Date: 20060724
Docket: IMM-2499-05
Citation: 2006 FC 912
Ottawa, Ontario, July 24, 2006
PRESENT: THE CHIEF JUSTICE
BETWEEN:
ELENA MILLER and PETER MILLER
Applicants
and
THE SOLICITOR GENERAL OF CANADA
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER
INTRODUCTION
[1] The applicant, Elena Miller, is a citizen of Russia. She is inadmissible under paragraph 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), on security grounds in connection with having been a covert operative in Canada of the Russian foreign intelligence service, Sluzhba Vnyeshnyeiy Razvyedky (SVR).
[2] On March 8, 2005, the Solicitor General of Canada and Minister of Public Safety and Emergency Preparedness (Minister) concurred in the recommendation of the Canada Border Services Agency (CBSA) that the applicant not be granted relief from her inadmissibility pursuant to subsection 34(2) of the IRPA.
[3] This is an application for judicial review of the Minister's negative decision.
[4] The applicant's spouse, Peter Miller, is a Canadian citizen and is also named as an applicant in this proceeding. Although the matter undoubtedly affects him, he was not the party seeking relief under subsection 34(2) and, accordingly, is not the party seeking relief here.
STATUTORY AND REGULATORY PROVISIONS
[5] For ease of reference, the following provisions are relevant to this proceeding.
[6] Under subsection 6(3) of the IRPA, the determination as to whether to grant relief from inadmissibility under subsection 34(2) must be made personally by the Minister:
| 6. [...]
(2) Anything that may be done by the Minister under this Act may be done by a person that the Minister authorizes in writing, without proof of the authenticity of the authorization.
(3) Notwithstanding subsection (2), the Minister may not delegate the power conferred by subsection 77(1) or the ability to make determinations under subsection 34(2) or 35(2) or paragraph 37(2)(a).
|
6. [...]
(2) Le ministre peut déléguer, par écrit, les attributions qui lui sont conférées par la présente loi et il n'est pas nécessaire de prouver l'authenticité de la délégation.
(3) Ne peuvent toutefois être déléguées les attributions conférées par le paragraphe 77(1) et la prise de décision au titre des dispositions suivantes : 34(2), 35(2) et 37(2)a).
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[7] By virtue of section 33 of the IRPA, the facts that constitute inadmissibility need not necessarily be presently occurring:
| 33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.
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33. Les faits - actes ou omissions - mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu'ils sont survenus, surviennent ou peuvent survenir.
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[8] Subsection 34(1) of the IRPA sets out the bases upon which a permanent resident or a foreign national may be inadmissible on security grounds. Paragraphs (a) and (f) are relevant for purposes of this proceeding:
| 34. (1) A permanent resident or a foreign national is inadmissible on security grounds for
(a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada;
[...]
(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c).
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34. (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants :
a) être l'auteur d'actes d'espionnage ou se livrer à la subversion contre toute institution démocratique, au sens où cette expression s'entend au Canada;
[...]
f) être membre d'une organisation dont il y a des motifs raisonnables de croire qu'elle est, a été ou sera l'auteur d'un acte visé aux alinéas a), b) ou c).
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[9] Subsection 34(2) of the IRPA sets out the Minister's ability to grant relief from inadmissibility as follows:
| 34. [...]
(2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.
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34. [...]
(2) Ces faits n'emportent pas interdiction de territoire pour le résident permanent ou l'étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l'intérêt national.
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[10] The relevant provision of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations), is subsection 320(1), which carries forward under the IRPA determinations of inadmissibility under certain paragraphs of the former Immigration Act, R.S.C. 1985, c. I-2 (former Act):
| 320.(1)A person is inadmissible under the Immigration and Refugee Protection Act on security grounds if, on the coming into force of this section, the person had been determined to be a member of an inadmissible class described in paragraph 19(1)(e), (f), (g) or (k) of the former Act.
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320. (1) La personne qui, à l'entrée en vigueur du présent article, avait été jugée appartenir à une catégorie visée à l'un des alinéas 19(1)e) à g) et k) de l'ancienne loi est interdite de territoire pour raison de sécurité sous le régime de la Loi sur l'immigration et la protection des réfugiés.
