Date: 20070412
Docket: IMM-2414-06
Citation: 2007 FC 381
Ottawa, Ontario, April 12,
2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
ISSAM
AL YAMANI
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Issam
Al Yamani was found to be inadmissible to Canada on security
grounds because of his past membership in the Popular Front for the Liberation
of Palestine, an organization for which there are reasonable grounds to believe
has engaged in acts of terrorism.
[2]
Mr.
Al Yamani then sought Ministerial relief from the finding of inadmissibility,
in accordance with subsection 34(2) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27. His request was denied by the Honourable
Stockwell Day, Minister of Public Safety and Emergency Preparedness, on April
20, 2006.
[3]
Mr.
Al Yamani now seeks judicial review of the Minister’s decision, asserting that
the Minister breached the duty of fairness owed to Mr. Al Yamani by failing to
personally provide reasons for his decision, or to properly adopt the rationale
provided by a departmental official as his reasons.
[4]
The
Minister further erred, Mr. Al Yamani says, in making an adverse credibility
finding against him, in the face of Mr. Al Yamani’s sworn evidence and in the
absence of a personal interview. Finally, Mr. Al Yamani says that the Minister
erred in failing to carry out a balanced assessment of Mr. Al Yamani’s
application for Ministerial relief, and in fettering his discretion by treating
Mr. Al Yamani’s past membership in the PFLP as determinative of his application
for Ministerial relief.
[5]
For
the reasons that follow, I find that the decision failed to assess and balance
all of the factors relevant to Mr. Al Yamani’s application for Ministerial
relief. As a consequence, the application for judicial review will be allowed.
Legislative Framework
[6]
Before
turning to consider the facts of this case, it is helpful to first have an
understanding of the legislative provisions governing applications for
Ministerial relief under IRPA, and how these provisions have been
interpreted in the jurisprudence.
[7]
Mr.
Al Yamani was found to be inadmissible to Canada under the
provisions of paragraph 34(1)(f) of IRPA, which provides that:
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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).
|
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 don=t 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).
|
[8]
Mr.
Al Yamani was found to be inadmissible to Canada because of his past membership
in the Popular Front for the Liberation of Palestine, an organization that the
Immigration Division of the Immigration and Refugee Board found to be one for
which there are reasonable grounds to believe engages, has engaged or will
engage in terrorism. His application for judicial review of that decision was
subsequently dismissed: see Al Yamani v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1457.
[9]
Also
of relevance to this application is section 33 of IRPA, which provides
that:
|
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. [emphasis added]
|
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.
|
[10]
Thus,
the facts giving rise to the inadmissibility of the individual in question need
not necessarily be occurring at the time of the inadmissibility hearing: see Miller
v. Canada (Minister of Public Safety & Emergency Preparedness), 2006 FC
912, at ¶ 7.
[11]
Once
an individual has been found to be inadmissible on one of the bases set out in
subsection 34(1), that individual may seek Ministerial relief in accordance
with the provisions of subsection 34(2) of the Act, which provides that:
|
(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.
|
(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.
|
[12]
As I
observed in Ali v. Canada (Minister of Citizenship and Immigration), [2005] 1 F.C.R. 485,
2004 FC 1174, a subsection 34(2) inquiry is directed at a different issue to
that contemplated by subsection 34(1). The issue for the Minister under
subsection 34(2) is not the soundness of the determination that there are
reasonable grounds for believing that an applicant is a member of a terrorist
organization - that determination will have already been made. Rather, the
Minister is mandated to consider whether, notwithstanding the applicant’s
membership in a terrorist organization, it would be detrimental to the national
interest to allow the applicant to stay in Canada.
[13]
That
is, subsection 34(2) empowers the Minister to grant exceptional relief, in the
face of a finding of inadmissibility that has already been made by the
immigration officer: see Ali, at ¶ 43.
