Docket: IMM-2652-17
Citation:
2018 FC 106
Ottawa, Ontario, January 31, 2018
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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EZZAT FAWZY
HANNA GERGES
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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.
Overview
[1]
The applicant, Ezzat Fawzy Hanna Gerges, is an Egyptian
citizen. He applied for permanent residence in Canada but was found not to meet
the requirements for a visa. The Immigration Officer [Officer] concluded there were
reasonable grounds to believe Mr. Gerges had been complicit in crimes against
humanity while employed as a member of the Egyptian National Police [ENP] between
1961 and 1986, and was therefore inadmissible pursuant to paragraph 35(1)(a) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
Mr. Gerges argues the Officer’s decision was
unfair and unreasonable as the Officer: (1) ignored or selectively reviewed
relevant evidence; (2) failed to address submissions related to a claimed abuse
of process arising from the delay in processing the application; (3) erred in
applying the test in Ezokola v Canada (Citizenship and Immigration), 2013
SCC 40 [Ezokola]; and (4) fettered his or her discretion by wholly adopting
the analysis undertaken by a third party in considering and applying the test
in Ezokola. In written submissions Mr. Gerges also argued that the Officer
erred by misapplying subparagraph 5(1)(a)(ii) of the Crimes Against Humanity
and War Crimes Act, SC 2000, c 24 [War Crimes Act]. This last argument
was not pursued in oral submissions.
[3]
The respondent submits that Mr. Gerges’ submissions
were considered, there was no error in the application of the Ezokola
test and the decision was reasonable. The respondent further submits that the
time taken to render a decision did not need to be addressed in the decision as
it was not relevant to the Officer’s duty to determine the question of
admissibility.
[4]
The application is granted. I am of the opinion
that the Officer’s failure to meaningfully engage with and address Mr. Gerges’
submissions in response to a procedural fairness letter [PFL] that was sent in
April 2016 renders the decision unreasonable.
[5]
Counsel for Mr. Gerges submits that in granting
the application I should also direct the respondent find Mr. Gerges not
inadmissible. I have declined to do so as explained below. However, I have directed
that the respondent redetermine the matter within five months of the issuance
of this Judgment.
II.
Background
[6]
Mr. Gerges is a Coptic Christian who served in
the ENP for 25 years. He was forced to retire from the ENP in 1986. He went on
to become a law professor and is now fully retired. He was sponsored for
permanent residence in Canada by his son, a Canadian citizen. The application
was commenced in 2009.
[7]
In April 2016 Mr. Gerges was sent a PFL citing
concerns that his service with the ENP rendered him inadmissible to Canada
under IRPA paragraph 35(1)(a) for committing an act outside Canada that
constitutes an offence referred to in sections 4 to 7 of the War Crimes Act.
[8]
Mr. Gerges’ counsel provided submissions in
response to the PFL in July 2016, and included with those submissions: (1) a
statutory declaration from Mr. Gerges attaching a table describing his duties
in various positions and at various ranks while serving with the ENP; (2) the
Statutory Declaration of an author and journalist who had “covered all the aspects of the Egyptian society for more
than 30 years”; (3) a letter from a Canadian terrorism expert and author
who had reviewed the material; and (4) the Statutory Declaration of a retired
senior member of the ENP who had served with Mr. Gerges.
[9]
No decision was rendered after Mr. Gerges
responded to the PFL. In March 2017 an application seeking a writ of mandamus
compelling the Officer to make a decision was commenced. In June 2017 and
prior to a hearing of the mandamus application the Officer rendered a
decision.
[10]
In the decision letter the Officer acknowledged
reviewing Mr. Gerges’ response to the PFL but dismissed his evidence and
submissions:
The majority of your response to the
procedural fairness letter consists of character references stating that you
are a good person. However, in our letter we were not addressing your character
but your long service career as a member of the Egyptian police which there have
been multiple documented sources attesting to the brutality of police officer [sic]
during the interrogation process in Egypt during the period you were
employed. Your educational certificates, employment letter and personal photos
submitted are not relevant to my decision in this case. In addition, the
submitted description is written by you and is not a documentary evidence of
your duties during your 25 year police service.
[11]
The Officer then addressed the issue of whether
Mr. Gerges was inadmissible as a person described in paragraph 35(1)(a) of the
IRPA on the basis of the six factors identified in Ezokola. The
Officer’s assessment, subject to a single and inconsequential editorial change,
was copied verbatim from an analysis prepared by the National Security
Screening Division within CBSA in April 2015. It appears that the CBSA assessment
triggered the PFL sent to Mr. Gerges a year later in April 2016.
[12]
The Officer adopts the conclusion reached in the
CBSA assessment: that based on the Ezokola factors, the legislation, Mr.
Gerges’ specific information and open source information there were reasonable
grounds to believe Mr. Gerges voluntarily made a significant and knowing
contribution to crimes against humanity committed by ENP members. He was found inadmissible
to Canada under IRPA paragraph 35(1)(a).
III.
Analysis
[13]
The parties agree, and the Court concurs, that the
standard of review applicable to matters involving the Officer’s consideration
of and assessment of the evidence in determining the question of admissibility,
is reasonableness (Canada (Citizenship and Immigration) v Verbanov, 2017
FC 1015 at para 17; Dunsmuir v New Brunswick, 2008 SCC 9 at paras 47,
51, 53 ).