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FACTUAL BACKGROUND
[11] The applicant lived in Canada during the early 1990's under the assumed identity of Laurie Catherine Mary Lambert.
[12] In fact, she was a Russian citizen whose real name was Yelena Borisovna Olshanskaya and she was a member of the SVR.
[13] On May 16, 1996, the Solicitor General of Canada and the Minister of Citizenship and Immigration each signed a certificate (security certificate) pursuant to subsection 40.1(1) of the former Act certifying that: "we are of the opinion, based on a security intelligence report received and considered by us, that the person alleging to be Laurie Catherine Mary LAMBERT is a person described in paragraphs 19(1)(e)(i), 19(1)(e)(iv)(A) and 19(1)(f)(iii)(A) of the Immigration Act". These legislative provisions dealt with acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada.
[14] On May 21, 1996, the security certificate was referred to the Federal Court pursuant to subsection 40.1(3) of the former Act. The same day, a warrant was issued for the arrest of the applicant and her former husband, also an SVR operative. They were arrested the following day.
[15] On June 5, 1996, the matter came before Justice Marshall Rothstein, then of the Federal Court - Trial Division, as this Court was then constituted, to determine the reasonableness of the security certificate pursuant to subsection 40.1(4) of the former Act.
[16] Justice Rothstein provided the applicant, pursuant to paragraph 40.1(4)(b) of the former Act, with a statement summarizing the information available to the Court as would, "in the opinion of the Court, enable the applicant to be reasonably informed of the circumstances giving rise to the issue of the certificate" (intelligence summary). The intelligence summary provided an overview of the alleged espionage activities, on behalf of the SVR, attributed to the applicant (referred to by her real name, Yelena Borisovna Olshanskaya):
1. The Canadian Security Intelligence Service, hereinafter referred to as "the Service," has reason to believe that the persons alleging to be Ian Mackenzie LAMBERT (herein referred to as the male illegal) and Laurie Catherine Mary LAMBERT (herein referred to as the female illegal) are members of the Russian Foreign Intelligence Service (SVR).
[...]
5. The SVR was formed in 1991, replacing the First Chief Directorate of the KGB.3 The SVR relies upon both overt and covert intelligence collection methods to engage in espionage worldwide for the Government of the Russian Federation.4 The SVR sends intelligence officers abroad to conduct espionage on its behalf, to collect political, economic, scientific and technological, and military information.5
[...]
16. Directorate S is the SVR Directorate responsible for operational control, training, documenting and financing of illegals.32 It is an operational sector which did not change during the transformation from the KGB into the SVR. [...]
[...]
20. The Service determined that Ian Mackenzie LAMBERT had submitted a passport application in Toronto on June 6, 1994.38 It was also determined that a Laurie LAMBERT (née BRODIE), spouse of Ian, had applied for a passport.39 The passport applications included birth certificate copies, issued February 12, 1990, in the names of Laurie BRODIE and Ian Mackenzie LAMBERT.40
21. The Service confirmed through Vital Statistics of the Province of Ontario that Ian Mackenzie LAMBERT, whose birth date was November 24, 1965, died on February 17, 1966.41 The Service also confirmed that Laurie Catherine Mary BRODIE was born in Quebec on September 8, 1963 but died on August 7, 1965 in Toronto.42
[...]
23. The Service has determined that Ian LAMBERT's true identity is Dmitriy Vladimirovich OLSHANSKIY and that Laurie LAMBERT's is Yelena Borisovna OLSHANSKAYA.
24. The Service's investigation has confirmed that the persons alleging to be the LAMBERTs [...] continue to communicate and meet with Directorate S officials. The illegals couple has also travelled back to Centre [SVR Headquarters, located in Moscow] on at least one occasion. Over the course of our investigation of this couple, the Service has confirmed their operational methodology, tradecraft and clandestine intelligence techniques.
[...]
27. The Service believes that the only purpose for which the illegals couple has been sent to Canada is to further the espionage objectives of the SVR, and that their activities are carried out in support of those objectives.
[...]
[Footnotes omitted.]
[17] The applicant chose not to contest the security certificate and declined to take advantage of the opportunity to be heard, provided for in paragraph 40.1(4)(c) of the former Act.
