Docket: IMM-4556-15
Citation:
2016 FC 821
Ottawa, Ontario, July 19, 2016
PRESENT: The
Honourable Mr. Justice Roy
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BETWEEN:
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S. N.
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M. R.
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Applicants
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and
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MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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PUBLIC JUDGMENT AND REASONS
[1]
The applicants, who are spouses, are citizens of
Iran. They have made an application for permanent residence as a member of the
Federal Skilled Worker Class, which was denied by a visa officer operating out
of the Canadian Embassy in [REDACTED]. It is the refusal to grant the
applications that is the subject of the judicial review application, pursuant
to section 72 of the Immigration and Refugee Protection Act, SC 2001, c
27 (IRPA).
[2]
The decision made was rendered on [REDACTED],
2015 and states that the spouse of the principal applicant is a member of an
inadmissible class of persons. Reference is made to paragraph 34(1)(d) of the
IRPA, which reads:
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34 (1) A
permanent resident or a foreign national is inadmissible on security grounds
for
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34 (1) Emportent
interdiction de territoire pour raison de sécurité les faits suivants :
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…
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…
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(d) being a
danger to the security of Canada;
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d) constituer un
danger pour la sécurité du Canada;
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[3]
By operation of section 42 of the IRPA, both
spouses are inadmissible.
I.
Preliminary issue
[4]
Relying on section 87 of the IRPA, the Minister
sought to have some passages of two documents which are part of the Certified
Tribunal Record (CTR) to be redacted. By order dated May 30, this Court
concluded that the proposed redactions are appropriate.
[5]
It is important to note that the Minister stated
on the record that the redacted information was not to be used for the purpose
of the judicial review application. Only the portions of the two documents that
are part of the public record can be used by either party. I add that counsel
for the applicants did not take a position with respect to whether or not the
passages were properly redacted, leaving the matter to the Court to carefully
review the redacted material in order to ensure proper redactions. Furthermore,
nothing in the redacted passage could be of assistance to the Applicants. Accordingly,
the case proceeded before this Court on the basis of a CTR of 650 pages, 10 of
which were partially redacted.
II.
Facts
[6]
[REDACTED]
[7]
[REDACTED]
[8]
[REDACTED]
[9]
An initial application for permanent residence
was made by the male applicant in [REDACTED]. The application was never
processed.
[10]
[REDACTED]
[11]
The application, which had been transferred to
the Canadian Embassy in [REDACTED] for treatment, took some time to be dealt
with. Throughout the process, the applicants showed a continued interest in
immigrating to Canada.
[12]
Finally, an interview was organized for [REDACTED],
interview that was to take place in [REDACTED].
[13]
The interview of the principal applicant does
not appear to have produced significant information. [REDACTED] The principal
applicant stated that the idea was to leave Iran to establish themselves in
Canada; [REDACTED].
[14]
The male applicant, the husband of the principal
applicant, was also interviewed on [REDACTED] and he provided an affidavit
describing how the interview proceeded.
[15]
He confirmed that he was the CEO of [REDACTED] company
whose main activities included designing and producing [technological equipment
and services]. The company’s client [included] governmental companies in Iran. [REDACTED]
the male applicant [had] responsibility for official and commercial operations
of the company [and was] required to sign all contracts.
[16]
[REDACTED] Asked about whether the company had
any projects with [Iranian nuclear entity 1], the male applicant stated that
the company had sold [this entity technical equipment]. The importance of [this
equipment] is that it allows an assessment of whether the “machine” is working normally. It is said that the
male applicant firmly confirmed that his company has not done any other project
with [this Iranian nuclear entity for several years]. Indeed, [the company] has
not done any project with [this Iranian nuclear entity] and another company, [Iranian
nuclear entity 2], because the male applicant became aware of the international
community’s concerns concerning any kind of project for companies under
sanctions. The male applicant stated that he did not want to damage the
company’s reputation by associating with an entity that could cause security
problems. Actually, the male applicant stressed that there is no organisational
dependency or link with these two companies. On the other hand, [another senior
employee of the company] is a former employee of [an Iranian nuclear entity] and
requests were made of [REDACTED] by [this entity] to purchase [the company’s]
products. However, [certain equipment was] were never sold to [either Iranian
nuclear entity 1 or 2], although [the company] concedes that it is providing
maintenance programs even where [this equipment] been purchased from different
manufacturers.
