Date: 20080718
Docket: IMM-228-08
Citation: 2008 FC 884
Vancouver, British Columbia, July 18, 2008
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
MORTEZA
MOMENZADEH TAMEH
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Morteza
Momenzadeh Tameh was found to be inadmissible to Canada on security grounds
because of his past membership in the Mujahedin-e-Khalq (MEK), an organization
for which there are reasonable grounds to believe has engaged in acts of
terrorism.
[2]
Mr. Momenzadeh Tameh 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 Minister of Public Safety and Emergency Preparedness, the Honourable
Stockwell Day, on November 15, 2007.
[3]
Mr. Momenzadeh Tameh now seeks judicial review of the Minister’s
decision, asserting that the Minister erred by failing to consider relevant
facts, thus rendering the decision unreasonable.
[4]
Mr. Momenzadeh Tameh also says that the Minister breached the duty of
fairness owed to him by failing to provide adequate reasons for denying his
application for Ministerial relief.
[5]
For the reasons that follow, I find that the Minister was not fully
apprised of all of the pertinent information relating to Mr. Momenzadeh Tameh’s
application for Ministerial relief. As a consequence, the Minister was
unable to properly assess and balance all of the relevant factors in determining
whether Mr. Momenzadeh Tameh’s presence in Canada would be detrimental to the national
interest, thereby rendering the decision unreasonable. The
application for judicial review will therefore be allowed.
Legislative Framework
[6]
Before turning to consider the facts of this case, it is helpful to 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. Momenzadeh Tameh was found to be inadmissible to Canada under the
provisions of paragraph 34(1)(f) of IRPA, which provides that:
|
34. (1) A permanent resident or a foreign
national is inadmissible on security grounds for
…
(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 :
…
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]
Paragraph
34(1)(c) refers to organizations engaging in terrorism. Section
33 of IRPA 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.
|
[9]
As a result, 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 paragraph 7.
[10]
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:
|
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.
|
34(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.
|
[11]
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) of IRPA.
[12]
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: Ali, at paragraph 42. See also Al-Yamani v. Canada (Minister of Citizenship and Immigration), 2007 FC 381, at paragraph 12.
[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 paragraph 43 and Al-Yamani,
at paragraph 13.
[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 preparing recommendations for the Minister: see Naeem
v. Canada (Minister of Citizenship and Immigration), 2007 FC 123, at
paragraph 56.
[16]
With this understanding of the context in which Mr. Momenzadeh Tameh’s
application arises, I turn now to consider the facts giving rise to his
application.
Background
[17]
The MEK is an Iranian organization whose goal it is to overthrow the
current government of Iran and establish a socialist Islamic government in that
country. It is listed as a terrorist entity by the Government of Canada for the
purposes of Part II.1 of the Criminal Code.
[18]
Mr. Momenzadeh Tameh first became involved with the MEK in 1979, when he
was 18 or 19 years old. He says that his initial activities on behalf of
the MEK included writing and distributing MEK literature, writing slogans on
walls, and donating funds.
[19]
In May of 1982, Mr. Momenzadeh Tameh became the leader of a four-person
MEK resistance cell. As a cell leader his duties expanded to include holding
demonstrations and hiding MEK members in his home.
[20]
Although the MEK has been involved in a variety of violent activities
over the years including bombings and the murder of civilians, there is no
suggestion in the evidence that Mr. Momenzadeh Tameh was ever personally
involved in acts of violence of any sort.
[21]
In December of 1982, Mr. Momenzadeh Tameh was arrested by the Iranian
authorities because of his MEK activities. He then spent five years in an
Iranian prison. Mr. Momenzadeh Tameh asserts that he ended all involvement with
the Mr. Momenzadeh Tameh when he was imprisoned.
[22]
After Mr. Momenzadeh Tameh’s release from prison, he and his family
continued to be harassed by the Iranian authorities. In 1990, he was again
arrested and was tortured by his jailers who were seeking information about the
MEK.
[23]
In November of 1993, Mr. Momenzadeh Tameh fled Iran. After arriving in Canada,
he sought and obtained Convention refugee protection.
[24]
In 1994, Mr. Momenzadeh Tameh submitted an application for permanent
residence. As part of the screening process, he was interviewed by a
representative of Citizenship and Immigration Canada by the name of Karen
Gordon in August of 2001. Following the interview, Ms. Gordon
prepared a report which noted that Mr. Momenzadeh Tameh was potentially
inadmissible under the provisions section 19 of the Immigration Act then
in effect, as being a member of a terrorist organization. Section 19 of the Immigration
Act was the predecessor to section 34 of IRPA.
[25]
After analyzing the facts and circumstances of the case, Ms. Gordon went
on to recommend that Ministerial relief be granted to Mr. Momenzadeh Tameh
under the provisions of section 19(1)(f) of the Immigration Act, so as
to allow him to obtain permanent residency.
[26]
Amongst other things, Ms. Gordon’s report characterized Mr. Momenzadeh
Tameh’s involvement with the MEK as “minimal and low-level”. The report also
noted that Mr. Momenzadeh Tameh did not appear to be a threat to Canadian
society.
[27]
It is not clear what happened with respect to Mr. Momenzadeh Tameh’s
application for permanent residency over the next few years. What we do know is
that, at some point, the file was transferred to the Canada Border Services
Agency for further review in accordance with the provisions of the newly
enacted Immigration and Refugee Protection Act.
[28]
In 2005, a “Briefing Note” was prepared for the Minister of Public
Safety and Emergency Preparedness by Alain Jolicoeur, the President of the
Canada Border Services Agency with respect to Mr. Momenzadeh Tameh’s
application for Ministerial relief.
[29]
In accordance with the process described in the “Evaluating
Inadmissibility” Guidelines, Mr. Momenzadeh Tameh was provided with a draft
copy of the Briefing Note, and was given the opportunity to make further
submissions in response to the document, which he did. The Briefing Note, along
with copies of all of Mr. Momenzadeh Tameh’s submissions and Ms. Gordon’s
report, was then provided to the Minister for his consideration.
[30]
After reviewing some of the facts and circumstances surrounding Mr.
Momenzadeh Tameh’s situation, the Briefing Note concluded with the recommendation
that Ministerial relief not be granted to Mr. Momenzadeh-Tameh. In this regard,
the document states that:
The MEK is an organization listed
as a terrorist entity by the Government of Canada for the purpose of
Part II.1 of the Criminal Code of Canada. Mr. Momenzadeh-Tameh was imprisoned
in Iran for 5 years for his activities on behalf of the MEK. While Mr. Momenzadeh-Tameh
maintains that he was a supporter of the MEK and not an official member, his activities
onbehalf of the Mujahedin do not reflect those of a supporter. His activities
included writing and distributing anti-government literature, writing slogans
on walls, donating funds, holding demonstrations and hiding MEK members at his
home. In May 1982, Mr. Momenzadeh-Tameh was promoted in the organization to
leader of a MEK resistance cell. By his own admission,
Mr. Momenzadeh-Tameh clearly demonstrated that his role represented more
than mere support to the organization.
Although Mr. Momenzadeh-Tameh may
not consider himself to be a member of the MEK, his actions can be attributed
to furthering the goals of that organization. Furthering the goals of an
organization known to have been involved in the acts outlined in section 34 of IRPA
is integral to maintaining an organization’s functioning. In accordance
with jurisprudence, it is not necessary that an individual personally commit an
act of terrorism or be involved in the management of the organization; it is
only required that he or she has knowledge of the essential nature of the
organization and that there is an objective manifestation of the agreement to
participate in the affairs of the organization. Mr. Momenzadeh-Tameh
openly stated that he was aware that the MEK used violence to further their
cause. He therefore, had the necessary knowledge of the nature of the
organization and through his activities, directly contributed to furthering the
goals of the MEK.
