Date: 20000815
Docket: IMM-1692-99
BETWEEN:
KHALIL KISHAVARZ,
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
DUBÉ J.:
[1] This application is for the judicial review of a decision of the Minister of Citizenship and Immigration ("the Minister") dated October 27, 1988, denying the applicant's application for ministerial relief under paragraph 19(1)(f) of the Immigration Act ("the Act").
1. Facts
[2] The applicant, then a 31-year old citizen of Iran, deserted the Iranian military in August 1987 and fled to a refugee camp in Iraq. He arrived in Canada on October 10, 1988, entering pursuant to a visa officer's decision recognizing him as a convention refugee.
[3] In July 1989, he left Canada and went to Iraq where he joined the National Liberation Army of the People's Mojahedin of Iran ("NLA"). The following year, he left the NLA to go to Pakistan where he remained two years receiving there UNHCR recognition as a refugee.
[4] On July 9, 1992, the applicant returned to Canada and made a refugee claim which was denied, but on February 19, 1996, he was held to be a member of the Post-Determination Refugee Claimants in Canada. On January 27, 1998, he left Canada to go to Syria to meet with his parents. However, on his way there, the Norwegian authorities detected that the applicant was carrying a false Canadian passport and deported him to Canada where he returned on January 30, 1998.
[5] Upon his arrival in Toronto, the senior immigration officer ordered the applicant to be detained and issued a report under paragraph 20(1)(a) of the Act wherein it was alleged that the applicant was a member of the inadmissible class described in subparagraph 19(1)(f)(iii)(B) of the Act due to his membership to the Mujaheddin-E-Khalq ("MEK"). The applicant was released on February 19, 1998.
[6] For the past six years the applicant has lived in common law relationship with a Canadian citizen. They have two children born in Canada. He has worked at various restaurant jobs in this country but is currently unemployed.
[7] On April 2, 1998, the applicant formerly applied for ministerial relief which application the Minister denied on October 27, 1998. That decision was only communicated to the applicant on March 22, 1999. By letter dated May 3, 1999, the Administrator of the Federal Court was informed by notice pursuant to paragraph 9(2)(b) of the Immigration Rules ("the Rules") that there were no written reasons for the decision.
[8] Meanwhile on January 13, 1998, a notice of inquiry was issued causing the applicant to be brought to inquiry beginning on February 11, 1998, to determine whether the applicant was a member of an inadmissible class described under subparagraph 19(1)(f)(iii)(B) of the Act.
[9] That inquiry concluded on October 14, 1998, and the applicant was found to be inadmissible.
2. Issues
[10] The applicant claims there was a denial of fairness on the part of the Minister, the decision is perverse under the provision of "national interest", is void for vagueness, and the absence of reasons for the decision in this instance voids the decision.
[11] Subparagraph 19(i)(f)(iii)(B) of the Act reads as follows:
| 19. (1) Inadmissible persons ( 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 |
| (i) have engaged in acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada, |
| (ii) have engaged in terrorism, or |
| (iii) are or were members of an organization that there are reasonable grounds to believe is or was engaged in |
| (A) acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada, or |
| (B) terrorism, |
| except persons who have satisfied the Minister that their admission would not be detrimental to the national interest; |
| (my emphasis) |
[12] As mentioned earlier, it has been found at the inquiry that the applicant is a person described under paragraph (f). However, he claims that he falls under the exception and seeks a judicial review of the decision of the Minister that his admission would be detrimental to the national interest.
3. Analysis
[13] On February 5, 1996, at the very outset of the proceedings against the applicant, his counsel requested a full and ongoing disclosure. It was only after the Minister's decision and pursuant to a subsequent Privacy Act request that the applicant became aware of the existence of a Memorandum to the Minister on the question of ministerial relief. That Memorandum and the six annexed documents include background information, relevant considerations, a summary of the applicant's submission, a list of options and a final recommendation by the Deputy Minister to the Minister.
[14] The applicant submits that these documents ought to have been disclosed to him in advance of the decision: the Minister's reliance upon extrinsic information without affording him an opportunity to respond constitutes a denial of fairness.
[15] In a letter dated March 12, 1998, Ian Taylor, the Director of Security Review, Citizenship and Immigration Canada, advised the applicant of the type of information that would be submitted to the Minister. He wrote that "the background and other relevant factors" that will be considered in such an application included a full history of the case, information concerning the applicant's membership in any organization believed to be engaged in terrorism, the applicant's ability to become successfully established in Canada, humanitarian factors, and the existence of any criminal convictions.
[16] Pursuant to this letter, the applicant's counsel filed comprehensive submissions in which he advanced all the factors and arguments in support of his client's application. That document was also placed before the Minister.
[17] Basically, the issue is whether or not there should have been an exchange of submissions before the Minister made his decision.
[18] The seminal decision in the matter is Baker v. Canada (Minister of Citizenship and Immigration)1, a Supreme Court decision rendered on July 9, 1999. The Baker decision dealt with the denial of a humanitarian and compassionate application, whereas we are dealing here with the Minister's decision on an application for ministerial relief under paragraph 19(i)(f). In her reasons for judgment, madame Justice L'Heureux-Dubé applied the factors affecting the content of the duty of fairness, including the nature of the decision, the statutory scheme and terms of the statute, the importance of the decision to the individual affected, the legitimate expectations of such individuals, and the choice of procedure by the decision-maker.
[19] The learned judge held that the individual affected should have the opportunity to present his case fully and fairly in a fair, impartial and open process. In that case, she found that the duty to give reasons was sufficiently fulfilled through the notes of the immigration officer.
[20] As in Baker, the applicant here seeks an exemption from a legislative scheme. In both cases, the decision has a profound importance to the applicant. In the instant case, the applicant, at the time of his application for decision, had already been granted approval in principle for landing and had been identified as being at risk of suffering extreme sanctions if removed to Iran.
[21] In fact, the Deputy Minister's Memorandum did not contain new or extrinsic evidence nor did it contain any incorrect or misleading information. The analysis submitted by the Deputy Minister led to her submission that the applicant ought not to be granted the benefit of the exception. It was not favourable to the applicant but it cannot be said that it was unfair or unreasonable.
4. Conclusions
[22] In my view, there was no obligation on the part of the Minister to disclose the Memorandum in question to the applicant so as to allow him to file a rebuttal. The information before the Minister was already known to the applicant, except, of course, for the conclusion offered by the Deputy Minister (see Esse v. Canada)2. The applicant was given the opportunity to file all the information and arguments he wished to tender. The Minister had before him all the background material necessary to make a decision. He found that the admission of the applicant could be detrimental to the national interest. It cannot be said that his decision was unreasonable.
[23] It follows that the application for judicial review is dismissed. Both parties are agreed that no serious question should be certified.
OTTAWA, Ontario
August 15, 2000
Judge
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