Date: 20020709
Docket: IMM-3758-01
Neutral citation: 2002 FCT 754
BETWEEN:
AHMAD FANI
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
KELEN J.:
[1] This is a judicial review of the decision of the Immigration and Refugee Board (Appeal Division) (the "IAD"), dated July 4, 2001, wherein the IAD dismissed the appeal of Ahmad Fani without an oral hearing with respect to the applicant's evidence and credibility that he was not a terrorist.
BACKGROUND
Facts
[2] The applicant, born August 6, 1964, is a citizen of Iran. After a period of living in Kuwait, he became involved with Majahedin-e-Khalq ("MEK"), a recognized Iranian terrorist group, supported by Iraq. In 1987 MEK arranged for him to go to Iraq where he lived in a MEK camp for five years, allegedly to work as a driver and translator. He was involved in at least one military action, a failed 1990 military campaign against Iran in which he was allegedly a truck driver. In 1993, he decided to "leave the Mujahideen", and MEK arranged for him to go to Turkey and from there, he came to Canada in 1994 and claimed refugee status on the basis of his support for MEK.
Terrorist Finding
[3] On June 18, 1996, the CRDD determined that the applicant was a Convention refugee. On May 17, 1999 the applicant was interviewed by immigration officer Benson on the subject of the applicant's involvement with MEK. On February 21, 2000 the Minister of Immigration issued an opinion pursuant to paragraph 19(1)(f) of the Act, that the applicant's admission to Canada would be detrimental to the national interest. Subsequently, adjudicator Gratton found the applicant to be a person as described in paragraph 19(1)(f)(iii)(B) of the Act (i.e. a terrorist) and issued a deportation order against the applicant on June 21, 2000.
[4] On the same day, the applicant filed an appeal of the adjudicator's decision and deportation order to the IAD.
IAD Appeal Procedure
[5] Before the IAD, the applicant filed a Notice of Constitutional Question that the deportation order of the adjudicator violated his rights under sections 7 and 2(d) of the Canadian Charter of Rights and Freedoms.
[6] On January 15, 2001 the IAD bifurcated the hearing process because the applicant had filed a "Notice of Constitutional Question" which would first be considered the basis of legal submissions which could be effectively accomplished by written submissions.
[7] The IAD set the schedule for the appeal as follows:
i. the constitutional challenge will be dealt with by written submissions; and
ii. once the IAD has ruled on all the constitutional issues, and depending upon the nature of the ruling, the appeal division will schedule an oral hearing "on notice to the parties to deal with the equitable branch of the appeal".
[8] The applicant submitted before the IAD that being found by the adjudicator to be a person described in paragraph 19(1)(f)(iii)(B) violated the applicant's right to life, liberty and security of the person under section 7 of the Charter and that the decision further violated his section 2(d) right to freedom of association.
[9] The IAD decided that paragraph 19(1)(f)(iii)(B) does not violate the Charter, and confirmed the adjudicator's decision that the paragraph described the applicant.
THE LAW
[10] Relevant sections of the Immigration Act, R.S.C. 1985, c.I-2 read as follows:
Right of Convention refugees
4. (2.1) Subject to any other Act of Parliament, a person who is determined under this Act or the regulations to be a Convention refugee has, while lawfully in Canada, a right to remain in Canada except where it is established that the person is a person described in paragraph 19(1)(c.1), (c.2), (d), (e), (f), (g), (j), (k) or (l) or a person who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of
(a) more than six months has been imposed; or
(b) five years or more may be imposed.
[...]
Inadmissible Classes
Inadmissible persons
19. (1) No person shall be granted admission who is a member of any of the following classes:
[...]
(f) persons who there are reasonable grounds to believe:
[...]
(iii) are or were members of an organization that there are reasonable grounds to believe is or was engaged in
[...]
(B) terrorism,
[...]