While Mr. Momenzadeh-Tameh
appears to have established himself in Canada, his membership and activities on
behalf of the MEK and his strong allegiance to an organization committed to the
use of violence to achieve their political goals outweigh any national interest
that would enable CBSA to make a recommendation that Mr. Momenzadeh-Tameh be
granted Ministerial relief. Therefore, his presence in Canada is, in our
opinion, detrimental to the national interest.
If you agree, Mr.
Momenzadeh-Tameh will not be granted permanent residence. However, Mr.
Momenzadeh-Tameh is recognized as a Convention Refugee in Canada. There is no
evidence at this time to suggest that he is a danger to society, as such, he
cannot be removed from Canada pursuant to section 115 of IRPA.
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.
[31]
On
November 15, 2007, Minister Day accepted Mr. Jolicoeur’s recommendation and
refused Mr. Momenzadeh Tameh’s application for Ministerial relief. It is common
ground that having accepted the recommendation contained in Mr.
Jolicoeur’s memorandum, the memorandum must be taken as the Minister’s reasons
for decision: see Miller, previously cited, at paragraph 62.
[32]
It is the Minister’s decision refusing Mr. Momenzadeh Tameh’s
application for Ministerial relief that underlies this application for judicial
review.
Standard of Review
[33]
As was noted at the outset of this decision, Mr. Momenzadeh Tameh raises
two issues on this application. He asserts firstly that the Minister erred by
failing to consider relevant factors in exercising the discretion conferred on
him by subsection 34(2) of IRPA. Mr. Momenzadeh Tameh also says that the
Minister breached the duty of fairness owed to him by failing to provide
adequate reasons for his decision.
[34]
Insofar as the merits of the Minister’s decision is concerned, a
decision to grant or refuse an application for Ministerial relief is a
discretionary one, and should thus be accorded significant deference: see Miller,
at paragraph 42, and Al-Yamani, at paragraphs 38 and 39, both previously
cited.
[35]
As the Supreme Court of Canada observed at
paragraph 51 of Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9, the standard of reasonableness will
generally apply when reviewing the exercise of a discretionary power. This is
especially so where, as here, the power conferred on the Minister cannot be
delegated, and the Minister himself has considerable expertise in matters of
national security and the national interest.
[36]
As a consequence, I agree with the parties that the merits
of the Minister’s decision are to be reviewed against the standard of
reasonableness. In reviewing a decision against the reasonableness standard,
the reviewing court must consider the justification, transparency and
intelligibility of the decision-making process. The court must also consider
whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law: Dunsmuir,
at paragraph 47.
[37]
Given my conclusion with respect to
the first issue, it is not necessary to address the standard of review with
respect to the sufficiency of the Minister’s reasons.
Analysis
[38]
As was noted in the preceding section of these reasons, a decision to
grant or withhold Ministerial relief under subsection 34(2) of IRPA is a
highly discretionary one. It is up to the Minister to decide the relative
weight to be ascribed to various portions of the evidence, and it is not the
function of a reviewing court to second-guess the Minister in this regard: see Suresh
v. Canada (Minister of Citizenship and Immigration), [2002] 1
S.C.R. 3, 2002 SCC 1, at paragraph 34.
[39]
That said, the Minister can only carry out a thorough assessment and
balancing of all of the relevant factors if the Minister is fully and fairly
apprised of these factors. For the reasons that follow, I am satisfied that
this did not happen in this case, with the result that relevant evidence was
overlooked by the Minister.
[40]
Before turning to review the substance of the Minister’s decision
against the reasonableness standard, 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,
at paragraph 64, and Al-Yamani, at paragraph 69, both previously cited.
[41]
As was noted earlier, the “Evaluating Inadmissibility” guidelines have
been promulgated to assist the Minister in determining whether the continued
presence of an applicant in Canada would be contrary to the national interest.
Such guidelines are a useful indicator of what will amount to a reasonable
interpretation of the power conferred by section 34(2) of IRPA: Al-Yamani,
at paragraph 70.
[42]
The fact that a decision may have been 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 v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, at paragraph 72 and Naeem at
paragraph 56.
[43]
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 every application for
Ministerial relief, those factors that are central to the grounds being
advanced in support of a particular application must be addressed: see Al-Yamani,
at paragraph 91.
[44]
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.
[45]
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…”.
[46]
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. 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.
[47] Having carefully
examined the matter, I am satisfied that notwithstanding
the significant deference to be
paid to Ministerial decisions of the sort in issue in this
case, Minister Day’s decision
must be set aside, as the rationale provided for
refusing Mr. Momenzadeh
Tameh’s application for Ministerial relief does not
demonstrate a thorough
assessment and balancing of all of the relevant factors.
[48] By way of
example, one of the questions identified in the Guidelines as relevant to
applications for Ministerial relief is “Has the person adopted the democratic
values of Canadian society?”
[49] 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?
[50] Another
question is “Have all ties with the regime/organization been completely
severed?” In answering this question, the Guidelines also ask, amongst other
things:
- What
are the details concerning disassociation from the regime/ organization? Did
the applicant disassociate from the regime/organization at the first
opportunity?
[51] A review of the Briefing
Note provided to the Minister in this case discloses that it fails to fairly address
the available evidence on these points.
[52] For example, as concerns
Mr. Momenzadeh Tameh’s current attitude towards the MEK, the Briefing Note
observes that “Mr. Momenzadeh Tameh indicates that he ended all involvement
with the MEK when he was imprisoned.” This statement is true, as far as it
goes, but does not provide the Minister with a full or fair summary of the available
evidence on this point.
[53] The record suggests that
Mr. Momenzadeh Tameh has, over the years, demonstrated a desire to distance
himself from the MEK. This is evidenced by the fact that when the MEK
endeavoured to re-recruit Mr. Momenzadeh Tameh in 1991, he refused to
re-associate himself with the organization. Counsel for the Minister conceded
at the hearing that this was a relevant consideration that was not referred to
in the Briefing Note.
[54] Further
information with respect to Mr. Momenzadeh Tameh’s current attitude towards the
MEK is contained in Ms. Gordon’s report of her August 2001 interview with Mr. Momenzadeh
Tameh, which records him as stating that:
[H]e feels very negative about
[the MEK]. He stated that they are wrong and they ruined his life. He stated
that he is still against the Regime in Iran because of what they do but that he
is also against the MEK. He stated that he did not think that the MEK was any
better than the Regime.
[55] Ms. Gordon went on to
describe Mr. Momenzadeh Tameh as having been “forthright and cooperative”
during the interview, noting that he harboured very strong emotions toward the
MEK. It is clear from a review of the report as a whole that Ms. Gordon found
Mr. Momenzadeh Tameh’s disavowal of the actions of the MEK to be entirely credible.
[56] In
recommending that Ministerial relief be granted to Mr. Momenzadeh Tameh, Ms. Gordon
elaborated on his current attitude toward the MEK, stating that:
Subject stated that he no longer
supports the MEK and feels very negative toward them. When discussing this
topic subject was very adamant about his negative feelings regarding the MEK
and stated that the group has essentially ruined his life. He states that he
frequently asks himself why he became involved with them initially and in
retrospect wishes that he never had. Subject was very emphatic when he spoke
about his opinions regarding the MEK.
[57] While it is true that Ms.
Gordon’s report was attached as an appendix to the Briefing Note, none of the
information discussed above was referred to in the Briefing Note. Given the
workload of Ministers of the Crown, I share Justice Strayer’s view that merely
attaching information to a Briefing Note not will suffice to demonstrate that
highly relevant information relating to an application for Ministerial relief
was indeed considered by the Minister: see Kanaan v. Canada (Public Safety
and Emergency Preparedness), 2008 FC 241, at paragraph 4. See also Soe v.
Canada (Public Safety and Emergency Preparedness), 2007 FC
461, at paragraphs 19-22.
[58] Moreover, even though a
decision-maker is not required to mention every piece of evidence considered,
the more probative the evidence that is not referred to in reasons for a
decision, the more likely a reviewing court will be to conclude that the
evidence was overlooked: Cepeda-Gutierrez v. Canada (Minister of Citizenship
and Immigration) [1998] F.C.J. No. 1425, 157 F.T.R. 35 at paragraphs 14 to
17.
[59] I note that Mr.
Momenzadeh Tameh has raised an issue as to the status of Ms. Gordon’s report
and whether it amounts to a “recommendation” within the meaning of the
Guidelines. I do not need to resolve this issue for the purposes of this
application. Regardless of whether the document amounted to a “recommendation”
or not, it contained clearly probative information relating to Mr. Momenzadeh
Tameh’s application for Ministerial relief which should have been specifically
referred to in the Briefing Note.
[60] Before leaving this area,
I would also observe that the impression created by the failure to specifically
refer to the evidence discussed above in the Briefing Note is all the more
misleading, given the unqualified reference in the concluding paragraph of the
Recommendation section of the Briefing Note to Mr. Momenzadeh Tameh’s “strong
allegiance to an organization committed to the use of violence to achieve their
political goals”.
[61] Another relevant area of
inquiry identified by the Guidelines relates to whether the applicant’s entry
into Canada would be offensive to the Canadian public. In order to answer this
question, the Guidelines list several additional questions to be
addressed, including “Is there evidence to indicate that the person was not
aware of the atrocities/criminal/terrorist activities committed by the regime/organization?”
[62] With respect to this
issue, the Briefing Note states that “Mr. Momenzadeh Tameh openly stated that
he was aware that the MEK used violence to further their cause”. The Briefing
Note then goes on to state that “He therefore had the necessary knowledge of
the nature of the organization and through his activities, directly contributed
to furthering the goals of the MEK.”
[63] Once again, the
information provided to the Minister, while technically true, does not amount
to a full or fair summary of the relevant evidence. What is missing from the
statement quoted above is any reference to when it was that Mr. Momenzadeh
Tameh became aware of the violent tactics of the MEK.
[64] Mr. Momenzadeh Tameh’s
October 3, 2005 submissions to the Minister specifically address this issue.
According to Mr. Momenzadeh Tameh, at the time that he joined the MEK the organization
was a legitimate political party that presented itself as a peaceful political
alternative, and not as a terrorist organization.
[65] Mr. Momenzadeh Tameh
further stated that it was not until he was imprisoned that he learned of the
violent tactics employed by the MEK. It was as a result of this knowledge that
he then severed his ties with the organization.
[66] It should be noted that
there is some corroboration of Mr. Momenzadeh Tameh’s evidence on this point in
the independent evidence documenting the evolution of the MEK. That is, the
country condition information in the record suggests that although the MEK had
resorted to violent tactics in the early 1970’s, in the first couple of years
after the overthrow of the Shah (that is, the period between 1979 to 1981), the
MEK limited itself to non-violent tactics in opposing the Islamic regime that
had assumed power in Iran. This was the period in which Mr. Momenzadeh Tameh
started working for the organization.
[67] It was not until
mid-1981, after a series of attacks by government forces, that the MEK began
using violence, including terrorist tactics, in advancing its political agenda.
[68] It was up to the Minister
to decide how much weight to attribute to Mr. Momenzadeh Tameh’s evidence as to
what he knew of the terrorist tactics of the MEK and when he knew it. However,
if the Minister was not made aware of this clearly relevant evidence, he could
not assess and balance all of the relevant factors in determining whether Mr.
Momenzadeh Tameh’s presence in Canada would be detrimental to the national interest.
Conclusion
[69] The failure
of the Briefing Note to refer to clearly relevant evidence means that the
decision under review lacks the justification, transparency and intelligibility
required of the decision-making process. Moreover, having failed to consider
and balance all of the relevant factors in assessing Mr. Momenzadeh
Tameh’s application for Ministerial relief, it cannot be said that the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.
[70] As a
consequence, the application for judicial review is allowed.
Certification
[71] Neither party has
suggested a question for certification, and none arises here.
Email this Content