Date: 20091123
Docket: IMM-1797-09
Citation: 2009 FC 1199
BETWEEN:
Khalid
ABDELLA
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER
GIBSON D. J.
Introduction
[1]
These
reasons follow the hearing at Toronto on the 5th of November, 2009
of an application for judicial review of a decision of The Minister of Public
Safety and Emergency Preparedness (the “Minister”), dated the 26th
of January, 2009, refusing the Applicant’s application under subsection 34(2)
of the Immigration and Refugee Protection Act (the “Act”), for relief from a
determination that the Applicant was inadmissible to Canada.
The Decision Under
Review
[2]
The
decision under review is brief. It reads as follows:
REQUEST FOR MINISTERIAL RELIEF PURSUANT
TO SECTION 34(2) OF THE IMMIGRATRION AND REFUGEE PROTECTION ACT
Subject:
ABDELLA, Khalid
January 1, 1975
Based on the Review of all of the
material and evidence submitted, and also specifically
§
The fact
that the applicant continued to seek contact with OLF offices after coming to Canada.
§
The
applicant by his own admission had attended at OLF Offices and Events.
§
The OLF is
a terrorist organization that has targeted transport routes, economic centers
and other civilian targets, an approach which they have reconfirmed in recent
years.
§
The
applicant did not appear to appreciate the seriousness of the actions of the
OLF.
§
The
applicant did not sufficiently sever his connection to a known terrorist group.
It is not in the national interest to
admit individuals who have been members of and who have tried to contact known
terrorist organizations. Ministerial relief is denied.
Date: Jan 26/09
The
Statutory Scheme
[3]
Section
33 and the relevant portions of section 34 of the Immigration and Refugee
Protection Act read as follows:
|
33. The facts that
constitute inadmissibility under sections 34 to 37 include facts arising from
omissions and, unless otherwise provided, include facts for which there are
reasonable grounds to believe that they have occurred, are occurring or may
occur.
34. (1) A permanent
resident or a foreign national is inadmissible on security grounds for
(a) engaging in an
act of espionage or an act of subversion against a democratic government,
institution or process as they are understood in Canada;
(b) engaging in or
instigating the subversion by force of any government;
(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.
|
33. Les faits — actes ou omissions — mentionnés
aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base
de motifs raisonnables de croire qu’ils sont survenus, surviennent ou peuvent
survenir.
34. (1) Emportent interdiction de territoire pour
raison de sécurité les faits suivants :
a) être l’auteur
d’actes d’espionnage ou se livrer à la subversion contre toute institution
démocratique, au sens où cette expression s’entend au Canada;
b) être
l’instigateur ou l’auteur d’actes visant au renversement d’un gouvernement
par la force;
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.
|
Background
[4]
In
an affidavit that was before the Minister, sworn the 24th of
September, 2002, the Applicant attested:
I am a citizen of Ethiopia and am a member of the Oromo
ethnic group. I was involved in the Oromo Liberation Front (“OLF”) when I was
a high school student at Addis Ketema Secondary School in Addis Ababa, Ethiopia. My activities took place
between May 1992 and June 1993 when I graduated from high school. I was
never a member of the OLF and my activities were limited to attending a
peaceful demonstration in Addis Ababa in May 1992, distributing pamphlets and speaking to fellow
students in support of the OLF.
In 1991 and 1992 the OLF was part of the
Transitional Government in Ethiopia and it was a legal and
legitimate political party. I have never been involved in any type of violent
activities and I do not and I never have supported the use of violence.
[emphasis added]
[5]
The
Applicant arrived in Canada on the 28th of March, 1995. He
claimed Convention refugee status. He was found to be a Convention refugee on
the 18th of January, 1996. He applied for landing in Canada. He was
found to be inadmissible to Canada due to his past involvement with the Oromo
Liberation Front (the “OLF”), an organization said to be described in paragraph
34(1)(f) of the Immigration and Refugee Protection Act, earlier quoted.
[6]
In
the Applicant’s affidavit earlier referred to, he attests:
In Canada I have never been involved in
any political activities regarding Ethiopia.
After I had first arrived in Canada I went to an office of the
Oromo community that I understood was an OLF office on Jane Street in Toronto. I went to this office one time and I
attended a meeting but I never returned there. I have later learned that this
is not an OLF office but an office of an Oromo community organization. But I
have no interest in Oromo politics. I have involved myself in Canada with the
Ethiopian Association as a volunteer to assist newcomers to Canada. I have never contributed
money to the OLF or any other Oromo organizations, except that at the one
meeting I attended at the office on Jane Street
I contributed $5.00 to their campaign to bring a singer to Canada.
I have no criminal record and I have
never had any kind of problem from the police in Canada.
[7]
The
material that was before the Minister at the time he made the decision under
review indicates that the Applicant was 16 years old when he first became
involved with the OLF which, at that time, operated openly and legally in
Ethiopia. An OLF office opened in the Applicant’s high school. The Applicant
has never been involved, except perhaps when he found himself in the wrong
place at the wrong time, in any type of violent activities in Ethiopia or in Canada. Further,
he has not been involved in any political activities regarding Ethiopia while
he has been in Canada. He is opposed to the use of violence and was
unaware at any relevant time that the OLF had committed acts of violence. He
has been in Canada continuously
since March 1995. Since 1998, he has been employed as a dental technician and
has the support of his employer who indicates that the Applicant is
hard-working and self-supporting. Further, since 1996, the Applicant has also
held a second part-time job. He contributes to the support of his family
abroad. He fears return to Ethiopia due to his past
activities.
[8]
As
earlier noted, he sought relief from the Minister pursuant to subsection 34(2)
of the Immigration and Refugee Protection Act.
[9]
In
the decision under review, the Minister indicates that he reviewed all of the
material and evidence submitted. The material that was before him, by
reference to the Tribunal Record, included a briefing note prepared for the
Minister, date stamped the 9th of March, 2006, and signed by the
President of the Canada Border Services Agency, background information on the
OLF, a memorandum from an Immigration Officer dated the 19th of
November, 1999, reporting on an interview that the Officer conducted with the
Applicant on the same date, with supporting materials, a further memorandum
from another Immigration Officer, dated the 18th of December, 2001,
reporting on an interview conducted on the 14th of November, 2001,
the Applicant’s Personal Information Form dated the 2nd of August,
1995, prepared in conjunction with his application for Convention refugee
status and submissions from the Applicant’s counsel dated the 2nd of
October, 2002, the 8th of November, 2002 and the 2nd of
December, 2002.
[10]
In
summary, there is nothing before the Court that would indicate that the
Minister had before him any material or evidence dated later than the 9th
of March, 2006, and, as earlier noted, the decision under review is dated the
26th of January, 2009, almost three years later than the date of the
latest material and more than seven years after the date of the latest
interview material with the Applicant.
[11]
The
briefing note that was before the Minister recommended that relief be granted
to the Applicant and, of course, the decision under review was not to grant
relief.
The Issues
[12]
The
sole issue raised on behalf of the Applicant on this application for judicial
review was described in the Applicant’s Memorandum of Argument filed on his
behalf in the following terms:
Did the Minister err by failing to carry
out the required balanced assessment of the factors that must be considered in
reaching a decision [such as that here under review]?
[13]
Counsel
for the Respondent, in a Further Memorandum of Argument, urged that the
Minister’s decision warrants considerable deference and, further, that the
Minister did not err in assessing the Applicant’s request for relief under
subsection 34(2) of the Immigration and Refugee Protection Act.
[14]
As
on all applications for judicial review such as this, the issue of standard of
review arises. In what follows, I will turn first to the issue of standard of
review.
Analysis
a) Standard
of review
[15]
In
Afridi v. Canada (Minister of Public Safety and Emergency Preparedness), a
judicial review of a decision similar to that here before the Court, Justice
Russell wrote at paragraphs 20, 21 and 22 of his Reasons:
In Dunsmuir v. New Brunswick ... the Supreme Court of
Canada recognized that, although the reasonableness simpliciter and
patent unreasonableness standards are theoretically different, “the analytical
problems that arise in trying to apply the different standards undercut any
conceptual usefulness created by the inherently greater flexibility of having
multiple standards of review” ... . Consequently, the Supreme Court of Canada
held that the two reasonableness standards should be collapsed into a single
form of “reasonableness” review.
The Court in Dunsmuir also held
that the standard of review analysis need not be conducted in every instance.
Instead, where the standard of review applicable to the particular question
before the Court is well-settled by past jurisprudence, a reviewing court may
adopt that standard. Only where this search proves fruitless must the
reviewing court undertake a consideration of the four factors comprising the
standard of review analysis.
Naeem v. Canada (Minister of Citizenship and
Immigration) ... holds that the standard of review on an application under
s.34 of the Act is reasonableness simpliciter. Thus, in light of the
Supreme Court of Canada’s decision in Dunsmuir and the previous
jurisprudence of this Court, I find the standard of review applicable to this
issue to be reasonableness. When reviewing a decision on this standard of
reasonableness, the analysis will be concerned with “the existence of
justification, transparency and intelligibility within the decision-making
process [and also with] whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” ...
. Put another way, the Court should only intervene if the decision is
unreasonable in the sense that it falls outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law.”
