Canada (Minister of Citizenship and Immigration) c. Adam, docket A-19-98

Date: 20010111

Docket: A-19-98

CORAM:        STONE J.A.

ISAAC J.A.

EVANS J.A.

BETWEEN:

                 THE MINISTER OF CITIZENSHIP

                                                    AND IMMIGRATION

                                                                                                                                  Appellant

                                                                                                                               (Applicant)

                                                                   - and -                               

                                                  HAWA IBRAHIM ADAM

                                                                                                                              Respondent

                                                                                                                            (Respondent)

Heard at Toronto, Ontario, on Tuesday, November 21, 2000.

Judgment rendered at Ottawa, Ontario, on Thursday, January 11, 2001.

REASONS FOR JUDGMENT BY:                                                                 STONE J.A.

CONCURRED IN BY:                                                                                     EVANS J.A.

DISSENTING REASONS BY:                                                                          ISAAC J.A.

Date: 20010111

Docket: A-19-98

CORAM:        STONE J.A.

ISAAC J.A.

EVANS J.A.

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                  Appellant

                                                                                                                               (Applicant)

                                                                   - and -                               

                                                  HAWA IBRAHIM ADAM

                                                                                                                              Respondent

                                                                                                                            (Respondent)

                                              REASONS FOR JUDGMENT

STONE J.A.

[1]                This is an appeal from a decision of the then Associate Chief Justice dated August 29, 1997, in which he dismissed an application for judicial review in part and, on December 29, 1997, certified the following questions pursuant to section 83 of the Immigration Act (the "Act"):

1.             In an application for judicial review of a decision concerning a person's admissibility under s.19(1)(l) of the Immigration Act, can the Court consider the issue of the Ministerial exemption contained in that section when this issue has not been raised by either party before the tribunal?

2.             If the answer is yes, is a person required to make a written request to the Minister in order to satisfy the Minister that his/her admission would not be detrimental to the national interest and is the Minister required to provide written reasons for her decision?

3.             Do sections 19(1)(l) and 19(1.1) of the Immigration Act contain a rebuttable presumption?

[2]                The respondent sought to sponsor the application for landing in Canada of her husband, a citizen of Somalia. The sponsorship was denied by a visa officer on the basis that the husband was inadmissible to Canada because he was a person described in paragraph 19(1)(l) of the Act.    That paragraph reads:

[3]                Paragraph 19(1)(l) is to be read together with paragraphs 19(1.1)(a-g), which read:

[4]                The respondent appealed the denial to the Immigration Appeal Division (the "Board") pursuant to subsection 77(3) of the Act, and the appeal was allowed on the basis that the paragraph 19(1)(l) contained a rebuttable presumption which the respondent's husband had successfully rebutted. The Board interpreted the provisions in question as stating that any person who holds or has held a position enumerated in subsection19(1.1) was presumed to hold or to have held a position where he or she is or was able to exert significant influence on the exercise of government power, and that once this is established by the Minister it is for the person concerned to show that he or she did not exert such presumed influence.

[5]                On judicial review, the Associate Chief Justice found that paragraph 19(1)(l) did not create a rebuttable presumption but that the Minister had erred in assessing the exception contained that paragraph, which authorizes the Minister to except from its application those "persons who have satisfied the Minister that their admission would not be detrimental to the national interest". There was no evidence in the Motion Record that the Minister had decided to deny the exception. The Associate Chief Justice was of the view that a letter of the former United States Ambassador to Somalia on behalf of the respondent's husband "is compelling and perhaps determinative". However, he appears to have assumed that the exception had been denied and that the Minister had given no reasons for the denial.

[6]                The appellant argues that it was not open to the Motions Judge to consider the issue of the Ministerial exception in paragraph 19(1)(l) in the circumstances of this case. She maintains that upon a proper interpretation of the paragraph, once it appears that a person holds or has held one of the positions listed in paragraphs 19(1.1)(a-g), that person is automatically rendered inadmissible to Canada under paragraph 19(1)(l). In order for an exception to operate, the paragraph requires a positive determination by the Minister, which is to be made upon application of the person concerned and proof that his or her admission to Canada would not be detrimental to the national interest. The appellant submits that the excepting provision is not a pre-condition to the operation of the remainder of paragraph 19(1)(l) and therefore that a decision-maker thereunder need only be satisfied at the time of his or her decision that no positive excepting decision was already made by the Minister.

[7]                I am of the view that these submissions are well founded. 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.

[8]                Admittedly, the construction of these paragraphs is one of first impression. I find some support for the approach I am taking in Canada (Minister of Employment and Immigration) v. Gill (1991), 137 N.R. 373 (F.C.A.). InEsse v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 46 (Q.L.) (F.C.T.D.), Rothstein J. (as he then was) commented on the paragraphs in issue when he stated at paragraph 11:

In this regard, a reading of paragraph 19(1)(l) and subsection 19(1.1) reveals that the focus of these provisions is to ensure, as far as possible, that Canada does not become a haven for persons who have engaged in terrorism, systematic or gross human rights violations, war crimes or crimes against humanity. The scheme of the legislation is to consider senior members or officials of a government as persons who were able to exert a significant influence on the exercise of the government's power such that they must take responsibility for the objectionable acts of their governments.

Persons holding specific positions within a government are deemed to be senior members of, or senior officials in the service of a government for that purpose. It is on that basis that the applicant, as an ambassador, was considered to be a person within the meaning of paragraph 19(1)(l). To obtain a Minister's exception, one would have to demonstrate, if indeed it was consistent with the facts, that notwithstanding his or her position as a deemed senior member or official in the service of a government, that there was no complicity in the objectionable acts of that government. While consideration of a person being a danger to the public in Canada might also be included (although there are other provisions dealing specifically with such matters), surely complicity in the acts of the offending government is the most obvious consideration.

[9]                I would answer the first question in the negative.

[10]            In view of the answer I propose to give to the first question it is not necessary to answer the second one.

[11]            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. In view of my answer to the first question there is no need for any further elaboration. I would answer the third question in the negative.

[12]            Before disposing of the matter I wish to add one further comment. Even upon my interpretation of the legislation, a person in the position of the respondent's husband is not necessarily foreclosed from gaining landing in Canada. In the present case, the visa officer found him to be inadmissible under paragraph 19(1)(l), and the Minister did not except him from the application of that paragraph. In my view, however, the Board ought to have invited argument with respect to whether special relief should be granted pursuant paragraph 77(3)(b) before it finally disposed of the matter. It is apparent from the Board's decision that the subject of "humanitarian or compassionate considerations" was addressed but, because the Board was of the view that the respondent had "successfully rebutted the presumption raised" in paragraph 19(1)(l), it was found unnecessary to reach a conclusion with respect to the availability of relief under paragraph 77(3)(b). In my view, that omission should now be rectified.

[13]            I would allow the appeal, answer

Question 1 - No

Question 2 - No answer required

Question 3 - No

and remit the matter to the Board for reconsideration and redetermination of whether on the evidence that was before it, particularly the letter of the former United States Ambassador, "there exists compassionate or humanitarian considerations that warrant the granting of special relief" pursuant to paragraph 77(3)(b) of the Act.

                                                                                                                             "A.J. Stone"                                   

                                                                                                                                          J.A.

"I agree.

     John M. Evans, J.A."

Date: 20010111

Docket: A-19-98

CORAM:                    STONE J.A.

ISAAC J.A.

EVANS J.A.

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                Appellant

(Applicant)

                                                                   - and -

                                                  HAWA IBRAHIM ADAM

                                                                                                                            Respondent

(Respondent)

                                              REASONS FOR JUDGMENT

ISAAC J.A.

[14]            I have read the reasons of my colleague Stone J.A. I note that my colleague Evans J.A. agrees with them. Regrettably, I am unable to reach the same conclusion. My reasons for disagreement follow.

[15]            The disposition of this appeal turns on the true meaning to be given to paragraph 19(1)(l) and subsection 19(1.1) of the Immigration Act (the "Act") that read as follows:

19(1) No person shall be granted admission who is a member of any of the following classes :

...

