Date: 20100630
Docket: IMM-249-08
Citation: 2010
FC 716
Ottawa, Ontario,
June 30, 2010
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
FEREIDOUN
GHASEMZADEH
Applicant
and
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Fereidoun Ghasemzadeh (the applicant) is an industrial engineer and a citizen
of Iran who applied to immigrate to Canada in 1996. He has refused to answer
questions asked of him during interviews with Canadian Security Intelligence
Service (CSIS) agents and a Canadian visa officer regarding projects he worked
on as an employee with the Iranian Defense Industries Organization (DIO) from
1982-1989 as part of his compulsory military obligations as a citizen of Iran.
Michel Dupuis, Counsellor and Operations Manager of Immigration at the Canadian
Embassy in Damascus, Syria, (“Counsellor Dupuis”) determined that the applicant
was inadmissible to Canada on the basis of misrepresentation, pursuant to
subsection 40(1)(a) of the Immigration
and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA). The applicant seeks to
quash by way of this application for judicial review this decision made on
November 29, 2007,
[2]
The
decision was communicated to the applicant by way of letter, dated November 29,
2007 and the reasons consist of both the Computer Assisted Immigration
Processing System (CAIPS) notes and the information supplied in the letter.
[3]
The core
reason expressed by Counsellor Dupuis for refusing the applicant is succinctly
expressed in the CAIPS note which he wrote on November 29, 2007 after reviewing
the file. I reproduce his entire entry into the CAIPS notes:
I have reviewed the file and the case
notes.
It is clear to me that the applicant has
provided misleading information or that he was withholding information during
various interviewsd [sic].
In 1997 he refused to provide information
which was specifically requested. [T]his information concerning with whom he
was working and the prupose [sic] of trips to several countries was important
information to assess eligibitlity [sic] and admissibility (the hiding of
information by an applicant makes it very heard [sic] if not impossible to make
a determination if an applicant is inadmissible or not.
In 1998 the applicant admitted the fact
that he was withholding information and he provided some explanation about fear
of reprisal etc. The interview was held in a safe place (in 1998 in the USA) I
see no reason why the applicant would categorically refuse to talk about his work
at the Iranian Defense Industries. This was covering a period of 7 years enough
to have a serious impact on his eligibility or his admissibility. However
despite specific request [sic] the applicant refused and is still refusing to
provide any information concerning his 7 years there. The question is: is the
applicant admissible or not? It is impossible to be certain because the
applicant decided to hide information from us despite several requests. The
applicant was given ample opportunities to address our concerns and to provide
the required information.
The applicant choose [sic] to withheld
information from us: the applicant had several opportunities over the course of
10 years to provide the required information so that we can make a decision on
his admissibility.
[I]n my opinion the applicant is
withholding material information that are [sic] necessary to make a decision on
his applicant [sic]; accepting the applicant on the basis of the informaiton
[sic] provided (and on the basis of missing important information) could have
indiced [sic] an error in the administration of IRPA in that it is possible
that the applicant is inadmissible.
For that [sic] reasons I am refusing this
applicant as per Section 40(1)(a) of the Act and the applicant is inadmissible
for 2 years as per subsection (1).
[A]pplication refused.
[4]
It has
been more than two years since the applicant was notified by Counsellor Dupuis
that his application for permanent residency had been refused. The issue of
mootness was not discussed by either party in their respective submissions but
raised by the Court. However, counsel were in agreement when considering this
issue for the first time at the hearing there remains a live issue underlying
this application and that I should exercise my discretion and hear the case (Borowski
v. Canada (Attorney General), [1989] 1 S.C.R. 342). I agreed.
[5]
Section
40(1) of IRPA reads:
|
Misrepresentation
40.
(1)
A permanent resident or a foreign national is inadmissible for
misrepresentation
(a)
for directly or indirectly misrepresenting or withholding material facts
relating to a relevant matter that induces or could induce an error in the
administration of this Act;
(b)
for being or having been sponsored by a person who is determined to be
inadmissible for misrepresentation;
(c)
on a final determination to vacate a decision to allow the claim for refugee
protection by the permanent resident or the foreign national; or
(d)
on ceasing to be a citizen under paragraph 10(1)(a) of the Citizenship Act,
in the circumstances set out in subsection 10(2) of that Act.
