Date: 20111121
Docket: IMM-3767-10
Citation: 2011 FC 1332
Vancouver,
British Columbia, November
21, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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NAWAL HAJ KHALIL
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
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Respondent
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Docket: IMM-3769-10
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AND BETWEEN:
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NAWAL HAJ KHALIL
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
Ms.
Nawal Haj Khalil has been denied permanent residence in Canada because an
immigration officer found that she was a former member of Fatah, a group
believed to have engaged in acts of terrorism. An immigration officer found her
to be inadmissible to Canada under s 34(1)(f) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] (statutory references
are set out in an Annex).
[2]
Ms.
Haj Khalil argues that the officer made a number of procedural and substantive
errors. By way of this application for judicial review (IMM-3769-10), she asks
me to order another officer to reconsider her application for permanent
residence. Three previous decisions on the issue of Ms. Haj Khalil’s inadmissibility
to Canada were
overturned by this Court.
[3]
In
addition, Ms. Haj Khalil seeks judicial review of a decision of the Minister of
Public Safety and Emergency Preparedness denying her application for relief
from the officer’s inadmissibility finding. She submits that the Minister made
a number of errors and infringed her rights under s 7 of the Canadian
Charter of Rights and Freedoms. In this second application for judicial
review (IMM-3767-10), Ms. Haj Khalil asks me to order the Minister to reconsider
her request for relief.
II. Factual Background
[4]
Ms.
Haj Khalil was born in Syria in 1955. She arrived in Canada in 1994 with
her two children. They claimed refugee protection on the basis that she had
been detained and tortured in Syria.
[5]
In
her written narrative supporting her refugee claim, Ms. Haj Khalil explained
that she had worked for a magazine associated with the Palestine Liberation
Organization [PLO], called Filastin Al Thawra [FAT]. She also stated that she
was a member of the PLO-Fatah. She and her children were recognized as
Convention Refugees.
[6]
In
1996, Ms. Haj Khalil applied for permanent residence in Canada. An officer
with the Canadian Security and Intelligence Service [CSIS] concluded that
she had been a member of and a journalist for the PLO, and that the PLO
had engaged in terrorism during the time of her employment [1978-1993]. An
immigration officer subsequently interviewed Ms. Haj Khalil and concluded that
she was inadmissible to Canada. That conclusion was overturned on judicial
review.
[7]
A
second officer also found that Ms. Haj Khalil was inadmissible because she had
been a member of the PLO who was employed as a journalist for the PLO’s
official magazine. The officer took note that she had travelled with the head
of the PLO, Yasser Arafat, on a number of trips overseas. Further, Ms. Haj
Khalil continued to be in touch with her former editor and her husband, who was
employed by the Palestinian Authority. The officer’s conclusion was overturned
on judicial review on consent of the Minister.
[8]
A
third officer found Ms. Haj Khalil inadmissible because she was a member of
Fatah, not the PLO. In her role as a writer, she would have been aware of
Fatah’s ideology and must have agreed with it in order to become a trusted
member of Yasser Arafat’s press corps. That conclusion was also overturned on
judicial review on consent of the Minister.
[9]
Now,
a fourth officer has found Ms. Haj Khalil to be inadmissible on the basis of
her membership in Fatah. The officer applied a broad definition of
“membership”. This is the decision now under judicial review. The officer’s
reasoning is described in greater detail below.
[10]
In
2002, Ms. Haj Khalil requested an exemption under s 34(2) of IRPA on the
grounds that her presence in Canada was not detrimental to
the national interest. Her request was refused. That decision was quashed on
judicial review, with the Minister’s consent. Ms. Haj Khalil’s second request
for an exemption was also turned down. The Minister’s second decision is also the
subject of the present application for judicial review and is set out in
greater detail below.
III. The Officer’s Decision on
Inadmissibility
[11]
The
officer listed the materials considered in Ms. Haj Khalil’s application for
permanent residence. The officer did not interview Ms. Haj Khalil.
[12]
The
officer set out the test for inadmissibility pursuant to paragraphs 34(1)(c)
and 34(1)(f) of IRPA, that is, whether there are reasonable grounds
to believe that a foreign national is or was a member of an organization for
which there are reasonable grounds to believe that it engages, has engaged, or
will engage in acts of terrorism. The officer noted that the applicable standard
of proof is something more than mere suspicion but less than the balance of
probabilities: “In essence, reasonable grounds will exist where there is an
objective basis for the belief which is based on compelling and credible
information”: Mugesera v Canada (Minister of Citizenship and Immigration),
2005 SCC 40, at paras 114-16.
[13]
The
officer concluded that there were reasonable grounds to believe that Fatah had engaged
in terrorist activities in furtherance of its political goals, and that these
activities targeted civilians and caused civilian injuries and deaths. The
officer also found that there were reasonable grounds to believe Ms. Haj Khalil
was a member of Fatah. The officer’s analysis was divided into two sections:
“Membership” and “Evaluation of the Palestine Liberation Organization
(PLO)/Fatah Organization and Terrorism”.
(i) Membership
[14]
The
officer observed that the term “member” has been interpreted broadly. The Federal
Court of Appeal stated in Poshteh v Canada (Minister of
Citizenship and Immigration), 2005 FCA 85, at paras 27-29:
In interpreting the term
"member" in the former Immigration Act, R.S.C., 1985, c. I-2, the
Trial Division (as it then was) has said that the term is to be given an
unrestricted and broad interpretation. The rationale for such an approach
is set out in Canada (Minister of Citizenship
and Immigration) v. Singh (1998),
151 F.T.R. 101 (F.C.T.D.), at paragraph 52 where Justice Rothstein held that:
The provisions deal with subversion and
terrorism. The context in immigration legislation is public safety and national
security, the most serious concerns of government. It is trite to say that
terrorist organizations do not issue membership cards. There is no formal test
for membership and members are not therefore easily identifiable. The Minister
of Citizenship and Immigration may, if not detrimental to the national interest,
exclude an individual from the operation of subparagraph 19(1)(f)(iii)(B). I
think it is obvious that Parliament intended the term "member" to be
given an unrestricted and broad interpretation.
The same considerations apply to
paragraph 34(1)(f) of the Immigration and Refugee Protection Act….
Based on the rationale in Singh
and, in particular, on the availability of an exemption from the operation of
paragraph 34(1)(f) in appropriate cases, I am satisfied that the term
"member" under the Act should continue to be interpreted broadly.
[15]
The
officer also noted that the Federal Court of Appeal has equated a “member” with
someone who “belonged to” an organization: Chiau v Canada (Minister of
Citizenship and Immigration), [2001] 2 FC 297, at para 57.
[16]
The
officer relied on the following evidence:
• Ms.
Haj Khalil self-declared her membership in Fatah in sworn documents submitted
with her refugee and immigration applications. It was unnecessary to prove that
she was a formal, card-carrying member.
• She
was voluntarily employed for approximately 15 years as a journalist for FAT,
which was the “official information organ of the PLO” and which was controlled
by Fatah.
• She was paid out of
the funding allotted to Fatah by the PLO (the “Fatah quota”).
• She
wrote over 200 articles for the magazine, articles that would have employed the
rhetoric and accorded with the views of the PLO and Fatah. Even prior to her
formal employment, she contributed written material to FAT.
• Finally,
as a journalist, she accompanied PLO Chairman Arafat on multiple trips abroad.
[17]
The
officer also recognized the evidence of Professor Rex Brynen, who had been Ms.
Haj Khalil’s expert witness on the PLO and Palestinian society in the civil
action she instituted in 2007. Professor Brynen stated that the FAT “was the
central organ. It was the official magazine” of the PLO; it was engaged in
“public information and public relations”, “dominated by Fatah”; “[m]any of the
attacks it would have lauded would have been terrorism.”
[18]
The
officer concluded that Ms. Haj Khalil’s later denials of her membership in
Fatah were “self-serving”. The officer accepted that Ms. Haj Khalil was a
“member” of Fatah as she had originally stated. Further, the officer noted that
Ms. Haj Khalil’s denials of membership did not change the fact that her
involvement and long-term association with Fatah brought her within the broad
interpretation of membership.
