Date: 20020903
Docket: IMM-4283-01
Neutral citation: 2002 FCT 926
Ottawa, Ontario, September 3, 2002
PRESENT: THE HONOURABLE MR. JUSTICE EDMOND P. BLANCHARD
BETWEEN:
MOHAMMED MUSA MAHZOOZ,
SAIRAH MAHZOOZ, AMINA MAHZOOZ,
HAROUN MAHZOOZ, FRISHTA MAHZOOZ,
YALDA MAHZOOZ, LIDA MAHZOOZ,
OMAR MAHZOOZ, SHOKRIA MAHZOOZ
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of Louise Côté, a visa officer and first secretary of the Canadian High Commission in Islamabad, Pakistan, rendered on August 3, 2001.
Statement of facts
[2] On March 28, 1996, the male applicant, a citizen of Afghanistan, filed an application for permanent residence as a Convention refugee seeking resettlement pursuant to the sponsorship of his application for admission by the agency Action Réfugiés Montréal. The applicant registered his wife and his children as accompanying dependants.
[3] In an initial refusal letter dated February 17, 1999, the visa officer stated that the factors had been evaluated pursuant to paragraph 7(1)(c) of the Immigration Regulations, 1978, SOR/78-172 (the Regulations). She also stated that the applicants could not settle successfully in Canada because of the size of the family (six children), their low level of occupational mobility and their low level of education.
[4] After the refusal of the application, the male applicant requested that it be reevaluated, in the belief that some positive factors should have been considered in relation to their chances for settlement in Canada.
[5] The applicant obtained a new interview, which was held August 29, 2000, and at which he appeared with his family. The interview was held in the presence of an officer of the Service d'immigration du Québec and an interpreter.
[6] Following the interview, the Quebec government's Ministère des relations avec les citoyens et de l'immigration issued, on October 3, 2000, some certificats de sélection in the name of the male applicant and his dependants.
[7] The same visa officer noted that the male applicant had held office as a judge under the Marxist government of Afghanistan. Consequently, the visa officer concluded that the applicant fell within paragraph 19(1.1)(g) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act) and that he therefore belonged to the class of inadmissible persons described in paragraph 19(1)(l) of the Act. The Marxist government in Afghanistan from 1978 to 1992 has been designated a government that engaged in terrorism, systematic or gross human rights violations or any act or omission that would be an offence under any of sections 4 to 7 of the Crimes Against Humanity and War Crimes Act.
[8] In a letter dated August 3, 2001, the visa officer informed the applicant that his application for permanent residence was refused owing to the fact that he belonged to the class of persons inadmissible to Canada.
[9] The applicant argues that at no time during the interview was he notified that he might be considered inadmissible for the reasons given in the refusal letter. He has therefore not had an opportunity to comment on these negative findings.
Issues
[10] The male applicant alleges that the visa officer erred in her evaluation of his application and alleges that:
1. The visa officer rendered a decision that is contrary to the statutes and regulations.
2. The visa officer rendered a decision in contravention of the duty of procedural fairness.
Submissions of parties and analysis
[11] Before undertaking an analysis of the submissions, it is worth reproducing the relevant provisions of the Act on the basis of which the applicant was declared to be an inadmissible person:
| 19. (1) No person shall be granted admission who is a member of any of the following classes:
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19. (1) Les personnes suivantes appartiennent à une catégorie non admissible :
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| (l) persons who are or were senior members of or senior officials in the service of a government that is or was, in the opinion of the Minister, engaged in terrorism, systematic or gross human rights violations, or any act or omission that would be an offence under any of sections 4 to 7 of the Crimes Against Humanity and War Crimes Act, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest.
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| l) celles qui, à un rang élevé, font ou ont fait partie ou sont ou ont été au service d'un gouvernement qui, de l'avis du ministre, se livre ou s'est livré au terrorisme, à des violations graves ou répétées des droits de la personne ou à un fait - acte ou omission - qui aurait constitué une infraction au sens des articles 4 à 7 de la Loi sur les crimes contre l'humanité et les crimes de guerre, sauf si elles convainquent le ministre que leur admission ne serait nullement préjudiciable à l'intérêt national. (1.1) For the purposes of paragraph (1)(l), "senior members of or senior officials in the service of a government" means persons who, by virtue of the position they hold or have held, are or were able to exert a significant influence on the exercise of government power and, without limiting its generality, include
(a) heads of state or government;
(b) members of the cabinet or governing council;
(c) senior advisors to persons described in paragraph (a) or (b);
(d) senior members of the public service;
(e) senior members of the military and of the intelligence and internal security apparatus;
(f) ambassadors and senior diplomatic officials; and
(g) members of the judiciary.
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(1.1) Les personnes visées par l'alinéa (1)l) sont celles qui, du fait de leurs présentes ou anciennes fonctions, sont ou étaient en mesure d'influencer sensiblement l'exercice du pouvoir par leur gouvernement, notamment :
a) le chef d'État ou le chef du gouvernement;
b) les membres du cabinet ou du conseil exécutif;
c) les principaux conseillers des personnes visées aux alinéas a) et b);
d) les hauts fonctionnaires;
e) les responsables des forces armées, des services de renseignement ou de la sécurité intérieure;
f) les ambassadeurs et les membres du service diplomatique de haut rang;
g) les juges.
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[12] Under subsection 5(2) of the Act, immigrants shall be granted landing in Canada if they are not members of an inadmissible class and otherwise meet the requirements of the Act and the regulations thereunder.
[13] Under subsection 8(1) of the Act, a person seeking permanent residence has the burden of proving that his admission to Canada would not be contrary to the Act or the Regulations.
[14] Paragraph 9(1)(a) of the Regulations states that the applicant may be issued a visa if he is not a member of any inadmissible class and otherwise meets the requirements of the Act and the Regulations.
[15] Under subsection 9(4) of the Act, where a visa officer is satisfied that it would not be contrary to the Act or the Regulations to grant landing to the applicant, the visa officer may issue a visa to that person.
[16] It follows that if the visa officer, in view of the evidence at his disposal, is not satisfied that the landing in Canada of the applicant and his dependants would not be contrary to the Act and the Regulations thereunder, he does not have the authority to issue a visa.
[17] The respondent argues that the facts at the disposal of the visa officer allowed her reasonably to conclude that the applicant had held office as a judge under the Marxist
government of Afghanistan from 1978 to 1992, and that consequently he was inadmissible.
[18] In Chiu Chee To v. M.E.I. (May 22, 1996), A-172-93 (F.C.T.) (QL), the Federal Court of Appeal determined that the applicable standard of review in regard to the discretionary decisions of a visa officer on immigration applications is the standard laid down by the Supreme Court of Canada in [1982] 2 S.C.R. 2">Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2, where Mr. Justice McIntyre states, at pp. 7-8:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
The visa officer rendered a decision that is contrary to the statutes and regulations.
[19] The applicant contends, first, that the visa officer rendered a decision that is contrary to the statutes and regulations, in that she stated in her affidavit that she had applied the document entitled Citizenship and Immigration Canada's Operations Memorandum, which refers to the time of the Marxist government of Afghanistan from 1978 to 1992, while the record indicates that from 1978 to 1992 the applicant did not hold a position as a judge. Furthermore, the applicant notes that the visa officer mistakenly identified the Marxist government as being from 1976 to 1994 in her refusal letter.
[20] The respondent argues that the facts available to the visa officer enabled her reasonably to conclude that the applicant had held office as a judge under the Marxist government of Afghanistan and that consequently he was a member of the class described in paragraph 19(1)(l).
[21] More particularly, the record disclosed:
(a) Application for permanent residence signed March 4, 1996:
The applicant stated he had been a judge from March 1976 to April 1977 and an attorney from September 1979 to August 1980, but without providing any information as to the positions or responsibilities he had occupied during the periods from April 1977 to September 1979 and from August 1980 to December 1982;
(b) In his reapplication for permanent residence, undated and received at the Canadian Immigration Mission on August 30, 2000:
The applicant stated he had been an attorney from 1976 to 1977 and a judge from 1977 to 1980;
(c) In his application for a Certificat de sélection du Québec, undated and received by the Canadian High Commission on August 10, 2000:
The applicant stated he had been an attorney from 1976 to 1977 and from 1979 to 1982 and had been a judge from 1977 to 1979;
(d) During his interview with a Quebec immigration officer:
The applicant disclosed that he was a magistrate from 1976 to 1977 and from 1978 to 1980 and a judge from 1977 to 1978.
[22] The respondent argues that although the record was conflicting in regard to the period in which the applicant worked as an attorney and as a judge, there was nevertheless evidence that clearly revealed that he had worked as a judge under the Marxist government of Afghanistan (1978 to 1992).
[23] According to the respondent, the visa officer had no choice but to refuse the application for permanent residence. Indeed, once it was determined that the applicant held office as a judge under the Marxist government of Afghanistan, he was covered by paragraph 19(1.1)(g) and thus automatically became inadmissible to Canada under paragraph 19(1)(l).
[24] The respondent argues that the applicant is completely mistaken in claiming that the record shows that he did not hold office as a judge from 1978 to 1992. Three of the four documents considered by the visa officer disclosed that the applicant had held positions as a judge under the Marxist regime from 1977 to 1978, 1979 or 1980. The dates differ from one document to another.
[25] I am also of the opinion that even if the visa officer mistakenly identified, in her refusal letter, the period covered by the Marxist government as being from 1976 to 1994 instead of from 1978 to 1992, this error has no impact on the decision that was rendered. The record is clear that the applicant did indeed hold office as a judge during the period covered by the Marxist government of Afghanistan.
[26] The applicant had the burden of proving that he was not a member of an inadmissible class. The visa officer had to be satisfied that the applicant's landing would not be in violation of the Act or the Regulations, and he did not so satisfy her. In my opinion, in light of the evidence, the visa officer did not err in refusing to issue a visa to the applicant.
The visa officer rendered a decision in contravention of the duty of procedural fairness
[27] The applicant argues that the visa officer's reasons for her decision do not refer to the facts in the file concerning his employment within the government of Afghanistan and the reasons for his dismissal, which are contained in his statement dated June 24, 1997, (received June 26, 1997, at the Canadian Immigration Mission).
[28] The applicant testifies that he did not share the ideology of the Marxist government of Afghanistan, that he was already employed by the government when the Marxist government took office, that he never acted contrary to the interests of his people, that he was in fact dismissed because of his dissenting opinions and that he is not a threat to the national interest of Canada.
[29] The applicant argues that in failing to address this information in her refusal letter, the visa officer failed to exercise her discretion "in compliance with the principles of procedural fairness".
[30] Both parties cite Canada (M.C.I.) v. Adam, [2001] 2 F.C. 337 (F.C.A.), a judgment of Mr. Justice Stone of the Federal Court of Appeal. The applicant acknowledges that paragraph 19(1)(l) of the Act does not contain any rebuttable presumption, which is noted in paragraph 11 of that decision:
I also agree that the Associate Chief Justice correctly determined that paragraph 19(1)(l) does not contain a rebuttable presumption and that the Board erred in deciding that it did.
[31] However, the applicant further develops his argument by alleging that the visa officer should have exercised her discretion in accordance with the principles of procedural fairness and asked whether he might be given a ministerial exception. In this regard both parties reproduced in their respective memoranda paragraph 7 of the Adam decision, supra:
As I read the paragraphs in issue, once it is determined that the respondent's husband held the position of cabinet minister in the Somalian government of Siad Barre, he fell within paragraph 19(1.1)(b) and thereby became inadmissible to Canada under paragraph 19(1)(l) unless the Minister had excepted him from the application of that paragraph. The presence of the words "have satisfied" in the excepting language suggests to me that a ministerial exception is to be made prior to the decision of the visa officer. As the respondent's husband failed to seek a ministerial exception in a timely fashion, such an exception is no longer available to him. [Emphasis added]
The respondent submits that in light of that case a visa officer does not have discretion to ask whether the admission of a respondent [sic] would be detrimental to the national interest. It appears, rather, that this decision must be made by the Minister if the person in question so asks. Furthermore, as the decision indicates, the ministerial exception must precede the visa officer's decision.
[32] The applicant, for his part, questions this conclusion of the Federal Court of Appeal, alleging that it should have taken into account the fact that the Act does not provide any procedure for making such a request for a ministerial exception.
[33] In reply to this argument, the respondent notes that Appendix B, entitled "National Interest Information Sheet", of Chapter 17 of the "CIC Manual - Overseas Processing", clearly states the appropriate procedure for filing a request for relief.
[34] The respondent further explains that section 2.1 of chapter OP 19 entitled "Ministerial permits" states that only the Minister, pursuant to subsection 121(1.1) of the Act, may grant relief from paragraph 19(1)(i) [sic]:
A121(1) also specifies "powers, duties and functions" which the Minister cannot delegate. These include parts of A19 dealing with national security [A19(1)(f), (k) and (l)]. Only the Minister can grant relief from these provisions.
[35] I am of the opinion that in these circumstances, since the visa officer did not have any discretion to grant the applicant relief from paragraph 19(1)(l), she did not have to take into account the things in the file that in the applicant's view showed that he did not constitute a threat to Canada's national interest.
[36] I repeat as well the fact noted by the respondent, that there is no evidence on the record that the applicant asked the Minister for a ministerial exception, although it was his responsibility to do so if he wished to be exempted from non-admissibility.
Conclusion
[37] For the reasons discussed above, and in particular, given the absence of discretion of the visa officer in such circumstances, I am of the opinion that she did not err in her evaluation of the applicant's application for permanent residence. The application for judicial review will be dismissed.
[38] The parties did not propose the certification of any serious question of general importance as contemplated by section 83 of the Immigration Act, R.S.C. 1985, c. I-2. I do not propose to certify a question of general importance.
ORDER
THE COURT ORDERS:
1. The application for judicial review is dismissed.
"Edmond P. Blanchard"
Judge
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-4283-01
STYLE: Mohammed Musa Mahzooz et al. v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 20, 2002
REASONS FOR ORDER OF MR. JUSTICE BLANCHARD
DATED: September 3, 2002
APPEARANCES:
Christina Karadimos FOR THE APPLICANT
Caroline Doyon FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waïce Ferdoussi FOR THE APPLICANT
1550 Metcalfe Street, Suite 903
Montréal, Quebec H3A 1X6
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Federal Department of Justice
200 René-Lévesque Blvd. W.
East Tower, 5th Floor
Montréal, Quebec H2Z 1X4
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