Date: 20100303
Docket: T-1104-09
Citation: 2010 FC 247
Vancouver, British Columbia, March
3, 2010
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
MASAN NOOR KAHIN
Applicant
and
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA AS REPRESENTED BY
THE MINISTER OF TRANSPORT,
INFRASTRUCTURE AND COMMUNITY and
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision made by the Director,
Security Screening Programs, Transport Canada, as set out
in a letter to the Applicant dated June 11, 2009, wherein the Applicant’s
application for security clearance at Vancouver International Airport was refused.
For the reasons that follow I find that the application is dismissed.
[2]
The
Applicant is a Somali native having been born and raised in Somalia. Because of
the war in Somalia he fled and was granted asylum in South Africa where he
lived for more than ten years. Circumstances in South Africa were such
that the United Nation High Commissioner for Refugees resettled the Applicant
in Canada where he has
become a permanent resident.
[3]
Shortly
after arriving in Canada the Applicant started working for a company known as
Swissport which performs services at Vancouver International Airport. He was
engaged as what is known as a ramp agent and was granted temporary access to
certain restricted areas in Vancouver Airport to perform
his duties. He was required to obtain security clearance in order to gain
permanent employment. He made such an application about nine months after
arriving in Canada. Ultimately,
he failed to obtain security clearance and was dismissed from his job.
[4]
The
initial application for security clearance was made by the Applicant filling
out a pre-printed form. One of the questions asked on the form was “What have
you been doing for the last five years? – School, employment, unemployment
etc.” In answer, the Applicant said that he had been working with Swissport,
attended a local academy in British Columbia, was previously unemployed and previously
worked for Metro Home Centre/Metro Fuel in Pretoria, South
Africa
from February 2001 until June 2007. Transport Canada sent a
letter to the Applicant dated June 18, 2008, requesting further information.
The letter said:
This is further to your application for a
transportation security clearance at the Vancouver International Airport. A preliminary review of your
file indicates that it does not contain sufficient, reliable and verifiable
background information to enable Transport Canada to fully assess the factors relevant to
your application. In particular, as you have been out of Canada for a total of
4 years and 3 months during the five-year period prior to your application, we
will require original supporting documentation that enables us to verify
the information you provided about your residency and employment outside
Canada, and an original police certificate from South Africa that
provides us with the required five years of criminal information.
You are encouraged to provide documents
or written representations for consideration by a Review Panel, which will
determine whether they are sufficient, reliable and verifiable. In order for
your information to be considered, it must be received by Transport Canada by July 18, 2008.
Please send your information to: Transport Canada ABPB (attention: Marlene
Préseault), Room 1531, 330
Sparks Street, Ottawa, Ontario, K1A 0N5.
Should you wish to discuss the matter
further please contact Marlene Préseault by telephone at (613) 949-0232 or by
e-mail at: SecurityScreeningRequests/information@tc.gc.ca
To obtain more information concerning the
Transportation Security Clearance Program, consult our website at: http://www.tc.gc.ca/tsc
[5]
The
Respondents submitted an affidavit of Marlene Préseault, a Superintendent of
Case Management with Transport Canada in which she testifies that another
officer at Transport Canada had a telephone conversation with the Applicant in
which it is alleged that the Applicant was told about the types of documents
that were required. This conversation is said to have taken place after June
18, 2008. I do not accept this evidence as it is hearsay and no evidence is
before me as to why it was necessary to put in evidence this way instead of
through the person who actually made the phone call. Respondents’ counsel took
the position that it was not necessary to rely on the phone call to demonstrate
that the Applicant was aware as to the documentation required, the letter of
June 18, 2008 was sufficient.
[6]
The
record shows that the Applicant’s submissions following the June 18, 2008
letter included a letter from an organization known as Somali Refugee Forum in
South Africa in which the Applicant is described as Assistant Secretary, a
handwritten note as to the Applicant’s address in South Africa and a letter
from Foremost Service Station stating that the Applicant had worked for them
“for a number of years as a petrol attendant.”
[7]
Unbeknownst
to the Applicant, Transport Canada sent an e-mail to Metro Home Centre asking
that they verify the Applicant’s employment with them, including information as
to when he started and when he left. An e-mail response identified Metro Home
Centre as owner of Foremost Service Station and said that the Applicant had
worked there for a “number of years” but that they were unable to confirm when
he commenced work and when he left.
