Ottawa, Ontario, April 12, 2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Issam Al Yamani was found to be inadmissible to Canada on security grounds because of his past membership in the Popular Front for the Liberation of Palestine, an organization for which there are reasonable grounds to believe has engaged in acts of terrorism.
[2] Mr. Al Yamani then sought Ministerial relief from the finding of inadmissibility, in accordance with subsection 34(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. His request was denied by the Honourable Stockwell Day, Minister of Public Safety and Emergency Preparedness, on April 20, 2006.
[3] Mr. Al Yamani now seeks judicial review of the Minister’s decision, asserting that the Minister breached the duty of fairness owed to Mr. Al Yamani by failing to personally provide reasons for his decision, or to properly adopt the rationale provided by a departmental official as his reasons.
[4] The Minister further erred, Mr. Al Yamani says, in making an adverse credibility finding against him, in the face of Mr. Al Yamani’s sworn evidence and in the absence of a personal interview. Finally, Mr. Al Yamani says that the Minister erred in failing to carry out a balanced assessment of Mr. Al Yamani’s application for Ministerial relief, and in fettering his discretion by treating Mr. Al Yamani’s past membership in the PFLP as determinative of his application for Ministerial relief.
[5] For the reasons that follow, I find that the decision failed to assess and balance all of the factors relevant to Mr. Al Yamani’s application for Ministerial relief. As a consequence, the application for judicial review will be allowed.
Legislative Framework
[6] Before turning to consider the facts of this case, it is helpful to first have an understanding of the legislative provisions governing applications for Ministerial relief under IRPA, and how these provisions have been interpreted in the jurisprudence.
[7] Mr. Al Yamani was found to be inadmissible to Canada under the provisions of paragraph 34(1)(f) of IRPA, which provides that:
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34. (1) A permanent resident or a foreign national is inadmissible on security grounds for
(a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada;
(b) engaging in or instigating the subversion by force of any government;
(c) engaging in terrorism;
(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c). |
34. (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants :
a) être l'auteur d'actes d'espionnage ou se livrer à la subversion contre toute institution démocratique, au sens où cette expression s'entend au Canada;
b) être l'instigateur ou l'auteur d'actes visant au renversement d'un gouvernement par la force;
c) se livrer au terrorisme;
f) être membre d'une organisation don=t il y a des motifs raisonnables de croire qu'elle est, a été ou sera l'auteur d'un acte visé aux alinéas a), b) ou c). |
[8] Mr. Al Yamani was found to be inadmissible to Canada because of his past membership in the Popular Front for the Liberation of Palestine, an organization that the Immigration Division of the Immigration and Refugee Board found to be one for which there are reasonable grounds to believe engages, has engaged or will engage in terrorism. His application for judicial review of that decision was subsequently dismissed: see Al Yamani v. Canada (Minister of Citizenship and Immigration), 2006 FC 1457.
[9] Also of relevance to this application is section 33 of IRPA, which provides that:
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33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. [emphasis added] |
33. Les faits ‑‑ actes ou omissions ‑‑ mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu'ils sont survenus, surviennent ou peuvent survenir. |
[10] Thus, the facts giving rise to the inadmissibility of the individual in question need not necessarily be occurring at the time of the inadmissibility hearing: see Miller v. Canada (Minister of Public Safety & Emergency Preparedness), 2006 FC 912, at ¶ 7.
[11] Once an individual has been found to be inadmissible on one of the bases set out in subsection 34(1), that individual may seek Ministerial relief in accordance with the provisions of subsection 34(2) of the Act, which provides that:
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(2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest. |
(2) Ces faits n'emportent pas interdiction de territoire pour le résident permanent ou l'étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l'intérêt national. |
[12] As I observed in Ali v. Canada (Minister of Citizenship and Immigration), [2005] 1 F.C.R. 485, 2004 FC 1174, a subsection 34(2) inquiry is directed at a different issue to that contemplated by subsection 34(1). The issue for the Minister under subsection 34(2) is not the soundness of the determination that there are reasonable grounds for believing that an applicant is a member of a terrorist organization - that determination will have already been made. Rather, the Minister is mandated to consider whether, notwithstanding the applicant’s membership in a terrorist organization, it would be detrimental to the national interest to allow the applicant to stay in Canada.
