Wednesday, March 31, 2010


Here is the clip of my appearance last week on CTS Television "On the Line" with Christine Williams.

CTS Television: Online Video Player




Immigration bill to hasten decisions, deportations

Norma Greenaway and David Akin, Canwest News Services

Vowing not to cave to the "enemies of reform," Immigration Minister Jason Kenney proposed $540-million worth of new measures yesterday to overhaul the system for dealing with refugee claims from foreigners who arrive on Canadian soil.
Mr. Kenney said the changes, once implemented, will cut the time it takes for a refugee claimant to get a hearing to two months from the current 19 and reduce to about two years from the average 4½ years the time it takes to evict a rejected applicant.
A total of $1.6-million of the new money has been earmarked for clearing the backlog of 60,000 asylum seekers.
"Our generosity is too often abused by false refugee claimants," Mr. Kenney told a news conference. "The system is full of opportunities for appeal, and we are streamlining that process."
The shorter timelines would be achieved by allowing trained public servants to make the first call on a refugee claim and limiting avenues of appeal currently open to those whose claims are rejected.
Mr. Kenney said the new limits on appeals are offset by the government's decision to create a new refugee appeal division, which would be charged with reviewing the first-level decision within four months and allowing new evidence to be submitted. Government appointees would staff the division.
One measure that already has refugee advocates, as well as some opposition politicians on high alert, would allow the immigration minister to designate a list of "safe" countries of origin.
Refugee claimants from those "safe" countries would not have the right to appeal to the new division. Their only recourse would be the Federal Court of Canada.
Mr. Kenney billed the safe country designation as a necessary tool to counter any spikes in refugee claims from democratic countries with a robust human rights record.
As it stands now, Mr. Kenney said, the government has to resort to imposing visa requirements when claims surge from individual countries, as it did last year for visitors from Mexico and the Czech Republic, a tactic that, he said, can undermine diplomatic and commercial relations.
Mr. Kenney said the list of safe countries would be drawn up after receiving advice from an independent panel and the United Nations Commissioner for Refugees.
New Democrat MP Olivia Chow embraced elements of the reform package that would speed hearing claims and deportations of failed claimants, but denounced the safe country idea as unfair.
"We want fair and fast," said Ms. Chow, the party's immigration critic.
Bloc Quebecois MP Thierry St-Cyr accused Mr. Kenney of sacrificing justice by allowing refugees to be judged based on their country of origin and creating two categories for people seeking asylum.
Janet Dench of the Refugee Council of Canada agreed.
"Refugee determination should be done on the individual facts of the case, not the country of origin," Ms. Dench said in an interview from Montreal.
Gloria Nafziger, refugee coordinator for Amnesty International, said the government was opening a political minefield with the safe country proposal.
"It's highly problematic," Ms. Nafziger said. "We are a human rights organization and we have never tried to rank countries by the depth of their human rights abuses."
Liberal MP Maurizio Bevilacqua, the party's immigration critic, described the reform package as "a good start" and said he looks forward to more detailed study when it gets to committee.
Mr. Bevilacqua said Liberals want more information on how the safe countries will be selected, and assurances the money earmarked for such things as hiring more officers for the Canadian Border Service Agency to track down and oust failed refugee claimants from Canada will actually be used for that purpose.
The $540-million funding for the reforms--which will be spread over five years -- won't be tapped until the legislation becomes law, something that is not expected to happen until next year at the earliest.
Mr. Kenney said the savings will be substantial under the new process. It now costs about $50,000 in health and social service costs for each failed refugee claimant, a sum that should fall to about $29,000 under the new and speedier system, Mr. Kenney said.
Other elements of the package:
-Rejected claimants would have severely restricted access to the options of winning a reprieve on compassionate and humanitarian grounds, or on grounds they would be subjected to severe persecution and possibly death upon return to their native country.
-A four-year pilot project to encourage voluntary departure by rejected claimants that, among other things, would provide each participant with a plane ticket back to their country of origin, and provide $2,000 to a service provider in that country to facilitate the failed claimant's reintegration into that society.
-A public servant will help a refugee claimant gather all relevant information for an initial hearing before the refugee board within eight days of the claim being made. The current system gives a claimant 28 days to fill out a long form.

Monday, March 29, 2010


Ottawa to unveil proposals to reform refugee system

Ottawa to unveil proposals to reform refugee system

By Norma Greenaway, Canwest News Service
March 28, 2010

Canada's Immigration Minister Jason Kenney speaks during Question Period in the House of Commons on Parliament Hill in Ottawa March 8, 2010.
Photograph by: Chris Wattie, Reuters
OTTAWA — Immigration Minister Jason Kenney will unveil long-awaited proposals to reform Canada’s refugee system this week in what he has portrayed as a serious bid to speed the approval process for legitimate asylum-seekers while clamping down on abuse of the system.
Kenney plans a two-day roll out of the proposed initiatives, beginning Monday at a news conference at the Catholic Immigration Centre in Ottawa. On Tuesday, he is expected to introduce the legislative package to implement the changes, his office said Sunday.
Among other things, the package is expected to speed the initial handling of refugee applications by using trained federal civil servants to do the initial assessment, as opposed to the current system where applications are heard by a one-man refugee board. It would be part of a new system to fast-track applications from a list of so-called “safe” countries where human and democratic rights are deemed to be honoured.
Officials say the new system would still provide asylum from such “safe” countries to citizens who can demonstrate they are persecuted. They say the government has taken into account that women, gays and lesbians and other minorities can face persecution even in democracies.
The “safe” country idea is among the most controversial of the measures that will likely be proposed this week. The Liberals have indicated they are open to the idea, but the New Democrats and Bloc Quebecois are opposed.
The reform package is likely to generate fierce debate in the minority Parliament and across the country, with several refugee organizations vowing to dig in to keep the system as open and fair as possible. One of the big questions hanging over Kenney’s head is how much money the government is willing to earmark for the changes, including a stepped up effort by the Canada Border Services Agency to make sure rejected claimants are removed quickly from Canada.
Kenney has said the government is determined to come up with a system that will speed the 18 to 20 months it now takes for asylum claims to be heard, thereby reducing the 60,000 backlog in claimants still waiting to get their day before the Immigration and Refugee Board. The legislation will still allow claimants to resort to the courts if the board rejects their claim, but it is expected to reduce some of the appeals avenues.
The legislation caps a months long campaign by Kenney to persuade Canadians the system is broken, and overly generous to “bogus” claimants, as he puts it. Canada accepts about 40 per cent of all claims, a higher percentage than many other industrialized countries.
Kenney brought attention to what he called a major flaw in the system when he decided last summer to force visitors from Mexico and the Czech Republic to obtain visitors visas before entering the country after there was a sharp spike in refugee applications from Mexicans and Czech citizens as soon as they landed in Canada. He has warned the numbers coming in from Hungary also are unacceptably high, but so far has refrained from requiring visitors to have visas before arriving.

Saturday, March 27, 2010


One interesting caveat: it is unclear whether this "firm" is allowed to give advice in Canadian immigration matters, or if it is simply an unregistered outfit. Applicants should be reminded that under the Immigration and refugee Protection Act, only LAWYERS in good standing in Canada, Notaries from the province of Quebec, and consultants in good standing with CSIC can represent individuals in immigration matters. Beware of those who promise "fast" or "guaranteed" immigration to Canada!

Immigration firm fined for deficiency in service

Immigration firm fined for deficiency in service

Express News Service Posted online: Saturday , Mar 27, 2010 at 0355 hrs

Chandigarh : The District Consumer Disputes Redressal Forum-II has asked an immigration firm in Sector 34 to pay a compensation of Rs 15,000 for causing physical harassment, mental agony and pain to the complainant who had paid the agency a huge sum to process his case for immigration to Canada .
The sector 34 firm, Rimwea Carrier Forum, was asked to pay a sum of Rs 20,000 charged by them as initial charges, a sum of Rs 23,100 that the complainant had deposited with the Canadian Embassy on their advice as Initial Assessment Fee and a compensation of Rs 15,000 for causing physical harassment, mental agony and pain, along with a sum of Rs 5,000 as litigation cost.
A residence of Sheikhpur Bagh in Nawanshahr, Hardev Singh had alleged that he was lured by a flashy advertisement of the firm with high claims about providing consultation and documentation for immigration. Hardev, who was interested in seeking immigration to Canada as a skilled worker, approached them along with the required documents. After checking his eligibility, he was told to apply for immigration, as he fulfilled the requirement of the Embassy of Canada and was told that his case would be processed within four months.
Believing their words, he applied for the immigration. A total fee of Rs 60,000 was to be charged from him and an initial amount of Rs 20,000 was deposited by him in the office of the firm on March 18, 2009. Hardev told the Forum that he had arranged the desired documents and paid 550 Canadian Dollars (Rs 23,100 in Indian currency), after borrowing the money.
The complainant alleged that despite repeated requests, representations, reminders and personal visits, the firm failed to process his file within the requisite time of 120 days. The forum ruled that the firm showed deficiency in its services and caused mental agony to the complainant.

Thursday, March 25, 2010


This is the decision previously reported in the press, concerning an Iranian scientist who was denied residency in Canada based on allegations that he was connected to the Iranian nuclear program. What I find curious and troubling is that, if CSIS had any concerns about him, why was he allowed to work at the National Research Council? How did he obtain his Work Permit without anyone noticing that there could be some serious concerns about his activities in Iran? Should these positions be reserved for permanent residents and citizens? Was there incompetence in this file? Something does not add up in this matter.

Jahazi v. Canada (Minister of Citizenship and Immigration)

BetweenMohammad Jahazi, Nargues Behnaz Mortazavi-Izadi, Hamed Jahazi,Applicants, andThe Minister of Citizenship and Immigration, Respondent

[2010] F.C.J. No. 271
2010 FC 242Docket IMM-3968-08 Federal CourtToronto, Ontariode Montigny J.Heard: January 29, 2010.Judgment: March 2, 2010.
(80 paras.)


1 de MONTIGNY J.:-- This is an application for judicial review of a decision of immigration officer Andrée Blouin, dated August 14, 2008, who refused the Applicant's application for permanent residence due to a determination of inadmissibility on security grounds pursuant to section 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). Mr. Jahazi, an Iranian citizen, is a highly regarded scientist who has been employed in high level research at the National Research Council ("NRC"). He left Canada on December 16, 2008, at the expiration of his last temporary work permit.
2 Prior to the hearing of the judicial review application, the Minister of Citizenship and Immigration (the "Minister") applied under section 87 of IRPA for the non-disclosure of certain information considered and relied upon by the officer in making her determination. Counsel for the Applicant did not object to that motion, but sought the appointment of a Special Advocate to represent the interests of Mr. Jahazi. The ex parte and in camera hearing of that motion took place on August 25, 2009. Subsequently, both parties were heard by way of teleconference on the section 87 motion and on the motion to appoint a Special Advocate on October 19, 2009. On October 26, 2009, I ordered that the section 87 motion of the Respondent be granted, and that the motion of the Applicant to appoint a Special Advocate be dismissed. At the time, I gave brief oral explanations for my decisions and indicated that more extensive reasons would be provided with my reasons on the merit of the application for judicial review submitted by Mr. Jahazi.

