2022 FC, 2022 FC 1169

Date: 20220805 Docket: IMM-1670-21 Citation: 2022 FC 1169 Ottawa, Ontario, August 5, 2022 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:ADAM THOMASApplicantandTHE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESSRespondent REASONS AND JUDGMENT [1] Mr. Adam Thomas (the “Applicant”) seeks judicial review of the decision of the Minister of Public Safety and EmergencyPreparedness (the “Respondent”).

By the decision, the Respondent refused the Applicant’s application for ministerial relief pursuant tosection 42.1 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”). [2] The Applicant is a citizen of the United States of America. He became a permanent resident of Canada in May 2000. [3] In 2002, the Applicant and one Mr. Benjamin Nicoletti were indicted in the United States by a grand jury on numerousgambling charges. Among other things, the indictment alleged that the Applicant and Mr.

Nicoletti were part of a “criminal enterprise”.The indictment was ultimately withdrawn by the American authorities. [4] In 2004, the Applicant entered a plea agreement and pleaded guilty to a charge of using extortionate means to collect anextension of credit. He received a 24 month sentence of imprisonment and supervised probation for 2 years.

Before his release fromprison in the United States, the Applicant requested permission from the Chief US District Judge who had presided over his case, toreside in Canada. [5] The request was granted on March 22, 2006 and the Applicant returned to Canada on April 7, 2006. [6] On May 16, 2013, the Applicant submitted an application to Immigration, Refugees and Citizenship Canada (“IRCC”) forcriminal rehabilitation. [7] On May 26, 2014, the Refugee Protection Board, Immigration Division (the “ID”) determined that the Applicant isinadmissible to Canada on grounds of serious criminality and for membership in a criminal organization, pursuant to paragraphs 36(1)(b)and 37(1)(a), respectively, of the Act. [8] In June 2015, the Applicant’s application for criminal rehabilitation was approved and the inadmissibility bar for seriouscriminality was no longer an issue. [9] On July 15, 2015, the Applicant applied for ministerial relief pursuant to subsection 42.1(1) of the Act, seeking a declarationthat he was no longer inadmissible pursuant to paragraph 37(1)(a). [10] The Canada Border Services Agency (the “CBSA”) recommended that the Respondent refuse the application. [11] On February 21, 2021, the Respondent refused the application. [12] The Applicant argues that the Respondent’s analysis of national interest is unreasonable, that the consideration of the grandjury indictment was unreasonable and that the Respondent made findings that were unsupported by the evidence. [13] The Respondent submits that the decision is reasonable. [14] The decision attracts review on the standard of reasonableness, following the teachings in in Canada (Minister of Citizenshipand Immigration) v.

Vavilov, 2019 SCC 65 , [2019] 4 S.C.R. 653. [15] In considering reasonableness, the Court is to ask if the decision under review "bears the hallmarks of reasonableness —justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bearon that decision"; see Vavilov, supra at paragraph 99. [16] In his decision, the Respondent reviewed the broad question of “national interest”, relative to the Applicant’s history,including the conviction in the United States.

The Applicant argues that in denying his request for relief under subsection 42.1(1), theRespondent erred by failing to consider any of the evidence and arguments that he submitted relating to the element of “danger” in theassessment of national interest. [17] The Respondent submits that relief can be denied without a finding that a person is a present or future danger. He notes that

subsection 42.1(3) of the Act provides that he is not limited to considering the danger that a foreign national presents to the public or tothe security of Canada, and suggests that the proper

interpretation of this subsection means that he need to consider “danger” at all. [18] The following provisions of the Act are relevant to this application: Exception – application to Minister Exception — demande au ministre42.1

(1) The Minister may, on application bya foreign national, declare that the mattersreferred to in

section 34, paragraphs 35(1)(b)and (

c) and subsection 37(1) do not constituteinadmissibility in respect of the foreignnational if they satisfy the Minister that it isnot contrary to the national interest. 42.1

(1) Le ministre peut, sur demande d’unétranger, déclarer que les faits visés à l’article34, aux alinéas 35(1)

b) ou

c) ou auparagraphe 37(1) n’emportent pasinterdiction de territoire à l’égard del’étranger si celui-ci le convainc que cela neserait pas contraire à l’intérêt national.… ...Considerations Considérations42.1

