Mar 24, 2016

Federal Court Distinguishes between a Scientist and a Security Threat

Alijani v. Canada (Citizenship and Immigration), 2016 FC 327 (CanLII)

Obtaining an advanced science and/or engineering degree from a prestigious university should not result in brilliant individuals being labelled a danger to the security of Canada. At first thought, it is comical that this distinction needs to be made. At second thought, and after the many seconds of thought that come thereafter, the fact that it takes a Federal Court judge to explain this distinction to officers at the Ministry of Citizenship and Immigration (CIC) and the Canada Border Services Agency (CBSA) quells any instinct to chuckle. It is frustrating, aggravating, irritating – the adjectives are endless. The reason is this: the equating of a remarkably intelligent scientist and a security threat - with absolutely no credible evidence to link the two descriptors together except for the fact that the individual is Iranian and/or that the university is in Iran – is extremely problematic. That this decision would then be supported in litigation by the Minister of CIC lends credence to the argument that the prejudices in this Ministry are institutional and embedded within all compartments and at levels.

Mr. Farbod Alijani is a citizen of Iran. He has a Master’s and Doctorate Degree in Mechanical Engineering from the prestigious Amirkabir University of Technology (AUT) in Tehran. Mr. Alijani’s Master’s thesis was titled “Application of Extended Kantorovich Method to the Bending of Cylindrical Panels”. His Doctoral thesis was titled “Nonlinear Vibrations of FGM Doubly-Curved Shells”. He had come to Canada in December 2009 as a visitor for post-doctoral research on “Nonlinear Vibrations of Shells and Plates” at McGill University. Eventually, Mr. Alijani was appointed as Postdoctoral Scholar in the Department of Mechanical Engineering at McGill so that he could undertake research on the “dynamics and stability of human aorta related to dissection”.

Despite his accomplishments and contributions to the international and Canadian scientific community, an officer at the CBSA issued an inadmissibility assessment against Mr. Alijani on the basis of section 34(1)(d) of the Immigration and Refugee Protection Act: “A permanent resident or a foreign national is inadmissible on security grounds for being a danger to the security of Canada”. Subsequently, a CIC officer refused to extend Mr. Alijani’s work permit due to his inadmissibility. Mr. Alijani agreed to leave Canada after CIC agreed to reassess his file.

Subsequently, a second CIC officer (and the third decision maker thus far) sent Mr. Alijani a procedural fairness letter requesting that Mr. Alijani provide additional information to prove that he is not a security threat. The basis for the security concern was that “AUT is listed by some governments as an “entity of concern” with respect to nuclear weapons and military imports”. According to this officer, Mr. Alijani had studied at AUT, and Mr. Alijani’s field of study may be related to nuclear activity and ballistic missiles. Ipso facto, admissibility concerns.

Mr. Alijani submitted evidence to dissuade this officer of this reasoning, including affidavits and letters from colleagues attesting that Mr. Alijani’s research was unrelated to any nuclear program. This evidence was insufficient to counter the officer’s conclusion that Mr. Alijani was a danger to the security of Canada. The Federal Court summarizes the officer’s reasoning as follows:

The officer acknowledged the Applicant’s explanation that the sole fact of having attended AUT in engineering did not imply that he was involved in Iran’s nuclear program. The officer noted, however, that the Applicant had not denied that the AUT had links with the government, or nuclear, spatial, or weapons of mass destruction [WMD] programs, nor had he denied that AUT could be used as a façade for military imports and research. The officer cited the Wikipedia page that the Applicant had submitted with respect to the entrance exam for admission to AUT, which states that the entrance exam not only tests students’ knowledge, but also their “commit[ment] to the ideology of the revolution”.

The officer also cited the AUT website which states that there are nearly 130 doctoral students in Mechanical Engineering there, and that these students play an important role within Iranian industries and government. The officer then considered the Applicant’s thesis topics and gave little weight to the letters from the Applicant’s colleagues, finding that one of the Applicant’s research proposals could be used for nuclear, spatial, missile and WMD technology.

Thus, although the officer began with the acknowledgement that having attended AUT did not link Mr. Alijani to Iran’s nuclear program, her finding was based on Mr. Alijani’s failure to deny AUT’s link with Iran’s nuclear program. In other words, Mr. Alijani’s failure to prove a negative in respect of an issue that no reasonable person could prove was fatal to his application.

In analyzing the reasonableness of this third officer’s decision, the Federal Court clarified that there is a two-part test for assessing whether Mr. Alijani and other such individuals are a security threat. First, the officer must find that Mr. Alijani’s expertise could be used in nuclear technology or in the production of missiles and other weapons. Second, the officer must believe that there is actually a “serious possibility based on credible evidence that the Applicant could use his expertise in nuclear technology or in the production of missiles and other weapons”.

The Federal Court found that the officer “focused on the second issue without seriously assessing the technical aspect of the Applicant’s expertise”. More specifically:

The Applicant provided numerous letters from colleagues that describe what his research is actually about – not only in much more detail than any of the documentary evidence relied upon by the officer, but in a way that is specific to the Applicant. The officer barely discussed these letters, giving them little weight. She rather focussed on a research proposal that the Applicant had made but that never materialized, and which, according to the Applicant’s affidavit, related to the flutter of wings modeled as trapezoidal plates, and was applicable to airplanes’ wings. Extrapolating from this proposal, the officer found that part of the Applicant’s current research could apply to nuclear technology, aerospace vehicles, ballistic missiles and WMD [emphasis added].

Without deciding whether the officer’s assessment of the second issue was indeed reasonable (as the unreasonableness in the analysis of the first issue was sufficient), the Federal Court quashed the officer’s decision and remitted it for determination. However, inexplicably, the Federal Court did seem to sympathize with the Officer, stating that it could be that some of the scientific evidence was ignored because it was difficult to understand:

…it is the duty of the party bearing the burden of proof to present scientific evidence in terms that are likely to make sense to the decision maker. Here, it might be said that large portions of [a supporting professor’s] affidavit could only be understood by mechanical engineers.

In any event, it is not the duty of this Court to assess the evidence that was before the officer. It was for the officer to assess…[emphasis added]

It confounding how exactly the Federal Court thought that such complex concepts could be “simplified” for this officer, or how the author of such an affidavit could know the precise intelligence level of the reviewing individual. Regardless, I obviously agree with the ultimate decision of the Federal Court that the decision was unreasonable, and that there needs to be both a determination that the individual’s knowledge is relevant and that there is a solid link between that knowledge and the perceived security threat. However, the decision of all the officers involved in Mr. Alijani’s application, as well as the conduct of the Minister in litigating such shoddy decision-making, needed to be overturned in stronger terms. This decision was not just unreasonable. It is cloaked in a very strong odour of prejudice. To use pre-Dunsmuir language, it was patently unreasonable.