Date: 20091231
Docket: IMM-1728-09
Citation: 2009 FC 1302
Ottawa, Ontario, December 31, 2009
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
MUHSEN
AHMED RAMADAN AGRAIRA
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondents
AMENDED REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a
decision by the Minister of Public Safety, Peter Van Loan, denying Mr.
Agraira’s application for Ministerial relief, under subsection 34(2) of IRPA,
contrary to the recommendation of the Canada Border Services Agency (CBSA). These
are my reasons for determining that the application will be granted.
Background
[2]
Mr.
Agraira is a citizen of Libya. He left that country in March of 1996 at
the age of 26. His parents, three brothers and three sisters remain in Libya.
[3]
The
applicant initially sought refugee protection in Germany on the basis
that he was a member of the Libyan National Salvation Front (LNSF) and had engaged
in activities for that organization for which he would be persecuted. The
German authorities did not believe his story. He tried again in Canada in May of 1997.
According to his personal information form ("PIF"), the applicant
claimed to have belonged to a cell of the LNSF engaged in training, recruiting
and fund-raising. The claim was denied by the Immigration and Refugee Board in
November 1998, again on credibility grounds.
[4]
The
applicant was subsequently sponsored by his Canadian born wife and filed an
application for permanent residence in September 1999. The couple later
separated and a divorce was granted in 2004.
[5]
While
the sponsorship application was still pending, in May 2002, the applicant was
interviewed at Citizenship and Immigration Canada (CIC) in Oshawa, Ontario to
assess his admissibility to Canada. In this interview, the applicant
confirmed that he had been a member of the LNSF starting in 1994. However, he
also stated that he had, in the past, embellished his statements about his
involvement in the LNSF to strengthen his refugee claim and denied that he had
ever engaged in activities for the LNSF. The applicant also indicated to the
CIC officer that he was no longer a member of the LNSF and had no contact with
the LNSF since his arrival in Canada in 1997.
[6]
The
CIC officer noted several discrepancies in the information provided by the
applicant. Although the applicant had initially stated that he attended LNSF
meetings in Libya, he later
indicated that he never attended any meetings, but only discussed the
organization with friends. Mr. Agraira also claimed to have had no contact with
the LNSF since leaving Libya, but then stated that he received
newsletters from the organization in the United States.
[7]
It
was the CIC officer’s conclusion that the applicant was a person described by
paragraph 34(1 )(f) of the IRPA, for being a member of the LNSF, an organization
that there are reasonable grounds to believe engages, has engaged or will
engage in acts of terrorism referred to in paragraph 34(1)(c) of the IRPA. As
such, the applicant was inadmissible to Canada. An
application for leave and for judicial review of that decision was denied.
[8]
In
July 2002, the applicant applied to be considered for Ministerial relief. In
2006, the Canada Border Services Agency (CBSA) recommended that relief be
granted to the applicant pursuant to subsection 34(2) of the IRPA. The Agency was
of the opinion that there was not enough evidence to conclude that Mr. Agraira’s
continued presence in Canada would be detrimental to the national
interest. On June 27, 2009, the Honourable Peter Van Loan, Minister of Public
Safety, denied relief.
Decision Under Review
[9]
In
his brief set of reasons, the Minister of Public Safety found that:
a. The applicant
offered inconsistent and contradictory statements of his involvement with the LNSF;
b. There is
clear evidence that the LNSF has engaged in terrorism and has used terrorist
violence in attempts to overthrow a government;
c. There is
evidence that the LNSF has been aligned at various times with Libyan Islamic
groups that have links to Al Qaeda;
d. It is
difficult to believe that the applicant, who in interviews with officials
indicated at one point that he belonged to a “cell” of the LNSF, was unaware of
the LNSF’s previous activity.
[10]
The
Minister concluded that it was not in the national interest to admit
individuals who have had sustained contact with known terrorist and/or
terrorist-connected organizations.
Issues
[11]
The
sole issue is whether the Minister’s decision was unreasonable.
Analysis
[12]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9, the Supreme
Court of Canada abandoned
the patent unreasonableness standard leaving only two standards of review,
correctness and reasonableness. The Supreme Court also held that a standard of
review analysis need not be conducted in every instance. Where the standard of
review applicable to the particular question before the court is well-settled
by past jurisprudence, the reviewing court may adopt that standard of review.