(3) In determining whether to make adeclaration, the Minister may only take intoaccount national security and public safetyconsiderations, but, in his or her analysis, isnot limited to considering the danger that theforeign national presents to the public or thesecurity of Canada. 42.1

(3) Pour décider s’il fait la déclaration,le ministre ne tient compte que deconsidérations relatives à la sécurité nationaleet à la sécurité publique sans toutefois limiterson analyse au fait que l’étranger constitue ounon un danger pour le public ou la sécuritédu Canada. [19] The Applicant proposes that a “proper”

interpretation of subsection 42.1(3) means that the Respondent is required to considerdanger but is at liberty to consider other factors as well. [20] In Ragupathy v.

Canada (Minister of Citizenship and Immigration) (2006), 2006 FCA 151 , 350 N.R. 137 atparagraph 17, the Federal Court of Appeal held that “danger to the public” means a “present or future danger to the public”. [21] Considering this jurisprudential guideline, the Respondent’s analysis of “national interest” was unreasonable because it failedto consider the Applicant’s submissions on “danger”, in particular the evidence of his criminal rehabilitation. [22] The word “danger” is part of the text of subsection 42.1(3).

It is elementary law that all the words of a statutory provision areto be considered. [23] I refer to paragraph 122 of Vavilov, supra: It can happen that an administrative decision maker, in interpreting a statutory provision, fails entirely to consider a pertinent aspect of itstext, context or purpose. . . . [If] it is clear that the administrative decision maker may well, had it considered a key element of a statutoryprovision’s text, context or purpose, have arrived at a different result, its failure to consider that element would be indefensible, andunreasonable in the circumstances. [24] In seeking ministerial relief pursuant to subsection 42.1(1), the Applicant presented substantial submissions, showing how heis not a present or future threat or danger to Canadians or national security of Canada.

The submissions included evidence of his earliertemporary residence permit, his Authorization to Return to Canada, and his criminal rehabilitation. [25] In my opinion, where substantial submissions were made on the subject of “danger” and “danger” is included in the relevantprovision of the Act, a reasonable analysis by the decision-maker, that is the Respondent, requires consideration of the evidence and anexplanation for any rejection of that evidence. [26] It is not necessary for me to address the other issues and arguments raised by the parties since, in my opinion, the decision isunreasonable. [27] Further to a Direction issued on March 25, 2022, the Applicant submitted two questions for certification by letter dated March29, 2022.

By letter dated April 1, 2022, the Respondent set out his opposition to those questions. The Applicant filed a reply by letterdated April 8, 2022. [28] The test for certifying a question, for the purposes of subsection 74 (

d) of the Act, is whether there is a serious question ofgeneral importance that is dispositive of an appeal; see the decision in Zazai v. Canada ( Minister of Citizenship and Immigration) 2004FCA 89 , 318 N. R. 365 (F.C.A.). [29] In view of my disposition of this matter, the threshold for certifying a question is not met. The pending determination by theSupreme Court of Canada about the

interpretation of “national security” in Canada (Minister of Citizenship and Immigration ) v. Mason,No. 39855, albeit relative to

section 34 of the Act, may be relevant to the redetermination of this matter. [30] The application for judicial review will be allowed, the decision will be set aside and the matter remitted to the Respondentfor redetermination. JUDGMENT in IMM-1670-21 THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision is set aside and the matter remitted tothe Respondent for redetermination. There is no question for certification.

“E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-1670-21 STYLE OF CAUSE: ADAM THOMAS v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: HELD BY WAY OF VIDEOCONFERENCE BETWEEN TORONTO, ONTARIO AND ST. JOHN’S, NEWFOUNDLAND AND LABRADOR DATE OF HEARING: MARCH 17, 2022; FURTHER SUBMISSIONS WERE MADE ON MARCH 29, APRIL 1 AND APRIL 8 REASONS AND JUDGMENT: HENEGHAN J. DATED: AUGUST 5, 2022 APPEARANCES : Neerja Saini Ravi Jain FOR THE APPLICANT Gregory George FOR THE RESPONDENT SOLICITORS OF RECORD : Green and Spiegel, LLP Barristers and Solicitors Toronto, Ontario FOR THE APPLICANT Attorney General of Canada Toronto, Ontario FOR THE RESPONDENT