Docket: IMM-2434-16
Citation:
2017 FC 379
Ottawa, Ontario, April 19, 2017
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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HESHMATOLLAH
AZIZIAN
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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
[1]
The Applicant, Heshmatollah Azizian, is a 74
year old citizen of Iran who, in 2009, applied for permanent residence as an
investor under the Quebec Investor Program. His application was refused,
however, by an officer [the Officer] in the Immigration Section of the Embassy
of Canada in Ankara, Turkey, who determined in a letter dated April 12, 2016,
that the Applicant did not meet the requirements for a permanent resident visa
because of his health condition and his former employment with the Central Bank
of Iran. The Applicant has now applied under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] for judicial review
of the Officer’s decision.
I.
Background
[2]
In connection with his application to the Quebec
Investor Program, the Applicant was interviewed in October 2009 by an officer
at the Canadian Embassy in Ankara, and later that year he was selected into the
Program. In March 2013, the Applicant underwent a medical examination for
purposes of his application; more than a year later, an immigration officer
informed the Applicant by letter dated August 12, 2014, that he might be
inadmissible to Canada on medical grounds because he had been diagnosed with
Malignant Neoplasm of the Pancreas. The letter noted that the tumour in the
Applicant’s pancreas had been surgically removed and that he would require “close multi-disciplinary specialist team care, outpatient
treatment in tertiary healthcare facilities, hospital admissions to manage his
condition, chemotherapy/ radiotherapy and/or medical treatment as appropriate.”
The letter further noted that the Applicant might be inadmissible for permanent
resident status under paragraph 38(1) (c) of the IRPA because his health
condition might reasonably be expected to cause excessive demand on health or
social services, since the estimated cost for health related services would be
$36,877 per year, an amount which exceeded the average per capita cost of
$6,327 annually. The officer afforded the Applicant 60 days to submit
additional information or documents to respond to the officer’s concerns.
[3]
Shortly after the officer sent the letter of
August 12, 2014, the Canada Border Services Agency provided to the Canadian
Embassy in Ankara an inadmissibility assessment concerning the Applicant dated
September 5, 2014. CBSA noted in the assessment report that the Applicant had
been employed with the Central Bank of Iran [CBI] from 1966 to 2006 and
promoted to various senior positions during the course of his career with the
CBI. The CBSA report explained that the CBI is believed to be providing
financial contribution to Iran’s proliferation-sensitive nuclear activities as
well as financing terrorist organizations such as Hamas and Hezbollah. The CBSA
concluded that there were reasonable grounds to believe that the Applicant had
not only engaged in terrorism and was inadmissible pursuant to paragraph 34(1) (c)
of the IRPA, but also assisted Iran’s weapons development and
proliferation efforts and was inadmissible to Canada pursuant to paragraph
34(1) (d) of the IRPA. The Applicant did not receive disclosure of the
CBSA report prior to the commencement of this application for judicial review.
[4]
On October 8, 2014, an officer provided the
Applicant with another letter which stated that the Applicant might be inadmissible
on security grounds pursuant to paragraphs 34(1) (c) and 34(1) (d) of the IRPA
in view of his employment and senior positions with the CBI. The letter stated:
“Numerous credible open source reports indicate that
the CBI is believed to be providing financial support to known terrorist
organizations, which in turn have been responsible for the killings of
countless civilians and the mass destruction of civilian property.” The
letter further stated that: “we have reasonable grounds
to believe that you had significant knowledge of and contribution to the CBI’s
activities related to terrorist financing, and that you are inadmissible to
Canada pursuant to paragraph 34(1)(c) of the IRPA.” The letter
went on to state: that the CBI is “believed to be involved
in the nuclear missile weapons programs and is suspected of providing
transactions contributing to proliferation sensitive nuclear activities, or to
the development of nuclear weapon delivery systems ”; that the CBI was
designated as a “listed entity” by the United
States Department of Treasury and the European Union; and that the
proliferation activities and expansion of Iran’s nuclear plans “constitute a significant risk to Canada.” The letter
concluded by stating that: “we have reasonably [sic]
grounds to believe that you are also inadmissible to Canada pursuant to
paragraph 34(1) (d) of the IRPA for your involvement in the CBI’s
proliferation and weapons development activities.” The officer afforded
the Applicant 60 days to submit any information that would allay the officer’s
concerns.