Certificate
40.1 (1) Notwithstanding anything in this Act, where the Minister and the Solicitor General of Canada are of the opinion, based on security or criminal intelligence reports received and considered by them, that a person, other than a Canadian citizen or permanent resident, is a person described in subparagraph 19(1)(c.1)(ii), paragraph 19(1)(c.2), (d),
Cas des réfugiés
4. (2.1) Sous réserve des autres lois fédérales, la personne à qui le statut de réfugié au sens de la Convention a été reconnu en vertu de la présente loi ou dans le cadre des règlements et qui se trouve légalement au Canada a le droit d'y demeurer, sauf si elle tombe sous le coup des alinéas 19(1)c.1), c.2), d), e), f), g), j), k) ou l) ou a été déclarée coupable d'une infraction prévue par une loi fédérale:
a) soit pour laquelle une peine d'emprisonnement de plus de six mois a étéinfligée;
b) soit qui peut être punissable d'un emprisonnement maximal égal ou supérieur à cinq ans.
[...]
Personnes non admissibles
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible:
[...]
f) celles dont il y a des motifs raisonnables de croire qu'elles:
[...]
(iii) soit sont ou ont étémembres d'une organisation dont il y a des motifs raisonnables de croire qu'elle se livre ou s'est livrée:
[...]
(B) soit à des actes de terrorisme,
[...]
Attestation
40.1 (1) Par dérogation aux autres dispositions de la présente loi, le ministre et le solliciteur général du Canada peuvent, s'ils sont d'avis, à la lumière de renseignements secrets en matière de sécurité ou de
(e), (f), (g), (j), (k) or (l) or subparagraph 19(2)(a.1)(ii), they may sign and file a certificate to that effect with an immigration officer, a senior immigration officer or an adjudicator.
[...]
Prohibited removal
53. (1) Notwithstanding subsections 52(2) and (3), no person who is determined under this Act or the regulations to be a Convention refugee, nor any person who has been determined to be not eligible to have a claim to be a Convention refugee determined by the Refugee Division on the basis that the person is a person described in paragraph 46.01(1)(a), shall be removed from Canada to a country where the person's life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless
[...]
(b) the person is a member of an inadmissible class described in paragraph 19(1)(e), (f), (g), (j), (k) or (l) and the Minister is of the opinion that the person constitutes a danger;
criminalité dont ils ont eu connaissance, qu'une personne qui n'est ni citoyen canadien ni résident permanent appartiendrait à l'une des catégories visées au sous-alinéa 19(1)c.1)(ii), aux alinéas 19(1)c.2), d), e), f), g), j), k) ou l) ou au sous-alinéa 19(2)a.1)(ii),
[...]
Renvoi de réfugiés au sens de la Convention
53. (1) Par dérogation aux paragraphes 52(2) et (3), la personne à qui le statut de réfugié au sens de la Convention a étéreconnu aux termes de la présente loi ou des règlements, ou dont la revendication a été jugée irrecevable en application de l'alinéa 46.01(1)a), ne peut être renvoyée dans un pays où sa vie ou sa liberté seraient menacées du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques, sauf si, selon le cas:
[...]
b) elle appartient à l'une des catégories non admissibles visées aux alinéas 19(1)e), f), g), j), k) ou l) et que, selon le ministre, elle constitue un danger pour la sécurité du Canada;
ANALYSIS
Decision of the IAD
[11] At the hearing, the applicant did not challenge the decision of the IAD with respect to the constitutional issues. The IAD decided that the adjudicator came to a reasonable decision in finding the applicant to be a person described in paragraph 19(1)(f)(iii)(B). The IAD stated:
The appellant implicitly acknowledged in his written submissions that he is described in paragraph 19(1)(f)(iii)(B). His appeal from the decision of Adjudicator Gratton centred on the constitutionally [sic] of the paragraph. The appellant acknowledged at the inquiry that the statements he made to Ms. Benson, an immigration officer, were true. On the basis of his PIR narrative and his statements in his interview with Ms. Benson, there are reasonable grounds to believe that the appellant was a member of the MEK. His claim that he was not a real member because he did not fully comply with orders or instructions is neither credible nor relevant, since paragraph 19(1)(f)(iii) focuses on membership in an organization described therein, as opposed to enthusiastic membership. The parties did not dispute that there are reasonable grounds to believe that MEK is or was an organization that is or was engaged in terrorism. The appellant is therefore described in paragraph 19(1)(f)(iii)(B) and the deportation order is valid in law.
