Date:
20121031
Docket: IMM-8457-11
Citation:
2012 FC 1270
Ottawa, Ontario,
October 31, 2012
PRESENT: The
Honourable Mr. Justice Barnes
BETWEEN:
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DMYTRO AFANASYEV
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application brought by Dmytro Afanasyev challenging a decision by an
Immigration Officer (Officer) by which his application for a permanent resident
visa was rejected. The basis of this decision was a finding by the Officer
that there were reasonable grounds to believe that Mr. Afanasyev was
inadmissible to Canada for having engaged in acts of espionage against a
democratic government contrary to subsection 34(1) of the Immigration
Refugee and Protection Act, SC 2001, c27 (IRPA).
[2]
This
is the second application for judicial review brought by Mr. Afanasyev in
connection with the rejection of his claim for a visa. In an earlier decision
of this Court in Afanasyev v Canada (MCI), 2010 FC 737, [2010] FJC no
848, Justice Yves de Montigny set aside an inadmissibility finding made on
October 2, 2008 by a different Officer. The decision now under review was made
as a consequence of Justice de Montigny’s Order.
Preliminary
Issue
[3]
As
in the earlier application, the Respondent brought a motion before me under
section 87 of the IRPA to protect by redaction certain confidential
security intelligence information contained in the Certified Tribunal Record
(Record). I took the opportunity to review the redacted information in the
context of a confidential hearing held at Ottawa on September 5, 2012 and like
Justice de Montigny, I have concluded that the portions of the Record that have
been redacted by the Respondent are not material to the substance of the Officer’s
decision. Nothing has been withheld from Mr. Afanasyev that would inhibit his
ability to fully understand the decision or to challenge it on the merits.
Background
[4]
Mr.
Afanasyev’s personal history is well described in Justice de Montigny’s decision
at paragraphs 2 to 5 and need not be repeated here.
[5]
Justice
de Montigny was concerned by an apparent unexplained discrepancy between the Canadian
Security Intelligence Service (CSIS) brief and Mr. Afanasyev’s description of
his functions. Justice de Montigny held that “it was imperative for the
Officer to explain why he rejected [Mr. Afanasyev’s] explanations, thereby
impugning his credibility”. Justice de Montigny also noted the Officer’s
failure to explain the basis of the finding that Mr. Afanasyev had been engaged
in “espionage” as that term is used in subsection 34(1)(a) of the IRPA.
Because the reasons provided failed to address the major points in issue, they
did not fulfill the procedural fairness requirements. Justice de Montigny also
held that the Officer overstepped her authority by declining to submit Mr.
Afanasyev’s claim for relief under subsection 34(2) of the IRPA to the
Minister for consideration.
[6]
Following
Justice de Montigny’s decision, Mr. Afanasyev’s visa application was remitted
for redetermination on the merits by the Officer. Mr. Afanasyev was advised in
a letter dated August 11, 2010 that his file was being reopened for
reassessment. On October 5, 2010 the Officer wrote to Mr. Afanasyev setting
out the following concerns and inviting a response to them:
Your application has been re-opened and rev[ie]wed
in light of the Federal Court decision IMM-213-09. Upon review, it appears that
you are still a member of the inadmissible class of persons described in
Sections 34(1)(a) and 34(1)(f) of the Immigration and Refugee Protection Act.
In order that your application be treated in the fairest possible manner, I am
going to outline my concerns to you and offer you an opportunity to respond.
The following information has been provided by you
during the course of your application:
- that you served in the Soviet Army from June 1985
to May 1987,
- that you spent 6 months at a training centre for
military translators to work in radio intelligence,
- that you were posted to the 82nd Special
Communications Brigade, 11th Company, 1st Platoon
- that during the time of your service, this unit
was located in Torgau, German Democratic Republic,
- that your duties included listening to English
language communications coming from US bases in the Federal Republic of Germany
and identifying / debriefing various frequencies and telegraph codes,
- you further elaborated that you would listen with
headphones and identify radio frequencies and that your unit was responsible
for intercepting a chain of codes, letters and figures. You further stated that
you would prepare a report and would send it to the duty officer but you did
not know what happened to that this report,
- that in your two years with t[h]e 82nd Special
Communications Brigade approximately 1,000 military personne[l] worked there
and that interception was the main function of the unit and
- that your unit was not subordinate to the Main
Intelligence Directorate of the Russian General Staff (GRU).