[13]
In
this context, I adopt the views of Justice Anne Mactavish in Tameh v. Canada (The
Minister of Public Safety and Emergency Preparedness), 2008 FC
884, [2008] F.C.J. No. 1111, at paras. 34-36:
34 Insofar as the merits of the
Minister's decision is concerned, a decision to grant or refuse an application
for Ministerial relief is a discretionary one, and should thus be accorded
significant deference: see Miller v. Canada (Solicitor General), 2006 FC
912, [2006] F.C.J. No. 1164, at para. 42; and Yamani v. Canada (Minister of Public Safety
and Emergency Preparedness),
2007 FC 381, [2007] F.C.J. No. 520, at paras. 38-39.
35 As the Supreme Court of Canada
observed at paragraph 51 of Dunsmuir, supra, the standard of
reasonableness will generally apply when reviewing the exercise of a
discretionary power. This is especially so where, as here, the power conferred
on the Minister cannot be delegated, and the Minister himself has considerable
expertise in matters of national security and the national interest.
36 As a consequence, I agree with the
parties that the merits of the Minister's decision are to be reviewed against
the standard of reasonableness. In reviewing a decision against the
reasonableness standard, the reviewing court must consider the justification,
transparency and intelligibility of the decision-making process. The court must
also consider whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law: Dunsmuir,
at para. 47.
[14]
In
a case such as this one, there might be more than one reasonable outcome.
However, as long as the process adopted by the Minister and its outcome fits
comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome: Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] S.C.J. No. 12, at para. 59.
[15]
Significant
deference should be accorded to discretionary Ministerial decisions as the
power conferred on the Minister cannot be delegated, and the Minister has presumably
acquired expertise in matters of national security and the national interest in
the course of exercising his functions: Tameh, supra.
[16]
Another
consideration in favour of deference is the “political” nature of such a
discretionary decision. In A & others v. Secretary of State for the Home
Department, [2004] UKHL 56, at para. 29, the House of Lords indicated that
it is not appropriate for the courts to intervene in ministerial or political
decisions:
29. … The more purely political
(in a broad or narrow sense) a question is, the more appropriate it will be for
political resolution and the less likely it is to be an appropriate matter for
judicial decision. The smaller, therefore, will be the potential role of
the court. It is the function of political and not judicial bodies to
resolve political questions. Conversely, the greater the legal content of
any issue, the greater the potential role of the court, because under our
constitution and subject to the sovereign power of Parliament it is the
function of the courts and not of political bodies to resolve legal questions. The
present question seems to me to be very much at the political end of the
spectrum. [Underlining added]
[17]
As
this Court determined in Kablawi v. Canada (Minister of
Public Safety and Emergency Preparedness), 2008 FC 1011, [2008]
F.C.J. No. 1256, the sensitive nature of such a discretionary decision by the
Minister is deserving of respect by this Court. I adopt the reasoning of
Justice Barnes at paragraph 24 of his reasons:
24. … The exercise of the Minister's
discretion in this situation does not lend itself to a particular result.
Either possible outcome can be reasonably defended on the strength of the
available evidence. The Minister's decision is transparent; it can be
justified; and it is intelligible. It is also a decision arising in an area
where the Minister and his advisors have a considerable degree of special
knowledge involving sensitivity to the imperatives of public policy and to the
nuances of the legislative scheme. In short, this decision falls well
within the range of possible, acceptable outcomes described by in Dunsmuir
v. New
Brunswick,
above, and it is, therefore, deserving of respect. [Underlining added]
[18]
At
first impression, therefore, the decision by the Minister of Public Safety
denying Mr. Agraira’s application for Ministerial relief, is a question at the
political end of the spectrum and not a matter which is appropriate for
judicial intervention. On closer scrutiny, however, I am persuaded that the
decision is reviewable.
[19]
The
Minister appears to have placed considerable weight on what is described as
“clear evidence that the LNSF has engaged in terrorism” and “has been aligned
at various times with Libyan Islamic groups that have links with Al Qaeda”. On
the record of what was before the Minister, the evidence that the LNSF has
engaged in terrorism is minimal at best and there is only one mention of Al
Qaeda. The second appendix to the CBSA briefing note provides background on the
LNSF and discusses links that are believed to exist between several Libyan opposition
groups, not including the LNSF, and Al Qaeda.
[20]
The
trend assessment section of the second appendix entitled “Extremist Groups:
An International Compilation of Terrorist Organizations, Violent Political
Groups, and Issue-Oriented Militant Movements”, states that the NFSL (another
acronym for the LNSF) is a Libyan opposition group and that some Libyan
opposition groups have links with Al Qaeda. The document provides a brief
overview of the history of the group.
[21]
I
note that the LNSF/NSFL does not appear on the lists of groups proscribed by
the UN, Canada and the US as terrorist
organizations. In fact, the LNSF appears to have received support from the
international community, including western nations, in their efforts to
overthrow the Libyan government. However, the issue of whether it is or ever
was a terrorist organization is not before the Court and must be taken to have
been decided in the proceedings for which leave was denied. But I find it
difficult to understand from the record why this factor was considered to be
deserving of significant weight.
[22]
It
would have been contrary to the evidence for the Minister to find that the LNSF
is directly linked to Al Qaeda. Libyan opposition groups, including those with
Al Qaeda connections, presumably seek the removal of the current Libyan
government. Thus they are all aligned, at least to the extent that they share a
common objective.
[23]
In
a recent decision, Deputy Judge Gibson allowed an application based on similar
facts where the Minister had denied relief contrary to the CBSA recommendation:
Abdella v. Canada (Minister of Public
Safety and Emergency Preparedness), 2009 FC 1199, [2009] F.C.J. No 1493. At
paragraph 19, Deputy Judge Gibson noted that Appendix D of the IP 10 Refusal
of National Security Cases\Processing of National Interest Requests Guidelines
(the "Guidelines") sets out five questions to be examined in the
context of such an analysis. Those questions are the following:
1. Will the applicant’s
presence in Canada be offensive
to the Canadian public?
2. Have all
ties with the regime\organization been completely severed?
3. Is there
any indication that the applicant might be benefiting from assets obtained
while a member of the organization?
4. Is there
any indication that the applicant might be benefiting from previous membership
in the regime\organization?
5. Has the
person adopted the democratic values of Canadian society?
[24]
Deputy
Judge Gibson found that these questions, while fully addressed in the briefing
note that was before the Minister, were not dealt with at all in his reasons.
A further consideration was the fact that the evidence was very much out of
date.
[25]
In
this case, it does not appear from the reasons that the Minister addressed the
questions set out in IP 10 nor does he seem to have balanced the factors which
prior decisions had identified as relevant to the determination of what is in
the “national interest”. These would include: whether the applicant posed a threat
to Canada’s security; whether the applicant posed a danger to the public; the
period of time the applicant had been in Canada; whether it is consistent with
Canada’s humanitarian reputation of allowing permanent residents to settle in
Canada; the impact on both the applicant and all other members of society of the
denial of permanent residence; and the adherence to all of Canada’s
international obligations: Soe v. Canada (Minister of
Public Safety and Emergency Preparedness), 2007 FC 461, [2007]
F.C.J. No. 620; Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration),
(1998), 157 F.T.R. 35, [1998] F.C.J. No. 1425; Tryus v. Canada (Minister of
Citizenship and Immigration), 2004 FC 606, [2004] F.C.J. No. 737.
[26]
I
note also that the Minister’s Reasons do not acknowledge that the applicant has
resided in Canada since 1997,
that he has been a productive member of society, that he owns his own business
earning over $100,000 per annum and that he has no criminal record.
[27]
I
agree with the applicant that in this case, there are concerns whether the Minister’s
decision “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”: Kanaan v. Canada
(Minister of Citizenship and Immigration), 2008 FC 241, [2008] F.C.J. No.
301, at para. 8.
[28]
Accordingly,
the Minister’s analysis could be said to have rendered the exercise of
discretion meaningless. As discussed in Soe, above, at para. 34: “It is
tantamount to saying that an individual who commits an act described in
subsection 34(1) cannot secure Ministerial discretion because they committed
the very act that confers jurisdiction on the Minister to exercise discretion
under subsection 34(2)”.
[29]
Considering
the evolution of the jurisprudence regarding the Minister’s discretion provided
by subsection 34(2) and the wide scope given to the national interest, the
respondent proposes that the Court certify the following question:
When determining a ss. 34(2) application,
must the Minister of Public Safety consider any specific factors in assessing
whether a foreign national’s presence in Canada would be contrary to the national
interest? Specifically, must the Minister consider the five factors listed in
the Appendix D of IP10?
[30]
I
note that Deputy Judge Gibson declined to certify this question in Abdella,
above (Order of December 17, 2009) primarily on the ground that the matter
before him turned on its particular facts. I am satisfied that the answer to
the question would be determinative of this case. The question also raises an
issue of broad significance, the resolution of which will have an impact on
future cases heard by this Court. I find that the proposed question satisfies
the requirements in s. 74(d) of the IRPA.
JUDGMENT
IT IS THE
JUDGMENT OF THIS COURT that the application
for judicial review is granted.
The following question is
certified:
When determining a ss. 34(2) application,
must the Minister of Public Safety consider any specific factors in assessing
whether a foreign national’s presence in Canada would be contrary to the national
interest? Specifically, must the Minister consider the five factors listed in
the Appendix D of IP10?
“Richard
G. Mosley”
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