[14]
Unlike
most of the decisions made under IRPA, which are made by departmental
officials or members of the Immigration and Refugee Board, decisions under
subsection 34(2) of the Act must be made by the Minister him- or herself. In
this regard, subsection 6(3) of IRPA makes it clear that the discretion
to grant an exemption based on national interest under subsection 34(2) is one
that vests exclusively in the Minister, and may not be delegated.
[15]
To
assist in the determination of applications for Ministerial relief, guidelines
entitled “Evaluating Inadmissibility” have been developed to aid departmental
officials in reviewing such applications and in preparing recommendations for
the Minister: see Naeem v. Canada (Minister of Citizenship and Immigration),
2007 FC 123, at ¶ 56.
[16]
With
this understanding of the context in which Mr. Al Yamani’s application arises,
I turn now to consider the facts giving rise to his application.
Background
[17]
The
history of Mr. Al Yamani’s involvement with the Canadian authorities is both
lengthy and complex. While some of the earlier proceedings are not relevant to
the application before me, it is necessary to have some understanding of the
events leading up to the finding that Mr. Al Yamani was inadmissible to Canada, in order to put his
application for Ministerial relief into context.
[18]
Mr.
Al Yamani is a stateless Palestinian, who has been in Canada since 1985. He is
married, and has two Canadian-born sons, one of whom has had significant health
problems. Mr. Al Yamani’s wife has been in Canada since 1988, but while her application for
landing was approved in principle in 1989, she has yet to become a permanent
resident, because of the proceedings instituted against her husband.
[19]
Mr.
Al Yamani’s father was one of the founders of the PFLP. The PFLP has been
described in previous proceedings involving Mr. Al Yamani, as a “multi-faceted
organization”: see Al Yamani v. Canada (Minister of Citizenship and
Immigration), [2000] 3 F.C. 433, 186 F.T.R. 161 (T.D.), at ¶ 84 per Justice
Gibson, and Al Yamani v. Canada (Minister of Citizenship and Immigration),
[1996] 1 F.C. 174, 103 F.T.R. 105 (T.D.) at ¶ 68 per Justice MacKay.
[20]
That
said, at this point it is not disputed that the PFLP has engaged in activities
commonly associated with terrorism, such as airline hijackings, kidnappings,
shootings and suicide bombings. The targets of the violence are not solely
military but are also civilian: see Al Yamani v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1457, per Justice Snider.
[21]
Moreover,
since November of 2003, the PFLP has been listed as a “terrorist organization”
within the meaning of Canada’s anti-terrorism
legislation.
[22]
Mr.
Al Yamani does not deny having been a member of the PFLP for many years,
including the first six or seven years that he was in Canada. However, he submits
that his involvement in the organization was limited to political activities,
and there is no evidence in the record that was before the Minister that Mr. Al
Yamani himself had any involvement in any violent activities associated with
the PFLP.
[23]
Mr.
Al Yamani states that he left the PFLP in 1991 or 1992, and has had no
involvement with that organization since that time.
[24]
Between
1985 and 1991, while Mr. Al Yamani was living in Canada, he accepted funds on the PFLP’s behalf
for distribution to charitable organizations in the Middle East, as part of his
ongoing responsibilities with the PFLP. He also helped to disseminate PFLP
information, and helped in organizing PFLP political and social activities in Canada.
[25]
Prior
to coming to Canada, Mr. Al Yamani was
living in Lebanon, but, as a Palestinian,
he had been unable to obtain legal status in that country. He immigrated to Canada on April 27, 1985 and
was granted permanent residence here.
[26]
On
May 3, 1988, Mr. Al Yamani applied for Canadian citizenship. As a result of
this application, he became the subject of security screening by the Canadian
Security Intelligence Service. This screening resulted in Mr. Al Yamani twice
being the subject of security certificates issued by the Governor in Council,
in accordance with the provisions of the former Immigration Act, R.S.C.
1985, c. I-2.
[27]
Both
of these security certificates were subsequently quashed by the orders of
Justices MacKay and Gibson referred to earlier in this decision.
[28]
In
2000, the decision was made not to seek a further security certificate against
Mr. Al Yamani. Instead, inadmissibility proceedings were commenced under the
provisions of the Immigration Act. These proceedings culminated in the
November, 2005 finding of the Immigration Division of the Immigration and
Refugee Board that Mr. Al Yamani was inadmissible to Canada on security grounds for
being a member of an organization for which there are reasonable grounds to
believe engages, has engaged or will engage in terrorism.
[29]
As
was noted earlier in this decision, Mr. Al Yamani’s application to judicially
review this decision was dismissed by Justice Snider in December of 2006.
Justice Snider upheld the Immigration Division’s finding that the PFLP was an
organization that engaged in, or had engaged in terrorist activities.
[30]
In
the meantime, in April of 2003, even before inadmissibility proceedings were
completed, Mr. Al Yamani sought Ministerial relief pursuant to subsection 34(2)
of IRPA. On May 6, 2006, the Minister denied this request. It is the
review of this decision that forms the basis of the present application for
judicial review.
The Process Followed Leading up to the
Minister’s Decision
[31]
Upon
receipt of Mr. Al Yamani’s application for Ministerial relief, a “Briefing
Note” was prepared for the Minister by the President of the Canada Border
Services Agency.
[32]
In
accordance with the process described in the “Evaluating Inadmissibility”
Guidelines, Mr. Al Yamani was provided with a draft copy of the Briefing Note,
and was given the opportunity to make further submissions in response to the
document. The Briefing Note, together with copies of all of Mr. Al Yamani’s
submissions, was then provided to the Minister for his consideration.
[33]
After
reviewing the evidence relating to Mr. Al Yamani’s case, the recommendation
contained in the Briefing Note provided to the Minister stated that:
We do not recommend that Ministerial
relief be granted to Mr. Al-Yamani as per section 34(2) of IRPA to
overcome his inadmissibility pursuant to section 34(1)(f) of IRPA…
The basis for our recommendation is
detailed in the considerations above. Although Mr. Al-Yamani is well
established in Canada and there are significant humanitarian
and compassionate grounds to consider, these do not negate the fact that Mr.
Al-Yamani was a member of the PFLP and his level of involvement within the
organization was significant enough to initiate two security certificates
against him. While Mr. Al-Yamani maintains that he was a non violent member of
the organization, the repercussions of re-directing funds to the Occupied Territories could have far reaching consequences. The
importance of terrorist financing was recognized with the terrorist financing
legislation implemented in the Criminal Code under C-36 in December 2001.
Mr. Al-Yamani stated that he came to Canada seeking “peace, security and safety”. However, he
continued to act on behalf of the PFLP after his arrival in Canada. While in Canada he engaged in the receipt and
disbursement of very significant amounts of money on behalf of the PFLP,
facilitated communications to PFLP members in North America and facilitated the
travel of PFLP members. Mr. Al-Yamani was a pivotal conduit for PFLP funds and
communications and played an intricate role in PFLP activities in North America.
While Mr. Al-Yamani appears to be
forthcoming about his membership in the PFLP, he consistently denied ties with
the organization until it was clear that Canadian officials were aware of his
activities.
Mr. Al-Yamani does not appear to have
been active during the past 14 years. However, it is logical to assume that
the scrutiny he has been subjected to from Canadian authorities has discouraged
him from being actively involved with the group. He could resume his activities if granted
Canadian citizenship.
Although some may describe the PFLP as a
multi-faceted organization, it has been listed by the government of Canada as a terrorist entity in its entirety and should not be
viewed differently for the purposes of section 34(2) of IRPA.
While it has taken several years to
process Mr. Al-Yamani’s application for Citizenship, his membership and
activities on behalf of the PFLP outweigh any national interest that would
enable the Agency to make a recommendation that Mr. Al-Yamani be granted
Ministerial relief.
[34]
The
Briefing Note concluded with the following statement: “Based on my review of
the material submitted, Ministerial relief is …”. This statement is followed
by two signature lines, one having a space for the Minister’s signature beside
the word “APPROVED”, and the second with a space for the Minister’s signature
beside the word “DENIED”.
[35]
On
April 20, 2006, Minister Day signed the Briefing Note in the space next to the
word “DENIED”.
Issues
[36]
Mr.
Al Yamani’s application for judicial review raises the following issues:
1. Whether
the Minister breached the duty of fairness owed to Mr. Al Yamani by failing to
provide his own reasons for refusing to grant Ministerial relief?
2. If
a Briefing Note can be considered to be the Minister’s reasons, did the
Minister in fact adopt the Briefing Note as his reasons in this case?
3. If
the Briefing Note is taken as the Minister’s reasons, did the Minister err in
fettering his discretion by treating Mr. Al Yamani’s past membership in a
terrorist organization as determinative of his application for Ministerial
relief?
4.
If the Briefing Note is taken as the Minister’s reasons, did the Minister err
by ignoring relevant evidence, or otherwise fail to carry out a balanced
assessment of Mr. Al Yamani’s application for Ministerial relief? and
5.
If the Briefing Note is taken as the Minister’s reasons in this case,
did the Minister err in making adverse credibility findings against Mr. Al
Yamani without having cross-examined him on his affidavits or providing him
with an interview?
Standard of Review
[37]
Mr.
Al Yamani’s first, second, third and fifth issues involve questions of
procedural fairness. The issue of standard of review does not arise in
relation to questions of procedural fairness. Rather, it is for the Court to
determine whether the procedure that was followed in a given case was fair or
not, having regard to all of the relevant circumstances: Sketchley v. Canada (Attorney General), [2005] F.C.J. No.
2056, 2005 FCA 404, at ¶ 52-53.
[38]
Insofar
as Mr. Al Yamani’s fourth issue is concerned, the parties agree that the Court
must grant deference to the Minister's exercise of discretion in relation to
questions of national interest, and that a review of the Minister's exercise of
the discretion conferred upon him by subsection 34(2) of IRPA is to be
carried out on the standard of patent unreasonableness.
[39]
I
agree that the standard of review governing this issue is patent
unreasonableness. In this regard, I adopt the pragmatic and functional
analysis conducted by Chief Justice Lutfy at paragraphs 36 to 42 of the Miller
decision, previously cited.
[40]
In
particular, I would echo the Chief Justice’s observation that the Minister has
expertise in applications under subsection 34(2) of IRPA, given that
they relate to security matters with which the Minister is charged.
[41]
With
this understanding of the applicable standards of review, I turn now to
consider the issues raised by Mr. Al Yamani.
Is the Minister Required to Provide His Own
Reasons for the Decision?
[42]
Mr.
Al Yamani submits that the duty of fairness owed to him in this case extends to
require that the Minister himself personally provide reasons for his decision.
It is not sufficient, Mr. Al Yamani says, for the Minister to simply adopt the
reasoning contained in the Briefing Note.
[43]
In
support of this contention, Mr. Al Yamani relies on the decision of the Supreme
Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3,
2002 SCC 1.
[44]
In Suresh,
the Supreme Court concluded that where the decision is made to remove someone
from this country because that individual was deemed to be a danger to the
security of Canada, and where that
individual had previously been found to be a Convention refugee, that decision
must emanate from the Minister him- or herself. In the factual context of the Suresh
case, the Supreme Court held that it was not sufficient for the Minister to
simply adopt a recommendation from the Minister’s enforcement officials as the
Minister’s decision.
[45]
In Miller,
the argument now being advanced by Mr. Al Yamani was specifically considered
and rejected by Chief Justice Lutfy, in the context of an application for
Ministerial relief under subsection 34(2) of IRPA. In so doing, Chief
Justice Lutfy observed that:
[61] In the present case, of course, the
Minister's decision was non-delegable. However, subsection 6(3) of the IRPA
only precluded the Minister from delegating her "ability to make
determinations under subsection 34(2)" [emphasis added]. In my view, it
was not inconsistent with subsection 6(3) for the Minister to concur in the
CBSA's recommendation contained in the memorandum, and thereby adopt the
memorandum as her reasons for decision. The Minister nevertheless retained, and
exercised, the sole ability to make the "determination" under subsection
34(2).
[62] In my view, the memorandum, to the
extent that the Minister adopted the recommendation as her determination, can
serve as reasons.
[46]
Mr.
Al Yamani attempts to distinguish Miller on the basis that the Miller
case did not involve a refugee. While Mr. Al Yamani may not have been formally
recognized in Canada as a Convention
refugee, he says that as a stateless Palestinian, he is nonetheless a refugee.
As such, he is entitled to the procedural safeguards contemplated by Suresh,
and is entitled to have reasons relating to his application for Ministerial
relief that emanate from the Minister himself.
[47]
I
do not agree.
[48]
A
review of the decision in Suresh discloses that in applying the factors
articulated by the Supreme Court of Canada in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, in order to ascertain
the content of the duty of procedural fairness owed to Mr. Suresh, the Supreme
Court of Canada was greatly influenced by the fact that Mr. Suresh was a
Convention refugee.
[49]
That
is, in concluding that Mr. Suresh was entitled to a significant degree of
procedural fairness, the Court took into account the fact that it had already
been determined that he faced a risk of torture and other violations of his
human rights, should he be returned to Sri Lanka, because of his past
involvement with the Liberation Tigers of Tamil Eelam.
[50]
That
said, the Supreme Court of Canada observed in Suresh that not every case
involving the deportation of a Convention refugee will demand this level of
procedural protection. In this regard, the Court stated that:
[127] These procedural protections need
not be invoked in every case, as not every case of deportation of a Convention
refugee under s. 53(1)(b) will involve risk to an individual's fundamental
right to be protected from torture or similar abuses. [...] If the refugee
establishes that torture is a real possibility, the Minister must provide the
refugee with all the relevant information and advice she intends to rely on,
provide the refugee an opportunity to address that evidence in writing, and
after considering all the relevant information, issue responsive written
reasons. This is the minimum required to meet the duty of fairness and fulfill
the requirements of fundamental justice under s. 7 of the Charter.
[51]
The
present application does not involve the deportation of a Convention refugee.
While Mr. Al Yamani may be a refugee in the sense that he is a stateless
person, risk was not raised as a humanitarian and compassionate factor in his
submissions. Indeed, there is no suggestion in the record before me that he is
at risk of torture or similar abuses should he be returned to Lebanon.
[52]
As a
consequence, I am not persuaded that the comments of the Supreme Court of
Canada in Suresh as to the need to have the Minister provide his own
reasons for a decision apply here. Nor am I persuaded that the Miller
decision is distinguishable from this case in the manner suggested by Mr. Al
Yamani. Moreover, I am satisfied that to the extent that the Briefing Note was
adopted by the Minister as his determination, that Briefing Note should stand
as the reasons of the Minister.
[53]
This
takes me to Mr. Al Yamani’s next issue, which is whether the Minister did in
fact adopt the Briefing Note as his reasons.
Did the Minister Adopt the Briefing Note as his
Reasons?
[54]
Mr.
Al Yamani argues that even if a Briefing Note could otherwise serve as reasons
for a Minister’s decision, in this case, the Minister did not specifically
adopt the reasons as his own.
[55]
That
is, according to Mr. Al Yamani, rather than specifically stating that he
concurred with the findings contained in the Briefing Note, as appears to have
been done in the Miller case, in this case the Minister merely noted on
the Briefing Note that “Based on my review of the material submitted,
Ministerial relief is denied”. Nowhere does the Minister specifically state
that he is adopting the Briefing Note as his reasons.
[56]
The
result of this, Mr. Al Yamani says, is that the decision should be set aside on
procedural fairness grounds, because of the lack of reasons for the decision.
[57]
I do
not accept this submission, which is, in my view, based upon a selective
reading of the documentation. A review of the Briefing Note itself reveals
that immediately prior to the page set aside for the Minister’s signature, the
President of the Canada Border Services Agency concludes his discussion of the
case with the following statement: “If you do not agree and the reasons for
your decision are not included in the text above, please provide the rationale
for your decision”.