I. Background

3 The Applicant was born in 1959. In 1977, he left Iran to study in France. He obtained an engineering degree in 1984 and a Master degree in 1985. He then moved to Canada to do his Ph.D. at McGill University; he graduated in 1989 and was ranked on the Dean's honour list. In the meantime, he married Mrs. Narges Behnaz Mortazavi Izadi in 1987, with whom they later had two sons (one to be born in Canada in 1989, the other in Iran in 1993).
4 After briefly working at McGill University as a researcher, the Applicant returned to Iran with his family in 1990. He was hired first as an assistant professor, and then as an associate professor (in 1996), at Tarbiat Modarres Univesity ("TMU"), where he taught in his field of expertise (materials). While still a professor at TMU, he also worked two days a week at the Iranian Research Organization for Science and Technology ("IROST") between 1998 and 2000, where he was a Deputy Director for research and technology.
5 The Applicant came back to Canada in 2001, on a work permit, after being offered a research position at McGill University. Shortly afterward, he also applied and obtained a senior position (Group leader) at the Institute for Aerospace Research of the NRC. He came to Canada with his wife and two children.
6 The Applicant applied for permanent residence in September 2001, and he was interviewed (with his wife) for the first time at the Canadian Consulate in Buffalo, New York, on June 27, 2003. After a lengthy delay in the treatment of his file and the intervention of the Applicant's Member of Parliament to accelerate the process, a first decision was finally rendered on May 25, 2005. The Applicant's permanent residence application was refused pursuant to section 34(1)(f) of IRPA. The Applicant sought judicial review of that decision. After leave was granted, the Minister agreed to reconsider his application; the application for judicial review was therefore discontinued, and Mr. Jahazi's application for permanent residence was sent back for redetermination by a different officer.
7 A second interview of the Applicant took place in the Canadian Consulate in Buffalo on April 17, 2008, first with two officers of the Canadian Security and Intelligence Service ("CSIS"), and then with immigration officer Blouin. He maintained throughout his interview that his professional duties in Iran were very junior, that his presence in Canada was beneficial to Canada, and that he was never asked to provide information to Iranian authorities and did not know any Iranian diplomat.
8 By letter dated July 3, 2008, Ms. Blouin further asked the Applicant to give details with respect to: 1) his contacts with Iranian diplomats posted abroad; 2) whether he had ever been asked to provide information on Iranian citizens while he was living outside of Iran; 3) whether he had ever been made aware or approved research projects on biological weapons or weapon of mass destruction while he was a professor at TMU or during his mandate at IROST; and 4) whether he had ever facilitated linkages between researchers and firms with a view to build such weapons. In concluding her letter, Ms. Blouin explicitly appraised the applicant of her concerns in the following terms:
J'aimerais vous rappeler la raison pour laquelle nous vous avons revu en entrevue : compte tenu de votre cheminement et de vos activités professionnelles en Iran et au Canada, nous croyons que vous avez entretenu des rapports particuliers avec le Gouvernement iranien, que ce soit en lui transmettant de l'information sur des concitoyens ou en favorisant des recherches sur les armes de destruction massive, nucléaires ou biologiques.
Par conséquent, vous pourriez être interdit de territoire pour le Canada selon l'article 34(1)(a) et/ou 34(1)(f).
9 The Applicant answered Officer Blouin's concerns by letter dated July 8, 2008, denying once more any special connection with the Iranian government or any military research project, and any membership in any organization.
10 The Applicant's application for permanent residence was refused by letter dated August 14, 2008. Mr. Jahazi was found to be inadmissible under s. 34(1)(f). It is this decision that is currently under review.

II. The impugned decision

11 The Officer found the Applicant inadmissible because she had reasons to believe that he had taken part in different kinds of subversive activities and that he had associated with groups that were engaged in terrorist activities. The Officer also indicated she had confidential information that supporting her belief that the Applicant had furnished information about dissidents to the Iranian government during the time he was studying in both Europe and Canada and that he had participated in the arms effort and in subversive activities related to the military regime in Iran.
12 The basis for the officer's conclusion, as set out in her decision letter, was that the Applicant had tried to minimize his responsibilities at TMU and at the IROST. She noted that he was appointed as a professor at TMU at a young age, and that professors and students at this newly created university were carefully selected by the government. She added that the regime had good reasons to believe that he supported the Iranian government's ideology despite the fact that he had been outside of the country for 12 years, and she was therefore convinced that he had been of use to the Iranian government by gathering information on dissidents during his studies.
13 The Officer indicated that it is well known TMU is under the control of the Iranian Revolutionary Guards Corps ("IRGC"). Although the Applicant spent many years in the western world, he benefited from a privileged treatment at TMU and his responsibilities never ceased to grow until 2000. She went on to note that the Applicant had participated in the selection of projects, had supervised students, had twinned young researchers and enterprises, and had been seconded to the IROST. During those years, she wrote, the IRGC had armed terrorist groups in the Middle East, and the IROST has been accused of implication in the making of weapons of mass destruction.
14 Within the Computer Assisted Immigration Processing system (CAIPS) notes, the Officer points out that this information was obtained through an internet search about the IROST organization. She quotes Iran Watch as stating:
Affiliated with the Ministry of Culture and Higher Education of Iran; established in 1980 to support and train researchers by providing scientific and administrative facilities and the possibility of collaborative research opportunities; listed by the Japanese government as an entity of concern for biological, chemical and nuclear weapon proliferation; identified by the British government in February 1998 as having procured goods and/or technology for weapons of mass destruction programs, in addition to doing non-proliferation related business; reportedly acted as a front for the purchase of fungus for producing toxins from Canada and Netherlands.
15 Further down in the CAIPS notes, the Officer wrote:
Les sites internets, tels que JANE, Iranwatch, Wisconsin project on nuclear arms control lient l'Université et le Regime Iranien, et les IRGC et la recherche universitaire, et mentionnent que les IRGC sont impliques dans la vente d'armes a des organisations terroristes, qu'ils entrainent des membres d'organisation terroristes, et financent ces organisations. Il semble que le candidat soit tombe en disgrace vers la fin des annees 90. Il ne veut plus retourner en Iran.
16 Finally, the Officer noted in her refusal letter that the Applicant's credibility was challenged during the interviews with CSIS officers. In the CTR, a CSIS brief dated May 28, 2008 explains the credibility concerns mentioned by Officer Blouin. Apart from those already mentioned, the brief refers to a contradiction between the Applicant's statement to the effect that he travelled to Toronto only once and his wife's declaration in 2003 that he had been there on a number of occasions. A discrepancy was also noted between the Applicant denying ever travelling to China, and later acknowledging that he had been there for ten days on a scientific conference after having been asked to explain a stamp of entry and exit for China in his passport.
17 For all of those reasons, the Immigration Officer found Mr. Jahazi inadmissible pursuant to s. 34(1)(f) of IRPA and refused his application for permanent residence.
18 In his able submissions on behalf of Mr. Jahazi, Mr. Waldman raised the following four issues:
Did the Officer err in her application of s. 34(1)(f) because she failed to disclose the terrorist organization the Applicant was a member of and did not explain the nature of the subversive activity the Applicant was involved in?
Did the Officer breach the principles of natural justice by relying on information gathered from the internet that is inherently unreliable, and without giving the Applicant an opportunity to respond to it?
Did the Officer err in law by relying on confidential information that was also inherently unreliable and by not giving the Applicant an opportunity to discuss it?
Did the Officer make unreasonable inferences and findings of fact?
19 Before addressing these issues, however, I shall deal with the Respondent's motion for non-disclosure pursuant to section 87 of the IRPA and with the Applicant's motion for the appointment of a special advocate. I shall also consider some preliminary evidentiary issues raised by both parties, as well as the standard of review applicable to the four issues identified in the above paragraph.

III. Analysis

A. The section 87 application and the motion for the appointment of a special advocate
20 Section 87 is found in Division 9 (sections 76-87.1) of IRPA and provides a means by which the confidentiality of national security matters in immigration files can be ensured. Section 87 incorporates the provisions of section 83 with any necessary modifications. Paragraph 83(1)(c) provides that a judge shall, upon request of the Minister, hear an application for non-disclosure in the absence of the public and of the Applicant and his counsel if, in the judge's opinion, its disclosure could be injurious to national security or endanger the safety of any person.
21 The state has a considerable interest in protecting national security and the security of its intelligence services. The disclosure of confidential information could have a detrimental effect on the ability of investigative agencies to fulfil their mandates in relation to Canada's national security. The competing interests of the public's right to an open system and the state's need to protect information and its sources was discussed by the Supreme Court of Canada in Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3. In that case, the Supreme Court acknowledged that the state has a legitimate interest in preserving Canada's supply of intelligence information received from foreign sources and noted that the inadvertent release of such information would significantly injure national security: see in particular paras. 42-43 of that decision.
22 The Supreme Court and other courts have repeatedly recognized the importance of the state's interest in conducting national security investigations and that the societal interest in national security can limit the disclosure of materials to individuals affected by the non-disclosure: see, for ex., Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] S.C.J. No. 9, at para. 58; Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711, [1992] S.C.J. No. 27, at p. 744; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 , [2002] 1 S.C.R. 3, at para. 122; Ruby v. Canada (Solicitor General), above.
23 That being said, the Court of Appeal of England and Wales recently reiterated that in a country governed by the rule of law upheld by an independent judiciary, it is the courts that must ultimately determine whether and when the confidentiality principle essential to the working arrangements between allied intelligence services must give way to the interests of justice: see Mohamed, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2010] EWCA Civ 65 (10 February 2010).
24 In this proceeding, 27 of the 200-page CTR have been partially redacted on the ground that their disclosure would be injurious to national security or endanger the safety of any person. The procedure with respect to the Minister's application was the same as that adopted by my colleagues in similar applications. An in camera and ex parte hearing first took place, where the Court was able to question the affiant who swore the confidential affidavit supporting the application for non-disclosure. Counsels were subsequently invited to make submissions in open court (by way of teleconference). During that hearing, Mr. Waldman acknowledged that the Minister was entitled to bring his section 87 motion, and that he relied on the Court to determine, if the case had been made out, for non-disclosure.
25 In determining whether the disclosure of the redacted information would be injurious to national security or to the safety of any person, I relied on what has now become the locus classicus in Canadian jurisprudence on that issue, as articulated by Mr. Justice Addy in Henrie v. Canada (Security Intelligence Review Committee), [1989] 2 F.C. 229, [1988] F.C.J. No. 965 at para. 29-30:
[...] in security matters, there is a requirement to not only protect the identity of human sources of information but to recognize that the following types of information might require to be protected with due regard of course to the administration of justice and more particularly to the openness of its proceedings: information pertaining to the identity of targets of the surveillance whether they be individuals or groups, the technical means and sources of surveillance, the methods of operation of the service, the identity of certain members of the service itself, the telecommunications and cipher systems and, at times, the very fact that a surveillance is being or is not being carried out. This means for instance that evidence, which of itself might not be of any particular use in actually identifying the threat, might nevertheless require to be protected if the mere divulging of the fact that it is in fact subject to electronic surveillance or to a wiretap or to a leak from some human source within the organization.
It is of some importance to realize that an "informed reader", that is, a person who is both knowledgeable regarding security matters and is a member of or associated with a group which constitutes a threat or a potential threat to the security of Canada, will be quite familiar with the minute details of its organization and of the ramifications of its operations regarding which our security service might well be relatively uninformed. As a result, such an informed reader may at times, by fitting a piece of apparently innocuous information into the general picture which he has before him, be in a position to arrive at some damaging deductions regarding the investigation of a particular threat or of many other threats to national security. He might, for instance, be in a position to determine one or more of the following: (1) the duration, scope, intensity and degree of success or of lack of success of an investigation; (2) the investigative techniques of the Service; (3) the typographic and teleprinter systems employed by C.S.I.S.; (4) internal security procedures; (5) the nature and content of other classified documents; (6) the identities of service personnel or of other persons involved in an investigation.
26 Having duly considered the submissions made by counsel for the Respondent, the testimony of the affiant who swore the secret affidavit, and the documents that were filed on the public record and confidentially, I am satisfied that the disclosure of the redacted information would be injurious to national security or safety. I also determined that the non-disclosed information may be relied upon by the Minister and by the Court in ruling on the judicial review application.
27 As already mentioned, counsel for the Applicant vigorously argued for the necessity of appointing a special advocate. In his written submissions, he made much of the same arguments that he had put forward in Kanyamibwa v. Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 66, [2010] F.C.J. No. 59. They need not be dealt with here; to the extent that these arguments are generic in nature, they have been addressed at paras. 46 ff. of my reasons in that case.
28 At the hearing, however, Mr. Waldman stressed two factors to be taken into consideration. First of all, he submitted that the decision to refuse permanent residency to the Applicant will have a major impact on him and his family. Even if Mr. Jahazi has now left Canada with his family, he has lived here for eight years and his children have grown up here; indeed, his oldest son was born here during a previous visit to Canada. Moreover, the Applicant argues that he is a specialist in his field and could make an important contribution to Canadian industry; his application for permanent residence is therefore not principally motivated by a desire to improve his economic opportunities.
29 Secondly, Mr. Jahazi contended that the redacted information was extremely significant, as it presumably reveals the name of the organization of which he is alleged to be a member. In his view, he cannot be expected to refute such allegations, even if the allegations were entirely mistaken, without knowing the name of that organization.
30 Following the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, at paras 22-27 it is beyond dispute that the content of the duty of fairness must vary according to the specific context of each case. In Segasayo v. Canada (Minister of Public Security and Emergency Preparedness), 2007 FC 585, [2007] F.C.J. No. 792, Mr. Justice Pierre Blais (as he then was) outlined relevant factors when considering whether non-disclosure violates an applicant's right to procedural fairness. These factors, which are instructive in the case at bar, include the extent of non-disclosure, the nature of the rights at stake, and the materiality/probity of the information subject to the non-disclosure.
31 Applying similar considerations to the present case, the Court is of the view that the interests of fairness and natural justice do not require that a special advocate be appointed for the interests of the Applicant to be adequately protected. Despite the Applicant and his family's contentions that they have resided in Canada for eight years, the fact remains that the underlying application for permanent residence is an application submitted outside Canada. The Federal Court of Appeal has held that the duty of procedural fairness to applicants in such a situation is at the lower end of the spectrum: Khan v. Canada (Minister of Citizenship and Immigration), 2001 FCA 345, [2001] F.C.J. No. 1699, at para. 31.
32 Moreover, the Applicant and his family are not detained or facing removal, but are challenging the negative decision on their application for permanent residence made from outside Canada. Accordingly, their rights under s. 7 of the Canadian Charter of Rights and Freedoms are not engaged. I am not insensitive to the serious consequences of the visa officer's decision for the Applicant and his family; however, they Applicant has not satisfied me that this case is within the realm of fundamental rights to life, liberty and security of the person. The Supreme Court of Canada has made it clear that non-citizens do not have the right to enter or remain in Canada. There is no individual right at stake for an unqualified Applicant to enter Canada. The highly discretionary visa decision context militates against a broader content of procedural fairness claimed by the Applicants: Chiarelli, above, at p. 733; Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539, at para. 46.
33 Secondly, in contrast to the security certificate cases, the extent of non-disclosure in the present case is limited. There have been relatively minimal redactions from the CTR. As well, based upon the affidavits filed by the Applicant at various stages of this application for leave and judicial review, it is fair to say that he has had access to an overwhelming majority of the information on the record and is aware of the substance of the information relied upon by the visa officer.
34 A review of the CTR demonstrates that the amount of redacted information is very limited. Specifically, pages 11, 26, 30, 44, 82, 84 and 97 each contain less than one line of redacted information. Much of that information would be of little help to the Applicant. As Justice Noël observed in Dhahbi c. Canada (Ministre de la Citoyenneté et de l'immigration), 2009 CF 347, [2009] A.C.F. no 400, at para. 24, it is common practice in files of this nature to redact from the CTR investigative techniques, administrative and operational methods, names and telephone numbers of CSIS personnel, and information regarding relationships between CSIS and other agencies in Canada and abroad. Most of the redacted information in those pages would fall into that category. Moreover, information on page 85 and the first paragraph of page 86 were redacted, solely for purposes of relevance. Only 19 pages out of the total 201 pages in the CTR contain redactions of one line or more. Finally, the public information in the CTR shows that the pages containing those redacted portions consist, at least in part, of repetitious information.
35 Of course, assessing the extent of non-disclosure is not merely a quantitative exercise, it must also take into account the significance of the redacted information. While Mr. Jahazi would understandably like to know the name of the organization of which he is suspected of being a member, I am convinced that his ability to make his case to the visa officer does not turn on that piece of information. Having carefully read both the CTR and the redacted information, I am satisfied that the Applicant was made fully aware of the visa officer's concerns and was given ample opportunity to address these concerns. Not only was he interviewed twice, but he was also put on notice by letter sent to him before a final decision was made on the specific issues that were still on the visa officer's mind. Had he answered those questions to the satisfaction of the visa officer, Mr. Jahazi would have assuaged her suspicions with respect to his membership in any prohibited organization by the same token. In those circumstances, I am therefore in agreement with the Respondent that the interests of fairness and natural justice do not require the appointment of a special advocate.
B. Preliminary evidentiary issues
36 The Applicant argued that the CAIPS notes cannot be relied upon as proof of the underlying facts on which the officer's decision is based. Since the officer did not file an affidavit attesting to the truth of the contents of the CAIPS notes, they can form part of the record but the facts in dispute must be proven independently of these notes. Therefore, it is submitted that the Court must rely on the undisputed facts before it as outlined in the sworn affidavits of the Applicant and his wife. I agree with the Applicant that in the absence of an officer's affidavit attesting to the truth of what she or he had recorded as having been said at the interview, their notes cannot be relied on as evidence: Chou v. Canada (Minister of Citizenship and Immigration) (2000), 190 F.T.R. 78, [2000] F.C.J. No. 314, at para. 13; aff'd in 2001 CAF 299. The same is not true, however, of the various briefs and letters found in the CTR, these do not purport to report an interview or an oral conversation. The Court must therefore weigh the evidence emerging from the documentary record against the unchallenged sworn affidavits of the Applicant and his wife.
37 On the other hand, the Respondent submitted that some paragraphs of the Applicant's affidavit, sworn on November 14, 2009, relate to events subsequent to the decision on the Applicant's application for permanent residence. Thus, these paragraphs cannot be part of the material considered by this Court. It is indeed trite law that new evidence cannot be advanced by an applicant at the judicial review stage, except in very limited circumstances such as where procedural fairness is alleged; such circumstances are not found in the present case. See: M.R.A. v. Canada (Minister of Citizenship and Immigration), 2006 FC 207, [2006] F.C.J. No. 252, at paras. 13-14; Sarder v. Canada (Minister of Citizenship and Immigration) (1998), 153 F.T.R. 140, [1998] F.C.J. No. 1230, at paras. 2, 4.
38 As a result, paragraphs 2, 3, and 5 to 12 of the Applicant's affidavit sworn on November 14, 2009, cannot be part of the evidence considered by this Court on this application for judicial review. In any event, they are not relevant to the legal issues at stake here, they relate to the effects of the officer's negative decision on the Applicant and his family's application. Having said this, the Applicant's situation, as described in those paragraphs, can be taken into consideration in fashioning an adequate and effective relief, if the application is granted.
C. What is the appropriate standard of review?
39 The first question in this application raises issues of mixed fact and law. As such, it is reviewable against the standard of reasonableness: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9 at para. 53. The proper interpretation of paragraph 34(1)(f) of IRPA falls within the expertise of visa officers, whose role it is to examine the admissibility of applicants. They are therefore entitled to some deference in their application of the law to the specific facts of a case: see Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005] F.C.J. No. 381; Jalil v. Canada (Minister of Citizenship and Immigration), 2006 FC 246, [2006] F.C.J. No. 320.
40 As for the third and fourth issues, they clearly involve an assessment of the evidence, and as such, they are questions of fact also reviewable under the reasonableness standard. Accordingly, the Court must determine whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law, and must be concerned with the existence of justification, transparency and intelligibility within the decision-making process: Dunsmuir, above, at paras. 47-48.
41 Finally, both parties agree that the second question pertains to a breach of natural justice and must be reviewed on a correctness standard: Sketchley v. Canada (Attorney General), 2005 FCA 404, [2005] F.C.J. No. 2056; Canadian Union of Public Employees v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para. 100.
D. Did the visa officer err in her application of s. 34(1)(f)?
42 Counsel for the Applicant argued that the visa officer misconstrued the legislation and did not apply the appropriate legal test to the facts in this case. The officer found the Applicant inadmissible under s. 34(1)(f) because he has participated in subversive activities and because he was associated with groups involved in terrorist activities. According to the Applicant, this finding is seriously flawed in three respects.
43 First, it is contended that the officer did not make a clear finding that the Applicant was a member of a prohibited organization. Rather, she concluded that he was associated ("associé") with an unspecified organization. That would constitute an error, as membership requires more than a mere association with an organization. Counsel conceded that the concept of membership has been interpreted broadly; for that very reason, he argued that it should not be expanded even more by drawing within its ambit the notion of being associated.
44 Second, counsel for the Applicant submitted that the reasons are insufficient because they fail to indicate the group, that the Applicant is allegedly a member of, and that has engaged in acts of terrorism. Furthermore, to the extent that the reasons purport to allege that the Applicant was engaged in acts of terrorism, the reasons are said to be deficient for not disclosing the alleged acts.
45 Third, the Applicant claims that the officer erred by misinterpreting the requirements necessary for an act to constitute a "subversive activity" pursuant to section 34(1)(f) of IRPA. The officer believes the Applicant shared information with the Iranian government about dissidents while studying in Europe and Canada. But even if this were true, which the Applicant denies, this would not amount to subversive activities. Relying on Qu v. Canada (Minister of Citizenship and Immigration), 2001 FCA 399, [2001] F.C.J. No. 1945 counsel for the Applicant submitted that furnishing information about individual students does not constitute subversive activity because it has not accomplished any kind of change by illicit means nor has it been done for improper purposes related to an organization. Moreover, the officer did not identify any democratic institutions which could be undermined by the alleged sharing of information, and did not specify any actions involving force or any negative outcomes resulting from the transfer of information.
46 After having carefully read the visa officer's letter as well as the CTR, I have determined that she did not err in applying the test of membership to the Applicant's case. It is true, she did not explicitly state that the Applicant is 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) of paragraph 34(1). However, it is clear that this can be be inferred from her finding that he has been "associé" with such groups. After all, she did quote section 34(1)(a), (b), (c) and (f) just before coming to that conclusion, and she was well aware of the legal requirement. The fact that she rephrased her concerns using the word "associé" instead of "member" cannot be of much significance in this context.
47 Moreover, as pointed out by the Respondent, the concept of "membership" has received quite a broad and unrestrictive interpretation in the case law. In Poshteh, above, the Federal Court of Appeal held as follows:
[27] There is no definition of the term "member in the Act. The courts have not established a precise and exhaustive definition of the term. In interpreting the term "member" in the former Immigration Act, R.S.C. 1985, c. I-2, the Trial Division (as it then was) has said that the term is to be given an unrestricted and broad interpretation. The rationale for such an approach is set out in Canada (Minister of Citizenship and Immigration) v. Singh (1998), 151 F.T.R. 101 at paragraph 52 (T.D.):
[52] The provisions deal with subversion and terrorism. The context in immigration legislation is public safety and national security, the most serious concerns of government. It is trite to say that terrorist organizations do not issue membership cards. There is no formal test for membership and members are not therefore easily identifiable. The Minister of Citizenship and Immigration may, if not detrimental to the national interest, exclude an individual from the operation of s. 19(1)(f)(iii)(B). I think it is obvious that Parliament intended the term "member" to be given an unrestricted and broad interpretation.
[28] The same considerations apply to paragraph 34(1)(f) of the Immigration and Refugee Protection Act. As was the case in the Immigration Act, under subsection 34(2) of the Immigration and Refugee Protection Act, membership in a terrorist organization does not constitute inadmissibility if the individual in question satisfies the Minister that their presence in Canada would not be detrimental to the national interest. (...)
[29] Based on the rationale in Singh and, in particular, on the availability of an exemption from the operation of paragraph 34(1)(f) in appropriate cases, I am satisfied that the term "member" under the act should continue to be interpreted broadly.
See also: Almrei (Re), 2009 FC 1263, [2009] F.C.J. No. 1579; Chiau v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 642, [1998] F.C.J. No. 131, aff'd in [2001] 2 F.C. 297; Qureshi v. Canada (Minister of Citizenship and Immigration), 2009 FC 7, [2009] F.C.J. No. 3, at paras. 22-23; Denton-James v. Canada (Minister of Citizenship and Immigration), 2004 FC 1548, [2004] F.C.J. No. 1881, at paras. 12-15.
48 The Applicant submitted that there is no evidence to support the legislative requirement in section 34 of IRPA that he be a member of an organization engaged in terrorist or subversive activities, and that no such organization has been clearly identified. I do not agree. The evidence before the officer included confidential reports that point to the Applicant being a member of a specific organization. It is clear from pages 43, 44, 52, and 55 of the CTR that the officer had before her the name of the organization of which the Applicant was alleged to be a member. There was also evidence supporting such a finding. The fact that portions of that information were redacted for reasons of national security did not prevent the officer from taking it into consideration. As already mentioned, the Applicant was not prejudiced by not knowing the name of that organization. He had every opportunity to disabuse the officer of her concerns, especially with respect to his involvement with the Iranian authorities. According to a CSIS brief dated May 28, 2008, he was specifically asked in his April 17, 2008 interview whether he had ever been approached by the Iranian Intelligence Service, whether he had contact with Embassy personnel in Canada, whether he had links with various Islamic student associations, and what his role was at TMU and IROST. The knowledge of the specific organization of which he was eventually found to belong could not have materially modified the substance of his answers, especially since he denied any involvement with a subversive or terrorist organization.
49 Finally, the Applicant's contention with respect to the officer's misinterpretation of "subversive activities" must also be rejected. The premise of the Applicant's argument is that the officer likened sharing of information about dissidents with the Iranian government to subversive activities. I do not agree. This was not at all the basis for the officer's negative decision with respect to Mr. Jahazi's application for permanent residence. It is significant that the officer did not base her finding of inadmissibility on paragraphs (a), (b) or (c) of section 34(1), but only on paragraph 34(1)(f). In other words, she did not find that Mr. Jahazi himself engaged in acts of subversion or terrorism, but that he was a member of an organization that engaged, engages or will engage in such acts. I confess that her reasons are not devoid of ambiguities in this respect. However, I think it is fair to assume that in the officer's assessment, the fact that Mr. Jahazi passed on information to the Iranian Government about dissident Iranians living abroad, as well as the fact that he taught at TMU and collaborated with IROST, substantiate her finding that he is a member of a subversive or terrorist organization.
50 I am therefore of the view that this first line of arguments by counsel for the Applicant must fail. The officer did not err in her construction of section 34(1)(f).
Did the Officer breach the principles of natural justice by relying on information gathered from the internet that is inherently unreliable, and without giving the Applicant an opportunity to respond to it?
51 Counsel for the Applicant also submitted that the officer breached procedural fairness by relying on information obtained from the internet to impugn Mr. Jahazi's credibility without communicating this information to him or giving him an opportunity to respond to it.
52 The content of the duty of fairness is variable and contextual. The discharge of a visa officer's duty of fairness must be assessed on a case by case basis. The jurisprudence is quite clear that the duty of fairness is not breached if the applicant had an opportunity to respond to the concerns raised in the visa officer's mind. As Justice Nadon (as he then was) stated in Au v. Canada (Minister of Citizenship and Immigration), 2001 FCT 243, [2001] F.C.J. No. 435, at para. 33:
...the jurisprudence is to the effect that the duty of fairness is not breached if the applicant is given an opportunity to respond to the concerns raised in the visa officer's mind by the documents. In Zheng v. Canada (M.C.I.), [1999] F.C.J. No. 1397 (T.D.), the applicant claimed that the visa officer had relied on extrinsic evidence, i.e. information respecting the different cook classifications that had been used in the People's Republic of China since 1993. The Court stated the following at paragraph 10:
[10] The essential characteristic in [the] jurisprudence is that concerns were raised in the mind of the decision-maker as a result of new information, concerns that were not put to the applicant, and those concerns were significant in leading the decision-maker to decide against the applicant. That did not occur in this case. While the applicant may not have been given a copy of the PRC information document, the concerns arising in the visa officer's mind, as a result of her knowledge of the information in the document, were raised with the applicant and he was given an opportunity to comment thereon.
See also: Moiseev v. Canada (Minister of Citizenship and Immigration), 2008 FC 88, [2008] F.C.J. No. 113, at paras. 27-28.
53 The Applicant was interviewed at the Canadian Consulate in Buffalo, New York on April 17, 2008. The officer clearly indicated from the commencement of the interview that admissibility to Canada was an issue in his application, and explained the purpose of the interview. The Applicant was alerted and directly confronted with the officer's concerns about his relationship to the Iranian Revolutionary Guard, by way of his professional undertakings, including his positions at TMU and IROST. The officer's CAIPS notes from the Applicant's interview, and the Applicant's own affidavits of October 23, 2008 and November 14, 2009 all confirm this line of questioning.
54 Following his interview, the Applicant was also sent a letter, dated July 3, 2008, requesting that he provide further particulars relating to his professional undertakings, any Iranian diplomatic contacts, and specific questions relating to any possible involvement with weapons of mass biological destruction. The officer gave the Applicant 30 more days to provide the requested documents. The Applicant was specifically notified that he may be inadmissible to Canada under s. 34(1)(a) and /or (f). The Applicant provided a lengthy response setting out his answers.
55 The Applicant takes issue with the fact that the officer consulted internet sources without letting him know about these sources and without providing him with an opportunity to respond specifically to that information. Once again, it bears repeating that the principle behind the duty of fairness is to make sure an applicant is not "caught by surprise". In the case at bar, the Applicant had ample notice before, during and after the interview, of the allegations against him, and had a more than reasonable amount of time to respond to the Officer's concerns. Moreover, the information was not extrinsic evidence, as it pertained directly to former employers of the Applicant, which he knew to be of concern to the Officer. The disclosure of this open source evidence was not necessary to allow the Applicant to participate meaningfully in the decision making process. This is not to say that these sources were reliable and sufficient to ground the decision of the visa officer. However, reliability and sufficiency are not issues of fairness. They will be dealt with when considering whether the Officer made unreasonable inferences and findings of fact.