[Emphasis
added]
|
Fausses
déclarations
40.
(1)
Emportent interdiction de territoire pour fausses déclarations les faits
suivants :
a)
directement ou indirectement, faire une présentation erronée sur un fait
important quant à un objet pertinent, ou une réticence sur ce fait, ce qui
entraîne ou risque d’entraîner une erreur dans l’application de la présente
loi;
b) être
ou avoir été parrainé par un répondant dont il a été statué qu’il est
interdit de territoire pour fausses déclarations;
c)
l’annulation en dernier ressort de la décision ayant accueilli la demande d’asile;
d)
la perte de la citoyenneté au titre de l’alinéa 10(1)a) de la Loi sur la
citoyenneté dans le cas visé au paragraphe 10(2) de cette loi.
|
[6]
The
following is a summary of the factual context in which the questions referred
by Counsellor Dupuis arise:
·
In 1982,
the applicant obtained a Bachelor of Science degree.
·
From 1982
to 1989 Mr. Ghasemzadeh performed his military obligations working at the Defense
Industries Organization ((DIO). During this time he worked with the then
Iranian President’s son, Mohsin Rafsanjani (Mohsin).
·
In 1989,
with two other colleagues he established a management consulting company under
the name Nazmiran which is still operating today.
·
From 1989
to 1993 he was employed at the Special Investigation Office (SIO) attached to
the office of the President of Iran. At the time the applicant joined SIO,
Mohsin Rafsanjani was the head of the unit.
·
From 1993
to 1998 he studied in Canada at McMaster University in Hamilton earning his PhD
in Information Systems. Moshin played a part in obtaining a state scholarship
for him. He introduced the applicant to Iran’s ambassador to Canada whom the
applicant visited in Ottawa.
·
From 1998
he was CEO and Project Manager of Afranet Company, a company in which the
Iranian Development and Reconstruction Organization has a 40% interest, the
remainder of the interest being held by the applicant, his family and two other
co-founders. This company provides internet, e-commerce and voice over
services.
·
Since
1998, Mr. Ghasemzadeh has been a Professor at Sharif University of Technology
teaching courses on electronic commerce and business models and decision
support systems.
[7]
Counsellor
Dupuis did not interview the applicant. In his decision, he identifies two
subject matters which the applicant refused to disclose at the first interview
with a CSIS officer on October 1, 1997 (hereinafter, the “1997 Interview”) in
Buffalo, New York, USA:
(1) The identities of three
colleagues at Nazmiran Company; and
(2) Details regarding the purpose of
official trips to China, France and Spain in 1989 related to the applicant’s
employment at the SIO.
[8]
The
applicant was again interviewed by a CSIS officer on August 13, 1998
(hereinafter, the “1998 Interview”) in Buffalo, New York, USA and on May 28,
2006 (hereinafter, the “2006 Interview”) in Damascus, Syria. The notes of those
interviews indicate Mr. Ghasemzadeh refused to provide answers on: details
relating to employment at the Iranian DIO from 1982 to 1989.
[9]
During the
2006 Interview, the applicant provided all the previously withheld
information on subject matters (1) and (2) and provided
explanations for why he had not disclosed. Despite his ultimate disclosure,
Counsellor Dupuis relies on the previous refusals as indicative of a “pattern
of non-cooperation”. Ultimately, he determined that the “misrepresentation
or withholding of the above-cited material facts could have
induced errors in the administration of the Act because they could
have resulted in an inaccurate assessment of [Mr. Ghasemzadeh’s]
inadmissibility under Division 4 of Part 1 of the Act.”
[10]
Counsellor Dupuis was
not cross-examined on his affidavit filed in support of the respondent’s position.
He asserts that his decision was based on his review of the CAIPS notes and
particularly those of the May 28, 2006 interview which he says shows:
[…]
the Applicant was informed that his unwillingness to answer questions
about his previous work and partners was part of the problem in why a
decision could not be made in his application. The Applicant’s repeated
refusal to answer questions made it impossible to determine whether
the Applicant was admissible to Canada and it is still the case today.
….
