Date: 20001011
Docket: IMM-5668-99
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
KATHLEEN OWENS
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] In this application the Minister challenges the decision of the Immigration and Refugee Board, whereby its Immigration Appeal Division ("Appeal Division") allowed Ms. Owens' appeal from the decision of a visa officer. The visa officer had refused the sponsored application for permanent residence made by Ms. Owens' husband, Samir Fawaz. The refusal was based upon the visa officer's belief that Mr. Fawaz was a member of the inadmissible class of persons described by clause 19(1)(f)(iii)(B) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, ("Act"). That provision states:
| 19. (1) No person shall be granted admission who is a member of any of the following classes:
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(f) persons who there are reasonable grounds to believe
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(iii) are or were members of an organization that there are reasonable grounds to believe is or was engaged in
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(B) terrorism,
except persons who have satisfied the Minister that their admission would not be detrimental to the national interest.
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19. (1) Les personnes suivantes appartiennent à une catégorie non admissible_:
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f) celles don't il y a des motifs raisonnables de croire qu'elles_:
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(iii) soit sont ou ont été membres d'une organisation don't il y a des motifs raisonnables de croire qu'elle se livre ou s'est livrée_:
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(B) soit à des actes de terrorisme,
le présent alinéa ne visant toutefois pas les personnes qui convainquent le ministre que leur admission ne serait nullement préjudiciable à l'intérêt national.
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| [2] While it was not suggested that Mr. Fawaz was personally involved in any acts of violence, the visa officer concluded that Mr. Fawaz was inadmissible because he "indicated having been a member of a group for which there are reasonable ground [sic] to believe, is or was engaged in terrorism." The group referred to was the Muslim Brotherhood. |
| [3] Ms. Owens' appeal to the Appeal Division was based upon the grounds that the visa officer's decision was wrong, and that there existed compassionate or humanitarian considerations which warranted the granting of special relief. |
| [4] At the appeal hearing both Ms. Owens and Mr. Fawaz testified. Mr. Fawaz was able to testify in person because he has lived in Canada since 1989. Through much of that period he operated his own business. Ms. Owens also called an expert witness who was found to be qualified by the Appeal Division to give expert evidence on the Muslim Brotherhood and its role in the Middle East and in Syria. In addition to relying upon a text, Revolutionary and Dissident Movements of the World, 3d ed. (London: Longman Group, 1991), the Minister called an immigration investigator to give evidence. That witness had investigated Mr. Fawaz's business activities following Mr. Fawaz's testimony given on June 21, 1999. Counsel for the Minister described the investigation as "preliminary". Counsel for the appellant called the investigation "uninformed and incomplete". The Appeal Division found the latter characterization "to be fair". |
| [5] After hearing the evidence, in a lengthy and carefully written decision, the Appeal Division concluded that the visa officer's refusal was wrong in law. In finding the refusal to be wrong in law, the Appeal Division found that the evidence disclosed no reasonable basis for believing that the appellant was a "member" of the Muslim Brotherhood within the meaning of clause 19(1)(f)(iii)(B) of the Act and that the evidence revealed no reasonable grounds to believe that the Muslim Brotherhood is, or was, engaged in terrorism. The Appeal Division also found that compassionate or humanitarian considerations were present in the case which warranted the granting of special relief. |
| [6] In this application for judicial review, the Minister asserted that: |
| 1. The Appeal Division ignored evidence with respect to Mr. Fawaz's membership in the Muslim Brotherhood; |
| 2. The Appeal Division applied an incorrect test to determine the definition of "membership"; |
| 3. The Appeal Division erred in applying an incorrect test to determine if there were "reasonable grounds to believe" Mr. Fawaz was a member of a terrorist organization; and |
| 4. The Appeal Division erred in balancing the legal impediment against humanitarian and compassionate circumstances. |
| [7] The Minister, citing the Appeal Division's expertise, proceeded on the basis that the conclusions of the Appeal Division could only be set aside if found to be patently unreasonable. |
| (i) Did the Appeal Division ignore evidence that Mr. Fawaz was a member of the Muslim Brotherhood? |
| [8] In the further memorandum of argument filed on her behalf, the Minister listed the evidence before the Appeal Division which, in the Minister's view, established that Mr. Fawaz was a member of the Muslim Brotherhood. With the exception of a letter from his counsel to immigration authorities, all of the evidence relied upon by the Minister consisted of various prior statements made by Mr. Fawaz, and the fact that he made a refugee claim on the basis of his membership in the Muslim Brotherhood. |
| [9] I am satisfied from its content that counsel's letter to the immigration authorities was of no probative value in establishing whether Mr. Fawaz was a member of the Muslim Brotherhood. |
| [10] With respect to the balance of the evidence which the Minister pointed to, the Appeal Division's analysis of this issue concluded with the following: |
| In an affidavit filed in his judicial review application with respect to the refusal, Mr. Fawaz provides his own notes of the interview, which he said he wrote down immediately following it, much as it appears Mr. Belanger did. He admits he said he was a "member" of the Muslim Brotherhood "without any activities". He explains in the affidavit, in much the same way as he testified, that he meant he was a "member" in the sense of being associated with a movement, not being a formal or recognized member of an organization. |
| In this case, I have found Mr. Fawaz credible. There is no evidence before me that contradicts his testimony. I accept his evidence concerning his involvement with the Muslim Brotherhood. He admitted to a degree of "activity" which it appears he knew likely had a connection with the Muslim Brotherhood, through the imam at whose behest he collected money. I would characterize Mr. Fawaz' involvement as going beyond that of a mere sympathizer, but as falling short of what would fall within the term "member". |
| [11] I am unable to conclude that the Appeal Division ignored the evidence referred to by the Minister. The Appeal Division carefully considered the evidence of the prior statements made by Mr. Fawaz. It was, in my view, entitled to conclude on the evidence before it that Mr. Fawaz was a credible witness and that he gave credible testimony as to the extent of his involvement with the Muslim Brotherhood. It is not, as the Minister acknowledged, for the Court to re-weigh the evidence. It is simply for the Court to be satisfied that the relevant evidence was not ignored by the Appeal Division. |
| [12] As well, the Appeal Division carefully considered the effect of Mr. Fawaz's claim for Convention refugee status. It noted that the CRDD concluded that Mr. Fawaz was not a member of the Muslim Brotherhood. |
| [13] I find no reviewable error in the Appeal Division's conclusion that the evidence failed to disclose a reasonable basis for believing that Mr. Fawaz is or was a member of the Muslim Brotherhood. |
| (ii) Did the Appeal Division apply an incorrect test to determine membership? |
| [14] In advancing this ground, the Minister noted that the Appeal Division quoted the following excerpt from the decision of Teitelbaum, J. in Re Suresh (1997), 40 Imm. L.R. (2d) 247 (T.D.) at page 259: |
| I am satisfied that one can reasonably conclude that an individual is a "member" of an organization if one devotes one's full time to the organization or almost one's full time, if one is associated with members of the organization and if one collects funds for the organization. This is the case of Suresh. He is known to the leadership of LTTE and has continual contacts with them. |
| The Minister then noted that the Appeal Division went on immediately to state: |
| I agree with counsel for the appellant that the evidence in the instant case falls well short of what was found in Suresh. |
| [15] The Appeal Division concluded Mr. Fawaz was more than a sympathizer but fell short of being a member of the Muslim Brotherhood. |
| [16] As noted by Rothstein, J., as he then was, in Canada (Minister of Citizenship and Immigration) v. Singh (1998), 44 Imm. L.R. (2d) 309 (T.D.) at page 321, there is no formal test for membership as that word is used in clause 19(1)(f)(iii)(B) of the Act. The term is "to be given an unrestricted and broad interpretation". |
| [17] At the outset of the Appeal Division's analysis of the evidence concerning membership, the Appeal Division stated as follows: |
| It would be inappropriate to construe the word "member" in section 19(1)(f)(iii)(B) of the Act narrowly.27 That is, given that the section is directed at activities which undoubtedly have a clandestine nature, "member" should not be understood to involve attributes of "membership" in recognized or legally constituted organizations, such as the paying of fees or being registered on a membership list. At the same time, the word should have a content that goes beyond that of being a mere supporter or sympathizer. [footnote omitted] |
| [18] On a fair reading of its reasons, I cannot conclude that the Appeal Division applied an incorrect test. The Appeal Division correctly directed itself that the word "member" must not be construed narrowly. It did not apply as a test the previously quoted excerpt from Suresh. |
| (iii) Did the Appeal Division err in applying an incorrect test to determine if there were "reasonable grounds to believe" that Mr. Fawaz was a member of a terrorist organization? |
| [19] The Minister stated that the Appeal Division focussed on whether there was a bona fide belief in a serious possibility based on credible evidence, and that this set too high a test. |
| [20] The Appeal Division stated the following: |
| As stated earlier, the issue here is not whether, on a balance of probabilities, the Muslim Brotherhood is an organization that is or was engaged in terrorism. The issue is whether there are reasonable grounds to believe this to be the case. |
| [21] The appropriate test in this regard was set out by the Federal Court of Appeal in Canada (Attorney General) v. Jolly, [1975] F.C. 216 (F.C.A.) at paragraph 18 as follows: |