(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 war crimes or crimes against humanity within the meaning of subsection 7(3.76) of the Criminal Code, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest.

(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, includes

(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.

[16]            Before the Board, both parties were represented by counsel.

[17]            The reasons of the Board indicate that both parties agreed that paragraph 19(1)(l) of the Act raises a rebuttable presumption. This is how it was expressed:

It was common ground that the Respondent had some basis for reaching the conclusion above [that the applicant is inadmissible on the grounds that he fell within the class of persons described in paragraph 19(1)(l)], but that the invocation of section 19(1)(L) raises only a rebuttable presumption. It was therefore open to the appellant to adduce evidence to refute the conclusion the Respondent had reached.^[1]

The Board went on to say that as a result of that agreement by counsel, the respective merits of cases decided after the decision of an adjudicator in Hassan Mohamed Sheik v. Minister of Citizenship and Immigration^[2] were not argued. Nonetheless, the Board considered that the issue warranted consideration.

[18]            The Board noted that there were conflicting decisions in the Appeal Division as to whether paragraph 19(1)(l) raised a rebuttable presumption. He then went on to say:

In the absence of any binding precedent to the contrary, this panel is comfortable with, and accepts, the position taken by appellant and respondent on the issue in this case.^[3]

The Board proceeded to analyze that position and to conclude as follows:

In my view, the position adopted by the parties in this case is consistent with the thrust of the legislation, which puts into legalese the policy objectives set out in section 3(f),(g),(i) and (j) of the Act:

(f) to ensure that any person who seeks admission to Canada on either a permanent or temporary basis is subject to standards of admission that do not discriminate in a manner inconsistent with the Canadian Charter of Rights and Freedoms;

(g) to fulfil Canada's international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and the persecuted;

(i) to maintain and protect the health, safety and good order of Canadian society; and

(j) to promote international order and justice by denying the use of Canadian territory to persons who are likely to engage in criminal activity.

Sections 19(1)(L) and 19(1.1) makes it clear that all senior members and senior officials, who by virtue of holding positions from which they were able to exert significant influence on the exercise of government power, are inadmissible; but, for greater clarity and an aid in establishing proof, those enumerated in (a) to (g) are presumed to have held such positions where they are or were able to exert such influence.

It is up to them to show, by credible or trustworthy evidence, that they did not exert such presumed influence, failing which they will be found to be inadmissible, "except those persons who have satisfied the Minister that their admission would not be detrimental to the national interest."^[4] [Emphasis in original].

[19]            The Board then proceeded to analyze the appeal based on humanitarian and compassionate grounds under paragraph 77(3)(b) of the Act. The Board concluded , after analysis, as follows:

No arguments were advanced with regard to an appeal based on paragraph 77(3)(b) "compassionate or humanitarian grounds". In view of that, and the concerns raised earlier, it is unnecessary to reach a conclusion on this second ground of appeal.^[5]

[7]                     Having reviewed the viva voce and documentary evidence, the Board concluded that the refusal was not valid in law and the appeal was allowed pursuant to paragraph 77(3)(a) of the Act, in the following terms:

While the panel was not persuaded by the appellant's evidence with respect to the circumstances under which her husband departed Somalia, the panel finds the evidence of the former U.S. Ambassador very persuasive. He knew the appellant's husband personally and had met with him. It was not simply hearsay, or rumour, or knowledge of his reputation that founded Mr. Crigler's evidence. The appellant presented no evidence to undermine Mr. Crigler's letter.

The panel is satisfied on the evidence, that the appellant has successfully rebutted the presumption raised in section 19(1)(L). The refusal is therefore not valid in law. Accordingly, the appeal pursuant to section 77(3)(a) is allowed.^[6]

[8]                     The appellant applied to the Trial Division for judicial review of the decision of the Board. The appellant was represented by counsel but the respondent was unrepresented and did not personally attend at the hearing.

[9]         The application came on for hearing before the Motions Judge in the Trial Division. Contrary to the position taken before the Board, the appellant, at the hearing before the Motions Judge, took the position that paragraph 19(1)(l) of the Act creates no rebuttable presumption and further, that the respondent's husband clearly falls within one of the paragraphs found in subsection 19(1.1).