Our
office has been unable to more fully probe the nature of the Applicant’s work
with the DIO because he has repeatedly refused and continues to refuse to
answer questions on the nature of his work. In my opinion, such a denial
does not rule out the Applicant’s involvement in other matters that could
affect Canada’s security.
…
The Applicant had been interviewed five
times and he was told that he must answer all questions put to him. When
the file was given to me for decision, I found that I had enough information on
file to render a decision and it was not necessary to convoke the Applicant for
a sixth interview in order to tease out answers that he had refused to provide
in the past. It was my conclusions that there was ample evidence in the
Applicant’s file to determine that the Applicant was withholding material facts
relating to a relevant matter.
[Emphasis added]
I. The Legal Framework for Section 40
[11]
Throughout the
immigration process, the onus is on the applicant to show that he meets the
requirements of IRPA. Section 16(1) of IRPA imposes a duty on the applicant to answer
truthfully all questions asked during an examination. A visa may be issued if,
following an examination, an officer is satisfied that a foreign national is
not inadmissible and meets the requirements of IRPA (IRPA, s.11). To facilitate the visa officer’s
decision, the applicant is required to answer truthfully all questions put to
him for the purposes of the examination (IRPA,
s.16). Should the Minister
deny the visa on the basis of inadmissibility, the onus is on the Minister to
show the grounds for a finding of inadmissibility.
[12]
In
addition to the discrete grounds of inadmissibility such as security (s.34),
serious criminality (s.36) or health (s.38), is the broader ground of
misrepresentation (IRPA, ss.40(1)(a)). That section can apply to
direct misrepresentation (e.g. providing false information to an officer) and
indirect misrepresentation (e.g. information provided by a person other than
that who is rendered inadmissible) or to a withholding of material facts which
is the situation in this case. In order to rely on the latter, the Minister
must be satisfied that the following elements of withholding are made out:
(1) that there is a
withholding, and
(2)
that the withholding is
of material fact relating to a relevant matter, and
(3)
the withholding
induces, or could induce an error in the administration of the Act.
(See, Bellido v. Canada (Minister of
Citizenship and Immigration),
2005 FC 452, [2005] F.C.J. No. 572, at para. 27 [Bellido cited to FC],
quoted with approval in Zhang
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1313, [2005] F.C.J. No. 1594 at
para. 17).
[13]
In general
terms, an applicant for permanent residence has a duty of candour to disclose all material facts during the application
process as well as and after a visa is issued (Baro v. Canada (Minister of
Citizenship and Immigration),
2007 FC 1299, [2007] F.C.J. No. 1667 at para. 15 [Baro]). To omit
material facts may constitute a misrepresentation in the form of a withholding.
For example, where an applicant’s marital status has changed and the applicant
has failed to alert immigration officials to this information, the Court has
found an applicant to have withheld material information such that he is now
inadmissible because of misrepresentation (Baro, at paras. 18-19). However, as the
Federal Court affirmed, in Baro, above, an exception arises
where an applicant can show reasonable belief that he or she was not
withholding material information (Medel v. Canada (Minister of Citizenship and
Immigration),
[1990] 2 F.C. 345 cited by Baro, at para. 15). Thus, the duty
of candour is not unbounded: “there
is no onus on the person to disclose all information that might possibly be
relevant" (Baro, at para. 17). The facts of each case
will illustrate whether the applicant can rely on this exception.
[14]
As will be become
clear in these reasons, Mr. Ghasemzadeh was put on notice the CSIS and visa
officers were concerned about his employment activities while at DIO. As a
result, this exception cannot apply on these facts.
II. Issues and Standard of Review
[15]
There are
two issues before me:
A.
Did
Counsellor Dupuis breach the applicant’s right to procedural fairness in making
his decision without interviewing the applicant thereby denying him an
opportunity to address Counsellor Dupuis’ concerns?
B.
Did
Counsellor Dupuis err in applying paragraph 40(1)(a) of IRPA?
[16]
An
allegation of breach of procedural fairness is reviewed on a standard of
correctness (Suresh v. Canada (Minister of Citizenship
and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 [Suresh]). In most cases, a breach of
procedural fairness will be determinative of the application for judicial
review. The applicant submits that there are two grounds upon which I may find
a breach of procedural fairness, in both cases, the right allegedly breached is
the right to be heard, or audi
alteram partem.
