Zeki Mahjoub v. Canada (Minister of Citizenship and Immigration)

Zeki Mahjoub v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2006-12-14
Neutral citation
2006 FC 1503
File numbers
IMM-98-06
Notes
Reported Decision
Decision Content
Date: 20061214
Docket: IMM-98-06
Citation: 2006 FC 1503
Ottawa, Ontario, December 14, 2006
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
MOHAMMAD ZEKI MAHJOUB
applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
THE SOLICITOR GENERAL OF CANADA
respondents
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION AND BACKGROUND FACTS
[1] There have been considerable proceedings related to the present matter. In addition to the following cursory overview, Appendix A to these reasons contains a more detailed chronology of related events.
[2] Mr. Mohamed Zeki Mahjoub (the applicant) is an Egyptian national who came to Canada in 1995 and was found to be a Convention refugee in October 1996.
[3] Mr. Mahjoub has been in detention since the Spring of 2000, when the Solicitor General of Canada and the Minister of Citizenship and Immigration (the Ministers) issued a security certificate qualifying Mr. Mahjoub as inadmissible under section 19 of the Immigration Act, R.S.C. 1985, c. I-2 (former Act) in effect at that time. Appendix B to these reasons sets out the relevant parts of the former Act. This opinion was based on a security intelligence report expressing the belief of the Canadian Security Intelligence Service (CSIS) that Mr. Mahjoub was a member of an inadmissible class referred to in the former Act, by virtue of CSIS’ opinion that he:
· will, while in Canada, engage in, or instigate, the subversion by force of the government of Egypt
· is a member of the Vanguards of Conquest (VOC), a faction of Al Jihad (AJ). The VOC is an organization that there are reasonable grounds to believe will engage in, or instigate, the subversion by force of the government of Egypt, and will engage in terrorism;
· is, and was, a member of the VOC, which is an organization that there are reasonable grounds to believe is, or was, engaged in terrorism; and
· has engaged in terrorism.
[4] The security certificate issued by the Ministers was challenged by Mr. Mahjoub, but was found to be reasonable by Mr. Justice Marc Nadon in Canada (Minister of Citizenship and Immigration) v. Mahjoub, [2001] 4 F.C. 644 (T.D.), 2001 FCT 1095.
[5] In a July 2004 decision, the Minister of Citizenship and Immigration (the Minister) determined that Mr. 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 Mr. Mahjoub should be removed to Egypt, pursuant to paragraph 115(2)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act). Mr. Mahjoub applied for judicial review of that decision.
[6] In Mahjoub v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 334, 2005 FC 156 (Mahjoub 2005) Justice Eleanor Dawson 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 Mr. 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.
[7] 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 poses 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.
[8] Mr. Mahjoub brings the present application for judicial review of this January 3, 2006 decision.
APPLICABLE LEGISLATION
[9] Subsection 115(1) of the Act generally prohibits the return of a protected person, including a Convention refugee, to a country where he or she would be at risk of persecution or torture or cruel or unusual treatment or punishment (torture). Subsection 115(2) of the Act sets out exceptions to this general principle. Section 115 of the Act is 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.
(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.
(3) A person, after a determination under paragraph
101(1)(e) that the person’s claim is ineligible, is to be sent to the country from which the person came to Canada, but may be sent to another country if that country is designated under subsection 102(1) or if the country from which the person came to Canada has rejected their claim for refugee protection.
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.
(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.
(3) Une personne ne peut, après prononcé d’irrecevabilité au titre de l’alinéa 101(1)e), être renvoyée que vers le pays d’où elle est arrivée au Canada sauf si le pays vers lequel elle sera renvoyée a été désigné au titre du paragraphe 102(1) ou que sa demande d’asile a été rejetée dans le pays d’où elle est arrivée au Canada.
ISSUES
[10] The following issues are raised in this judicial review application:
1. Applicable standard of review
2. Danger to the security of Canada
a. Sources of evidence
i. Reliance on evidence likely to have been obtained by torture
ii. Burden of proof
b. Assessment of the evidence by the delegate
3. Substantial risk of death and/or torture upon return to Egypt
a. Country conditions
i. Death penalty
ii. Substantial risk of torture
b. Egypt’s assurances
4. Best interests of the children
5. Alternatives to removal
ANALYSIS
1. Applicable standard of review
[11] Both the danger to the security of Canada and the substantial risk of torture questions are predominantly fact-driven inquiries (Mahjoub 2005, above at para.42; Almrei v. Canada (M.C.I.), 2005 FC 355, [2005] F.C.J. No. 437 (QL) at para. 32). I agree with my colleague Mr. Justice Andrew MacKay that Parliament has vested the Minister with broad discretion to balance both these factors in making the relevant determinations (Re Jaballah, 2006 FC 346, [2006] F.C.J. No. 404 (QL) at para. 18) (Jaballah). 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 (Suresh v. Canada (M.C.I.), [2002] 1 S.C.R. 3, 2002 SCC 1 at paras. 29, 39, 41) (Suresh). As the Supreme Court of Canada stated in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20 at paragraph 52, “[…] 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.”
[12] Given that this application centres on the relatively lengthy reasons of the delegate's decision, and the evidence upon which it was based, it is worth canvassing in tandem with an issue-by-issue analysis.
2. Danger to the security of Canada
Delegate’s Reasons
[13] The delegate began by reviewing the circumstances surrounding Mr. Mahjoub’s arrival in Canada. She noted that Mr. Mahjoub first came to Canada in 1995 with the use of a forged Saudi passport. She mentioned that his whereabouts from 1986 to 1995 were largely unaccounted for, with the exception of a period in 1992-1993 when he was in Sudan working for a Bin Laden company. At this time Al Qaeda was headquartered in Sudan. She also referred to the fact that Mr. Mahjoub was interviewed in person by Osama Bin Laden and given the position of Deputy General Manager in charge of some 4,000 employees with a considerable salary (in relative terms), despite the fact that he had no prior relevant experience.
[14] She referred to evidence suggesting Mr. Mahjoub's connection to a terrorist organization, citing among other things his arrival in Canada shortly after Sudan expelled Egyptian extremists. She cited his direct and indirect connections with known terrorists, along with his repeated attempts to intentionally conceal these connections from Canadian authorities. She found that these patterns of connections and persistent attempts to mislead Canadian authorities revealed "an in-depth involvement in the terror network".
[15] With regard to the Al Jihad/Vanguards of Conquest (AJ/VOC) group, the delegate concluded on the basis of the public and classified record that there was sufficient evidence that Mr. Mahjoub is a senior member. She noted that he has maintained close contacts with operatives of the group, and that prior to his detention he had “constant and high level contacts with members of Osama Bin Laden's terrorist network all over the world, that he likely facilitated the planning of terrorist attacks and provided logistical support”.
[16] In summary, the delegate concluded that she was persuaded that “Mr. Mahjoub was and continues to be a high ranking member of the AJ”, that the AJ/VOC has now merged with Al Qaeda, and that the group's targets have widened beyond overthrowing the Egyptian government to the present goal of “indiscriminately attack[ing] Western civilians and economic interests all over the world”. She pointed out that the merged organization has openly threatened all Western countries, that Canada has been specifically targeted, and is currently the only such country that has not been directly attacked. This group has shown that it is extremely dangerous and has the capacity to carry out its mandate all over the world, viewing civilians as legitimate targets.
[17] Given its current decentralization, the delegate was satisfied that the evidence showed that the Al Qaeda network was still capable of executing terrorist acts despite the deaths and detentions of senior members. She concluded that rather than being an impediment to him, the voids left by senior members would permit Mr. Mahjoub to be better positioned to become prominent in the network, and thereby plan further terrorist attacks. Even if he were not able to reinsert himself in the same branches of the organization, she reasoned, he would be able to proceed with terrorist activities targeting Western nations, including Canada, due to “his experience, his influence and his network”.
[18] In consideration of the submissions that Mr. Mahjoub could no longer pose a threat to Canada due to his current state of mental and physical health, the delegate was not satisfied that this lessened the threat that he posed to Canada. She similarly rejected the notion that his notoriety would be an impediment to his ability to be involved in future terrorist activities. In view of all the evidence, she was convinced that the “threatened harm posed by Mr. Mahjoub is substantial, serious, and grounded on objectively reasonable suspicion”.
a) Sources of evidence
i. Reliance on evidence likely to have been obtained by torture
[19] The applicant submits that Canadian officials have relied on evidence from Egypt in making its case against him. He maintains the delegate failed to meet the standard of “cogent evidence” required for such an important decision as she impermissibly relied on some information that is “likely to have been obtained by torture”, given Egypt’s record of using torture for interrogatory purposes. Similarly, he argues, the delegate impermissibly considered his conviction by an Egyptian military court arising from an in absentia proceeding, which probably also relied on evidence likely obtained by torture.
[20] For the respondents, there is no basis for the speculation that the delegate relied on evidence which was likely obtained by torture. The delegate took note of the submission that information from Egypt should be treated as suspect, and affirmed that the evidence she considered came from a wide variety of sources over a period of time, with all of it being weighed for its probity. Any elaboration relating to specific evidence beyond that provided in her reasons would have resulted in improper breaches of national security.
[21] A review of the existing jurisprudence will help to provide a useful framework for the present analysis of this issue.
[22] In Lai v. Canada (M.C.I.), 2004 FC 179, [2004] F.C.J. No. 113 (QL) (Lai FCTD), my colleague Justice Andrew MacKay held at paragraph 24:
I agree … that evidence obtained by torture, or other means precluded by the International Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, ought not to be relied upon by a panel considering a refugee application. […]
[23] This view was confirmed by the Federal Court of Appeal in Lai v. Canada (M.C.I.), 2005 FCA 125, [2005] F.C.J. No. 584 (QL) (Lai FCA), where Justice Brian Malone concluded at paragraph 95 sub-paragraph (a) that “[…] [s]tatements obtained by torture or other cruel, inhumane or degrading treatment or punishment are neither credible or trustworthy.”
[24] In Re Charkaoui, 2004 FC 1031, [2004] F.C.J. No. 1236 (QL) (Charkaoui), my colleague Justice Simon Noël considered challenges to the evidence on the grounds that it had been obtained by torture. At paragraphs 28 and 29 of Charkaoui, above, he essentially found that the evidence at issue from Mr. Rezzam had not been tainted by torture, and that it could form part of the evidentiary record. However, Justice Noël was not satisfied that information against Mr. Charkaoui from Mr. Abu Zubaida had not likely been obtained by torture/mistreatment, as there was contradictory evidence surrounding the circumstances of its production (Charkaoui, above, at paragraphs 30, 31). With regard to this particular evidence, Justice Noël stated at paragraph 31 of Charkaoui, above:
[…] bearing in mind the objectives of the Convention Against Torture and the conflicting evidence presented by the two parties, it is the Court's intention not to take into consideration the statement of Mr. Zubaida and not to assign it any importance for the time being in my analysis of the facts. However, the Court is not withdrawing this statement as presented from the record, in view of the type of evidence presented by the parties and the contradiction that exists in the evidence in support of the respective submissions of the parties.
[25] Another colleague, Justice Eleanor Dawson, considered a similar argument made on behalf of Mr. Harkat that torture had tainted evidence obtained from Mr. Abu Zubaida and therefore that it should be inadmissible (re Harkat, 2005 FC 393, [2005] F.C.J. No. 481 (QL) at para. 115) (Harkat 2005). Mr. Harkat referred to indirect and direct evidence of mistreatment likely suffered by Mr. Abu Zubaida in support of his position, and the Court held that there was “[…] significant concern about the methods used to interrogate Abu Zubaida” (Harkat 2005, above, at para. 120). It may be relevant to note that aside from the torture/mistreatment issue there was an “additional pressing concern” of the weight to accord the information from Mr. Abu Zubaida, as there was no evidence before the Court of the specific questions and answers used in producing the information (Harkat 2005, above, at para. 122). Ultimately, Justice Dawson concluded that she was “[…] left in doubt as to how Mr. Abu Zubaida came to provide information about Mr. Harkat” and she decided to “give no weight to the information provided to the Court through Abu Zubaida” (Harkat 2005, above, at para. 123).
[26] In light of the above, I agree with the applicant that reliance on evidence likely to have been obtained by torture is an error in law. Though not been explicitly articulated, I am persuaded that this general principle has essentially been applied and adopted in Canada in recent cases. It is also consistent with Canada’s signing of the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (G.A. res. 39/46, U.N. Doc. A/39/51 (1984)). This view is also consonant with a recent House of Lords decision which held that reliance on evidence likely to have been obtained by torture is an error in law (A (FC) and others (FC) v. Secretary of State for the Home Department, [2005] UKHL 71), [2005] H.L.J. No. 13 (QL) (A(FC)).
