Date: 20080530
Docket: IMM-2019-07
Citation: 2008 FC 694
Vancouver, British
Columbia, May 30, 2008
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
SHEWAINESCH TSEGAI UGBAZGHI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
[1] Shewainesch Tsegai Ugbazghi is a citizen of Ethiopia
who has been found to be a Convention refugee in Canada. She brings this
application for judicial review of the decision of an officer that later
refused her application for permanent residence. The application was refused
because Ms. Ugbazghi was found to be inadmissible on security grounds under
paragraph 34(1)(f) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (Act). Specifically, Ms. Ugbazghi was found to be a
member of the Eritrean Liberation Front (ELF), an organization that, there are
reasonable grounds to believe, has engaged in terrorism. Section 34 of the
Act, as well as sections 25 and 33, and subsection 83(1) are set out in
Appendix A to these reasons.
[2] These
reasons deal with the Minister's application under section 87 of the Act for
the non-disclosure of certain information contained in the certified tribunal
record and also with the merits of Ms. Ugbazghi’s application. In these
reasons, I discuss the section 87 process and conclude that the application for
judicial review should be dismissed because the officer’s decision was not
unreasonable.
The Section 87 Application
[3] On
February 22, 2008, an amendment to section 87 of the Act came into force. As
amended, section 87 now provides that:
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87. The
Minister may, during a judicial review, apply for the non-disclosure of
information or other evidence. Section 83 — other than the obligations to
appoint a special advocate and to provide a summary — applies to the
proceeding with any necessary modifications.
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87.
Le ministre peut, dans le cadre d’un contrôle judiciaire, demander
l’interdiction de la divulgation de renseignements et autres éléments de
preuve. L’article 83
s’applique à l’instance, avec les adaptations nécessaires, sauf quant à
l’obligation de nommer un avocat spécial et de fournir un résumé.
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[4] The
relevant transitional provision, section 10 of Bill C-3,1 provides
that the amendment to section 87 applies to a proceeding, such as this one,
that was pending before February 22, 2008, and was one in which an application
had been made under then section 87 of the Act.
[5] By
this amendment, the government cured the earlier legislative oversight that had
made no provision for protecting information considered in an application for
permanent residence made from within Canada. This gap had been filled by the
Court applying the procedure then existing under section 78 of the Act. See: Mohammed
v. Canada (Minister of Citizenship and Immigration), [2007] 4 F.C.R. 300
(F.C.), and Naeem v. Canada (Minister of Citizenship and
Immigration), [2007] 4 F.C.R. 658 (F.C.) at paragraphs 13 to 18.
[6] The
process followed under section 87 of the Act was described in general terms by
the Court in Gariev v. Canada (Minister of Citizenship and
Immigration), [2004] F.C.J. No. 657 (QL). In these reasons, I wish to deal
more fully with the nature of the information filed in a section 87
application.
[7] On
the public record, the Minister files a notice of motion seeking relief under
section 87 of the Act. This is usually supported by an affidavit and by
written submissions, all filed on the public record. The public affidavit filed
in this case is attached as Appendix B to these reasons.
[8] Typically,
the public affidavit states that the certified tribunal record contains both
redacted (the confidential information) and unredacted information. The
confidential information is said to be information which, if disclosed, would
injure national security or the safety of any person. The deponent of the
public affidavit, again typically, has no knowledge about the content of the
confidential information.
[9] A
second, secret affidavit is filed in confidence. That affidavit is sworn by
someone who is said to have personal knowledge of the matters at issue. The
secret affidavit is typically divided into three parts. The first part refers
to the general principles that govern the non-disclosure of information under
what are now paragraph 83(1)(d) and section 87 of the Act. Publicly
available jurisprudence may be referred to or cited. The second part of the
secret affidavit consists of all of the pages of the certified tribunal record
that have been redacted, but in an unredacted form. The final part of the
secret affidavit consists of the deponent's evidence as to why, in the opinion
of the deponent, each redaction is necessary in order to protect national
security or the safety of any person.
[10] The
public and secret affidavits are prepared by different counsel within the
Department of Justice. The public affidavit is prepared by a lawyer with
carriage of the immigration proceeding. The secret affidavit is prepared by
counsel with the requisite security clearance.
[11] The
bifurcation of the section 87 application between counsel creates
difficulties. In my experience, one difficulty caused by this is that there is
often delay in bringing section 87 applications. Chief Justice Lutfy has
previously commented on this. In Beraki v. Canada (Minister
of Citizenship and Immigration), [2007] F.C.J. 1770 (QL), he wrote at
paragraphs 7 through 9:
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. [emphasis added]
[12] I
adopt those comments. In this proceeding, leave was granted by an order dated
November 22, 2007, which set the matter for hearing on February 14, 2008. The
section 87 application was filed on January 31, 2008. This necessitated
adjournment of the hearing from February 14, 2008, to May 6, 2008. An in
camera and ex parte hearing date was set in respect of the section
87 application for March 11, 2008. Ms. Ugbazghi declined a public hearing in
respect of the section 87 application.
[13] A
second difficultly created by the bifurcation of the matter between counsel is
that, in my experience, counsel involved in the preparation of the secret
affidavit do not have a copy of the public certified tribunal record. This has
resulted in claims being made to protect information that has previously been
disclosed. See, for example, Gariev, cited above, at paragraph 10, and the
Court’s direction of December 19, 2006, in IMM-1004-06.
[14] The
process would be improved if the deponent and the counsel who are seeking to
protect information had available to them the information that already appears
on the public record.
[15] Turning
to the in camera, ex parte hearing held on March 11, 2008, the deponent
of the secret affidavit gave viva voce evidence at that hearing with
respect to the 7 pages of the 257 page certified tribunal record that contained
redactions. I raised with the deponent two general issues.
[16] The
first issue was whether the redactions sought in this case were consistent with
redactions sought in other cases. A secret affidavit filed in another,
unrelated section 87 application was placed before the deponent. It appeared
that information had been made public in that case which the Minister sought to
redact in this case.
[17] The
second issue was the extent to which redactions were sought concerning information
that had previously been disclosed on the public record.
[18] A
third issue, raised with counsel, was that the secret affidavit contained
information that, in my view, could have appeared on the public record. Of
particular concern were general statements of principle and quotations from
publicly available jurisprudence that appeared in the first part of the secret affidavit.
Specific reference was made by the Court to Chief Justice Lutfy’s comments at
paragraph 10 in Beraki. There, he wrote:
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. [emphasis
added]
[19] The
in camera, ex parte hearing was adjourned pending receipt of further
information from the Minister. Further information and submissions were
provided by letter dated March 31, 2008. In response, I directed further
inquiries to counsel for the Minister. The response was provided by letter
dated April 15, 2008. Thereafter, for reasons to be delivered in writing
together with the reasons relating to the application for judicial review, an
order issued on April 21, 2008, allowing the section 87 at application in
part.
[20] Specifically,
four of the seven pages were disclosed in their entirety. The remaining three
pages contained redactions, but some additional information was disclosed on
each page. Where information remained redacted, I was satisfied that its
disclosure would be injurious to national security or endanger the safety of
any person.
[21] In
future, the section 87 process would be improved if the deponent was assisted
by someone exercising quality control to ensure that information is not
disclosed in one case but protected in another.
[22] The
April 21, 2008, order also required counsel for the Minister to disclose to
counsel for the applicant, verbatim, the legal submissions made in counsel's
letter of March 31, 2008. Those submissions were directed to the propriety of
placing in a secret affidavit information that could be publicly disclosed
without endangering national security or the safety of any person. The order
requested that oral submissions on this issue be made at the hearing of the
application for judicial review.
[23] Turning
to the legal submissions, counsel for the Minister's position may be summarized
as follows:
·
a public version of the secret affidavit would not be filed;
·
there are legitimate exceptions to the open court principle;
·
a legitimate, statutory exception is found in section 87 of the
Act, which specifically provides that no summary of the secret information is
to be provided;
·
providing a redacted version of the secret affidavit would be
akin to providing a summary; and
·
the secret affidavit should remain secret in its entirety.
[24] With
respect, neither the Chief Justice in Beraki nor I in this proceeding
suggested that section 87, properly applied, was not a legitimate
statutory exception to the open court principle. Nor did we suggest that a
summary of genuinely secret information should be provided.
[25] Our
comments were directed to the facts that:
·
as a general principle, disclosure of information is presumptive
in our courts;
·
section 87 displaces that general presumption and introduces an
exception; and
·
that exception is a direction by Parliament to the Court to
ensure the confidentiality of information or evidence where, in the opinion of
the judge, its disclosure would be injurious to national security or endanger
the safety of any person.
[26] It
follows that there is no basis in law for placing general legal argument based
on public jurisprudence in a secret affidavit.
[27] The
practice, in my respectful view, is improper for two reasons. First, that type
of information can be disclosed without endangering national security or
anyone's safety. It is, therefore, not protected by subsection 83(1) of the
Act. Second, as a general principle, affidavits are to deal in matters of fact
— not law. Domestic law is not a subject about which a Canadian court will
receive opinion evidence. See: R. v. Graat, [1982] 2 S.C.R. 819. See
also: Paciocco & Stuesser, The Law of Evidence, 4th ed.
(Toronto: Irwin Law, 2005) at 176.
[28] In
an attempt to provide assistance, I suggest that, in a section 87 application,
a secret affidavit should attach, in unredacted form, each page of the certified
tribunal record that contains redactions. It may also contain expert opinion
evidence as to why the redactions are necessary. General legal argument should
be contained in the written representations filed on the public record. As a
general principle, legal argument made in the in camera, ex parte
hearing should be so related to the specific content of the redactions that the
argument could not be made in public without risking disclosure of the confidential
information.
[29] I
now turn to the merits of the application for judicial review.
The Application for Judicial
Review
[30] Ms.
Ugbazghi is a citizen of Ethiopia of Eritrean ethnicity. In 1977, she joined
what she now characterizes to be a support group of the ELF. As a member of
this group, she distributed written materials, participated in meetings, paid
small amounts of money, and encouraged others to join the group and the ELF.
Ms. Ugbazghi did not pay a membership fee, and she did not hold a membership
card. The group is said to have disbanded in 1981, and Ms. Ugbazghi says that
she had no further involvement with the ELF.
[31] In
2002, Ms. Ugbazghi arrived in Canada where she has since remained. She applied
for permanent residence in January of 2004. Subsequent, Ms. Ugbazghi was
advised of the concerns arising from her association with the ELF, and she was
provided with an opportunity to address those concerns. In addition to
providing a lengthy response, Ms. Ugbazghi sought ministerial relief under
subsection 34(2) of the Act and humanitarian and compassionate relief under
section 25 of the Act.
(i) The officer's
decision
[32] The
officer's notes include the following findings:
·
Ms. Ugbazghi is an admitted member of the ELF;
·
her activities, described as attending meetings, making
donations, and distributing ELF materials which encouraged others to join the
armed struggle or to give donations, amounted to membership in the ELF because
they furthered the goals of the ELF;
·
Ms. Ugbazghi voluntarily joined the ELF;
·
the ELF engaged in acts of terrorism, documented to have occurred
from March of 1969 until August of 1991, which was before, during, and
after Ms. Ugbazghi's period of membership;
·
the acts that the ELF engaged in included: kidnapping two
missionary nurses (one of which was killed); kidnapping three British citizens
who were not released until after the intervention of the president of Sudan, some
five months later; the hijacking of an airliner during which several passengers
were injured; and, the kidnapping of foreigners from a yacht in Eritrean
waters;
·
those acts constituted acts of terrorism because they were
intended to kill or inflict serious bodily injury to civilians, who were not
taking part in any armed conflict, so as to intimidate the population and
compel the Ethiopian government to listen to its demands;
·
the fact that Ms. Ugbazghi was not found to be ineligible to
claim refugee protection did not preclude a finding of inadmissibility; and
·
Ms. Ugbazghi's request for humanitarian and compassionate relief
under subsection 25(1) of the Act was not properly before the officer and could
not be considered.
[33] After
finding that Ms. Ugbazghi was a member of the ELF, the officer concluded that
there were reasonable grounds to believe that the ELF had engaged in acts of
terrorism. Thus, the officer found that Ms. Ugbazghi was a member of the
inadmissible class of persons described in paragraph 34(1)(f) of the
Act.
(ii) The issues
[34] In
oral argument, counsel for Ms. Ugbazghi pursued only two arguments. First,
that the officer erred in law by finding that she had no jurisdiction to
consider humanitarian relief under subsection 25(1) of the Act. Second,
that the officer erred by finding that Ms. Ugbazghi was a member of the ELF.