[17]
As regards
the second issue, the Court will accord deference to the decision-maker on
findings of fact or mixed law and fact. As explained by the Supreme Court of
Canada in Dunsmuir v. New Brunswick, 2008 SCC 9 [Dunsmuir],
a question posed to an administrative tribunal may “give rise to a number of possible,
reasonable conclusions” (para. 47). This Court is tasked with reviewing the
qualities that make a decision reasonable, including both the process of
articulating the reasons and the outcomes (ibid).
Where the decision is not defensible with respect to the facts or law this
Court should exercise its discretion to intervene.
[18]
According
to Justice Judith A. Snider’s analysis in Bellido, above, which was pre-Dunsmuir, the necessary elements of
misrepresentations constitute determinations of fact and are reviewable on a
standard of patent unreasonableness, a standard of review which Dunsmuir eliminated by collapsing it
into the reasonableness standard. In Koo v. Canada (Minister of Citizenship and
Immigration),
2008 FC 931, [2008] F.C.J. No. 1152 the reasoning in Dunsmuir was applied to Bellido and the Federal Court determined the
applicable standard of review to be reasonableness (at para. 20, affirmed in Mugu v. Canada
(Minister of Citizenship and Immigration), 2009 FC 384, [2009] F.C.J. No. 457, at
para. 36 [Mugu]).
[19]
A nuance
should be brought into the analysis. Dunsmuir concerned a judicial review of a provincial tribunal, not a
federal one. Federal tribunals are governed by section 18 of the Federal Courts Act, R.S. 1985, c. F-7, (the “Act”)
in judicial review matters. Section 18.1 (4)(d) of that Act provides that this
Court may set aside a decision of a federal tribunal if that decision was
“based on an erroneous finding of fact that it made in a perverse or capricious
manner or without regard to the evidence.” The Supreme Court of Canada in Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 [Khosa ], held
that paragraph 18.1(4)d) of the Act was not a legislated standard but
nevertheless “provided legislated guidance as to “the degree of deference” owed
to the [federal tribunal’s] findings of fact” (Khosa, para. 3). The Court explained further
at paragraph 46: “Parliament
intended administrative fact finding to command a high degree of deference.
This is quite consistent with Dunsmuir. [s.18.1(4)(d)] provides
legislative precision to the reasonableness standard of review of factual
issues in cases falling under the Federal Courts Act.”
III. Evidence before Counsellor Dupuis
[20]
The
purpose of the CSIS interviews in 1997 and 1998 was to provide Citizenship and
Immigration Canada (CIC) with a security assessment as part of the immigration
process.
The following facts were disclosed by the
applicant in 1997 Interview regarding his work at DIO:
·
His
employment at DIO was in fulfilment of his compulsory military service. He
opted to serve six years with pay instead of two years without pay at the front
lines of the Iraq/Iran war because he had recently married and needed income.
·
He worked
as a systems analyst and industrial engineer and was classified as an engineer
developing organizational and flow charts.
·
He did
work on classified projects. He was unsure of his security level but
guessed he had the lowest of the four possible levels.
·
He
indicated, in response to direct questions, he did not work in relation to arms
– chemical, biological or delivery systems.
·
He
explained that he travelled during his employment overseas. He provided details
as to how the trips were financed, his method of travel, the location and
purpose. He explained why he was selected for this travel trip and refused to
disclose the names of others team members and did not provide additional
information as to the details.
·
He
refused to provide details of actual work on classified projects.
[21]
In the
1998 Interview, the CSIS officer noted the “[s]ubject was questioned about his
employment with the [DIO]…and again refused to provide any details because
he felt it was unethical.”
The applicant denied that he was being pressured to conceal information and
stated that his refusal to cooperate was personal. The CSIS officer quoted the
applicant’s explanation for non-disclosure as follows: “there is a death
penalty for disclosing information, even minor social information and I prefer
not to get into things that will risk my life and my family’s life”.
Further, the CSIS officer noted that the applicant referred to a recent case
where an Iranian was sentenced to death for giving economic information to
Japan.
