Date:
20130618
Docket:
IMM-7323-12
Citation:
2013 FC 674
Ottawa, Ontario,
June 18, 2013
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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ALEX GHAFFARI
A.K.A. “AKBAR GHAFFARI”
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is the judicial review of a decision by an Immigration Officer [Officer]
denying the Applicant a permanent resident visa on grounds of security because
of his membership and engagement in an intelligence unit of the Iranian armed
forces, the Iranian Sepah Padaram Islami [SPI]. He was inadmissible pursuant to
Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], s
34(1) and (2).
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34.
(1) A permanent resident or a foreign national is inadmissible on security
grounds for
(a) engaging in an act
of espionage or an act of subversion against a democratic government,
institution or process as they are understood in Canada;
(b) engaging in or
instigating the subversion by force of any government;
(c) engaging in
terrorism;
(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.
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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.
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II. BACKGROUND
[2]
The
Applicant, a citizen of Iran, is married to a Canadian. He is currently living
in the UK where he has protected person status as a result of persecution
suffered in Iran. The narrative of his experiences are covered in much of the UK proceedings.
[3]
While
there is some dispute about dates, the Applicant claimed that he served in the
armed forces starting in 1998 where he completed 1.5 months basic training
before he was selected to specialize in intelligence work and completed 4.5
months further training.
[4]
There
is a dispute as to whether he was drafted into the armed forces or volunteered.
The Applicant claims he was drafted and assigned to the intelligence section.
He also claims that during training he was brainwashed to believe that what
they were doing as soldiers was justified under the Koran and Islam.
[5]
The
Applicant was assigned to undercover work in the villages of Kurdistan to
obtain intelligence and to identify persons who may become the subjects of
torture and/or execution by the regime. He said that he disliked this type of
work and tried to return with minimal useful information.
[6]
The
Applicant witnessed torture of two individuals but did not participate in it.
He attested to the fact that he “did not leave the service at that time because
I had any place to flee to”. It is evident that this is a typographical error
and that he was trying to say that he had nowhere to flee. The Officer’s Notes
recount a different story but the Applicant’s explanation is under oath and
cannot be so easily rejected.
[7]
In
February 2000 the Applicant was ordered to assassinate an anti-government
activist and senior member of the Democratic Party. It was at that point that
he decided to escape, lied to his senior officer and made it to the Turkish border.
[8]
He
made his way to the UK where he secured protected person status. He
subsequently learned that the assassination occurred, that he was suspected of
leaking information and that authorities were searching for him. His brother
was arrested and his mother beaten.
[9]
In
March 2010 the Applicant’s wife filed an application to sponsor the Applicant
as a permanent resident in the family class.
[10]
The
record of the decision making process is convoluted and less than clear.
However, it is clear that the Applicant raised the issue of duress in defence
to the allegation of s 34(1) behaviour.
[11]
The
Officer concludes that the Applicant was not “brainwashed” or had “diminished mens
rea”. The Officer held that on the matter of torture, the Applicant was
happy that he was not asked to torture the men and was otherwise intent on
finishing his service. The obligations of military service and its length of
service is not disclosed.
[12]
The
Officer rejected the claim that the Applicant’s service was involuntary and
that the Applicant was not under duress to be a member of SPI, or to be
involved in spying. The Officer noted that the Applicant did not flee when he
witnessed torture.
[13]
There
are two issues in this judicial review.
- the
reasonableness of the conclusion that the SPI (a part of the Islamic
Revolutionary Guard Corps) was an organization described in s 34(1)(f)
of IRPA; and
- the
reasonableness of the finding that the Applicant was not under duress.
III. ANALYSIS
A. Standard of Review
[14]
On
the authority of such decisions as Miguel v Canada (Minister of Citizenship
and Immigration), 2012 FC 802, 414 FTR 260 and Thiyagarajah v Canada (Minister of Citizenship and Immigration), 2011 FC 339, 199 ACWS (3d) 1254, the
standard of review for both issues is reasonableness.
B. Re: Organization
[15]
The
Applicant did not withdraw his position that his unit of the SPI was not an
organization described in IRPA s 34(1)(f). However, the Applicant
did not press the point in oral argument.
[16]
Given
the Applicant’s own admission that his unit was engaged in targeting
dissidents, engaged in torture, and engaged in assassinations of such persons,
it is difficult to see how the unit was anything other but one covered by s
34(1)(f).
[17]
In
any event, the issue is not whether the Court would have come to that
conclusion but rather whether such a conclusion was reasonable on the record.
It was. Further, it was reasonable to conclude that “there were reasonable
grounds to believe” that the Applicant was a member of that organization.
C. Duress
[18]
There
are many troubling aspects of the analysis and rejection of the duress defence.
Despite strong evidence that the Applicant was drafted and assigned to the SPI
unit, there was pervasive insistence that all the Applicant’s actions were
voluntary.
There was also a
failure to grasp the real reasons the Applicant did not flee after witnessing
the first instance of torture.
[19]
Both
parties relied on R v Ryan, 2013 SCC 3, 353 DLR (4th) 387 [Ryan],
as it is the most recent and authoritative pronouncement on the defence of duress.
In fairness to the Officer, the Applicant’s decision predates Ryan and
its principles may have affected the Officer’s considerations.
[20]
While
Ryan arises in the context of criminal law as a defence to committing a
criminal act, the principles, with modification to the circumstances, are apt
in the s 34(1) context. In Ryan, the Supreme Court of Canada sets out
the elements of the common law of duress, at paragraph 55:
•
an
explicit or implicit threat of death or bodily harm proffered against the
accused or a third person. The threat may be of future harm. Although,
traditionally, the degree of bodily harm was characterized as
"grievous", the issue of severity is better dealt with at the
proportionality stage, which acts as the threshold for the appropriate degree
of bodily harm;
•
the
accused reasonably believed that the threat would be carried out;
•
the
non-existence of a safe avenue of escape, evaluated on a modified objective
standard;
•
a
close temporal connection between the threat and the harm threatened;
•
proportionality
between the harm threatened and the harm inflicted by the accused. This is also
evaluated on a modified objective standard;
•
the
accused is not a party to a conspiracy or association whereby the accused is
subject to compulsion and actually knew that threats and coercion to commit an
offence were a possible result of this criminal activity, conspiracy or association.
[21]
In
the Officer’s analysis there is scant or even any real consideration of what
options were open to the Applicant, when he should have realized that he had to
do something and what realistically could he do. In the Ryan context,
this notion of viable options is described as “Safe Avenue of Escape”.
[22]
In
Ryan the principle of “No Safe Avenue of Escape” is assessed on a
“modified objective basis” as set forth at paragraph 65:
65 This element of the common law defence was
specifically addressed in Ruzic [R v Ruzic, 2001 SCC 24, [2001] 1
SCR 687], at para. 61. Once again, the test, evaluated on a modified objective
basis, is that of a reasonable person similarly situated:
The courts will take into consideration the
particular circumstances where the accused found himself and his ability to
perceive a reasonable alternative to committing a crime, with an awareness of
his background and essential characteristics. The process involves a pragmatic
assessment of the position of the accused, tempered by the need to avoid
negating criminal liability on the basis of a purely subjective and
unverifiable excuse.
In other words, a reasonable person in the same
situation as the accused and with the same personal characteristics and
experience would conclude that there was no safe avenue of escape or legal
alternative to committing the offence. If a reasonable person similarly
situated would think that there was a safe avenue of escape, the requirement is
not met and the acts of the accused cannot be excused using the defence of
duress because they cannot be considered as morally involuntary.
[23]
Short
of desertion, insubordination and escape (potentially illegal acts in
themselves), which the Applicant did, there was no consideration of these or
any other options available to the Applicant. The Applicant is entitled to a
full consideration of his defence of duress.
IV. CONCLUSION
[24]
For
these reasons the judicial review will be granted, the decision will be
quashed, and the matter remitted to a different official for a new
determination.
[25]
There
is no question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
granted, the decision is quashed, and the matter is to be remitted to a
different official for a new determination.
“Michael L. Phelan”
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