Date: 20071224
Docket: IMM-4355-06
Citation: 2007 FC 1360
Ottawa, Ontario, December 24, 2007
PRESENT: THE CHIEF JUSTICE
BETWEEN:
BERHANE TEWOLDE BERAKI
ROZENA KEFLE GHEBREMARIAM
MICHAEL BERHANE TEWOLDE
NATSINET BERHANE TEWOLDE
YIKEALO BERHANE TEWOLDE
DANIEL BERHANE TEWOLDE
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AMENDED REASONS FOR JUDGMENT
AND JUDGMENT
[1] The applicant family
are citizens of Eritrea who
were found to be Convention refugees by the Refugee Protection Division in
2004. Their application for permanent residence in Canada as protected persons was denied. The immigration officer determined that
Mr. Beraki was inadmissible as the result of his earlier membership in the
Eritrean Liberation Front (ELF), an organization, in the opinion of the
immigration officer, for which there are reasonable grounds to believe engages,
has engaged or will engage in terrorist or subversive activities, pursuant to
paragraph 34(1)(f) of the Immigration and Refugee Protection Act.
[2] The respondent
acknowledges that the immigration officer erred in law in finding that the
members of Mr. Beraki’s family are also inadmissible, simply because he was
found to be so. Accordingly, it is agreed that an order will issue setting aside
the inadmissibility decision concerning the members of Mr. Beraki’s family.
[3] In her decision
concerning the ELF’s engagement in terrorism, the immigration officer stated:
Although there is no definition for terrorism in domestic or international
law according to a search on the internet under Google search engine “a
terrorist organization is a political movement that uses terror as a weapon to
achieve its goals” or “a terrorist organization is an organization that engages
in terrorist tactics, they are also (perhaps more neutrally referred to as
militant organizations.” (www.google.ca)
(sic)
[4] The immigration
officer’s reasons do not otherwise indicate how she understood and applied the
definition of terrorism: Jalil v. Canada (Minister of Citizenship and Immigration),
2006 FC 246 at paragraphs 31-32; Naeem v. Canada (Minister of Citizenship
and Immigration), 2007 FC 123 at paragraph 46; Mekonen v. Canada (Minister of Citizenship and
Immigration), 2007 FC 1133 at paragraphs 28-29. Some
guidance concerning the meaning of “terrorism” is also found in Suresh v. Canada (Minister of Citizenship and
Immigration), 2002 SCC 1 at paragraphs 93 through 98.
[5] The immigration
officer’s failure to demonstrate in her decision an understanding of the
meaning of “terrorism” constitutes a reviewable error: her decision cannot
withstand a “somewhat probing examination”. Mr. Beraki’s application for
judicial review will be granted. It is not necessary to consider his other grounds.
[6] As agreed by both
counsel, the order granting this application for judicial review for all
applicants will specify that the procedures to afford permanent residency for
Mr. Beraki’s family members will proceed independently, even while his application
is referred to another immigration officer for redetermination.
The section 87 application
[7] Section 87 of the Immigration and
Refuge Protection Act is the statutory provision which allows the
respondent to apply for the non-disclosure of information in the tribunal
record during the judicial review proceeding in this Court. Some obiter
comments concerning the Court’s recent experience may be in order, keeping in
mind that they are made without the benefit of argument from both counsel.
[8] First, the respondent must endeavour to seek relief under section 87 in a more timely
matter. In this proceeding and in others, the application under section 87 is
made on such a late date that the substantive hearing on the judicial review
must be rescheduled. This is not consistent with the good administration of
justice.
[9] Second, part of the delay may result from
the limited, if any, communication between counsel for the respondent in the
judicial review proceeding and counsel representing the government institution,
often the Canadian Security Intelligence Service, seeking the non-disclosure of
information. Enhanced communication between these two government counsel can
only improve the procedural aspects of a section 87 application.
[10] Third, in this proceeding at least,
substantial portions of the deponent’s secret affidavit should have been filed
on the public record, as the deponent herself acknowledged on examination
during the ex parte hearing. In the future, all interested persons will
want to assure that the open court principle is more closely adhered to in
section 87 matters.
[11] After the ex parte hearings in this
proceeding, the Court issued an order identifying those portions of the
tribunal record which would not be injurious to national security, despite the
deponent’s initial assertions to the contrary. The deponent is an experienced
CSIS intelligence officer. Her professional training as a member of Canada’s intelligence
service, generally speaking, is to keep information secret. It would have been
helpful to the deponent and to the section 87 process if she had been assisted
by someone within government with a different professional background prior to
her deciding on which portions of the tribunal record should be redacted. The
over-assertion of secrecy, done in good faith, could have been avoided with the
input of a person, such as an openness advocate from within government, whose
different perspective, working together with the deponent, would result in a
more balanced outcome.
[12] Fourth, policy makers may wish to consider
the Court’s apparent inability under the current legislative scheme to order
disclosure of information which the Court determines is not sensitive. Where
the Court is of the view that the disclosure of the information would not be
injurious to national security and may assist the non-government party in the
application for judicial review, it does not appear to have the power to order
its disclosure. Where the non-government party has the burden of proof in the
judicial review, there is a sense that the absence of legal leverage to force
the disclosure of such information may be unfair.
[13] Hopefully, these comments may be of assistance to
senior Justice officials in considering ways to better the section 87 process.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
This application for judicial review is granted.
2.
The decision of the immigration officer, dated July 24,
2006 on the basis of reasons dated June 27, 2006, dismissing the applicants’
application for permanent residence is set aside and the matter referred for
redetermination by a different immigration officer.
3.
The redetermination of the application for permanent
residence of the applicants Rozena Kefle Ghebremariam, Michael Berhane Tewolde,
Natsinet Berhane Tewolde, Yikealo Berhane Tewolde, Daniel Berhane Tewolde shall
proceed independently from the redetermination of the application of Berhane
Tewolde Beraki.
“Allan
Lutfy”
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