Docket: IMM-5080-16
Citation:
2017 FC 731
Ottawa, Ontario, July 27, 2017
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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S.M.N.
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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
I.
Preliminary Matters
[1]
On March 6, 2017, Prothonotary Roger Lafrenière
(as he then was) ordered that certain documents in Court File No. IMM-5080-16
be sealed on the ground that there would be a serious risk to the Applicant and
his family if their identities were made public. He ordered that the Applicant
be identified in these proceedings by his initials “SMN”,
and that his name be replaced by his initials in the style of cause.
[2]
On May 9, 2017, Justice Simon Noël granted the
Respondent’s motion pursuant to s 87 of the Immigration and Refugee
Protection Act, SC 2011, c 27 [IRPA] for non-disclosure of information
redacted from the Certified Tribunal Record submitted on behalf of the officer
whose decision is the subject of this application for judicial review. Justice Noël
noted the Respondent’s assurance that he would not rely on the redacted
information in his response to the application.
[3]
Neither party asks this Court to reverse or vary
these orders. SMN does not allege that Justice Noël’s order of May 9, 2017
gives rise to an issue of procedural fairness.
II.
Overview
[4]
SMN seeks judicial review of a determination by
an officer with Immigration, Refugees and Citizenship Canada [IRCC] that he is
inadmissible to Canada pursuant to ss 34(1)(d) and 40(1)(a) of the IRPA. The
IRCC officer rejected SMN’s application for permanent residence on these
grounds.
[5]
Given the nature of SMN’s studies and employment
in Iran, his association with organizations that have documented ties to Iran’s
nuclear program, the potential use of SMN’s expertise in the development of
weaponry, and SMN’s deliberate omission of material facts from his application
for permanent residence, I conclude that the IRCC officer’s decision was
reasonable. The application for judicial review is therefore dismissed.
III.
Background
[6]
SMN is a citizen of Iran. In 2008, he undertook
doctoral studies in mechanical engineering at the Iran University of Science
and Technology [IUST]. From March 2009 to July 2009, he worked part-time
for the Iranian Atomic Agency, also known as the Atomic Energy Organization of
Iran [AEOI].
[7]
SMN began his mandatory military service in July
2009. In February 2010, he accepted a position as a mechanical engineer with
the AEOI, and was assigned to the Iranian Centrifuge Technology Company [ICTC],
sometimes referred to by its Iranian acronym “TESA”.
[8]
In September 2011, SMN travelled to Canada on a
student visa to continue his doctoral studies at the University of
Saskatchewan. In September 2014, he applied for permanent residence as a member
of the Federal Skilled Worker program. Additional information was requested by
IRCC and provided by SMN. However, SMN did not disclose his field of study in
Iran or his past employment with the AEOI and the ICTC.
[9]
SMN was interviewed by Canadian officials in
September 2015. During the interview, he disclosed his previous field of study
and work experience in Iran. On May 14, 2016, SMN admitted to an officer with
the Canadian Border Services Agency that he had deliberately omitted certain
information from his application for permanent residence because he feared that
it would have a negative impact on the outcome.
[10]
On August 26, 2016, an IRCC officer informed SMN
of the possibility that he may be inadmissible to Canada pursuant to ss
34(1)(d) and 40(1)(a) of the IRPA. SMN provided submissions in response on
September 21, 2016.
IV.
Decision under Review
[11]
On October 20, 2016, the IRCC officer denied
SMN’s application for permanent residence pursuant to ss 34(1)(d) and 40(1)(a)
of the IRPA. The IRCC officer found that there were reasonable grounds to
believe that SMN is a danger to the security of Canada, and that his failure to
disclose his field of study in Iran and his work for the AEOI constituted a
material misrepresentation.
V.
Issues
[12]
This application for judicial review raises the
following issues:
A.
Did the IRCC officer reasonably find SMN to be
inadmissible to Canada pursuant to s 34(1)(d) of the IRPA?
B.
Did the IRCC officer reasonably find SMN to be
inadmissible to Canada pursuant to s 40(1)(a) of the IRPA?
VI.