F. Did the Officer err in law by relying on confidential information that was also inherently unreliable and by not giving the Applicant an opportunity to discuss it?
56 The Applicant submitted that given the nature of the confidential information, its origins and the lack of any effective challenge to its reliability, the Court ought to give it little weight. According to the Applicant, it is likely that the secret evidence contains unsupported assertions, assertions based on unreliable sources, and assertions that cannot be linked together to support the report's conclusions. In the same vein, counsel for the Applicant also questions the reliability of the information obtained from the internet, and argued that to be admissible that evidence must be credible and trustworthy.
57 There is no doubt that information collected for intelligence purposes is not put to the same test of reliability and credibility compared to information gathered by police with a view to substantiate criminal charges. The information in this case does not serve the same purpose, does not have to meet the same standard of proof, and is not subject to the rigour of cross-examination. To that extent, counsel for the Applicant is correct in stating that immigration officers must take these factors into consideration when making a determination, and that this Court must similarly bear in mind in reviewing such a determination.
58 That being said, it is for the immigration officer to assess and weigh that evidence, as well as any other evidence on the record. Unless it can be shown that a particular piece of evidence should have been excluded altogether, an argument that was not made in the present case, it is not open to this Court to determine what weight should appropriately be given to the evidence. The proper role of this Court is to determine whether the immigration officer's decision was reasonable, in light of the evidence that was before him or her. This I shall do in the last section of these reasons.
59 As for the internet documents, I would make the following remarks. In her letter to the Applicant, the visa officer did not explicitly refer to these sources. Yet, the CAIPS notes make it clear that her views with respect to the relationship between TMU and the IRGC were based on various websites, including Wikipedia, Jane and Iran Watch (published under the auspices of the Wisconsin Project on Nuclear Arms).
60 This Court has more than once questioned the reliability of Wikipedia,. It is an open source reference with no editorial control over the accuracy of the information that can be inputted by anyone: see, inter alia, Khanna v. Canada (Minister of Citizenship and Immigration), 2008 FC 335, [2008] F.C.J. No. 419, at para. 11; Fi v. Canada (Minister of Citizenship and Immigration), 2006 FC 1125, [2006] F.C.J. No. 1401, at para. 9; Sinan v. Canada (Minister of Citizenship and Immigration), 2008 FC 714, [2008] F.C.J. No. 922; Karakachian c. Canada (Ministre de la Citoyenneté et de l'Immigration), 2009 CF 948, [2009] A.C.F. no 1463. Indeed, counsel for the Respondent refrained to make any submission with respect to this source at the hearing.
61 As for Jane and Iran Watch, the reliability of the information posted on their websites is more difficult to assess. The Officer has not identified precisely what she took from Jane, and it is therefore impossible to come to any reasonable assessment of that source. Suffice it to say that reserves have been expressed in the past with respect to that publication because it failed to identify its sources: see Jalil v. Canada (Minister of Citizenship and Immigration), 2007 FC 568, [2007] F.C.J. No. 763, at para. 24. This leaves Iran Watch, of which we know very little in terms of expertise, funding, mandate or ideological affiliation. Once again, these concerns should not lead to the conclusion that the information coming from these websites should have been disregarded - and I did not understand counsel for the Applicant arguing for such a finding; they should nevertheless be factored in when assessing the reasonableness of the conclusions reached by the visa officer.
G. Did the Officer make unreasonable inferences and findings of fact?
62 Having had the advantage of reading both the public record and the confidential information redacted from the CTR, I have come to the conclusion that the inferences drawn by the officer from that evidence are unreasonable. Her conclusions are based, to a large extent, on assumptions, speculations and guilt by association that find very little support in the record, and she did not give the information provided by the Applicant the weight it deserved in her decision making process.
63 Before going any further, it is worth stressing the standard of proof to be met before an inadmissibility finding can be made. Section 33 of IRPA states that "[t]he 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."
64 The Supreme Court of Canada has found that the "reasonable grounds to believe" standard requires more than suspicion, but less than the civil standard of balance of probabilities: see Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, 2005 SCC 40. In other words, it requires a bona fide belief in a serious possibility based on credible evidence: Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (F.C.A.), [2000] F.C.J. No. 2043; Au v. Canada (Minister of Citizenship and Immigration), 2001 FCT 243, [2001] F.C.J. No. 435; Moiseev v. Canada (Minister of Citizenship and Immigration), 2008 FC 88, [2008] F.C.J. No. 113.
65 The Officer first stated in her reasons that she had reason to believe that the Applicant had taken part in different kinds of subversive activities and that he had been associated with groups that were engaged in terrorist activities. According to the officer, she had confidential information supporting her belief that the Applicant had furnished information about dissidents to the Iranian government during the time he was studying in both Europe and Canada. The Applicant, on the other hand, denied ever having political activity or giving any sort of information to the Iranian government through its embassy in Canada or France.
66 A careful reading of the entire record cannot ground a bona fide belief in a serious possibility based on credible evidence that Mr. Jahazi was an active participant in Islamic or student organizations collaborating with the Iranian regime. The fact that he may have known some people affiliated with such groups and that he may have met socially with them, is a far cry from a finding that he was involved in subversive activities. His explanation as to how he met these people - through his wife who had a background in midwifery and had volunteered to with a local doctor whose practice included a clientele made up of Islamic women - was also perfectly reasonable. As for his contacts with Embassy employees, the Applicant explained that they were only for consular purposes (birth certificate for his child, renewal of passport, etc.), an explanation that does not seem to have been considered.
67 The key concern of the visa officer, however, was the fact that the Applicant had achieved a high position quickly in a University that was under the control of the revolutionary guards. This, in the officer's view, was proof that the Applicant was believed by the Iranian government to be sympathetic to its ideology despite having lived abroad for the previous 12 years. Once again, she casually dismissed the Applicant's explanations in this regard.
68 The Applicant repeatedly explained that when he returned to Iran, he had not done his military service, and did not wish to do any military service. To become a university professor without serving in the military, he had to lodge an application to the office of placement of scientific members of universities at the Ministry of Higher Education. He had the freedom to choose any university outside Tehran, but for Tehran it was the Ministry who decided the placement and he was sent to TMU. At the time, the Engineering faculty of TMU was very new and only had about 15 professors for 6 different departments. The Department of Materials, where the Applicant was sent, had only one member. Although the Applicant tried very hard for several months to have this decision changed because the faculty of TMU did not have a building or laboratories, the Ministry would not permit him to move to the University of Tehran. The Ministry's policy was to send all new graduates to TMU to establish the Engineering studies at TMU.
69 The Applicant was hired as assistant professor at TMU. In the CAIPS notes, the officer was puzzled by this title, noting that there was nobody to assist in a university with so few professors. This shows a clear lack of understanding of the hiring process and of the functioning of a university department. The position of assistant professor is the entry level for fresh graduates becoming university professor throughout the world, including in Canada.
70 The Applicant also explained that the Materials Engineering program at TMU had three branches approved by the Ministry. As the entire Department was composed of two individuals, the Applicant became automatically responsible for the Materials Selection section. This accounts for the Applicant's quick rise in the administration at TMU. He also explained that he became head of his Department a few years later, for a two-year term, as these positions are usually allocated on a rotational basis. While expressing the desire to transfer to the University of Tehran, he was never given a position at the faculty or university level. His promotion to the rank of associate professor was similarly delayed, even though he had published in international journals far more than was required. Given these facts, it is difficult to understand the basis on which the visa officer concluded that the Applicant was pushed up by the TMU system.
71 When the Applicant left Iran in 2001, he came to McGill University as an invited professor. TMU would not consider, according to the Applicant's explanations, this period a sabbatical year and instead asked the Applicant to use his unused vacation time to cover his leave. As soon as his vacation time was over, and without informing the Applicant, the university administration published an announcement in Iranian newspapers stating that the Applicant had been absent from work without justification and that he would be fired if he did not present himself at work. The Applicant's colleagues at the Department intervened and the Applicant eventually got what any other professor is entitled to, a leave without pay. The Applicant's file has been to the disciplinary committee at TMU three times in what the Applicant believes is an attempt to fire him, yet to date the University has not accepted his resignation because it would be much more damaging to fire him. This uncontradicted and unchallenged evidence of the Applicant does not, to say the least, show any privileged treatment by the TMU administration; quite to the contrary, the Applicant never obtained an unusual promotion and his career path has been rather chequered and even impeded by his desire to move from TMU to Teheran University.
72 In the refusal letter, the officer mentions it is well known that IRGC has a certain control over TMU, and the officer suggests that it was the IRGC that deployed the Applicant at IROST. The officer said that during the same years IRCG allegedly had control over TMU, it was arming terrorist groups and IROST was involved in the making of weapons of mass destruction. All of this information is based on the websites already mentioned in these reasons.
73 There are several problems with these conclusions. First, the reliability of the websites consulted by the officer has not been established. In his affidavits, the Applicant raised several inconsistencies with the information found on those websites. For example, it appears that TMU is not on the list of more than 212 institutions mentioned on Iran Watch, while the medical school of Tehran University is listed. Moreover, the Iran Watch document consulted by the officer dates back to 2004, four years after the Applicant had left IROST and three years after his arrival in Canada, and is about a different IROST branch than the one the Applicant was involved with.
74 Further, the content of the few pages printed from Iran Watch and included in the CTR does not warrant the inferences drawn by the officer about the Applicant's activities. In the first document from IranWatch entitled "The Islamic Revolution Guards Corps use universities for research to build the bombs IRGC Imam Hossein University involved in clandestine nuclear weapons program" there is no mention of the TMU or the IROST at all. It simply speaks of the involvement of the Imam Hossein University with the IRGC and the IRGC involvement in nuclear research and development. In the second Iran Watch document "Iran Smuggles Ceramic Matrix Composite, a key Material for Building a Nuclear Bomb" the only mention of TMU is that one among the professors involved in the project is from this university.
75 In her refusal letter, the officer also accused the Applicant of having downplayed his position at IROST. It is hard to understand how she came to such a conclusion, as the Applicant has always been proud of the work he did at IROST and explicitly refers to it in the curriculum vitae that he submitted to the National Research Council in 2001.
76 In her notes, the officer uses the Iran Watch website introductory paragraph about IROST to conclude that IROST is a dangerous organization and was involved in buying equipment for the purpose of developing nuclear weapons. She then implies that because the Applicant was at IROST, he played a role in buying forbidden equipment. The Applicant declared that he had never bought or approved of any equipment during his work at IROST, as this was not part of his duties. Furthermore, the Applicant stated that he did not visit or evaluate any project related to weapons of mass destruction or any other military application. Yet the officer did not provide any proof that he has done so, or was aware that any such thing was occurring. There is nothing in the record that she could have relied on to make that finding.
77 In a nutshell, the officer's conclusions are not supported by the evidence before her and she did not give the information, provided by the Applicant, sufficient weight in her decision making process. Instead of discussing his explanations, she prefers to rely on dubious information found on the internet and on inconclusive reports from other government agencies to make grave accusations against the Applicant. These errors make the officer's decision unreasonable.
78 Counsel for the Applicant sought that the Applicant be provided with a meaningful remedy, and that he be allowed to return to Canada until the case is re-determined. I appreciate that the Applicant and his family have lived through some terrible times over the last years as a result of his application for permanent residence taking so long to be processed and to be finally rejected. However, this Court has no jurisdiction to issue such an order to the Minister. The fact that the Applicant disputes the determination of the immigration officer, regardless of his prior temporary status in Canada, does not extend him any right of entry. On the other hand, if a further interview is determined to be necessary by the officer tasked to reassess the Applicant's application for permanent residence, this interview should take place in a visa post as close as possible to where the Applicant resides. If the Minister was to decide that no further interview is required, moreover, the Applicant shall be given an opportunity to address the concerns of visa officer Blouin in further affidavit and submission.
79 Counsel for the Applicant also asked the Court to issue directions that the confidential information not be afforded any weight. Once again, it is not within the Court's jurisdiction to fetter the discretion of any subsequent officer. All the Court can say is that the officer re-assessing the application for permanent residence shall take into account these reasons, and more particularly paragraphs 57 to 59 dealing with the inherent frailty of information gathered for intelligence purposes.
80 The parties have not proposed a question of general importance for certification and I make no order for certification.