[22]
After
these interviews, a security Memorandum was provided to the Immigration Section
in Buffalo on March 28, 2002 (hereinafter, the Memorandum). The purpose of
which was to provide guidance on issues arising from possible inadmissibility
under sub-paragraph 19(1)(f)(iii)(A) of the Immigration Act, R.S.C. 1985, c. I-2 (eff October 23, 2000 to June 27, 2002). It was the opinion of the
security analyst that:
Subject may be inadmissible under A19(a)(f)(iii)(A) and
should be re-interviewed by the visa officer in order to try and obtain
further information concerning his activities with the DIO. His
repeated refusal in revealing information is making it difficult to determine
any inadmissibility in this case. However, close scrutiny should be given
before rendering a final decision.
[Emphasis added]
[23]
The
applicant was re-interviewed four years later in May 2006 in Damascus, Syria by
a visa officer. Mr. Ghasemzadeh was again asked about his work at DIO. The
following further details emerged:
·
He
indicated that he worked in Industrial Engineering at DIO.
·
He did not
work at ammunitions factory because he was not a mechanical engineer.
·
His main
duties at DIO were things like line balancing to increase production,
organizational charts, production procedures and documentation.
·
He stated
that he worked with Ammunition Company (Muhimmat Sazi) which was built by
Germans, Israelis and Swiss and listed on the Ministry of Defence site.
·
However,
he was not willing to disclose the activities of the company because
this information is on the web site and he is not comfortable to talk about
what they were producing.
·
Again, he
denied seeing chemical or biological weapons developed.
A. Did Counsellor Dupuis Breach the Applicant’s Right
to Procedural Fairness?
[24]
It is
settled law: “the concept of procedural fairness is eminently variable and its
content is to be decided in the specific context of each case. All of the
circumstances must be considered” (Baker v. Canada (Minister of Citizenship and
Immigration),
[1999] 2 S.C.R. 817 at page 837, [Baker]). As noted in Baker, the content of the duty of
procedural fairness “depends on an appreciation of the context of the
particular statute and the rights affected”.
[25]
Thus,
identifying the context in which IRPA operates is important in determining the
scope of procedural fairness or fundamental justice. “The most fundamental
principle of immigration law is that non-citizens do not have an unqualified
right to enter or remain in Canada.” (Canada (Minister of Employment and Immigration) v.
Chiarelli, [1992]
1 S.C.R. 711 at page 733). “The Government has the right and duty to keep out and to expel aliens from
this country if it considers it advisable to do so.” (Kindler v. Canada
(Minister of Justice), [1991] 2 S.C.R. 779 at page 834).
[26]
The
applicant submits that the visa officer breached his right to procedural
fairness in one of two ways: 1) he was not afforded an opportunity to respond
to the officer’s concerns about his refusal to answer questions about DIO
and/or 2) he was not provided an opportunity to respond to the officer’s
concerns regarding his explanation for past refusals.
[27]
An oral
hearing is not always necessary for a visa officer to fulfill his duty of
procedural fairness. “The flexible nature of the duty of fairness recognizes
that meaningful participation can occur in different ways in different
situations” (Baker, above, page 843). What the duty requires is that the
applicant be afforded a meaningful opportunity to present the various types of
evidence relevant to his or her case and have it fully and fairly considered.
Generally, where there are credibility issues, a person is entitled an opportunity
to address the issues which may form a credibility finding in some meaningful
way (Mukamutara v. Canada (Minister of Citizenship and Immigration), 2008 FC 451, [2008] F.C.J. No. 573 at para. 24 [Mukamutara]). As I will explain, however,
the lack of a full oral hearing did not constitute a violation of the
requirements of procedural fairness to which the applicant was entitled in
these circumstances.
[28]
The
applicant’s repeated refusals to answer questions regarding his specific work
activities at the DIO concerned Canadian officials. At each of the successive
interviews with CSIS officers and visa officers the applicant provided more
details to past questions he had refused to answer, but on his review of the
file, Counsellor Dupuis was ultimately unsatisfied that the applicant was not
inadmissible.
[29]
With
respect to the first alleged breach, it is clear from the CAIPS notes of the
May 28, 2006 interview with a visa officer that the applicant was well aware
that his refusal to answer questions was a concern.
[30]
As regards
the second alleged breach, Counsellor Dupuis was notably not persuaded by the
applicant’s explanation for his past and present refusals to answer. The
applicant submits that this caused the decision to be couched in an
unfavourable credibility assessment of the applicant. Since the applicant was
not interviewed by Counsellor Dupuis, the applicant asserts that negative
credibility findings constitute a breach of the duty of procedural fairness.
[31]
I would
emphasize that Counsellor Dupuis’ decision was not based on the applicant’s
credibility but rather, on the fact of misrepresentation. The applicant refused
to answer questions. The applicant submits that in circumstances where the
answers to questions would endanger the life of a person, as is alleged here,
he cannot be expected to provide an answer. I would agree. But, a reasonable
explanation for a refusal does not change the fact that the applicant is
withholding information. The jurisprudence provides just one basis on which an
applicant’s state of mind is relevant; that is, when it is reasonable to
believe one is not withholding material information. This cannot apply to the
circumstances of this case: the applicant was asked about his work at DIO and
he refused to answer. It is clear that the visa officer and CSIS officers
wanted to know what work he had completed or been involved in at DIO.
[32]
Therefore,
Counsellor Dupuis’ assessment of the applicant’s explanation for refusing to
answer questions which the applicant submits was based on an unfavourable
assessment or extrinsic evidence is not accurate and has no relevance to his
finding of withholding. Consequently, not providing a further interview to the
applicant is not a breach of procedural fairness by Counsellor Dupuis in the circumstances
of this case.
B. Did Counsellor Dupuis Err
in Applying Paragraph 40(1)(a) of IRPA Such that There Was No Finding
of Materiality of the Withholding?
[33]
It is not
disputed that the refusal to answer questions constitutes a withholding of
information for the purposes of s.40(1)(a) of IRPA.
[34]
The
applicant submits the questions regarding the work the applicant did while at
DIO would not yield material facts relevant to his application for permanent
residence. His counsel asserts there is no evidence that Counsellor Dupuis
conducted an analysis of the materiality of the withholding; therefore, he
could not rely on s. 40(1)(a) of IRPA.
The applicant relies on Justice Douglas Campbell’s decision in Ali v. Canada (Minister
of Citizenship and Immigration),
2008 FC 166, [2008] F.C.J. No. 212 [Ali] in support of this argument. I
agree with my colleague’s decision but it is completely distinguishable.
[35]
In Ali, above, the misrepresentation
was not a refusal to answer a question put to the applicant for the purposes of
an examination, but rather it was the fact that a fraudulent school record had
been submitted. The decision to apply s.40(1)(a) of IRPA was based on the following premise:
because school records are used as evidence of “age, identity, and relationship
to the family member in Canada” a fraudulent document could induce an error in
the Act. Importantly, Justice Campbell found that none of these characteristics
of the individual were in doubt prior to the detection of the fraud. The visa
officer had not considered materiality of that document and could not assume
any fraudulent document is evidence for the purposes of making out a
misrepresentation pursuant to s.40(1)(a) of IRPA. In sum, Justice Campbell found that the
fraudulent document had no impact on the visa officer’s decision to the
children’s admission to Canada.
[36]
The
misrepresentation in this case is a withholding of information by way of
refusal to answer certain questions regarding past employment activities. While
the materiality of the answers to those questions cannot be assessed for
obvious reasons no answers were given, the scope of the inquiry can be. In
refusing the applicant’s permanent residence application, Counsellor Dupuis
reasoned the withholding of answers related the applicant’s work at DIO could
have resulted in an inaccurate assessment of his inadmissibility. In Biao v. Canada
(Minister of Citizenship and Immigration), 2001 FCA 43, [2001] F.C.J. No. 338 [Biao],
the Federal Court of Appeal held that a visa officer would be justified in
denying an application for permanent residence if the approval would contravene
the Act. The Court determined the applicant’s failure to provide necessary
documents to establish his admissibility to Canada did not contravene the Immigration Act but rather constituted an
appropriate basis for the officer’s decision to deny the application (Biao, at para. 2). This same reasoning should
apply to the facts of this case.