I have attached a research document to this letter
that that shows that the 82nd Special Communications Unit was part of the GRU.
Therefore this establishes that you were acting
directly on behalf of the GRU.
It has been recognised for quite some time in Canada that the GRU is an organization that engages or has engaged in acts of espionage
against democratic governments. For example, I refer you to the Federal Court
case of Viatcheslav Gariev.
I also refer you to the recent Federal Court case of
Danish Haroon Peer for an examination of what type of activity constitutes
espionage.
I invite you to review this information and address
my concerns. I will set a 120 day limit for your response.
[7]
Counsel
for Mr. Afanasyev responded to the Officer, taking strenuous issue with the
quality of his research and by describing the Officer’s stated concerns as “an
awkward ex post facto argument designed to get a second kick at the judicial
can”. Counsel took the position that the Officer was bound by the content of
the initial record and that it could not be supplemented by further research –
all of which he described as “on-line chatter”.
[8]
The
Officer replied on April 15, 2011 in the form of a second fairness letter. He
acknowledged the weakness of one of his internet sources, corrected some of the
previous web addresses and referred to two additional historical texts in
support of his continued view that Mr. Afanasyev’s army unit “was part of
the GRU”.
[9]
Mr.
Afanasyev’s counsel replied as follows:
I have received your letter, dated April 15, 2011,
and have little to add beyond what I wrote to you in my response of January 26,
2011.
It remains my position that the Minister is
attempting to introduce additional evidence and arguments regarding the very
issues that were decided by the Federal Court of Canada on July 8, 2010. The
Court specifically ruled on the questions pertinent to s.34(1) of IRPA
as to whether Mr. Afanasyev had engaged in a form of “espionage” and whether he
belonged to an organisation that was engaged in espionage. Please recall that
the “organisation” considered by the Court, the 82nd Brigade of the Soviet Army
in which Mr. Afanasyev had been a private, was the very organisation named by
the Minister in determining inadmissibility under s34(1 )(f). The Minister is
not in a position to reargue this case or to introduce additional evidence ex
post facto, particularly given that the evidence on which he now relies was
available at the time of the initial refusal of this application.
The “evidence” now being advanced would not have assisted
the Minister even had it been introduced in a timely manner. The revised
rationale suggests that Mr. Afanasyev could be imputed to have had “membership”
in the GRU because (according to some bloggers) his Soviet Army unit had a reporting
relationship to the GRU. The GRU, the Soviet military intelligence
agency is alleged, in turn, to have had a role in some much earlier espionage
activities, notably the “Gouzenko affair” in 1946. Hence, through various
degrees of separation, Private Afanasyev is now redefined as having been a
“member” of the GRU, an organisation involved in “espionage”. It would be an
understatement to categorise the logic as stretched.
With all due respect, I would recommend that you
seek legal advice on the implications of ignoring the clear decision and
direction of the Honourable Justice de Montigny of the Federal Court of Canada.
In doing do so we request that you issue forthwith the permanent resident visa
to Mr. Afanasyev who filed his application eleven years ago.
Issues
[10]
Mr.
Afanasyev’s principal argument is that the decision under review is essentially
unchanged from the earlier decision that Justice de Montigny set aside and
ought to be set aside again for the same reasons. In addition it is argued
that the Officer was bound by the principle of res judicata to apply
Justice de Montigny’s view of what constitutes “espionage” and was estopped
from applying a different legal test. Of additional concern to Mr. Afanasyev
is the similarity between the two decisions insofar as they outline the details
of Mr. Afanasyev’s military service. Mr. Afanasyev also complains that the
decision was unreasonable because it was based on unreliable evidentiary
sources – a point the Officer is said to have acknowledged at least in part.
Analysis
[11]
The
Officer adopted documentary evidence that described a link between military
units that intercepted foreign military communications and the Glavnoye
Razvedyvatel'noye Upravleniye, or the GRU. In response to the initial fairness
letter from the Officer, counsel for Mr. Afanasyev was highly critical of the
reliability of the evidence relied upon. The Officer, in turn, recognized that
there were valid concerns about some of the internet sources he had cited. In a
second fairness response to counsel, he provided two additional internet
references and reiterated his position that Mr. Afanasyev’s military unit “was
part of the GRU”.