(ii) Evaluation
of the Palestine Liberation Organization (PLO)/Fatah Organization and Terrorism
[19]
Having
found that Ms. Haj Khalil was a member of Fatah, the officer analysed the
question whether Fatah was an organization engaged in terrorism. The officer
noted that the definition of “terrorism” is contained in the International
Convention for the Suppression of the Financing of Terrorism, which the Supreme
Court of Canada applied in Suresh v Canada (Minister of Citizenship and Immigration),
2002 SCC 1:
98. ... “terrorism”…includes any “act
intended to cause death or serious bodily injury to a civilian, or to any other
person not taking an active part in the hostilities in a situation of armed
conflict, when the purpose of such act, by its nature or context, is to
intimidate a population, or to compel a government or an international
organization to do or to abstain from doing any act”.
[20]
In
evaluating Fatah’s involvement in terrorism, the officer considered its mandate
and involvement in acts intended to cause death or serious bodily injury to
civilians, or to any other persons not taking an active part in armed conflict.
First, the officer found that the mandate of the PLO was to establish an
independent Palestinian state through armed struggle. A number of articles of
the Palestinian National Charter [PLO Charter] explicitly advocated
violence to achieve this goal (until the signing of the Oslo Accord in 1993).
The Fatah Constitution embraced the same objective – the liberation of Palestine through
armed struggle.
[21]
Second,
the officer considered Fatah’s involvement in violent acts. The officer
recognized that not all acts of violence could be considered terrorism, but was
satisfied that some of the acts committed by Fatah came within the definition
of terrorism. The officer noted that both parties’ experts on the PLO during
the civil trial agreed that Fatah and its constituent organizations had engaged
in acts that would be considered terrorism. Ms. Haj Khalil would have been
aware of the terrorist activities around her.
[22]
The
officer discussed specific examples of terrorist acts attributed to Fatah and
its affiliated groups. These included acts aimed at killing or injuring
tourists, diplomats, passengers, and non-combatants.
(iii) Conclusion
[23]
Having
found Ms. Haj Khalil to be a former member of Fatah, and having found Fatah to
be an organization which there are reasonable grounds to believe has engaged in
terrorist activities, the officer concluded that Ms. Haj Khalil was
inadmissible to Canada pursuant to s 34(1)(f).
IV. The Minister’s Decision
Denying Relief
[24]
Applications
for ministerial relief are first assessed by a ministerial delegate within the
Canadian Border Services Agency [CBSA] who issues a recommendation to the
Minister of Public Safety and Emergency Preparedness. The final decision on the
granting of ministerial relief is made by the Minister, who may either agree or
disagree with the CBSA’s recommendation.
[25]
The
CBSA first observed that the burden was on Ms. Haj Khalil to demonstrate that
her presence in Canada would not be detrimental to the national
interest (s 34(2)). The relevant factors are set out in the CIC “IP10 Manual”. Factors
pertaining to Ms. Haj Khalil’s admission to Canada should be
balanced against the stated objectives of IRPA and Canada’s domestic
and international interests and obligations.
[26]
The
CBSA’s recommendation was organized under three headings: “Elements to
Consider”, “Considerations and Assessment”, and “Recommendation”.
(i) Elements
to Consider
[27]
As
set out below, the CBSA considered the nature and extent of Ms. Haj Khalil’s
involvement with Fatah, her current circumstances, the degree of her
establishment in Canada, and the impact of prior immigration
proceedings on her.
[28]
Ms.
Haj Khalil, in her former capacity as a journalist for the PLO, was not
personally involved in violence. She severed all ties with the organization in
1993, and there was no information to indicate that she has been involved with
any terrorist organizations since her arrival in Canada in 1994. She
no longer supports the use of terrorist tactics to achieve political ends. While Ms.
Haj Khalil had submitted there was no evidence to indicate that FAT had
advocated violence, it appeared that she had written an article describing the
killing or wounding of Israeli citizens in sympathetic terms. However, she
claimed that she had to write such articles to keep her job.
[29]
Ms.
Haj Khalil claims that she did not derive any benefit from her employment; she
simply received a salary from doing her job. She also maintains that she had no
special status in the community by virtue of being a journalist for the PLO. While
she has not expressed remorse for her involvement, she contends that she did
nothing other than report on events for the PLO, which was the entity
representing the interests of the Palestinian people.
