Docket: IMM-8308-14
Citation:
2016 FC 327
Ottawa, Ontario, March 17, 2016
PRESENT: The
Honourable Madam Justice Gagné
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BETWEEN:
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FARBOD ALIJANI
SARVIN RASTEGAR
NIYAKI
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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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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
The Applicants seek judicial review of two
decisions of a Citizenship and Immigration Canada [CIC] officer, whereby she
denied their work permit applications on the basis of Mr. Farbod Alijani’s inadmissibility.
The officer found that Mr. Alijani had not convinced her that he was not
inadmissible pursuant to paragraph 34(1)(d) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA]. Being the wife of Mr.
Alijani, Mrs. Sarvin Rastegar Niyaki’s application for a work permit was denied
on the basis that she is the accompanying family member of a person who is
inadmissible. I will only refer to the principal Applicant throughout these
reasons.
[2]
Shortly after this application was filed, the
Respondent filed a motion for the non-disclosure of some excerpts of the Canada
Border Services Agency’s [CBSA] 2012 inadmissibility assessment (found at pages
548-556 of the Certified Tribunal Record), pursuant to section 87 of IRPA. In
response to the motion, the Applicant argued that if the non-disclosed
information contained new information central to the rationale of the contested
decision, the Court should consider appointing a special advocate. On August
21, 2015, I granted the Respondent’s motion for the required redactions and
found that they did not give rise to issues of fairness and natural justice. I
also found that the appointment of a special advocate was not warranted. The
Respondent undertook not to rely on the redacted portions of the CBSA
inadmissibility report in the course of this application for judicial review and
he did not.
[3]
For the reasons discussed below, this
application for judicial review is granted.
II.
Facts
[4]
Farbod Alijani and Sarvin Rastegar Niyaki are
citizens of Iran. From 2004 to 2011, Mr. Alijani attended the Amirkabir
University of Technology [AUT] in Tehran. He first obtained a Master’s Degree in
Mechanical Engineering, with a thesis on the “Application of Extended Kantorovich Method to the Bending of
Cylindrical Panels”. Then, he obtained a Doctorate
Degree in Mechanical Engineering with a thesis on “Nonlinear Vibrations of FGM Doubly-Curved
Shells”. The Applicant first came to Canada in
December 2009 with a visitor’s visa valid until June 2010, in order to pursue
post-doctoral research on “Nonlinear
Vibrations of Shells and Plates” under the
supervision of Professor Marco Amabili at McGill University in Montreal.
[5]
In 2010, the Applicant obtained an extension of
his visitor’s visa, valid until December 2012 and later extended until February
2014; he and his wife also made applications for permanent residence at the
Canadian Embassy in Warsaw, Poland. The permanent residence applications are
still pending.
[6]
On November 26, 2012, the CBSA issued an
inadmissibility assessment concluding that the Applicant was inadmissible
pursuant to paragraph 34(1)(d) of IRPA.
[7]
On March 24, 2014, the Applicant was appointed
as Postdoctoral Scholar in the Department of Mechanical Engineering at McGill
University for the period of April 15, 2015 to April 14, 2016. His task would have
been to perform research on the “dynamics and stability of human aorta related to dissection”.
[8]
On March 31, 2014, a CIC officer refused the
Applicant’s application for an extension of his work permit on the basis that
the Applicant had not convinced him that he was not inadmissible pursuant to
paragraph 34(1)(d) of IRPA. The Applicant filed an application for leave
for judicial review of that decision (file IMM-2760-14), but desisted from that
application as CIC had agreed to reassess his file. The Applicant and his wife
were invited to leave Canada voluntarily, which they did.
[9]
On September 12, 2014, another CIC officer sent
the Applicant a procedural fairness letter outlining concerns that the
Applicant could be inadmissible on grounds of security and advising him that he
could provide additional information, may he wish to do so. The officer noted
that AUT is listed by some governments as an “entity of concern” with respect
to nuclear weapons and military imports. Based on the Applicant having studied
there and based on his field of study, the officer stated that there were
reasonable grounds to believe that the Applicant had contributed or could
contribute to Iran’s ballistic missiles and nuclear programs.
[10]
The Applicant’s counsel submitted a letter of reply
to CIC, accompanied by a new letter from the Applicant himself; his official
transcripts; an affidavit from Professor Amabili and letters from colleagues
stating that the Applicant’s research had nothing to do with nuclear programs;
and relevant Internet pages. The Applicant also requested that an interview be
held if any of the information was deemed insufficient.
III.
Decision
[11]
The officer’s decision found that despite the
Applicant’s submissions regarding the concerns outlined in the September 12, 2014
letter, the Applicant is inadmissible as he represents a “danger for the security of Canada”. The officer acknowledged the Applicant’s explanation that the sole
fact of having attended AUT in engineering did not imply that he was involved
in Iran’s nuclear program. The officer noted, however, that the Applicant had
not denied that the AUT had links with the government, or nuclear, spatial, or
weapons of mass destruction [WMD] programs, nor had he denied that AUT could be
used as a façade for military imports and research. The officer cited the
Wikipedia page that the Applicant had submitted with respect to the entrance
exam for admission to AUT, which states that the entrance exam not only tests
students’ knowledge, but also their “commit[ment] to the ideology of the revolution”.
[12]
The officer also cited the AUT website which
states that there are nearly 130 doctoral students in Mechanical Engineering
there, and that these students play an important role within Iranian industries
and government. The officer then considered the Applicant’s thesis topics and gave
little weight to the letters from the Applicant’s colleagues, finding that one
of the Applicant’s research proposals could be used for nuclear, spatial,
missile and WMD technology.