[citations
omitted]
[16]
I
adopted the foregoing quotation as my own in Ismeal v. Canada (Minister
of Public Safety and Emergency Preparedness). Ismeal was, like Afridi, a
judicial review of a decision similar to that here before the Court.
b)
Deference
[17]
Counsel
for the Respondent referred the Court to Ramadan v. The Minister of
Citizenship and Immigration and The Minister of Public Safety and Emergency
Preparedness, where Justice Zinn wrote at
paragraph 16 of his Reasons:
This is a decision [similar to the
decision here before the Court] that implements or reflects broad public
policy. It is a decision where the Minister is obliged to strike a balance
between the interests of an applicant who wishes to obtain residency in order
to be reunited with his family, and the public interest in ensuring that the
national interest is not prejudiced by a favourable decision. The fact that t
is only the Minister, and not a delegate, who is granted this authority also
suggests that significant deference is due. Taking all of these factors into
account, there is no doubt that the Minister in making the decision at hand is
deserving of the highest degree of deference.
Justice
Zinn further commented at paragraph 1 of his Reasons:
It is the Minister’s task to determine
whether waiving an inadmissibility restriction for a person who is otherwise
inadmissible to Canada would be “detrimental to the
national interest”. The Minister is uniquely placed to make such an
assessment. The Court’s role is to satisfy the foreign national and the
Canadian public that the decision-making process that was followed was fair and
that the decision, based on all the evidence, was reasonable.
All of the foregoing is directly applicable
here with the sole exception of the reference to reuniting of the Applicant
with his family.
[18]
That
being said, the Minister is not without parameters relating to the form and
substance of his decision.
c) The Duty To Ensure That Relatively
Current Evidence Is Before The
Decision-maker
And To Carry Out A Balanced Assessment
[19]
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 a national interest analysis, that being, in
essence, the analysis that was here required of the Minister. 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?
[20]
With
great respect, those questions, while fully addressed in the briefing note that
was before the Minister, which reached a different conclusion from that reached
by the Minister, which was shared with the Applicant so that he knew the
recommendation that was before the Minister, but which itself was substantially
out of date when the Minister reached his decision and was based on
information, also before the Minister, which was even more substantially out of
date, were simply not directly addressed in the form of a balanced assessment
in the decision under review.
[21]
The
Applicant urges that when assessing the “national interest”, a decision-maker
must make a complete evaluation and take into consideration the totality of the
relevant issues and factors referred to in the Guidelines. The Court would go
further. In assessing the “national interest” a decision-maker must not only
make a “complete evaluation” and take into consideration the “totality of the
relevant issues and factors” referred to in the Guidelines, but he or she must
do so on the basis of relatively complete and, relatively current, information.
[22]
Once
again, in Afridi, supra, Justice Russell wrote at paragraph 45 of
his Reasons:
In the present case, the Applicant is not
asking the Court to re-weigh evidence. The Applicant is saying that, on the
facts of the present case, no such weighing occurred. The relevant guidelines
and all factors other than the Applicant’s prior involvement with the MQM [here
the OLF] were simply ignored. After reviewing the decision, I have to agree
with the Applicant. There is no attempt to identify and acknowledge the
matters enumerated in the guidelines or to engage in any kind of assessment in
balancing of all of the factors and evidence at play.
I am satisfied that much the same might be
said here with the following modifications: here, there is no attempt on the
face of the decision under review to identify and acknowledge a number of the
matters enumerated in the Guidelines. In particular, the evidence before the
Minister of the Applicant’s severance of ties with the OLF, the absence of any
evidence that the Applicant might be benefiting from assets obtained from
members of the OLF or benefiting from his previous adherence, not membership,
to the OLF and of his apparent adoption of the democratic values of Canadian
society and, I would add of its norms and values, would not appear to have been
assessed or evaluated in a balancing of the totality of the evidence at play.
Further, the fact that the evidence at play appears to be badly out of date was
not even acknowledged.
Conclusion and
Certification of a Question
[23] In the result this application
for judicial review will be allowed. The decision under review will be set
aside and the Applicant’s request for relief will be referred back to the
Respondent for reconsideration and redetermination. Signed copies of these
reasons will be circulated to counsel. Counsel for the Respondent will have 10
working days from the date of circulation to serve and file any submissions on
certification of a question. Counsel for the Applicant will have five working
days from the date of service on him of any submissions by the Respondent’s
counsel to respond in writing served and filed with the Court. Finally,
counsel the Respondent will have three working days to serve and file any
reply. Only thereafter, and once the Court has had an opportunity to consider
any such submissions, will an Order issue.
Ancillary Matter
[24] A limited amount of material in
the Tribunal Record here before the Court was expurgated. Counsel for the
Applicant filed a motion pursuant to section 87 of the Immigration and
Refugee Protection Act seeking review of the expurgation. The Chief
Justice of this Court determined the expurgations not to be relevant to the
hearing of this proceeding and continued the motion sine die. The
matter was not raised at hearing. Given the decision herein, the motion will
be dismissed in the Order to follow.
“Frederick E. Gibson”
Ottawa, Ontario
November
23, 2009
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