[8]
The
Applicant’s request for security clearance was sent to an internal review panel
in Transport Canada. On June 11,
2009, the Applicant was sent a letter, the decision at issue here, refusing
security clearance. The letter said:
This is further to your application for a
transportation security clearance at Vancouver International Airport. Please be advised that the
Minister of Transport, Infrastructure and Communities has refused your
clearance based on the information in your file and the recommendation from the
Review Panel.
The Minister is of the opinion that you
did not provide sufficient, verifiable and reliable information. Specifically,
of the five (5) years of information required under the Transportation Security
Clearance Program, information provided in your application and in the
documents you submitted for a period of 4 years and 4 months, is insufficient.
This period of time reflects the time you spent in South Africa, where information cannot be
verified under the arrangements available to Transport Canada. Specifically, you did not
provide sufficient information pertaining to your residency to cover the entire
period under review and, of the information provided, Transport Canada was unable to assess its
reliability. Transport Canada also noted discrepancies with
the information you provided on the transportation security clearance form and
the additional information provided.
You have the right to apply for a review
of this decision through the Federal Court of Canada within thirty (30) days of
receipt of this notice.
[9]
The
Applicant has brought this application for judicial review. Essentially, his
counsel’s argument is that the Applicant was denied procedural fairness
therefore the decision must be set aside. The alleged lack of procedural
fairness comprises:
• failure
to disclose clearly, at the outset, the nature and extent of the documentation
that the Applicant was to provide
• failure
to disclose the e-mail correspondence between Transport Canada and Metro
Home Centre
• failure
to provide the Applicant an opportunity to provide further information and
documentation and an opportunity to address the perceived discrepancies as
described in the letter of June 11, 2009.
[10]
Respondents’
counsel argues that the jurisprudence indicates that the level of procedural
fairness requires to be afforded a person such as the Applicant is minimal and
that the Applicant, particularly being in receipt of the letter of June 18,
2008, was sufficiently aware as to what was required. The e-mails are
irrelevant.
[11]
There
are a surprising number of cases dealing with persons employed at airport
facilities and security clearance issues. I suspect that is because letters refusing
clearance conclude, as the letter here of June 11, 2009 does, with an
invitation to seek judicial review in the Court. Those cases, as referred to me
by counsel, are:
• Irani v. Canada (Attorney
General),
2006 FC 816
• Singh
v. Canada (Attorney
General),
2006 FC 812
• Motta
v. Canada (Attorney
General)
(2000), 180 F.T.R. 292
• DiMartino
v. Canada (Minister of
Transport),
2006 FC 635
• Xavier
v. Canada (Attorney
General),
2010 FC 147
[12]
Counsel
for the parties before me agreed that since the issue is procedural fairness,
the appropriate standard of review is correctness.
[13]
The
present case is similar to that of Motta. The Applicant here has only
been employed, indeed only in Canada, for a few months and has not yet received
any security clearance that would enable him to continue his employment at the
airport. Justice Pinard in Motta at paragraph 13 described the
procedural fairness to be afforded in such circumstances as minimal:
[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 CanLII
5142 (F.C.), (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.
[14]
A
similar finding of minimal requirements was made in Irani (para. 21) and
Singh (para. 20).
[15]
DiMartino and Xavier
present a different set of circumstances. In those cases a security clearance
was revoked on the basis of police reports of criminal activity. In those cases
the Court required that the individual be afforded an opportunity to see the
case against him and make submissions because the allegations as to impropriety
came from third persons.
[16]
In
the present case, the decision was based on information and documents submitted
by the Applicant. The Applicant had not yet been given security clearance and
had been working at the airport only a few months. I find this case to be
similar to the Motta group of cases. Only minimal procedural fairness
needs to be extended. I find the letter of June 18, 2008, to be sufficient in
that regard.
[17]
I
therefore dismiss this application. No party asked for costs and none will be
given.
JUDGMENT
For the
reasons provided,
THIS COURT
ORDERS AND ADJUDGES that:
1. The
application is dismissed; and
2. No
Order as to costs
“Roger
T. Hughes”
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