THIS COURT ORDERS that this application for judicial review is allowed, the decision of the visa officer made on August 14, 2008 is hereby set aside and the matter is remitted for redetermination by a different visa officer in accordance with these reasons. No question of general importance is certified.



The government of Quebec has proposed legislation that will mandate the unveiling of Muslim women who require government services. This is the latest chapter in the ongoing controversy about "reasonable accommodation". The province of Quebec has been in the front lines of the clash between cultures and there is now considerable litigation as to where the lines between accommodation and traditional values should be drawn. More to come, no doubt.

Unveil, Quebec says

Unveil, Quebec says

Graeme Hamilton, National Post

Quebec will refuse all government services, including education and non-emergency health care, to fully veiled Muslim women under legislation tabled yesterday in the National Assembly.
Jean Charest, the Liberal Premier, said the bill establishing guidelines for the accommodation of religious minorities is aimed at "drawing a line" to demonstrate that gender equality is a paramount Quebec value.
"If you are someone employed by the state and you deliver a service, you will deliver it with your face uncovered," he told reporters in Quebec City. "If you are a citizen who receives services, you will receive them with your face uncovered."
The bill applies not only to government departments and Crown corporations but also to hospitals, schools, universities and daycares that receive funding from the province.
The proposed guidelines in Bill 94 follow an uproar this month over the expulsion of a niqab-wearing woman from French courses after she insisted that male students in her class not see her face. Quebec's Immigration Department tracked her to a second college where she was studying French and had her expelled again because she would not remove her niqab, a veil that leaves open a slit for the eyes.
"If you want to integrate into Quebec society, here are our values," Immigration Minister Yolande James said at the time. "We want to see your face."
Quebec, which for more than three years has been grappling with the issue of accommodating religious differences, is the first province to take such a stance against the niqab and burka.
In Ontario, women wearing a full veil can make special arrangements to receive government services without exposing their faces to male bureaucrats.
Canada's chief electoral officer has ruled that under current law, veiled women can cast ballots. In France, on the other hand, President Nicolas Sarkozy yesterday pledged to introduce legislation banning outright the full Muslim veil, which he called "contrary to the dignity of women."
Salam Elmenyawi, head of the Muslim Council of Montreal, said it makes no sense for Quebec legislators to be worrying about a practice that remains marginal.
Of the more than 200,000 Muslims in the province, he estimates that just two dozen wear a full veil. Mr. Elmenyawi called it "very troubling and serious" that the government has tailored legislation that "points a finger" at the Muslim community.
"If we are talking about integration, then this is actually much worse, because it will prevent them from integrating or changing their ideas," he said. "We should leave society to self-adapt, let them either explain themselves to their fellow citizens or adapt and change their ways." He predicted that if the bill becomes law, it will be challenged as an infringement of the freedom of religion guaranteed under the Charter of Rights and Freedoms.
Mr. Charest said government lawyers believe that the bill respects the Charter. It reflects his government's commitment to "open secularism," he said, noting that other religious symbols such as the Christian crucifix, Jewish skullcap and Muslim head-scarf can continue to be worn by those providing and receiving government services. The niqab and burka are considered unacceptable in part because they interfere with security, identification and communication.
The opposition Parti Quebecois wanted the government to go further in establishing that Quebec is a secular state, prohibiting government employees from wearing any visible religious symbols.
Ms. James said the legislation sends a message to recent immigrants. "Quebec opens its doors to new arrivals as they are, but they must equally agree to adopt the values of Quebec society," she said.
Philippe Archambault, an aide to Justice Minister Kathleen Weil, confirmed that the law will apply to the full array
of government services, from students attending college to patients seeking a checkup. A humanitarian exception would be made for someone requiring emergency medical care, he said.
Daniel Weinstock, a professor of philosophy at Universite de Montreal, said the bill does a good job of grouping existing rules that limit the granting of accommodations to religious minorities. For example, it makes clear that gender equality and the state's religious neutrality must be respected.
"There's a perception out there in Quebec that the granting of accommodations is excessive and anarchic, that there are really no principles involved, and it's just whoever's whim happens to be holding sway," he said. "I think that is factually incorrect."
Mr. Weinstock said Quebec is addressing head-on issues that are being ignored elsewhere in Canada. "This is a very good thing," he said. "Whatever happens as a result of the debates in the National Assembly over this bill, and whatever the final form of this legislation is, we are having a very interesting societal debate here in Quebec that has to do with issues that are not specific to Quebec."

Wednesday, March 24, 2010


This case is quite interesting: should illegals who hide under the radar get free health care?

Illegal immigrant goes to court for medical coverage -

Illegal immigrant goes to court for medical coverage

March 23, 2010
Donovan Vincent

A Toronto woman who has lived in Canada illegally for over a decade is seeking to overturn a federal decision blocking her from getting medical coverage here.
Lawyers representing Nell Toussaint are arguing in Federal Court that her Charter rights were violated when she was denied coverage last year under a program offered by Citizenship and Immigration Canada.
Toussaint, 40, came to Canada from Grenada in 1999 as a visitor for six months.
In 2005 she paid an immigration consultant $1,000 in a bid to stay in Canada on humanitarian and compassionate grounds, but she couldn’t continue the process because she ran out of cash. She launched a similar bid in 2008, but hasn’t paid a $550 application fee to the government.
She suffers a variety of ailments, including diabetes, kidney problems, fibroid tumours and blood clots, and hasn’t been able to work for the past few years. She’s unemployed and surviving on welfare payments from the province.
She owes nearly $10,000 in medical bills to the Humber River Regional Hospital for a stay there last year.
“Last year I was in hospital five times for blood clots,’’ Toussaint said Tuesday, adding she’s been turned down at hospitals several times because she doesn’t have a health card.
Her lawyer, Andrew Dekany, argued Tuesday the federal government is “authorized’’ to cover the medical expenses for “anyone subject to immigration jurisdiction who cannot pay those expenses on their own,’’ adding that Toussaint is subject to such jurisdiction.
“She is destitute and has developed a number of serious medical conditions, at least partly because she has not had adequate access to health services,’’ the court application says.
“Her health is at risk, with possible life-threatening consequences because of (her) inability to pay (for medical care).’’
Toussaint applied for health coverage under Citizenship and Immigration Canada’s Interim Federal Health Program.
But it only grants short-term essential medical benefits to “certain limited and specifically defined groups of persons on humanitarian grounds, the majority of whom are legally in Canada,’’ according to a document filed in court by Marie-Louise Wcislo, a federal government lawyer.
Toussaint’s application for coverage under the program was rejected in July, and that’s the decision she’s challenging through a judicial review.
Her lawyers argue she was turned down because of a “wrongful interpretation’’ of the authority behind the federal health coverage.
According to Wcislo’s factum, it was only when Toussaint’s health problems recently required medical attention, that she took any steps to attempt to legalize her illegal status in this country, and “facilitate her access’’ to the Canadian health care system.
Mr. Justice Russel Zinn reserved his decision in the matter.

Tuesday, March 23, 2010


Here is another case, just released, in the area of medical inadmissibility. The Federal Court continues to seek clarity in what constitutes "excessive demand" on medical and social services posed by potential immigrants. As I have been reporting, the Federal Court of Appeal now has several cases awaiting decision in the medical inadmissibility area. Decisions will have far reaching impact, because once a person becomes an immigrant, there are no follow up or enforcement mechanisms to ensure that a "private care" plan is actually followed and paid for. Unless the legislation provides a follow up mechanism, the courts are left with a choice to either allow the application by deciding that the plan is "reasonable", or deny it altogether. There is no flexibility or "conditional" immigration. Every person in Canada has the right to access universal medical care, and there is nothing to prevent a person from seeking public assistance in case of demonstrated need. In this case, another certified question by the court seeks to summarize the problem:

a. When considering whether a person is inadmissible on health grounds pursuant to paragraph 38(1)(c) of the Act, is a Medical Officer obligated to actively seek information about the applicants' ability and intent to mitigate excessive demand on social services from the outset of the inquiry, or is it sufficient for the Medical Officer to provide a Fairness Letter and rely on the applicants' response to that letter?
b. Is a Medical Officer under a duty to provide adequate reasons for finding that a person is inadmissible on health grounds pursuant to paragraph 38(1)(c) of the Act, which is independent from the Visa Officer's duty to provide reasons and which is therefore not satisfied by the Visa Officer providing reasons that are clearly adequate?

Although the questions are more procedural than substantive, is is clear from a series of recent Federal Court decisions that the court is anxious for clarity. All questions boil down to how much should visa and medical officers disclose to an applicant, and how proactive should they be in sleeking information, when the onus in providing it rests with the applicant.

The best course of action for applicants: seek qualified legal representation by lawyers experienced in immigration law BEFORE applying for immigration to Canada, and obtain a realistic assessment of your chances.

Sapru v. Canada (Minister of Citizenship and Immigration)

BetweenVithal Sapru, Amita Sapru, Radika Sapru, Rishi Sapru,Applicants,
The Minister of Citizenship and Immigration, Respondent

[2010] F.C.J. No. 270
2010 FC 240Docket IMM-4112-09 Federal CourtToronto, OntarioMosley J.Heard: February 18, 2010.Judgment: March 2, 2010.
(72 paras.)


1 MOSLEY J.:-- This is an application for judicial review pursuant to Section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of a Designated Immigration Officer at the High Commission of Canada in New Delhi, India (the Visa Officer) dated June 11, 2009. It was determined that the principal applicant is inadmissible to Canada because his son Rishi, an accompanying family member, has a health condition which might reasonably be expected to cause excessive demand on social services in Canada.


2 The applicants are a family from India. The principal applicant, Vithal Sapru, is an engineer and has operated his own business since 1989. His wife Amita Sapru (Amita) is a pediatrician. Their two children, Radika (15 years old) and Rishi (8 years old), would accompany them to Canada.
3 Vithal Sapru applied for permanent residence in Canada on June 27, 2002 as a member of the Skilled Worker class. In connection with his application, he and all of his accompanying family members had to undergo medical examinations.
4 The results of the examinations were reviewed by a medical officer (the Medical Officer) at the Health Management Branch of Citizenship and Immigration Canada (CIC). The Medical Officer determined that Rishi suffers from developmental delay, including psychomotor delay and delay in speech development. At age 8, he had a mental age of 4 years and an I.Q. between 60 and 65. The Medical Officer determined that Rishi is likely to require a variety of social services in Canada. She provided detailed reasons for reaching these conclusions.
5 In a letter to the applicants dated December 8, 2008 (the Fairness Letter), the Visa Officer reported the Medical Officer's conclusions and expressed a preliminary determination that Rishi is inadmissible to Canada on health grounds. The Fairness Letter invited the applicants to provide additional information on Rishi's medical condition, social services required, and/or "your individualized plan to ensure that no excessive demand will be imposed on Canadian social services for the entire period indicated above and your signed Declaration of Ability and Intent."
6 The applicants made submissions on the extent of Rishi's condition, the social services he would require, and their ability and intent to pay for social services (the Fairness Response). They did not submit a Declaration of Ability and Intent.
7 On June 8, 2009, the Medical Officer wrote brief reasons indicating that she had reviewed the entire Fairness Response, and had determined that it did not change her original assessment that Rishi is inadmissible to Canada.
8 The Visa Officer refused the applicants' application for permanent residence in a decision dated June 11, 2009. The Visa Officer adopted the detailed reasons in the Medical Officer's original assessment as to the extent of Rishi's condition and the social services he would likely require. The Visa Officer then considered in some detail whether the applicants had the ability and intent to mitigate Rishi's excessive demand on social services ("ability and intent").
9 The Visa Officer was not satisfied of the applicants' intent to offset excessive demand because their "plan" for doing so was not credible, for the following reasons:
The applicants say Amita will stay home to take care of Rishi, but this is unlikely since she has worked or been self-employed continuously since 1992;
Rishi already sees specialists in India, so he is likely to continue doing so;
Vithal Sapru's brother's offer to give the family a house is not credible;
The applicants provided a brochure from a physiotherapy provider called Footprints, but this is not an adequate individualized "plan";
The applicants provided an indemnity agreement that purports to indemnify the Ontario Ministers of Health and Education for any social services costs Rishi requires. However, it has not been signed by the Ministers and is not binding;
There was no clear individualized "plan" provided at all.
10 The Visa Officer also found that there was insufficient evidence provided of the applicants' financial ability to offset excessive demand. The Fairness Response did not contain any financial details. Previous financial evidence appears on file but is either outdated or not sufficiently detailed.
11 Several issues have been raised on this application for judicial review. I would restate them as follows:
What is the appropriate standard of review?
What are the respective obligations of a Medical Officer and a Visa Officer with respect to the consideration of non-medical factors that might mitigate an applicant's excessive demand on social services? Did the Medical Officer meet her obligations in this case?
Were the applicants given adequate procedural fairness?
Were the Officers' medical conclusions reasonable?
Were the Officers' non-medical conclusions reasonable?
Standard of Review
12 The decision under review is the Visa Officer's decision dated June 11, 2009. However, as I discuss below, the Visa Officer's primary role is to review the Medical Officer's decision. To assess whether that has been done lawfully, the Court must consider the decision of the Medical Officer.
13 In my recent decision in Rashid v. Canada (Minister of Citizenship and Immigration), 2010 FC 157, I had occasion to consider the appropriate standard of review to be applied to the decisions of Visa Officers and Medical Officers on medical inadmissibility. I concluded that a Visa Officer's factual findings should be given significant deference by the Court. With respect to the standard of review for a Medical Officer's decision, I held as follows at paragraphs 14 and 15:
In Gao v. Canada (Minister of Employment and Immigration), (1993), 61 F.T.R. 65, [1993] F.C.J. No. 114, at pp. 317-318, Justice Dubé had discussed the standard of review of a finding of fact made by a medical officer in the following terms:
Most of the case law relating to medical inadmissibility decisions by visa or Immigration Officers has issued from appellate bodies. The general principles arising from these cases are of course relevant to a judicial review application seeking to quash an Immigration Officer's decision.
The governing principle arising from this body of jurisprudence is that reviewing or appellate courts are not competent to make findings of fact related to the medical diagnosis, but are competent to review the evidence to determine whether the medical officers' opinion is reasonable in the circumstances of the case. Canada (M.E.I.) v. Jiwanpuri (1990), 109 N.R. 293 (F.C.A.). The reasonableness of a medical opinion is to be assessed not only as of the time it was given, but also as of the time it was relied upon by the Immigration Officer, since it is that decision which is being reviewed or appealed, Jiwanpuri. The grounds of unreasonableness include incoherence or inconsistency, absence of supporting evidence, failure to consider cogent evidence, or failure to consider the factors stipulated in section 22 of the Regulations. [some citations removed].
In Barnash v. Canada (Minister of Citizenship and Immigration), 2009 FC 842, [2009] F.C.J. No. 990, at para. 20, Justice Mandamin referred to Gao in holding that given the specialized nature of the medical officer's opinion, reasonableness is the appropriate standard of review for the factual component of the decision. I agree with that conclusion.
14 In contrast to the approach taken in Rashid, Gao and Barnash, cases such as Rounta v. Canada (Minister of Citizenship and Immigration), 2007 FC 384, Sarkar v. Canada (Minister of Citizenship and Immigration), 2006 FC 1556 and Kirec v. Canada (Minister of Citizenship and Immigration), 2006 FC 800 have applied a standard of correctness to decisions of Visa Officers and Medical Officers. These cases rely on the Supreme Court of Canada's decision in Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 706 (Hilewitz).
15 In my opinion, it is clear from paragraph 71 of Hilewitz that the Supreme Court adopted a standard of correctness because the case turned on clear questions of law. I do not think that the Supreme Court intended to impose a standard of correctness on decisions of Visa Officers or Medical Officers that were essentially factual. In my view, the proper standard of review for the Officers' factual findings is reasonableness, for the reasons given in Rashid, Gao and Barnash.
16 In the case at bar, the applicants allege that the Medical Officer failed to comply with her obligations as set down in Hilewitz. That is an issue of law which should be reviewed on a standard of correctness. The applicants also raise issues of procedural fairness which should be reviewed on a correctness standard: Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539. In other words, this standard should apply to issues (b) and (c).
17 On the other hand, issues (d) and (e) concern the content of the Officers' decisions, which are essentially factual. Those issues will be considered on a standard of reasonableness.
Obligations of Medical Officers and Visa Officers
18 The applicants submit that the Medical Officer conducted a generic assessment of Rishi's condition and his likely demand on social services in Canada. They assert that she failed to take into account non-medical factors such as the applicants' ability and intent to mitigate Rishi's excessive demand.
19 The Supreme Court of Canada in Hilewitz recognized that an individualized assessment is required to determine excessive demand. It is now well established that both medical and non-medical factors must be taken into account. In the case at bar, the Visa Officer provided a detailed analysis of the applicants' ability and intent. The applicants submit that is not good enough, because assessing excessive demand is the Medical Officer's responsibility.
20 Recent jurisprudence has been divided on which of the two officers bears this responsibility. In Airapetyan v. Canada (Minister of Citizenship and Immigration), 2007 FC 42, the Court required "visa officers to take into account a family's willingness to pay . . ." (My emphasis). Similar language appears in Canada (Minister of Citizenship and Immigration) v. Abdul, 2009 FC 967 at paragraph 24.
21 On the other hand, Sarkar, above, at paragraph 20 and Ching-Chu v. Canada (Minister of Citizenship and Immigration) 2007 FC 855 at paragraph 15 suggest that both Visa Officers and Medical Officers must consider non-medical factors.
22 Jafarian v. Canada (Minister of Citizenship and Immigration), 2010 FC 40 at paragraph 29 seems to place the responsibility squarely on the Visa Officer. In my view, however, Jafarian focuses on the Visa Officer's obligation to review the Medical Officer's decision. The reasoning in Jafarian does not necessarily excuse the Medical Officer from considering ability and intent.
23 I would resolve these ambiguities by referring to the Supreme Court of Canada's most recent pronouncement on the issue. At paragraph 70 of Hilewitz, the Supreme Court held as follows:
The medical officers were obliged to consider all relevant factors, both medical and non-medical, such as the availability of the services and the anticipated need for them. In both cases, the visa officers erred by confirming the medical officers' refusal to account for the potential impact of the families' willingness to assist.
24 In light of Hilewitz, I agree with the applicants that it is the Medical Officer's obligation to perform a complete analysis of all factors, medical and non-medical. The Visa Officer must then review the Medical Officer's decision to ensure that all relevant factors were considered.
25 I am supported in this view by subsection 30(4) and section 20 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations). Subsection 30(4) provides that in order to enter Canada, a foreign national requires a medical certificate indicating that he or she is unlikely to place excessive demand on social services. Since issuing a certificate is a decision that can only be made by a doctor, it is important that the Medical Officer take into account all factors
that are relevant to an excessive demand determination. It is not enough for a Visa Officer, who is not a doctor, to consider these issues.
26 Section 20 of the Regulations provides that where a Medical Officer determines that a person will create excessive demand, the Visa Officer must find the person inadmissible. This interpretation is clearest from the French text of that section, which provides as follows:
L'agent chargé du contrôle conclut à l'interdiction de territoire de l'étranger pour motifs sanitaires si, à l'issue d'une évaluation, l'agent chargé de l'application des articles 29 à 34 a conclu que l'état de santé de l'étranger constitue vraisemblablement un danger pour la santé ou la sécurité publiques ou risque d'entraîner un fardeau excessif.
Thus, the Visa Officer does not necessarily have the authority to overrule the Medical Officer. For that reason, in my view, it is essential that the Medical Officer takes into account all relevant factors, including non-medical ones.
27 The respondent does not seriously contest that the Medical Officer must consider ability and intent, but submits that she did so in this case. On that point, I agree with the respondent.
28 Computer Assisted Immigration Processing System ("CAIPS") notes provide the Medical Officer's reasons, written on June 8, 2009, in which she acknowledged every document in the Fairness Response, and stated she had considered all of them. These documents constituted the applicants' submissions on ability and intent. As well, in her affidavit sworn December 23, 2009, the Medical Officer stated that she had considered the applicants' ability and intent.
29 In cross-examination on her affidavit, the Medical Officer admitted that she had made her original medical assessment without considering non-medical factors, as she had believed then that Hilewitz did not apply to applicants in the Skilled Worker category. However, she testified that by the time she considered the Fairness Response, the Department of Citizenship and Immigration ("CIC") had issued Operational Bulletin 063 which confirmed that non-medical factors had to be considered in all cases (see Colaco v. Canada (Minister of Citizenship and Immigration), 2007 FCA 282). The Medical Officer confirmed that she had considered those factors when evaluating the Fairness Response. In my opinion, her consideration of non-medical factors at that stage was sufficient to discharge her duty under Hilewitz.
30 The Medical Officer also stated during cross-examination that as a practice, she will consider evidence of the applicants' ability and intent, and she will presume that the evidence is trustworthy. She will then rely on the Visa Officer to confirm the authenticity of the evidence. For that reason, the Visa Officer must make the final decision. With respect to the applicants' able arguments, I cannot conclude that this practice infringes Hilewitz. By considering the non-medical evidence as being prima facie authentic, the Medical Officer takes into account all relevant factors and evidence, as Hilewitz requires.
31 The applicants criticize Operational Bulletin 063 for institutionalizing practices that violate Hilewitz. According to the Bulletin, a Medical Officer will review the Fairness Response to determine whether the applicants' "plan" for mitigating excessive demand is feasible from a medical point of view. If not, there is no need to consider the ability and intent question. If the "plan" is feasible, however, then the ability and intent question is referred to the Visa Officer.
32 I agree with the applicants that the Bulletin's approach, as stated, is problematic because, if it was followed, the Medical Officer would be unable to consider ability and intent. However, I accept the Medical Officer's affidavit and cross-examination evidence on how the policy has been interpreted in practice. She does not only decide whether the "plan" is feasible from a medical point of view, but also from the point of view of the applicants' ability and intent to carry it out, presuming the relevant evidence to be authentic. Thus, although the policy as written is problematic, I am not convinced that it led to an actual error in this case.
33 I do not make any comment on CIC's most recent policies, contained in Operational Bulletin 063B, because they were not yet in force when the decision was made in the case at bar. The Court will have to consider Operational Bulletin 063B when the appropriate case arises.
34 For all of these reasons, I am satisfied that the Medical Officer considered the non-medical evidence in this case as she was required to do.
35 This application raises two additional questions about the Medical Officer's responsibilities. The first is the extent to which she must inquire into the applicants' ability and intent. The applicants say that she should have actively sought this information when making her original medical assessment, the same way that she would seek medical information by conducting an examination or issuing a "furtherance." With respect, I am not persuaded that this is necessary. The applicants are in the best position to provide evidence of their ability and intent, and they are given a fair opportunity to do so in the Fairness Letter. There is no reason that a Medical Officer should have to make an inquiry at an earlier stage, as long as she considers any Fairness Response carefully and with an open mind.
36 The applicants submit that in Abdul, above, Justice Kelen held that a Fairness Letter is not a sufficient means of seeking information about ability and intent. In my view, this submission misinterprets Justice Kelen's decision, which merely found that the particular letter in that case was not detailed enough to elicit the information the Medical Officer needed. The Fairness Letter in the case at bar was considerably more detailed, and I am satisfied that it indicated exactly the sort of information that the Medical Officer needed to make a proper decision: "a reasonable and workable plan, along with the financial means and intent to implement this plan, in order to offset the excessive demand that you would otherwise impose on social services, after immigration to Canada."
37 The second question is the extent to which the Medical Officer must provide reasons for her decision. The applicants assert that her reasons with respect to the non-medical evidence were inadequate. All she said was that she had considered every document contained in the Fairness Response and found that it did not change her original assessment.
38 I have no hesitation in finding these reasons inadequate. They do not explain how the Medical Officer analysed the Fairness Response or how she reached her conclusions. However, the Visa Officer did provide detailed reasons for finding that the applicants do not have ability and intent. The question is whether this saves the Medical Officer's reasons.
39 The applicants submit that it does not, for two reasons. First, the Visa Officer must review the Medical Officer's decision and requires sufficient reasons from the Medical Officer to do so. Second, since the Medical Officer is the actual decision-maker, the applicants require her own reasons in order to understand why their application was refused.
40 With respect to the applicants' first argument, the Visa Officer is not in the position of a court on an application for judicial review, whose review must focus on the written reasons. According to Operational Bulletin 063, the Visa Officer and the Medical Officer should collaborate throughout the decision-making process. The Visa Officer may seek clarification from the Medical Officer at any time if concerned about the reasonableness or completeness of her decision. Thus, the Visa Officer does not require extensive reasons to review the Medical Officer's decision.
41 With respect to the applicants' second argument, it was recognized by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 that reasons can be provided by a person other than the actual decision-maker. According to the Supreme Court at paragraph 44 of Baker, this may be
[. . .] part of the flexibility that is necessary, as emphasized by Macdonald and Lametti, above, when courts evaluate the requirements of the duty of fairness with recognition of the day-to-day realities of administrative agencies and the many ways in which the values underlying the principles of procedural fairness can be assured. It upholds the principle that individuals are entitled to fair procedures and open decision-making, but recognizes that in the administrative context, this transparency may take place in various ways.
42 In the circumstances of this case, I am satisfied that the reasons provided by the Visa Officer are sufficient to allow the applicants to understand why their application for permanent residence was refused. The applicants received a fair and transparent decision-making process. This ground of judicial review cannot succeed.
Procedural Fairness
43 The applicants point to language in the Fairness Letter which appears to suggest that the Visa Officer had already come to a final decision, before the applicants had an opportunity to make submissions on ability and intent. I am satisfied that on a reading of the Fairness Letter as a whole, it is clear that a final decision had not yet been made. The Visa Officer said that it "appears" Rishi "may" be inadmissible. The letter went on to provide as follows:
Before I make a final decision, you have the opportunity to submit additional information that addresses any or all of the following: The medical condition(s) identified; social services required in Canada for the period indicated above; your individualized plan to ensure that no excessive demand will be imposed on Canadian social services for the entire period indicated above and your signed Declaration of Ability and Intent. [. . .]
In order to demonstrate that your family member will not place an excessive demand on social services, if permitted to immigrate to Canada, you must establish to the satisfaction of the assessing officer that you have a reasonable and workable plan, along with the financial means and intent to implement this plan, in order to offset the excessive demand that you would otherwise impose on social services, after immigration to Canada.
44 In my view, the applicants were given a full opportunity to make submissions on the medical opinion and on non-medical factors such as ability and intent.
45 I am also satisfied that the Fairness Letter makes it clear the Medical Officer will be considering the excessive demand question. The Visa Officer consistently uses "I" to refer to himself, so the statement that the "assessing officer" will assess excessive demand can only refer to the Medical Officer.
The Officers' Medical Conclusions
46 The Medical Officer's medical conclusions were reproduced verbatim in the Visa Officer's decision. The applicants criticize these conclusions because they exaggerate the severity of Rishi's condition and state that many more social services will be required than is actually necessary.
47 With respect to Rishi's diagnosis, the Medical Officer stated as follows:
This 8 year old applicant, born Oct 18, 2001, has Developmental Delay. He has psychomotor delay and delay in speech development secondary to perinatal hypoxia. [. . .] His mental Age . . . is 4 years with an Intelligence Quotient of 60-65. He is currently dependent on his family for most of the activities of daily living and is delayed in most adaptive skills.
48 On the standard of review of reasonableness, I find that there was sufficient evidence on which the Medical Officer could reach these conclusions. The statement that Rishi is delayed in "most" adaptive skills is, in my view, a reasonable interpretation of the psychological report that appears at pages M-92 through M-94 of the Certified Tribunal Record.
49 The Medical Officer then listed the social services Rishi would require. I agree with the applicants that it does not appear likely that Rishi will actually require all of them. However, the evidence does support the conclusion that Rishi will require special education, and in that context will likely require an assessment by a multi-disciplinary team to establish an individualized schooling program for him. As well, the applicants admit that Rishi will require speech therapy and occupational therapy. The evidence also establishes that subject to the applicants' ability and intent to mitigate them, the costs of these necessary services would constitute an excessive demand on Canadian social services.
50 For these reasons, I conclude that even if the Medical Officer overestimated the extent to which Rishi would require social services in Canada, that error was not material. There was clear evidence that Rishi will actually require many social services, the costs of which will constitute excessive demand unless Rishi's family is able and willing to mitigate them. I can find no reason to interfere with the Medical Officer's medical conclusions.
The Officers' Conclusions on Non-Medical Factors (Ability and Intent)
51 As indicated above, I accept the Visa Officer's reasons as the reasons for decision on the non-medical issues. The question before the Officers was whether, on a balance of probabilities, the applicants had the ability and intent to mitigate the excessive demand that Rishi's health condition would otherwise be likely to place on Canadian social services. The Visa Officer was not satisfied that the applicants had either the ability or a credible "plan" for avoiding excessive demand.
52 The applicants did not submit a formal "plan," but the Fairness Response indicates what they consider the "plan" to be. Its centrepiece is an indemnity agreement that purports to indemnify the Ontario Ministers of Health and Education for the cost of any social services that Rishi will require.
53 In Jafarian, above, Justice Harrington held that "[a]n undertaking not to call upon the government to pay what it is obliged to pay under statute is simply not enforceable" (para. 25; see also Deol v. Canada (Minister of Citizenship and Immigration.), 2002 FCA 271 at para. 46). While both Jafarian and Deol dealt with health services, in my view a commitment to pay for social services is similarly unenforceable where the services in question are guaranteed to all residents of the relevant province. In Ontario, the province in which the applicants intend to live, free special education in the public school system is guaranteed to all residents who require it: see sections 8(3), 32(1), 33 and 36 of Ontario's Education Act, R.S.O. 1990, c. E.2.
54 The applicants' plan extended beyond the unenforceable indemnity agreement. Amita's letter contained in the Fairness Response says that any demand on the public school system will be avoided because Rishi will be placed in a private Montessori school program, combined with home-schooling that Amita will provide. The affidavit of Vimal Sapru, who is Rishi's uncle, was also contained in the Fairness Response and noted that Vimal Sapru had "personally made enquiries at the Merle L. Levine Academy Inc. 4630 Dufferin St. Suite 318, Toronto, Ontario, M3H 5S4. The yearly fees for these schools are between $20,000 and $25,000." These elements of the "plan" are significant because according to the Fairness Letter, the largest social service costs that Rishi is likely to incur are for special education in Ontario's public school system.
55 According to the "plan," Rishi will also receive physiotherapy or occupational therapy privately through an organization called Footprints.
56 In my view, the Visa Officer was reasonable in concluding that this "plan" is not credible. As the respondent stressed in oral argument, there is no evidence that either the Montessori school under consideration or the Merle L. Levine Academy offer programs that are appropriate for Rishi's particular needs. As well, there is no evidence that either school is willing to accept Rishi as a student. While I accept Vimal Sapru's affidavit evidence that he "personally made enquiries" at the Merle L. Levine Academy, there is no evidence as to the results of those enquiries. The Medical Officer noted these concerns during cross-examination on her affidavit. Similarly, the Visa Officer reasonably concluded that providing a brochure for Footprints did not constitute an adequate "individualised plan."
57 There was a suggestion by the applicants in oral argument that the Visa Officer should have given them an opportunity to respond to these concerns. In this instance I am satisfied that the Officers' concerns are ones that the applicants should have anticipated. The Fairness Letter refers to a plan that is "individualized" and "workable"; the applicants should have known that listing names of schools and providing a brochure, without further detail, would not be sufficient. The onus is on the applicants to provide sufficient evidence to persuade the Officers. Therefore, in the circumstances of this case, the Officers did not have to raise their concerns with the applicants: Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FC 872.
58 To the extent the "plan" relies not on private schooling and physiotherapy, but on home schooling and other services provided by Amita, I find the Visa Officer was reasonable in finding this not to be credible. Rishi is certainly fortunate that his mother is a pediatrician, but there is no evidence that Amita has expertise in speech therapy, occupational therapy, or the educational needs of a child with developmental delay. Furthermore, the Visa Officer found that Amita was more likely than not to seek work outside of the home rather than staying home to care for Rishi. This conclusion was not unreasonable given that Amita has been either employed or self-employed continuously since 1992.
59 Since the applicants provided no credible "plan" for mitigating Rishi's excessive demand on social services, there is no need to consider whether they have the ability to carry out a "plan."
60 For all of these reasons, I conclude that the Visa Officer did not make any errors which would warrant the Court's intervention. The application for judicial review will be dismissed.


61 The applicants have proposed the following seven questions for certification as serious questions of general importance to the legal system:
Does the failure of the medical officer in this case to either conduct or direct the focus of the necessary inquiry herself vitiate her medical opinion?
Does the participation of the visa officer in the decision making as is contemplated by Operational Bulletin 063B fetter the discretion of the medical officer and the opinion to be reached under R. 30(4) [of the Regulations]?
Is the medical officer under no obligation to answer the submissions made in the fairness response by the applicant where they attempt to rebut those findings which were reached without enquiry as indicated by paragraph 61 of the reasons in Poste v. Canada?
Is the statement made by Justice Dubé in Gao v. Canada about limitations of review by an immigration [officer] of a medical opinion an accurate statement of law or has that statement been altered by the case of Dunsmuir v. Canada, or alternatively is there any conflict in the two theories of deference?
Is it necessary, with respect to criticisms of the plan put forward by the family of Rishi under oath sufficiently responsive to the medical opinion or should there be greater direction by the visa officer as to the extent of the plan?
If there are any questions in the mind of the medical officer or the visa officer about what appears as a prima facie attempt to provide a plan, the visa officer has the power to ask for further documentation or evidence. Since this is the first look at the plan by an official, should he not be entitled to provide the answer to any question raised by the officer as to any further detail required?
Does the fairness response cure or satisfy the obligation to conduct an enquiry or does Mr. Justice Kelen in Abdul v. Canada express a correct view of the law to the extent that the form utilized is not clear enough to constitute an enquiry?
62 The respondent objects to the certification of any of these questions on the ground that the applicants have done what the Federal Court of Appeal cautioned against in Varela v. Canada (Minister of Citizenship and Immigration), 2009 FCA 145, that is, drafting a "laundry list" of questions that do not transcend the interests of the parties.
63 The test for certification of a question is that it must be of general importance, transcend the interests of the parties and would be dispositive of an appeal: Zazai v. Canada (Minister of Citizenship and Immigration), 2004 FCA 89. The respondent submits that while questions (b), (d) and (g) would appear to transcend the interests of the parties involved, they would not be dispositive of an appeal in this case.
64 I find question (a) ambiguous. If it refers to the Medical Officer's obligation to consider all relevant factors herself, I have accepted the applicants' argument that she must do so. That finding is not dispositive since I decided the Medical Officer has done so.
65 If, however, the question is asking whether a Medical Officer must actively inquire into ability and intent using a "furtherance" or similar device, rather than relying on the applicants' Fairness Response, that question may transcend the present case and be dispositive of an appeal.
66 I would not certify question (b) because no argument about fettering discretion was made before me and because Operational Bulletin 063B was not in force at the material time.
67 The wording of question (c) is convoluted, but it appears to ask whether the Medical Officer has a duty to provide sufficient reasons, above and beyond that of the Visa Officer. I find that a question along these lines would be dispositive of an appeal and would be of general importance.
68 I do not think question (d) would be dispositive of an appeal and would not certify it.
69 If question (e) is asking whether the Fairness Letter ought to have given greater direction as to the contents of the required "plan," it does not transcend the facts of the present case. The question of whether or not a Fairness Letter provides sufficient guidance depends on the wording of the particular letter.
70 Question (f) asks whether, after receiving the applicants' "plan," the Officers must give the applicants an opportunity to respond to their concerns. In my opinion, this question should not be certified at this time because it appears well settled in the jurisprudence that in cases such as the one at bar, where a decision-maker's concern goes to the sufficiency of evidence and could have been anticipated, there is no obligation to seek clarification from the applicants: see Selliah, above.
71 Finally, question (g) assumes an interpretation of Justice Kelen's decision in Abdul that, in my view, cannot be correct. Contrary to the applicants' assertion, Justice Kelen was only criticizing the wording of the particular Fairness Letter in that case. As the sufficiency of a Fairness Letter depends on the wording of the particular letter, this is not a question that can transcend the facts of the present case to become a question of general importance. For that reason I will not certify it.
72 In conclusion, I would certify modified versions of questions (a) and (c), with their wording changed so that the questions are not tied to the facts of the present case.


IT IS THE JUDGMENT OF THIS COURT that the application for judicial review is hereby dismissed.

THIS COURT ORDERS that the following questions are certified as serious questions of general importance:
When considering whether a person is inadmissible on health grounds pursuant to paragraph 38(1)(c) of the Act, is a Medical Officer obligated to actively seek information about the applicants' ability and intent to mitigate excessive demand on social services from the outset of the inquiry, or is it sufficient for the Medical Officer to provide a Fairness Letter and rely on the applicants' response to that letter?
Is a Medical Officer under a duty to provide adequate reasons for finding that a person is inadmissible on health grounds pursuant to paragraph 38(1)(c) of the Act, which is independent from the Visa Officer's duty to provide reasons and which is therefore not satisfied by the Visa Officer providing reasons that are clearly adequate?