[37]
The
applicant also argues materiality of the withholding cannot be justified because
there are no reasonable grounds for suspicion of Mr. Ghasemzadeh’s
inadmissibility. Specifically, the applicant argued the government of Iran was
not designated a human rights violator at relevant times, the applicant did not
hold a chain of command position, and there is no allegation of his engagement
(or that of his government) in war crimes or crimes against humanity. Thus,
relying on the applicant’s refusal to answer questions regarding his work at
DIO is unreasonable for the same reasons as in Sinnaiah v. Canada (Minister of
Citizenship and Immigration),
2004 FC 1576, [2004] F.C.J. No. 1908 [Sinnaiah]. I disagree.
[38]
Firstly,
in Sinnaiah, above, the issue before the
court was not concerning the reasonableness of applying the misrepresentation
provision but rather the reasonableness of the officer’s inference that the
applicant was a member of a terrorist organization. Second, in Sinnaiah, the applicant had denied membership and
the Court found there was not a “scintilla of evidence” before the officer that
could meet the threshold of reasonable grounds for membership in a terrorist
organization (para. 17). The Court analyzed the evidentiary record and
intervened on the basis that there was insufficient evidence for the officer’s
conclusion that he was a member of a terrorist organization. The applicant’s
attempt to use the Court’s dicta regarding reasonableness of the officer’s line
of questioning in that context is of no assistance to the applicant.
[39]
Counsel
for the applicant relied on a number of other cases in support her proposition
in this case there was no connection between the withholding and his
application to become a permanent resident of Canada. She relied on Baseer
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1005, [2004]
F.C.J. No. 1239 [Baseer]; Walia v. Canada (Minister of Citizenship
and Immigration), 2008 FC 486, [2008] F.C.J. No. 622 [Walia] and Mukamutara,
above. With respect, none of the cases listed are of assistance to the
applicant. Baseer was decided on the basis there was no evidence to
support a misrepresentation. Walia was based on the fact the evidence
did not establish the facts relevant to admissibility which was also the case in
Mukmuatara.
[40]
It is true
that Counsellor Dupuis did not cite the specific ground of inadmissibility,
e.g. security, or criminality, terrorism or war crimes. This omission does not
constitute an error because of the totality of the facts leads to only one
reasonable conclusion: he knew he was a security concern and remains so. (See,
Boulis v. Canada (Minister of Manpower and Immigration), [1974] S.C.R.
875 at page 885 for the legal proposition that the Court refrain from reading a
Board’s reasons microscopically; and note, the following pages in the
applicant’s record are evidence the applicant knew perfectly well the concern
which the Canadian officials had with his employment at DIO and SIO and the
circumstances surrounding those employments (e.g. links with high officials in
the Iranian government) were security concerns related to his admissibility -
see pages 71 to 108 and in particular page 103).
[41]
Despite
the able arguments of the applicant’s counsel, the materiality of the questions
regarding his activities at DIO is without doubt. As in Mohammed v. Canada (Minister
of Citizenship and Immigration.), [1997] 3 F.C. 299, the effect of refusal, specifically the
failure to disclose his employment activities, was to foreclose or avert
further inquiries. Ultimately, the purpose of the officer’s inquiry regarding
inadmissibility is frustrated. The withholding could have induced an error in
the determination of the applicant’s inadmissibility under IRPA, as Counsellor Dupuis
identified.
[42]
I considered the parties’ requests for costs
related to bad faith. Since that matter was not pursued by counsel for the
applicant, I do not see the special reasons criteria required by Rule 22 of the
Federal Courts Immigration and Refugee Protection Rules, SOR/93-22, has
been met.
[43]
I close by
mentioning that the respondent had made a motion under section 87 of IRPA
for non-disclosure of materials in the Certified Tribunal Record which had been
redacted. Counsel for the applicant countered with an application to appoint a
special advocate. Those motions were not pursued after the respondent agreed
with the Court that the decision-maker had not relied on any redacted material
to make the decision he did.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES THAT this
judicial review application is dismissed without costs. Either party may, on or
before, July 9, 2010, submit one or more questions for certification with right
of reply served and filed on or before July 16, 2010
“François Lemieux”
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