[58]
When
the Minister’s signature is viewed in context, it is clearly implicit that, in
concurring with the recommendation contained in the Briefing Note, the Minister
was adopting the reasoning of the President of the Canada Border Services
Agency as his own.
[59]
I
would also note that the language used in the Briefing Note in this case is
identical to that used in Naeem, in relation to the Minister’s
acceptance of the recommendation contained in the Briefing Note in that case.
Although neither party took issue with whether the Minister had explicitly
adopted the reasons set out in the Briefing Note as his own in Naeem,
Justice Dawson was clearly satisfied that this was in fact the case: see Naeem,
previously cited, at ¶ 50.
Conclusion on the First Two Issues
[60]
For
the reasons set out above, I am satisfied that the Minister complied with his
duty to provide reasons in this case.
[61]
Mr.
Al Yamani’s remaining issues all relate to the content of the Minister’s
reasons, and each will be addressed in turn, starting with Mr. Al Yamani’s
argument that the Minister erred by fettering his discretion.
Did the Minister Fetter His Discretion?
[62]
Mr.
Al Yamani argues that the Minister erred in fettering his discretion, by
treating Mr. Al Yamani’s past membership in a terrorist organization as
determinative of his application for Ministerial relief.
[63]
That
is, Mr. Al Yamani says that the underlying premise of the Briefing Note is that
a person who was once a member of an organization that is found to have engaged
in terrorist activities can never overcome this past association. In such
cases, humanitarian and compassionate considerations would never be able to
negate past membership, or to outweigh any national interest that would allow
for a positive recommendation.
[64]
Given
that the issue of Ministerial relief does not arise until a finding has been
made that someone is inadmissible for, amongst other things, having been a
member of a terrorist organization, Mr. Al Yamani contends that the Minister’s
approach would thus result in subsection 34(2) being rendered meaningless.
[65]
Based
upon my review of the Briefing Note, I do not agree that the Minister treated
Mr. Al Yamani’s past membership in a terrorist organization as determinative of
his application for Ministerial relief.
[66]
A
review of the Briefing Note discloses that while Mr. Al Yamani’s past
membership in the PFLP was certainly a major factor in the Minister’s
conclusion that it was not in the national interest that Mr. Al Yamani be
granted Ministerial relief, it was by no means the only factor.
[67]
Also
considered to be of relevance was Mr. Al Yamani’s trusted role within the PFLP,
and his involvement in re-directing funds to the occupied territories.
Moreover, the Minister was also clearly influenced by the fact that Mr. Al
Yamani continued to be involved in PFLP activities, including the re-direction
of funds to the Middle East, after he came to Canada.
[68]
As a
consequence, I am not persuaded that the Minister treated Mr. Al Yamani’s past
membership in the PFLP, by itself, as a determining factor in his decision, or
otherwise fettered his discretion.
Did The
Minister Err By Ignoring Relevant Evidence, Or Otherwise Fail To Carry Out A
Balanced Assessment Of Mr. Al Yamani’s Application For Ministerial Relief?
[69]
Before
turning to review the substance of the Minister’s decision against the standard
of patent unreasonableness, it is helpful to start by reiterating that in an
application for Ministerial relief made pursuant to subsection 34(2) of IRPA,
it is the applicant who bears the onus of satisfying the Minister that his or
her presence in Canada would not be detrimental to the national interest: see Miller,
previously cited, at ¶ 64.
[70]
Moreover,
it is clear from the jurisprudence that in determining whether the continued
presence of an applicant in Canada would be contrary to the national interest, Ministerial
guidelines are a useful indicator of what will amount to a reasonable
interpretation of the power conferred by the section of IRPA at issue in
a particular case.
[71]
Thus
the fact that a decision may be reached in a manner contrary to the directives
contained in Ministerial guidelines will be of assistance in assessing whether
the decision was an unreasonable exercise of the discretion conferred by the
Act: see Baker at ¶ 72 and Naeem at ¶ 56, both previously cited.
[72]
Section
13.6 of the "Evaluating Inadmissibility" Guidelines explains the
concept of national interest in the following terms:
Persons who have engaged in
acts involving espionage, terrorism, human rights violations and subversion,
and members of organizations engaged in such activities including organized
crime, are inadmissible to Canada. The ground of inadmissibility may be
overcome if the Minister of PSEP is satisfied that their entry into Canada is not contrary to the national interest.
Whereas criminal
rehabilitation is specific and results in a decision that the person is not
likely to re-offend, the concept of national interest is much broader. The
consideration of national interest involves the assessment and balancing of all
factors pertaining to the applicant's entry into Canada against the stated
objectives of the Immigration and Refugee Protection Act as well as Canada's domestic and international interests and obligations.
Section 13.7 of the
Guidelines provides guidance to departmental officials regarding the
preparation of submissions to the Minister in relation to requests for
Ministerial relief.
[73]
In
order to ensure that relevant considerations are addressed in the materials
prepared for the Minister’s consideration, section 13.7 of the Guidelines
stipulates that “In order to assess the current situation regarding the ground
of inadmissibility, evidence must be produced to address the questions stated
in the following table…”.
[74]
The
Guidelines then go on to list numerous questions that are to be addressed in
preparing a recommendation for the Minister in connection with an application
for Ministerial relief.
[75]
After
listing the relevant questions to be addressed in a Briefing Note for the
Minister, the Guidelines conclude by stating that:
The recommendation should include a
supporting rationale.
The rationale should demonstrate a
thorough assessment and balancing of all factors relating to the entry into Canada of the person in accordance with the explanation of
national interest as noted in Section 13.6 of this chapter.
[76]
In
this case, the documentation provided to the Minister consisted of the
four-page Briefing Note, as well as copies of the relevant legislation,
background information regarding the PFLP, and copies of all of Mr. Al Yamani’s
submissions.
[77]
A
review of Mr. Al Yamani’s submissions discloses that one of his primary
arguments was that his continued presence in Canada would not be contrary to
the national interest, in light of his renunciation of violence as a means of
effecting political change in the Middle East, and his commitment to achieving
a peaceful solution to the problems between the Israeli and the Palestinian people.
[78]
In
addition to his own sworn evidence to this effect, Mr. Al Yamani provided
numerous letters from many individuals, including academics and members of both
the Jewish and Arab communities, in support of this submission.
[79]
These
documents are replete with references to Mr. Al Yamani’s moderate political
views, and to his commitment to achieving a peaceful solution to the situation
of the Palestinian people. There are also references to Mr. Al Yamani’s
collaborative work with Jewish organizations to this end.
[80]
This
sort of evidence is clearly to be considered in assessing an application for
Ministerial relief. In this regard, I note that the Guidelines identify the
following question as one of relevance to such applications: “Has the person
adopted the democratic values of Canadian society?”
[81]
In
order to answer this question, the Guidelines identify several additional
questions to be addressed, including:
- What is the applicant’s
current attitude towards the regime/organization, his membership, and his
activities on behalf of the regime/organization?
- Does the applicant still
share the values and lifestyle known to be associated with the organization?
- What is the applicant’s
current attitude towards violence to achieve political change?
- What is the applicant’s
attitude towards the rule of law and democratic institutions, as they are
understood in Canada?
[82]
A
review of the Briefing Note in this case discloses that it fails to address
this aspect of Mr. Al Yamani’s submission, or to address any of the questions
identified in the Guidelines which are designed to determine the extent to
which an applicant has adopted the democratic values of Canadian society.
[83]
In
this regard, the Briefing Note states simply that:
Mr. Al Yamani has submitted several
documents of support from individuals in his community and he appears to be a
valued member of the community. He has many supporters who refer to him as a
devoted family man, a political activist and a hard worker.
[84]
This
statement is true, as far as it goes, but completely ignores the recurring
theme in the letters of support: namely that Mr. Al Yamani is now a man of
moderate political views, who does not now support violence as a means of
effecting political change in the Middle East, and who is committed to
achieving a peaceful solution to the problems of the Palestinian people.
[85]
This
flawed approach is carried forward in the “Recommendation” portion of the
decision, where it is noted that:
Mr. Al Yamani does not appear to have
been active during the past 14 years. However, it is logical to assume that
the scrutiny he has been subjected to from Canadian authorities has discouraged
him from being actively involved with the group. He could resume his activities if granted
Canadian citizenship.
[86]
Here
too, there is no reference to, nor any attempt to come to grips with the
considerable body of evidence put forward by Mr. Al Yamani regarding his
separation from the PFLP, and his current belief in non-violence as a means of
resolving the situation of the Palestinian people, both of which would arguably
prevent him from becoming active in the PFLP in the future.
[87]
As I
observed earlier in this decision, the Minister has considerable discretion in
determining whether the granting of Ministerial relief in a given case is in Canada’s national interest.
[88]
However,
in order for the Minister to be able to make an informed decision in this
regard, the Briefing Note prepared for the Minister must properly address the
facts of the case, the submissions of the applicant, and the relevant factors
identified in the Guidelines. This is especially so where, as in this case,
the Minister adopts the Briefing Note as his reasons.
[89]
As
noted previously, a central thrust of Mr. Al Yamani’s application for
Ministerial relief was his renunciation of violence and his commitment to
finding a peaceful resolution of the Palestinian issue.
[90]
The
Ministerial Guidelines specifically identify the commitment of the individual
to the democratic values of Canadian society, and the current attitude of the
applicant towards violence as a means of achieving political change as relevant
considerations to be weighed in the balance in assessing an application for
Ministerial relief.
[91]
While
it is by no means necessary for the Minister to address each and every one of
the many different factors identified in the Guidelines in each and every
application for Ministerial relief, those factors that are central to the
grounds being advanced in support of a particular application must be
addressed.
[92]
It
is not the function of this Court sitting in judicial review of a discretionary
decision such as this to re-weigh the evidence that was before the Minister,
and to substitute its own opinion for that of the Minister: see Suresh
at ¶ 34. Indeed, it was open to the Minister to ascribe whatever weight he
deemed appropriate to the evidence regarding Mr. Al Yamani’s current political
views, and his alleged commitment to non-violence.
[93]
However,
in order to thoroughly assess and balance all of the factors relevant to Mr. Al
Yamani’s application for Ministerial relief, the plethora of evidence in
relation to this clearly relevant factor had to at least be addressed. The
failure to do so in this case amounts to a reviewable error.
[94]
As a
result, the decision must be set aside, and the matter remitted to the Minister
for re-determination.
[95]
In
light of my conclusion on this issue, it is unnecessary to address Mr. Al
Yamani’s final issue relating to whether the Minister erred in allegedly making
a credibility finding without having either cross-examined Mr. Al Yamani on his
affidavits or provided him with an interview.
Conclusion
[96]
For
these reasons, Mr. Al Yamani’s application is allowed.
Certification of a
Question
[97]
Counsel
for Mr. Al Yamani proposed the following question for certification:
Is it a breach of the duty of procedural
fairness for the Minister not to provide his own reasons?
[98]
Counsel
proposed a similar question for certification in the Miller case. In
that case, the Chief Justice declined to certify the question as, in his view,
there was no uncertainty in the law that would benefit from clarification by
the Federal Court of Appeal.
[99]
The
Chief Justice was further of the view that the Miller proceeding did not
properly lend itself to the certification of a question in view of the
pronouncement of the Supreme Court of Canada in Baker that acknowledged
that “the flexibility” required in the administrative law context and that fair
procedures and open decision-making must recognize “the day-to-day realities of
administrative agencies” and that “… transparency may take place in various
ways”.
[100] I see no basis for
coming to a different conclusion in this case, and accordingly decline to
certify the question.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that:
1. This
application for judicial review is allowed, and the matter is remitted to the
Minister of Public Safety and Emergency Preparedness for re-determination; and
2. No serious question of
general importance is certified.
“Anne
Mactavish”
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