[5]
The Applicant’s counsel provided submissions to
the visa office in December 2014 with respect to his health condition,
explaining that the initial medical examination occurred around the time the
Applicant’s tumour was removed and that subsequent testing indicated that his
cancer was in complete remission. The Applicant provided a medical report from
his oncologist who concluded that the Applicant “is
currently in complete remission and does not require any further therapies
(radio-chemo). Because of stage of disease the prognosis is good and the
recurrence rate is low.” The Applicant’s counsel submitted that, in view
of this prognosis, the Applicant did not need to undergo the medical procedures
listed in the letter of August 12, 2014, and therefore he was no longer
medically inadmissible. The Applicant’s counsel further submitted, in the
alternative, that the Applicant’s ability to pay for private chemotherapy
treatment in Quebec was relevant to the assessment of excessive demand.
[6]
In a letter dated May 6, 2015, the Applicant’s
counsel responded to the concerns that the Applicant was inadmissible on security
grounds, noting that the officer had failed to identify the “numerous credible open source reports” in the letter
of October 8, 2014, and that a subsequent privacy request revealed no open
source reports in the Applicant’s file. The Applicant provided with his
submissions all potentially relevant and available reports and specifically
requested that any other reports which he had not included be identified. The
Applicant denied any involvement in terrorist activities and stated it was
impossible to reply in a meaningful and informed way to the officer’s concerns
because neither the terrorist organizations nor the terrorist acts had been
identified. The Applicant noted that he was unable to find any open source
reports indicating that the CBI funded acts of terrorism, and submitted in the
alternative that if the CBI was involved in such activities, there was no
evidence that he had been involved in any activity within the CBI which made
him complicit under paragraph 34(1) (c) of the IRPA. The Applicant
rejected the notion that he was a danger to the security of Canada and
inadmissible under paragraph 34(1) (d), arguing that inadmissibility under
this paragraph required tangible and identifiable evidence that he was either a
present or future danger to Canada, and that since he had ceased his employment
with the CBI in 2006 he could not be a present or future danger to Canada. The
Applicant submitted that there was no evidence he had been either directly
involved or complicit in any activities that endanger the security of Canada,
or involved in transactions contributing to the proliferation of sensitive
nuclear activities or the expansion of Iran’s nuclear program.
II.
The Officer’s Decision
[7]
In a letter dated April 12, 2016, the Officer
refused the Applicant’s application for a permanent resident visa because he
was inadmissible on health grounds and on security grounds. The Officer stated
that the Applicant’s health condition might reasonably be expected to cause
excessive demand on health or social services, thus making him inadmissible
pursuant to paragraph 38(1) (c) of the IRPA. The Officer further stated
that there were reasonable grounds to believe that the Applicant was a member
of the inadmissible class of persons described in paragraph 34(1) (d) of the IRPA,
thus making him inadmissible on security grounds. The Officer acknowledged that
the Applicant’s responses to the two procedural fairness letters had been
considered, but his responses did not change the final assessment of his health
condition or alleviate the concerns arising under paragraph 34(1) (d) of the IRPA.
The Officer’s letter did not contain any inadmissibility findings pursuant to
paragraph 34(1) (c) of the IRPA, despite the fact that concerns in this
regard had been raised in the letter of October 8, 2014.
[8]
The Global Case Management System [GCMS] notes
provide further detail as to why the Applicant was found to be inadmissible
under paragraph 38(1) (c) of the IRPA. The Officer noted that, although
a medical officer had reviewed the Applicant’s submissions, they did not modify
the initial medical assessment which indicated that the Applicant’s cancer was
at stage IIA and not stage I as indicated by the Applicant. The Officer agreed
with the medical officer’s previous calculation of the estimated health costs
and also noted that the costs might be significantly higher if the cost of
palliative care was included.
[9]
The Officer’s GCMS notes also explain the
rationale for the inadmissibility finding under paragraph 34(1) (d) of the IRPA.
The Officer noted that there was credible, publicly available information that
the CBI is involved in terrorism financing and weapons of mass destruction
proliferation activities, and cited documents from the United States Treasury
which state that the CBI was sending money to the Hezbollah terrorist
organization and had asked other financial institutions to conceal its
involvement in missile procurement, nuclear programs, and terrorist financing.
The Officer further noted that the CBI had been listed as an entity of concern
for weapons of mass destruction, nuclear proliferation, and activities
circumventing international sanctions imposed by the European Union, the United
Nations, and the United States. The Officer acknowledged that the CBI did serve
some legitimate functions, but also noted that the evidence shows its
involvement in the proliferation of weapons of mass destruction and the
financing of terrorism. The Officer did not believe that the Applicant had
never heard of these concerns during his 40 year tenure at the CBI,
particularly in view of his senior positions. The Officer also found it was not
credible that the Applicant would not have been involved in decisions about
policy and the allocation of funds, since he had served as the Secretary
General of the CBI and been involved in the development and supervision of the
implementation of by‑laws and guidelines for the Iranian banking system.
The Officer stated that Iran’s weapons development threatens Canada’s security
and individuals who are or have been linked directly or indirectly to nuclear
proliferation may be found inadmissible under paragraph 34(1) (d). The Officer
concluded his GCMS notes by writing:
Based on the PA’s positions, including the
positions of Secretary General of the Bank, the length of his career at CBI,
which implies some level of responsibility and knowledge, I have reasonable
grounds to believe the PA was involved in the entity’s proliferation and
weapons development activities; therefore, the PA represents a danger to
Canada’s security. For this reason, I have reasonable grounds to believe that
he is inadmissible under A 34(1) d).
III.
Additional Affidavits
[10]
The parties have filed various affidavits in
addition to the Officer’s decision which require the Court’s attention. The
Respondent has filed an affidavit from Dr. Rene LaMontagne, the medical officer
who assessed the Applicant’s medical condition and associated treatment costs.
The Applicant has filed two affidavits: one from Ronald Poulton, the
Applicant’s former counsel who responded to the two procedural fairness
letters; and the other from Bahar Azizian, the Applicant’s daughter who is a
permanent resident of Canada and has been involved in retaining and instructing
the Applicant’s legal counsel.
[11]
The Applicant submits that Dr. LaMontagne’s
affidavit is an improper attempt to supplement and correct his reasons as to
why the Applicant was found to be inadmissible on medical grounds, by adding
evidence and justifications which did not previously exist in the record. The
Respondent objects to Ms. Azizian’s affidavit on the basis that it articulates
legal arguments and significant portions of it are based on hearsay.
[12]
As a general rule, the record for judicial
review is usually limited to that which was before the decision-maker;
otherwise, an application for judicial review would risk being transformed into
a trial on the merits, when a judicial review is actually about assessing
whether the administrative action was lawful (see: Association of
Universities and Colleges of Canada v Canadian Copyright Licensing Agency
(Access Copyright), 2012 FCA 22 at paras 14-20, 428 NR 297, cited in Gaudet
v Canada (Attorney General), 2013 FCA 254 at para 4, [2013] FCJ No 1189;
also see: Bernard v Canada (Revenue Agency), 2015 FCA 263 at paras
13-28, 261 ACWS (3d) 441).
[13]
There are a few recognized exceptions to the
general rule against the Court receiving evidence which was not before the
decision-maker in an application for judicial review. One exception involves
situations where affidavits are sometimes necessary to bring the Court’s
attention to procedural defects that cannot be found in the evidentiary record
of the administrative decision-maker, so that the court can fulfil its role of
reviewing for procedural fairness.