[13] That is, subsection 34(2) empowers the Minister to grant exceptional relief, in the face of a finding of inadmissibility that has already been made by the immigration officer: see Ali, at ¶ 43.
[14] Unlike most of the decisions made under IRPA, which are made by departmental officials or members of the Immigration and Refugee Board, decisions under subsection 34(2) of the Act must be made by the Minister him- or herself. In this regard, subsection 6(3) of IRPA makes it clear that the discretion to grant an exemption based on national interest under subsection 34(2) is one that vests exclusively in the Minister, and may not be delegated.
[15] To assist in the determination of applications for Ministerial relief, guidelines entitled “Evaluating Inadmissibility” have been developed to aid departmental officials in reviewing such applications and in preparing recommendations for the Minister: see Naeem v. Canada (Minister of Citizenship and Immigration), 2007 FC 123, at ¶ 56.
[16] With this understanding of the context in which Mr. Al Yamani’s application arises, I turn now to consider the facts giving rise to his application.
Background
[17] The history of Mr. Al Yamani’s involvement with the Canadian authorities is both lengthy and complex. While some of the earlier proceedings are not relevant to the application before me, it is necessary to have some understanding of the events leading up to the finding that Mr. Al Yamani was inadmissible to Canada, in order to put his application for Ministerial relief into context.
[18] Mr. Al Yamani is a stateless Palestinian, who has been in Canada since 1985. He is married, and has two Canadian-born sons, one of whom has had significant health problems. Mr. Al Yamani’s wife has been in Canada since 1988, but while her application for landing was approved in principle in 1989, she has yet to become a permanent resident, because of the proceedings instituted against her husband.
[19] Mr. Al Yamani’s father was one of the founders of the PFLP. The PFLP has been described in previous proceedings involving Mr. Al Yamani, as a “multi-faceted organization”: see Al Yamani v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 433, 186 F.T.R. 161 (T.D.), at ¶ 84 per Justice Gibson, and Al Yamani v. Canada (Minister of Citizenship and Immigration), [1996] 1 F.C. 174, 103 F.T.R. 105 (T.D.) at ¶ 68 per Justice MacKay.
[20] That said, at this point it is not disputed that the PFLP has engaged in activities commonly associated with terrorism, such as airline hijackings, kidnappings, shootings and suicide bombings. The targets of the violence are not solely military but are also civilian: see Al Yamani v. Canada (Minister of Citizenship and Immigration), 2006 FC 1457, per Justice Snider.
[21] Moreover, since November of 2003, the PFLP has been listed as a “terrorist organization” within the meaning of Canada’s anti-terrorism legislation.
[22] Mr. Al Yamani does not deny having been a member of the PFLP for many years, including the first six or seven years that he was in Canada. However, he submits that his involvement in the organization was limited to political activities, and there is no evidence in the record that was before the Minister that Mr. Al Yamani himself had any involvement in any violent activities associated with the PFLP.
[23] Mr. Al Yamani states that he left the PFLP in 1991 or 1992, and has had no involvement with that organization since that time.
[24] Between 1985 and 1991, while Mr. Al Yamani was living in Canada, he accepted funds on the PFLP’s behalf for distribution to charitable organizations in the Middle East, as part of his ongoing responsibilities with the PFLP. He also helped to disseminate PFLP information, and helped in organizing PFLP political and social activities in Canada.
[25] Prior to coming to Canada, Mr. Al Yamani was living in Lebanon, but, as a Palestinian, he had been unable to obtain legal status in that country. He immigrated to Canada on April 27, 1985 and was granted permanent residence here.
