Date: 20070511
Dockets: IMM-2696-06
IMM-2699-06
Citation: 2007 FC 509
Ottawa,
Ontario,
May 11, 2007
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
SHAHRAM
GOLESTANEH
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Pursuant
to subsection 44(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), an
enforcement officer at the Canada Border Services Agency (CBSA), prepared a
report dated January 20, 2006, alleging that the applicant was inadmissible, as
per paragraphs 34(1)(f) and 35(1)(a) of the Act, by
reason of his involvement with the Mujahideen-E Khalq (MEK), a listed terrorist
entity in Canada. Pursuant to subsection 44(2) of the Act, the report prepared
by the enforcement officer was then referred by the Minister of Public Safety
and Emergency Preparedness (the Minister) to the Immigration Division of the
Immigration and Refugee Board (the Immigration Division) for an admissibility
hearing. The applicant now seeks judicial review of the decisions made under
subsections 44(1) (Docket IMM-2696-06) and 44(2) (Docket IMM-2699-06) of the
Act.
[2]
The respondent then submitted an application pursuant to section
87 of the Act, for
the non-disclosure of confidential information considered and relied upon by
the enforcement officer, including the Security Intelligence Report
(SIR) prepared by the Canadian Security Intelligence Services
(CSIS) following their investigation of the applicant, which report was supported
by a series of documents listed in the footnotes to the SIR.
[3]
In the course of an in camera hearing with counsel
for the respondent, I learned from said counsel that the enforcement officer did
not have access to the documentation supporting the SIR before rendering his
decision, but was limited to reading the report itself. This alone is a serious
error of law that justifies setting aside the decision of the enforcement
officer, as I myself noted in Sogi v. Canada (Minister of Citizenship and
Immigration), 2006 FC 692, [2006] F.C.J. No. 863 (QL),
where I referred to the following paragraphs from Justice Andrew MacKay’s
decision in Jaballah (Re), 2005 FC 399, [2005] F.C.J. No. 500
(QL):
¶ 34 In
this case, it became clear that the record before the delegate included the
SIR, i.e. the narrative report by CSIS of its grounds for believing Mr.
Jaballah is inadmissible to Canada, without the reference documents or
appendices footnoted in that report. Included in the record also were the
public summary statements of August 14, 2001 and February 5, 2002 based on the
SIR and testimony in public by a CSIS officer, released as public documents to
Mr. Jaballah by order of this Court in earlier proceedings concerning the
reasonableness of the Ministers' certificate. I note that any reference
documents or appendices footnoted in those summaries were apparently not
provided to the Minister's delegate even though copies of those documents had
been provided to Mr. Jaballah's counsel on August 14, 2001.
¶ 35
The decision in Mahjoub has since been followed in respect of the same
evidentiary issue by Mr. Justice Blanchard in Almrei v. Canada (Minister of
Citizenship and Immigration) (2005), 262 F.T.R. 7 (F.C.)
(see paragraphs 14 and 86).
¶ 36 I
note that in the Mahjoub and Almrei decisions the Courts
concerned were dealing with decisions made pursuant to subsection 115(2) of the
IRPA applicable to Convention refugees as both Messrs. Mahjoub and Almrei were,
and thus they were already qualified as persons in need of protection under
IRPA. Here the decision in question was made pursuant to subparagraph 113(d)(ii)
of IRPA for consideration of an application for protection by a foreign
national, as Mr. Jaballah is. While the two provisions relate to differently
qualified persons, the essence of the decisions required in both cases is the
same, in my opinion. Failures in proper process under subsection 115(2) have
equal significance for the process under subparagraph 113(d)(ii). I
agree with Mr. Jaballah's argument that the process in Mahjoub and Almrei
was found inadequate to support an independent assessment by the Minister's
delegate of the danger the person in question posed to the security of Canada.
So the similar process in this case would be inadequate to support an
independent assessment.
[4]
In the present case, we are dealing with a decision made pursuant
to subsection 44(1) of the Act, as opposed to sections 113 or 115, but the
reasoning in the above-noted cases remains just as relevant. Although the CSIS
document may set out precisely the grounds of inadmissibility of the applicant,
the officer who must decide whether to issue a subsection 44(1) report has a
duty, when examining the file for the first time, to consult all of the
reference documents, including the appendices to the CSIS report and the
information on the sources underlying this report, before making a decision.
This is necessary in order to ensure that the procedure followed will
sufficiently guarantee the independence of the decision-maker and thus protect
the rights of the individual concerned.
[5]
Accordingly, the decision of the enforcement officer to
prepare a report for the Minister under subsection 44(1) of the Act, and the
subsequent decision by the Minister under subsection 44(2) of the Act to refer
the report to the Immigration Division for an admissibility hearing, are set
aside, and the file is referred back to a different enforcement officer for re-determination
in light of these reasons.
JUDGMENT
1.
The applications for judicial review of the decision
of the enforcement officer to issue a subsection 44(1) report (Docket IMM-2696-06)
and of the decision of the Minister to proceed with a subsection 44(2) referral
(Docket IMM-2699-06) are allowed.
2.
The decisions in question are set aside and the
file is referred back to a different enforcement officer for re-determination.
“Pierre Blais”
FEDERAL COURT
NAMES OF
COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2696-06 and IMM-2699-06
STYLE OF CAUSE: SHAHRAM GOLESTANEH v. MPSEP
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: Friday, May 11, 2007
REASONS FOR JUDGMENT AND JUDGMENT: MR.
JUSTICE BLAIS
DATED: Friday, May 11, 2007
APPEARANCES:
Mr. David Matas FOR
APPLICANT
Ms. Aliyah Rahaman FOR
RESPONDENT
Mr. Toby Hoffman FOR
RESPONDENT (CSIS)
SOLICITORS OF RECORD:
Mr. David Matas FOR
APPLICANT
Winnipeg, Manitoba
John H. Sims, Q.C. FOR
RESPONDENTS
Deputy Attorney General of Canada
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