ERMIAS GELAYE GAGA Applicant v. THE MINISTER OF CITIZENSHIP, 2020 FC 607

Date: 20200511 Docket: IMM-3421-19 Citation: 2020 FC 607 Ottawa, Ontario, May 11, 2020 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:ERMIAS GELAYE GAGAApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] Mr. Ermias Gelaye Gaga (the "“Applicant”") seeks judicial review of the Deportation Order made by the Immigration and RefugeeBoard, Immigration Division (the "“ID”"), pursuant to paragraph 229(1)(

a) of the Immigration and Refugee Protection Regulations,SOR/2002-227 (the "“Regulations”"). [2] The Applicant is a citizen of Ethiopia. He worked as a cyber media analyst with the Information Network Security Agency("“INSA”").

He arrived in Canada on October 2, 2017 as the holder of a temporary resident visa. [3] On November 8, 2017, the Applicant applied for refugee protection based on his fears of persecution resulting from his resistance toperforming certain activities while employed with INSA. [4] The Applicant was interviewed by an officer of the Canada Border Services Agency (the "“Officer”"), relative to his refugee claim,on March 22, 2018. Subsequently, the Officer prepared a report pursuant to subsection 44 (1) of the Immigration and Refugee ProtectionAct, S.C. 2001, c.27 (the "“Act”").

The Officer recommended that the Applicant be referred to the ID for an admissibility hearing. [5] In its decision, the ID found that the Applicant was a member of INSA and that INSA is an organization that has engaged inespionage, contrary to Canada’s interests. It noted that INSA had spied on Ethiopian citizens residing in countries allied to Canada,including the United States. It found that the Applicant is inadmissible to Canada, pursuant to paragraphs 34(1)(

a) and 34(1)(

f) of theAct. [6] The ID found that actions against Canada’s allies may be contrary to Canada’s interests. It adopted the

interpretation of "“nationalinterests”", as discussed in Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 , [2013]2 S.C.R. 559, that is "“matters which are of concern to Canada and to Canadians.”" [7] The ID found that Canada’s interests include upholding Canadian values that underlie the Canadian Charter of Rights andFreedoms, s 7,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (the "“Charter”"), andthat Canadian values include privacy. It concluded that spying on Ethiopians, who reside in countries that are Canada’s allies, wascontrary to Canada’s interests. [8] The Applicant now challenges the ID’s finding that he was a "“member”" of INSA, since he had no personal knowledge of orinvolvement in the alleged acts of espionage. [9] The Applicant also argues that the ID erred in finding that INSA is an organization that is involved in espionage and that it did notconsider all the evidence in making that finding.

He also submits that the ID erred in failing to consider that INSA contains "“sub-groups”" and that acts of espionage were conducted by an isolated group of employees acting beyond their authority. [10] The Minister of Citizenship and Immigration (the "“Respondent”") submits that the decision of the ID is reasonable and supportedby the evidence. [11] The decision in question raises a question of mixed fact and law, and is reviewable on the standard of reasonableness; see thedecision in Canada (Minister of Citizenship and Immigration) v.

Vavilov, 2019 SCC 65. [12] In Vavilov, supra, the Supreme Court of Canada confirmed the content of the standard of reasonableness, as set out in Dunsmuir v.New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190. [13] According to the decision in Dunsmuir, supra, the standard of reasonableness requires that a decision be justifiable, transparent andintelligible, falling within a range of possible, acceptable outcomes that are defensible on the law and the facts. [14] The Applicant is contesting two factual findings, that is his status as a "“member”" of INSA and the status of INSA as anorganization involved in espionage contrary to Canada’s interests. [15] According to the decision in Ugbazghi v.

Canada (Minister of Citizenship and Immigration), 2008 FC 694, the word "“member”"should be broadly interpreted.

[16] In submissions before the ID, the Applicant admitted that he was employed by INSA but said that he was never engaged inespionage activities. [17] According to the decision in Kanagendren v. Canada (Minister of Citizenship and Immigration), 2015 FCA 86, the application ofsubsection 34(1) of the Act does not require complicity or a significant contribution by an individual to the activities of an organization tojustify the finding of inadmissibility. [18] In Khan v.

Canada (Minster of Citizenship and Immigration), 2017 FC 397, the Court found that if a person admits to membershipin an organization such admission applies to "“membership”" for all purposes, including determining inadmissibility pursuant tosubsection 34(1). [19] In light of the evidence before the ID, including the testimony of the Applicant and the relevant jurisprudence, the ID’s finding thatthe Applicant is a "“member”" of INSA is reasonable and meets the test in Dunsmuir, supra. [20] However, in my opinion, the ultimate finding of inadmissibility fails to meet the applicable standard of review.

It appears that theID simply adopted the reasoning of the Officer who prepared the subsection 44(1) report that referred the Applicant for an admissibilityhearing.

Paragraphs 2 to 11 on page 15 and paragraphs 1 to 5 on page 16 of the ID’s decision appear to be taken directly from the reportprepared by the Officer. [21] Although the ID referred to the decision in Agraira, supra it did not give its own reasons as to why the actions taken by INSA, anon-Canadian actor, against non-Canadians outside Canada, engaged and breached the Charter. [22] Adoption of the reasons by another decision maker without showing clear engagement with the issues does not meet therequirements of justification, transparency and intelligibility, per the decision in Dunsmuir, supra and endorsed by the decision inVavilov, supra. [23] In the result, the application for judicial review will be allowed, the decision of the ID will be set aside and the matter remitted to adifferent member of the ID. [24] The Respondent proposed the following question for certification: Is a person admissible to Canada pursuant to s.34(1)(f)of the Immigration and Refugee Protection Act for being a member ofan organization for which there are reasonable grounds to believe has engaged in, engages in or will engage in acts ofespionage that are "contrary to Canada's interests" within the meaning of s.34(1)(a)of the Act if the organization's espionageactivities take place outside of Canada and target foreign nationals in a manner that is contrary to the democratic values ofCanadian society and the Canadian Charter of Rights and Freedoms, including the fundamental freedoms guaranteed bysection 2 of the Charter? [25] The test for certifying a question, pursuant to subsection 74(

d) of the Act, is set out in Zazai v. Canada (Minister of Citizenship andImmigration), 2004 FCA 89 and was recently confirmed in Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018FCA 22 , [2018] 3 F.C.R. 674. The test for certification requires a serious question that raises issues of broad significance orgeneral importance and that is dispositive of an appeal. [26] In this case, I am not satisfied that the disposition of this application for judicial review gives rise to a certified question and noquestion will be certified.

JUDGMENT in IMM-3421-19 THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision of the Immigration and RefugeeBoard, Immigration Division is set aside and the matter remitted to a different member of the Immigration and Refugee Board,Immigration Division for redetermination. There is no question for certification arising. "E. Heneghan" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-3421-19 STYLE OF CAUSE: ERMIAS GELAYE GAGA v. THE MINISTER OF CITIZENSHIP ANDIMMIGRATION PLACE OF HEARING: Toronto, Ontario

DATE OF HEARING: MARCH 3, 2020 JUDGMENT AND REASONS: HENEGHAN J. DATED: MAY 11, 2020 APPEARANCES : Daniel Kebede For The Applicant Bernard Assan For The Respondent SOLICITORS OF RECORD : Daniel Tilahun Kebede Barristers and Solicitors Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent