Date: 20080222
Docket: IMM-924-07
Citation: 2008 FC 241
Ottawa, Ontario, February 22,
2008
PRESENT: The Honourable Barry Strayer, Deputy Judge
BETWEEN:
YOUSSEF
KANAAN
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
This
is an application for judicial review of a decision of February 12, 2007 of the
Minister of Public Safety and Emergency Preparedness refusing the Applicant’s
request for ministerial relief under subsection 34(2) of the Immigration
Refugee and Protection Act (Act) from the status of inadmissibility
prescribed under paragraph 34(1)(f) of the Act.
Facts
[2]
Section
34 of the Act provides in part as follows:
|
34(1)
A permanent resident or a foreign national is inadmissible on security
grounds for
…
(f) being a member of an organization that there are
reasonable grounds to believe engages, has engaged or will engage in acts
referred to in paragraph…(c) [terrorism]
(2) The matters referred to in subsection (1) do
not constitute inadmissibility in respect of a permanent resident or a
foreign national who satisfies the Minister that their presence in Canada
would not be detrimental to the national interest.
|
34(1) Emportent interdiction de territoire pour raison de sécurité
les faits suivants :
…
f) être membre
d’une organisation dont il y a des motifs raisonnables de croire qu’elle est,
a été ou sera l’auteur d’un acte visé aux alinéas ...
(2) Ces faits n’emportent pas interdiction
de territoire pour le résident permanent ou l’étranger qui convainc le
ministre que sa présence au Canada ne serait nullement préjudiciable à
l’intérêt national.
|
[3]
The
Applicant is a stateless Palestinian from Lebanon. He came to Canada in 1993. He made an
unsuccessful application for refugee status. He then applied for permanent
resident status on humanitarian and compassionate grounds. This application was
approved in principle on February 1, 2001. There then ensued a prolonged
security check which focused on the question of inadmissibility under paragraph
34(1)(f), supra. At the suggestion of an Immigration Officer, the
Applicant applied on May 29, 2002 for the exercise by the Minister [of Public
Safety and Emergency Preparedness] based on a requested finding that his
presence in Canada would not be
detrimental to the national interest. The matter thus was put in the hands of
the Canada Border Services Agency (CBSA). Nearly four years later, on February
20, 2006 that Agency gave to counsel for the Applicant a draft of its briefing note
which would be provided to the Minister to advise him as to the exercise of his
power under subsection 34(2). This note recommended against a decision by the
Minister in the Applicant’s favour: that is, CBSA recommended against a finding
that the Applicant’s presence in Canada would not be detrimental to the
national interest. The Applicant was given an opportunity to comment on this
draft briefing note before it was sent to the Minister. On March 31, 2006 he
submitted a statutory declaration and considerable other documentary material.
On July 25, 2006 he submitted country reports on Lebanon. After receiving this material the CBSA on
August 30, 2006 sent the briefing note to the Minister. That final version of
the briefing note was, apart from a few editorial changes, identical to the
draft briefing note given to the Applicant in February, 2006. The only
recognition that further submissions and evidence had been provided to the
Agency was an addition to the list of “enclosures” at the end of the briefing
note which listed as an additional item:
11.
Further submissions from disclosure process.
Attached to this
briefing note was a decision form which simply stated “Based on my review of
the materials submitted, Ministerial relief is”: there then followed one line
for the Minister to sign if he approved Ministerial relief and another line for
him to sign if he denied Ministerial relief. The Minister signed on the
“denied” line on February 12, 2007. There is no indication of any reasons
originating with the Minister and I must therefore assume that the briefing
note upon which his decision was based provides the reasons for the decision.
[4]
In
his original claim for refugee status, and in subsequent interviews with immigration
authorities, the Applicant had asserted that before leaving Lebanon he had lived all his
life in a Palestinian refugee camp in that country, and that he had been
induced to join the Abu Nidal Organization (ANO) in the camp, an organization
that is considered terrorist. He said that he joined somewhat against his will
and that he had never carried out any terrorist missions for the ANO when
requested to do so. He eventually became frightened of the ANO and left Lebanon to come to Canada,
leaving behind him a wife and two small children. Although he changed the
details from time to time, it was not until his submissions and statutory
declaration submitted on March 31, 2006 by way of comment on the draft briefing
note that he denied ever having been a member of the ANO. He explained that he had
on earlier occasions lied about his involvement with the ANO in order to
strengthen his claims for refugee status based on fear of returning to Lebanon. He confirmed that he
was by this time a pacifist and had joined the Mennonite Church in Canada, eschewing terrorist tactics and violence
of any kind. He gave further information as to his establishment in Canada in
the intervening four years since he had first applied for favourable consideration
by the Minister under subsection 34(2) and this was confirmed by various
testimonials also submitted. He also pointed out the hardship that would be
involved were he to be excluded from Canada under section 34, being a stateless person
without a travel document and no right of return to Lebanon. For that reason he
probably would have to stay in Canada, but under these circumstances his wife
and children could not be brought to Canada if he was refused permanent residence by virtue
of being an inadmissible person under section 34. He also pointed out the
hardship of returning to Lebanon, even if that were possible, including his
probable inability to get the medical care he needed as a result of an accident
in Canada. There is not a single
reference to any of this information in the final version of the briefing note.
Counsel for the Respondent urges that the fact that the further submissions
were listed as the 11th item of “enclosures” provided to the
Minister indicates that the CBSA and the Minister must have read them. This is
a conclusion to which I find it extremely difficult to jump. See, e.g. Ogunfowora
v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 456,
paras. 25, 26.
Analysis
[5]
While
the Minister’s power under subsection 34(2) is non-delegable and must be
exercised by himself, it is proper to treat the CBSA’s briefing note as his
reasons: see e.g. Miller v. Canada (Solicitor General), [2006] F.C.J. No. 1164.
I also adopt the reasoning of other judges in this Court that the standard of
review of such a decision of the Minister is that of patent unreasonability:
see e.g. Miller, id at para. 42, Soe v. Canada (Minister of Public
Safety and Emergency Preparedness), [2007] F.C.J. No. 620 at para. 16.
[6]
It
is well established that the Minister has an obligation in exercising his power
under subsection 34(2) to assess and balance all relevant factors: see Naeem
v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 173 at paras. 60-65. The
further submissions and statutory declaration submitted on behalf of the
Applicant on March 31, 2006 pertained to several factors which should have been
considered by the Minister. The new denial of membership in the ANO should have
been considered even if it were ultimately disbelieved. Evidence of the
claimant’s further establishment in Canada since 2002 and the hardship he and
his family had endured since that time, plus the particular hardship of the
Applicant’s status as a stateless person deserved consideration as did the
evidence of his affirmation of opposition to terrorism and his new membership in
the Mennonite Church of Canada. None of these factors were mentioned even for
the purpose of dismissing them in balancing the exercise of the ministerial
power.
[7]
Of
course, a tribunal need not mention every bit of evidence considered, but when the
evidence is sufficiently important and is not mentioned, a Court may infer that
it was not considered: Cepeda-Gutierrez v. Canada (Minister of Citizenship
and Immigration) (1998) 157 F.T.R. 35. Instead, in the closing words of the
briefing note (which must be taken to reflect the Minister’s views) it is said
that:
…
Mr. Kanaan’s lengthy membership in an organization listed as a terrorist
entity, coupled with his obvious lack of credibility, makes it impossible for
CBSA to make a recommendation that his presence in Canada would not be detrimental to the national interest… .
This seems to negate the purpose of subsection
34(2) which contemplates that even persons who are or have been members of a
terrorist organization might be admissible if “their presence in Canada would
not be detrimental to the national interest”. The assumption of the quoted
rationale seems to be that if a person has wrongly denied membership in a
terrorist organization he will always be a threat to the national interest of Canada. It does not consider,
for example, that even if the Applicant had been a member of ANO and whatever
the quality of that membership, he had been absent from Lebanon and the
activities of the ANO for 14 years prior to the Minister’s decision.
[8]
I
therefore conclude that the Minister’s decision was patently unreasonable in
that it failed to take into account evidence and factors presented in the
Applicant’s submissions of March 31, 2006 and July 25, 2006. The decision seems
to have turned on the simplistic view that the presence in Canada of someone
who at some time in the past may have belonged to a terrorist organization
abroad can never be in the national interest of Canada. I will therefore set aside the Minister’s
decision and refer the matter back to him for reconsideration.
[9]
The
Applicant requests that I set a deadline for the Minister’s reconsideration
under subsection 34(2). Considering the gross delay in the issuance of the last
decision (nearly five years) I believe this would be appropriate. I recognize
the exigencies of ministerial responsibility but I believe that a deadline of
90 days would not be unreasonable, considering the personal difficulties of the
Applicant and his family.
Disposition
[10]
I
will therefore allow the application for judicial review, set aside the
Minister’s decision of February 12, 2007 and refer the matter back to him for
reconsideration and decision within 90 days of this judgment.
[11]
The
Applicant requested that I certify a question as to whether a Minister’s
decision under subsection 34(2) has to show that reference was made to relevant
submissions. Counsel for the Respondent argued that this would not be a
question of general importance and I agree. It is a question which can only be
answered in respect of a particular set of facts. I will therefore certify no
question.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
decision of the Minister of Public Safety and Emergency Preparedness of
February 12, 2007 refusing Ministerial relief under subsection 34(2) of the Immigration
and Refugee Protection Act be set aside and the matter be referred back to
the Minister for reconsideration and a decision no later than 90 days from the
date of this judgment.
“B.L. Strayer”
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