[14]
In my view, the only affidavit which warrants
acceptance and review by the Court in this case is that of Mr. Poulton because
it addresses the absence of a handwritten medical letter from both the
application record and the certified tribunal record. This letter is dated June
17, 2014, and indicates that the Applicant’s pancreatic cancer was at the stage
IIA level. The Applicant’s former counsel obtained a copy of this letter in
response to a request under the Access to Information Act, RSC, 1985, c
A-1.
IV.
Issues
[15]
This application for judicial review raises
several issues which may be stated as follows:
1.
What is the appropriate standard of review?
2.
Did the Officer breach the duty of procedural
fairness by not disclosing Dr. LaMontagne’s medical report?
3.
Was the Officer’s inadmissibility finding under
paragraph 38(1) (c) of the IRPA unreasonable?
4.
Did the Officer breach the duty of procedural
fairness by not disclosing the CBSA inadmissibility assessment and the open
source documents?
5.
Did the Officer breach the duty of procedural
fairness by making an adverse credibility finding without convoking an
interview?
6.
Was the Officer’s inadmissibility finding under
paragraph 34(1) (d) of the IRPA unreasonable?
V.
Analysis
A.
Standard of Review
[16]
The Officer’s determination as to the
Applicant’s medical inadmissibility is to be reviewed under the reasonableness
standard (Vazirizadeh v Canada (Citizenship and Immigration), 2009 FC
807 at para 15, 179 ACWS (3d) 909; Iqbal v Canada (Citizenship and
Immigration), 2011 FC 1167 at para 16, [2011] FCJ No 1879). When assessing
an applicant’s medical inadmissibility, an immigration officer has an
obligation “to assess the reasonableness of the medical
officer’s opinion” (Sapru v Canada (Citizenship and Immigration),
2011 FCA 35 at para 48, [2012] 4 FCR 3 [Sapru]). Similarly, the standard
of review in respect of the Officer’s decision that the Applicant was
inadmissible on security grounds for being a danger to the security of Canada
is a question of mixed fact and law to be reviewed on the reasonableness
standard (S N v Canada (Citizenship and Immigration), 2016 FC 821 at
para 28, [2016] FCJ No 810 [S N]; Alijani v Canada (Citizenship and
Immigration), 2016 FC 327 at para 16, [2016] FCJ No 297).
[17]
The Court should not intervene, therefore, if
the Officer’s decision is justifiable, transparent, and intelligible, and it
must determine “whether the decision falls within a
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,
[2008] 1 S.C.R. 190 [Dunsmuir]. Those criteria are met if “the reasons allow the reviewing court to understand why the
tribunal made its decision and permit it to determine whether the conclusion is
within the range of acceptable outcomes”: Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at
para 16, [2011] 3 S.C.R. 708. Additionally, “as long as
the process and the outcome fit comfortably with the principles of
justification, transparency and intelligibility, it is not open to a reviewing
court to substitute its own view of a preferable outcome”; and it is
also not “the function of the reviewing court to reweigh
the evidence”: Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 at paras 59, 61, [2009] 1 S.C.R. 339 [Khosa].
[18]
As to the standard of review for questions of
procedural fairness, it is correctness (Mission Institution v Khela,
2014 SCC 24 at para 79, [2014] 1 S.C.R. 502; Khosa at para 43). Under the
correctness standard, a reviewing court shows no deference to the decision-maker’s
reasoning process and the court will substitute its own view and provide the
correct answer if it disagrees with the decision-maker’s determination (see Dunsmuir
at para 50). Moreover, the Court must determine whether the process followed in
arriving at the decision under review achieved the level of fairness required
by the circumstances of the matter (see: Suresh v Canada (Minister of
Citizenship and Immigration), 2002 SCC 1 at para 115, [2002] 1 S.C.R. 3). When
applying a correctness standard of review, it is not only a question of whether
the decision under review is correct, but also a question of whether the
process followed in making the decision was fair (see: Hashi v Canada
(Citizenship and Immigration), 2014 FC 154 at para 14, 238 ACWS (3d) 199;
and Makoundi v Canada (Attorney General), 2014 FC 1177 at para 35, 249
ACWS (3d) 112).
[19]
It warrants note that the content of the duty
of procedural fairness is typically “at the low end of
the spectrum” in the context of visa applications made by individuals
outside of Canada because “the interests at stake in
such cases are less serious” (Khan v Canada (Minister of Citizenship and
Immigration), 2001 FCA 345 at paras 30-32, [2002] 2 FCR 413 [Khan]; Fouad
v Canada (Citizenship and Immigration), 2012 FC 460 at para 14, [2012] FCJ
No 768).
B.
Did the Officer breach the duty of procedural
fairness by not disclosing Dr. Montagne’s medical report?
[20]
The Applicant argues that the Officer breached
the duty of procedural fairness by failing to disclose Dr. LaMontagne’s medical
assessment which indicated that the Applicant’s pancreatic cancer was at the
stage IIA level. The Applicant contends that Dr. LaMontagne’s medical
assessment constitutes extrinsic evidence that he should have been able to
assess and address. The Officer never provided the Applicant with Dr.
LaMontagne’s opinion that his cancer was at stage IIA and, according to the
Applicant, fairness dictated that he should have had an opportunity to respond
to that diagnosis. The Applicant further argues that the procedural fairness
letter provided by the Officer failed to mention the fact that the Applicant
has stage IIA pancreatic cancer, and refers to Firouz-Abadi v Canada
(Citizenship and Immigration), 2011 FC 835 at para 20, [2013] 2 FCR 31,
where this Court noted that a procedural fairness letter “must clearly set out all of the relevant concerns so that an
applicant knows the case to be met and has a true opportunity to meaningfully
respond to all of the visa officer’s concerns.”
[21]
The Respondent maintains that the Officer was
not required to provide a copy of the medical officer’s assessment to the
Applicant. The Respondent says that the Applicant has not provided any
jurisprudence to support its position because none exists. According to the
Respondent, imposing an obligation to provide a copy of the medical officer’s
assessment would create a never-ending process where the Applicant would
respond to the materials with new medical reports, and the Officer (who is not
medically trained) would have to refer these new medical reports to the medical
officer for a subsequent opinion, which would then have to be sent back to the
Applicant.
[22]
The jurisprudence suggests that, while an
immigration officer is not required to disclose the medical officer’s full
medical report and assessment, an officer is nonetheless obligated to fully
inform the Applicant of the medical diagnosis, prognosis, and expected health
care services in order to enable the Applicant to respond in a meaningful
manner. In Khan, the Federal Court of Appeal stated that: “If a visa applicant is informed of the medical diagnosis,
prognosis, and the services likely to be required, and is advised that, in view
of the medical condition, admission would impose excessive demands on medical
or social services, fairness does not normally require further disclosure, at
least where additional information is not requested” (para 37). Similarly,
in Oliveira v Canada (Citizenship and Immigration), 2002 FCT 1283 at
para 11, 226 FTR 302, this Court stated that an officer’s procedural fairness
letter must: “clearly advise an applicant of the
medical diagnosis and prognosis, and of the services likely to be required. The
Minister is not normally obliged to disclose in the fairness letter the detail
supporting the conclusion as long as the applicant effectively knows the
grounds for the potential refusal and has the knowledge necessary to pursue the
matter further.” In Sapru, the Federal Court of Appeal stated
that a procedural fairness letter in the context of assessing medical
admissibility under the IRPA and the Immigration and Refugee
Protection Regulations, SOR/2002-227, must be one “that
clearly sets out all of the relevant concerns and provides a true opportunity
to meaningfully respond to all of the concerns of the medical officer”
(para 64).
[23]
In view of the foregoing jurisprudence, and
because the duty of procedural fairness falls at the lower end of the spectrum
in the context of applications for permanent residence made by individuals
outside of Canada, the Officer in this case was not required to produce and
disclose the medical officer’s assessment and report. The Officer was required,
however, to clearly advise and inform the Applicant in the procedural fairness
letter as to the medical diagnosis and prognosis, and of the services likely to
be required in order to enable the Applicant to meaningfully respond to the
Officer’s concerns.
[24]
In this case, although the Officer’s procedural
fairness letter noted the Applicant’s diagnosis of pancreatic cancer and quoted
extensively from the medical officer’s opinion, the letter made no mention
whatsoever of the fact the Applicant’s cancer was at the stage IIA level. This
was a material and significant fact to the Officer’s determination, which was
absent from the procedural fairness letter. In my view, this was not fair
because the absence of any mention as to the stage to which the Applicant’s
pancreatic cancer had progressed meant that he was not made fully or completely
aware of the specific medical diagnosis he had to address and displace. The
Officer’s determination that the Applicant was medically inadmissible under
paragraph 38(1) (c) of the IRPA cannot stand and must be set aside.
C.
Was the Officer’s inadmissibility finding under
paragraph 38(1) (c) of the IRPA unreasonable?
[25]
In view of my determination that the Applicant
was treated unfairly by not being made aware of the specific medical diagnosis he
had to address, little needs to be said to dispose of this issue. A decision
which is the product of an unfair process cannot be justified and,
consequently, the Officer’s determination that the Applicant was medically inadmissible
under paragraph 38(1) (c) of the IRPA was unreasonable.
D.
Did the Officer breach the duty of procedural
fairness by not disclosing the CBSA inadmissibility assessment and the open
source documents?
[26]
The Applicant argues that the Officer breached
the duty of procedural fairness by failing to disclose CBSA’s inadmissibility
assessment and various open source documents. According to the Applicant,
although the Officer’s procedural fairness letter noted that “numerous credible open source reports” indicate the
CBI’s financial support to terrorist organizations and its involvement in
nuclear weapons, the reports were not disclosed to the Applicant despite his
request to the visa office for them. The Applicant characterizes the CBSA
report as an “instrument of advocacy” that
should have been disclosed, and its non-disclosure prevented the Applicant from
addressing several errors in the report, such as the definitions of “engaging in terrorism”, “complicity”,
and “danger to the public”, which are
inconsistent with the jurisprudence.
[27]
The Respondent submits that the content of the
duty of procedural fairness owed to the Applicant was low because
inadmissibility determinations give rise to a lesser duty of fairness when they
involve the refusal of a visa to a person outside Canada. According to the
Respondent, although the Officer was not required to disclose the
publically-available open source documents, the Officer clearly set out the
allegations against the CBI involving nuclear weapons proliferation and the
sources of those concerns, namely the United States Department of Treasury and
the European Union. The Respondent argues that the Officer met the duty of
procedural fairness by relaying the specific concerns about the Applicant’s
inadmissibility and providing the Applicant with sufficient information to know
and respond to the inadmissibility concerns. The Respondent also argues that
the Officer was not required to disclose the CBSA inadmissibility assessment
because the information contained within the report was disclosed through the procedural
fairness letter of October 8, 2014.
[28]
I agree with the Respondent that the Officer was
not required to disclose the CBSA report itself. Comparing the CBSA report and
the Officer’s procedural fairness letter reveals that the Officer disclosed all
of the pertinent facts to the Applicant concerning the allegations which
underpinned the inadmissibility concerns. As noted in S N, what is
important is: “that the information contained in the
CBSA report is communicated to the applicant… the document itself does not need
to be tendered” (at para 27). Similarly, in Fallah v Canada
(Citizenship and Immigration), 2015 FC 1094 at para 9, [2015] FCJ No 1106,
the Court found that the duty of procedural fairness did not require a visa
officer to disclose a CBSA inadmissibility assessment because the procedural
fairness letter outlined that it was the applicant’s senior employment
relationship with “an internationally sanctioned entity
that …was the potential basis for a refusal decision.” So too in this
case. The Applicant was well aware of the allegations and the Officer was not
required to further disclose the CBSA report.
[29]
I am not convinced that, in the circumstances of
this case, the Officer was required to disclose the open-source documents that
supported the inadmissibility decision. The basic rule in this regard was set
out by the Federal Court of Appeal in Mancia v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 565, [1998] 3 FC 461, (CA);
there is no requirement to disclose published documentary sources of
information before the decision is made. An officer’s reliance upon information
gleaned from websites has been found to be fair and not an improper resort to
extrinsic evidence in several decisions of this Court (see e.g.: Majdalani v
Canada (Citizenship and Immigration), 2015 FC 294 at para 58, 472 FTR 285; Sinnasamy
v Canada (Minister of Citizenship and Immigration), 2008 FC 67 at paras
39-40, 164 ACWS (3d) 667; De Vazquez v Canada (Citizenship and Immigration),
2014 FC 530 at paras 27-28, 456 FTR 124; Pizarro Gutierrez v Canada
(Citizenship and Immigration), 2013 FC 623 at para 46, 434 FTR 69).
[30]
The Officer relied on two websites as noted in
the GCMS notes, which were also cited in the CBSA report: the United States
Department of Treasury website and an online Wall Street Journal article. The
Applicant knew the allegations against him. He was not denied procedural
fairness by the Officer’s non-disclosure of the information garnered from these
websites. Although the Court’s comments in Ali v Canada (Minister of
Citizenship and Immigration), 2004 FC 1174 at para 77, [2005] 1 FCR 485 [Ali],
suggest that the Officer should have disclosed such information, especially
given the Applicant’s explicit requests to the visa office for disclosure of
the information, this case is distinguishable from Ali because the
immigration officer in that case merely told the applicant he was inadmissible
since there were reasonable grounds to believe that Mr. Ali was a member of a
terrorist group and the officer did not identify the evidence that supported
the conclusion that the Mohajir Qaumi Movement was such a group. In contrast,
the Officer in this case explicitly explained that the United States Treasury
Department had stated that the CBI was involved in missile procurement, nuclear
programs, and terrorist financing. The Applicant knew the allegations against
him.
E.
Did the Officer breach the duty of procedural
fairness by making an adverse credibility finding without holding an interview?
[31]
The Applicant argues that the Officer
impermissibly made negative credibility findings against him without conducting
an interview. In particular, the Officer rejected the Applicant’s statement
that he was unaware of the allegations against the CBI. The Officer stated in
the GCMS notes that:
Given the availability of the information
[about the CBI], I found it difficult to believe that the applicant has never
heard of these concerns during his employment at CBI and since retiring… I do
not find credible that the applicant would have not been involved in policy
decision making and decisions concerning allocation of funds, especially since
the PA held the position of Secretary General of the bank and because he
indicated in his affidavit that his duty in 2003-2009 was to develop and supervise
the implementation of the by-laws and guidelines for the Iranian banking
system.
[32]
The Applicant says his sworn evidence should
have been presumed to be true unless proven otherwise. According to the
Applicant, if the Officer did not believe him, then the Officer had a duty to
either interview him or provide an opportunity to respond to the credibility
concerns.
[33]
On this issue, I agree with the Applicant that,
at a minimum, the Applicant should have been afforded an opportunity to address
the Officer’s credibility concerns. The Applicant clearly stated in his
affidavit submitted to the Officer that: “At no time
was I aware, directly or indirectly, that CBI was engaged in channelling funds
to terrorist organizations or in the development of weapons, nuclear or
otherwise. I never heard of such a thing in the bank and never saw any
documents indicating this.” Whether the Applicant was or was not aware
of the allegations against the CBI was a central question to determine his
inadmissibility under paragraph 34(1) (d) of the IRPA, and not affording
him an opportunity to address the Officer’s credibility concerns constituted a
breach of procedural fairness in this case.
F.
Was the Officer’s inadmissibility finding under
paragraph 34(1) (d) of the IRPA unreasonable?
[34]
The Applicant argues that the Officer’s findings
with respect to paragraph 34(1) (d) of the IRPA were unreasonable.
According to the Applicant, the Officer was required to establish that the
Applicant was a “present or future danger” to
the public to substantiate an inadmissibility finding and that the danger must
be tangible and identified; it cannot be speculative and relate to the past.
Additionally, the Applicant says an inadmissibility finding under paragraph
34(1) (d) requires evidence that his direct actions endangered the security of
Canada or that he was complicit in activities that endanger the security of
Canada. In order to establish complicity, the Applicant maintains that he must
have made significant contributions to the work of the CBI which was involved
in transactions contributing to the proliferation of nuclear activities and the
expansion of Iran’s nuclear program.
[35]
The Applicant says the Officer unreasonably
relied on the fact that the European Union and Canada had placed sanctions on
Iran to find him inadmissible and, further, that imposed sanctions cannot prove
an allegation under paragraph 34(1) (d). The Applicant further says the Officer
applied the wrong test for complicity under section 34 of the IRPA, and
in this regard states that the Officer failed to apply Ezokola v Canada
(Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678 [Ezokola],
and unreasonably found that long tenure and senior managerial positions with
the CBI constituted complicity with its alleged involvement in nuclear
proliferation.
[36]
The Respondent defends the Officer’s decision on
the basis that it was reasonable. According to the Respondent, there is no
temporal restriction to paragraph 34(1) (d) of the IRPA and a finding of
inadmissibility for security grounds under section 34 of the IRPA
requires the Minister to have reasonable grounds to believe that the facts
giving rise to inadmissibility have occurred, are occurring, or may occur. In
the Respondent’s view, the Officer reasonably concluded that the Applicant, as
a senior executive with the CBI, was aware of its activities which threatened
Canada’s security.
[37]
In my view, the test for complicity emanating
from Ezokola is not relevant under paragraph 34(1) (d) of the IRPA,
although an inadmissibility finding under paragraph 34(1) (c) for engaging in
terrorism could possibly engage a consideration of complicity (see: Kanagendren
v Canada (Citizenship and Immigration), 2015 FCA 86 at para 25, [2016] 1
FCR 428). Ezokola dealt with the issue of a senior public official’s
exclusion from refugee protection under article 1F (a) of the United
Nations Convention Relating to the Status of Refugees for being
complicit in a crime against peace, a war crime, or a crime against humanity
committed by a government. This case involves an application for permanent
residence, not a claim for refugee protection. Furthermore, a finding of
inadmissibility for security grounds under section 34 of the IRPA
requires that there be “reasonable grounds to believe
that the facts giving rise to inadmissibility have occurred, are occurring, or
may occur” (see: Canada (Citizenship and Immigration) v Harkat,
2014 SCC 37 at para 30, [2014] 2 S.C.R. 33).
[38]
In this case, the Officer determined that there
were reasonable grounds to believe the Applicant is a danger to the security of
Canada because he held senior managerial positions at the CBI and because his
statement that he was unaware of the allegations against the CBI was not
credible. This determination, however, cannot be justified and is unreasonable.
There was no objective evidence whatsoever to show that the Applicant knew or
ought to have known about the CBI’s activities. The Officer relied on the
Applicant’s senior position to make a negative credibility finding in the face
of the Applicant’s sworn testimony that he was unaware of the CBI’s involvement
in terrorist financing or nuclear proliferation. Once this credibility finding
was made, the Officer unreasonably inferred, again by virtue of the Applicant’s
association with the CBI, that he, like the CBI, was a danger to the security
of Canada by channelling funds to terrorist organizations and assisting in the
development of nuclear weapons. This is the sort of “guilt
by association” which the Supreme Court cautioned against in Ezokola
(see: paras 80 to 82). It is all the more troubling in this case because the
Officer made these inferences and concluded that the Applicant was inadmissible
under paragraph 34(1) (d) of the IRPA without affording the Applicant an
opportunity to address the credibility concerns. In this case, the Officer’s
inadmissibility finding under paragraph 34(1) (d) of the IRPA was not
reasonable.
VI.
Conclusion
[39]
For the reasons stated above, this application
for judicial review is allowed. The Officer’s decision is set aside and the
matter returned for redetermination by a different immigration officer.
[40]
Neither party proposed a question for
certification; so, no such question is certified.
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