Date: 20081210
Docket: IMM-4818-07
Citation: 2008 FC 1366
Ottawa, Ontario, December 10, 2008
PRESENT: The Honourable Frederick E. Gibson
BETWEEN:
EDD
ABDI ISMEAL
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1]
These
reasons follow the hearing at Toronto on the 26th of November, 2008,
of an application for judicial review of the decision of the Minister of Public
Safety and Emergency Preparedness (the “Minister”), dated the 18th
of October, 2007, 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 as a person
described in paragraph
34(1) (f) of the Act in that there
were reasonable grounds to believe that he had been a member of an organization
that there were reasonable grounds to believe had engaged in terrorism.
BACKGROUND
[2]
The
Applicant is a citizen of Ethiopia. In his Personal Information
Form, he described himself, while he lived in Ethiopia, as an
agitator for and a supporter of the Oromo Liberation Front. He entered Canada on the 17th
of March, 1998, and shortly thereafter claimed Convention refugee protection.
He was reported under section 20 of the former Immigration Act and a
conditional departure order was issued against him.
[3]
The
Applicant was granted Convention refugee status on the 4th of
August, 1998. On the 4th of September, 1998, he applied for
permanent residence in Canada. He passed medical examination on the 20th
of April, 1998. He passed Royal Canadian Mounted Police criminal checks on the
14th of January, 1999. He was interviewed by the Canadian Security
Intelligence Service on the 31st of August, 1999. It would appear
that that interview triggered a security review. In the result, the Applicant
was interviewed by an Immigration Officer (the “Officer”) on the 1st
of October, 2003. In her report of that interview, the Officer concluded:
As a result, I am
obliged to report subject [the Applicant] as inadmissible for security reasons
pursuant to subsection 34(1)(f) of the Immigration and Protection [sic]
Act.
However, I believe
this case is deserving of consideration pursuant to subsection 34(2) of the Act.
·
Subject has been granted Convention Refugee status and as such is entitled
to live in Canada and to the protection of Canada.
·
His involvement with the organization [the Oromo Liberation Front] was
minimal and I do not believe we have evidence to believe he himself was
involved in violence.
·
He has lived in Canada since March 1998, is self-supporting, has met all other
requirements and has never come to our adverse attention other than his
self-proclaimed support of OLF in his home country. He appears to be stable
and he has worked with the same employer for the past fifteen months and has
provided a confirmation letter. There is no reason to believe his admission to
Canada would be contrary to the National interest. In my opinion
there is no useful purpose in continuing to deny him permanent residence in Canada.
[4]
Given the Officer’s conclusion that she was obliged to
report the Applicant as inadmissible for security reasons, tempered by her
recommendation that the Applicant’s case was deserving of relief under
subsection 34(2) of the Act, the Applicant applied for such relief with
the application supported by submissions that he prepared himself.
THE
DECISION UNDER REVIEW
[5]
A briefing note for the Minister, dated the 7th
of April, 2006, was prepared. It identified the “KEY ISSUES” on the
Applicant’s request for relief in the following terms:
·
The purpose of this briefing note is to present Mr. Ismeal’s application
for Ministerial relief pursuant to subsection 34(2) of IRPA, for your
consideration and decision.
·
Mr. Ismeal is a Convention refugee who is inadmissible to Canada pursuant
to paragraph 34(1)(f) of IRPA (Appendix 1). He is a former member of
the Oromo Liberation Front (OLF), and organization for which there are
reasonable grounds to believe is or was engaged in terrorism (see Appendix 2
for background information on the OLF).
·
We recommend that you not grant Ministerial relief to Mr. Ismeal to
subsection 34(2) of IRPA.
[6]
While the Officer’s memorandum dated the 22nd of
October, 2003, and referred to above, is an enclosure to the briefing note, and
its conclusion that the Officer found herself obliged to reach is cited
therein, its specific recommendation for relief was not referred to in the
briefing note, unlike the specific references to two other enclosures quoted
above with reference to “KEY ISSUES”. Indeed, the only references in the
briefing note to factors weighing in favour of relief for the Applicant are
oblique at best.
[7]
The Minister endorsed the briefing note denying relief. He
provided no reasons other than those reflected in the briefing note.
THE
STATUTORY SCHEME
[8]
Section 33, the opening words of subsection 34(1),
paragraphs (a), (b), (c) and (f) of that subsection and subsection 34(2) of the
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).
34. (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).
34.
(2) Les
faits visés aux alinéas (1)b) et c) 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.
|
THE ISSUES
[9]
Counsel for the Applicant, in the Memorandum of Argument
filed on the Applicant’s behalf, identified only one issue, and that in the
following terms:
Did the Minister err
by ignoring relevant evidence or otherwise fail to carry out a balanced
assessment of the Applicant’s application for Ministerial Relief?
[10]
Counsel for the Respondent, in a Further Memorandum of
Argument filed, simply asserted that the Minister reasonably exercised his
discretion to not grant an exemption pursuant to subsection 34(2) of IRPA.
[11]
As on all applications for judicial review such as this,
the issue of standard of review arises.
ANALYSIS
a)
Standard of Review
[12]
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, 2008 SCC 9, 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” (Dunsmuir at para. 44). 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), [2007] F.C.J. No. 173 (F.C.) at
paragraphs 39-40 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 the 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” (Dunsmuir
at para. 47). 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.”
[13]
I adopt the foregoing quotation as my own.
[14]
The foregoing being said, it was not in dispute before the
Court that briefing notes, such as the briefing note here provided to the
Minister and earlier referred to, are the “reasons” for the decision under review,
where no other reasons were given and the briefing note was in no way
supplemented by the Minister to indicate that he took into account other
considerations or other materials that were before him as appendices or
enclosure to the briefing note and decision block.
b) Ignoring
Relevant Evidence or Otherwise Failing to Carry Out a Balanced Assessment
of the Applicant’s application for Ministerial Relief
[15]
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?
[16]
With great respect, those questions were simply not
directly addressed in the briefing note that was placed before the Minister in
this matter. That being said, they were addressed in the memorandum prepared
by the Officer who interviewed the Applicant in this matter and who reached a
different conclusion from that reflected in the briefing note.
[17]
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 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” when looking at an inquiry
under subsection 34(2).
[18]
Once again, in Afridi, supra, note 2, 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 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, substituting the OLF for the MQM, precisely the same might be
said here in respect of the briefing note that must be considered to constitute
the Minister’s reasons in this matter. In the result, I am satisfied that,
against a standard of review of reasonableness as earlier described, the
decision here under review was made in reviewable error.
CONCLUSION
AND CERTIFICATION OF A QUESTION
[19]
In the result, this application for judicial review will be
allowed. At the close of the hearing of this matter, counsel were advised as
to the result and consulted on the issue of certification of a question.
Neither counsel recommended certification of a question. The Court itself is
satisfied that no serious question of general importance arises on this matter
that would be determinative on an appeal from my conclusion. No question will
be certified.
ORDER
THIS COURT ORDERS that this application for judicial
review is allowed, the decision under review is set aside and the matter is
referred back to the Minister of Public Safety and Emergency Preparedness for
redetermination.
“Frederick E. Gibson”
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