Date: 20050415
Docket: IMM-2907-04
Citation: 2005 FC 509
BETWEEN:
MOHSEN ESMAEILI-TARKI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
O'KEEFE J.
[1] This is an application for judicial review by Mohsen Esmaeili-Tarki (the "applicant") of a decision of the respondent, the Minister of Citizenship and Immigration (the "Minister" or the "respondent"), dated March 12, 2004, wherein the Minister refused to apply the exception to the inadmissibility exclusion found in section 34 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). The Minister was not satisfied that the applicant's presence in Canada would not be detrimental to the national interest.
[2] The applicant seeks an order setting aside the decision of the Minister, and referring the matter back to the Minister for reconsideration. The applicant further seeks a direction that if there is no new evidence capable of demonstrating that the applicant's presence in Canada would be detrimental to the national interest, ministerial relief and permanent residence should be granted to the applicant.
[3] The applicant also advises that should this application for judicial review be successful, he will submit that "special reasons" exist in support of an order of costs in his favour.
Background
[4] The applicant is a citizen of Iran. He was the victim of violence in Iran due to his involvement in the Mojahedin-E-Khalq (the "MEK"). The violence and continued threats against him prompted the applicant to leave Iran in November 1997. After being in transit for some months, the applicant entered Canada and made a refugee claim on March 3, 1998. It was determined by the Convention Refugee Determination Division of the Immigration and Refugee Board on January 5, 1999, that the applicant is a Convention refugee.
[5] On or about February 28, 1999, the applicant applied for permanent residence in Canada. Pursuant to his application, he was subsequently interviewed at the Scarborough Canada Immigration Centre by an officer of CSIS.
[6] The applicant attended another interview, this time with an immigration officer, at the Scarborough Centre on May 24, 2001, during which the applicant was asked to describe his involvement in the MEK and about his circumstances in Canada since his arrival. The applicant reports that at this interview, the officer explained that a decision would be made as to whether the applicant was inadmissible because of his involvement with the MEK, and if he was found inadmissible, a decision would be made whether to seek favourable consideration by the Minister in his case.
[7] While the applicant awaited a response as to whether he would receive special consideration, there was considerable activity at Citizenship and Immigration Canada ("CIC") regarding the applicant's file.
[8] Jessie Annand of the Scarborough office wrote a memo to Ian Taylor, Director of Security Review, dated July 23, 2001, which reads:
Mr. Esmaeili Tarki was interviewed per your request to determine if he is inadmissible to Canada pursuant to sub-paragraph A19(1)(f)(iii)(b). The interview was conducted on May 24, 2001, no interpreter was required.
Mr. Esmaeili Tarki states he was not a member of the MEK but a sympathizer. He does admit distributing phamplets [sic] and fundraising for the MEK. He also accepted telephone calls on their behalf. He became involved in 1994 because of his opposition to the government. This organization was big and against the government. He also had a friend who was involved. He was involved in the MEK for 2 years, his involvement ending when he was involved in a car accident. He admits attending one MEK meeting in Toronto, 1998 as he was curious. He states he stayed 1 ½ hours and then he returned home. He does not want to be involved and he would refuse if they asked him to fundraise.
It is my opinion that Mr. Esmaeili Tarki meets the definition of 19(1)(f)(iii)(b). There are reasonable grounds to believe he was a member of an organization that there are reasonable grounds to believe is or was engaged in terrorism specifically the MEK. It is also my opinion that there are sufficient H & C grounds to warrant favourable consideration in this case.
Client came to Canada in March 1998 and was found to be a convention refugee Jan. 5, 1999. Since his arrival, Mr. Esmaeili Tarki has attended Overlea Blvd. School and Centennial College for ESL classes. He now speaks excellent English. He presently attends Yorkdale Adult Learning Centre taking computer courses, which ended June 2001. He has worked in Canada since 1998 and has $1000 in savings. He states he has no assets in or out of Canada and no other bank accounts. He presently resides alone but wants to marry his present girlfriend. He has been accepted at University. He passed medicals and RCMP check.
With Mr. Esmaeili Tarki's positive convention refugee status, his establishment and the fact that he has not had any envolvement [sic] with the MEK since 1998, I recommend favorable consideration be granted and request your concurrence to continue processing towards landing from within Canada.
[9] E-mails were exchanged between Hélène Beauchamp, Analyst at Security Review, and the immigration officer informing the immigration officer that a further recommendation that Ministerial relief (and reasons for such a recommendation) was required. This was provided by Jessie Annand on August 24, 2001.
[10] On June 3, 2002, CIC provided a memorandum to the Minister for decision, which recommended that the Minister grant relief to overcome the applicant's inadmissibility. The Honourable Denis Coderre, then the Minister, signed "no concurrence" in response to this memorandum on June 19, 2002.
[11] A handwritten note to file (author unknown) on CIC letterhead, dated June 28, 2002, contains the following:
Note to file. Spoke with Luc Fournier in MO this date.
Minister's lack of concurrence due to age, time in Cda, has _illegible_ proven to not be involved in MEK activities? Will revisit with MO in Aug.
[12] On or about February, 2004, CIC was advised that the Minister did not grant relief in the applicant's case. There is no indication in the record as to whether Minister Coderre or his successor revisited the applicant's case, and, if there was no subsequent Ministerial review of the applicant's file, there is no explanation for why it took almost 1 ½ years for the Minister's office to inform CIC formally of the decision that was made in June 2002.
[13] CIC was asked to send the letter that eventually informed the applicant of the Minister's decision. The relevant parts of the letter, signed by T. Argyrides of CIC and dated March 12, 2004, reads as follows:
This letter concerns your submission to be considered for Ministerial Relief pursuant to section 34(2) of the Immigration and Refugee Protection Act.
I regret to inform you were not granted this exemption because you did not satisfy the Minister that your presence in Canada would not be detrimental to the national interest.
As a result, it has been determined that your application for landing must be refused as you are a person described in sub-paragraph 19(1)(f)(iii)(b) of the former Immigration Act, A 34(1)(f) of the Immigration and Refugee Protection Act. However, it has been determined that your life and freedom would be threatened if you were to return to your country of habitual residence, and you were granted status as a Convention Refugee. As such, you will be allowed to remain in Canada and will continue to be afforded the protection of Canada as per the Geneva Convention for as long as you remain in Canada and do not otherwise become inadmissible. You may work and study in Canada, as long as you have obtained a work permit or student permit.
[14] CIC did not provide the applicant with written reasons for the Minister's decision.
Issues
[15] The issues are as follows:
1. Is the respondent's decision that the applicant's presence in Canada would be detrimental to the national interest supported by any evidence?
2. Was there a requirement that reasons be provided by the Minister for his decision?
Applicant's Submissions
[16] It is the applicant's position that the Minister's decision was based "on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it", in that there is no evidence to support the Minister's conclusion.
[17] The applicant relied on the following factors: the nature of his involvement with the MEK, including its brevity and his low level of involvement; his lack of actual involvement in terrorist acts or acts of violence; his lack of involvement with the MEK since leaving Iran and entering Canada; his civil record, work history, and circumstances in Canada; and the lack of any indication that he represents a security risk or danger to the public in Canada, either in the past or in the future. The applicant stated that these factors are consistent with the policy guidelines published by the CIC.
[18] It is submitted that all of the considerations found in the policy guidelines, as well as the recommendations of CIC to the Minister, favoured the applicant. Accordingly, the applicant asserted that the Minister's negative decision was perverse or capricious in that the Minister did not follow his own policy.
[19] The applicant submitted that the Minister should have given reasons for his decision.
Respondent's Submissions
[20] The respondent submitted that the nature of the applicant's past involvement with the MEK should be considered, along with the length of his involvement. The applicant did fundraising for the MEK and attended one meeting of the MEK in Canada.
[21] The respondent submitted that the Minister could rely on this evidence in reaching his decision.
[22] The respondent further stated that the Minister could rely on the fact that the applicant had shown no remorse for his involvement with MEK nor did he renounce MEK.
[23] The respondent stated that the Minister should not have to give reasons for his decision.
Relevant Statutory Provisions
[24] Section 34 of IRPA states:
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34. (1) A permanent resident or a foreign national is inadmissible on security grounds for . . .
(c) engaging in terrorism;
. . .
(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 (a), (b) or (c).
(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.
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34. (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants: . . .
c) se livrer au terrorisme;
. . .
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 a), b) ou c).
(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.
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Analysis and Decision
[25] The applicant is seeking judicial review of the Minister's conclusion that he has not proven that his presence in Canada would not be detrimental to the national interest. As the decision is one of ministerial discretion, it must be subject to the highest level of deference. The standard of review to be applied to the decision is that of patent unreasonableness.
[26] Issue 1
Is the respondent's decision that the applicant's presence in Canada would be detrimental to the national interest supported by any evidence?
A review of the record in this case shows that the Minister's departmental officials
consistently supported and recommended the granting of a ministerial exemption. When the Minister did not concur with these recommendations, it appears from the record that he had the same material before him as did his officials. No reasons were given by the Minister for his decision and there is no indication in the record of any new information or material being before the Minister.
[27] There is no doubt that the exercise of the Minister's discretion is afforded great deference, but his decision must be supported by the evidence. The respondent submitted that the fact that the applicant had fundraised for the terrorist organization and that he did not specifically denounce the group, was information that the Minister could have relied on in reaching his decision. With respect to the first point, it seems to me that the department's own policy respecting persons such as the applicant contemplates that in certain circumstances, the Minister may grant an exemption to persons who had previously been members of a terrorist organization. I would note that in regard to the second point, the applicant was not questioned about this point. The notes of his interview with the official stated in part:
Client states that he is away from all of that now, he does not want to be involved. He wants to get on with his life. He is away from everything.
[28] I have reviewed the total record and I am of the view that the Minister's decision is not supported by the evidence and therefore, must be set aside. From the record, I do not know what the Minister relied upon to come to a different conclusion than that recommended by this officials. There is no doubt that the Minister can come to a different determination than his officials, however, there must be some evidence to support his decision and I cannot find that evidence in this case.
[29] The application for judicial review is therefore allowed and the matter is referred back to the Minister for reconsideration.
[30] Because of my finding on Issue 1, I need not deal with Issue 2.
[31] The parties shall have one week from the date of this decision to submit any proposed question of general importance for my consideration for certification and a further three days to reply to any proposed question.
"John A. O'Keefe"
J.F.C.
Toronto, Ontario
April 15, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2907-04
STYLE OF CAUSE: MOHSEN ESMAEILI-TARKI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 22, 2005
REASONS FOR ORDER BY: O'KEEFE J.
DATED: APRIL 15, 2005
APPEARANCES:
Douglas Lehrer
FOR THE APPLICANT
Kevin Lunney
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Vander Vennen Lehrer
Toronto, Ontario
FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
FOR THE RESPONDENT
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