[13]
The officer barely considered the content of
Professor Amabili’s affidavit, finding that it was somewhat contradicted by the
preface of his book, Nonlinear Vibrations and Stability of Shells and Plates,
which states that the book is notably intended for “engineers working on aircraft, missiles,
launchers, cars, computer hard and optical disks, storage tanks, heat
exchangers, nuclear plants, biomechanics, nano-resonators or thin-walled roofs
and other structures in civil engineering.”
[14]
Overall, these findings led the officer to conclude
that the Applicant had not refuted that he could be involved in nuclear,
spatial, missile and/or WMD programs in Iran, given his seven years of study at
AUT, his current specialized areas of study, and his intellectual capacity.
IV.
Issues and standard of review
[15]
In my view, this application for judicial review
raises a single determinative issue:
-
Did the officer err in finding that the
Applicant is inadmissible on the ground of security?
[16]
As this question is one of mixed fact and law,
it is reviewable against the standard of reasonableness (Jahazi v Canada
(Citizenship and Immigration), 2010 FC 242 at para 39 [Jahazi]).
V.
Analysis
[17]
In Suresh v Canada (Minister of
Citizenship and Immigration), 2002 SCC 1 at para 90 [Suresh], the
Supreme Court of Canada found that in order to conclude that a person
represents a danger to the security of Canada pursuant to paragraph 34(1)(d)
of IRPA, the officer has to have an “objectively reasonable suspicion based on evidence and in the sense
that the threatened harm must be substantial rather than negligible.” As the issue here is not one of refoulement as it was in Suresh
(see for example Suresh at para 89), that holding needs to be read
with Jahazi, above at para 64, in which this Court held that the “reasonable grounds to believe” standard “requires
a bona fide belief in a serious possibility based on credible evidence”, a standard which seems slightly higher than that set out in Suresh.
[18]
Therefore, in my view, the officer had to address
the following issues:
-
Could the Applicant’s expertise find application
in nuclear technology or in the production of missiles and other weapons? In
other words, does the theory of dual use apply here?
-
If so, is there a serious possibility based on
credible evidence that the Applicant could use his expertise in nuclear
technology or in the production of missiles and other weapons?
[19]
However, in her decision, the officer focussed
on the second issue without seriously assessing the technical aspect of the
Applicant’s expertise.
[20]
The Applicant argues that the officer made
unreasonable inferences and findings of fact and that she misconstrued and
misunderstood the scientific evidence relating to his field of study. The
officer made an unreasonable inference from the preface to Professor Amabili’s
book. She assumed that because this book is intended for, among others, “engineers working on aircraft, missiles,
nuclear plants [etc.]” that the Applicant’s
field of study must be applicable to nuclear programs and technology.
[21]
The Applicant provided numerous letters from
colleagues that describe what his research is actually about – not only in much
more detail than any of the documentary evidence relied upon by the officer,
but in a way that is specific to the Applicant. The officer barely discussed
these letters, giving them little weight. She rather focussed on a research
proposal that the Applicant had made but that never materialized, and which,
according to the Applicant’s affidavit, related to the flutter of wings modeled
as trapezoidal plates, and was applicable to airplanes’ wings. Extrapolating from
this proposal, the officer found that part of the Applicant’s current research could
apply to nuclear technology, aerospace vehicles, ballistic missiles and WMD.
[22]
Professor Amabili’s affidavit seems to specifically
address the question as to whether the Applicant’s expertise or current field
of study finds application or could find application in nuclear technology or
in the production of missiles and other weapons. However, the officer set it
aside on the basis of the generic preface to the book written by Professor
Amabili, which states that the book is intended for graduate engineering
students as well as “engineers
working on aircraft, missiles, launchers, cars, computer hard and optical
disks, storage tanks, heat exchangers, nuclear plants, biomechanics,
nano-resonators or thin-walled roofs and other structures in civil
engineering.” I find that it was unreasonable
for the officer to simply dismiss Professor Amabili’s affidavit strictly on
that basis.
[23]
It could be that in fact, the officer chose to
set aside Professor Amabili’s affidavit because it is not drafted in the
simplest terms. It is well known that decision makers must treat scientific
evidence with extreme caution: “immigration officers… cannot simply discard experts’ opinions
without giving at least one reason that stands to probing examination” (Curry v Canada (Minister of Citizenship and Immigration),
2006 FC 1350 at para 4). Nevertheless, it is the duty of the party bearing the
burden of proof to present scientific evidence in terms that are likely to make
sense to the decision maker. Here, it might be said that large portions of
Professor Amabili’s affidavit could only be understood by mechanical engineers.
[24]
In any event, it is not the duty of this Court
to assess the evidence that was before the officer. It was for the officer to
assess the affidavit of Professor Amabili and determine whether the latter expresses
the opinion that the Applicant’s expertise or field of study does not or could
not find application in nuclear technology or in the production of missiles and
other weapons. If the answer to that question is affirmative, the second
question that was before the officer (see para 18 of these reasons) might not
even arise.
VI.
Conclusion
[25]
For the reasons discussed above, I find that the
decision of the officer with respect to the Applicant was unreasonable, and
thus should be quashed and remitted back for re-determination by a different
officer. For the same reasons, the decision with respect to the Applicant’s
wife should also be quashed and remitted back for re-determination. The parties
did not propose any question of general importance for certification and none
arises from this case.
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