No hearing on issue of mixed law and fact, namely whether the applicant was a terrorist
[12] The issue of mixed law and fact, namely whether the applicant is described in paragraph 19(1)(f)(iii)(B), was decided by the IAD in its Decision without providing the applicant a hearing on the issue. The IAD held at page 7 of the Decision:
His claim that he was not a real member (of the terrorist organization called MEK) because he did not fully comply with orders or instructions is neither credible nor relevant, since paragraph 19(1)(f)(iii) focusses on membership in an organization described therein, as opposed to enthusiastic membership.
[13] After the parties had filed written submissions on the constitutional question, the IAD rendered its decision not only on the constitutional issues, but on the question of mixed law and fact whether the applicant was a "member " of a terrorist organization.
[14] The IAD is empowered in paragraph 69.4(3) of the Immigration Act to receive evidence necessary for dealing with the subject matter before it and to examine any person under oath. The IAD failed to conduct the oral hearing which it had expressly agreed upon after disposing of the constitutional questions. Moreover, the IAD found that the applicant was not credible without providing the applicant with an opportunity to present viva voce evidence or any submissions on the issue.
Mobil OilCase
[15] The respondent submits that the conclusion that the applicant is a member of the MEK is inevitable so that a breach of natural justice, according to the Supreme Court of Canada in Mobil Oil Canada Ltd. v. Canada - Newfoundland Offshore Petroleum Board [1994] 1 S.C.R. 202, would not entitle the applicant to the remedies sought on the basis that it would be nonsensical to compel the IAD to reconsider the issue of mixed law and fact when the result is inevitable. Based on admissions from the applicant on the record, the respondent submits that there are "reasonable grounds to believe that he is a member of a terrorist organization".
[16] It is my opinion that the result on this critical question of mixed law and fact is not inevitable. There is a possibility that the IAD may find that there are reasonable grounds to believe the applicant was not a "member" of the MEK. There are facts on both sides of the equation. The applicant is entitled to a hearing before the IAD on this critical question of mixed law and fact. Moreover, the IAD cannot make a finding with respect to the credibility of the applicant without providing him with an opportunity to be heard.
[17] I would follow the reasoning of Nadon J. (as he then was) in Kabir v. Canada (Minister of Citizenship and Immigration) 2001 F.C.J. No. 1731 (F.C.T.D.) at paragraph 31:
Although I have serious doubts about the merits of the Applicant's motion to reopen, I cannot conclude that his chances of succeeding are hopeless. Consequently, I will allow this judicial review application.
Similarly in the case at bar, I cannot conclude that the applicant's chances of succeeding are "hopeless". For this reason, the Mobil Oil case is distinguished on the facts since in Mobil Oil the result was inevitable such that a new hearing to correct the breach of natural justice would be nonsensical. Moreover, there was no credibility issue in the Mobil Oil case.
Certified Question
[18] Both counsel requested that the Court certify a question for appeal as follows:
If the result is inevitable, does Mobil Oil apply when there is a failure to provide an oral hearing or any hearing on a critical question of mixed law and fact ?
[19] Counsel for the respondent also suggested another form of the question as follows:
Does the failure to hold a hearing warrant overturning the decision when the conclusion before the IAD to support the allegation of inadmissibility is such that the IAD would inevitably reach the same conclusion ?
[20] Based on my finding that the result of a hearing on the question of mixed law and fact is not inevitable, i.e. the applicant's position is not hopeless on such a hearing, neither form of the question will be dispositive of the appeal, and no question will be certified.
CONCLUSION
[21] For these reasons, I allow the appeal and refer the matter back to a different panel of the IAD for an appeal hearing on the question "Is the applicant a person described in paragraph 19(1)(f)(iii)(B) of the Immigration Act?".
(signed) Michael A. Kelen _________________________
JUDGE
OTTAWA, ONTARIO
July 9, 2002
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3758-01
STYLE OF CAUSE: AHMAD FANI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, JUNE 25, 2002
REASONS FOR ORDER BY THE HONOURABLE MR. JUSTICE KELEN
DATED: TUESDAY, JULY 9, 2002
APPEARANCES BY: Ms. Barbara Jackman
For the Applicant
Ms. Diane Dagenais
For the Respondent
SOLICITORS OF RECORD: Jackman, Waldman & Associates
Barristers and Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M5H 1L3
For the Applicant
Mr. Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020709
Docket: IMM-3758-01
BETWEEN:
AHMAD FANI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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