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EXCLUSION (INADMISSIBLE PERSONS) - Grounds for inadmissibility - Security

Thursday, January 24, 2019 @ 8:35 AM  

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Application by Soe for judicial review of a decision by the Minister of Public Safety and Emergency Preparedness refusing Soe's application for Ministerial relief under the former s. 34(2) of the Immigration and Refugee Protection Act (IRPA). Soe, national of Myanmar, made a claim for refugee protection in Canada in 2003. The claim was suspended due to inadmissibility under s. 34(1)(c) of the IRPA, which stemmed from Soe's role in hijacking a passenger plane in 1989. The hijacking had been for the purpose of bringing attention to human rights abuses by the Myanmar government, and involved fake explosive devices; no passengers were harmed. Soe was deemed inadmissible in June 2007. Soe sought Ministerial relief under s. 34(2), which was denied. The CBSA issued a recommendation to the Minister in November 2017 that Soe should be denied s. 34(2) relief. The CBSA determined Soe had planned and committed a violent and dangerous act of terrorism by participating in the hijacking, despite the explosive devises being inert. The CBSA found the fact that one of the false explosive devices used by Soe contained ammonium nitrate "heightened the potential harm" of the hijacking. The issues were the reasonableness of the Minister's decision to deny Soe relief, and whether the Minister had fettered his discretion. Soe argued the Minister's decision unreasonably focused on the hijacking, instead of Soe's current and future threat to Canada and the Minister had fettered his discretion by declining to consider the standard of proof applicable to whether Soe committed a terrorist act.

HELD: Application allowed. The standard of review on the Minister's decision was reasonableness. The issue of fettered discretion did not fit neatly into a standard of review decision category; however, a decision that was the product of fettered discretion would be set aside. Here, the stated basis of the decision were the predominant considerations of national security and public safety. However, the decision did not determine that Soe posed any threat or risk to public safety or national security. The rationale of the decision appeared to be that Soe was a national security and public safety risk because, in his youth, he committed a single terrorist act, which had not been alleviated by subsequent events. This reasoning lacked justification, transparency and intelligibility and was unreasonable. There was no evidence that Soe posed any kind of risk or threat to national security or public safety. Apart from the hijacking, Soe's record was highly positive. Further, the Minister did not say that the hijacking itself was sufficient to deny Soe relief under s. 34(2). As stated by the Supreme Court of Canada in Agraira, national interest encompassed more than national security and public safety. The Minister's reasons were also unintelligible and unreasonable in regard to the threat of the false explosive devices. The Minister conceded the device used by Soe in the hijacking was not real or functional, which meant the statement that the use of ammonium nitrate "heightened the potential for harm" was not intelligible. This was an important factual error because in the absence of other "national security and public safety concerns", the decision rested on the hijacking, in which the bomb was false, could not be detonated and posed no heightened potential of harm. It was still unclear why the Minister was refusing to exercise his discretion in Soe's favour. The decision was quashed and returned to the Minister for redetermination.

Soe v. Canada (Minister of Public Safety and Emergency Preparedness), [2018] F.C.J. No. 1207, Federal Court, J. Russell J., November 29, 2018. Digest No. TLD-January212019008