Date: 20071102
Docket: IMM-6626-06
Citation: 2007 FC 1133
Ottawa, Ontario, November 2,
2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
TEKLEMICHAEL WELDETENSAI
MEKONEN
BEREKTI OKBAY
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Teklemichael
Weldetensai Mekonen and his wife Berekti Okbay are citizens of Eritrea. Ms. Okbay
and their four daughters were landed in Canada in April of 2000 as Convention
refugees. In July of 2001, Ms. Okbay applied to sponsor her husband as a
member of the family class. In turn, in June of 2002, Mr. Mekonen, who
resides outside of Canada, applied for permanent resident status. At all times,
Mr. Mekonen has admitted that he was a member of the Eritrean Liberation Front
(ELF), although he says that he was never personally involved in any armed
struggle.
[2] Mr.
Mekonen and Ms. Okbay bring this application for judicial review of a decision
of a visa officer that, as a member of ELF, Mr. Mekonen was captured by
paragraph 34(1)(f) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (Act), and therefore was inadmissible to Canada.
Specifically, the officer found that:
AS MENTIONED ABOVE PI HELD A LEADERSHIP POSITION
WITHIN THE ORGANIZATION. BEING A MEMBER (LEADER) OF THE ELF FOR 25 YEARS, IN ERITREA AND THE SUDAN DURING THE PERIOD 1975
TO 1989 HE WOULD HAVE BEEN AWARE OF THE ACTIVITIES OF THE ELF. I AM NOT
SATISFIED THAT PI WAS SIMPLY AN INNOCENT MEMBER OF THE ELF. THERE ARE
REASONABLE GROUNDS TO BE BELIVE [SIC] THAT PI WAS INVOLVED AND AWARE OF
E [SIC] THE ARMED STRUGGLE OF ERITREAN LIBERATION AND THE ARMED CLASHES
BETWEEN THE ELF AND THE EPLF-ERITREAN PEOPLE’S LIBERATION FRONT AND
KNOWLEDGEABLE ABOUT THE GROUP’S TERROR-RELATED ACTIVITIES. APPLICATION REFUSED
– A34(1)(F).
[3] Subsection
34(1) of the Act provides that:
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34(1) A permanent
resident or a foreign national is inadmissible on security grounds for
(a) engaging
in an act of espionage or an act of subversion against a democratic government,
institution or process as they are understood in Canada;
(b) engaging
in or instigating the subversion by force of any government;
(c) engaging
in terrorism;
(d) being a
danger to the security of Canada;
(e) engaging
in acts of violence that would or might endanger the lives or safety of
persons in Canada; or
(f) being a
member of an organization that there are reasonable grounds to believe
engages, has engaged or will engage in acts referred to in paragraph (a),
(b) or (c).
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34(1) Emportent
interdiction de territoire pour raison de sécurité les faits suivants :
a) être
l’auteur d’actes d’espionnage ou se livrer à la subversion contre toute
institution démocratique, au sens où cette expression s’entend au Canada;
b) être
l’instigateur ou l’auteur d’actes visant au renversement d’un gouvernement
par la force;
c) se
livrer au terrorisme;
d)
constituer un danger pour la sécurité du Canada;
e) être
l’auteur de tout acte de violence susceptible de mettre en danger la vie ou
la sécurité d’autrui au Canada;
f) être
membre d’une organisation dont il y a des motifs raisonnables de croire
qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b)
ou c).
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[4] While
the applicants have raised a number of interesting arguments, in my view, one
issue is determinative. I find that, on the facts and circumstances of this
particular case, the officer breached the duty of fairness that he owed to Mr.
Mekonen. The officer did so by failing to provide Mr. Mekonen with copies of
documents that the officer had obtained and considered in making his decision,
and by failing to afford Mr. Mekonen an opportunity to comment on the
information contained within those documents. Additionally, to the extent that
the officer found that there were reasonable grounds to believe that the ELF is
an organization that there are reasonable grounds to believe is, or was,
engaged in terrorism, the officer erred by failing to indicate how he
understood and applied the definition of “terrorism”.
Standard of review
[5] It
is only in respect of the review of the officer's substantive decision that a
pragmatic and functional analysis is required in order to determine the
appropriate standard of review. Evaluating whether the requirements of
procedural fairness have been met is a legal question to be answered by the
Court. See: Canadian Union of Public Employees (C.U.P.E.) v. Ontario
(Minister of Labour), [2003] 1 S.C.R. 539 at paragraph 100.
[6] With
respect to the substantive decision concerning the status of the ELF as a
terrorist group within the meaning of subsection 34(1) of the Act, I accept and
adopt the conclusions of my colleagues in cases such as Kanendra v. Canada
(Minister of Citizenship and Immigration), [2005] F.C.J. No. 1156, that a
decision as to whether an organization is one described in paragraphs 34(1)(a),
(b), or (c) of the Act is to be reviewed on the standard of
reasonableness.
Procedural matter
[7] Small
portions of the tribunal record in this matter were redacted on grounds that
disclosure of such information would be injurious to national security. The
Minister brought, late in the proceeding, an application under section 87 of
the Act for the non-disclosure of that information.
[8] After
receiving both public and confidential evidence filed on the Minister's behalf
and after hearing the ex parte and in camera submissions of
counsel for the Minister and the public submissions of counsel for the
applicants, an order issued approving revised versions of the eight pages of
the tribunal record where redactions were initially made. Some further
information was disclosed and some information remained redacted on the ground
that its disclosure would be injurious to national security or to the safety of
any person.
[9] Two
comments are to be made about the section 87 application.
[10] First,
as explained to counsel for the Minister, it is imperative that these
applications be brought on a timely basis. It is for the Court and not the
tribunal to decide what information can be withheld from an applicant, and such
a decision should be made sufficiently far in advance of the hearing on the
merits as to enable the applicant to know on a timely basis all of the
information that can be disclosed.
[11] Second,
as explained to counsel, while certain information remained redacted in the
present case, my decision on the merits of this application has been made
without regard to the redacted confidential information. The case was decided
solely upon the public record. I now turn to the substantive issues.
Did the officer breach the duty
of fairness?
[12] The
content of the duty of fairness is variable and contextual; it is not abstract
or absolute. In two cases, Haghighi v. Canada (Minister of Citizenship and
Immigration), [2000] 4 F.C. 407 (C.A.), and Canada (Minister of
Citizenship and Immigration) v. Bhagwandass, [2001] 3 F.C. 3
(C.A.), the Federal Court of Appeal considered whether an officer was required
by the duty of fairness to disclose for comment to the person affected by the
officer’s decision a report received by the officer. The issue arose in Haghighi
in the context of an inland humanitarian and compassionate application and in Bhagwandass
in the context of a danger opinion. In both cases, the Court applied five
factors in order to determine whether disclosure of the report in question was
required in order to provide the person concerned with a reasonable opportunity
to participate in a meaningful fashion in the decision-making process. The
factors were:
(1) the nature
and effect of the decision within the statutory scheme;
(2) whether, because of the expertise of the writer of the report
or other circumstances, the report was likely to have such a degree of
influence over the decision-maker that advance disclosure was required in order
to "level the playing field";
(3) the harm likely to arise from a decision based upon an
incorrect or ill-considered understanding of the relevant circumstances;
(4) the extent to which advance disclosure of the report was
likely to avoid the risk of an erroneously-based decision; and
(5) any costs likely to arise from advance disclosure, including
delays in the decision-making process.
See: Bhagwandass, at
paragraphs 22 and 23.
[13] I
believe that those contextual factors are apposite in order to determine the
content of the duty of fairness in the present case. Each factor is addressed
in turn below.
1. The nature and effect
of the decision within the statutory scheme.
[14] In
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817, Madam Justice L’Heureux-Dubé noted that greater procedural
protections are required where no appeal procedure is provided within the
statute or where the decision is determinative of the issue and further
requests cannot be submitted.
