Date: 20080909
Docket: IMM-827-08
Citation: 2008 FC 1011
Ottawa, Ontario, September 9,
2008
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
BASHEER
KABLAWI
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision by
the Minister of Public Safety and Emergency Preparedness (Minister) refusing
Mr. Kablawi’s application for Ministerial relief under s. 34(2) of the Immigration
and Refugee Protection Act, S.C. 2001, c.27 (Act).
Mr. Kablawi had earlier been found to be inadmissible to Canada
because of his membership in the Syrian Socialist Nationalist Party (SSNP), a
political organization that was believed to engage in acts of violence.
Because of that finding Mr. Kablawi attempted unsuccessfully to satisfy the
Minister that his presence in Canada would not be
detrimental to the national interest. It is from the Minister's
refusal of Mr. Kablawi's application for relief that this proceeding arises.
I. Background
[2]
Mr. Kablawi and his family came to Canada in
1995 and on March 20, 1998 they were determined by the Immigration and Refugee
Board to be Convention Refugees. Mr. Kablawi's
claim to refugee protection was based on a history of involvement in the SSNP
dating back to at least 1972.
[3]
In the Personal Information Form (PIF) narrative prepared
for Mr. Kablawi's refugee claim his involvement with the SSNP was described as
follows:
In 1979, prior to settling in the UAE, I travelled to Lebanon and attended a course
organized by the party the purpose of which was to instruct members as to how
to recruit individuals and to explain to them party beliefs and ideas. This
was for one month.
After moving to the UAE [in 1979], I continued to be active
within the party. While in the United Arab Emirates, I continued to support the party. I attended party
meetings and joined in the party’s “across the border” mission whose aim was to
recruit members. The party and myself continued to receive party pamphlets and
instructions on a regular basis. I was in charge of recruiting new members and
spreading the party’s ideas. I received my instructions from a person higher
in authority in the party who was residing in the United Arab Emirates.
During the summer holidays, I would go back to Syria in order to visit my
mother and also to do my duties as a member of the party.
[4]
According to Mr. Kablawi there was a serious attempt on his
life in Lebanon in 1991 apparently motivated by his
efforts to root out corruption in the SSNP. Mr. Kablawi then fled to Syria only
to be warned by a family friend that he was about to be arrested by the Syrian
authorities. From Syria, Mr. Kablawi and his family fled to the
United Arab Emirates and from there they came to Canada.
[5]
The record indicates that since coming to Canada Mr.
Kablawi has led a peaceful and productive life and that he has severed his ties
to the SSNP. In an admissibility interview report prepared by Citizenship
and Immigration Canada in 2002, Mr. Kablawi's
situation was described as follows:
Mr. Kablawi vehemently opposed any violent actions or
demonstrations to support the SSNP causes and principles. He genuinely did not
seem aware of events that have been linked to violence and terrorist type
activities with the SSNP as stated in the international compilation of
terrorist organizations, violent political groups and issue-oriented militant
movements supplied by NHQ/BCZ. Mr. Kablawi is a well-educated,
well-spoken, intelligent individual, who by his own admission, admitted that he
familiarizes himself on events and activities of SSNP via the Internet on a
regular basis. To the best of his knowledge, he was not aware of such
significant actions and activities that linked SSNP to possible terrorist acts
and violence. Mr. Kablawi declared that he has never been
involved in any acts and violence or terrorism and does not condone or support
this type of action at any time, for any purpose.
At the present time, Mr. Kablawi is working at the
London Islamic School full-time as an Arabic Language teacher (since September
2001) with a monthly salary of approximately $2,000 per month. His wife is
unemployed and his three daughters are attending Western University with the assistance of
student loans. As well, his three daughters work part-time to help supplement
the family income. Mr. Kablawi’s only outside activity is attending the
mosque every Friday to attend prayer period.
After interviewing Mr. Kablawi and examining all the
supporting documentation, I am satisfied that Mr. Kablawi was a member of
SSNP for 23 years, which publicly available documentation provided by our Legal
Services indicates that this group meets the criteria of a terrorist organization.
This being said, I find Mr. Kablawi to be inadmissible
19(1)(f)(iii)(b) however, I recommend that Mr. Kablawi not be directed to
Immigration Inquiry and be afforded the opportunity to remain in Canada under the protection
of his Convention Refugee Status.
There is no evidence to suggest that Mr. Kablawi poses
a security threat to Canada and he has not been involved in any political
activities or memberships with SSNP since his arrival to Canada in 1995 (7
years). Mr. Kablawi indicated emphatically throughout the interview that
he wishes to distance & completely remove himself from any activities,
meetings, and/or agendas with the SSNP. He does not wish to place himself or
his family at any risk, and his sole purpose for fleeing to Canada was to escape the
situation in Syria and start a new life for himself and his family. It was very evident
throughout the interview that Mr. Kablawi’s primary purpose and goal in
life, is to protect his family, and ensure they are afforded every opportunity
to make a better life for themselves, free from any danger or threats due to
his past activities with SSNP.
[Emphasis in original.]
[6]
Mr. Kablawi requested Ministerial relief in July 2002 but
it was not until October 18, 2007 that the decision was made. The Minister's
refusal is represented by his signature affixed to a briefing note prepared by
the Canadian Border Services Agency (CBSA) dated August 29, 2006 recommending
that relief be denied.
The
Decision Under Review
[7]
It is clear that the CBSA briefing note constitutes the
reasons for the Minister’s decision: see Miller v. Canada
(Solicitor General), 2006 FC 912, [2007] 3 F.C.R. 438, at paras. 55-62. That
briefing note summarized Mr. Kablawi's
history of involvement with the SSNP and it also contained the following summary
of the 2002 immigration admissibility report:
Mr. Kablawi did
not submit formal submissions with his relief application. However, the
Immigration officer processing his case submitted a favourable recommendation
on his behalf (Appendix 4).
The officer stated that Mr. Kablawi was very
co-operative and forthright during his interview with CIC and answered all
questions posed to him without hesitation or exaggeration.
The officer stated that Mr. Kablawi is a
well-educated, well-spoken, intelligent individual, who is well established in Canada. Mr. Kablawi is
employed on a full time basis as a language teacher and has three daughters
attending Western University.
The officer stated that Mr. Kablawi genuinely did not
seem aware the SSNP had been linked to acts of violence or terrorism. The
officer also stated that it was evident in the interview with Mr. Kablawi
that his primary purpose and goal in life, is to protect his family and ensure
they are afforded every opportunity to make a better life for themselves, free
from any danger or threats due to his past activities with the SSNP.
[8]
Notwithstanding
the above-noted considerations, the CBSA briefing note recommended that
Ministerial relief be refused to Mr. Kablawi. The CBSA concluded that
Mr. Kablawi’s denial of any knowledge of the SSNP’s history of violence
was improbable. It was also concerned about the length of his membership in
the party and the strength of his commitment to its goals. The rationale for
the CBSA’s recommendation can be found in the following extract from its
briefing note:
Mr. Kablawi maintained his
membership in the organization for over 23 years. His duties while not violent
were significant in that he was responsible for recruitment and was considered
a “lecture leader” which afforded him the right to speak on behalf of the
SSNP. This indicates that he was in direct contact with the leadership who
would direct him on what information should be presented. This also indicates
that he was in a position of trust within the organization.
Mr. Kablawi has been described as a
well educated, intelligent individual who keeps abreast of SSNP activities.
Taking this, his family ties to the organization and his long term membership
into consideration, it is unrealistic that he would have no knowledge that the
SSNP engaged in violence to achieve its goals.
While there are significant humanitarian
and compassionate grounds to consider in this case, they do not negate the fact
that Mr. Kablawi was a dedicated member of a violent organization.
Allowing individuals with these types of allegiances who have engaged in these
types of activities to remain in Canada
is against our national interest. We are of the opinion that Mr. Kablawi
has failed to demonstrate that his presence in Canada is not detrimental to the national
interest. His membership and activities on behalf of the SSNP outweigh any
national interest that would enable the CBSA to make a recommendation that
Mr. Kablawi be granted Ministerial relief. Therefore, we recommend that
he not be granted relief.
II. Issues
[9]
(a) Did
the Minister breach a duty of fairness to Mr. Kablawi?
i.
Does
the Minister’s decision contain reviewable errors of fact including
unreasonable findings of fact or inference or by failing to take appropriate
account of the evidence before him?
ii.
Did
the Minister fetter his discretion by placing undue or singular reliance on
Mr. Kablawi’s past involvement with the SSNP?
III. Analysis
[10]
With
respect to the standard of review which applies to the exercise of the
Minister’s statutory discretion, I would adopt the following views of Justice
Anne Mactavish in Tameh v. Canada (The Minister of Public
Safety and Emergency Preparedness), 2008 FC 884, [2008]
F.C.J. No. 1111, at paras. 33-36:
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.
[11]
Because
I can identify no breach of the duty of fairness in this case, it is
unnecessary to discuss the standard which applies to that issue.
[12]
It
was argued on behalf of Mr. Kablawi that the Minister’s failure to provide
him with copies of the open source references relied upon by the CBSA dealing
with the SSNP’s history of violence constituted a breach of the duty of
fairness. I cannot agree with this submission.
[13]
Mr. Kablawi
was given the CBSA briefing note and he was well aware of its views on the
SSNP. I also have no evidence that the attachments to the briefing note were
not provided to Mr. Kablawi. His response to the briefing note sent to
the Minister indicates that he did have those materials and, in
any event, he could have requested copies if there had been any such omission.
Certainly he had sufficient information to permit meaningful participation in
the decision-making process: see In re Canadian Radio-Television Commission
and in re London Cable TV Ltd., [1976] 2 F.C. 621 (C.A.) at pp. 624-25.
[14]
Mr. Kablawi
also maintained that the CBSA briefing note contains several reviewable
evidentiary errors including unreasonable factual findings and the drawing of
unreasonable inferences from the evidence. He also argues that the CBSA
ignored material evidence thereby depriving the Minister of all of the facts
necessary to base a decision.
[15]
In
particular, Mr. Kablawi takes issue with the CBSA’s conclusion that his
stated ignorance of the SSNP history of violence was improbable. In my view
that was a reasonable inference to draw from the available evidence.
Mr. Kablawi did not explicitly claim that the SSNP was wholly non-violent.
His affidavit filed in this proceeding states only that “violence played no
part in the official party mandate”. It is also noteworthy that his claim to
refugee protection was based largely on an alleged attempt on his life by a
faction of the SSNP.
[16]
The
open source material relied upon by the CBSA includes references to a long
history of violence connected to the SSNP during the period of Mr. Kablawi’s
party membership. Mr. Kablawi admitted in his PIF that he was a dedicated
official member of the SSNP from 1972 (having been a so-called “active member”
before that) and that he was laterally “in charge of recruiting new members and
spreading the party’s ideas”. Nevertheless, when he responded to the CBSA
briefing note, he described himself as a “media representative; meaning writing
about the SSNP ideology and nothing more”. Although Mr. Kablawi argues
that he was not a leader within the SSNP, there is also nothing in the CBSA
briefing note to suggest otherwise. Given Mr. Kablawi’s admitted lengthy
association with the SSNP and the extent of his dedication and support for its
goals, there was ample evidentiary support for the CBSA’s belief that
Mr. Kablawi’s claim of ignorance about its violent tendencies was not
credible.
[17]
Mr. Kablawi
also says that the CBSA briefing note was unfairly selective and failed to draw
attention to “significant humanitarian considerations” most notably involving
his conduct since coming to Canada and the worthy accomplishments of his
family. His Brief to the Court summarizes this argument in the following
passage:
54. The Applicant submits that he
has demonstrated many of the items in the table under 13.7 and that the
interviewing officer’s notes recognized this. For example, there was evidence
that he does not represent a danger to the public; he has never been involved
in violence (or aware that the SSNP engaged in it as a party); his role in the
SSNP exclusively involved media work; he did not benefit from membership in the
organization (and in fact withdrew when he disagreed with their policies); he
ceased to be a member in 1991; he has been credible and forthright; he has no
contact with the SSNP, he has no criminal record and respects the rule of law;
that he has always denounced the use of violence. There was also significant
evidence of humanitarian and compassionate considerations, including the best
interests of his five children, and the fact that he and his family members are
all Convention Refugees. As a result, the Officer’s failure to consider the
totality of the evidence is a reviewable error since this Court has held in
numerous cases that there cannot be selective reliance on evidence presented to
the detriment of the person concerned, nor can relevant evidence be ignored.
[18]
I
do not agree that the CBSA briefing note was unfairly selective. Appropriate
attention was given to the relevant humanitarian circumstances in the summary
provided to the Minister. The Minister was also provided with copies of the
immigration admissibility report, Mr. Kablawi’s PIF and his response to
the CBSA briefing note. These materials contain all of the relevant
humanitarian considerations and there is no basis for me to conclude that the
Minister did not read them. According to the decision in Oberlander v. Canada (Attorney
General),
2004 FCA 213, [2005] 1 F.C.R. 3 (C.A.) at para. 58 it must
generally be assumed that the decision-maker has examined all of the evidence
unless the decision fails to refer to the competing factors which, in that
case, were described as overwhelming. Here the CBSA briefing note contained a
reasonable summary of the humanitarian factors and described them as
“significant”. In my view, the CBSA briefing note provides a balancing of the
positive and negative considerations sufficient to address the “major points in
issue” and it is reflective of a “consideration of the main relevant factors”: see
Via Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25,
[2000] F.C.J. No. 1685 (C.A.) at para. 22.
[19]
The
only obvious factual error that I can identify in the decision under review is
the reference to Mr. Kablawi giving up his association with the SSNP upon
his arrival in Canada. The evidence is uncontradicted that
Mr. Kablawi severed his ties with the SSNP in 1991 after the failed
attempt on his life. I would add that the decision also notes both a 20-year
and 23-year association with the SSNP. In my view nothing turns on this
point. Mr. Kablawi’s party membership was longstanding and whether it was
for 19, 20 or 23 years, it would not have displaced the stated concern that he
“was a dedicated member of a violent organization”.
[20]
Mr. Kablawi’s
primary attack on the Minister’s decision is, as he puts it, that the
determination of the “national interest” under ss. 34(2) of the Act was reduced
to the single overriding consideration of his past membership in a violent
organization. This, he says, fails to provide the kind of balancing of the
relevant factors that was of concern to this Court in cases like Naeem v.
Canada (Minister of Citizenship and Immigration), 2007 FC 123,
[2007] F.C.J. No. 173, Kanaan v. Canada (Minister of Citizenship and
Immigration), 2008 FC 241, [2008] F.C.J. No. 301, Esmaeili-Tarki v.
Canada (Minister of Citizenship and Immigration), 2005 FC 509, [2005]
F.C.J. No. 633, Soe v. Canada (The Minister of Public Safety and
Emergency Preparedness), 2007 FC 461, [2007] F.C.J. No. 620 and Tameh,
above. In the Soe decision at paras. 32-36, Justice Michael Phelan
framed the issue before him as follows:
32 More problematic is the conclusion
that the Minister should not exercise his discretion because "Canada should not harbour
individuals who have admitted to committing terrorist acts". Presumably
this rationale is also applicable where the individual denied committing the
terrorist act but the evidence confirms that he did. It is the commission of
the terrorist act, not the admission of commission of the act, which grounds
the refusal to exercise the Ministerial discretion.
33 The Briefing Note goes on to
observe that there are no compelling reasons to grant protection or permanent
residence. The factors examined are largely those related to a close connection
to Canadian society, including jobs and family in the country.
34 The difficulty with this analysis
is that it renders the exercise of discretion meaningless. It is tantamount to
saying that an individual who commits an act described in s. 34(1) cannot
secure Ministerial discretion because they committed the very act that confers
jurisdiction on the Minister to exercise discretion under s. 34(2).
35 Quite apart from this
"Catch-22" conclusion, the Minister never adequately explains why the
discretion should not be exercised because the individual committed an act
prescribed by s. 34(1). An applicant is entitled to the real reasons for the
refusal to exercise discretion other than that the person has committed an act
described in s. 34(1).
36 Whether one describes this part of
the Minister's decision as a failure to provide adequate reasons, a failure to
address the proper legal issue or a fettering of discretion by limiting the
scope of the analysis, the Minister's
decision in this regard cannot be sustained.
To a similar effect are the observations by
Justice Barry Strayer in Kanaan, above, at paras. 7-8:
7 Of course, a tribunal need not
mention every bit of evidence considered, but when the evidence is sufficiently
important and is not mentioned, a Court may infer that it was not considered: Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration) (1998) 157 F.T.R. 35.
Instead, in the closing words of the briefing note (which must be taken to
reflect the Minister's views) it is said that:
... Mr. Kanaan's lengthy membership in an organization
listed as a terrorist entity, coupled with his obvious lack of credibility,
makes it impossible for CBSA to make a recommendation that his presence in Canada would not be detrimental to
the national interest... .
This seems to negate the purpose of
subsection 34(2) which contemplates that even persons who are or have been
members of a terrorist organization might be admissible if "their presence
in Canada would not be detrimental to
the national interest". The assumption of the quoted rationale seems to be
that if a person has ever admitted or wrongly denied membership in a terrorist
organization he will always be a threat to the national interest of Canada. It does not consider, for
example, that even if the Applicant had been a member of ANO and whatever the
quality of that membership, he had been absent from Lebanon and the activities
of the ANO for 14 years prior to the Minister's decision.
8 I therefore conclude that the
Minister's decision was patently
unreasonable in that it failed to take into account evidence and factors
presented in the Applicant's submissions of March 31, 2006 and July 25, 2006.
The decision seems to have turned on the simplistic view that the presence in Canada of someone who at some time
in the past may have belonged to a terrorist organization abroad can never be
in the national interest of Canada. I will therefore set aside
the Minister's decision and refer the matter back to him for reconsideration.
In each of the above authorities there was
a finding either that the Minister ignored or overlooked material evidence
which favoured the applicants’ interests or that the reasons given were
inadequate to support the decision taken. I am not convinced that in this case
the Minister’s decision can be faulted for either of those reasons.
[21]
A
careful review of the CBSA briefing note including its appendices indicates
that the Minister had all of the relevant evidence before him necessary to
address the factors identified in the applicable Ministerial Guidelines (ENF
2/OP 18). It is also apparent that the Minister did place considerable if not
overriding weight on the fact of Mr. Kablawi’s past membership and
involvement in the affairs of the SSNP. I do not agree, however, that the
Minister’s discretion was fettered by the application of a simple and single
consideration of Mr. Kablawi’s association with that group. If that had
been shown, I would have had no hesitation in applying the above-noted
authorities because the Minister is obliged to consider all of the relevant
evidence. However, if the Minister decides that a person’s past conduct is
sufficiently troubling that it takes precedence over the competing humanitarian
factors, it is not for the Court to interfere on judicial review.
[22]
In
my view, it is up to the Minister to assign the weight that should be
attributed to the factors identified in the Ministerial Guidelines. He is
entitled to give greater weight to one factor over others, and it was not
unreasonable for him to emphasize the length of Mr. Kablawi’s association
and the level of his commitment to the purposes of the SSNP. It was also
reasonable for the Minister to be sceptical about Mr. Kablawi’s claimed
ignorance of the SSNP’s history of violent behaviour.
[23]
In
my view deference is owed to the exercise of the Minister’s discretion under ss.
34(2) of the Act. The assessment of what is in the national interest involves
the exercise of broad discretion: see Miller, above, at para. 73. It
is necessarily a multi-faceted task importing considerations over which the
Minister has particular expertise including national security, international
relations, and public confidence. I agree with Mr. Waldman that what is in the
national interest is not determined solely by national security considerations.
But it is not an error for the Minister to weigh national security considerations
heavily in reaching a conclusion that an applicant has not met the evidentiary
burden for relief.
[24]
In
my view, the circumstances of this case are not materially distinguishable from
those arising in Chogolzadeh v. Canada (The
Minister of Public Safety and Emergency Preparedness), 2008 FC 405,
[2008] F.C.J. No. 544. In that case, Justice Michel Shore
declined to interfere with the Minister’s discretion for the following reasons,
at paras. 37-45:
37 The national interest will also be
shaped by the historical context at any given time and is not a static concept.
Combating terrorism on the national and international front is a concern at the
forefront of Canada's current national interest.
38 The Minister's decision not to
admit Mr. Chogolzadeh to Canada, as a permanent resident, is
reasonable and according to law. The Minister's reasons for that decision sets out an
account of appropriate considerations. No issue requiring this Court's
intervention is raised by the Minister's
refusal.
39 Mr. Chogolzadeh is asking this
Court to reweigh the evidence and to come to a conclusion that would be more
favourable to him. All of the major points in issue had been properly
addressed, in the Briefing Note, including Mr. Chogolzadeh's break from the MEK
and his subsequent establishment in Canada.
(Applicant's Record, Briefing Note, p.
10; Miller, above, para. 83; VIA Rail Canada Inc. v. Canada (National
Transportation Agency) (2000), 193 D.L.R. (4th) 357 (F.C.A.), para. 22.)
40 In Miller, above, Chief
Justice Lutfy addressed this Court's inability to weigh factors that the
Minister considered when deciding as he did:
[83] Although the applicant may disagree
with the weight assigned in the memorandum to the factors she considered to be
the more important, or with the extent to which certain points were developed,
she has fallen short of demonstrating that the memorandum did not
"address" the "major points in issue" (VIA Rail Canada
Inc. v. National Transportation Agency et al. (2000), 193 D.L.R. (4th) 357,
[2000] F.C.J. No. 1685, (F.C.A.) at paragraph 22).
[84] As noted above at paragraph 41, the
Supreme Court stated in Suresh at paragraph 37:
[...] Baker does not authorize
courts reviewing decisions on the discretionary end of the spectrum to engage
in a new weighing process, but draws on an established line of cases concerning
the failure of ministerial delegates to consider and weigh implied limitations
and/or patently relevant factors [...]
In my view, the applicant has not
demonstrated that the Minister failed to "consider and weigh" the
"patently relevant factors" ...
41 Again, this is a balancing
exercise, the Minister is called upon to assess and weigh the evidence
presented by Mr. Chogolzadeh. It was open to the Minister to conclude that
evidence favourable to an exemption did not outweigh the impact of Mr.
Chogolzadeh's long-standing past
membership in a terrorist organization. Mr. Chogolzadeh's break from the MEK
and his family's establishment in Canada were before the Minister as
was specified in the Reasons. The findings of fact in regard to Mr.
Chogolzadeh's "membership" and activities in the MEK are reasonable
and based on the record.
42 Mr. Chogolzadeh continually made
reference to his alleged opposition to the MEK. Significantly though, his
opposition was not to the MEK's terrorist tactics, but
rather to the direction it took in supporting Saddam Hussein's campaign
against Iraqi Kurds. Mr. Chogolzadeh's opposition only began after a decade of
involvement in the MEK and awareness of its terrorist activities. These are
significant aggravating factors. (Emphasis in original.)
43 The enumerated considerations,
listed and alleged by Mr. Chogolzadeh, to have been ignored by the
Minister, were before the Minister. Mr. Chogolzadeh's position is untenable and
it does not give rise to any issue requiring this Court's intervention. Mr. Chogolzadeh took
no issue with the facts as set out in the Briefing Note when it was circulated
for his comment.
44 The Briefing Note clearly indicates
that the Minister reviewed the material which Mr. Chogolzadeh had presented; it
recognized that it was only after over a decade of support or membership in the
MEK, that Mr. Chogolzadeh disassociated himself from it. It is also understood,
thereby, that Mr. Chogolzadeh and his family have become established in Canada
with no contact with the MEK since arriving in Canada. The Reasons also point out that the MEK
is a listed terrorist organization and that Mr. Chogolzadeh had knowledge of
the MEK's tactics while he was
providing material support to the organization. The fact that Mr. Chogolzadeh
gave strong allegiance to a terrorist organization, which used violence to
advance its goals, outweighs any other national interest which could warrant a
positive decision. (Applicant's Record, Briefing Note, p. 11.)
45 The Minister's rationale directs itself adequately to
Mr. Chogolzadeh's application. Mr. Chogolzadeh insists that he is of no
harm to the national interest and has never personally committed acts of
violence; and, that he would benefit from acceptance of his application. There
is, however, no requirement that relief be granted in these circumstances.
The views expressed above are equally
applicable to the facts of this case. The exercise of the Minister’s
discretion in this situation does not lend itself to a particular result.
Either possible outcome can be reasonably defended on the strength of the
available evidence. The Minister’s decision is transparent; it can be
justified; and it is intelligible. It is also a decision arising in an area
where the Minister and his advisors have a considerable degree of special
knowledge involving sensitivity to the imperatives of public policy and to the
nuances of the legislative scheme. In short, this decision falls well within
the range of possible, acceptable outcomes described by in Dunsmuir v. New
Brunswick,
above, and it is, therefore, deserving of respect.
[25]
In
the result, this application for judicial review is dismissed.
[26]
The
parties requested an opportunity to propose a certified question upon receipt
of a decision in this case. In the result, I will allow the Applicant 10 days
to propose a certified question. The Respondent shall then have 5 days to
respond. Neither submission should exceed 5 pages in length.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
THIS COURT
FURTHER ORDERS that the Applicant shall have 10 days to propose a
certified question. The Respondent shall then have 5 days to respond. Neither
submission should exceed 5 pages in length.
“ R. L. Barnes ”
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