[26] On May 3, 1988, Mr. Al Yamani applied for Canadian citizenship. As a result of this application, he became the subject of security screening by the Canadian Security Intelligence Service. This screening resulted in Mr. Al Yamani twice being the subject of security certificates issued by the Governor in Council, in accordance with the provisions of the former Immigration Act, R.S.C. 1985, c. I-2.
[27] Both of these security certificates were subsequently quashed by the orders of Justices MacKay and Gibson referred to earlier in this decision.
[28] In 2000, the decision was made not to seek a further security certificate against Mr. Al Yamani. Instead, inadmissibility proceedings were commenced under the provisions of the Immigration Act. These proceedings culminated in the November, 2005 finding of the Immigration Division of the Immigration and Refugee Board that Mr. Al Yamani was inadmissible to Canada on security grounds for being a member of an organization for which there are reasonable grounds to believe engages, has engaged or will engage in terrorism.
[29] As was noted earlier in this decision, Mr. Al Yamani’s application to judicially review this decision was dismissed by Justice Snider in December of 2006. Justice Snider upheld the Immigration Division’s finding that the PFLP was an organization that engaged in, or had engaged in terrorist activities.
[30] In the meantime, in April of 2003, even before inadmissibility proceedings were completed, Mr. Al Yamani sought Ministerial relief pursuant to subsection 34(2) of IRPA. On May 6, 2006, the Minister denied this request. It is the review of this decision that forms the basis of the present application for judicial review.
The Process Followed Leading up to the Minister’s Decision
[31] Upon receipt of Mr. Al Yamani’s application for Ministerial relief, a “Briefing Note” was prepared for the Minister by the President of the Canada Border Services Agency.
[32] In accordance with the process described in the “Evaluating Inadmissibility” Guidelines, Mr. Al Yamani was provided with a draft copy of the Briefing Note, and was given the opportunity to make further submissions in response to the document. The Briefing Note, together with copies of all of Mr. Al Yamani’s submissions, was then provided to the Minister for his consideration.
[33] After reviewing the evidence relating to Mr. Al Yamani’s case, the recommendation contained in the Briefing Note provided to the Minister stated that:
We do not recommend that Ministerial relief be granted to Mr. Al-Yamani as per section 34(2) of IRPA to overcome his inadmissibility pursuant to section 34(1)(f) of IRPA…
The basis for our recommendation is detailed in the considerations above. Although Mr. Al-Yamani is well established in Canada and there are significant humanitarian and compassionate grounds to consider, these do not negate the fact that Mr. Al-Yamani was a member of the PFLP and his level of involvement within the organization was significant enough to initiate two security certificates against him. While Mr. Al-Yamani maintains that he was a non violent member of the organization, the repercussions of re-directing funds to the Occupied Territories could have far reaching consequences. The importance of terrorist financing was recognized with the terrorist financing legislation implemented in the Criminal Code under C-36 in December 2001.
Mr. Al-Yamani stated that he came to Canada seeking “peace, security and safety”. However, he continued to act on behalf of the PFLP after his arrival in Canada. While in Canada he engaged in the receipt and disbursement of very significant amounts of money on behalf of the PFLP, facilitated communications to PFLP members in North America and facilitated the travel of PFLP members. Mr. Al-Yamani was a pivotal conduit for PFLP funds and communications and played an intricate role in PFLP activities in North America.
While Mr. Al-Yamani appears to be forthcoming about his membership in the PFLP, he consistently denied ties with the organization until it was clear that Canadian officials were aware of his activities.
Mr. Al-Yamani does not appear to have been active during the past 14 years. However, it is logical to assume that the scrutiny he has been subjected to from Canadian authorities has discouraged him from being actively involved with the group. He could resume his activities if granted Canadian citizenship.
Although some may describe the PFLP as a multi-faceted organization, it has been listed by the government of Canada as a terrorist entity in its entirety and should not be viewed differently for the purposes of section 34(2) of IRPA.