[14]
Mr. Gerges’ counsel further submits that the fettered
discretion argument raises a question of fairness that is to be reviewed against
a standard of correctness. While I am satisfied that the issue of fairness
alleged is reviewable against a standard of correctness (Ibrahim v Canada
(Citizenship and Immigration 2015 FC 1033 at para 7), I need not address
whether the verbatim adoption of the CBSA assessment amounted to a breach of
fairness when assessed against the Baker factors (Baker v Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras 21-28,
174 DLR (4th) 193) as the Officer’s failure to meaningfully engage with and
address Mr. Gerges’ submissions renders the decision unreasonable.
[15]
Complicity is a relevant consideration when assessing
whether an individual is inadmissible under IRPA paragraph 35(1)(a): Kanagendren
v Canada (Citizenship and Immigration), 2015 FCA 86 at para 21. A
complicity analysis requires the decision-maker to remain focused on the
individual’s contribution to the crime or criminal purpose (Ezokola at
para 92).
[16]
The factors identified in Ezokola are intended
to serve as a guide in undertaking this assessment. They are to be addressed having
regard to all of the evidence and the actual role played by the individual. A properly
conducted Ezokola analysis leaves no room for a finding of complicity based
solely on association (Ezokola at paras 91, 92, 100-102).
[17]
In this case relevant evidence was not
considered and assessed. While the Officer acknowledged Mr. Gerges’ response to
the PFL and the evidence provided, the Officer discounts all the evidence finding
the “majority of your response … consists of character
references stating that you are a good person.” The evidence is
summarized as photos, certificates and an employment letter that is not
relevant to the decision, and the Officer dismisses a summary of employment
with the ENP on the basis that it was written by Mr. Gerges.
[18]
The Officer’s broad treatment of the submissions
overlooks the simple fact that submissions were made
and evidence was produced that was directly relevant to the assessment of the
six Ezokola factors. This included:
A.
Submissions from Mr. Gerges’ counsel to the
effect that (1) the documentation cited in the PFL suggested that human rights
violations occurred within branches of the ENP that conducted political or
national security investigations, and that human rights violations within
prisons were targeted against political detainees; (2) the applicant never
worked for ENP branches that conducted political or national security
investigations, nor did he work in prisons; (3) the applicant worked entirely
within the ENP’s Public Security department; and (4) there is no suggestion in
any documentation that the Public Security department was involved in human
rights violations.
B.
Evidence from a journalist and human rights
activist stating that as Egypt is an Islamic state, Christian police officers
in Egypt are never placed in positions where they could commit abuses against
Muslims; rather, they perform tasks such as issuing national ID cards and
securing public buildings.
C.
An opinion letter from an academic stating that
the police system in Egypt would never have allowed the applicant to be in a
position where he could have committed abuses.
D.
Evidence from a colleague which stated that Mr.
Gerges’ responsibilities consisted of administrative matters and that he was
never involved in political investigations or other work that would have
involved human rights abuses.
[19]
The Officer was under no obligation to accept
the evidence and submissions identified above. However the Officer did need to
address the evidence in undertaking the Ezokola analysis. The failure to
do so and then adopting an earlier third party analysis prepared without the
benefit of Mr. Gerges’ submissions has resulted in a decision lacking in justifiability,
transparency and intelligibility.
IV.
Remedy and Costs
[20]
Counsel for Mr. Gerges relies on Ali v Canada
(Minister of Employment and Immigration) [1994] 3 FCR 73, 27 Admin LR (2d)
110 [Ali] to argue that due to the significant delay in processing the
application it would be appropriate for this Court to direct Mr. Gerges be
found admissible to Canada. I am not prepared to direct a determination.
[21]
Ali identifies
the types of questions to be addressed when specific direction is being
considered. One of those questions is whether the evidence on the record is clearly
conclusive of only one possible outcome. This is not the case here. As was
noted in oral submissions the documentation relied on in completing the CBSA
assessment in 2015 is not included in the Certified Tribunal Record [CTR]. Any
consideration of Mr. Gerges’ submissions would require a review of this
documentation. Without it, there is no basis upon which to conclude that there
is only one possible outcome in this case.
[22]
In the alternative counsel requested the Court
direct a redetermination within a fixed period of time. The long processing time
for Mr. Gerges’ application and the failure to render a decision before a mandamus
application was filed is not addressed by the Officer in the decision and was
unexplained by the respondent. The passage of time is, on its face, significant
and, absent any explanation, troubling. The respondent was able to render the
impugned decision within three months of the mandamus application being
filed. In the circumstances it would, in my view, be reasonable to expect the respondent
to complete the redetermination within five months of the date of this Judgment
and Reasons.
[23]
In oral submissions Mr. Gerges also sought
costs. Pursuant to Rule 22 of the Federal Courts Citizenship, Immigration
and Refugee Protection Rules, SOR/93-22, no costs shall be awarded unless
the Court, for special reasons, so orders. While I am troubled by the
unexplained delay in the determination of the application, on the facts before
me I am unable to conclude that the delay alone amounts to special reasons justifying
an award of costs.
V.
Conclusion
[24]
The application is granted. The parties have not
identified a question of general importance for certification, and none arises.
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