Complicity in Article 1FA Cases

In 2013, the Supreme Court of Canada in Ezokola v. Canada (Citizenship and Immigration) created a new test for determining Article 1F(a) exclusions.

Article 1F(a) of the 1951 Refugee Convention provides that:

The provisions of this Convention shall not apply to any person with respect to whom there  are serious reasons for considering that:

(a)  He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

The issue that Ezokola addressed is how broad Article 1F(a) is.  It if it interpreted too narrowly, then Canada risks creating safe havens for perpetrators of international crimes.  If it is read too broadly, then the humanitarian aims of the 1951 Refugee Convention would be imperilled.

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Four Case Comments (Including Agraria)

Agraria v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36

This is a Supreme Court of Canada decision so there is much to take from it, and I will barely be able to begin to scratch the surface in this post.

Mr. Agraria submitted an IRPA s. 34(2) application for ministerial relief in 2002.  The Minister of Public Safety and Emergency Preparedness refused this application in 2009, concluding that it was not in the national interest to admit individuals to Canada who had had sustained contact with known terrorists and/or terrorist-connected organizations.  Mr. Agraria’s role in the organization was apparently to engage people in political discourse, deliver envelops, and raise funds.  The Canada Border Services Agency actually recommended to then Minister that he admit Mr. Agraria, as, in their words:

He appears to have been a regular member who did not occupy a position of trust or authority within the LNSF.  He does not appear to have been totally committed to the LNSF specifically as he indicated to the immigration officer at CIC Oshawa that he would support anyone who tried to rmeove the current regime in Libya through non-violent means.

The Minister overruled his Department, and determined that it was not in the national interest to admit him.

(The above scenario raises two questions about current policy.  The first is that Mr. Agraria was determined inadmissible to Canada for security reasons in 2002.  Yet, he was allowed to remain in the public while the Minister took seven years to process his application.  If the Canadian government truly believed that this individual was a possible threat to the public, you’d think they would have either detained him or acted sooner.  And, if they didn’t think he was a threat to the public (as their actions imply), then what is the point of declaring him inadmissible?  Is one of the objectives of Canada’s immigration system to punish people for their past?)

In determining that the Minister’s decision was reasonable, the Supreme Court addressed two issues.  The first was what the appropriate standard of review was.  The second was the interpretation of the term “national interest” in s. 34(2) of IRPA.

On the issue of the standard of review, the Supreme Court determined that the appropriate standard was reasonableness.  In my opinion, the Supreme Court of Canada has basically thus indicated that the standard of review for questions of law in immigration matters is reasonableness.  The Supreme Court stated that “because such a decision involves the interpretation of the term “national interest” in s. 34(2), it may be said that it involves a decision maker “interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity.”

In my opinion, if the standard of review for questions of law in immigration law becomes reasonableness than applicants are going to find themselves faced with the same uncertainty as with what the residency test for citizenship is.   Different tests for what an IRPA section means are going to arise, and applicants will be left to the mercy of who the officer deciding the application is.  The Federal Court has decried this state of affairs on numerous occasions, and, unfortunately, it looks like it is going to spread to other areas of immigration law.

The Supreme Court also reiterated that “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, the Dunsmuir criteria are met.  As well, administrative tribunals do not have to consider and comment upon every issue raised by the parties.  The issue is whether the decision is reasonable based on the record.

The Supreme Court then took it a step further, creating an “implied interpretation”  notion.  Hence, even though the Minister argued that his analysis of national interest did not require him to consider humanitarian & compassionate consideration, the Supreme Court said that because the Minister wrote that he determined “all the material” that it could be implied that he interpreted humanitarian & compassionate considerations.  In addition to the Court seeming to tell the Minister that he considered something even though his lawyers argued to the Supreme Court that he didn’t need to consider it (and, thus, presumably, didn’t) the Court appears to have tossed aside the long standing principle that while administrative tribunals need not address every issue raised by a party, the more central the issue is to the decision the greater the requirement on a tribunal to address it.

In light of Bill C-43 receiving Royal Assent, section 34(2) of IRPA no longer exists, so I will not discuss the Supreme Court’s decision on the now non-existent section in much detail.

It is worth noting that the Supreme Court remarked that an applicant who fails a 34(2) test can always apply for H&C.   Of course, this is also not the case any more as a result of Bill C-43 individuals inadmissible to Canada under s. 34(1) of IRPA can no longer request humanitarian & compassionate considerations.