While it has taken several years to process Mr. Al-Yamani’s application for Citizenship, his membership and activities on behalf of the PFLP outweigh any national interest that would enable the Agency to make a recommendation that Mr. Al-Yamani be granted Ministerial relief.
[34] The Briefing Note concluded with the following statement: “Based on my review of the material submitted, Ministerial relief is …”. This statement is followed by two signature lines, one having a space for the Minister’s signature beside the word “APPROVED”, and the second with a space for the Minister’s signature beside the word “DENIED”.
[35] On April 20, 2006, Minister Day signed the Briefing Note in the space next to the word “DENIED”.
Issues
[36] Mr. Al Yamani’s application for judicial review raises the following issues:
1. Whether the Minister breached the duty of fairness owed to Mr. Al Yamani by failing to provide his own reasons for refusing to grant Ministerial relief?
2. If a Briefing Note can be considered to be the Minister’s reasons, did the Minister in fact adopt the Briefing Note as his reasons in this case?
3. If the Briefing Note is taken as the Minister’s reasons, did the Minister err in fettering his discretion by treating Mr. Al Yamani’s past membership in a terrorist organization as determinative of his application for Ministerial relief?
4. If the Briefing Note is taken as the Minister’s reasons, did the Minister err by ignoring relevant evidence, or otherwise fail to carry out a balanced assessment of Mr. Al Yamani’s application for Ministerial relief? and
5. If the Briefing Note is taken as the Minister’s reasons in this case, did the Minister err in making adverse credibility findings against Mr. Al Yamani without having cross-examined him on his affidavits or providing him with an interview?
Standard of Review
[37] Mr. Al Yamani’s first, second, third and fifth issues involve questions of procedural fairness. The issue of standard of review does not arise in relation to questions of procedural fairness. Rather, it is for the Court to determine whether the procedure that was followed in a given case was fair or not, having regard to all of the relevant circumstances: Sketchley v. Canada (Attorney General), [2005] F.C.J. No. 2056, 2005 FCA 404, at ¶ 52-53.
[38] Insofar as Mr. Al Yamani’s fourth issue is concerned, the parties agree that the Court must grant deference to the Minister's exercise of discretion in relation to questions of national interest, and that a review of the Minister's exercise of the discretion conferred upon him by subsection 34(2) of IRPA is to be carried out on the standard of patent unreasonableness.
[39] I agree that the standard of review governing this issue is patent unreasonableness. In this regard, I adopt the pragmatic and functional analysis conducted by Chief Justice Lutfy at paragraphs 36 to 42 of the Miller decision, previously cited.
[40] In particular, I would echo the Chief Justice’s observation that the Minister has expertise in applications under subsection 34(2) of IRPA, given that they relate to security matters with which the Minister is charged.
[41] With this understanding of the applicable standards of review, I turn now to consider the issues raised by Mr. Al Yamani.
Is the Minister Required to Provide His Own Reasons for the Decision?
[42] Mr. Al Yamani submits that the duty of fairness owed to him in this case extends to require that the Minister himself personally provide reasons for his decision. It is not sufficient, Mr. Al Yamani says, for the Minister to simply adopt the reasoning contained in the Briefing Note.
[43] In support of this contention, Mr. Al Yamani relies on the decision of the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1.
[44] In Suresh, the Supreme Court concluded that where the decision is made to remove someone from this country because that individual was deemed to be a danger to the security of Canada, and where that individual had previously been found to be a Convention refugee, that decision must emanate from the Minister him- or herself. In the factual context of the Suresh case, the Supreme Court held that it was not sufficient for the Minister to simply adopt a recommendation from the Minister’s enforcement officials as the Minister’s decision.
[45] In Miller, the argument now being advanced by Mr. Al Yamani was specifically considered and rejected by Chief Justice Lutfy, in the context of an application for Ministerial relief under subsection 34(2) of IRPA. In so doing, Chief Justice Lutfy observed that:
[61] In the present case, of course, the Minister's decision was non-delegable. However, subsection 6(3) of the IRPA only precluded the Minister from delegating her "ability to make determinations under subsection 34(2)" [emphasis added]. In my view, it was not inconsistent with subsection 6(3) for the Minister to concur in the CBSA's recommendation contained in the memorandum, and thereby adopt the memorandum as her reasons for decision. The Minister nevertheless retained, and exercised, the sole ability to make the "determination" under subsection 34(2).
[62] In my view, the memorandum, to the extent that the Minister adopted the recommendation as her determination, can serve as reasons.
[46] Mr. Al Yamani attempts to distinguish Miller on the basis that the Miller case did not involve a refugee. While Mr. Al Yamani may not have been formally recognized in Canada as a Convention refugee, he says that as a stateless Palestinian, he is nonetheless a refugee. As such, he is entitled to the procedural safeguards contemplated by Suresh, and is entitled to have reasons relating to his application for Ministerial relief that emanate from the Minister himself.
[47] I do not agree.
[48] A review of the decision in Suresh discloses that in applying the factors articulated by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, in order to ascertain the content of the duty of procedural fairness owed to Mr. Suresh, the Supreme Court of Canada was greatly influenced by the fact that Mr. Suresh was a Convention refugee.
[49] That is, in concluding that Mr. Suresh was entitled to a significant degree of procedural fairness, the Court took into account the fact that it had already been determined that he faced a risk of torture and other violations of his human rights, should he be returned to Sri Lanka, because of his past involvement with the Liberation Tigers of Tamil Eelam.
[50] That said, the Supreme Court of Canada observed in Suresh that not every case involving the deportation of a Convention refugee will demand this level of procedural protection. In this regard, the Court stated that:
[127] These procedural protections need not be invoked in every case, as not every case of deportation of a Convention refugee under s. 53(1)(b) will involve risk to an individual's fundamental right to be protected from torture or similar abuses. [...] If the refugee establishes that torture is a real possibility, the Minister must provide the refugee with all the relevant information and advice she intends to rely on, provide the refugee an opportunity to address that evidence in writing, and after considering all the relevant information, issue responsive written reasons. This is the minimum required to meet the duty of fairness and fulfill the requirements of fundamental justice under s. 7 of the Charter.
[51] The present application does not involve the deportation of a Convention refugee. While Mr. Al Yamani may be a refugee in the sense that he is a stateless person, risk was not raised as a humanitarian and compassionate factor in his submissions. Indeed, there is no suggestion in the record before me that he is at risk of torture or similar abuses should he be returned to Lebanon.
[52] As a consequence, I am not persuaded that the comments of the Supreme Court of Canada in Suresh as to the need to have the Minister provide his own reasons for a decision apply here. Nor am I persuaded that the Miller decision is distinguishable from this case in the manner suggested by Mr. Al Yamani. Moreover, I am satisfied that to the extent that the Briefing Note was adopted by the Minister as his determination, that Briefing Note should stand as the reasons of the Minister.
[53] This takes me to Mr. Al Yamani’s next issue, which is whether the Minister did in fact adopt the Briefing Note as his reasons.
Did the Minister Adopt the Briefing Note as his Reasons?
[54] Mr. Al Yamani argues that even if a Briefing Note could otherwise serve as reasons for a Minister’s decision, in this case, the Minister did not specifically adopt the reasons as his own.
[55] That is, according to Mr. Al Yamani, rather than specifically stating that he concurred with the findings contained in the Briefing Note, as appears to have been done in the Miller case, in this case the Minister merely noted on the Briefing Note that “Based on my review of the material submitted, Ministerial relief is denied”. Nowhere does the Minister specifically state that he is adopting the Briefing Note as his reasons.
[56] The result of this, Mr. Al Yamani says, is that the decision should be set aside on procedural fairness grounds, because of the lack of reasons for the decision.
[57] I do not accept this submission, which is, in my view, based upon a selective reading of the documentation. A review of the Briefing Note itself reveals that immediately prior to the page set aside for the Minister’s signature, the President of the Canada Border Services Agency concludes his discussion of the case with the following statement: “If you do not agree and the reasons for your decision are not included in the text above, please provide the rationale for your decision”.
[58] When the Minister’s signature is viewed in context, it is clearly implicit that, in concurring with the recommendation contained in the Briefing Note, the Minister was adopting the reasoning of the President of the Canada Border Services Agency as his own.
[59] I would also note that the language used in the Briefing Note in this case is identical to that used in Naeem, in relation to the Minister’s acceptance of the recommendation contained in the Briefing Note in that case. Although neither party took issue with whether the Minister had explicitly adopted the reasons set out in the Briefing Note as his own in Naeem, Justice Dawson was clearly satisfied that this was in fact the case: see Naeem, previously cited, at ¶ 50.
Conclusion on the First Two Issues
[60] For the reasons set out above, I am satisfied that the Minister complied with his duty to provide reasons in this case.
[61] Mr. Al Yamani’s remaining issues all relate to the content of the Minister’s reasons, and each will be addressed in turn, starting with Mr. Al Yamani’s argument that the Minister erred by fettering his discretion.
Did the Minister Fetter His Discretion?
[62] Mr. Al Yamani argues that the Minister erred in fettering his discretion, by treating Mr. Al Yamani’s past membership in a terrorist organization as determinative of his application for Ministerial relief.
[63] That is, Mr. Al Yamani says that the underlying premise of the Briefing Note is that a person who was once a member of an organization that is found to have engaged in terrorist activities can never overcome this past association. In such cases, humanitarian and compassionate considerations would never be able to negate past membership, or to outweigh any national interest that would allow for a positive recommendation.
[64] Given that the issue of Ministerial relief does not arise until a finding has been made that someone is inadmissible for, amongst other things, having been a member of a terrorist organization, Mr. Al Yamani contends that the Minister’s approach would thus result in subsection 34(2) being rendered meaningless.
[65] Based upon my review of the Briefing Note, I do not agree that the Minister treated Mr. Al Yamani’s past membership in a terrorist organization as determinative of his application for Ministerial relief.
[66] A review of the Briefing Note discloses that while Mr. Al Yamani’s past membership in the PFLP was certainly a major factor in the Minister’s conclusion that it was not in the national interest that Mr. Al Yamani be granted Ministerial relief, it was by no means the only factor.
[67] Also considered to be of relevance was Mr. Al Yamani’s trusted role within the PFLP, and his involvement in re-directing funds to the occupied territories. Moreover, the Minister was also clearly influenced by the fact that Mr. Al Yamani continued to be involved in PFLP activities, including the re-direction of funds to the Middle East, after he came to Canada.
[68] As a consequence, I am not persuaded that the Minister treated Mr. Al Yamani’s past membership in the PFLP, by itself, as a determining factor in his decision, or otherwise fettered his discretion.
Did The Minister Err By Ignoring Relevant Evidence, Or Otherwise Fail To Carry Out A Balanced Assessment Of Mr. Al Yamani’s Application For Ministerial Relief?
[69] Before turning to review the substance of the Minister’s decision against the standard of patent unreasonableness, it is helpful to start by reiterating that in an application for Ministerial relief made pursuant to subsection 34(2) of IRPA, it is the applicant who bears the onus of satisfying the Minister that his or her presence in Canada would not be detrimental to the national interest: see Miller, previously cited, at ¶ 64.
[70] Moreover, it is clear from the jurisprudence that in determining whether the continued presence of an applicant in Canada would be contrary to the national interest, Ministerial guidelines are a useful indicator of what will amount to a reasonable interpretation of the power conferred by the section of IRPA at issue in a particular case.
[71] Thus the fact that a decision may be reached in a manner contrary to the directives contained in Ministerial guidelines will be of assistance in assessing whether the decision was an unreasonable exercise of the discretion conferred by the Act: see Baker at ¶ 72 and Naeem at ¶ 56, both previously cited.
[72] Section 13.6 of the "Evaluating Inadmissibility" Guidelines explains the concept of national interest in the following terms:
Persons who have engaged in acts involving espionage, terrorism, human rights violations and subversion, and members of organizations engaged in such activities including organized crime, are inadmissible to Canada. The ground of inadmissibility may be overcome if the Minister of PSEP is satisfied that their entry into Canada is not contrary to the national interest.
Whereas criminal rehabilitation is specific and results in a decision that the person is not likely to re-offend, the concept of national interest is much broader. The consideration of national interest involves the assessment and balancing of all factors pertaining to the applicant's entry into Canada against the stated objectives of the Immigration and Refugee Protection Act as well as Canada's domestic and international interests and obligations.
Section 13.7 of the Guidelines provides guidance to departmental officials regarding the preparation of submissions to the Minister in relation to requests for Ministerial relief.
[73] In order to ensure that relevant considerations are addressed in the materials prepared for the Minister’s consideration, section 13.7 of the Guidelines stipulates that “In order to assess the current situation regarding the ground of inadmissibility, evidence must be produced to address the questions stated in the following table…”.
[74] The Guidelines then go on to list numerous questions that are to be addressed in preparing a recommendation for the Minister in connection with an application for Ministerial relief.
[75] After listing the relevant questions to be addressed in a Briefing Note for the Minister, the Guidelines conclude by stating that:
The recommendation should include a supporting rationale.
The rationale should demonstrate a thorough assessment and balancing of all factors relating to the entry into Canada of the person in accordance with the explanation of national interest as noted in Section 13.6 of this chapter.
[76] In this case, the documentation provided to the Minister consisted of the four-page Briefing Note, as well as copies of the relevant legislation, background information regarding the PFLP, and copies of all of Mr. Al Yamani’s submissions.
[77] A review of Mr. Al Yamani’s submissions discloses that one of his primary arguments was that his continued presence in Canada would not be contrary to the national interest, in light of his renunciation of violence as a means of effecting political change in the Middle East, and his commitment to achieving a peaceful solution to the problems between the Israeli and the Palestinian people.
[78] In addition to his own sworn evidence to this effect, Mr. Al Yamani provided numerous letters from many individuals, including academics and members of both the Jewish and Arab communities, in support of this submission.
[79] These documents are replete with references to Mr. Al Yamani’s moderate political views, and to his commitment to achieving a peaceful solution to the situation of the Palestinian people. There are also references to Mr. Al Yamani’s collaborative work with Jewish organizations to this end.
[80] This sort of evidence is clearly to be considered in assessing an application for Ministerial relief. In this regard, I note that the Guidelines identify the following question as one of relevance to such applications: “Has the person adopted the democratic values of Canadian society?”
[81] In order to answer this question, the Guidelines identify several additional questions to be addressed, including:
- What is the applicant’s current attitude towards the regime/organization, his membership, and his activities on behalf of the regime/organization?
- Does the applicant still share the values and lifestyle known to be associated with the organization?
- What is the applicant’s current attitude towards violence to achieve political change?
- What is the applicant’s attitude towards the rule of law and democratic institutions, as they are understood in Canada?
[82] A review of the Briefing Note in this case discloses that it fails to address this aspect of Mr. Al Yamani’s submission, or to address any of the questions identified in the Guidelines which are designed to determine the extent to which an applicant has adopted the democratic values of Canadian society.
[83] In this regard, the Briefing Note states simply that:
Mr. Al Yamani has submitted several documents of support from individuals in his community and he appears to be a valued member of the community. He has many supporters who refer to him as a devoted family man, a political activist and a hard worker.
[84] This statement is true, as far as it goes, but completely ignores the recurring theme in the letters of support: namely that Mr. Al Yamani is now a man of moderate political views, who does not now support violence as a means of effecting political change in the Middle East, and who is committed to achieving a peaceful solution to the problems of the Palestinian people.