[30]
Since
coming to Canada, Ms. Haj
Khalil has held one paid employment position. She says that finding employment
has been difficult because her Social Insurance Number begins with a “9,” which
identifies her as a person without permanent resident status. She now receives
social assistance. Although she was once heavily involved in volunteer
activities, Ms. Haj Khalil now suffers from depression, migraines and
fibromyalgia and can no longer undertake such activities. She claims that her
medical issues are due to the delayed resolution of her immigration matters. However,
in the 2007 civil proceedings before the Court (Khalil v Canada, 2007 FC
923, aff’d 2009 FCA 69), Justice Carolyn Layden-Stevenson found no causal
relationship between Ms. Haj Khalil’s immigration status and her health and
employment difficulties. The CBSA found that, although not actively involved in
Canadian society, Ms. Haj Khalil had made some efforts to integrate herself. It is
also apparent that she has raised her children to be respectful and
contributing members of Canadian society.
(ii) Considerations
and Assessment
[31]
The
CBSA observed that the objectives of IRPA must be taken into account together
with recently stated government priorities. The purposes of ministerial relief include:
• Economics;
• Public safety;
• National and global
security; and
• International and
bilateral relationships.
[32]
In
its recommendation, the CBSA summarized the following positive factors:
• Ms. Haj Khalil
severed ties with the Fatah nearly two decades ago;
• The
bulk of the evidence suggests that her activities did not extend beyond those
of a journalist;
• There
is no evidence that she engaged in violence, and her current views do not
support the use of violence;
• She
has established herself in Canada, has adopted Canadian democratic values
and has successfully raised her children to be productive members of Canadian
society.
[33]
Nevertheless,
the CBSA noted some concerns. In particular, the CBSA observed that Ms. Haj
Khalil held a trusted position in an organization that, for the duration of her
membership, routinely utilized terrorist tactics to advance its political
goals. It also observed that Ms. Haj Khalil knowingly contributed to the
propaganda efforts of the PLO, and glorified its use of violence. Moreover, in
various proceedings since her arrival in Canada, Ms. Haj
Khalil has presented inconsistent evidence regarding the nature of her
involvement. The CBSA considered that these negative factors outweighed the
positive ones and demonstrated that her presence in Canada would be
detrimental to the national interest.
[34]
The
CBSA then briefly reviewed the “social, cultural and economic benefits to Canada” that a
grant of ministerial relief might provide. After reviewing this evidence, the
CBSA concluded that it was satisfied with Ms. Haj Khalil’s establishment in
Canada and her adoption of Canada’s democratic values.
[35]
The
CBSA then considered the “safety and security of Canada,
international and bilateral relationships and obligations”. The CBSA
acknowledged that Ms. Haj Khalil had asserted that she was never a member of
Fatah and that her earlier self-identification as a member was an error in
translation. The CBSA concluded that these assertions were probably false.
First, Ms. Haj Khalil had four translators during her refugee claim and it is
unlikely they would all make the same mistake. Second, the evidence suggests
that Ms. Haj Khalil was more than a journalist; rather, she was favoured by the
upper echelons of the Fatah and the PLO. Third, she had lived with the fear of
being discovered as a Fatah-quota employee during visits to Syria between 1982
and 1990, and she knew before she arrived in Canada that there
was a distinction between members and non-members of Fatah. Finally, while she
now denies membership, she had nonetheless chosen on more than one occasion
to identify herself as a member of Fatah in sworn statements. Moreover, she had
an opportunity to correct these statements during her refugee hearing and
during interviews with immigration officials. The CBSA noted that she only
retracted her evidence on this issue after she had been presented with her
first inadmissibility finding in 2000. The CBSA found that her present denial
of membership was an attempt to minimize her involvement with Fatah.
[36]
The
CBSA then reviewed expert testimony from the 2007 civil trial regarding Ms. Haj
Khalil’s role in the organization. The CBSA concluded that she was a trusted
and loyal de facto member of Fatah who knew about, and believed in, the
PLO’s and Fatah’s goals and methods. The evidence indicated that Fatah
would have been cautious about who was hired to fill positions with FAT. Someone
hired under the Fatah-quota would be expected to be loyal, dedicated and
treated like a Fatah member. The CBSA noted that during the relevant time
period, the PLO and Fatah were essentially one organization with a single set
of goals. Ms. Haj Khalil was employed in the propaganda wing of the
organization, which glorified the use of violent tactics to achieve political
goals. Further, the evidence indicated that Ms. Haj Khalil’s trips abroad with
Yasser Arafat would have been “something quite special”. The evidence indicated
that Arafat was very security conscious; anyone traveling with him would have
been deemed to be reliable and loyal.
