Date: 20030529
Docket: IMM-526-02
Citation: 2003 FCT 675
Ottawa, Ontario, this 29th day of May, 2003
PRESENT: THE HONOURABLE JOHANNE GAUTHIER
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
Astrid AVEDIAN GUREGHIAN
Respondent
REASONS FOR ORDER AND ORDER
[1] The Minister of Citizenship and Immigration (MCI) seeks judicial review of the decision of the Immigration and Refugee Board, Appeal Division (IAD), dated January 25, 2002, which allowed the appeal of Mrs. Avedian Gureghian against the refusal of the sponsored application for landing made by her husband, Mr. Gureghian.
[2] Mr. Gureghian's application has been rejected because it was found that he was a member of an organization that there are reasonable grounds to believe is or was engaged in terrorism, namely the Armenia Revolutionary Federation (ARF) [see clause 19(1)(f)(iii)(B) of the Immigration Act, R.S.C. 1985, c. I-2, (the "Act")].
[3] In its reasons, the IAD states that:
...In order for individuals to be declared inadmissible under section 19(1)(f)(iii)(b) there need to exist reasonable grounds to believe that they are or were members of an organization that there are reasonable grounds to believe is or was engaged in terrorism and the Minister has to be satisfied that their admission would be detrimental to the national interest.
(Emphasis added)
[4] Because the refusal letter sent to Mr. Gureghian made no mention of whether or not the Minister was satisfied that his admission would be detrimental to the national interest, the IAD concluded that the latter portion of the test set at clause 19(1)(f)(iii)(B) of the Act had not been performed by the Minister. Therefore, the visa officer had made a "gross error of law".
[5] It is to be noted that the IAD raised this issue proprio motu; Mrs. Avedian Gureghian wanted to present other arguments in support of her case. She was never given the opportunity to do so.
[6] When this issue was raised by the IAD at the beginning of the hearing, counsel for MIC was allegedly taken by surprise. He did not really know if the Minister had looked at the issue of whether Mr. Gureghian's admission would be detrimental to the national interest. He indicated that such decisions were made in Ottawa and that it probably had been made properly but he did not have this information or any relevant documentation because these would normally be kept in a confidential file because of security concerns.
[7] He stated, however, that a notation in the CAIPS notes for April 7 could suggest that the issue had been addressed. The said note reads as follows:
I did consider whether ministerial relief was warranted. However, if it is not warranted in that he has admitted to still being a member of the ARF. Hence [sic] it would be difficult to make the recommendation.
[8] The IAD did not consider that this note relates to an assessment under clause 19(1)(f)(iii)(B) rather it said that it probably relates to a ministerial relief on the basis of humanitarian and compassionate grounds (see transcript pages 10 and 14). As a result, the IAD found that:
As for the Minister's counsel, he submits that the visa officer properly returned the case to Ottawa, where decisions on inadmissibility of this nature are made. He adds that the proper evaluation of the applicant's admissibility, including the exception referred to in paragraph 19(1)(f)(iii)(b), was properly done. However, nothing in the evidence before me supports such statement. The evidence most clearly indicates that the applicant's admissibility was not properly assessed.
Before this decision was made and after the IAD had taken a short recess to consider what it would do, i.e. allow the appeal right away on the basis of an error of law or hear the arguments and issue a decision on the merits, MCI requested an adjournment to obtain further evidence with respect to the Minister's assessment of the question of national interest. This request was rejected and the IAD rendered its decision immediately.
The issues
[9] MCI raises the following two issues:
(i) Did the IAD err in law by finding that Mr. Gureghian's application for landing had not been properly refused because there was no assessment of whether his admission would be detrimental to the national interest pursuant to the last sentence in clause19(1)(f)(iii)(B)?
(ii) Did the IAD violate a principle of natural justice when it refused the adjournment sought by MCI?
[10] In its written submissions, MCI argues that the visa officer did not have the power to make this determination with respect to national interest and thus could not have failed to exercise his jurisdiction. In that respect, MCI relies on subsection 121(1.1) of the Act which states that the Minister cannot delegate the power to exempt a person from a class of inadmissible persons under clause 19(1)(f)(iii)(B).
[11] MCI also submits that in any event, the Federal Court of Appeal in Canada (M.C.I.) v. Adams, [2001] 2 F.C. 337 (F.C.A.) made it clear that the only thing the visa officer had to do before refusing an application was to ensure that no ministerial exemption had been granted before rendering his decision.
[12] In her written submissions, Mrs. Avedian Gureghian submits that there is nothing in the decision that supports the view that the IAD concluded that the visa officer himself had to make this assessment. Rather, the IAD found that the Minister erred in failing to do the assessment mandated by clause 19(1)(f) (iii)(B). The mistake of the visa officer was thus to refuse the application before the Minister had undertaken or concluded this assessment.
[13] At the hearing, Mrs. Avedian Gureghian added a very different argument. She said that Mr. Gureghian reasonably expected the visa officer to seek a ministerial exemption on his behalf because of the representations made to him during his interview. She argued that in the circumstances, the visa officer had a positive duty to make the request on his behalf and to wait for a reply from the Minister before issuing his decision.
[14] She argued that paragraph 9 of the affidavit of the visa officer, Mr. Ian Rankin, dated April 9, 2001, confirms that the visa officer was to make such a request to Ottawa. This paragraph reads as follows:
At the end of the interview, the applicant was appraised of my concerns and asked if there was additional information he wished to present. This had been an extensive interview and the applicant had no additional information to provide. I indicated that I would take time to consider his application and consult with Ottawa. The Immigration Act as noted is very specific in this case. On 19th of July 2002, Mr. Gureghian was sent a refusal letter.
(My emphasis)
On that basis, she submits that the IAD was right when it decided that the assessment by the Minister had to be done prior to issuing the letter of refusal.
Analysis
[15] In Chieu v. Minister of Citizenship and Immigration, [2002] 1 S.C.R. 84 , the Supreme Court of Canada held that the appropriate standard of review applicable to a decision of the IAD on a question of law is correctness.
[16] Although the interpretation of clause 19(1)(f)(iii)(B) of the Act raises a question of law that is different from the one reviewed in Chieu, supra, I find that the correctness standard also applies here.
[17] Clause 19(1)(f)(iii)(B) reads as follows:
| 19(1)(f)(iii)(B) 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
...
(iii) are or were members of an organization that there are reasonable grounds to believe ir or was engaged in
...
(B) terrorism,
Except persons who have satisfied the Minister that their admission would not be detrimental to the national interest;
(My emphasis) |
|
19(1)f)(iii)(B) Perssonnes non admissibles - Les personnes suivantes appartiennent à une catégorie non admissible:
...
f) celles don't il y a des motifs raisonnables de croire qu'elles:
...
(iii) soit sont ou ont été membres d'une organisation don't il y a des motifs raisonnables de croire qu'elle se livre ou s'est livrée:
...
(B) soit à des actes de terrorisme,
Le présent alinéa ne visant toutefois pas lles personnes qui convainquent le ministre que leur admission ne serait nullement préjudicable à l'intérêt national; |
|
|
|
|
| (Je souligne) |
|
|
|
|
|
|
Similarly worded exceptions appear in paragraph 19.(1) (c.2) and 19(1)(l). Paragraph 19.(1)(c.1) also states that persons who there are reasonable grounds to believe have been convicted of certain offences described therein shall be inadmissible "except persons who have satisfied the minister that they have rehabilitated themselves and..."
[18] In Mohammed v. Canada (M.E.I.) 1989 2 F.C. 363, [1988] F.C.J. No. 2241 (QL), the Federal Court of Appeal determined that it is not a pre-condition to the operation of paragraph 19.(1)(c.1) [then 19(1)(c)] that the Governor in Council (now the minister) should have considered the question of rehabilitation and made a decision in that respect. Justice Heald said at page 371:
On the facts of this case, the submission is that the immigration officer authorizing the section 27 report did not have , as of January 20, 1988, information in her possession from which she could conclude that the appellant, if he were an immigrant, would not be granted landing because the information in her possession did not include information as to whether the appellant had satisfied the Governor in Coucil as to his rehabilitation and that since such information is an essential element of the information which the immigration officer must possess when making the report, the absence therefore is fatal to the validity of the report. I am unable to accept this submission. Implicit in the appellant's argument is the assumption that persons who have satisfied the Governor in Council as to their rehabilitation are not members of the inadmissible class described in paragraph 19(1)(c). I do not subscribe to this view of the matter. In my opinion, the exemption provided in paragraph 19(1)(c ) describes members of the class who will not be granted admission, i.e. those members who have not satisfied the Governor in Council as to their rehabilitation. It does not, however, in my view, narrow the class encompassed by paragraph 19(1)(c). The report mandated by subsection 27(1) requires the authorizing immigration officer to possess information that the person concerned has been convicted of the kind of criminal act specified in paragraph 19(1)(c) and to have knowledge that the person concerned has not satisfied the Governor in Council as to his or her rehabilitation. It is unnecessary, in my view, for the officer to wait for a decision as to rehabilitation before issuing the report. The section only requires that the issuing officer be satisfied that no decision of satisfaction by the Governor in Council has been made at the time when that officer comes into possession of the information relating to the conviction . Accordingly, I am in agreement with the view expressed by counsel for the respondents that it is not a pre-condition to the operation of paragraph 19(1)(c) that the Governor in Council shall have considered the question of rehabilitation and be not satisfied that the person concerned has brought himself within the exception . I would, therefore, reject this submission.