El Werfalli (Citizenship and Immigration), 2013 FC 623

The debate over what constitutes membership in a terrorist organization that results in a IRPA 34(1) inadmissibility continues.  The Respondent drew on the Al Yamani decision, arguing that:

It is also important to note that a foreign national or permanent resident is inadmissible under paragraph 34(1)(f) of the IRPA irrespective of whether to membership in that organization occurred at a different time than the period of time during which the organization engaged in acts of terrorism.

However, in a statement that I’m sure took the Respondent by surprise, the Court faulted the Immigration and Refugee Board for not asking whether there was any nexus between the applicant’s membership in the organization and the organization’s involvement in terrorist activity.

The Court stated:

The question before the Board was whether section 34(1)(f) applied to an individual who had worked for and therefore was a member of an organization that had no association with terrorist activity but became associated with terrorist activity after the membership had ended.

The difficulty arising from the Board’s interpretation of s. 34(1)(f) is to associate individuals with future terrorism  retroactively to the period of their membership, without any regard to honest and lawful participation at the time of the membership. In effect, any permanent resident or foreign national who is a member of any organization, by this interpretation of s. 34(1)(f), has a Sword of Damocles suspended indefinitely over his or her head should the organization they once had been a member become engaged in terrorist activities in the future.

The Court further held that if an individual joins an organization that is not engaged in terrorism or has not engaged in terrorism in the past, then there cannot be any adverse implication that can be drawn from the individual’s membership in the organization, and (to paraphrase) Parliament could not have intended that a person who joins a group which at that time had never committed terrorism, and did not commit terrorism during that individual’s membership, would be inadmissible to Canada.

As well, the Court affirmed that the renunciation of terrorism by an organization before an individual joins is considered to transform the organization, and not give rise to a 34(1) inadmissibility.

Ghaffari v. Canada (Citizenship and Immigration), 2013 FC 674

This case is a reminder of why I always read (and sometimes blog about) Supreme Court of Canada decisions in criminal law.  In this case the Court ruled that the visa officer improperly applied the Ryan test for duress (which I blogged about here) in determining that an individual was inadmissible to Canada for security grounds.

Iqbal v. Canada (Citizenship and Immigration), 2013 FC 630

This decision is a reminder of how important it is to have clear reference letters which state job duties even if the job title obviously implies what the duties are.  The relevant paragraphs are:

The applicant submitted the following to demonstrate his work experience as a cook:

  • an “Apprenticeship Certificate” from the Days Inn Karachi stating that from October 15, 2003 to October 14, 2005 he completed an apprenticeship program as a cook for Pakistani and Indian food and that at the end of his apprenticeship, the executive chef found him to be fully qualified in the preparation of a variety of Pakistani and Indian snacks, dishes, breads, and desserts;
  • a letter from the Days Inn Karachi restaurant dated October 18, 2007, attesting to his employment as a cook from November 2005 to September 2007;
  • documentation from the Creek-Inn dated November 16, 2010 attesting to the fact that he was employed as a cook in the restaurant since November 2007 and prepared a variety of Pakistani and Indian cuisines, different types of desserts, etc.;
  •  photographs of himself at work.

The applicant submits the evidence before the officer showed that he performed eight out of the nine main duties listed under NOC 6242. In addition to the letters from the Days Inn and Creek-Inn, the applicant bases this assertion on the photographs he says were before the officer, as well as his statements in his application form and assumptions that can be made about the tasks of a cook. However, I agree with the following statement by Justice Marie-Josée Bédard in Ismaili v The Minister of Citizenship and Immigration, 2012 FC 351, at paragraph 23:

The applicant argues that the duties of a pilot are obvious and that the immigration officer is expected to know what they are. This argument requires that the immigration officer assume that a pilot for Gulf Air performs the duties as described in NOC 2271. With respect, an immigration officer should not determine whether an applicant’s work experience corresponds to the lead statement and main duties set out in the NOC for an occupation based on his personal knowledge of an occupation or on the personal knowledge that an applicant imputes to the immigration officer. Immigration officers must assess applications based on the evidence that applicants put forward and not on their own personal knowledge or assumptions. In my view, this is the only rigorous, fair, cohesive and coherent approach to assessing whether an applicant has performed the main duties of any position described in the NOC.

The relevant documentary evidence the applicant put forward in the present case only mentioned work experience for one of the main duties listed in the occupational description for NOC 6242: the preparation and cooking of “complete meals or individual dishes and foods”. I cannot agree with the applicant that it was unreasonable based on the minimal evidence submitted that the officer found the applicant had not established that he had work experience in some or all of the duties listed in the occupational description. As noted by the respondent, subsection 16(1) of the Act requires that when making an application, an applicant must produce all relevant evidence and documents that the officer reasonably requires.