[27] However, it is also important to note that there must be a credible evidentiary basis linking torture to the specific evidence at issue in order to justify its exclusion (Lai FCTD, above, at paras. 28, 50; aff’d Lai FCA, above, at paras. 38-42; Charkaoui, above, at paras. 27-31). The Federal Court of Appeal has held that general country condition information citing the use of torture should not inevitably lead to a finding that all specific evidence from that country should be excluded, without further substantiation (Lai FCA, above, at para. 42). On this point Justice Malone concluded at paragraph 42 of Lai FCA, above, “[…] the very general evidence offered by the appellants about torture by Chinese investigators was not specific and certainly not specific to the statements offered by the Minister in this appeal. […]”
ii. Burden of proof
[28] The respondents submit that a party alleging that specific evidence was obtained by torture bears the onus of adducing proof to establish the claim, on a balance of probabilities standard, though no authorities were submitted on this point. I am not convinced this is the proper burden in the special circumstances of the present matter.
[29] In a proceeding where evidence is public, the person concerned has the ability to challenge specific evidence. Thus, it is appropriate to impose such a burden in the circumstances, as this person has the opportunity and means to properly discharge it. For instance, in India v. Singh, [1996] B.C.J. No. 2792 (QL), the British Colombia Supreme Court had the role of determining if there was sufficient evidence to order Mr. Singh to surrender for extradition to India where India relied upon confessional statements of five individuals detained there.
[30] In that case, Mr. Singh submitted that the statements were obtained by torture, and should be excluded. In this context, he knew the content of the statements and the identities of those who made them, and had the opportunity to produce specific evidence attempting to prove the statements were obtained under torture. The Court concluded at paragraph 21 that “[t]he burden of proving that the confessional statements were obtained as a result of the commission of an offence under this torture section [section 269.1 of the Criminal Code of Canada] rests upon the Fugitive who makes the allegation … [and] must be proved upon a balance of probabilities”. Due to the nature of the proceedings, Mr. Singh was aware of all of the evidence against him, and therefore had the opportunity to adduce evidence necessary to meet the burden placed upon him. In contrast, due to the special nature of the present matter, where part of the evidence is not disclosed to Mr. Mahjoub, this opportunity is somewhat limited. This is a crucial distinction of which I am particularly mindful, and one which I believe is reflected in existing jurisprudence.
[31] In Harkat 2005, above, the Ministers submitted that Mr. Harkat had the burden of proving, on a balance of probabilities, that evidence from Mr. Abu Zubaida had been obtained by torture (Harkat 2005, above, at para. 116). Mr. Harkat responded that as the location and condition of Mr. Abu Zubaida were unknown, he was limited to putting public material before the Court and inferring the occurrence of torture; some of this public material related directly and indirectly to Mr. Abu Zubaida (Harkat 2005 at para. 117). After reviewing the public evidence, Justice Dawson stated that “[t]he evidence before the Court satisfies me that better evidence about conditions Mr. Abu Zubaida has been subjected to is not likely to be available to Mr. Harkat” and then concluded that it did raise “significant concern” about the methods used to obtain the evidence (Harkat 2005 at para. 120). In light of her doubt with regard to this evidence, she gave it no weight (Harkat, above, at para. 123).
[32] In a similar vein, Justice Noël decided not to rely on potentially suspect evidence where there was a specifically founded “possibility that such mistreatment occurred” (Charkaoui, above, at para. 31). Thus, the Court’s doubt was resolved by giving no weight to the evidence.
[33] In my view, my colleagues’ approaches to the burden of proof suggest an appropriate consideration of the special nature of matters such as these, and a recognition of the inherent limitations placed upon individuals such as the applicant. I find such an approach preferable to that proposed by the respondents in the special circumstances of the present context.
[34] In my opinion, in light of the preceding jurisprudence, where the issue is raised by an applicant offering a plausible explanation why evidence is likely to have been obtained by torture, the decision-maker should then consider this issue in light of the public and classified information. Where the decision-maker finds there are reasonable grounds to suspect that evidence was likely obtained by torture, it should not be relied upon in making a determination.
[35] This view is reflected in A(FC), above, where the House of Lords found, in a substantively similar context, that a conventional burden of proof should not be placed on the detainee (at paras. 55, 80, 98, 116, 155). Lord Hope of Craighead, in the majority, wrote at paragraph 116:
[…] It would be wholly unrealistic to expect the detainee to prove anything, as he is denied access to so much of the information that is to be used against him. He cannot be expected to identify from where the evidence comes, let alone the persons who have provided it. All he can reasonably be expected to do is to raise the issue by asking that the point be considered by SIAC. There is, of course, so much material in the public domain alleging the use of torture around the world that it will be easy for the detainee to satisfy that simple test. All he needs to do is point to the fact that the information which is to be used against him may have come from one of the many countries around the world that are alleged to practise torture, bearing in mind that even those who say that they do not use torture apply different standards from those that we find acceptable. Once the issue has been raised in this general way the onus will pass to SIAC. It has access to the information and is in a position to look at the facts in detail. It must decide whether there are reasonable grounds to suspect that torture has been used in the individual case that is under scrutiny. If it has such a suspicion, there is then something that it must investigate as it addresses its mind to the information that is put before it which has been obtained from the security services.
[My emphasis]
[36] Ultimately, I believe that the determination of whether evidence is likely to have been obtained by torture is a fact-driven inquiry. It is unequivocally a conclusion that requires the decision-maker to weigh the evidence in the record, to determine if it was likely the product of torture or not. Thus, I agree with the reasoning of my colleague Justice MacKay in Jaballah, above, at paragraphs 40-42, that this issue is essentially one of the weight given to evidence by the delegate. As a fact-driven inquiry that involves weighing the available evidence, as with the other aspects of the decision, this element would be subject to considerable deference by a reviewing court.
[37] The applicant submits the delegate relied on evidence likely to have been obtained by torture in concluding he has ties to terrorism. He alleges that Egypt has a record of using torture to secure information and that it “is apparent from the allegations and summary of the case against him that Canadian officials have relied on evidence obtained directly or indirectly from Egypt and that this includes information provided from individuals detained by that country and from trials [sic] proceedings characterized as unfair by international human rights organizations”. Specifically, the admissions of Essam Marzouk and Ahmed Agiza, linking Mr. Mahjoub to terrorist networks, were likely the product of torture at the hands of Egyptian security services and were relied upon by the delegate.
[38] In her reasons, the delegate took note of Mr. Mahjoub’s position that any information obtained from the Egyptian security services should be considered inherently suspect. She indicated that
[t]he evidence available both public and classified [sic] comes from a wide-range of sources over a period of time. All the evidence has been weighted in accordance with its own probative value and in view of the totality of the body of evidence.
[39] In response to the applicant’s submission that the Egyptian conviction should not be given any weight, the delegate wrote:
The conviction of Mr. Mahjoub in Egypt is not determinative of whether he is a danger to the security of Canada since, like the security certificate conclusion, it is evidence relating to his past membership in a terrorist organization. There is ample evidence, other that [sic] the conviction, with regards to Mr. Mahjoub’s involvement with a terrorist organization.
[40] The delegate clearly indicates that the Egyptian conviction is “not determinative of whether he is a danger to the security of Canada” issue. In other words, this single evidentiary element is neither sufficient, nor necessary, to her determination; even without the conviction evidence she would have come to the same conclusion in view of the totality of the evidence. In light of the inherent restrictions on her ability to reference classified information in her reasons, she could not have been more explicit.
[41] In sum, I find that while the applicant was entitled to raise the “likelihood obtained by torture” issue, and have it duly considered by the delegate, this issue ultimately concerns the weight the delegate gave the information that specific evidence was likely obtained by torture.
[42] Contrary to the applicant’s submission, I do not believe that the above reasons reveal that it is “apparent” that the delegate relied on evidence likely to have been obtained by torture. Upon reviewing both the public and classified evidence I am satisfied that the delegate did not err in according the evidence the probity she believed it deserved in light of its provenance, and in view of the other available evidence. In coming to this conclusion, I am mindful of the nature of the present context. It is one where the delegate is obliged (as am I) to omit any reference to classified information which could be used by an “informed reader” to the detriment of the security of Canada (Henrie v. Canada (Security Intelligence Review Committee) (1988), 53 D.L.R.(4th) 568, at 574-575 (F.C.T.D.), aff’d (1992) 88 D.L.R. (4th) 575 (F.C.A.); Re Harkat, 2003 FCT 285, [2003] F.C.J. No. 400 (QL) (Harkat 2003); Almrei v. Canada (M.C.I.), [2004] 4 F.C.R. 327, 2004 FC 420 at paras. 58, 62) (Almrei 2004).
b) Assessment of the evidence by the delegate
[43] The applicant submits the delegate ignored the exculpatory explanations he offered in response to allegations against him. I disagree, as she did not ignore his explanations, but rather found them not to be credible. For instance, she specifically refers to Mr. Mahjoub’s account that he happened to first meet Mr. Marzouk at an airport while making a lost luggage claim, and in light of other evidence, discounts his version as lacking credibility. Indeed, after having considered his explanations, including Mr. Mahjoub’s own qualification that certain connections were pure “coincidences”, she stated:
Far from coincidences, these are part of a pattern and are consistent with the rest of the evidence that shows an in-depth involvement in the terror network.
[44] Similarly, I cannot agree that the delegate untenably concluded that his whereabouts were “largely unknown” between 1986 and 1995, and that she ignored his explanations that he went from Saudi Arabia to Sudan before coming to Canada. She specifically cited that his whereabouts in that period were “largely unknown”, save for a period in 1992-1993 when he was working for a Bin Laden company in Sudan. Neither the delegate’s reasons, nor her reasoning, constitute an error in this regard.
[45] Despite the applicant’s submissions, the delegate did not ignore, but rather directly addressed his allegations that his current level of notoriety would preclude any present involvement with covert terrorist networks. On this point, she specifically articulated that “[…] Mr. Mahjoub’s notoriety, position and influence, should he remain in Canada and be able to communicate, would be enhanced within the movement […]”.
[46] The applicant further submits that the delegate ignored evidence of the significant changes in the terror networks with which he was allegedly involved. More particularly, she ignored the effect of the merger between Al Qaeda and AJ/VOC which occurred long after he left for Canada. That, coupled with the death or detention of any significant contacts that he could have conceivably had in those networks, vitiated any potential risk he could pose.
[47] On the contrary, I find that the delegate expressly considered the impact of these changes since Mr. Mahjoub’s arrival in Canada. This is evident from her reasons, where she stated:
I am persuaded that, from Canada, Mr. Mahjoub has been involved in the terrorist network and would likely continue to be so involved. The death and detention of other senior member of this group would not, in my opinion deter M. Mahjoub’s involvement, considering that he would, upon release, be in a position to gain even more influence as a senior member. [My emphasis]
[48] Further, as to the possibility that Mr. Mahjoub might not be able to reintegrate into the former structure, she articulated:
… I am convinced nonetheless that he would be in a position and would proceed, because of his experience, his influence and his network, to carry out the ideology of targeting for attack Western nations, particularly Canada.
[49] I am satisfied that it was reasonable for the delegate to infer that notwithstanding his considerable public exposure, the applicant could, because of his experience, his influence and his connections, participate in a terrorist organization. She was entitled to give little weight to Mr. Mahjoub’s submission that the passage of time and lengthy detention diminished the danger he posed to the security of Canada.
[50] The applicant challenges the delegate’s decision for ignoring the evidence contained in his medical and psychological reports, and for not providing adequate reasons why his current condition does not lessen the risk he poses. The delegate noted that the psychological report expressed the opinion that Mr. Mahjoub is exhibiting symptoms of paranoia, and that if he is not released his condition will continue to deteriorate, “that he suspects others are harming him, he bears grudges and is quick to react angrily”. She also specifically acknowledged that “Mr. Mahjoub’s submissions include a psychologist report and state that Mr. Mahjoub’s mental and physical health has been severely affected while in detention”. The delegate then stated that she was not satisfied that this would lessen the danger that he poses to the security of Canada. Thus, it is evident that she turned her attention to both his current mental and physical states in making her determination. It was not an error for her to infer that his condition would not neutralize his capacity to participate in planning terrorist activities.
[51] In response to the “guilty by association” argument, I find that the conclusions drawn regarding his involvement with terrorist networks were substantiated on a wide range of evidence, and beyond mere “guilt by association” reasoning. I am satisfied that the delegate’s conclusions in this regard mirrored findings by this Court in Canada (M.C.I.) v. Mahjoub, 2005 FC 1596, [2005] F.C.J. No. 1948 (QL) (Mahjoub DES) at paragraphs 70-73 that the confidential information “… goes far beyond guilt by association …”, and that both the public and classified evidence established Mr. Mahjoub’s connections with “individuals who were very highly placed and influential in the Islamic extremist movement”. Her determination was substantively in line with that of Justice Dawson who concluded that there is a “reasonable basis to believe that Mr. Mahjoub was a leader, a decision-maker, a planner and a recruiter for the radical Islamic cause” (Mahjoub DES, above, at para. 91).
[52] Similarly, with regard to the applicant’s submission that the delegate used stereotype-based reasoning in concluding that he would engage in terrorism despite changes in circumstances, I do not agree with him. Rather, the delegate’s inference with regard to the danger that he posed to the security of Canada reflected a consideration of all of the evidence and essentially reiterated the findings in this regard by this Court in Mahjoub DES, above, at paragraphs 80-82, 89-93 that he could re-establish connections with terrorist contacts and/or networks, that notoriety was not necessarily a neutralizing impediment to his continued involvement with terrorist activities, that the terrorist groups with which he was involved continue to remain dangerous and ultimately that he continued to pose a danger to national security or the safety of any person. Further, on this issue, I adopt the reasoning of Justice MacKay in Jaballah, above, at paragraph 41:
[…] In my view, general descriptive profiles based on more than one individual may be information of use in intelligence assessments, and the use of such a profile, by the Minister or his delegate, provided it is not the exclusive or principal information relied upon, is not so unreasonable in assessing threats to national security that the Court should intervene on review.
[53] The applicant submits on the authority of VIA Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25, [2000] F.C.J. No. 1685 (C.A.) (QL), that the delegate failed to provide sufficient reasons that articulate and sustain her findings. The legal duty to provide reasons is well established, the underlying rationale is varied and what constitutes adequate reasons will change with the circumstances of each case. (VIA Rail, above, at paras. 17-20). However, I will stress again that the circumstances of the present matter are particular, given the inherent constraints imposed by classified information which cannot be disclosed. Such constraints mean that the delegate had an overriding legal obligation not to disclose or specifically refer to any information that might compromise national security or the safety of any person in her reasons. This necessarily restricts the public articulation of the specific evidentiary basis underpinning conclusions, where any of the evidence relied upon is classified; in the words of Justice Noël “[o]ften the very form of disclosure can have an impact on national security or the safety of any person” (Re Charkaoui, 2003 FC 1418, [2003] F.C.J. No. 1815 (QL) at para. 16; see also Harkat 2003, above). On a tangential note, I find myself in a similar position with regard to the present matter, as stated by Mr. Justice Edmond Blanchard in Almrei 2004, above, at paragraph 62:
[…] I am obligated by law not to disclose any information which would be injurious to national security or to the safety of any person. In consequence, my reasons cannot be as complete as they would otherwise be with respect to why such information was either accepted or rejected in whole or in part.
[54] In relation to the issue of the danger that Mr. Mahjoub poses to the security of Canada, there was much relevant classified information, not contained in the public record. Having personally reviewed all of the information, both classified and public, which was before the delegate, I recognize how her findings could appear insufficiently corroborated solely through the lens of the public record. However, when considered in concert with the classified evidence, I am satisfied that her conclusions were well-grounded in the evidence before her. I do not find that she committed any reviewable errors with regard to the danger to the security of Canada issue.
3. Substantial risk of death and/or torture upon return to Egypt
Delegate’s Reasons
[55] The delegate first considered Mr. Mahjoub's submission that he could be executed if returned to Egypt, substantiated by the fact that other Egyptians tried at the same time received this penalty. She decided that in light of his 15-year sentence, and her examination of the Egyptian Criminal Code, that he “does not face a harsher punishment than the one he received”. She also concluded that there was no evidence to support the allegation that others who were sentenced to imprisonment along with Mr. Mahjoub were subsequently executed. Consequently, she declared that there was no substantial risk that Mr. Mahjoub would face the death penalty upon his return to Egypt.
[56] The delegate enumerated the sources she had considered in her assessment of the country conditions in Egypt. She mentioned according more weight to recent reports as they were “more likely to reflect the situation that Mr. Mahjoub would face upon return”, and giving less weight to those that failed to cite methodologies or failed to express the basis for their conclusions.
[57] She remarked that US Department of State (US DOS) reports concluded that Egypt’s “human rights record remain [sic] poor”. She also cit