(My Emphasis)
[19] In Canada (MCI) v. Adams, supra, the Federal Court of Appeal had to construe paragraph 19(1(l). Justice Stone held that:
[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(l.l)(a) to (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)(1) 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(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. 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.
(My emphasis)
[20] I find that these decisions, dealing with other similar provisions of the Act, are persuasive authorities on the proper interpretation of clause 19(1)(f)(iii)(B). They indicate that the IAD was wrong when it decided that for an individual to be declared inadmissible under clause 19(1)(f)(iii)(B), the Minister has to be satisfied that their admission would be detrimental to national interest.
[21] The Minister had no obligation to consider the exception of clause 19(1)(f)(iii)(B) unless Mr. Gureghian made a specific request in that respect and provided him with satisfying evidence that his admission would not be detrimental to the national interests. The IAD did not find that Mrs. Avedian Gureghian's husband had made such a request and nor did it base its decision on such a finding.
[22] Mrs. Avedian Gureghian's argument at the hearing is therefore not supported by a finding of the IAD. There is nothing in her affidavit to the effect that when the visa officer told Mr. Gureghian about his concerns with respect to the ARF and said that he would consult with Ottawa, he was understood by Mr. Gureghian to say that he would ask for a decision on a ministerial exemption under clause 19(1)(f)(iii)(B).
[23] Mrs. Avedian Gureghian submits that the Court should assume this was the case and should thus decide whether in that special context the decision of the IAD is valid.
[24] The Court cannot and will not make such an assumption.
[25] In the circumstances, it is not material for this Court to determine whether the IAD committed an additional error in refusing to adjourn or postpone the hearing.
[26] Mrs. Avedian Gureghian proposes the following four questions for certification:
(1) Could the visa officer render his decision without waiting or knowing about the decision on the ministerial exemption he had himself requested?
(2) Can the discretionary decision of the IAD be quashed if it was not patently unreasonable?
(3) Could the MCI request an adjournment in order to look for a decision of the Minister which should have been in the file at the time the visa officer took his decision and the existence of which has not been established?
(4) Is it useful to put the decision of the Minister in evidence before the IAD if the visa officer's decision to refuse the application was made without considering it.
[27] The Court agrees with MCI that questions 2, 3 and 4 would not be determinative in an appeal of the present decision and, in any event, would not be of general importance.
[28] As to the first question, as mentioned earlier, there is no evidence and no finding of the IAD that the visa officer made a request for a ministerial exemption on behalf of Mr. Gureghian. The question would therefore be purely hypothetical.
[29] The Court finds that this case does not raise any question of general importance.
ORDER
THIS COURT ORDERS that:
1. The Application is granted. The decision of the IAD is quashed and the matter is sent back for redetermination by a differently constituted panel.
2. No question of general importance is certified.
"Johanne Gauthier"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-526-01
STYLE OF CAUSE: MCI v. Astrid Avedian Gureghian
PLACE OF HEARING: Montréal, Québec)
DATE OF HEARING: February 18, 2003
REASONS FOR ORDER AND ORDER: GAUTHIER J.
DATED: May 29, 2003
APPEARANCES:
Me Martine Valois FOR APPLICANT
Julius H. Grey FOR RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR APPLICANT
Deputy Attorney General of Canada
Department of Justice
2 First Canadian Place Suite 2400, Box 36
Exchange Tower Toronto, Ontario M5X 1K6
Grey Casgrain FOR RESPONDENT
Montreal (Quebec) H3A 1 W8