[85] This flawed approach is carried forward in the “Recommendation” portion of the decision, where it is noted that:
Mr. Al Yamani does not appear to have been active during the past 14 years. However, it is logical to assume that the scrutiny he has been subjected to from Canadian authorities has discouraged him from being actively involved with the group. He could resume his activities if granted Canadian citizenship.
[86] Here too, there is no reference to, nor any attempt to come to grips with the considerable body of evidence put forward by Mr. Al Yamani regarding his separation from the PFLP, and his current belief in non-violence as a means of resolving the situation of the Palestinian people, both of which would arguably prevent him from becoming active in the PFLP in the future.
[87] As I observed earlier in this decision, the Minister has considerable discretion in determining whether the granting of Ministerial relief in a given case is in Canada’s national interest.
[88] However, in order for the Minister to be able to make an informed decision in this regard, the Briefing Note prepared for the Minister must properly address the facts of the case, the submissions of the applicant, and the relevant factors identified in the Guidelines. This is especially so where, as in this case, the Minister adopts the Briefing Note as his reasons.
[89] As noted previously, a central thrust of Mr. Al Yamani’s application for Ministerial relief was his renunciation of violence and his commitment to finding a peaceful resolution of the Palestinian issue.
[90] The Ministerial Guidelines specifically identify the commitment of the individual to the democratic values of Canadian society, and the current attitude of the applicant towards violence as a means of achieving political change as relevant considerations to be weighed in the balance in assessing an application for Ministerial relief.
[91] While it is by no means necessary for the Minister to address each and every one of the many different factors identified in the Guidelines in each and every application for Ministerial relief, those factors that are central to the grounds being advanced in support of a particular application must be addressed.
[92] It is not the function of this Court sitting in judicial review of a discretionary decision such as this to re-weigh the evidence that was before the Minister, and to substitute its own opinion for that of the Minister: see Suresh at ¶ 34. Indeed, it was open to the Minister to ascribe whatever weight he deemed appropriate to the evidence regarding Mr. Al Yamani’s current political views, and his alleged commitment to non-violence.
[93] However, in order to thoroughly assess and balance all of the factors relevant to Mr. Al Yamani’s application for Ministerial relief, the plethora of evidence in relation to this clearly relevant factor had to at least be addressed. The failure to do so in this case amounts to a reviewable error.
[94] As a result, the decision must be set aside, and the matter remitted to the Minister for re-determination.
[95] In light of my conclusion on this issue, it is unnecessary to address Mr. Al Yamani’s final issue relating to whether the Minister erred in allegedly making a credibility finding without having either cross-examined Mr. Al Yamani on his affidavits or provided him with an interview.
Conclusion
[96] For these reasons, Mr. Al Yamani’s application is allowed.
Certification of a Question
[97] Counsel for Mr. Al Yamani proposed the following question for certification:
Is it a breach of the duty of procedural fairness for the Minister not to provide his own reasons?
[98] Counsel proposed a similar question for certification in the Miller case. In that case, the Chief Justice declined to certify the question as, in his view, there was no uncertainty in the law that would benefit from clarification by the Federal Court of Appeal.
[99] The Chief Justice was further of the view that the Miller proceeding did not properly lend itself to the certification of a question in view of the pronouncement of the Supreme Court of Canada in Baker that acknowledged that “the flexibility” required in the administrative law context and that fair procedures and open decision-making must recognize “the day-to-day realities of administrative agencies” and that “… transparency may take place in various ways”.
[100] I see no basis for coming to a different conclusion in this case, and accordingly decline to certify the question.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This application for judicial review is allowed, and the matter is remitted to the Minister of Public Safety and Emergency Preparedness for re-determination; and
2. No serious question of general importance is certified.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2414-06
STYLE OF CAUSE: ISSAM AL YAMANI v.
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, ET AL
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 28, 2007
APPEARANCES:
Barbara Jackman FOR THE APPLICANT
Rhonda Marquis FOR THE RESPONDENTS
SOLICITORS OF RECORD:
JACKMAN AND ASSOCIATES
Toronto, Ontario FOR THE APPLICANT
JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENTS