Date: 20081014
Docket: IMM-950-08
Citation: 2008 FC 1155
Ottawa, Ontario, October 14, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
SALAH-EDDIN
RAMADAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
It
is the Minister’s task to determine whether waiving an inadmissibility
restriction for a person who is otherwise inadmissible to Canada would be “detrimental to the national interest”. The
Minister is uniquely placed to make such an assessment. The Court’s role is to
satisfy the foreign national and the Canadian public that the decision-making
process that was followed was fair, and that the decision, based on all of the
evidence, was reasonable.
[2]
In
this case the Minister’s decision cannot be maintained as it was not based on all
of the evidence.
BACKGROUND
[3]
This
is an application for judicial review of a decision of the Minister of Public
Safety and Emergency Preparedness, by which Mr. Ramadan’s request for relief
under subsection 34(2) of the Immigration and Refugee Protection Act, S.C.
2001, c.27 was denied. The decision under review was made on December 14,
2007. Subsection 34(2) of the Act provides for a discretionary Ministerial
exemption to a finding of inadmissibility under subsection 34(1), which
provision establishes a statutory bar to admissibility on the enumerated
security grounds. Section 34 of the Act provided as follows:
|
34. (1) A permanent resident or a
foreign national is inadmissible on security grounds for
(a) engaging in an act of
espionage or an act of subversion against a democratic government,
institution or process as they are understood in Canada;
(b) engaging in or instigating
the subversion by force of any government;
(c) engaging in terrorism;
(d) being a danger to the
security of Canada;
(e) engaging in acts of
violence that would or might endanger the lives or safety of persons in Canada;
or
(f) being a member of an
organization that there are reasonable grounds to believe engages, has
engaged or will engage in acts referred to in paragraph (a),
(b) or (c).
(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. (1)
Emportent interdiction de territoire pour raison de sécurité les faits
suivants :
a) être l’auteur d’actes d’espionnage ou se livrer à la subversion
contre toute institution démocratique, au sens où cette expression s’entend
au Canada;
b) être l’instigateur ou l’auteur d’actes visant au renversement
d’un gouvernement par la force;
c) se livrer au terrorisme;
d) constituer un danger pour la sécurité du Canada;
e) être l’auteur de tout acte de violence susceptible de mettre en
danger la vie ou la sécurité d’autrui au Canada;
f) être membre d’une organisation dont il y a des motifs
raisonnables de croire qu’elle est, a été ou sera l’auteur d’un acte visé aux
alinéas a), b) ou c).
(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.
|
[4]
Mr.
Ramadan was born in Yazour (Jaffa) in Palestine, in 1945; however, he is a
citizen of Jordan. He was
determined by the Immigration and Refugee Board to be a Convention Refugee in
1997. His claim for refugee protection was based on his fear of persecution at
the hands of the Jordanian regime due to his political beliefs and his
involvement with the Fatah faction of the Palestinian Liberation Organization
(PLO). The background to that fear stems from the 1970 conflict between the
King of Jordan and the PLO - known as Black September. Mr. Ramadan’s history
prior to these events is also relevant for the purposes of this application.
[5]
As
noted, Mr. Ramadan was born in Palestine, however, he spent the
first two decades of his life in Bethlehem, in what was then
Jordanian territory. After the Six Day War of 1967, when Israel took control
of the West Bank, he and his family left for the Jordanian capital of Amman. There, Mr.
Ramadan became active in Fatah. Fatah is a Palestinian political party and a
faction of the PLO. Mr. Ramadan was a self-described “political instructor”. He
says that his role was to “impart the historical and political context of the
conflict between the Palestinians and Jordan to new recruits coming to Fatah”.
[6]
In
this role he was critical of the government of Jordan. As such,
when the violent Jordanian crackdown on the PLO broke out in 1970, he was not a
neutral observer. He admits that while his “primary role was not combat, we
were forced into a defensive position and I led my group into a defensive
position from which we could defend ourselves against the assault coming from
the Jordanian army and its allies”. Although many of his friends and
colleagues died in the fighting, Mr. Ramadan emerged alive and fled with his
family to Kuwait, where he
stayed in exile for a decade, only returning with his family to Amman, Jordan, in 1980.
[7]
There,
Mr. Ramadan started to publish occasional opinion pieces in Tunisian and
Lebanese newspapers under a nom de plume, in which he criticized the Jordanian
regime. He also started to give speeches of a similar bent at what he
described as “ceremonial occasions”. These activities were eventually noticed
by the Mukhabarat, the Jordanian security services, and in May of 1989 he was
arrested. He was detained and tortured for six months. When he was finally
released in October of 1989, he immediately fled to Libya, where he stayed
until he was sent back to Jordan in 1994, when President Gaddafi expelled
his Palestinian guests.
[8]
Mr.
Ramadan stayed in Jordan only briefly. Sensing that he was still in
danger there, he left Jordan for the United States and then came to Canada,
crossing at Windsor,
Ontario in 1996,
where he made his claim for protection. That claim was accepted on February 6,
1997. Mr. Ramadan filed an application for permanent residence in Canada for himself
and his family on July 11, 1997. The processing of that application was
suspended due to the Minister’s determination on August 11, 2005, that Mr.
Ramadan was inadmissible to Canada pursuant to subsection 34(1)(f) of the Act
because of his prior and acknowledged ties with Fatah. As a part of that
process Mr. Ramadan was interviewed by a Citizenship and Immigration officer in
Windsor in November
2002. While the interviewing officer determined that it was clear that Mr.
Ramadan was inadmissible on account of his ties to Fatah, he nonetheless was of
the opinion that “[he] has since divorced himself from anyone or anything that
maybe (sic) connected to the PLO since his arrival to Canada” and the
officer stated that he did not believe that “Mr. Ramadan becoming a Permanent
Resident would jeopardise the National Security of Canada or its citizens”.
[9]
Mr.
Ramadan applied on November 18, 2005 for Ministerial relief pursuant to
subsection 34(2) of the Act. The Minister of Public Safety and Emergency
Preparedness refused the request on December 14, 2007. The reasons underlying
that decision are contained in an undated briefing note prepared by the
President of the Canada Border Services Agency. The briefing note canvasses
Mr. Ramadan’s past and notes that the CBSA has no information to contradict Mr.
Ramadan’s claims to be well-established in Canada, employed on
a full-time basis, and free of any criminal record. It also notes that Mr.
Ramadan has complained of emotional hardship occasioned by the separation from
his family while his residency application has been outstanding, and that he
has submitted various letters attesting to this hardship. The material portions
of the recommendation read as follows:
Although Mr. Ramadan is
well-established in Canada and there are some
humanitarian and compassionate grounds to consider, these do not negate the
fact that Mr. Ramadan was a member of the PLO-Fatah faction and his level of
involvement in the organization was significant. He voluntarily joined the
organization and was in contact with the command structure of the PLO-Fatah
faction. According to his statements, he was a devoted member from 1967 until
1980, which indicates a long-term, deep commitment to an organization, devoted
to self-governance through any means necessary, including violence. While Mr.
Ramadan maintains that he was a non-violent member of the organization; he did
participate in armed conflict on at least one occasion and through his public
speeches advocated the use of violence [in] reaching the objectives of the PLO,
stating in fact that it was the moral obligation of every Palestinian to fight
and support the violent uprising. Allowing individuals who have been involved
in such activities can be seen as detrimental to our national interest.
Although the PLO is recognized
internationally today as the representative of the Palestinian people and CBSA
recognizes that the PLO-Fatah faction has abandoned terrorism and is an active
participant in the democratic process, Mr. Ramadan was a member prior to the
PLO’s commitment to peace negotiations. As such, his membership and activities
on behalf of the PLO outweigh any national interest that would enable the
Agency to make a recommendation that Mr. Ramadan be granted Ministerial relief.
[10]
Mr.
Ramadan was provided an opportunity to respond to the CBSA briefing note, which
he did through his former counsel. Those submissions ranged from inflammatory
to substantive. The inflammatory, and irrelevant, included statements such as:
“[The CBSA’s statements] prove only one thing that this Officer is biased and
anti-Palestinian”. The substantive and relevant statements noted discrepancies
between information contained in the CBSA briefing note and the evidence
accepted at Mr. Ramadan’s refugee hearing, as well as what he had related to the
officer during his 2002 interview. These discrepancies include the length of
time Mr. Ramadan was involved with Fatah, the affirmation that he received military
training from the PLO, and the affirmation that his speeches emphasized the
moral obligation of every Palestinian to fight and support the Intifada.
[11]
There
is no indication that these submissions were considered by the Minister, or
even brought to his attention. They are not included in the certified record.
ISSUES
[12]
The
Applicant raised five issues:
(a)
What is
the standard of review of the Minister’s decision on an application for Ministerial
relief?
(b)
What
are the reasons for decision in this case?
(c)
Did
the Minister err in failing to properly consider the “national interest”?
(d)
Did the
Minister err by relying on patently unreasonable findings of fact, or by
ignoring evidence, or by making unreasonable inferences?
(e)
Did the
Minister improperly fetter his discretion when assessing all of the facts of the
Applicant’s application?
ANALYSIS
What is the standard of
review?
[13]
Both
parties submit that the standard of review of the decision under review is
reasonableness. This Court in Naeem v. Canada (Minister of Citizenship and
Immigration), 2007 FC 123 and Miller v. Canada (Solicitor
General),
2006 FC 912, held that decisions refusing Ministerial relief are reviewed on
the standard of patent unreasonableness. The Supreme Court of Canada in Dunsmuir
v. New
Brunswick,
2008 SCC 9 discarded the patent unreasonableness standard and collapsed the
previous three standards of review into two: correctness and reasonableness.
Where there is existing jurisprudence analysing and identifying the standard of
review, as there is here, that analysis need not be repeated. Accordingly, the
standard of review, as counsel agreed, is reasonableness.
[14]
Notwithstanding
that the standard of review is reasonableness, counsel for the Respondents
submitted that the Minister’s decision is entitled to the highest degree of
deference. Counsel noted that the Supreme Court in Dunsmuir at
paragraph 48 cautioned that “[t]he move towards a single reasonableness
standard does not pave the way for a more intrusive review by courts and does
not represent a return to pre-Southam formalism.” It was submitted that
the pre-Dunsmuir patently unreasonable test, which Ministerial decisions
such as this were judged against, had attracted the highest level of
deference. It is submitted that this level of deference has not changed,
despite Dunsmuir.
[15]
Justice
Binnie in Dunsmuir observed that the reasonableness standard must be
contextually applied. It is through the lens of context that one considers the
breadth of reasonableness. Justice Binnie noted that there are a number of
considerations the reviewing judge should keep in mind when examining the
decision from the perspective of the decision-maker:
The reviewing judge will
obviously want to consider the precise nature and function of the decision
maker including its expertise, the terms and objectives of the governing
statute (or common law) conferring the power of decision, including the
existence of a privative clause and the nature of the issue being decided.
Careful consideration of these matters will reveal the extent of the discretion
conferred, for example, the extent to which the decision formulates or
implements broad public policy. In such cases, the range of permissible
considerations will obviously be much broader than where the decision to be
made is more narrowly circumscribed, e.g., whether a particular claimant is
entitled to a disability benefit under governmental social programs. In some
cases, the court will have to recognize that the decision maker was required to
strike a proper balance (or achieve proportionality) between the adverse impact
of a decision on the rights and interests of the applicant or others directly
affected weighed against the public purpose which is sought to be advanced. In
each case, careful consideration will have to be given to the reasons given for
the decision. To this list, of course, may be added as many
"contextual" considerations as the court considers relevant and
material.
[16] This is a
decision that implements or reflects broad public policy. It is a decision
where the Minister is obliged to strike a balance between the interests of an
applicant who wishes to obtain residency in order to be reunited with his
family, and the public interest in ensuring that the national interest is not
prejudiced by a favourable decision. The fact that it is only the Minister,
and not a delegate, who is granted this authority also suggests that significant
deference is due. Taking all of these factors into account, there is no doubt
that the Minister in making the decision at hand is deserving of the highest
degree of deference.
What are the reasons for
decision?
[17] The Minister was provided with a
briefing note prepared by the President of the CBSA. It concluded with a page
for the Minister to indicate his decision – either Approved or Denied – and a
place for the Minister’s signature. The Minister provided no separate reasons
other than the briefing note. In such circumstances, the briefing note
constitutes the Minister’s reasons: Miller, above and Kanaan v. Canada (Minister of
Citizenship and Immigration), [2008] F.C.J. No. 301.
Did the Minister fail to
properly consider the “national interest”?
[18] Mr. Ramadan submits that the
reasons of the Minister are inadequate in that they failed to address the key factors
relevant to a determination of whether his admission to Canada would be
detrimental to the national interest. He points to the assessment guidelines
in the manual entitled “Evaluating Inadmissibility” (ENF 2/OP 18) which were
considered by Justice Dawson in Naeem v. Canada (Minister of Citizenship and
Immigration), 2007 FC 123. She observed that while they did not have the
force of law, they were an indicator of what constitutes a reasonable
interpretation of the power:
… [T]he Minister's guidelines
are intended to be instructive to the official responsible for preparing the
memorandum and recommendation to the Minister. As the Supreme Court explained
in Suresh v. Canada (Minister of Citizenship and
Immigration),
[2002] 1 S.C.R. 3 at paragraph 36, its review of the Minister's discretion in Baker
v. Canada (Minister of Citizenship and
Immigration),
[1999] 2 S.C.R. 817 was based upon the failure of the Minister's officials to
comply with ministerial guidelines. In Baker, at paragraphs 72, the
Court described the ministerial guidelines as "a useful indicator of what
constitutes a reasonable interpretation of the power" conferred by the
applicable section of the Act. The "fact that this decision was contrary
to their directives is of great help in assessing whether the decision was an
unreasonable exercise" of the discretion conferred by the Act.
[19] Mr. Ramadan submits that, in this
instance, the Minister’s reasons indicate that he effectively determined that Mr.
Ramadan’s past membership in a terrorist organization was itself sufficient to
warrant a negative finding with respect to the exercise of discretion. Relying
on this Court’s decision in Soe v. Canada (Minister of
Citizenship and Immigration), 2007 FC 461, it is submitted that this
approach effectively renders the exercise of discretion in subsection 34(2)
meaningless. In Soe, Justice Phelan wrote:
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).
[20] Justice Phelan accurately
described Mr. Soe’s circumstances as a Catch-22 situation. The decision in
this case is quite different. Here, there is no sweeping statement of the sort
in Soe that discretion should not be exercised, regardless of all else,
because Canada should not
harbour terrorists. In this case the reasons indicate that the personal
circumstances of Mr. Ramadan were considered, including his level of
involvement in the terrorist organization, that he voluntarily joined the
organization, that he was in contact with the command structure, that he was a
committed member, that the organization was devoted to achieving its objectives
through any means, including violence, and that he had engaged in violence.
[21] The briefing memo is not
formatted in the manner set out in ENF 2/OP 18, but form is not a requirement
for validity. It references a number of enclosures. These enclosures, and in
particular item 4, “Immigration Officer’s interview notes and report dated
November 28, 2002”, item 5, “Submissions of Mr. Ramadan dated October 10, 2004”,
and item 6, “Submissions from Mr. Ramadan’s counsel and physician dated
December 10, 2003” address many if not all of the relevant considerations
referenced in ENF 2/OP 18. Specifically, this collection of documents addresses
or provides the facts required to respond to the most significant questions set
out in the guideline, which is reproduced below:
|
Question
|
Details
|
|
Will the
applicant's entry into Canada be offensive to the Canadian public?
|
Is there satisfactory evidence that the person does not
represent a danger to the public?
• Was the activity an isolated event? If not, over what
period of time did it occur?
• When did the activities occur?
• Was violence involved?
• Was the person personally involved or complicit in the
activities of the regime/organization?
• Is the regime/organization internationally recognized
as one that uses violence to achieve its goals? If so, what is the degree of
violence shown by the organization?
• What was the length of time that the applicant was a
member of the regime/organization?
• Is the organization still involved in criminal or
violent activities?
• What was the role or position of the person within the
regime/organization?
• Did the person benefit from their membership or from
the activities of the organization?
• Is there evidence to indicate that the person was not aware of the
atrocities/criminal/terrorist activities committed by the
regime/organization?
|
|
Have all ties with the regime/ organization been completely severed?
|
Has the applicant been credible, forthright, and candid concerning
the activities/membership that have barred entry into Canada or has the
applicant tried to minimize his role?
• What evidence exists to demonstrate that ties have been
severed?
• What are the details concerning disassociation from the
regime/organization? Did the applicant disassociate from the
regime/organization at the first opportunity? Why?
• Is the applicant currently associated with any
individuals still involved in the regime/organization?
• Does the applicant's lifestyle demonstrate stability or
a pattern of activity likely associated with a criminal lifestyle?
|
|
Is there any indication that the applicant might be benefiting from
assets obtained while a member of the organization?
|
Is the applicant's lifestyle consistent with Personal Net
Worth (PNW) and current employment?
• If not, provide evidence to establish that the
applicant's PNW did not come from criminal activities.
|
|
Is there any indication that the applicant may be benefiting from
previous membership in the regime/organization?
|
Does the applicant's lifestyle demonstrate any possible
benefits from former membership in the regime/organization?
• Does the applicant's status in the community
demonstrate any special treatment due to former membership in the
regime/organization?
|
|
Has the person adopted the democratic values of Canadian society?
|
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?
• Does the applicant show any remorse for their
membership or activities?
• 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?
|
[22] Accordingly, in my view, it
cannot be concluded that the Minister failed to properly consider the “national
interest”, as he was required to do.
Did
the Minister rely on patently unreasonable findings of fact, ignore evidence,
or make unreasonable inferences?
[23] As previously indicated, the
briefing note sent to the Minister indicates on its face that it encloses eight
attachments; however, the certified record delivered to the parties and the
Court pursuant to Rule 17 of the Federal Courts Immigration and Refugee
Protection Rules, SOR 93/22, contains only six enclosures. Missing from
the record are enclosures 7 and 8 – “Personal Information Form (PIF)” and
“Further submissions from client after disclosure process”. The Applicant’s
PIF is included in the document enclosed as item 4, ‘Immigration Officer’s
notes and report”; however the Applicant’s response to the briefing note is not
included anywhere. Accordingly, the only evidence in the record as to whether this
document was before the Minister is the list of enclosures typed at the foot of
the briefing note. The Memorandum filed by the Applicant succinctly states his
objection as follows:
[W]hile the Applicant was
given the opportunity to review and respond to the Briefing Note prior to it
being forwarded to the Minister, there is no evidence that the submissions in
response were considered. The Applicant’s letter of response … highlighted
several significant inconsistencies between the Briefing Note and the interview
and other statements made by the Applicant. Despite these clarifications,
there is no evidence that the Briefing Note was amended in any way to take into
account the changes. In fact, the final version that was submitted to the
Minister is completely identical to the earlier draft to which the response was
made.
[24] The Respondents submit that the
reference in the briefing note to its enclosure gives the Court some reason to
be confident that the Minister had the benefit of the Applicant’s response
prior to rendering his decision. With respect, that reference provides me with
no confidence at all that the rebuttal letter was before the Minister. The
best evidence of what was before the Minister is the Certified Record, which
was filed with an affidavit attesting that it was a copy of the original. As
that record does not contain a copy of the rebuttal letter, there is every
reason to conclude that it was not before the Minister. I may have concluded
otherwise had the briefing note been amended to reflect that some of the facts
cited therein were challenged by Mr. Ramadan and detailed his response, but it
was not. Accordingly, I find that the Applicant’s rebuttal was not before the Minister.
[25] The Applicant’s rebuttal challenges
many statements in the briefing note, including that he had personal contact
with PLO commanders, advocated the use of violence, had been involved in
violent acts, and had a significant level of involvement with the PLO.
[26] As noted earlier, the Minister
should be granted considerable deference with respect to the decision he was
required to make. He must review and weight the evidence before him in
reaching his decision. That is the Minister’s role, not the Court’s. This
Court has held that where there is evidence before the Minister that, on its
face, supports the application for relief, that evidence has to be addressed
and the failure to do so constitutes a reviewable error: See Yamani v. Canada
(Minister of Public Safety and Emergency Preparedness), 2007 FC 381.
[27] In my view, where there is
evidence submitted in support of the application for relief that challenges the
material facts that are placed before the Minister, and that rebuttal evidence is
not before the Minister in order that it can be weighed, that too is a
reviewable error. In this case, it is not a matter of the Minister having
ignored evidence; it is a case of the proffered evidence not having been before
the Minister at all.
[28] On this basis, I must allow the
application and refer the matter back for a redetermination by the Minister.
In determining the matter again, the briefing note should indicate that due
consideration has been given to the rebuttal submitted by the Applicant and, in
some detail, indicate the reasons for accepting or rejecting the Applicant’s
rebuttal. The Applicant’s rebuttal must be placed squarely before the Minister
for his consideration.
Did
the Minister improperly fetter his discretion when assessing all of the facts
of the Applicant’s application?
[29] The Applicant alleges that the
author of the briefing note made unreasonable credibility findings. Strictly
speaking I need not address this issue in view if my findings above; however I
will nonetheless make some brief comments in this respect. The Applicant’s assertion
is based on the fact that the immigration officer who interviewed him believed
that he had distanced himself from the PLO since his arrival in Canada, and considered
that Ministerial relief was warranted. It is submitted that the adverse
credibility findings of the author of the briefing note, which were made later
and without the benefit of a personal interview, and allegedly without any
factual foundation, constituted an improper fettering of discretion.
[30] I cannot agree with the
Applicant’s submission in this regard. The immigration officer was tasked with
determining whether there were reasonable grounds to believe that the Applicant
is or was a member of the PLO. The view of the officer that Mr. Ramadan ought
to be granted relief was, strictly speaking, outside his mandate and was a
personal opinion, based solely on the facts before him. The author of the
briefing note was specifically tasked with making a recommendation as to
whether or not granting that relief would be detrimental to national security.
Although I have found that the note was problematic, I am not of the view that
the Minister’s discretion was fettered.
[31] Neither party proposed any question for certification and on these
facts, there is no certifiable question.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. This
application for judicial review is allowed and the matter is remitted back to
the Minister for a redetermination in accordance with these Reasons; and
2. No
question is certified.
“Russel W. Zinn”
Email this Content