Gavel and Scales of JusticeAn employee of a designated entity under Canada’s economic sanctions laws may be determined to be inadmissible into Canada and denied entry due to concerns that their employer is subject to sanctions.  In addition, an employee of an entity that is covered by economic sanctions of another country or countries (e.g., the United States, the United Kingdom, Japan, etc.) may be determined to be inadmissible into Canada and denied entry due to concerns that their employer is subject to sanctions.

Such is the curious Federal Court of Canada case of Ramin Fallah v. The Minister of Citizenship and Immigration.  On September 18, 2015, the Federal Court of Canada dismissed an application for judicial review filed by Mr. Ramin Fallah, an employee (Managing Director) of an Iranian company (Fanavari Azmayeshgahi) that was a designated entity under the United Kingdom’s and Japan’s economic sanctions laws, but not listed under the Special Economic Measures (Iran) Regulations (Canada’s economic sanctions regulations in which designated entities are found). Mr. Fallah’s Iranian employer was known to trade in dual-use technologies and the employer was widely believed to be involved with the procurement of goods directly related to Iran’s nuclear program.

Mr. Fallah’s application for a work permit was denied by Citizenship and Immigration Canada on the basis that he was inadmissible as being a danger to the security of Canada.  The Canada Border Services Agency’s inadmissibility assessment stated that Mr. Fallah’s Iranian employer “has been involved with procurement connected to the Iranian nuclear program.”  The CBSA’s inadmissibility assessment further noted that Mr. Fallah’s employer has been identified in open sources and by allied governments as being an entity of Weapons of Mass Destruction concern.

Mr. Fallah contended that the CBSA’s reliance on outside sources gave rise to a breach of procedural fairness. The Federal Court of Canada did not agree.  The Court found that Mr. Fallah was aware that he was denied entry into Canada because of his relationship to his employer.  Mr. Fallah had failed to address the CBSA’s and Citizenship and Immigration Canada’s concerns in his communications relating to admissibility.  The Court was of the view that Mr. Fallah was in a position to fully address the CBSA officer’s concerns and he failed to provide evidence to alleviate those concerns.  The Court was of the view that Mr. Fallah was privy to information and failed to provide it to Canada at his peril.  The Court stated that Mr. Fallah “had the opportunity and obligation to provide a full, exculpatory history of his employer’s business practices, yet his response to Officer’s fairness letter was profoundly deficient”.

The Court understood that Mr. Fallah’s employer was not a designated entity under Canada’s unilateral economic sanctions laws.  However, the Court opined that:

“Mr. Fallah complains that the Officer read too much into the listing of his employer in finding that it was “an entity of proliferation concern” in the United Kingdom and Japan. He says that as an importer of medical imaging products capable of being repurposed, it was inevitable that its business would be scrutinized by exporting countries. This, by itself, would not support the Officer’s view that the company was “an entity of proliferation concern”. According to this argument, the fact that Canada did not list Mr. Fallah or his employer under the SEMA regulations was strong evidence that they were not of any concern and that the Officer’s contrary view was perverse.

In my view the Officer’s characterization of the United Kingdom and Japanese export protocols concerning Mr. Fallah’s employer was reasonable. The record discloses that the company was on a watch list in the United Kingdom and Japan so that its importation of dual purpose products could be scrutinized. The record also discloses that the company’s attempts to import products had sometimes been blocked. This was sufficient support for the Officer’s view that the company represented a “proliferation concern”.

It is not an answer to this finding to point out that some importations had been approved. Based on the limited records submitted by Mr. Fallah, those transactions appear not to have involved any technology risks because the imported products were only useful in medical applications. What would have been far more persuasive was evidence showing that Mr. Fallah’s employer was regularly authorized to import dual purpose technologies. The absence of any evidence to that effect is a telling omission.

The fact that neither Mr. Fallah nor his employer were prohibited from exporting Canadian products to Iran under the SEMA regulations says very little about whether they, nevertheless, represented an ongoing security concern. The company appears to have pursued legitimate business interests in the supply of medical equipment of all sorts. There would be no obvious reason for Canada to block those transactions by listing the company or Mr. Fallah.

This decision is important to persons from countries that are subject to Canada’s economic sanctions and the economic sanctions of other countries.  It goes without saying that designated individuals most likely will be considered to be inadmissible to Canada.  However, Canada is also concerned about persons connected to designated entities.  You had better be prepared to provide documents that would alleviate Canada’s concerns if you wish to be granted a work permit to work in Canada. Also, Canada takes nuclear non-proliferation seriously.

For more information, please contact Cyndee Todgham Cherniak at 416-307-4168 or at cyndee@lexsage.com. Alternatively, visit www.lexsage.com.