Date: 20090406
Docket: IMM-4002-07
Citation: 2009 FC 347
Ottawa, Ontario, April 6, 2009
PRESENT:
The Honourable Mr. Justice Simon Noël
BETWEEN:
YOUSR
DHAHBI
ADEL KHRIBI
Applicants
and
THE
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
I was
assigned this case by the Chief Justice. It is an application, for which leave
was duly granted, for judicial review of a decision made on
July 30, 2007, by a visa officer (the decision maker) refusing the
applicants’ application for permanent residence in Canada because of
Mr. Khribi’s inadmissibility under paragraph 36(1)(c) of the Immigration
and Refugee Protection Act (IRPA).
[2]
In the
context of this application, the respondent is applying to the Court under
section 87 of the IRPA for authorization not to disclose the information,
as defined in section 76 of the IRPA, that was redacted in the decision
maker’s certified record. According to the Minister, the disclosure of that information
would be injurious to national security or endanger the safety of any person.
Specifically, it is requested under section 87 and paragraph 83(1)(c)
of the IRPA that the Court decide this question by hearing the information in
the absence of the public, the applicants and counsel.
[3]
As a
preliminary application, the applicants object for the following reasons:
-
they were
not told all the information in the decision maker’s possession, which was a
breach of procedural fairness, and the visa officer’s decision is therefore
void;
-
if this is
not the case, then in the alternative the applicants request that a special
advocate be appointed for the purposes of the in camera hearing and
that a summary of the evidence heard at that hearing be provided to them.
[4]
In reply,
the Minister submits that procedural fairness was observed and that a special
advocate does not have to be appointed because:
-
the
refusal of the application for permanent residence was based not on the
redacted information, although that information was part of the decision
maker’s record, but rather on certain facts known to the applicants from which
the decision maker concluded that Mr. Khribi was inadmissible on grounds
of criminality under paragraph 36(1)(c) of the IRPA;
-
the
appointment of a special advocate is not justified in the circumstances, since
all that is in issue is a decision refusing an application for permanent
residence made from outside Canada; the applicants’ freedom and safety are not
at issue;
-
the
redacted information is minor compared to the record as a whole and, in any
event, during two interviews, the applicants were told most of the
information in question, which concerns Mr. Khribi’s involvement with a
certain organization and his possible acquaintance with certain identified
persons during the time he lived in Canada;
-
section 87
of the IRPA expressly exempts the respondent from providing a summary of the
redacted information.
Steps taken
[5]
To fulfil
my judicial duties, it seemed important that I first become apprised of the
redacted information by calling an in camera hearing and, if
necessary, hear one or more witnesses before making any decision.
[6]
For that
purpose, I presided over a hearing with all counsel by conference call and told
them what I intended to do. The in camera hearing in the presence
of one counsel was held on December 10, 2008. One witness was heard, and
legal comments were provided by counsel for the respondent. I also had an
opportunity to examine the witness on the redaction of the information.
[7]
I
subsequently held another hearing with all counsel by conference all, during
which I told them the outcome of the in camera hearing:
-
additional
information was disclosed to the applicants following the ex parte in camera
hearing;
-
after
discussions, I did not consider the presence of a special advocate necessary in
the circumstances;
-
the
redacted information did not concern the decision maker’s decision that
Mr. Khribi was inadmissible on grounds of criminality under
paragraph 36(1)(c) of the IRPA, and the applicants had all the
facts at their disposal to deal with that decision;
-
the
redacted information was redacted because its disclosure would be injurious to
national security or endanger the safety of any person, and it should not be
disclosed to the applicants and their counsel.
Issue
[8]
Therefore,
the issue to be debated has to do with the decision about Mr. Khribi,
which concerns the facts serving as the basis for his inadmissibility on
grounds of criminality under paragraph 36(1)(c) of the IRPA. A date
for a hearing to deal with this issue in everyone’s presence was set, and the
hearing was held.
[9]
However,
before addressing the judicial review issue, namely the decision to refuse the
application for permanent residence, it is appropriate to deal with the
preliminary questions arising out of the applicability of section 87 of
the IRPA, namely the alleged breach of procedural fairness and, in the
alternative, if there was no such breach, the right to have a special advocate
appointed for the in camera hearing called to discuss the redaction
of information.
Does the non‑disclosure
to the applicants of information known to the decision maker amount to a breach
of procedural fairness?
[10]
In Charkaoui
v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350 (Charkaoui),
at paragraphs 58 et seq., the Supreme Court recognized
that information that relates to national security or could have the effect of
endangering a person’s life must be protected and that its non‑disclosure
to the individual concerned is justified. In such circumstances, the stakes are
such that the information must not be disclosed.
More particularly, the Court
has repeatedly recognized that national security considerations can limit the
extent of disclosure of information to the affected individual. (paragraph 58,
Charkaoui)
[11]
In
addition, however, the applicants’ fundamental rights are not in jeopardy, as
the Supreme Court noted in Charkaoui when dealing with the security
certificate procedure. Although the decision is an important one for their own
lives, it is only a decision refusing their application for permanent residence
made from outside Canada. Their lives, freedom and
safety are not at risk.
[12]
In this
specific context, it is important to recall that the duty to act fairly is
assessed based on the context and that some minimum duties must be met, as the
Federal Court of Appeal stated in Khan v. Canada (Minister of
Citizenship and Immigration), 2001 FCA 345, at paragraph 31:
The factors tending to limit the content
of the duty in the case at bar include: the absence of a legal right to a visa;
the imposition on the applicant of the burden of establishing eligibility for a
visa; the less serious impact on the individual that the refusal of a visa
typically has, compared with the removal of a benefit, such as continuing
residence in Canada. . . .
[13]
Account
must also be taken of the fact that the redacted information is insignificant
compared to the certified record as a whole. That record is 482 pages
long, and nine of those pages are redacted in part. The recent in camera
hearing substantially eliminated the redaction of information and thus allowed
a skilled reader to have a good understanding of the factual issues in this
case. Moreover, the decision maker’s notes indicate that Mr. Khribi was
questioned about his involvement with a certain organization and his ties to
certain individuals during his stay in Canada.
[14]
What is
even more important, however, is that the redacted information is not relevant
to the decision maker’s decision. The decision to refuse permanent residence is
substantially based on the fact that Mr. Khribi is inadmissible under
paragraph 36(1)(c) of the IRPA because he participated in the
falsification or unlawful production of a university identification card, which
amounts to an act prohibited by paragraph 366(1)(b) of the Criminal
Code, R.S.C. 1985, c. C‑46 (see pages 47‑51 of the
Tribunal Record).
[15]
In his
decision, the decision maker took the trouble of stating that Mr. Khribi’s
alleged acquaintance with certain persons during his stay in Canada and his answers concerning
this matter could not establish sufficient facts to find him inadmissible under
section 34 of the IRPA (see pages 48 and 50 of the Tribunal Record).
[16]
While
recognizing the respondent’s right not to disclose information relating to
national security or the safety of any person and to have that right validated
under section 87 of the IRPA, the Court concludes that, in the
circumstances of this case, no breach of procedural fairness resulted from the
fact that the applicants did not have all the information available to the
decision maker.
[17]
I would
add that the applicants argue that they were not sufficiently informed.
[18]
The above‑mentioned
reasons describe the applicants’ knowledge of the fact situation in issue. The
detailed notes from the applicants’ interviews show how much they knew about
the facts in issue (see pages 40 et seq. of the Tribunal
Record). Everything the decision maker was concerned with is referred to in
those notes. The applicants were confronted with facts relating to the names of
individuals, Mr. Khribi’s activities during his stay in Canada, including his studies and
occupations, Mr. Khribi’s universities studies in Sousse, Tunisia, his explanation about his
participation in making a false university identification card, etc. The
applicants were sufficiently informed, even amply informed.
[19]
The
applicants also allege that they are entitled to a summary of the evidence. Yet
the IRPA deals expressly with that obligation in subsection 87(2). In the
circumstances of this case, and taking into account the legislative exemption
from providing a summary of the evidence, such a summary did not have to be
provided.
[20]
Based on
these preliminary arguments, there is no legal justification for finding that
the decision maker’s decision is void, as requested.
In the alternative, the
applicants request that a special advocate be appointed
[21]
There is
no absolute right to have a special advocate appointed when an in camera
hearing is requested under section 87 of the IRPA. Each case turns on its
own facts. Section 87.1 provides as follows:
If the judge during the judicial review, or a court on appeal from the
judge’s decision, is of the opinion that considerations of fairness and natural
justice require that a special advocate be appointed to protect the interests
of the permanent resident or foreign national, the judge or court shall appoint
a special advocate from the list referred to in subsection 85(1).
Sections 85.1 to 85.5 apply to the proceeding with any necessary modifications.
[22]
What
should be noted from this statutory provision is that Parliament does not state
that a special advocate is appointed at the request of a permanent resident or
foreign national; rather, it is within the designated judge’s discretion to
appoint a special advocate after reviewing the record and the considerations of
fairness and natural justice requiring that a special advocate be appointed to
protect the interests of the permanent resident or foreign national.
[23]
To
undertake such an exercise, the designated judge must consider the record, the
issues, the redacted information and whether that information was important to
the decision being judicially reviewed. Depending on the circumstances, the
judge must also preside over an in camera hearing with a court
reporter present, ask why the information was redacted and sometimes question
its relevance. Having done so, the judge is in a position to make an informed
decision on the appointment of a special advocate after hearing the parties on
the subject.
[24]
Experience
in similar cases shows that, in such situations, it has often been found that
the redacted information adds nothing to the facts in issue. For example, for
reasons relating to investigative techniques, administrative and operating
methods, such as file numbers, CSIS staff names and dealings between CSIS and
other agencies in or outside Canada, are not disclosed. Such
information in itself does not help in understanding the case. It sometimes
happens as well that redacted information is disclosed as a result of the
designated judge’s involvement. The instant case is a perfect example of this.
[25]
On the
other hand, if the redacted information goes to the very heart of the decision
under review, then the judge must assess the history of the case, the rights in
issue, if any, which party bears the burden of justifying the application to
immigration services and whether or not the consequences of the decision on the
evidence in question are important. As we have seen, a decision on an
application for permanent residence made from outside Canada does not have the same consequences as a
decision by two ministers issuing a security certificate against someone.
Each case turns on its own facts and requires an analysis that non‑exhaustively
takes account of the factors set out in this paragraph but also of the record
as a whole. In short, the standards of fairness and natural justice, which vary
with the circumstances, must be assessed by taking account of all the facts of
the case and the issues.
[26]
Here, the
appointment of a special advocate was not necessary. The case concerns an
application for permanent residence made from outside Canada, most of the redacted information was
disclosed after the in camera hearing, the decision under review
contained reasons unrelated to the information that remained redacted, and most
of that information was disclosed during the interviews.
[27]
Having
dealt with the issues arising out of the request for an in camera
hearing under section 87 of the IRPA, what remains to be addressed is the
issue in the application for judicial review, namely the decision refusing the
application for permanent residence based on the facts accepted by the decision
maker, namely that Mr. Khribi was inadmissible on grounds of criminality
under paragraph 36(1)(c) of the IRPA because of his involvement in
making a false document.
Facts
[28]
This is a
second decision refusing an application for permanent residence. The first
decision of April 21, 2005, was set aside by the Court with the
Minister’s consent after the Court granted leave to apply for judicial review.
[29]
For the
purposes of the decision under review, the decision maker met with the
applicants for about four hours. About 15 minutes of that time were
devoted to Ms. Dhahbi and the rest to Mr. Khribi. The questions
concerned studies, work, family and Mr. Khribi’s acquaintances in Canada during his stay here.
[30]
As
discussed above, the decision refused the application for permanent residence
because Mr. Khribi had requested a false university identification card,
which amounted to a criminal offence under sections 366(1), 21, 24 and 464
of the Criminal Code of Canada with a maximum term of
imprisonment of 10 years. This meant that the applicants were inadmissible
under subsection 36(1) of the IRPA and paragraph 70(1)(e) of
the Immigration and Refugee Protection Regulations (SOR/2002‑227).
[31]
The
applicants are challenging the version of the facts on which their
inadmissibility is based. The issue is therefore one of credibility between
their versions and that of the decision maker.
[32]
In the
notes in the Tribunal Record and in his affidavit, the decision maker stated
that Mr. Khribi had explained at the interview that, after failing twice
in his second year at the faculty of medicine, he had become an independent
student for his third attempt. He said that, to avoid military service, he had
convinced a friend to make him a student card stating that he was a regular
student and not an independent student. Mr. Khribi added that he and his
friend had been caught in the act of making the card.
[33]
The
applicants dispute these facts but also complain that the decision maker did
not inform them of their inadmissibility and that he should have given them an
opportunity to address his concerns about the false identification card and its
consequences.
[34]
There is
no reason to question the decision maker’s version of the facts concerning the
identification card. His notes are complete and very detailed, and they were
written during the interview. He discussed the subject openly, and
Mr. Khribi himself described the events. Following the decision, he tried
to tone down those events. He had ample opportunity to explain himself.
[35]
Accordingly,
there is no justification for intervening and setting aside the decision. The
application for judicial review is dismissed.
[36]
The Court
invited the parties to submit a question for certification, but they declined.
JUDGMENT
THIS COURT ORDERS THAT:
-
The
preliminary applications are dismissed.
-
The
request to appoint a special advocate is denied.
-
The
redacted information, except the information expressly excluded following the in camera
hearing and disclosed, remains redacted for reasons of national security.
-
The
application for judicial review is dismissed.
-
No
question will be certified.
“Simon
Noël”
Certified true
translation
Monica F. Chamberlain,
Translator
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