[15] Subsection
34(1) of the Act describes persons who may not be admitted to Canada for
reasons of national security. There is no right of appeal from a finding of
inadmissibility, although it may be judicially reviewed with the leave of this
Court. However, the matters referred to in subsection 34(1) "do not
constitute inadmissibility in respect of a permanent resident or a foreign
national who satisfies the Minister that their presence in Canada would not be
detrimental to the national interest". See: subsection 34(2) of the Act.
The consideration of "national interest" does not involve a
reconsideration of the finding of inadmissibility. Rather, it "involves
the assessment and balancing of all factors pertaining to the applicant's entry
into Canada against the stated objectives of the Immigration and Refugee
Protection Act as well as Canada's domestic and international interests and
obligations". See: Citizenship and Immigration Canada Enforcement
Manual, Chapter 2, Section 13.6.
[16] The
decision with respect to inadmissibility is not an exercise of discretion.
Officers are instructed to obtain evidence for subsection 34(1) decisions by
collecting police or intelligence reports, statutory declarations supported by
evidence of statements made to an officer, and other documentary evidence
including media articles, scholarly journals, and expert reports.
[17] The
objective nature of the decision and the lack of any appeal procedure militate
in favor of greater content to the duty of fairness.
2. The degree of
influence the report is likely to have on the decision-maker.
[18] The
non-disclosed documents consist of a memorandum from the Canada Border Services
Agency (CBSA) dated October 6, 2005, and some open source information about the
ELF. The memorandum contained a recommendation that the information forwarded
to the officer "provides evidence to support a determination of
inadmissibility" under section 34 of the Act. The contents of the
memorandum did not have to be protected for security reasons, as demonstrated
by the fact that the memorandum was later disclosed to Mr. Mekonen in abortive
proceedings before the Immigration Appeal Division.
[19] The
content and purpose of the CBSA memorandum lead me to conclude that it was an
instrument of advocacy designed, in the words of the Federal Court of Appeal in
Bhagwandass, "to have such a degree of influence on the decision maker
that advance disclosure is required ‘to ‘level the playing field’".
3. The harm likely to
arise from a decision based upon an incorrect or ill-considered understanding
of the relevant circumstances.
[20] This
is not a case where, as in Haghighi, a negative decision may result in
the removal of an individual from Canada to a situation where they may risk
torture. Generally, a person applying from abroad for permanent resident
status in Canada will not face any significant risk of harm if their
application is rejected.
[21] In
the present case, however, Mr. Mekonen's wife and children are permanent
residents of Canada and recognized to be Convention refugees in relation to Eritrea,
their country of nationality. The risk the family faces from an ill-considered
decision with respect to Mr. Mekonen's admissibility is that the family
will, absent extraordinary ministerial relief, not be able to be reunited in Canada.
In my view, this leads to the content of the duty of fairness being more
extensive in this particular factual context.
4. The extent to which
advance disclosure of the report was likely to avoid the risk of an erroneous
decision.
[22] In
the present case, the following arises out of the documents not disclosed to
Mr. Mekonen by the officer:
1. The CBSA memorandum contained no discussion of what, as a
matter of law, constitutes terrorism.
2. Much of the open source country condition documentation spoke
of armed clashes between ELF and the Eritrea People's Liberation Front (EPLF).
Because the EPLF did not form the government at the time, this evidence would
not be relevant to the issue of whether ELF was engaged in the subversion by
force of a government. Similarly, the definition of “terrorism” applied by the
Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and
Immigration), [2002] 1 S.C.R. 3, requires an act "intended to cause
death or serious bodily injury to a civilian, or to any other person not taking
an active part in the hostilities in a situation of armed conflict, when the
purpose of such act, by its nature or context, is to intimidate a population,
or to compel a government or an international organization to do or to abstain
from doing any act". The documentary evidence before the officer would
require careful analysis in order to see whether the ELF's activities fell
within the ambit of that definition or within the ambit of subversion by force
of any government.
3. A publication from the United Nations High Commissioner for
Refugees entitled "Sudan-Eritrea: Early Warning Note", contained in
the open source information before the officer, noted that "[t]here is
still today no serious balanced historical study of the Eritrean independence
struggle, most of the literature being, at least to some degree, of a
propagandistic nature."
