apply to the Immigration Appeal Division to reopen his appeal, then the Appeal Division would lose its jurisdiction to review the case on equitable grounds. The submission was also made that Mr. Ty had never had a proper risk assessment and a request was made that a risk assessment be done.
[15] The removal officer swore in an affidavit filed in opposition to the motion for a stay that in response to that request he considered all of the materials provided to him by counsel for Mr. Ty, but concluded that he would not defer removal arrangements. The removal officer swore that he considered that a risk assessment had been done in 1996, and that such risk assessment had considered Mr. Ty's experience in Vietnam and found no information or evidence to indicate that the Vietnamese government had approached or harassed Mr. Ty's family members regarding his whereabouts or had otherwise expressed any continuing interest in him. The risk assessment had also considered that there was no evidence that overseas offenders who had served their time abroad would be re-tried or punished for those offences on their return to Vietnam.
[16] The removal officer swore that he concurred with that assessment and had concluded that six years after that risk assessment the Vietnamese government would have even less interest in Mr. Ty.
[17] Further, the removal officer swore that the Canadian Embassy in Hanoi advised that it monitored the situation of returning Vietnamese who were deported from Canada, and that returnees would not likely face any difficulties with the Vietnamese authorities. Only in some cases where returnees had committed very serious crimes in Vietnam before leaving were they likely to face any difficulties. No information or report had been obtained from the Canadian Embassy with respect to any harsh treatment "of the many deportees from Canada who have been returned to Vietnam due to criminal convictions in Canada".
[18] Therefore, the removal officer concluded that Mr. Ty had obtained a previous risk assessment and that there were not extenuating circumstances or information provided which would indicate that Mr. Ty would likely be exposed to the risk of death, extreme sanction or inhumane treatment should he be returned to Vietnam.
[19] It was on this evidentiary record that counsel for Mr. Ty submitted that a serious issue, irreparable harm and the balance of convenience had been established.
[20] In dismissing the motion for a stay, I was not satisfied that a serious issue had been established. The reasons for that conclusion were as follows.
[21] First, the underlying application is a review of the decision of the removal officer not to defer removal without having first conducted what was described as a "proper and legal risk assessment". Because granting the stay would grant the relief denied by the removal officer in the sense of granting the deferral which had been refused, the Court was obliged to engage in a more extensive review of the merits of the case, and to consider the likelihood of success on the underlying application.
[22] Second, while Mr. Ty relied upon the decision of the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 to argue the constitutional right to a risk assessment in accord with the principles articulated in Suresh, Mr. Ty had received a risk assessment in 1996 which was based upon a consideration of submissions made on his behalf, and which had not been challenged by way of judicial review.
[23] While the procedure then followed did not comply with that suggested by the Supreme Court in Suresh, Mr. Ty had fully known the issues to be addressed, and on this motion failed to demonstrate that he was denied meaningful participation in the decision-making process that led to the risk assessment and the danger opinion, or that he was prejudiced. In Ahani v. Canada (Minister of Citizenship and Immigration), 2002 SCC 2 at paragraph 26, the Supreme Court rejected Mr. Ahani's appeal in respect of the danger opinion issued against him notwithstanding that the procedures suggested in Suresh were not complied with, on being satisfied that Mr. Ahani had been fully informed of the case to be met.
[24] Third, while the removal officer was undoubtedly obliged to consider risk as part of the exercise of his discretion under section 48 of the Act (see, for example: Saini v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 325 (T.D.) and Man v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 629 (T.D.) and the authorities cited therein) here the officer did so. On all of the evidence before me I was unable to find the reliance of the removal officer upon the prior risk assessment and upon the current advice received from the embassy in Hanoi was an unreasonable exercise of his discretion.
[25] Finally, and most importantly, any right at law to a risk assessment arises only after the claimant establishes "a threshold showing that a risk of torture or similar abuse exists". The individual "must make out a prima facie case that there may be a risk of torture upon departure". See: Suresh, supra, at paragraph 127.
[26] No such prima facie case was established before the removal officer, or before this Court.
[27] Mr. Ty's evidence was that he did not know what would happen if returned to Vietnam. The request for a deferral made to the removal officer was based on what I would characterize as process issues. As Justice McKeown wrote in Benitez v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1307 at paragraph 19, and I agree, a removal officer is entitled to rely on what an applicant's counsel determines to be the overriding factor warranting deferral. The first consideration cited to the removal officer to justify deferral was that if the danger opinions were rescinded, Mr. Ty would be able to apply to reinstate his appeal to the Immigration Appeal Division requesting an exercise of equitable discretion. The second consideration was that what was called a "proper risk assessment" had never been done. No cogent evidence of risk was cited.
[28] The evidence of country condition put before the Court on Mr. Ty's behalf did not show a risk of torture to individuals similarly situated to Mr. Ty. The documents referred to in argument on Mr. Ty's behalf said that "[r]eturnees would be completely pardoned for having departed Vietnam illegally, although they would be subject to prosecution for criminal offences committed before they left the country". This was consistent with the advice provided by the Canadian Embassy in Hanoi. While the Court was also referred to the 2000 Human Rights Watch Report which reported that unspecified prisoners in unspecified prisons reported "the use of shackles, dark cells, and torture", any risk to Mr. Ty of imprisonment was at best speculative, and had been fully considered in the prior risk assessment.
[29] For those reasons, I was not satisfied that a serious issue was raised.
[30] It follows from the analysis above that Mr. Ty also failed to establish a risk of irreparable harm.
[31] The motion for a stay was accordingly dismissed.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
May 8, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1742-02
STYLE OF CAUSE: CHIEN QUYET TY v. MCI
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: April 19, 2002
REASONS FOR ORDER of The Honourable Madam Justice Dawson
DATED: May 8, 2002
APPEARANCES:
Mr. Darryl W. LarsonFOR THE APPLICANT
Ms. Helen ParkFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Darryl W. Larson FOR THE APPLICANT
LARSON BOULTON SOHN STOCKHOLDER
Barristers & Solicitors
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada