Docket: IMM-3869-14
Citation:
2015 FC 1094
Ottawa, Ontario, September 18, 2015
PRESENT: The Honourable Mr. Justice Barnes
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BETWEEN:
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RAMIN FALLAH
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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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JUDGMENT AND REASONS
[1]
The Applicant, Ramin Fallah, sought to enter
Canada from Iran under a work permit to secure 3-year term employment with
Exapharma Inc. carrying on business as Canadian Plasma Resources. His
application was denied by a Visa Officer (Officer) under section 34 of the Immigration
and Refugee Protection Act (IRPA) and, in particular, because he was found
to be inadmissible as being a danger to the security of Canada. It is this
decision that is challenged on this application.
[2]
Mr. Fallah contends that he was denied
procedural fairness by the Officer’s failure to sufficiently inform him of the
underlining admissibility concerns. He also argues that the decision was
unreasonable because it was ostensibly based on a misunderstanding of
international open-source material discussing the past conduct of his Iranian
employer and because certain evidence was arguably overlooked.
I.
Ex Parte Hearing
[3]
On June 17, 2015 I heard an ex parte
motion brought by the Respondent seeking an order for non-disclosure of
information in the record on the basis of an asserted national security
privilege. After hearing evidence, I issued an Order on July 30, 2015
confirming the right of the Minister to withhold from disclosure certain
passages contained in a Canadian Border Security Agency (CBSA) inadmissibility
assessment on the basis that the release of that information could be injurious
to national security or would endanger the safety of unnamed persons. In
granting that Order, I was satisfied that the CBSA inadmissibility assessment contained
more than sufficient information for Mr. Fallah to know the basis for its
inadmissibility recommendation and to permit him to meaningfully respond on
this application for judicial review. In particular, the CBSA inadmissibility
assessment states that Mr. Fallah’s Iranian employer “has
been involved with procurement connected to the Iranian nuclear program”.
This was the precise basis for the Officer’s conclusion that Mr. Fallah’s
employer was known to trade in dual use technologies and “is widely believed to be involved with the procurement of
goods directly related to Iranian Nuclear proliferation”.
II.
The Fairness Issue
[4]
Mr. Fallah complains that the Officer’s fairness
letter reflected a misunderstanding of his employer’s status under Canada’s Special
Economic Measures Act, SC 1992, c 17 (SEMA) regulations, failed to disclose
all of the Officer’s concerns, and disclosed a misunderstanding about that
company’s export control status in the United Kingdom and Japan. Mr. Fallah
also contends that it was a breach of fairness to fail to disclose the contents
of the CBSA inadmissibility assessment setting out the factual underpinnings of
the Officer’s decision.
[5]
There is no doubt that the Officer relied, in
part, on extrinsic evidence in finding that Mr. Fallah’s Iranian employer
represented a security risk. In particular, the Officer considered the CBSA
inadmissibility assessment stating, “Mr. Fallah has
been the Managing Director of Fanavari Azmayeshgahi since October 2001
[redacted]… this company has been involved with procurement connected to the
Iranian nuclear program”. That assessment noted that Mr. Fallah’s
employer had been identified in open sources and by allied governments as being
an entity of Weapons of Mass Destruction (WMD) concern. The report also described
the nature of the equipment traded by Fanavari that was of particular concern:
…Further,
according to its website, Fanavari Azmayeshgahi represents well-known brands
and products that have potential dual-use application. For example, several
products under the Siemens brand have potential dual use application, such as
X-ray equipment, which is highlighted in the U.S.’s 2010 Technology Alert List
(TAL) as critical technologies for the production of WMDs. X-ray
equipment/technologies highlighted in the TAL include: FLASH DISCHARGE TYPE
X-RAY SYSTEMS, FLASH X-RAY, IMAGING SYSTEMS, and X-RAY AND ANALOGOUS (NOT
INCLUDING MEDICAL X-RAY PURPOSES SUCH AS MRIS).
[6]
The CBSA recommended that Mr. Fallah be found
inadmissible on the basis of his employer’s “reported involvement
with procurement connected to the Iranian nuclear program”.
[7]
I am not convinced that the Officer’s
undisclosed reliance on these extrinsic sources gave rise to a breach of
procedural fairness.
[8]
In the context of foreign nationals seeking
entry to Canada, it is important to recognize that the content of the duty of
fairness is less demanding. That is particularly the case where national
security issues are in play. These points were addressed by the Federal Court
of Appeal in Chiau v Canada (Minister of Citizenship and Immigration), 193
FTR 159, [2001] 2 FCR 297 in the following way:
[48] In fact, Mr. Chiau was relatively
well informed. He knew the legal basis on which the officer was minded to base
his decision; he knew the organization of which he was suspected of being a
member; he knew that the basis of this suspicion included his relationship with
allegedly triad-controlled studios and their heads, and with another member of
the triad.
[49] He was thus far from being in the
dark about the officer’s concerns, and could have attempted to assuage them by,
for instance, providing evidence that he had made films for studios other than
those believed to be owned by triad-controlled companies.
[50] Despite the lack of clarity in the
evidence about what took place at the visa interview, I am not persuaded that
Mr. Chiau was denied a fair opportunity to present material, either at or after
the interview, that might have supported his position. It is relevant here to
note that subsection 8(1) of the Act places on applicants for admission to
Canada the burden of establishing that their entry would not be contrary to the
Act.
…
[51] I have concluded on the basis of
the above considerations that there was no breach of the duty of fairness. The
appellant was not denied a reasonable opportunity to know and answer the case
against him before he was refused a visa, even though the visa officer in part
had based his decision on material that he kept entirely confidential.
[52] Despite the individualized and relatively
structured nature of the decision-making power exercised by the visa officer,
the adverse effect of the decision on the appellant was comparatively slight.
In contrast, the potential damage to Canada’s security and international
relations as a result of disclosing any part of the confidential material was
substantial. The amount of information given to the applicant, and the
opportunity that he had to respond, are also relevant to my conclusion that no
breach of the duty of fairness occurred.
[53] It is true, as Ms. Jackman pointed
out, that subsection 39(6) of the Immigration Act imposes a duty on the
Security Intelligence Review Committee to provide to a person about whom a
report is made a summary of security or intelligence reports so that the person
concerned can be as fully informed as possible about the circumstances giving
rise to the report: see Chiarelly v. Canada (Minister of Employment and
Immigration), supra.
[54] However, this statutory
requirement does not necessarily indicate that the duty of fairness requires
the production of a similar summary before a person is refused a visa on
national security grounds. This is because section 39 of the Act applies to the
deportation of permanent residents of Canada: deportation normally has a more
serious impact on the individual concerned, and on his or her family, than the
refusal of a visa to a person seeking admission to Canada as an independent
immigrant, and thus attracts greater procedural safeguards. When another
decision, such as the refusal of a visa, has a less serious impact on
individual interests, there is less justification for requiring a degree of
disclosure that might result in damage to national security, and the factors
determining the content of the duty of fairness must be rebalanced.
Also, see Fouad
v Canada (Citizenship and Immigration,) 2012 FC 460 at para 14, [2012] FCJ No 768.
[9]
These points apply equally to Mr. Fallah. He was
told in the Officer’s procedural fairness letter that his senior employment
relationship with “an internationally sanctioned entity
that deals with goods and products that are listed under” the SEMA
regulations was the potential basis for a refusal decision. He was also told to
provide any information that would allay those concerns. Mr. Fallah, thus, knew
of the Officer’s concern about the past trading practices of his employer and about
its attempts to procure dual purpose technologies. Nevertheless, his lawyer’s
response only obliquely addressed that primary issue. The response was limited
to the observation that Canada’s SEMA regulations did not specifically name Mr.
Fallah or his employer as sanctioned parties, nor did they expressly list the
kinds of medical products his employer traded in. As further evidence, Mr.
Fallah verified that his employer had been previously permitted to import
medical products from the United States and Europe and was accordingly “not an internationally sanctioned entity”.
[10]
What Mr. Fallah notably failed to address was
whether his employer had ever been denied access to products on the basis of
WMD concerns. If his employer had never or only rarely been barred from
importing equipment capable of dual purpose application, one would fully expect
to see that statement in his affidavit. Mr. Fallah’s failure to directly
address this concern about his employer’s impugned business practices was
specifically noted by the Officer (see Application Record at p 61).
[11]
Mr. Fallah was well positioned to fully address
the Officer’s concerns but, for the most part, he failed to do so. Although he
presumably was unaware of the Officer’s reliance on open source material
pertaining to the United Kingdom and Japan, he would have been aware of any
previous difficulties encountered by his employer concerning the importation of
dual purpose commodities. Indeed, in his attempt to dispel the Officer’s
concern, he provided “samples” of favourable
licensing decisions emanating from the United States and the United Kingdom.
Notably absent from Mr. Fallah’s response was an explanation for those
occasions when his employer was refused a license to import products to Iran.
He would have been privy to that information and ignored the issue at his
peril.
[12]
Mr. Fallah had the opportunity and obligation to
provide a full, exculpatory history of his employer’s business practices, yet
his response to Officer’s fairness letter was profoundly deficient. I am
satisfied that the content of the Officer’s fairness letter was sufficient to
inform Mr. Fallah of the case he had to meet. He should have anticipated the
need to provide a full history of his employer’s business practices and he
failed to meet the requisite burden.
III.
Was the Officer’s Decision Reasonable?
[13]
The standard of review applicable to the
substance of the Officer’s decision is reasonableness: see Nassereddine v
Canada (Citizenship and Immigration) 2014 FC 85 at para 19, [2014] FCJ No 79. The Officer was required to
determine whether the evidence was sufficient to support a finding of
inadmissibility under paragraph 34(1)(d) of the IRPA. That assessment is conducted
on the standard of “reasonable grounds to believe”,
meaning an objectively based evidentiary burden falling between mere suspicion
and a balance of probabilities: see Nagulathas v Canada (Citizenship
and Immigration) 2012 FC 1159 at para 27, 2012
CarswellNat 4023.
[14]
Mr. Fallah argues that the Officer misunderstood
the significance of the United Kingdom and Japanese export licensing provisions
pertaining to his employer and its products. The impugned passage from the
decision is the following:
In addition to information provided in our
brief, open source information checks confirm that the UK’s Export Control
Organisation (ECO) lists the company as an entity of proliferation concern.
They are also listed with the Japanese Ministry of Economy, Trade and Industry.
PA has elected to focus only on the products and activities which do not
violate sanctions and ignores areas of concerns. Fanavari Azmayeshgahi deals
with several products that have dual use concerns, and is widely believed to be
involved with the procurement of goods directly related to Iranian Nuclear
proliferation. There are still reasonable grounds to believe that, by virtue
[sic] of his position with this company, PA is inadmissible under 34(1)(d) of
the IRPA. Refused.
[15]
Mr. Fallah complains that the Officer read too
much into the listing of his employer in finding that it was “an entity of proliferation concern” in the United Kingdom
and Japan. He says that as an importer of medical imaging products capable of
being repurposed, it was inevitable that its business would be scrutinized by
exporting countries. This, by itself, would not support the Officer’s view that
the company was “an entity of proliferation concern”.
According to this argument, the fact that Canada did not list Mr. Fallah or his
employer under the SEMA regulations was strong evidence that they were not of
any concern and that the Officer’s contrary view was perverse.
[16]
In my view the Officer’s characterization of the
United Kingdom and Japanese export protocols concerning Mr. Fallah’s employer
was reasonable. The record discloses that the company was on a watch list in
the United Kingdom and Japan so that its importation of dual purpose products
could be scrutinized. The record also discloses that the company’s attempts to
import products had sometimes been blocked. This was sufficient support for the
Officer’s view that the company represented a “proliferation
concern”.
[17]
It is not an answer to this finding to point out
that some importations had been approved. Based on the limited records
submitted by Mr. Fallah, those transactions appear not to have involved any
technology risks because the imported products were only useful in medical
applications. What would have been far more persuasive was evidence showing
that Mr. Fallah’s employer was regularly authorized to import dual purpose
technologies. The absence of any evidence to that effect is a telling omission.
[18]
The fact that neither Mr. Fallah nor his
employer were prohibited from exporting Canadian products to Iran under the
SEMA regulations says very little about whether they, nevertheless, represented
an ongoing security concern. The company appears to have pursued legitimate
business interests in the supply of medical equipment of all sorts. There would
be no obvious reason for Canada to block those transactions by listing the
company or Mr. Fallah.
[19]
In the face of the evidence available to the
Officer, including the inadequacy of Mr. Fallah’s response, the decision
to deny a visa to him was reasonable. While the record might have supported a
different outcome, it is not the role of the Court on judicial review to
reweigh the evidence or to substitute its interpretations for those of the
assigned decision-maker.
[20]
This application is, accordingly, dismissed.
Neither party proposed a certified question and no issue of general importance
arises on this record.
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