[18] Justice Rothstein determined the security certificate to be reasonable pursuant to paragraph 40.1(4)(d) of the former Act. As a result of that determination, the security certificate became, by operation of paragraph 40.1(7)(a) of the former legislation, "conclusive proof" that the applicant was a person described in paragraph 19(1)(f).
[19] On June 10, 1996, the applicant and her former husband were deported to Russia.
[20] The applicant states that her resignation from the SVR was approved in October 1996. She and her former husband were divorced that year.
[21] On December 4, 1996, the applicant and Peter Miller were married in Moscow.
[22] On August 6, 1998, the applicant signed an application for permanent residence in Canada as a member of the family class. The same day, Peter Miller completed a spousal sponsorship application. Both applications, along with supporting documentation, were presented with counsel's written submissions on December 7, 1998.
[23] In November 2001, a visa officer concluded that the applicant was inadmissible on security grounds under the former Act for having been a member of an organization that there are reasonable grounds to believe is or was engaged in acts of espionage.
[24] As early as her counsel's letter of December 7, 1998 and subsequently, the applicant sought Ministerial relief under subsection 34(2) of the IRPA.
[25] As a result of that application, the CBSA prepared, in draft form, a Memorandum to the Minister (memorandum). As stated in the memorandum, its purpose was "to present Ms. Miller's application for Ministerial relief, pursuant to subsection 34(2) of IRPA, for [the Minister's] consideration and decision". The CBSA recommended in the memorandum that the applicant not be granted relief.
[26] In May 2004, a copy of the draft memorandum was provided to the applicant inviting submissions in response.
[27] On June 17, 2004, the applicant provided her own written comments, addressed to the Minister, regarding her circumstances and the memorandum in an "attempt to be heard [...] directly and in plain words".
[28] On June 19, 2004, the applicant's counsel also made written submissions in response to the memorandum. Among the "number of problems with the Memorandum" put forward in those submissions, the applicant's counsel stated:
In the first instance, it is not balanced. While it mentions that Ms. Miller is married to a Canadian sponsoring her application for landing in Canada, it fails to mention any of the positive factors in her favour - her close relationship to her husband, his settlement and establishment in Canada, his family in Canada, her employment subsequent to her resignation from the SVR, her sworn declaration indicating that she wants to live a peaceful life with her husband, the lack of allegations of actual espionage in the case against her, and other such factors.
[29] On August 16, 2004, the final version of the memorandum was provided to the Minister along with the following attachments: paragraph 34(1)(f) of the IRPA; background information on the SVR; the security certificate; Justice Rothstein's order determining the security certificate to be reasonable; the intelligence summary; the prior representations of the applicant's counsel in support of her permanent residence application; the submissions of the applicant's counsel in response to the memorandum; and the applicant's letter to the Minister. Other than the inclusion of the latter two attachments, the content of the final version of the memorandum was identical to the copy provided to the applicant in May 2004.
[30] After setting out the background to the applicant's case, the memorandum, under the heading "Considerations", stated:
Ms. Miller readily admits that she lived in Canada under the assumed identity of Laurie (Brodie) Lambert and that she was employed by and reported to the SVR. She would not discuss the specifics of her activities in Canada, however, it is clear that the SVR trusted her as they placed her in Canadaand she had regular contact with them.
The Federal Court summary of the Security Intelligence Report (SIR) (see Appendix 5) explains that the SVR uses illegals to conduct espionage activity in a clandestine manner. The illegals are trained in the culture and customs of the target country so that they blend into society without coming to the attention of the domestic intelligence service. Ms. Miller operated clandestinely in Canada for a period of six years.
Ms. Miller was the subject of a security certificate signed by the then Solicitor General and the then Minister of Citizenship and Immigration in 1996. There is no information that indicates she ceased any of her activities with the SVR until the certificate against her was signed and she was ordered deported. The allegations contained in the security certificate cannot be taken lightly. These certificates are used in extreme cases only and reflect the Government of Canada's desire to remove an individual deemed to pose a threat to our national security from Canada.
Counsel for Ms. Miller has submitted (see Appendix 6) that she no longer poses a threat to the security of Canada as she is no longer employed by the SVR. Counsel has also submitted that Ms. Miller's husband would not be in a position to relocate to Russia as a medical doctor, as his skills are not immediately transferable.
Although Ms. Miller has reportedly resigned from the SVR, she nonetheless posed as a Canadian citizen for a period of six years while working as an illegal for the SVR in order to conduct espionage activities. She refuses to discuss the nature of her activities while in Canada, which is disturbing.
Ms. Miller and her husband have recently filed a statement of claim. They claim that CIC was negligent in processing Ms. Miller's application and they are seeking general and punitive damages on the allegation that subsections 2, 7 and 12 of the Charter have been breached.
[31] The memorandum concluded with the CBSA's recommendation to the Minister as follows:
Based on the information provided above and the attachments to this memorandum, we recommend that you do not grant Ministerial relief as per subsection 34(2) of IRPA to overcome Ms. Miller's inadmissibility pursuant to paragraph 34(1)(f) of IRPA. [...] We are of the opinion that Ms. Miller has not demonstrated any positive contribution to Canadian society nor has she demonstrated that her presence in Canada would not be detrimental to the national interest.
If you concur, Ms. Miller's application for permanent residence will be refused and her sponsor will not be able to make an appeal to the Immigration Appeal Division.
If you do not agree with the departmental recommendation, please provide the rationale for your decision.
[32] On March 8, 2005, the Minister, by her signature in the space provided on the memorandum, indicated her concurrence with the CBSA's recommendation, thereby refusing to grant relief to the applicant from her inadmissibility.
[33] On April 7, 2005, the Canadian Embassy in Moscow advised the applicant that her sponsored application for permanent residence in Canada as a member of the family class was refused. The applicant and her spouse commenced a separate judicial review proceeding in respect of that decision (Court file IMM-2497-05).
ISSUES
[34] This application raises three principal issues:
(i) Did the Minister have a duty to provide reasons for her decision?
(ii) If so, can the memorandum constitute the Minister's reasons for decision?
(iii) Did the Minister err in the exercise of her discretion?
STANDARD OF REVIEW
[35] The first and second issues pertain to matters of procedural fairness and do not require a standard of review analysis: see Sketchley v. Canada(Attorney General),2005 FCA 404 at paragraph 52 and following.
[36] The determination of the applicable standard of review concerning the third issue requires a four-point analysis to be undertaken: 2003 SCC 19">Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19 and 2003 SCC 20">Law Society of New Brunswick v. Ryan, 2003 SCC 20.
[37] Concerning the first factor, the Minister's decision disposing of an application under subsection 34(2) of the IRPA is not shielded by a privative clause nor is it subject to any appellate process. However, judicial review is available but only on the granting of leave.
[38] The Minister has expertise in applications under subsection 34(2) of the IRPA, relating as they do to security matters with which the Minister is charged.
[39] The third factor, the purpose of the statutory provision, also favours deference. The fact of the applicant's inadmissibility is not being challenged. The issue before the Minister was whether she was satisfied, notwithstanding the applicant's inadmissibility, that the applicant's presence in Canada would not be detrimental to the national interest. In other words, subsection 34(2) empowers the Minister to grant exceptional discretionary relief, in the face of a pre-existing finding of inadmissibility: Ali v. Canada(Minister of Citizenship and Immigration),2004 FC 1174 at paragraph 43. In my view, the fact that the Minister's discretionary decision under subsection 34(2) of the IRPA is non-delegable strongly favours deference: see Esmaeili-Tarki v. Canada(Minister of Citizenship and Immigration), 2005 FC 509 at paragraph 25.
[40] Finally, the nature of the problem before the Minister involved the exercise of broad discretion in a substantially factual matter.
[41] In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the decision of a Ministerial delegate refusing an application for humanitarian and compassionate consideration was reviewed on the standard reasonableness simpliciter (see paragraphs 57-62). However, Baker can only be fully understood in the light of the subsequent decision of the Supreme Court of Canada in 2002 SCC 1">Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at paragraphs 34-41. According to 2002 SCC 1">Suresh, the decision of a Ministerial delegate that a refugee constitutes a danger to the security of Canada should be upheld unless shown to be patently unreasonable. In particular, the Supreme Court noted at paragraph 37:
[...] Baker does not authorize courts reviewing decisions on the discretionary end of the spectrum to engage in a new weighing process, but draws on an established line of cases concerning the failure of ministerial delegates to consider and weigh implied limitations and/or patently relevant factors [...]
