Docket: IMM-4499-15
Citation:
2016 FC 1182
Ottawa, Ontario, October 24, 2016
PRESENT: The
Honourable Mr. Justice Fothergill
|
BETWEEN:
|
|
ALI MOHAMMAD
HADIAN
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
Ali Mohammad Hadian has brought an application
for judicial review of a decision of an immigration officer at the Canadian
Embassy in Poland. The immigration officer refused his request for a permanent
resident visa because he found that there were reasonable grounds to believe
that Dr. Hadian was inadmissible as a danger to the security of Canada pursuant
to s 34(1)(d) of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA].
[2]
For the reasons that follow, I have concluded
that the immigration officer’s decision falls within a range of possible,
acceptable outcomes. Dr. Hadian’s receipt of funding from the Government of
Iran and his long-term employment by the University of Tehran may not in
themselves have constituted reasonable grounds to find him inadmissible to
Canada. However, considered together with Dr. Hadian’s acknowledgment that his
areas of expertise could be used to facilitate the development of weapons of
mass destruction [WMD], and his attempts to minimize his connections to persons
and entities linked to Iran’s WMD program, the immigration officer’s decision
should be upheld. The application for judicial review is therefore dismissed.
II.
Background
[3]
Dr. Hadian is a citizen of Iran. He obtained an
undergraduate degree in metallurgical engineering from the University of Tehran
in 1985, and a graduate degree from the same institution in 1987. He then
received a scholarship from the Government of Iran to pursue doctoral studies.
He was admitted to McGill University and travelled to Canada on a student visa
in 1989. Once in Canada, he obtained a visa to work at McGill’s Department of
Mining and Metallurgical Engineering. He earned a Ph.D. from McGill in December
1993. In January 1994, he returned to Iran and found employment as an Associate
Professor at the University of Tehran, where he works to this day.
[4]
In 2006, Dr. Hadian submitted an application for
permanent residence as a member of the Federal Skilled Worker Class to the
Canadian Embassy in Syria. His application was transferred to the Canadian
Embassy in Poland in 2010, and he was invited to update the application at that
time. In 2013, he attended an interview at the Canadian Embassy in Poland.
[5]
On August 5, 2014, Dr. Hadian received a letter
from the Canadian Embassy in Poland advising him that he may be inadmissible as
a danger to the security of Canada based on his potential involvement in the
expansion of Iran’s nuclear weapons program. On August 13, 2014, Dr. Hadian
made written submissions in response. On January 29, 2015, Dr. Hadian was
informed that he was inadmissible under s 34(1)(d) of the IRPA, and that his
request for a permanent residence visa was refused.
[6]
Dr. Hadian filed an application for judicial
review of the refusal to grant him a permanent residence visa. The application
was allowed on consent on the basis that the immigration officer’s analysis was
insufficient, and the request was remitted to a new immigration officer for
redetermination.
[7]
On August 19, 2015, Dr. Hadian once again
received a letter from the Canadian Embassy in Poland advising him that he may
be inadmissible as a danger to the security of Canada, because his permanent
residence might be used to facilitate the transfer of controlled goods or
information to Iran, thereby contributing to the expansion of Iran’s WMD
program. Dr. Hadian provided written submissions in response on September 18,
2015.
[8]
The specific concerns disclosed to Dr. Hadian
were: (a) the financial support he received from the Government of Iran during
his studies in Canada; (b) his long-term association with the University of
Tehran; (c) the listing of the University of Tehran by the United Kingdom and
Japan as “an entity of concern” for the
development of Iran’s WMD; (d) his collaboration with Dr. Naser Ehsani of Malek
Ashtar University; and (e) Dr. Ehsani’s and Malek Ashtar University’s support
of Iran’s WMD program.
[9]
Dr. Hadian responded that: (a) the engineering
department of the University of Tehran was not listed pursuant to the
Special Economic Measures (Iran) Regulations, SOR/2010-165; (b) the sources
linking the University of Tehran to Iran’s WMD program were outdated and
unreliable; (c) in July 2015, the United States of America, the United Kingdom,
France, China, Russia, Germany and the European Union reached a long-term
agreement with Iran that will result in the lifting of sanctions; (d) Dr.
Hadian’s master’s degree was in metallurgical engineering and not advanced
ceramics; (e) the British and Japanese concerns regarding the University of
Tehran were exaggerated by the Canadian Embassy; (f) the University of Tehran
is not beholden to the Iranian government; and (g) Dr. Hadian did not know Dr.
Ehsani personally, and they appeared as co-authors of research papers only at
the request of Dr. Hadian’s graduate student, who made use of Dr. Ehsani’s
facilities but was not otherwise associated with Malek Ashtar University.
[10]
On September 26, 2015, Dr. Hadian’s application
for permanent residence was again refused on the basis that there were
reasonable grounds to believe that he is a danger to the security of Canada
pursuant to s 34(1)(d) of the IRPA.
III.
Decision under Review
[11]
The immigration officer concluded that Dr.
Hadian’s current employer, field of expertise, and past financial support by
the Government of Iran, together with his collaboration with an individual and
institution associated with Iran’s WMD program, provided reasonable grounds to
believe that he would present a risk of transferring goods or knowledge to Iran
in support of its WMD program if he were granted permanent residence in Canada.
The immigration officer’s notes, which form a part of the decision, include the
following:
The applicant’s response does not
assuage my A34(1)(d) concerns regarding his facilitation of Iran’s WMD
proliferation activities. There is evidence that the applicant has a long
employment history in a relevant field of studies with an entity listed by the
UK and Japan as having facilitated Iran’s development of WMD. Additionally,
there is evidence that the applicant has collaborated personally in research
conducted at an entity listed by the European Union as having facilitated
Iran’s development of WMD.
IV.
Preliminary Issue: Procedural Fairness
[12]
On May 2, 2016, the Respondent requested
non-disclosure of certain information contained in the Certified Tribunal
Record pursuant to s 87 of the IRPA. Dr. Hadian took no position on the
Respondent’s motion, and the Respondent provided an assurance that none of the
withheld information would be relied upon in the application for judicial
review.
[13]
On August 30, 2016, I granted the Respondent’s
motion and ordered that certain information be protected against disclosure. Counsel
for Dr. Hadian acknowledged at the hearing of this application for judicial
review that the Court’s order and the Respondent’s assurance were sufficient to
address any concerns about the adequacy of disclosure and procedural fairness
in this case.
V.
Issue
[14]
The sole issue raised by this application for
judicial review is whether the immigration officer’s finding that Dr. Hadian
was inadmissible to Canada pursuant to s 34(1)(d) of the IRPA was reasonable.
VI.
Analysis
[15]
A decision regarding inadmissibility pursuant to
s 34(1) of the IRPA involves questions of mixed fact and law, and is subject to
review by this Court against the standard of reasonableness (Okomaniuk v
Canada (Minister of Citizenship and Immigration), 2013 FC 473 at para 19; Alijani
v Canada (Minister of Citizenship and Immigration), 2016 FC 327 at para
16). The Court’s role in an application for judicial review of an official’s
determination under s 34(1)(d) of the IRPA is restricted to determining
whether the official’s conclusion that “reasonable
ground to believe” exist is itself reasonable (SN and MR v Canada
(Citizenship and Immigration), 2016 FC 821 at para 44 [SN]).
[16]
Pursuant to s 34(1)(d) of the IRPA, a person is
inadmissible to Canada if he or she is a danger to the security of Canada. In Suresh
v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at paragraph
90 [Suresh], the Supreme Court of Canada defined “danger to the security of Canada” as follows:
[A] person
constitutes a “danger to the security of Canada” if he or she poses a serious
threat to the security of Canada, whether direct or indirect, and bearing in
mind the fact that the security of one country is often dependent on the
security of other nations. The threat must be “serious”, in the sense that it
must be grounded on objectively reasonable suspicion based on evidence and in
the sense that the threatened harm must be substantial rather than negligible.
[17]
The facts that constitute inadmissibility under
s 34(1)(d) must be established on the standard of “reasonable
grounds to believe” (IRPA, s 33; Mugesera v Canada (Minister of
Citizenship and Immigration), 2005 SCC 40 at para 116 [Mugesera]).
Reasonable grounds to believe require “something more
than mere suspicion, but less than the standard applicable in civil matters of
proof on the balance of probabilities” (Mugesera at para 114).
They exist where “there is an objective basis for the
belief which is based on compelling and credible information” (Mugesera
at para 114), and where “the facts giving rise to
inadmissibility have occurred, are occurring, or may occur” (IRPA, s 33;
Canada (Citizenship and Immigration) v Harkat, 2014 SCC 37 at para 30).
In other words, reasonable grounds to believe are established where there is “a bona fide belief in a serious possibility based on
credible evidence” (Chiau v Canada (Minister of Citizenship and
Immigration), [2001] 2 FC 297 (CA) at para 60; SN at para 40; Suresh
at para 90; Mugesera at para 114].
[18]
Where an official notifies an applicant of
concerns regarding his or her inadmissibility to Canada, the onus to assuage
those concerns lies squarely with the applicant (IRPA, s 11(1); SN at
para 51; Medovarski v Canada (Minister of Citizenship and Immigration);
Esteban v Canada (Minister of Citizenship and Immigration), 2005 SCC 51 at
para 46).
[19]
There is no dispute in this case that
contributing to the expansion of Iran’s WMD program through the transfer of
goods and knowledge constitutes a danger to the security of Canada (see also SN
at para 44). The question before the Court is therefore whether the immigration
officer reasonably concluded, based on the totality of the evidence and
applying the standard of reasonable grounds to believe, that Dr. Hadian was
inadmissible to Canada pursuant to s 34(1)(d) of the IRPA.
(i) Reliability of Sources
[20]
Dr. Hadian challenges the sources of information
relied upon by the immigration officer, which he says were outdated and
unreliable. Dr. Hadian also argues that the immigration officer based his
decision on speculation and suspicion, rather than on evidence.
[21]
The immigration officer found the sources
linking the University of Tehran to Iran’s WMD programs to be timely, because
they encompassed periods during which Dr. Hadian was employed by the University
of Tehran. The immigration officer found the information to be reliable because
it was detailed, and it emanated from a non-partisan organization based in
Washington, D.C.
[22]
I am satisfied that the immigration officer’s
reliance on the sources cited was reasonable. While the principal source, Iran
Watch, reported information furnished by a discredited political organization,
it also referenced credible entities such as the Governments of the United
Kingdom and Japan. The immigration officer reasonably concluded that these
sources were sufficient to raise an objectively reasonable suspicion regarding
the University of Tehran, Malek Ashtar University and Dr. Naser Ehsani.
(ii) Employment
with the University of Tehran
[23]
The immigration officer was unpersuaded by Dr.
Hadian’s assertion that the Government of Canada’s decision not to list the
University of Tehran pursuant to the Special Economic Measures (Iran)
Regulations precluded the university’s involvement in Iran’s WMD program.
Nor did the University of Tehran’s cooperation with British and Japanese
universities assuage his concerns. According to the immigration officer, “it does not follow that a government’s concern would
automatically result in ties being cut between educational institutions of that
government’s country.”
[24]
While Dr. Hadian’s longstanding association with
the University of Tehran may not in itself have been sufficient to establish
reasonable grounds to believe, this was one factor among others that reasonably
concerned the immigration officer.
(iii) Field of Expertise
[25]
Dr. Hadian states that the immigration officer
mischaracterized his field of expertise as advanced ceramics rather than
metallurgical engineering. He says that the immigration officer failed to
acknowledge his focus on civil applications, and not aerospace applications,
and maintains that the immigration officer was unable to connect his fields of
study to the development of WMD.
[26]
However, the immigration officer found that Dr.
Hadian’s areas of expertise encompassed both metallurgical engineering and
advanced ceramics, and that these fields of study could have “dual use” in both civil applications and the
development of WMD. Importantly, Dr. Hadian acknowledged the potential “dual use” of his areas of expertise.
(iv) Financial Support of the Government of Iran
[27]
Dr. Hadian argued that the financial support he
received from the Government of Iran to pursue his doctoral studies was
essentially a loan, which had been repaid. He also insisted that he obtained
the support as a result of a competitive process that was based solely on
merit. Dr. Hadian disputes that the financial support he received from the
Government of Iran to study in Canada twenty five years ago can reasonably
support a finding of inadmissibility today.
[28]
The Respondent describes the immigration
officer’s concern as follows: “Given the Government of
Iran’s previous support for his study in Canada, he may in the future be
obliged to facilitate the transfer of goods/knowledge” [emphasis
original]. While far from conclusive, I am satisfied that this is some evidence
to support the reasonableness of the immigration officer’s concerns regarding
Dr. Hadian’s potential danger to the security of Canada.
(v) Connection with Dr. Naser Ehsani and Malek
Ashtar University
[29]
The immigration officer noted that Dr. Hadian
had co-authored two research papers with Dr. Naser Ehsani, a professor whose
work on beryllium production at Malek Ashtar University is alleged to have
contributed to Iran’s WMD program. Dr. Hadian neither confirmed nor denied the
allegations concerning Dr. Ehsani and Malek Ashtar University. Nor did he deny
that his name appeared together with that of Dr. Ehsani as co-authors of two
research papers. He nevertheless claimed to have no personal knowledge of Dr.
Ehsani. He said that Dr. Ehsani’s name was included as an author of the
research papers only as a courtesy, and as an alternative to paying him for a
graduate student’s use of his facilities at Malek Ashtar University.
[30]
In my view, the immigration officer reasonably
doubted the credibility of Dr. Hadian’s denial of any personal knowledge of Dr.
Ehsani or his alleged involvement in Iran’s WMD program. Dr. Hadian had been
employed by the University of Tehran for a lengthy period of time, specializing
in areas that he acknowledged were “dual use”.
Dr. Ehsani occupies a prominent position as President of Malek Ashtar
University. Dr. Hadian supervised a graduate student who performed work in Dr.
Ehsani’s facilities, and both Dr. Hadian and Dr. Ehsani’s names appeared as
co-authors of research papers. The immigration officer fairly described Dr. Hadian’s
efforts to distance himself from Dr. Ehsani as uncorroborated and self-serving.
VII.
Conclusion
[31]
In sum, the immigration officer’s decision falls
within a range of possible, acceptable outcomes. Dr. Hadian’s receipt of
funding from the Government of Iran and his long-term employment by the
University of Tehran may not in themselves have constituted reasonable grounds
to find him inadmissible to Canada. However, considered together with Dr.
Hadian’s acknowledgment that his areas of expertise could be used to facilitate
the development of WMD, and his attempts to minimize his connections to persons
and entities linked to Iran’s WMD program, the immigration officer’s decision
should be upheld.
[32]
The application for judicial review is
dismissed. Neither party proposed that a question be certified for appeal.
Email this Content