[12]
It
was strenuously argued before me that all of the internet sources that the
Officer cited in support of this finding were unreliable, including the two
references that were noted in the second fairness letter. The problem with
this argument is that counsel’s response to the second fairness letter failed
to take issue with the reliability of the new evidence the Officer had
presented. The only point that was raised was that it was not open to the
Minister to supplement the initial record by relying on additional documentary
evidence that was available at the time of the first inadmissibility decision.
This, of course, is not a correct statement. Having had the initial decision
set aside it was open to either party to rely on additional evidence and to
create a new record. What is not permitted on judicial review is for an
applicant to complain to the Court about the reliability of evidence when no
such complaint was made to the decision-maker.
[13]
The
Officer relied upon documentary evidence that stated that Soviet Military
communications units were subordinate to GRU. One of those sources described
the relationship as follows:
Before the collapse of the Soviet Union OSNAZ troops
were subordinated by the first radio monitoring division of the 6th department
of the GRU. This department headed the so-called OSNAZ divisions, which were
part of the military units and groups of Soviet troops in Hungary, East Germany, Poland and Czechoslovakia. Under the supervision of the radio intelligence
department, OSNAZ served as the interceptor of information from communications
networks of foreign states - subjects of radio intelligence monitoring by the
GRU.
(…)
Operational duties, such as listening to the
frequencies of the enemy deserve separate description. Imagine a large hall,
with two rows of about thirty most powerful radio receivers and about fifteen
tape recorders. For each post, where two or three soldiers serve taking turns, there
were two radios and one recorder. Officers were located in the “aquarium”
(glass room) and supervised their soldiers from the outside. What did the
soldiers do on duty? Of course, listen to the radio frequencies in order to
intercept conversations between NATO aircraft and their base or the
broadcasting station of the NATO headquarters in Brussels.
(…)
[14]
Although
Mr. Afanasyev had told the Officer that his unit was not subordinate to GRU, he
also admitted that he had no idea how his reports were used once they left his
desk. This claim of operational ignorance was the basis for the Officer’s
rejection of Mr. Afanasyev’s exculpatory evidence.
[15]
I
accept the point that open-source or wiki-type websites are, like blogs,
notoriously unreliable and should rarely, if ever, be used as evidentiary
sources. But in this case, two of the principal documentary sources relied
upon by the Officer were not challenged before him. In the decision letter,
the Officer observed that one of those sources had been authored by two
well-known historians specializing in the study of Soviet intelligence services
and the other source had been praised by many sources including the New York
Times. This point was never raised before the Officer and it cannot now be
used to challenge the decision on judicial review.
[16]
I
agree with counsel for the Respondent that this aspect of the complaint is
simply an invitation to the Court to reweigh the evidence. That, of course, is
not a proper function of the Court on judicial review.
[17]
Mr.
Afanasyev also asserts that the Officer’s decision is unreasonable because it
fails to explain how the identified link between Mr. Afanasyev’s military unit
and GRU amounted to a membership in the GRU. This is essentially the same
concern that was considered by Justice Anne Mactavish in Vukic
v Canada,
2012 FC 370, [2012] FCJ no 407. In that decision Justice Mactavish presented
the issue before her as follows:
38 Insofar as the test for membership is
concerned, it is clear that actual or formal membership in an organization is
not required - rather the term is to be broadly understood: see Chiau v.
Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 642 at
para. 34. Moreover, there will always be some factors that support a membership
finding, and others that point away from membership: see Poshteh, above
at para. 36.
[18]
There
is no doubt that Mr. Afanasyev’s work as a radio surveillance officer with the
82nd Special Communications Brigade of the Soviet Army constituted a
form of espionage, albeit at a low functional level. By his own
acknowledgement his work involved the gathering of military intelligence
emanating from NATO and American forces in West Germany. His legal counsel described
the nature of his duties in the following terms:
The facts as to Mr. Afanasyev’s duties as a soldier (private)
who was part of a military intelligence unit in the (then) Soviet army and stationed
in East Germany are not in dispute and were accepted by both parties.