[42] In view of the foregoing, I conclude that the appropriate standard of review regarding the exercise of the Minister's discretion is that of patent unreasonableness. I did not understand the parties to have a different view on this issue.
ANALYSIS
Preliminary matter
[43] During the hearing of this application, the Court questioned the statutory basis for the applicant's present inadmissibility.
[44] As noted above at paragraph 18, Justice Rothstein's determination that the security certificate was reasonable constituted "conclusive proof" that the applicant was an inadmissible person described in paragraph in 19(1)(f) of the former Act.
[45] Subsection 320(1) of the Regulations is a transitional provision applicable to a person who was "determined to be a member of an inadmissible class described in paragraph 19(1)(e), (f), (g) or (k) of the former Act". By operation of subsection 320(1), the applicant is "inadmissible under the [IRPA] on security grounds" as a result of the determination that the security certificate was reasonable.
[46] The "conclusive proof" that the applicant was inadmissible under paragraph 19(1)(f) of the former legislation, as the result of Justice Rothstein's finding that the security certificate was reasonable, carries over under the IRPA with the transitional provision.
[47] The applicant is thus inadmissible under paragraph 34(1)(f) of the IRPA, read in conjunction with section 33.
Issue (i): Did the Minister have a duty to provide reasons for her decision?
[48] The applicant was provided with a draft copy of the memorandum to enable her to respond. Both the applicant and her counsel did so in written submissions.
[49] This was in accordance with Citizenship and Immigration Canada policy and program manual ENF 2, "Evaluating Inadmissibility" (guidelines), which addresses the processing of applications under subsection 34(2) of the IRPA. It provides in section 13.6, under the heading "Procedural fairness":
There is extensive case law from the Federal Court on procedural fairness in immigration processing. It is well established that applicants are entitled to know the test they have to meet, to have a meaningful opportunity to present the various types of evidence relevant to their case, to provide a response to information obtained by the officer and to have their evidence fully and fairly considered by the decision-maker. [...]
[...]
- except for information that must be protected for security reasons, the applicant is entitled to receive and comment on any relevant documents obtained by the officer that will be considered by the decision-maker. [...]
- the applicant is entitled to be advised of issues raised by the officer and to respond to those issues;
[50] This process may be compared to the one prescribed in Haghighiv. Canada(Minister of Citizenship and Immigration),[2000] F.C.J. No. 854 (QL) (C.A.). In that case, where the ultimate decision-maker was to be presented with the report of another immigration official, the Court held that the duty of fairness required the applicant to be "fully informed" of the content of the report and "permitted to comment on it" (paragraph 37).
[51] In view of the extent of procedural fairness afforded the applicant prior to the memorandum being submitted to the Minister, I cannot accept the respondent's submission that there was no duty to provide reasons.
[52] Moreover, the Federal Court has stated on more than one occasion that the duty to provide reasons, as articulated by the Supreme Court of Canada in R. v. Sheppard, 2002 SCC 26">2002 SCC 26, is applicable in "in the administrative law context generally, and in the immigration context in particular": Adu v. Canada (Minister of Citizenship and Immigration),2005 FC 565 at paragraph 11; see also Ahmed v. Canada (Minister of Citizenship and Immigration),2002 FCT 1067.
[53] Among other considerations, it would be difficult in this application for judicial review to assess the Minister's decision in the absence of reasons.
[54] Accordingly, I am satisfied that there was a duty to provide reasons.
Issue (ii): Canthe memorandum constitute the Minister's reasons for decision?
[55] In support of the view that the Minister had the duty to provide reasons personally, and not adopt the report of another person, the applicant relies on 2002 SCC 1">Suresh. In that decision, the Supreme Court canvassed the procedural protections required by section 7 of the Canadian Charter of Rights and Freedoms in the case of a person facing deportation to torture under paragraph 53(1)(b) of the former Act. The Court stated at paragraph 126:
[...] the reasons must also emanate from the person making the decision, in this case the Minister, rather than take the form of advice or suggestion, such as the memorandum of Mr. Gautier. Mr. Gautier's report, explaining to the Minister the position of Citizenship and Immigration Canada, is more like a prosecutor's brief than a statement of reasons for a decision.
