Date: 20060627
Docket: T-54-06
Citation: 2006 FC 816
OTTAWA, ONTARIO, June 27, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
FARHANG BURTOR IRANI
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an application
for judicial review of Transport Canada Safety and Security’s decision to deny
the Applicant’s application for Transportation Security Clearance (“TSC”) at Pearson Airport.
[2]
Applicant
was born in India and arrived in Canada on November 8, 2004 as a permanent resident. He was assessed to
immigrate as an Air Traffic controller and came to Canada for that purpose. He has been unable to
do this because he has not obtained a TSC. He holds a United States Department
of Transportation Aircraft Dispatcher License that was issued on May 27, 1999
and has found employment with Air Canada.
[3]
Airport
security is governed by the Aeronautics Act, R.S. 1985 c.A-2 (the “Act”) and the Canadian Aviation Security
Regulations, SOR/2000-111 (the “Regulations”). The
Airport Restricted Area Access Clearance Program (the “Program”) is well
described in the affidavit of Robert Hartman, a Superintendent in the
Intelligence Branch of Transport Canada. He states:
4. Security at designated
aerodromes (“airports”) is governed by the Aeronautics Act and its
Regulations and policy.
5. The Canadian Aviation
Security Regulations provide, in part, that restricted areas of airports
are only accessible to persons holding a Restricted Area Pass.
6. The Airport Restricted Area
Access Clearance Security Measures (the “Measures”) were incorporated by
reference in section 4 of the Regulation. They provide, in part, that operators
of designated airports are prohibited from issuing a Restricted Area Pass to a person (subject to limited
exceptions), unless the person has been granted a Clearance by the Minister. A
copy of the Measures, including security controls, is attached as Exhibit “A”
to this Affidavit.
7. One of the Measures authorizes
operators of a designated airport to issue a Restricted Area Pass to a person who requires temporary
access to a restricted area (“Temporary Pass”) and who has applied
for, but is still awaiting a Clearance. An individual with a Temporary Pass is
not permitted access to restricted areas unless that individual is subject to
security controls, as set out in the Measures attached hereto as Exhibit “A”,
at all times while in a restricted area.
TRANSPORTATION SECURITY
CLEARANCES
8. The Minister has the
discretion to grant, refuse, suspend or cancel a Clearance. The Minister
exercises his discretion in accordance with policy and objectives contained in
the Transportation Security Clearance Program – Aviation (the “Program”), a
copy of which is attached as Exhibit “B” to this affidavit.
9. The Program is made available
to members of the public on the Transport Canada, Security and Emergency
Preparedness website: www.tc.gc.ca/vigilance/sep/tscp/tscp_manual_contents.htm. The Minister instituted the
Program in 1985 following the bombing of Air India Flight 182.
10. The purpose and aim of the Program is to
prevent interference with civil aviation, and to promote the safety and
security of the public, passengers, crew members, aircraft, aerodromes, and
other aviation facilities by requiring certain classes of persons to hold a
Clearance.
11. Pursuant to section 1.3(c) of the
Program, an applicant for a Clearance must provide 5 years of adequate,
reliable and verifiable information to permit the necessary background checks
to be completed.
12. As set out in section II.19 of the
Program, individuals who apply for a Clearance must undergo comprehensive
background checks that include a fingerprint-based criminal records check with
the RCMP, a CSIS indices check, a Canadian Police Information Centre check, and
a Credit Bureau check (“Background Checks”).
13. The background checks do not verify
information relating to time spent residing or working outside Canada. Accordingly, when an
applicant has been outside of Canada during the review period in
question, the security check will return as “incomplete”.
14. In such cases, Superintendents such as me
review all of the information provided and identify potential areas of
concern. The applicant is advised in writing of areas of concern and given the
opportunity to provide additional information in support of his or her
application.
15. Once the applicant has provided any
additional information he or she wants to have considered, the application is
put before a Review Panel. The Review Panel is established within Transport Canada to provide advice and
recommendations to the Minister in respect of Clearance applications.
16. Upon receiving an application, the Review
Panel considers the information provided by an applicant. The Review Panel
then formulates a recommendation to the Minister to either grant or refuse the
Clearance depending on whether the application meets the Program requirement
for adequate, reliable and verifiable information.
17. If the Minister refuses a Clearance an
individual may submit a new application only if a period of 5 years has elapsed
after the day of the Clearance refusal, or a significant change has occurred in
the circumstances that led to the refusal. Such a “significant change” could include
evidence of more time having been spent in Canada, or additional information that is
adequate, reliable and verifiable covering the 5 year period under review.
[4]
The Applicant
applied for his TSC on
February 7, 2005 after residing in Canada for approximately
three months.