| But where the fact to be ascertained on the evidence is whether there are reasonable grounds for such a belief, rather than the existence of the fact itself, it seems to me that to require proof of the fact itself and proceed to determine whether it has been established is to demand the proof of a different fact from that required to be ascertained. It seems to me that the use by the statute of the expression "reasonable grounds for believing" implies that the fact itself need not be established and that evidence which falls short of proving the subversive character of the organization will be sufficient if it is enough to show reasonable grounds for believing that the organization is one that advocates subversion by force, etc. In a close case the failure to observe this distinction and to resolve the precise question dictated by the statutory wording can account for a difference in the result of an inquiry or an appeal. [emphasis added] |
| [22] In Chiau v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 642 (T.D.), Dubé J. stated at paragraph 27: |
| [27] The standard of proof required to establish "reasonable grounds" is more than a flimsy suspicion, but less than the civil test of balance of probabilities. [See Note 9 below] And, of course, a much lower threshold than the criminal standard of "beyond a reasonable doubt". It is a bona fide belief in a serious possibility based on credible evidence. |
| Note 9: See Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.); Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.); and Al Yamani, supra, note 7, at pp. 215-217. |
| [23] Based on the jurisprudence, I cannot conclude that the Appeal Division committed a reviewable error as the Minister alleged. The Appeal Division recognized that it was not to look for evidence establishing as a fact that the Muslim Brotherhood was an organization engaged in terrorism. The Appeal Division recognized as well that what was required was credible evidence giving rise to a serious possibility. This is consistent with what Justice Dubé found to be the requirement in Chiau, supra. |
| (iv) Did the Appeal Division err in balancing the "legal impediment" against the humanitarian and compassionate considerations? |
| [24] To consider this submission I think it necessary to review in its entirety the Appeal Division's analysis on this issue. That analysis was as follows: |
| Should I be wrong with respect to the legal validity of the refusal, I would nevertheless allow the appeal on the basis that sufficient humanitarian considerations are present to warrant the granting of special relief. |
| I am influenced in this regard by my impression that, in substance, the refusal amounts to less then [sic] the sum of its parts. By this I mean that the refusal rests on matching ambiguous statements made by the applicant himself, with a single textual reference to "terrorism", all in a context where there is no credible suggestion that the applicant's own role in any political activities in his home country is other than tangential and dating largely from his student days. He is now 40 years of age, and has lived and conducted business in Canada for ten years. |
| Along with the disruptive effect of a refusal on people's lives, there is a considerable stigma attached to a refusal alleging an involvement or association with "terrorism." Section 19(1)(f)(iii)(B) provides that the respondent Minister need meet a lower standard of proof than a balance of probabilities, no doubt because of the importance of the national security interests involved and the difficulty of obtaining evidence concerning clandestine activities. Nevertheless, this is not a ground of refusal that should be cited lightly. My impression after reviewing the evidence before me in this matter, is that that is what happened here. This is a factor when considering whether to grant special relief to the appellant, and to her husband. |
| With respect to their personal circumstances, I find the following. First, I find Ms. Owens to be a credible witness. Her testimony was given in a straightforward and spontaneous fashion. Her demeanour suggested to me that she is a proud individual, who is capable of displaying temper. She, and Mr. Fawaz, may occasionally strike other persons as being arrogant. This may have led to some of the problems they have encountered with officials over the last several years, which would indeed be unfortunate. It does not lead me to find either of them not credible. |
| I accept Ms. Owens testimony concerning her relationship with Mr. Fawaz as being trustworthy. They have been married for eight years. She showed genuine emotion in discussing how Mr. Fawaz' uncertain immigration status has affected their lives, and harmed their relationship. She said they had hoped to be able to sponsor his two children to come to Canada, but this has not been possible. The appellant testified that the applicant has not been able to travel with her, including to see her family in the United Kingdom, because of the difficulty in obtaining travel documents. Mr. Fawaz added that he would be worried about travelling outside Canada before this matter is resolved, because of a fear of not being allowed back into Canada. This fear is partly founded in his and Ms. Owens' experience when they went to Mexico City in April 1995 for his interview. Following the interview, Mr. Belanger sought to deny Mr. Fawaz' re-entry to Canada. Only after receiving their own legal advice that they had a right to re-enter based on his visa status, did they return. Ms. Owens has visited with Mr. Fawaz' family and children in Syria on one occasion, in 1994. He has not seen his children since 1992. |
| I have considered whether certain of Ms. Owens' own actions should weigh against them with respect to the discretionary jurisdiction. In particular, I have considered Ms. Owens' admissions that on two occasions, she made misleading statements to Canadian officials: first, to police authorities when she had a charge of assault laid against Mr. Fawaz, and second, to immigration officials when she asked to withdraw her sponsorship of Mr. Fawaz and suggested he had entered into a marriage of convenience with her. These are serious matters. |
| In the end, I have decided her actions on these occasions do not outweigh the humanitarian considerations which exist in this case. I find Ms. Owens credible with respect to how these episodes came out of her anger and frustration, caused by the stresses of the immigration problems, but more especially by Mr. Fawaz' infidelity.32 Ms. Owens misstatements to the authorities were pernicious, but did not affect the course of the immigration process respecting this application. |
| In conclusion, I find that Ms. Owens and Mr. Fawaz have a longstanding relationship, which has survived a number of bad moments. He has made a contribution to Canadian society through his successful business activities. He has been permitted to live in Canada and conduct those activities for several years. Should he not be allowed to remain, this would no doubt have a harmful impact on his and Ms' [sic] Owens personal and professional lives. I believe it is appropriate that they now be relieved of the consequences of the refusal. [footnote omitted] |
| [25] The Minister took issue with the second and third paragraphs of this analysis, and particularly the last sentence of the third paragraph. |
| [26] The Minister pointed to the wording of the governing legislative provision, paragraph 77(3)(b) of the Act, which provides: |
| 77(3) Subject to subsections (3.01) and (3.1), a Canadian citizen or permanent resident who has sponsored an application for landing that is refused pursuant to subsection (1) may appeal to the Appeal Division on either or both of the following grounds:
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(b) on the ground that there exist compassionate or humanitarian considerations that warrant the granting of special relief.
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77(3) S'il est citoyen canadien ou résident permanent, le répondant peut, sous réserve des paragraphes (3.01) et (3.1), en appeler devant la section d'appel en invoquant les moyens suivants_:
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b) raisons d'ordre humanitaire justifiant l'octroi d'une mesure spéciale.
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| [27] The Minister stated that the legislative provision does not allow consideration of all of the facts of the case and that by so doing the Appeal Division erred. The Minister relied upon the decision of this Court in Kirpal v. Canada (Minister of Citizenship and Immigration), [1997] 1 F.C. 352 (T.D.). |
| [28] In Kirpal, supra, the Court set aside a decision of the Appeal Division where in exercising its jurisdiction under subsection 77(3) of the Act, the Appeal Division had weighed the extent of the legal impediment against the strength of the humanitarian or compassionate factors which were present. |
| [29] I find the Kirpal decision distinguishable from the case before me. In the present case, there was full consideration of proper compassionate and humanitarian factors with one allegedly irrelevant consideration that of the effect of the prior wrongful refusal, being factored in. |
| [30] A patently unreasonable decision is one which is evidently unreasonable. As the Supreme Court of Canada noted in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at page 777, the difference between an unreasonable and a patent unreasonable decision lies in the "immediacy or obviousness of the defect". |
| [31] I conclude that the decision of the Appeal Division on the existence of humanitarian or compassionate factors in the present case was not patently unreasonable. I do not find the reasons of the Appeal Division with respect to the issue of its humanitarian and compassionate jurisdiction to be obviously defective. At worst, one irrelevant factor was considered. Even if the Appeal Division ought to have ignored the matter set out in the second and third paragraphs of its analysis, there were sufficient other humanitarian and compassionate factors, not tainted by any irrelevant considerations, to justify its decision. Further, in the circumstances of this case, the disruptive effect of the refusal on Mr. Fawaz's life who is established in Canada where he has lived for the past ten years and the stigma attached to him were, in my view, factors that could be properly considered and weighed with other factors by the Appeal Division. |
| [32] Therefore, this application for judicial review is dismissed. |
| [33] Counsel for the Minister submitted the following questions for certification: |
| 1. Does the IAD err when it finds that there are not reasonable grounds to believe that a person concerned is described in Section 19(1)(f)(iii)(B) of the Immigration Act when the person concerned has admitted to a Visa Officer that he belongs to an organization, and there exists documentary evidence that that organization has engaged in terrorist activities? |
| 2. Does the IAD err if it considers the legal validity of the refusal to grant landing to the person concerned as a "compassionate or humanitarian consideration" pursuant to Section 77(3)(b) of the Immigration Act? |
| [34] Counsel for Ms. Owens opposed certification as both proposed questions are highly dependent upon the specific facts of this case. |
| [35] I agree. As well, with respect to the second question in view of my conclusion that the Appeal Division did not err in sitting aside the decision of the visa officer, any finding with respect of compassionate or humanitarian considerations would not be determinative of this application. No question will be certified. |
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