[56] The Court went on to state at paragraph 127 that not every case involving the deportation of a Convention refugee would necessitate the procedural protections canvassed above:
These procedural protections need not be invoked in every case, as not every case of deportation of a Convention refugee under s. 53(1)(b) will involve risk to an individual's fundamental right to be protected from torture or similar abuses. [...] If the refugee establishes that torture is a real possibility, the Minister must provide the refugee with all the relevant information and advice she intends to rely on, provide the refugee an opportunity to address that evidence in writing, and after considering all the relevant information, issue responsive written reasons. This is the minimum required to meet the duty of fairness and fulfill the requirements of fundamental justice under s. 7 of the Charter.
[Emphasis added.]
[57] The present application involves neither the deportation of a Convention refugee nor the risk of torture or similar abuses.
[58] A perhaps more analogous situation involves the issuance of danger opinions. This Court has held that, in the context of danger opinions under paragraph 46.01(1)(e) and subsection 70(5) of the former Act, the Ministerial opinion report and the request for Ministerial opinion could be considered reasons for decision if adopted by the Minister or the Minister's delegate when rendering the danger opinion: see Mullings v. Canada (Minister of Citizenship and Immigration), 2001 FCT 607 at paragraphs 23 and 30-32 and Dokmajian v. Canada (Minister of Citizenship and Immigration), 2003 FCT 85 at paragraph 17.
[59] In Oberlander v. Canada(Attorney General),2004 FCA 213, also relied on by the applicant, the Federal Court of Appeal set aside the Governor in Council's decision to revoke the appellant's citizenship. Regarding the question of whether the Governor in Council had a duty to provide reasons for its decision, Justice Robert Décary stated at paragraph 34:
I need not decide here whether there is an implied duty on the Governor in Council to give reasons of its own. Counsel for both parties recognize that the Governor in Council's reasons may well be reflected in the report of the Minister [...]
[Emphasis added.]
[60] The adoption of a report as reasons for decision also occurs in the context of decisions by the Canadian Human Rights Commission. In Gainerv. Export Development Canada,2006 FC 814 Justice Konrad W. von Finckenstein stated at paragraph 11:
There are two fundamental concepts that are crucial in this case. The first is that when the Commission adopts the recommendations of an investigator with little or no reasons, then the report is considered the reasons. It then follows that if the report is flawed, the Commission's decision is also flawed. [...]
[61] In the present case, of course, the Minister's decision was non-delegable. However, subsection 6(3) of the IRPA only precluded the Minister from delegating her "ability to make determinations under subsection 34(2)" [emphasis added]. In my view, it was not inconsistent with subsection 6(3) for the Minister to concur in the CBSA's recommendation contained in the memorandum, and thereby adopt the memorandum as her reasons for decision. The Minister nevertheless retained, and exercised, the sole ability to make the "determination" under subsection 34(2).
[62] In my view, the memorandum, to the extent that the Minister adopted the recommendation as her determination, can serve as reasons.
[63] This is consistent with the five factors relevant to an assessment of the extent of the duty of fairness as set out in Baker at paragraphs 23-27. In that decision, the reasons requirement was held to be fulfilled by the "notes of the subordinate reviewing officer" (paragraph 44). The Supreme Court observed:
[...] Accepting documents such as these notes as sufficient reasons is 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 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. [...]
[Emphasis added.]
Issue (iii): Did the Minister err in the exercise of her discretion?
[64] The applicant acknowledges that, in her application under subsection 34(2) of the IRPA, she bore the onus of satisfying the Minister that her presence in Canada would not be detrimental to the national interest: see Kashmiri v. Canada(Minister of Citizenship and Immigration),[1996] F.C.J. No. 997 (QL) (T.D.) at paragraph 7.
[65] The applicant alleges that, in exercising her discretion under subsection 34(2) of the IRPA, the Minister erred in three respects: (a) by improperly speculating that, contrary to the applicant's submission, the applicant had not in fact resigned from the SVR; (b) by applying the wrong test, namely, whether the applicant had "demonstrated any positive contribution to Canadian society"; and (c) by placing undue emphasis on the applicant's past breaches.
[66] Concerning the applicant's first argument that the Minister improperly speculated about the applicant's resignation from the SVR, the following passages from the memorandum are relevant:
In October, 1996, Ms. Miller reportedly resigned from the SVR [...]