…
Mr. Afanasyev’s activities over 20 years ago as a
private conscript in the Soviet Army were part of lawful and routine military
intelligence exercises ordered by his supervisors in his (then) country of
citizenship.
Refusal to obey assigned duties as a conscripted
soldier would have constituted an offence in the Soviet Union as it would in
most other countries. The commission of such [an] offence might itself have
rendered Mr. Afanasyev inadmissible to Canada on these grounds.
Mr. Afanasyev’s duties involved translating English
words emanating from NATO communications without an understanding or knowledge
of the codes attached to the words. In any event NATO military codes used in
the mid-80s would no longer be relevant today to Canada or to any other
country.
There is no issue or allegation that any of Mr.
Afanasyev’s activities in an intelligence unit in the Soviet army for one year
in the mid-1980s ever had any impact on Canada or Canadians or was even
directed towards Canada. The intercepted correspondence originated from
military communications of a Canadian ally.
…
Although Mr. Afanasyev performed the general duties
of a private in the armed forces, his duties in this unit primarily involved
sitting next to a radio receiver and listening to English language military
transmissions on various radio frequencies. These messages were in English but
were encrypted and Mr. Afanasyev simply passed them to others in encrypted form
without any knowledge of their coding. Hence, Mr Afanasyev was not privy to any
secrets, if indeed any were being conveyed. Mr. Afanasyev was transferred to
the reserves in 1987 and returned to university in Kiev.
[19]
Counsel
for Mr. Afanasyev described this work as a form of military intelligence and
not espionage; but this is a semantic distinction that was rejected by Justice
Russel Zinn in Peer v Canada, 2010 FC 752, [2010] FCJ no 916, affirmed in
Peer v Canada, 2011 FCA 91, [2011] FCJ no 338. In that decision Justice
Zinn held that espionage was simply the covert or surreptitious act of
gathering information. Espionage does not require any element of hostile
intent and can be occasioned even when carried out lawfully on behalf of a
foreign government or agency. I would add to this that it does not require a detailed
appreciation of how the information may be put to later use by higher
authorities. The job of listening in on western military radio signals while
in the employ of the Soviet Army is, by this definition, an act of espionage. I
accept that the incidental acquisition of military intelligence may not amount
to espionage but in this case Mr. Afanasyev was directly employed in the covert
gathering of western military telecommunication information on behalf of his
military intelligence unit – or, as counsel for the Respondent put it, “his
main task was to eavesdrop” on NATO communications. The facts that Mr. Afanasyev
was a conscripted soldier working at the rank of a private and that his
military employment is now more than 20 years past are of no relevance except
to a request for ministerial relief for exemption from an inadmissibility
finding.
[20]
I
do not agree with counsel’s argument that the Officer was required to set out a
precise legal definition for the term “espionage”. It is sufficient if the activities
described amount to a form of espionage, and here they did. I do not read
Justice de Montigny’s decision to recognize a larger obligation. His decision
was based on a finding that the Officer’s reasons were procedurally inadequate
and that a breach of fairness had occurred. It has since been held by the
Supreme Court of Canada in Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, that
the adequacy of reasons is not a stand-alone basis for setting aside a decision
on fairness grounds. It is enough if, when read in light of the evidence and
the issues, the reasons adequately explain the bases of the decision, and here
they do.
[21]
It
is also of no consequence that the two decision letters contain many
similarities. Indeed, it would be surprising if they did not. The overlapping
historical passages relied upon in both instances are mere recitals of
Mr. Afanasyev’s undisputed military history. The issue that was central
to the inadmissibility finding was whether the Officer had reasonable grounds
to believe that, by virtue of Mr. Afanasyev’s admitted role in the
interception of NATO radio communications, he was a member of an organization
that engaged in espionage. There was an evidentiary foundation for the
Officer’s decision and deference requires that the Court respect that finding.
[22]
Mr. Afanasyev’s
additional fairness complaint that the Officer had a duty to translate all of
the Russian language references into English is without merit. Mr. Afanasyev
is fluent in Russian and English and quite capable of understanding the entire
record.
[23]
The
parties requested an opportunity to consider a certified question. The
Applicant will have seven days to submit his position in writing. The
Respondent will have three days to respond. Neither submission shall exceed
five pages in length.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
dismissed.
"R.L.
Barnes"
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