[37]
The
CBSA pointed out that FAT was the major vehicle for the PLO’s propaganda
efforts and, as such, glorified the use of terrorist violence. As a writer for
FAT, Ms. Haj Khalil authored about 200 articles. She stated that the magazine’s
editor defined the scope of the articles and the main ideas to be expressed,
but that writers were free to present their articles in their own way and were
not required to “toe” a corporate line. The CBSA noted, however, that in the
2007 civil trial proceedings, Ms. Haj Khalil testified that she was expected to
use terms such as “Zionist,” “martyrs,” and “brave operation” when reporting
terrorist attacks on civilian targets and that she had to write what she was
told to preserve her job.
[38]
The
CBSA noted that there was no evidence that Ms. Haj Khalil objected to this form
of editorial control or that her personal convictions were inconsistent with
those of the organization. The CBSA observed that her initial statements
indicated that she provided her own opinions in the articles she wrote, and
that she agreed with the pre-Oslo Accord views of the organization, wherein the
state of Israel was to be
eradicated and its citizens were to be regarded as legitimate targets for attack.
The CBSA concluded from this evidence that she had believed in the use of
terrorist tactics to achieve political goals, and that her employment with FAT
glorified the use of violence and served to propagate the organization’s method
and goals. The CBSA did note, however, that Ms. Haj Khalil never participated
in any violent acts; nor did she recruit members or participate in fundraising.
[39]
The
CBSA also found that Ms. Haj Khalil had expressed no remorse regarding her
membership in Fatah. She had failed to acknowledge the character of both the
PLO and Fatah during the period of her membership, or the terrorist tactics
that were an open and integral part of their methodology at that time. She
broke her ties to the PLO and Fatah only because she refused their request that
she move to Iraq, not because
she objected to the methods they used in achieving their goals. However, the
CBSA also recognized that Ms. Haj Khalil now believes in the rule of law and
does not support terrorism. Even if she rejoined Fatah, the impact on Canada’s national
interest would not be a negative one, as Fatah is now a legitimate political
party.
[40]
The
CBSA then noted that a number of evidentiary inconsistencies have arisen in the
course of Ms. Haj Khalil’s immigration and civil proceedings in Canada. It briefly
reviewed those inconsistencies and concluded that they demonstrate that Ms. Haj
Khalil has not been entirely forthright and may have presented misleading information
to achieve her goals.
[41]
The
CBSA acknowledged Ms. Haj Khalil’s belief that immigration officials refuse to
resile from their negative appraisal of her and of the PLO, regardless of the
evidence and clarifications she has presented. She argues that she has
been singled out by the Canadian government simply for having exercised
her right to free expression and association as a journalist for the PLO, which is dedicated
to achieving self-determination for Palestinians. She submitted that the grant
of ministerial relief should not be a political determination, and that
the previous recommendations on her application reflected the political
stance of the current government, which she characterized as “stridently
pro-Israel from a Zionist Christian perspective”. In response, the CBSA stated
that all applications for relief are considered individually and are assessed
on their own merit. The decision to grant or deny relief is discretionary and
rests solely with the Minister.
(iii) Recommendation
[42]
The
CBSA then conducted a “final balancing”. It reiterated that the test for
ministerial relief involves a balancing of the factors surrounding an
applicant’s admission against the stated objectives of IRPA, as well as Canada’s domestic
and international interests and obligations.
[43]
The
CBSA concluded that Ms. Haj Khalil had not demonstrated that the positive
considerations outweighed the negative ones in her case. It noted that her role
as a journalist for FAT served to glorify the use of terrorist violence to
achieve political goals. The CBSA also noted that the presence in Canada
of an individual who had been involved with a terrorist group is contrary
to Canada’s domestic
and international interests of keeping good relations with international
partners, and Canada’s
obligations in the fight against terrorism. It found that Ms. Haj Khalil held a
trusted role in the PLO at a time when it was heavily engaged in terrorist
activity, and that questions remain as to the exact nature of her involvement.
Thus, after a weighing and balancing of the relevant considerations, the CBSA
found that Ms. Haj Khalil had failed to demonstrate that her presence in Canada would not be
detrimental to the national interest.
[44]
The
Minister subsequently indicated his agreement with the CBSA’s recommendation,
and denied relief.
V. Was the Officer’s Decision on
Inadmissibility Unfair or Unreasonable?
(i) Fairness
[45]
Ms.
Haj Khalil submits that the officer treated her unfairly by failing to provide
adequate reasons for his decision and by failing to interview her. In
particular, Ms. Haj Khalil points out that the officer made adverse credibility
findings against her, yet failed to explain why her sworn evidence about her
association with the PLO and Fatah should not be believed. She submits that the
officer simply found her evidence to be self-serving.
[46]
Further,
Ms. Haj Khalil maintains that the officer should have interviewed her before
concluding that her evidence should not be believed. She specifically asked for
an interview and, in any case, principles of fundamental justice required that
an interview be held before making adverse credibility findings.
[47]
In
my view, the officer was not required to interview Ms. Haj Khalil. She had been
interviewed by other officers who conducted earlier analyses of her evidence. The
officer was entitled to rely on the evidence in the record. Ms. Haj Khalil was
given ample opportunity to make her case; it was unnecessary to convene an
additional interview.
[48]
I
am also satisfied that the officer gave sufficient reasons for rejecting Ms.
Haj Khalil’s evidence about her association with the PLO and Fatah. In making
credibility findings, a decision-maker must give a clear basis for rejecting a
person’s evidence. A bold conclusion that a person’s evidence is self-serving
would be to state the obvious – applicants are expected to give evidence that
supports their claims. To reject an applicant’s version of events, a
decision-maker must identify clear and specific grounds, such as discrepancies,
inconsistencies or implausibilities, based on the other available evidence.
[49]
In
my view, however, the officer’s reasoning is sufficiently intelligible and
transparent. While the officer characterized as “self-serving” Ms. Haj Khalil’s
evidence distancing herself from her earlier statement that she was a
member of Fatah, this was not the sole basis on which the officer made an
adverse credibility finding. She made specific reference to the evidence before
her. The officer referred to the fact that Ms. Haj Khalil had worked for 15
years as a journalist for the primary organ of the PLO; she was paid out of the
Fatah quota; she wrote many articles giving a favourable account of the
actions of the PLO and Fatah; and she accompanied Yasser Arafat on numerous
foreign excursions. The officer also made explicit reference to the documentary
and expert evidence before her.
[50]
In
short, the officer’s reasons were adequate.
(ii) Reasonableness
[51]
The
Minister submits that the officer’s conclusions that Ms. Haj Khalil was a
member of Fatah, and that there were reasonable grounds for believing that
Fatah was involved in terrorism, were reasonable on the evidence.
[52]
The
Minister points out that the definition of “membership” is broad and
unrestricted, according to the case law: Poshteh, above. I accept that
the definition of membership is broad, but it makes little sense to regard
it as unrestricted. To do so would be to empty the term of all meaning.
[53]
The
question is whether there was evidence to support the officer’s finding that
Ms. Haj Khalil was a member of an organization believed on reasonable grounds
to have engaged in terrorism. In my view, as set out above, the officer’s
conclusions were sufficiently supported by the evidence before her and,
therefore, were reasonable.
[54]
The
officer considered Ms. Haj Khalil’s own evidence about her involvement with
Fatah, as well as documentary and expert evidence. Similarly, in respect
of the question of Fatah’s involvement in terrorism, the officer considered
Fatah’s objectives and its responsibility for violent acts carried out in
pursuit of those objectives. Those acts included violence directed at tourists,
civilians and diplomats.
[55]
In
my view, the officer’s conclusion that there were reasonable grounds for
believing that Fatah had been engaged in terrorism was reasonable on the
evidence.
VI. Was the Minister’s Decision Denying
Relief Unreasonable or Contrary to the Charter?
[56]
The
proper considerations under s 34(2) were recently set out by Justice Denis
Pelletier in Canada (Minister of Public Safety
and Emergency Preparedness) v Agraira, 2011 FCA 103 [Agraira].
Justice Pelletier considered the legislative history relating to s 34(2) and
concluded that “the principal, if not the only, consideration in the processing
of applications for ministerial relief is national security and public
safety, subject only to the Minister’s obligation to act in accordance with the
law and the Constitution”. He also made clear that the exercise is not one of
balancing an applicant’s contributions to Canadian national interests against
potential detriments to those interests. National security and public safety
are at the forefront. Factors that would be relevant to a humanitarian and
compassionate analysis of an applicant’s circumstances are not relevant to an
application for ministerial relief. Similarly, the Minister’s discretion does
not involve consideration of Canada’s international obligations, given that a
finding of inadmissibility does not necessarily result in an applicant’s
removal from Canada.
[57]
At
the same time, the scope of ministerial exemptions is narrow. Justice Pelletier
observed that an exemption would be available to persons whose association with
a terrorist group was coerced or innocent (citing Suresh, above, at para
110). This is clearly not an exhaustive categorization; Justice Pelletier
contemplated that there “may be other cases in which persons who would
otherwise be caught by subsection 34(1) of the IRPA may justify their
conduct in such a way as to escape the consequence of inadmissibility” (para
64).
[58]
Clearly,
the CBSA’s analysis of Ms. Haj Khalil’s application included factors Justice
Pelletier regarded as irrelevant, namely considerations that would normally
form part of an application for humanitarian and compassionate relief and
matters relating to Canada’s international relations. The CBSA considered
the various positive contributions Ms. Haj Khalil has made to Canada (social,
cultural, economic), and her degree of establishment here. It also weighed
negative factors such as her lack of remorse, her inconsistent testimony and
her criticism of immigration officials. The CBSA clearly took into account
international and bilateral factors, and then balanced all factors, positive
and negative to arrive at a recommendation. On the other hand, the question
whether Ms. Haj Khalil’s presence in Canada raised concerns about
national security or public safety was not specifically addressed by the CBSA
or the Minister. The evidence appeared to indicate that Ms. Haj Khalil did not
pose any threat to Canada’s security or safety. However, as the issue was
not specifically addressed, it is impossible to predict how the CBSA or the
Minister would have dealt with her application according to the approach laid
down by Justice Pelletier. Accordingly, I must allow this application for
judicial review. It is unnecessary to consider Ms. Haj Khalil’s Charter
arguments.
VII. Conclusion and Disposition
[59]
I
find that Ms. Haj Khalil was not treated unfairly by the officer who found her
to be inadmissible to Canada. Nor did the officer render an
unreasonable decision given the evidence before her. As such, I must
dismiss the application for judicial review of that decision (IMM-3769-10).
[60]
However,
I must allow the application for judicial review of Ms. Haj Khalil’s
Ministerial relief (IMM-3767-10) and order the Minister to reconsider Ms. Haj
Khalil’s request for an exemption in accordance with the approach set out in Agraira,
above.
[61]
The
parties requested an opportunity to make submissions regarding a question for
certification. I will consider any submissions filed within 10 days of the
issuance of this judgment.
JUDGMENT
THIS COURT’S JUDGMENT is
that:
1.
The
application for judicial review in IMM-3767-10 is allowed;
2.
Ms.
Khalil’s request for an exemption is returned to the Minister for
reconsideration;
3.
The
application for judicial review in IMM-3769-10 is denied;
4.
The
parties may file submissions regarding a question for certification within 10 days
of the issuance of this judgment;
5.
As
these reasons relate to Court File Numbers IMM 3767-10 and IMM 3769-10, the
original version of the reasons will be filed in IMM-3769-10, and a copy will
be placed in IMM-3767-10.
“James
W. O’Reilly”
ANNEX
|
Immigration
and Refugee Protection Act, SC 2001, c 27
Objectives
— immigration
3.
(1) The objectives of this Act with respect to immigration are
…
(i) to promote
international justice and security by fostering respect for human rights and
by denying access to Canadian territory to persons who are criminals or
security risks;
…
Minister
of Citizenship and Immigration
4. (1) Except as otherwise
provided in this section, the Minister of Citizenship and Immigration is
responsible for the administration of this Act.
…
Minister
of Public Safety and Emergency Preparedness
(2) The Minister of Public Safety and Emergency Preparedness is responsible
for the administration of this Act as it relates to
…
(d)
determinations under any of subsections 34(2), 35(2) and 37(2).
Designation of officers
Exception
6. (3)
Notwithstanding subsection (2), the Minister may not delegate the power
conferred by subsection 77(1) or the ability to make determinations under
subsection 34(2) or 35(2) or paragraph 37(2)(a).
…
Protected person
21. (2)
Except in the case of a person described in subsection 112(3) or a person who
is a member of a prescribed class of persons, a person whose application for
protection has been finally determined by the Board to be a Convention
refugee or to be a person in need of protection, or a person whose
application for protection has been allowed by the Minister, becomes, subject
to any federal-provincial agreement referred to in subsection 9(1), a
permanent resident if the officer is satisfied that they have made their
application in accordance with the regulations and that they are not
inadmissible on any ground referred to in section 34 or 35, subsection 36(1)
or section 37 or 38.
…
Rules of interpretation
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.
Security
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;
(d) being a danger to the
security of Canada;
(e) engaging in acts of violence that would or
might endanger the lives or safety of persons in Canada; or
(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).
Exception
(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.
Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (UK), 1982, c 11
1. The
Canadian Charter of Rights and Freedoms guarantees the rights and freedoms
set out in it subject only to such reasonable limits prescribed by law as can
be demonstrably justified in a free and democratic society.
...
Legal
Rights
7.
Everyone has the right to life, liberty and security of the person and the
right not to be deprived thereof except in accordance with the principles of
fundamental justice.
|
Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
Objet
en matière d’immigration
3.
(1) En matière d’immigration, la présente loi a pour objet :
[…]
i) de promouvoir, à
l’échelle internationale, la justice et la sécurité par le respect des droits
de la personne et l’interdiction de territoire aux personnes qui sont des
criminels ou constituent un danger pour la sécurité;
[…]
Compétence générale du ministre de la
Citoyenneté et de l’Immigration
4. (1) Sauf
disposition contraire du présent article, le ministre de la Citoyenneté et de
l’Immigration est chargé de l’application de la présente loi.
[...]
Compétence
du ministre de la Sécurité publique et de la Protection civile
(2) Le ministre de la Sécurité publique et de la Protection civile est chargé
de l’application de la présente loi relativement :
[...]
d) à la prise des décisions
au titre des paragraphes 34(2), 35(2) ou 37(2).
Désignation des agents
Restriction
6. (3) Ne
peuvent toutefois être déléguées les attributions conférées par le paragraphe
77(1) et la prise de décision au titre des dispositions suivantes : 34(2),
35(2) et 37(2)a).
[…]
Personne
protégée
21.
(2) Sous réserve d’un accord fédéro-provincial visé au paragraphe 9(1),
devient résident permanent la personne à laquelle la qualité de réfugié ou
celle de personne à protéger a été reconnue en dernier ressort par la
Commission ou celle dont la demande de protection a été acceptée par le
ministre — sauf dans le cas d’une personne visée au paragraphe 112(3) ou qui
fait partie d’une catégorie réglementaire — dont l’agent constate qu’elle a
présenté sa demande en conformité avec les règlements et qu’elle n’est pas
interdite de territoire pour l’un des motifs visés aux articles 34 ou 35, au
paragraphe 36(1) ou aux articles 37 ou 38.
[…]
Interprétation
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.
Sécurité
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;
d)
constituer un danger pour la sécurité du Canada;
e)
être l’auteur de tout acte de violence susceptible de mettre en danger la vie
ou la sécurité d’autrui au Canada;
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).
Exception
(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.
Charte
canadienne des droits et libertés, Partie I de la Loi Constitutionnelle de
1982, Édictée comme l'annexe B de la Loi de 1982 sur le Canada, 1982, ch.11
1. La
Charte canadienne des droits et libertés garantit les droits et libertés qui
y sont énoncés. Ils ne peuvent être restreints que par une règle de droit,
dans des limites qui soient raisonnables et dont la justification puisse se
démontrer dans le cadre d'une société libre et démocratique.
[…]
Garanties juridiques
7. Chacun a
droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être
porté atteinte à ce droit qu'en conformité avec les principes de justice
fondamentale.
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