[...]
Counsel for Ms. Miller has submitted(see Appendix 6) that she no longer poses a threat to the security of Canada as she is no longer employed by the SVR. [...]
Although Ms. Miller has reportedly resigned from the SVR, she nonetheless posed as a Canadian citizen for a period of six years while working as an illegal for the SVR in order to conduct espionage activities. She refuses to discuss the nature of her activities while in Canada, which is disturbing.
[Emphasis added.]
[67] The applicant submits that "[i]f there is a concern that [she] did not resign from the SVR, this ought to have been stated clearly". In this regard, the applicant refers to "[v]eiled aspersions cast on the genuineness of her resignation".
[68] As noted above, the material placed before the Minister included a letter from the applicant and submissions from her counsel. The applicant stated in her letter:
On 11 June 1996 I informed the SVR of my resignation and subsequently went through weeks of debriefing. I have provided CIC with all the evidence I possess verifying the fact that I did leave the SVR on 21 October 1996 at my own wish.
I have no ties with the former employer, the SVR, whatsoever. I swore to that fact in front of a Canadian Consul in Russia. And I have a very clear idea of what it means to be under oath.
Regarding the reference in the memorandum to the applicant's "refus[al] to discuss the nature of her activities while in Canada", the applicant stated that this was "not true". She explained that the SVR required her to sign an undertaking "not to divulge" information regarding her activities.
[69] The submissions of the applicant's counsel included the following:
[...] Visa officials have received the documents confirming that Ms. Miller did in fact resign from the SVR. [...] In her declaration, Ms. Miller stated:
Since my resignation in October, 1996, I have had no ties to the Service whatsoever and have not been a member of any security organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in section 34 of the IRPA [...]
[70] The words "reportedly resigned" do not, in my view, represent a negative finding concerning the applicant's resignation from the SVR. At most, they characterize the extent of the evidence presented by the applicant on this issue and do not constitute "speculation".
[71] The applicant's second argument is that the Minister applied the wrong test, namely, whether the applicant had "demonstrated any positive contribution to Canadian society". The Recommendation section of the memorandum stated: "We are of the opinion that Ms. Miller has not demonstrated any positive contribution to Canadian society nor has she demonstrated that her presence in Canada would not be detrimental to the national interest".
[72] The applicant submits that her stated "lack of positive contribution to Canada" was the "only factor considered in the recommendation". This submission must also fail.
[73] Subsection 34(2) of the IRPA simply indicates that the applicant's burden was to satisfy the Minister that her "presence in Canada would not be detrimental to the national interest". The broad language used in subsection 34(2) speaks to Parliament's intention that the Minister be free to take into account a wide range of factors in exercising her discretion. This is consistent with the guidelines.
[74] Also, it was not a reviewable error, in my view, for the memorandum to refer to the applicant's "lack of positive contribution to Canada" while at the same time asserting that she had not met the burden concerning the overriding consideration of whether her presence in Canada would be "detrimental to the national interest", set out in subsection 34(2) of the IRPA. Indeed, as addressed below, the applicant argues that the memorandum did not give sufficient weight to positive factors.
[75] The applicant's final challenge is that the memorandum placed undue emphasis on her past breaches. She submits that, overall, the memorandum was akin to a "prosecutor's brief" of the sort referred to in 2002 SCC 1">Suresh, above, at paragraph 126.
[76] As noted above, at paragraph 59, the Federal Court of Appeal alluded to the issue of a "prosecutor's brief" in Oberlander at paragraph 34:
[...] Counsel for both parties recognize that the Governor in Council's reasons may well be reflected in the report of the Minister and the real issue in this regard is whether the report is of such a nature as to constitute a "prosecutor's brief" which, according to Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, at paragraph 126, does not qualify as "a statement of reasons for a decision."
[Emphasis added.]
[77] The Court went on to state at paragraph 58:
[...] It is true that the additional submissions were attached to the report and that one must generally assume that a decision-maker has examined all the evidence and documentation. But where the personal interests considerations are so overwhelmingly favourable to the person concerned as they are here -- 50 years of irreproachable life in Canada -- one should expect the decision-maker to at least formally recognize the existence of those interests. It is apparent on the face of the record that there was no balancing of the personal interests of Mr. Oberlander and of the public interest. The decision in that regard is patently unreasonable.
[Emphasis added.]
[78] The guidelines are also a relevant consideration in this context. They provide in section 13.7 that a submission to the Minister in respect of an application under subsection 34(2) of the IRPA, in this case the memorandum, is to consist of three parts:
1. The first part must address the applicant's current situation with respect to the ground of inadmissibility;
2. The second part of the submission must deal with the immigrant application and humanitarian and compassionate (H & C) considerations;
3. The third part provides the recommendation.
[Emphasis added.]
While not necessarily binding on the Minister, the guidelines were intended to be instructive to the CBSA officials responsible for the preparation of the memorandum.
[79] The stated purpose of the memorandum was "to present Ms. Miller's application for Ministerial relief, pursuant to subsection 34(2) of IRPA, for [the Minister's] consideration and decision". The memorandum indicated under "Background": "On December 4, 1996, [the applicant] married a Canadian citizen, Dr. Peter Miller, in Moscow and on December 11, 1998, Dr. Miller submitted a sponsorship application for his wife as a member of the family class". Under "Considerations", the memorandum stated:
Counsel for Ms. Miller has submitted (see Appendix 6) that she no longer poses a threat to the security of Canada as she is no longer employed by the SVR. Counsel has also submitted that Ms. Miller's husband would not be in a position to relocate to Russia as a medical doctor, as his skills are not immediately transferable.
Finally, under "Recommendation", the memorandum advised the Minister that if she did not grant relief under subsection 34(2) of the IRPA, "Ms. Miller's application for permanent residence will be refused and her sponsor will not be able to make an appeal to the Immigration Appeal Division".
[80] In 2002 SCC 1">Suresh, the "prosecutor's brief" was the memorandum of an immigration official to the Minister or the Minister's delegate which had not been shown to the interested person for comment as in this case. Also, 2002 SCC 1">Suresh concerned the deportation of a Convention refugee to the possible risk of torture.
[81] Similarly, the decision in Oberlander turned on "personal interests considerations" so "overwhelmingly favourable to the person [with] [...] 50 years of irreproachable life in Canada" (paragraph 58). Also, in this proceeding, to paraphrase Justice Décary's remarks, the memorandum did acknowledge "at least formally" the existence of the applicant's personal interests. As with 2002 SCC 1">Suresh, Oberlander can be distinguished from this case.
[82] The applicant also focuses on the lack of balance in the CBSA's presentation to the Minister. The memorandum could have been amended to include a statement concerning the efforts to nurture the applicant's marriage since 1996, including her spouse's frequent trips to Russia. No such change was made. However, the response of the applicant's counsel to the draft memorandum did refer to this humanitarian and compassionate issue and these submissions were annexed to the memorandum placed before the Minister. It is open to a reviewing court to assume that the decision-maker examined the documentation (see Oberlander at paragraph 58), particularly in this case where the material was limited to some twenty pages, substantially all of which were submissions for the applicant. The only other documentation was the memorandum itself and the order of Justice Rothstein (including the intelligence summary).
[83] Although the applicant may disagree with the weight assigned in the memorandum to the factors she considered to be the more important, or with the extent to which certain points were developed, she has fallen short of demonstrating that the memorandum did not "address" the "major points in issue" (VIA Rail Canada Inc. v. National Transportation Agency et al. (2000), 193 D.L.R. (4th) 357, [2000] F.C.J. No. 1685, (F.C.A.) at paragraph 22).
[84] As noted above at paragraph 41, the Supreme Court stated in 2002 SCC 1">Suresh at paragraph 37:
[...] Baker does not authorize courts reviewing decisions on the discretionary end of the spectrum to engage in a new weighing process, but draws on an established line of cases concerning the failure of ministerial delegates to consider and weigh implied limitations and/or patently relevant factors [...]
In my view, the applicant has not demonstrated that the Minister failed to "consider and weigh" the "patently relevant factors" so as to render patently unreasonable her exercise of discretion.
[85] For the foregoing reasons, this application will be dismissed. As agreed at the hearing of this matter, the applicant will be given seven (7) days from the date of these reasons to suggest the certification of a serious question. The respondent will have three (3) days from the service of the applicant's submissions to respond.
"Allan Lutfy"
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