[23] In
my view, had the CBSA and open source information been provided to Mr. Mekonen,
he could have commented upon: (a) the analytical deficiency in that the CBSA
memorandum did not discuss the definition of “terrorism” or how the ELF was
engaged in either terrorism or subversion; and (b) the nature of the country
condition documentation, particularly the source of the information. In the
circumstances of this case, such comment may very well avoid an erroneous
decision with respect to admissibility.
5. Any costs arising
from advance disclosure, including delay.
[24] I
can see no cost or delay that would arise from advance disclosure of the
documents that were before the officer. This is because on June 15, 2006, the
visa officer wrote to Mr. Mekonen advising that the officer had reasonable
grounds to believe that Mr. Mekonen might be inadmissible under paragraph
34(1)(f) of the Act. The officer stated that, in coming to his
conclusion, he had considered the information Mr. Mekonen had provided in his
application for permanent residence, at his interview, and after his
interview. The officer did not mention the CBSA memorandum and the open-source
information that had been provided to the officer. The officer gave Mr.
Mekonen 45 days to respond to the officer's concerns.
[25] No
added cost or delay would have resulted if the officer had, at the same time,
provided the CBSA memorandum and the open source documentation to Mr. Mekonen.
6. Conclusion on the
content of the duty of fairness.
[26] Weighing
these factors, I find that the circumstances of this case required the officer
to provide Mr. Mekonen with the CBSA memorandum and the open source documents
and to allow Mr. Mekonen to make submissions that were responsive to that
material. Such actions were necessary in order for Mr. Mekonen to have a
meaningful opportunity to present relevant evidence and submissions and to have
his evidence and submissions fully and fairly considered by the officer.
[27] In
reaching this conclusion, I have considered the Minister's arguments that
general country condition documentation did not have to be provided and that
Mr. Mekonen did not dispute the accuracy of any fact found in that
documentation. However, as the Federal Court of Appeal noted in Bhagwandass
at paragraph 22, relying upon its earlier decision in Haghighi,
"the question is not whether the report is or contains extrinsic evidence
of facts unknown to the person affected by the decision, but whether the
disclosure of the report is required to provide the person with a reasonable
opportunity to participate in a meaningful manner in the decision-making
process". In the present case, for the above reasons, meaningful
participation included the right to highlight weaknesses in the material before
the officer.
An organization that engages,
has engaged, or will engage in terrorism.
[28] In
Ali v. Canada (Minister of Citizenship and Immigration), [2005] 1 F.C.R.
485, the Court held at paragraph 58 that, to arrive at a finding of
inadmissibility under paragraph 34(1)(f) of the Act, an officer would
have to have regard to the definition of "terrorism" provided in Suresh
as well as to the definitions of "terrorist activity" and
"terrorist group" contained in subsection 83.01(1) of the Criminal
Code, R.S.C. 1985, c. C-46. The failure of the officer to explain how
the term “terrorist” was defined and applied was found to be a reviewable
error. Similar conclusions were reached in Jalil v. Canada (Minister of
Citizenship and Immigration), [2006] 4 F.C.R. 471, and Naeem v. Canada
(Minister of Citizenship and Immigration), 2007 FC 123.
[29] In
the present case, the officer's reasons, found in the Computer Assisted
Immigration Processing System notes, contain no definition of “terrorism”. The
officer simply wrote that there were reasonable grounds to believe that Mr.
Mekonen was "knowledgeable about [the ELF's] terror-related
activities". There is no indication of how the officer understood and
applied the definition of “terrorism”. This constitutes a reviewable error.
Conclusion and Certification
[30] Because
of the officer's breach of the duty of the procedural fairness, the application
for judicial review is allowed.
[31] While
Mr. Mekonen posed a number of questions for certification, including one with
respect to the duty of fairness, the Minister opposed certification of any
question. No question will be certified.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed, and the
decision of the visa officer made on July 6, 2006, is hereby set aside.
2. The matter is remitted for redetermination by a different visa
officer in accordance with these reasons.
“Eleanor R. Dawson”
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