[5]
Transport
Canada replied by letter to the Applicant on July 14, 2005 stating additional
information could be submitted for the four years and four months where the
information was not sufficient to assess his clearance. He was told he could
submit additional information by August 14, 2005.
[6]
On July 20,
2005, Mr. Hartman spoke to the Applicant about the information requirements and
that he could provide additional information. On October 6, 2005, the
Applicant told Mr. Hartman that he would be submitting the documents shortly.
This information was received on October 12, 2005.
[7]
Mr. Hartman
reviewed the additional information and the application. The dates of
employment on the Air India employment certificate contradicted the information
on the application. It stated he worked with Air India until April 2005 whereas Mr. Irani
immigrated to Canada in November 2004. On November
14, 2005, an email was sent to the address on the employment certificate to
verify information. There was no response to this email.
[8]
On November
30, 2005 the file was presented to the Review Panel. Their recommendations
were to refuse the application for two reasons:
1.
Of the
five (5) years of information required to make a decision, a period of only one
(1) year is deemed to be verifiable and reliable.
2.
The
additional information provided by the applicant in support of his application
was reviewed and deemed to not sufficiently meet the information standards of
the Transportation Security Clearance Program.
[9]
On December
19, 2005, a decision was made to deny the application. The letter advising the
Applicant stated:
The Panel was unanimous in its decision to
recommend the refusal of this application based on the absence of sufficient,
verifiable and reliable information. Specifically, of the five (5) years of
information generally required to formulate a recommendation, a period of four
(4) years of information provided in Mr. Irani’s application is considered not
sufficient to fully assess the factors relevant to a transportation security
clearance. This period of time reflects the time he spent in India, where
information cannot be verified under the arrangements available to Transport Canada. In addition, information provided by the applicant in support of his
application was reviewed and deemed to not sufficiently meet the information
standards of the Transportation Security Clearance Program.
(R.R. page 69)
[10]
The Applicant is now
seeking judicial review of that decision arguing that he was denied procedural
fairness as no written reasons for the decision were provided.
STANDARD OF REVIEW
[11]
Given that the
Applicant alleges lack of procedural fairness the standard of review is
evidently correctness (see Sketchley v. Canada (Attorney General), 2005 FCA 404).
ANALYSIS
[12]
The Applicant’s
position is that reasons have not been provided to date. The Applicant quotes
extensively from Baker v. Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817 to support its position that reasons are necessary. The
Applicant submits the affidavit of Robert Hartman should not be sufficient as
reasons as Mr. Hartman was not the decision
maker. An affidavit prepared for the purpose of responding to judicial review
cannot constitute reasons for the decision.
[13]
The Applicant further
submits that Exhibit J to Mr. Hartman’s affidavit, the Review Panel’s
Recommendation/Rationale, should also not constitute reasons as they were not
made by the decision maker and are only recommendations. Furthermore, the
content in the recommendation is sparse and cannot withstand a probing
examination.
[14]
The Applicant claims at
paragraph 10 of his affidavit that if he had been aware of the substantive
issues for the refusal to issue a TSC, he could have provided his tax documents
as proof of his employment record in India.
[15]
In my view none of
these arguments can succeed.
[16]
The Applicant is
correct when pointing out that the affidavit of Mr. Hartman cannot serve as
reasons. An easy analogy can be made to immigration cases where upon challenge,
the respondent generally files an affidavit accompanied by CAIPS notes. Justice
Martineau observed in Kalra v. Canada (Minister of Citizenship and Immigration), 2003 FC 941 at para 15:
In my view, the CAIPS notes
can constitute the reasons for the visa officer’s decision but not the
affidavit. The affidavit should only be considered as a means to enter into
evidence the CAIPS notes and to elaborate on the information found in the CAIPS
notes but not as a late explanation for the decision. The affidavit is usually
filed for the purpose of the judicial review and is filed many months or a year
after the decision. It is usually based on the CAIPS notes which should
reflect the reasoning followed by the visa officer to reject or allow the
application. As pointed out in Idedevbo v. Canada (Minister of Citizenship
and Immigration), 2003 FCT 175, [2003] F.C.J. No. 255, if the visa
officer’s affidavit is inconsistent with the CAIPS notes, the later should be
considered more accurate considering that they were entered following the
review of the file and were closer in time to the actions than the former.
[17]
The recommendations of the
Review Panel were accepted by the ultimate decision maker, the deputy Minister,
without change and thus serve as reasons in this case, just as CAIPS notes
serve as reasons in an immigration case. The affidavit is helpful to explain
surrounding circumstances but cannot be taken as reasons for the decision on
the basis of the rationale given by Justice Martineau in Kalra, supra.
[18]
This position is fully
congruent with Baker, supra as that case points out that the duty
to provide written reasons is a flexible one and has to be assessed in the
light of the circumstances. In paragraphs 43 and 44 in Baker Madame justice
L’Heureux Dube observed:
In my opinion, it is now
appropriate to recognize that, in certain circumstances, the duty of procedural
fairness will require the provision of a written explanation for a decision.
The strong arguments demonstrating the advantages of written reasons suggest
that, in cases such as this where the decision has important significance for
the individual, when there is a statutory right of appeal, or in other
circumstances, some form of reasons should be required. This requirement has
been developing in the common law elsewhere. The circumstances of the case at
bar, in my opinion, constitute one of the situations where reasons are
necessary. The profound importance of an H & C decision to those affected,
as with those at issue in Orlowski, Cunningham, and Doody, militates in favour
of a requirement that reasons be provided. It would be unfair for a person
subject to a decision such as this one which is so critical to their future not
to be told why the result was reached.
In my view, however, the reasons
requirement was fulfilled in this case since the appellant was provided with
the notes of Officer Lorenz. The notes were given to Ms. Baker when her
counsel asked for reasons. Because of this, and because there is no other
record of the reasons for making the decision, the notes of the subordinate
reviewing officer should be taken, by inference, to be the reasons for
decision. Accepting documents such as these notes as sufficient reasons in
part of the flexibility that is necessary, as emphasized by Macdonald and
Lametti, supra, when courts evaluate the requirements of the duty of
fairness with recognition of the day-to-day realities of administrative
agencies and the many ways in which the values underlying the principles of
procedural fairness [page 849] can be assured. It upholds the principle
that individuals are entitled to fair procedures and open decision-making, but
recognizes that in the administrative context, this transparency may take place
in various ways. I conclude that the notes of Officer Lorenz satisfy the
requirement for reasons under the duty of procedural fairness in this case, and
they will be taken to be the reasons for decision.
(underlining added)
[19]
The review panels
recommendation stated:
Information received from
application and Canadian
investigative sources: -1
year in Canada
-4 years in India
Letter sent to applicant
requesting additional
information: -July
14, 2005
-additional contact on July 20 and Oct. 6,
2005
Review Panel Rationale for
Recommendation to Refuse TSC:
§
Time spent
outside of Canada
§
Reliability
and verifiability of information received.
§
The
following information provided by the applicant was assessed:
o 3 police certificates
o 53 pay stubs
o 8 documents related to
employment in India
§
1
unsuccessful attempt via e-mail was made on November 14, 2005, to verify the
applicant’s employment in India.
Conclusion: Application deemed an
unacceptable risk due to the lack of reliable and verifiable information
received pertaining to his 4 years in India
during the past 5 years.
[20]
While these reasons may
be sparse, they are sufficient to indicate to the Applicant that his
application failed because the information he submitted was not verifiable
given that four years out the five were spent outside of Canada.
[21]
The duty of fairness
owed to the Applicant in this case is minimal as Justice Pinard succinctly
observed in Motta v. Canada (Attorney General), [2000] F.C.J. No.
27 at paragraph 13:
In the case at
bar, we are dealing with a simple application for clearance or a permit made by
a person who has no existing right to that clearance or permit and is not
accused of anything. As the Minister's refusal to grant access clearance does
not involve the withdrawal of any of the plaintiff's rights, the latter can
have no legitimate expectation that he will be granted clearance (see Peter G.
White Management Ltd. v. Canada (Minister of Canadian Heritage) et al. (1997),
132 F.T.R. 89, and Cardinal v. Alberta (Minister of Forestry, Lands and
Wildlife), December 23, 1988, Edmonton 8303-04015, Alta. Q.B.). In the
circumstances, therefore, I consider that the requirements imposed by the duty
to act fairly are minimal and that, after allowing the plaintiff to submit his
application in writing as he did, the Minister only had to render a decision
that was not based on an erroneous finding of fact made in a perverse or
capricious manner or without regard for the material before him. As no evidence
was submitted that the decision duly made by the Minister pursuant to the
powers conferred on him by the Act and Regulations was without basis, this
Court's intervention is not warranted.
[22]
I would also note that
neither the Act nor the Regulations specify the procedure to be used by the
Minister in determining whether to award TSC’s (a fact noted by Justice Gauthier
in Di Martino v. Canada (Minister of Transport), 2005 FC 635 at paragraph 30).
Under these circumstances, in my view, the requirements for minimal procedural
fairness, as expressed in Motta, supra, were met.
[23]
Accordingly, this
application will not succeed.
[24]
I might add as a final
observation that this rejection of the Applicant is not final. The Applicant is
free at any time to re-apply and to submit better and more verifiable
information. I note that he never submitted the security certificate he had
from the US Department of Transportation. (see A.R. at page 16) which might
very well constitute verifiable information that would advance his cause.
ORDER
THIS COURT ORDERS that this application be
dismissed.
“Konrad
W. von Finckenstein”
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