IMM-3380-96
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
HAWA IBRAHIM ADAM
Respondent
REASONS FOR ORDER
JEROME A.C.J.:
This application for judicial review of an Immigration Appeal Division (IAD) decision dated August 16, 1996, which determined that a rebuttable presumption exists in paragraph 19(1)(l) of the Immigration Act, R.S.C. 1985, c. I-2 and that the respondent's husband satisfied the exception contained therein came on for hearing before me at Toronto, Ontario on May 6, 1997. At the conclusion of argument, I took the matter under reserve and indicated that my decision and written reasons would follow.
In its decision, the panel for the IAD which was composed of E.W.A. Townshend, concluded that paragraph 19(1)(l) of the Immigration Act contained a rebuttable presumption which the respondent's husband, Mr. Adam (Jawari), satisfied. On this basis the IAD concluded that the refusal of landing was not valid in law and allowed the appeal. The IAD panel based its decision primarily on a letter from former United States Ambassador to Somalia, Trusten Frank Crigler. In his letter, Ambassador Crigler stated the he knew Mr. Adam and assured that he was a good person. Mr. Crigler also stated that although the applicant was a member of the Siad Barre cabinet, he had limited or no influence in human rights policies and that he was a vocal advocate for peaceful change. In short, the letter highly praised Mr. Jawari and his reformist colleagues.
At the hearing, the applicant, The Minister of Citizenship and Immigration, submitted that there exists no rebuttable presumption in s. 19(1)(l) of the Immigration Act. The applicant also states that the respondent's husband clearly falls within one of the paragraphs found in subsection 19(1.1).
Under paragraph 19(1)(l) of the Immigration Act a person is inadmissible if he is considered to be:
| (l) persons who are or were senior members of or senior officials in the service of a government that is or was, in the opinion of the Minister, engaged in terrorism, systematic or gross human rights violations or war crimes or crimes against humanity within the meaning of subsection 7(3.36) of the Criminal Code, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest. |
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That person is deemed to be a senior member or senior official if he comes under the definition provided by paragraphs 19(1.1)(a-g):
| (1.1) For the purposes of paragraph (1)(l), "senior members of or senior officials in the service of a government" means persons who, by virtue of the position they hold or have held, are or were able to exert a significant influence on the exercise of government power and, without limiting its generality, includes |
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(a) heads of state or government;
(b) members of the cabinet or governing council;
(c) senior advisors to persons described in paragraph (a) or (b);
(d) senior members of the public service;
| (e) senior members of the military and of the intelligence and internal security apparatus; |
| (f) ambassadors and senior diplomatic officials; and |
| (g) members of the judiciary. |
It is clear from the evidence presented that the respondent's husband was a member of the Barre cabinet and therefore falls within the provisions of paragraph 19(1)(l).
The respondent was unrepresented at the hearing and therefore made no submissions in this matter.
Although I agree with the applicant that no "rebuttable presumption" exists in paragraph 19(1)(l) of the Immigration Act, I am not convinced that the IAD came to the wrong conclusion. The phrase "except persons who have satisfied the Minister that their admission would not be detrimental to the national interest," does not create a "rebuttable presumption" as the IAD has found. This provision is a discretionary statutory exception and does not create an absolute right for an applicant once he has tendered evidence rebutting the presumption of involvement in a paragraph 19(1)(l) regime. Only the Minister has the discretion to make the exception or not make the exception in the face of all the evidence and in this matter it would seem that the Minister decided not to make the exception. However, in matters where a ministerial discretion may be exercised, reasons may be required where the decision, on its face, seems perverse.
The Federal Court of Appeal found in Williams v. Canada (Minister of Citizenship and Immigration), A-855-96 (April 11, 1997) (F.C.A.)):
| ...The issue is whether it can be said with any assurance that the Minister's delegate acted in bad faith, on the basis of irrelevant criteria or evidence, or without regard to the material. There is simply no evidence that any of these things occurred and I fail to see how the result can be regarded as perverse: |
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Although the Court of Appeal in Williams, supra, found no evidence that the Minister's delegate acted in bad faith or without regard to the evidence, that cannot be said in the instant matter. The letter from the former United States Ambassador to Somalia on behalf of the respondent's husband is compelling and perhaps determinative. In light of the fact that the sole determining factor for the respondent's husband's paragraph 19(1)(l) inclusion was the cabinet position he held, the letter on his behalf, as evidence, should have been addressed in the Minister's decision. The Minister's decision effectively found that the respondent's husband's admittance would be "detrimental to the national interest." This silence, in the face of such compelling evidence, clearly makes this decision, without reasons, perverse. This does not strip the Minister of any discretionary powers but requires of her, the super-added duty to provide reasons for discretionary decisions when there is such compelling evidence supporting the alternative. There were none. The Minister may very well reach the same conclusion, but she should be required to provide reasons in circumstances such as these, where, on its face, the decision is perverse or the lack of reasons leads to the apprehension that she failed to exercise her discretion at all.
For these reasons, the application for judicial review is dismissed in part. Pursuant to subsection 77(5) of the Immigration Act this matter should be sent back to Canadian Immigration for redetermination in accordance with these reasons.
O T T A W A
August 29, 1997 "James A. Jerome"
A.C.J.
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