[10]       The learned Motions Judge, without any analysis, reached the following conclusion:

Under paragraph 19(1)(l) of the Immigration Act a person is inadmissible if he is considered to be:

     (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 war crimes

     or crimes against humanity within the meaning of

     subsection 7(3.36) of the Criminal Code, except persons

     who have satisfied the Minister that their admission

     would not be detrimental to the national interest.

That person is deemed to be a senior member or senior official if he comes under the definition provided by paragraphs 19(1.1)(a-g):

          (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, includes

          (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.

It is clear from the evidence presented that the respondent's husband was a member of the Barre cabinet and therefore falls within the provisions of paragraph 19(1)(l).

[11]       The Motions Judge then proceeded to deal with the application as if the Board had concluded that the phrase "except persons who have satisfied the Minister that their admission would not be detrimental to the national interest" in paragraph 19(1)(l) of the Act did create a rebuttable presumption. In fact, the Board did not make any finding on this aspect of the case at all. A careful reading of the reasons of the Board demonstrates that it did not make any such finding.^[7]

[12]       The Motions Judge was evidently impressed by the letter upon which the Board had based its conclusion that the respondent had rebutted the presumption raised by paragraph 19(1)(l) and subsection 19(1.1) of the Act. He therefore dismissed the application and remitted the matter to be dealt with in accordance with his reasons. Subsequently, upon an application for reconsideration, the Motions Judge certified the three questions mentioned in my colleague's reasons, saying that by oversight he had omitted them from his formal order.

Analysis

[13]       I agree with my colleagues as to the answers they are proposing to give to questions one and two. I do not agree with the answer proposed to be given to question three. These are my reasons.

[14]       At paragraph 7 of his reasons, my colleague Stone J.A. remarks as follows:

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(l.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.

In reaching this conclusion, my colleague appears to have acceded to the position of appellant's counsel, stated in paragraph 6 of my colleague's reasons:

She maintains that upon a proper interpretation of the paragraph, once it appears that a person holds or has held one of the positions listed in paragraphs 19(1.1)(a-g), that person is automatically rendered inadmissible to Canada under paragraph 19(1)(l). [Emphasis added]   

[15]    For ease of reference, I reproduce here the paragraphs in issue:

19(1) No person shall be granted admission who is a member of any of the following classes :

...

(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 war crimes or crimes against humanity within the meaning of subsection 7(3.76) of the Criminal Code, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest.

(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, includes

(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.

[16]    My colleagues and the Motions Judge take the view that a listing in paragraphs (a) to (g) of subsection 19(1.1) automatically brings a person within the proscription in paragraph 19(1)(l). The Board disagreed, saying that it was not automatic, and I am of the same view. The issue turns on the construction of paragraph 19(1)(l).

[17]       To my mind, the first question that arises in cases of this kind where the Motions Judge disagrees with the conclusion of an administrative tribunal is which standard of review did the Motions Judge employ. This much is clear from the teachings of Pushpanathan v. Canada (Minister of Citizenship and Immigration).^[8] Although that decision had not been released when the Motions Judge made the order in appeal, I am of the opinion that the principle it decides governs our approach to the issues raised in this appeal.

[18]       It is trite that issues of legislative interpretation are issues of law. Consequently, there is, in my view, room for a reviewing Court to apply the standard of correctness, even though the issue of law decided by the tribunal did not involve issues of jurisdiction. The Motions Judge could therefore disagree with the Board's interpretation of paragraph 19(1)(l) and subsection 19(1.1) of the Act. We ourselves, in this Court, may in turn disagree with him if we consider that his interpretation did not give sufficient weight to all relevant considerations.^[9]

[19]       Since this appeal raises an issue of statutory interpretation, it might be useful to recall here the following passage, taken from Driedger on the Construction of Statutes:^[10]

The modern rule. There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking these into account, the court must then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just.

[20]    One contextual feature is, of course, the object of the legislation, found in section 3 of the Act. It reads, in part:

3. It is hereby declared that Canadian immigration policy and the rules and regulations made under this Act shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recognizing the need

[...]

(c) to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad;

[...]

(g) to fulfil Canada's international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and the persecuted.

The Act is indeed remedial legislation. As such, we are required to give the language such purposive interpretation as would attain its objects.

[21]    The appeal to the Board was brought by the spouse of the respondent who was his sponsor. It was brought pursuant to paragraph 77(3)(a) of the Act. Such appeals are regulated by the provisions of the Act and by the rules of the Appeal Division. The rules contemplate an adversarial proceeding in which viva voce testimony is led, and they require the panel member or members to whom the appeal is assigned to hear the evidence and argument and to decide the appeal.

[22]       What is clear to me from reading subsections 19(1) and (1.1) of the Act is, first, that the definition of "senior member of or senior official in the service of a government" is not exhaustive. In the context of a hearing, this must mean that to succeed, the Minister must show that a person not listed in subsection 19(1.1) (a) held a position, and (b) by virtue of that position was able to exert a significant influence on the exercise of government power. On the assumption that the Minister leads evidence which, if unanswered, could lead a reasonable panel or panel member to conclude that the person did in fact hold the position and by virtue of it did exert the requisite degree of influence, the adversarial process would require the person to lead evidence to tip the balance in his or her favour, in order to avoid classification under paragraph 19(1)(l). Indeed, I did put such a case to counsel for the Minister in argument and, for what it is worth, she agreed. But she denied that this was so in relation to persons whose occupations are listed in paragraphs 19(1.1)(a-g). Why this was so she did not say, and I myself have some difficulty understanding the distinction. Such an interpretation would be inconsistent with the fairness provisions of the Canadian Charter of Rights and Freedoms (the "Charter") and contrary to the stated purpose and objectives of the Act. It is my view that an interpretation which allows all persons whose sponsorship applications have been refused under paragraph 19(1)(l) and subsection 19(1.1) of the Act to lead evidence which, if believed, will negate classification under paragraph 19(1)(l) of the Act is more consistent with notions of fairness which underlie both the Charter and the stated objectives of the Act.

[23]       Take the case of an ambassador who has been posted abroad during the time when the government mentioned in paragraph 19(1)(l) is alleged to have committed crimes mentioned therein; should that person not be able to show, if he or she can, that he or she exerted no significant influence on the exercise of government power? Or, take the case of members of the judiciary who are not members of the government in the traditional sense; are such persons automatically barred from entering Canada simply because their occupation is listed in subsection 19(1.1) of the Act? In my respectful view, there is nothing in our experience or in our tradition which mandates such an interpretation. It seems to me more consistent with the objects of the Act and with our constitutional norms to interpret the subsections as allowing persons to adduce evidence that, if believed, would avoid a paragraph 19(1)(l) classification.

[24]       This is what occurred in this case. The respondent adduced evidence before the Board. The Board believed it and found that the refusal was not valid and allowed the appeal. Whether one characterizes subsection 19(1.1) as creating a rebuttable presumption or as requiring the Minister to show a prima facie case is of no moment. In either case, the person whose admission was refused must lead evidence which, if believed, would lead to the conclusion which the Board reached in this case. Such an interpretation would make it unnecessary to have recourse to an application under paragraph 77(3)(b) of the Act.   

[25]       Before leaving this appeal, I wish to make an observation concerning the merits of the case, a matter which appears to have troubled everyone who has considered it. The record discloses that the appellant and his family have been separated for many years. His spouse and seven children live in Canada and have been granted citizenship. The appellant himself resides in Trondheim, Norway. These proceedings arose when his wife applied to sponsor his application for permanent residence status. In my respectful view, these circumstances and the stated object of the Act to "facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad"^[11] require that this case be considered with greater care than the reasons of the Motions Judge appear to me to suggest.    This is especially so because the appellant is no doubt seeking to become a permanent resident in Canada in order to discharge his responsibilities to his family.

[26]       For these reasons I would allow the appeal in part, set aside the order of the Motions Judge and reinstate the order made by the Appeal Division.     

        "Julius A. Isaac"

__________________________________

J.A.