Analysis
[13]
Decisions regarding inadmissibility pursuant to
ss 34(1) and 40(1)(a) of the IRPA involve questions of mixed fact and law, and
are subject to review by this Court against the standard of reasonableness (Alijani
v Canada (Minister of Citizenship and Immigration), 2016 FC 327 at para 16
[Alijani]; Oloumi v Canada (Citizenship and Immigration), 2012 FC
428 at para 12 [Oloumi]). The Court will intervene only if the decision
falls outside the “range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47).
A.
Did the IRCC officer reasonably find SMN to be
inadmissible to Canada pursuant to s 34(1)(d) of the IRPA?
[14]
Paragraph 34(1)(d) of the IRPA provides that a
person is inadmissible to Canada if he or she is a danger to the security of
Canada. There is no dispute that contributing to Iran’s development of weapons
of mass destruction [WMD] constitutes a danger to the security of Canada (see SN
v Canada (Citizenship and Immigration), 2016 FC 821 at para 44 [SN]; Hadian
v Canada (Citizenship and Immigration), 2016 FC 1182 at para 18).
[15]
In Alijani, Justice Jocelyn Gagné
provided the following explanation of the test for finding a person
inadmissible to Canada pursuant to s 34(1)(d) of the IRPA:
[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 v Canada (Citizenship and Immigration), 2010 FC 242] 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?
[16]
SMN concedes that his expertise could find
application in nuclear technology or the production of missiles and other
weapons. However, he maintains that there is no serious possibility, based on
credible evidence, that he has used, or could use, his expertise to further
Iran’s nuclear technology or the development of WMD.
[17]
SMN says that his work at the University of
Calgary and the University of Saskatchewan could not reasonably be construed as
contributing to Iran’s WMD program. He relies on letters of support from three
Canadian professors and a Canadian psychologist. These letters explain the
nature of his academic pursuits in Canada, and attest to his good character.
[18]
Regarding his past employment in Iran, SMN says
the following:
1. [SMN] never completed PhD studies at
IUST, for the reason that the subject matter was not one he wanted to pursue;
2. He lost his job at AEO/TESA because he
was considered not to be loyal;
3. As stated in [his] affidavit, his role as
a mechanical tester was through IUST. He never conducted this work through
ICT/TESA;
4. While some of his previous work testing
specimens [at IUST] could in theory be applied to military spheres, it could
also be applied to other fields such as medical technology or agriculture;
5. He had no duties whatsoever during his
time with the AEO […]; and
6. His research and academic interests have
nothing to do with nuclear technology.
[19]
Counsel for SMN describes his work in Iran as
that of a “floundering academic” who was
employed only briefly at the AEOI and who made no meaningful contribution to
the development of Iran’s nuclear technology or WMD. SMN sought to publish an
article only to avoid military service. He was eventually dismissed from his
employment with the IUST due to his lack of commitment.
[20]
According to SMN, “[g]iven
that the IUST and TESA both did not hold [him] in high regard, it would seem
ludicrous to believe that he worked on sensitive WMD related programs for
either IUST or TESA.” He criticizes the IRCC officer’s decision to give little
weight to the letters of support from Canadian professors on the ground that
they may not have known about his past education and work experience:
Given the type of research the Applicant has
conducted in Canada and the accolades he has received it does not seem logical
that knowledge of what happened with IUST and TESA in Iran would change these
references’ opinion of the Applicant and his unrelated work in Canada.
Secondly, the fact that they did not know does not change the evidence that the
Applicant’s work in Canada was related to the biomedical and medical
engineering fields in Canada and had nothing to do with nuclear energy or
weapons.
[21]
SMN says that the IRCC officer found him “guilty by association”, and his situation is
therefore comparable to that of the applicant in Azizian v Canada
(Citizenship and Immigration), 2017 FC 379 [Azizian].
[22]
The Respondent says that Azizian may be
distinguished from the present case. In Azizian, there was no evidence
that the applicant knew his employer was involved with Iran’s nuclear program.
Here, SMN has admitted that he tested materials for the AEOI, and knew that his
work was “dual use” and could be applied to the
development of WMD.
[23]
The Respondent also says that Alijani
does not assist SMN. In Alijani, the applicant was found to be
inadmissible based solely on his field of study and the institution where he
worked. Here, SMN conducted tests for the AEOI while pursuing doctoral studies
under the supervision of a nuclear physicist at an institution with documented
ties to Iran’s WMD program.
[24]
The Respondent says that the short duration of
SMN’s employment with the AEOI (approximately seven months) is irrelevant.
During that time, SMN attended workshops on the manufacture, assembly and
design of centrifuges. He had access to drawings and participated in
discussions about optimizing equipment to make it lighter. He was aware that
the centrifuges were used for uranium enrichment.
[25]
The Respondent notes the absence of evidence
from SMN’s supervising professors in Iran regarding the nature of his studies.
Indeed, SMN chose to omit these facts from his application for permanent
residence, later admitting that this was because he feared they might
jeopardize his chances of success.
[26]
Where an official notifies an applicant of
concerns regarding his or her inadmissibility to Canada, the onus to assuage
those concerns lies squarely on the applicant (IRPA, s 11(1); Esteban v
Canada (Citizenship and Immigration), 2005 SCC 51 at para 46; SN at
para 51). While SMN eventually disclosed his field of study and his past
employment with the AEOI, in my view the IRCC officer reasonably drew an
adverse inference from his deliberate misrepresentation. The Respondent notes
that to this day there are unanswered questions regarding SMN’s studies at
IUST, including the title of his thesis.
[27]
Furthermore, SMN admitted that his work for the
AEOI could potentially be applied to the production of weaponry. He did not
dispute the documented ties of the organizations where he studied and worked to
Iran’s WMD program. While his contribution may have been modest, the threshold
for inadmissibility on security grounds is relatively low: a bona fide
belief in a serious possibility that an individual is a danger to the security
of Canada.
[28]
This case underscores the importance of complete
candour when applying for permanent residence in Canada. If SMN had made full
disclosure regarding his past studies and employment in Iran, then the outcome
of his application may have been different. His reticence raised legitimate
doubts regarding his past and whether he had been forthright in his dealings
with Canadian officials. Combined with the nature of his studies and employment
in Iran, the admitted “dual use” of his
expertise, and his association with organizations that have documented ties to
Iran’s WMD program, the IRCC officer’s conclusion that SMN is inadmissible
pursuant to s 34(1)(d) of the IRPA was reasonable.
B.
Did the officer reasonably conclude that SMN was
inadmissible pursuant to s 40(1)(a) of the IRPA?
[29]
Paragraph 40(1)(a) of the IRPA provides as
follows:
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40. (1) A permanent resident or a foreign national is inadmissible
for misrepresentation
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40. (1) Emportent
interdiction de territoire pour fausses déclarations les faits suivants :
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(a) for directly
or indirectly misrepresenting or withholding material facts relating to a
relevant matter that induces or could induce an error in the administration
of this Act;
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a) directement ou
indirectement, faire une présentation erronée sur un fait important quant à
un objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque
d’entraîner une erreur dans l’application de la présente loi;
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[30]
Section 40 of the IRPA is intended to deter
misrepresentation and maintain the integrity of Canada’s immigration processes.
It requires applicants to disclose all material facts to immigration officials
in their applications (Oloumi at paras 23 and 37; Khorasgani v Canada
(Citizenship and Immigration), 2012 FC 1177 at paras 14 and 19 [Khorasgani]).
Misrepresentation occurs where two elements are present: (i) there is a
misrepresentation by an applicant; and (ii) that misrepresentation is material,
such that it induces or could induce an error in the administration of the IRPA
(Khorasgani at paras 11 and 14).
[31]
Counsel for SMN does not seriously contest the
IRCC officer’s finding that SMN is inadmissible to Canada pursuant to s
40(1)(a) of the IRPA. While not conceding the point, he acknowledges that the
Respondent’s case is “almost airtight”. SMN
admitted that he omitted information from his application for permanent
residence precisely because it might have had an adverse impact on the outcome.
It is incongruous for him to now suggest that this information was immaterial.
[32]
As Justice Danièle Tremblay-Lamer held in Oloumi
at paragraph 25, a misrepresentation need not be decisive or determinative to
be material. It will be material if it is important enough to affect the
process. The information that SMN chose to withhold was clearly relevant to the
determination of his application for permanent residence, and it ought to have
been disclosed.
[33]
I am therefore satisfied that the IRCC officer
reasonably found SMN to be inadmissible pursuant to s 40(1)(a) of the IRPA.
VII.
Conclusion
[34]
The application for judicial review is
dismissed. Neither party proposed that a question be certified for appeal, and
none arises in this case.
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