[17]
[REDACTED]
[18]
The male applicant insisted that [his company]
was never on any sanctions list. Its focus is on the development and the
production of [technical equipment] used in many industries. [REDACTED]
[19]
Evidently, there were concerns about the
issuance of a visa in favour of the applicants. The concerns crystallized with
an email sent to the principal applicant [REDACTED] (the so-called “fairness letter”). The email informed the applicants
of the following:
This letter is in reference to your
application for permanent residence in Canada. After careful and thorough
consideration of all aspects of your application including your interview [REDACTED],
I have determined that you may not meet the requirements for permanent resident
visa. There are reasonable grounds to believe that your employment history as
Chief Executive Officer of [the company] includes you as a member of the inadmissible
class of persons described in section 34(1)(d) of the Immigration and
Refugee Protection Act. In particular [REDACTED] is linked to [three
Iranian nuclear entities], all companies with direct links to Iran nuclear
procurement activities. Further, you were responsible for contracts between [an
Iranian nuclear entity] and your company [REDACTED], where services were
provided to [nuclear facilities]. Before a final decision is made on your
application you have 30 days to submit any information that would allay our
concerns. Failure to do so may result in a determination that you are
inadmissible to Canada. Should you wish to withdraw tour application, please
let me know in writing by a reply email.
[20]
The principal applicant requested a 60 day
extension in order to respond to the fairness letter. It appears that an access
to information request under Canadian Legislation was also made.
[21]
The response coming from a Canadian counsel who
is not the counsel of record in this judicial review application was submitted
on [REDACTED], 2015. It sought to make a number of points. First, it complained
that the fairness letter lacked in specificity with respect to the allegations
made against the applicants. The fairness letter would have failed to identify
the services that the male applicant had provided to [a nuclear facility and an
Iranian nuclear entity]. The links with [two Iranian nuclear entities] did not
indicate that there was any organisational dependency with them. Products
offered by the company were purchased due to the acquaintance with a former
colleague at [an Iranian nuclear entity].
[22]
Second, the response emphasized that [the
company] focuses on the development and the production of [REDACTED] equipment
that is used in numerous industries. Hence, the equipment cannot be used in
sensitive or critical applications.
[23]
Thirdly, the response notes that [REDACTED] has
not had any projects with [Iranian nuclear entities for several years], as they
became aware of the international sanctions placed on those companies.
Fundamentally, the applicants contend that nothing that was done by [the
company], which was of a nature to endanger the security of Canada. Indeed, [the
company] has never been on any sanctions list.
[24]
The male applicant also wrote. In a letter dated
[REDACTED], he made the same arguments, by and large, as those of his counsel.
I will come back to some particular elements of the letter.
[25]
A few days later, on [REDACTED], 2015, the
principal applicant’s application was refused. The reasons for the refusal are
found in the Global Case Management System (GCMS) notes. The important passage
is reproduced hereafter:
File reviewed.
There are reasonable grounds to believe that the applicant’s spouse [REDACTED]
work history as Chief Executive Officer of [the company] include him as member
of the inadmissible class of persons described in section 34(1)(d) of the Immigration
and Refugee Protection Act. In particular, [the company] is linked to [three
Iranian nuclear entities], all companies with direct links to Iran’s nuclear
procurement activities. Further, [he] was responsible for contracts between [an
Iranian nuclear entity and the company] where services were provided to [nuclear
facilities]. In the response to the PF (Procedural Fairness) letter of [REDACTED],
the applicants stated that [REDACTED], his company ceased working with [two
Iranian nuclear entities several years ago] because he “became aware of the
international community concerns about doing any kind of project for companies
in sanctions”. Client’s responses (dated [REDACTED]) to our PF letters does
(not) disabuse me of my concerns regarding his inadmissibility to Canada. He
confirms his association with the above-mentioned entities and his company’s
contractual history with them. Client is inadmissible to Canada as per section
34(1)(d) of the Immigration and Refugee Protection Act. The principal
applicant is therefore inadmissible as per section 42 of the IRPA, application
refused.
[The word “not” is added between parentheses
as it was not present in the original. However, it appears that its omission is
simply a mistake.]
III.
Issues
[26]
The applicants made originally three arguments:
1.
There was a breach of a principle of natural
justice in that was not disclosed to the applicants a Canada Border Services
Agency (CBSA) memo;
2.
There was a breach of a principle of natural justice
by failing to consider the applicants’ response to the fairness letter;
3.
The decision makes unreasonable inferences and
findings of fact leading to the conclusion that the applicants are inadmissible
by reason of paragraph 34(1)(d).
[27]
However, at the hearing of this case, counsel
for the applicants stated that the reasonableness of the decision is the only
issue that need be addressed. In my view, that was a wise concession. What is
important is that the information contained in the CBSA report is communicated
to the applicant, as was done; the document itself does not need to be
tendered. As for considering the applicants’ response to the fairness letter,
it is obvious from the GCMS notes that the response was received and
considered. The fact that all of the elements of the response have not been
accepted by the decision maker does not engage a principle of natural justice.
Accordingly, the focus of the case is on the reasonableness of the decision.
IV.
Arguments and analysis
A.
Arguments of the parties
[28]
There is therefore one question for the
consideration of the Court. Did the visa officer commit a reviewable error in
finding the applicants to be inadmissible on security grounds for being a
danger to the security of Canada? Being a question of mixed fact and law, the
standard of review is that of reasonableness (Jahazi v Canada (Minister of
Citizenship and Immigration), 2010 FC 424, [2011] 3 FCR 85; Alijani v
Canada (Citizenship and Immigration), 2016 FC 327; Karahroudi v Canada
(Minister of Citizenship and Immigration), 2016 FC 522). The outcome
arrived at by the decision-maker must be one that falls within a range of
possible, acceptable outcomes; furthermore, the reviewing court will be
concerned “with the existence of justification,
transparency and intelligibility within the decision-making process” (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
[29]
The applicants argue that the case against them
is based on speculation and suspicion. The applicants are both [educated] and
they both work for a company, [REDACTED], that has had dealings with [three
Iranian nuclear entities]. These companies are said to have links to nuclear
procurement activities in Iran. More specifically, the male applicant is the
CEO of [the company] whose responsibilities include the contracts with [an
Iranian nuclear entities], with services supplied to [nuclear facilities]. But
the applicants contend that there is no evidence of [two Iranian nuclear
entities] having connections with Iran’s nuclear procurement activities as far
as the contribution of [REDACTED] goes. In effect, they complain about a lack
of connection between the companies being involved in the Iranian nuclear
program and the contribution that the company [REDACTED] makes to that same
program through the products (that would include services) sold to these
companies.
[30]
In essence, it is not known what [the company] does
for [two of the Iranian nuclear entities], and it is not known what connection
there is between these two companies and the nuclear procurement program in
Iran, thus making it unreasonable for the decision-maker to conclude that the
applicants are connected, through that chain, with the procurement program.
[31]
The respondent takes the view that the
reasonable grounds to believe are well established through the evidence
proffered by the applicants, and in particular by [REDACTED] through his
interview, and in the response to the “fairness letter”.
The Minister also relies on omissions in the evidence.
[32]
The Minister argues that the applicants cannot
validly claim that [two of the Iranian nuclear entities] are not connected with
Iran’s nuclear procurement program when they explicitly state that their
company ceased doing projects with the two companies “because
we became aware of the international community concerns about doing any kind of
projects for companies in sanctions.”
[33]
The applicants did not contest then, and they do
not contest now, that [two of the Iranian entities] were placed in resolution
1737 of the United Nations Security Council in 2006 and are therefore subject
to sanctions (United Nations Security Council Resolution 1737, UNSCOR, 2006 UN
DOC S/RES/ 1737, Annex A). [REDACTED] Canada followed up by incorporating the
sanctions list into domestic law (Regulations Implementing the United
Nations Resolution on Iran, SOR/2007-44, s. 9).
[34]
[One of the Iranian nuclear entities] is also
covered by Canadian law, although more recently than [another of the nuclear
entities]. It is the Special Economic Measure (IRAN) Regulations,
SOR/2011-268 that list [the Iran nuclear entity] as one entity “engaged in activities that directly or indirectly
facilitate, support, provide funding for, contribute to, or could contribute
to, Iran’s proliferation-sensitive nuclear activities, or to Iran’s activities
related to the development of chemical, biological or nuclear weapons of mass
destruction or delivery systems for such weapons…”. The Minister makes
the point that these Regulations restrict the exportation of [the sort of
technical equipment provided by the applicant’s company] to Iran, thus showing
the importance of such equipment and [services] for a nuclear program
(memorandum of facts and law, para 34).
[35]
The respondent took issue with the claimed
ignorance of [an] uranium enrichment facility. Actually the applicants
themselves [rely on material] which mentions it quite extensively.
[36]
The fact that the respondent states
unambiguously that [the company’s] business is in the design and production of [certain
kinds of technical equipment] supports the view that [the company was involved
with nuclear procurement activities]. The Minister notes further that the male
applicant conceded in his interview having sold [technical equipment and
services to an Iranian nuclear entity which indicated] whether
or not a machine is working normally or is defective.”
B.
Analysis
[37]
It is important in my opinion to situate clearly
what is at stake in a case like this. Under IRPA is inadmissible in Canada on
security grounds someone who is a danger to the security of Canada. However,
the security grounds do not need to be established on a balance of
probabilities, the usual standard in civil matters (H(F) v McDougall,
[2008] 3 S.C.R. 41). That standard was famously described by Lord Denning in these
terms:
It must carry a
reasonable degree of probability but not so high as is required in a criminal
case. If the evidence is such that the tribunal can say: ‘we think it is more
probable than not’, the burden is discharged, but if the probabilities are
equal it is not.”
(Miller v Minister of Pensions [1947]
2 All ER 372, at 374)
[38]
Instead, Parliament set the bar lower in these
matters. Section 33 of the IRPA reads:
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33 The facts that constitute inadmissibility under sections 34 to
37 include facts arising from omissions and, unless otherwise provided,
include facts for which there are reasonable grounds to believe that they
have occurred, are occurring or may occur.
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33 Les faits — actes ou omissions — mentionnés aux articles 34 à
37 sont, sauf disposition contraire, appréciés sur la base de motifs
raisonnables de croire qu’ils sont survenus, surviennent ou peuvent survenir.
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[39]
It has been decided that the reasonable grounds
to believe require more than a mere suspicion, but less than a balance of
probabilities. The Supreme Court in Mugesera v Canada (Minister of Citizenship
and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, spoke of “an objective basis for the belief which is based on
compelling and credible information” (para 114). An interesting and
enlightening articulation of the difference between suspicion and grounds to
believe was given by the High Court of Australia in George v Rockett, 93
A.L.R 483, [1990] HCA 26, at para 14:
Suspicion, as Lord
Devlin said in Hussien v. Chong Fook Kam [35] , "in its ordinary
meaning is a state of conjecture or surmise where proof is lacking: "I
suspect but I cannot prove." " The facts which can reasonably ground
a suspicion may be quite insufficient reasonably to ground a belief, yet some
factual basis for the suspicion must be shown. In Queensland Bacon Pty. Ltd.
v. Rees [36] , a question was raised as to whether a payee had reason to
suspect that the payer, a debtor, "was unable to pay [its] debts as they
became due" as that phrase was used in s. 95(4) of the Bankruptcy Act 1924
Cth. Kitto J. said [37] :
A suspicion that something exists is
more than a mere idle wondering whether it exists or not; it is a positive
feeling of actual apprehension or mistrust, amounting to "a slight
opinion, but without sufficient evidence", as Chambers's Dictionary expresses
it. Consequently, a reason to suspect that a fact exists is more than a reason
to consider or look into the possibility of its existence. The notion which
"reason to suspect" expresses in sub-s. (4) is, I think, of something
which in all the circumstances would create in the mind of a reasonable person
in the position of the payee an actual apprehension or fear that
the situation of the payer is in actual fact that which the subsection
describes — a mistrust of the payer's ability to pay his debts as they become
due and of the effect which acceptance of the payment would have as between the
payee and the other creditors.
The objective
circumstances sufficient to show a reason to believe something need to point
more clearly to the subject matter of the belief, but that is not to say that
the objective circumstances must establish on the balance of probabilities that
the subject matter in fact occurred or exists: the assent of belief is given on
more slender evidence than proof. Belief is an inclination of the mind towards
assenting to, rather than rejecting, a proposition and the grounds which can
reasonably induce that inclination of the mind may, depending on the
circumstances, leave something to surmise or conjecture.
[40]
The Federal Court of Appeal was satisfied in Chiau
v Canada (Minister of Citizenship and Immigration) (2000), [2001] 2 F.C.
297 (CA) that “reasonable grounds” connotes “a bona fide belief in a serious possibility based on
credible evidence.” (para 60).
[41]
Here, the Minister relies on the evidence
presented by the applicants, and in particular the male applicant, to make the
case of the existence of reasonable grounds. The applicants can hardly argue
that their evidence is not credible. Rather, they argue that the links between
the elements of the Crown’s syllogism are not sufficient.
[42]
The applicants brought to the Court’s attention
the recent decision of my colleague Justice Gagné in Alijani v Canada
(Minister of Citizenship and Immigration), 2016 FC 327 [Alijani]. In
it, Justice Gagné granted judicial review where the decision of the visa
officer was described as being based on the mechanical engineer’s seven years
of study in an Iranian university whose students play an important role in
Iranian industries and government; on the specialized areas of study which was vilified
by the visa officer as supporting reasonable grounds to believe that he could
contribute to Iran’s nuclear programs; and, generally, on the person’s
intellectual capacity. Furthermore, the visa officer would have dismissed
weighty evidence about the actual field of study which would not in fact compromise
the security of Canada because he misconstrued the scientific evidence relating
to the field of study. The Court was not satisfied that the evidence had been
properly assessed. That evidence suggested strongly that the person’s expertise
and field of study do not, and could not, find application in nuclear
technology or in the production of missiles and other weapons.
[43]
This is clearly very different from the case
under review by this Court. Indeed, in fairness to counsel for the applicants,
he presented the case as one which, on a spectrum, would be at the far end, as
being outside the range of possible, acceptable outcomes. However, he contended
that the evidence in this case is sufficiently weak as getting close to the
facts in Alijani.
[44]
In my view, the reasonableness of the reasonable
grounds to believe has not been disturbed on the facts of this case. Contrary
to Alijani, there is in this case a direct connection between the
company with which the male applicant, in particular, is associated (as Chief
Executive Officer) and entities involved in Iran’s nuclear programs. It must be
remembered that the decision under review is not one where participation in the
nuclear program must be established on a balance of probabilities. No one seems
to dispute that a contribution to Iran’s nuclear procurement program would
qualify as “security grounds of being a danger to the
security of Canada” (para 34(1)(d) of IRPA). The facts that constitute
inadmissibility are the subject of controversy in this case. However, a serious
possibility based on credible evidence will suffice. Actually, the Court’s role
is not even to ascertain that the grounds are reasonable, which would entail a
standard of review of correctness, but rather to be satisfied of the
reasonableness of the finding of “reasonable grounds to
believe”.
[45]
I cannot find that the inferences drawn by the
visa officer in reaching the conclusions that there exist reasonable grounds to
believe the applicants were involved in contributing to the procurement program
are unreasonable. The evidence established that the applicants’ company had
dealings with two companies that ended up, at different times, being listed by
international institutions as companies closely associated with Iran’s nuclear
program. Given that the applicants’ company supplied [technical] equipment and
services [important for nuclear procurement], as the male applicant conceded, [the
equipment his company was producing would] would signal a close association
with the companies involved in nuclear procurement in Iran. [The company sold
an Iranian nuclear entity their equipment and services.]
[46]
It was so clear that [two of the Iranian nuclear
entities] were a liability that the male applicant stressed that [REDACTED]
ceased to do projects with these two companies [several years prior] when, the
male applicant suggests, he became aware of the international community’s
concerns with respect to the companies. This is very much an understatement. [One
of the nuclear entities] had been listed under UN Security Council resolution
1737 since 2006 [REDACTED]. It is not a bold inference to make that an [educated
person], running a company that produces [technical equipment of use for
procurement activities], would have known that a company he is doing business
with has been put on a UN Security Council sanctions list for its close
association with Iran’s nuclear procurement program. [The] CEO, the applicant,
signs every contract.
[47]
However, what was the basis for the visa officer
to have reasonable grounds to believe that the products and services offered by
[the company] were used in relation with the nuclear program as opposed to other
industrial usages by these two companies? Aren’t these merely suspicions?
[48]
That is where the fairness letter and the
response to it are important. The procedural fairness letter [REDACTED] puts it
unequivocally that the relationship between [the applicant’s company and the
three Iranian nuclear entities] is the problem, the issue to be addressed by
the applicants, because they have all direct links to Iran’s nuclear
procurement activities. The letter is precise that [the company] provided
services to [Iranian nuclear facilities]. This calls for a response.
[49]
The applicants chose to take a 60-day extension
to the original 30-day deadline. Instead of providing a full history and
explanation of the nature and extent of the work, or projects, with those
entities, the applicants chose to take issue with the fairness letter, calling
it “very vague”, without providing details about
the links and how those links impact the security of Canada.
[50]
Counsel retained by the applicants to respond to
the fairness letter ([REDACTED]) acted as if there was an indictment, where the
accused is entitled to details for the purpose of having full answer and
defence (section 581 of the Criminal Code, RSC, 1985, c C-46). The
letter of [REDACTED] by the applicant also in response to the fairness letter did
not address either the concerns raised in the fairness letter. Rather than
explaining what [his company] did for [two Iranian nuclear entities], the
response claims that there are no “organizational
dependency” or links with the two. The response never tried to disabuse
that the activities were in relation to the nuclear program. The male
applicant’s response also takes the posture that the allegation, that [his
company] is a danger to the security of Canada, “has
not a shred of evidence to support it”. The male applicant even has that
remarkable sentence in a response to concerns relating to the security of
Canada:
Even my wife had a
tourist visa while she was pregnant in 2013, but we decided not to deliver our
baby in Canada as we believed it might have a negative influence on our
immigration file.
[51]
The respondent is right to stress that there is
a fundamental principle of immigration law that “non-citizens
do not have an unqualified right to enter or remain in Canada” (Medovarski
v Canada (Minister of Citizenship and Immigration); Esteban v Canada
(Minister of Citizenship and Immigration), 2005 SCC 51 at para 46, [2005] 2
SCR 539). It bears repeating that the IRPA puts the burden on the foreign
national to satisfy the visa officer that he/she is not inadmissible and meets
the requirement of the IRPA (subsection 11(1)).
[52]
It could hardly have been any clearer what were
the concerns of the visa officer. In my view, the concern was not addressed
and, reading the response, both of counsel and the male applicant, it was open
to the visa officer to infer from the lack of response, after pondering the
response for 90 days, that the concerns were beyond suspicions. I share the
view of my colleague Justice Barnes who wrote in Fallah v Canada (Minister
of Citizenship and Immigration), 2015 FC 1094 [Fallah]:
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.
[53]
The lack of responsiveness is in itself an
element to be weighed in assessing the grounds to believe. The applicants,
confronted to specific issues directly related to dangers to the security of
Canada, chose not to answer in spite of the fact that the officer needs to be
satisfied they are not inadmissible. The officer was not satisfied. The fact is
that their activities are related to the nuclear program and had to be
addressed. As Justice Barnes wrote at paragraph 19 in Fallah, “[i]n 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.”
[54]
The situation would of course be quite different
had the issue been put in an ambiguous fashion and did not call so evidently
for a simple, factual response: here is what we do and these are the products
and services we offer to these companies you claim assist the nuclear program;
we have nothing to do with this. Far from such a response, the applicants, in
effect, tried to turn the process on its head by requiring that the respondent prove
why they are inadmissible. The process is more organic, in that it is
characterized by a continuous and more natural development. The reasonable
grounds to believe can result from a lack of responsiveness to legitimate
issues. What counts in the end is whether the totality of the circumstances
amount to more than a suspicion about the facts that constitute a danger to the
security of Canada. The inclination of the mind is toward assenting to the
proposition that the applicants are, or were, involved in assisting Iran’s
nuclear program once the facts are known and the lack of responsiveness to
specific concerns is acknowledged. It does not matter that, in the words of the
High Court of Australia “the grounds which can
reasonably induce that inclination of the mind may … have something to surmise
or conjecture.” We are not held to a standard of balance of
probabilities, but one of reasonable grounds to believe.
[55]
It follows that the Court is satisfied that it
was reasonable for the visa officer to have reasonable grounds to believe the
applicants were involved in supporting Iran’s nuclear program through the
activities of their company. That the applicants are thus inadmissible on
security grounds for being a danger to the security. Accordingly, the judicial
review application must be dismissed.
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