[35] During
oral argument on the first point, there was discussion about a number of
issues, including that the consequence of the position taken by Ms. Ugbazghi would
be that an officer would be able to grant relief that Parliament intended only
be granted by the Minister. It was ultimately agreed by Ms. Ugbazghi's counsel
that, if it is the Minister who must consider humanitarian relief in these
circumstances, any discussion about subsection 25(1) of the Act was premature
while the request for ministerial relief was outstanding. Thus, the first
issue was not ultimately pursued and I make no comment about the merit of the
argument.
(iii) The standard of
review
[36] The
assessment of "membership" in paragraph 34(1)(f) of the Act
has traditionally been reviewed on the reasonableness simpliciter standard.
See: Poshteh v. Canada (Minister of Citizenship and
Immigration), [2005] 3 F.C. 487 (F.C.A.) at paragraph 23. This standard of
review reflected the factual element present in questions of membership and the
expertise that officers possess when assessing applications against the inadmissibility
criteria contained in subsection 34(1) of the Act. In my view, following the
decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick,
2008 SCC 9, deference remains appropriate and the applicable standard of review
is reasonableness. See: Dunsmuir at paragraphs 51 and 53.
(iv) Was the officer's
finding that Ms. Ugbazghi was a member of the ELF reasonable?
[37] The
word “member” is not defined in the Act. The jurisprudence of the Federal
Court of Appeal is to the effect that the word is to be given an unrestricted
and broad interpretation. Mr. Justice Rothstein, writing for the Federal
Court of Appeal, discussed this point in Poshteh. At paragraphs 27 to
29, he wrote:
27 There
is no definition of the term "member" in the Act. The courts have not
established a precise and exhaustive definition of the term. In interpreting
the term "member" in the former Immigration Act,
R.S.C., 1985, c. I-2, the Trial Division (as it then was) has said that the
term is to be given an unrestricted and broad interpretation. The rationale for
such an approach is set out in Canada (Minister of Citizenship and Immigration) v. Singh (1998), 151 F.T.R. 101 (F.C.T.D.), at paragraph
52:
The provisions deal with subversion and
terrorism. The context in immigration legislation is public safety and national
security, the most serious concerns of government. It is trite to say that
terrorist organizations do not issue membership cards. There is no formal test
for membership and members are not therefore easily identifiable. The Minister
of Citizenship and Immigration may, if not detrimental to the national
interest, exclude an individual from the operation of subparagraph 19(1)(f)(iii)(B). I think it is obvious that Parliament intended
the term "member" to be given an unrestricted and broad
interpretation.
28 The
same considerations apply to paragraph 34(1)(f) of
the Immigration and Refugee Protection Act. As was
the case in the Immigration Act, under subsection
[page500] 34(2) of the Immigration and Refugee Protection
Act, membership in a terrorist organization does not constitute
inadmissibility if the individual in question satisfies the Minister that their
presence in Canada would not be detrimental to the national interest.
Subsection 34(2) provides:
34... .
(2) The matters referred to in subsection (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.
Thus,
under subsection 34(2), the Minister has the discretion to exclude the
individual from the operation of paragraph 34(1)(f).
29 Based
on the rationale in Singh and, in particular, on the
availability of an exemption from the operation of paragraph 34(1)(f) in appropriate cases, I am satisfied that the term
"member" under the Act should continue to be interpreted broadly.
[38] In
the present case, Ms. Ugbazghi stated in her personal information form that she
had been a member of the ELF. The officer is said to have erred by ignoring
evidence in the statutory declaration that Ms. Ugbazghi placed before the
officer where she clarified that she was not a member of the ELF. Rather, Ms.
Ugbazghi stated that she had been a member of an ELF support group. Thus, the
officer is said to have erred by describing Ms. Ugbazghi to be a "self[-]admitted
member of ELF." The officer made no express finding of credibility against
Ms. Ugbazghi so, it is argued, the officer was obliged to deal with the
fact that Ms. Ugbazghi claimed to have been a member of an ELF support group,
not a member of the ELF.
[39] In
my view, the officer committed no reviewable error because the officer did not just
rely on Ms. Ugbazghi's prior admission of membership. The officer also
considered that:
Her activities (meetings,
donations, distribution of ELF materials which encouraged others to join the
armed struggle and or to give donations [)], amount to membership in my opinion
as they furthered the goals of the organization.
[40] Obviously,
it would have been preferable for the officer to have expressly dealt with the
repeated statements in Ms. Ugbazghi’s statutory declaration that she had been a
member of an ELF support group. Such failure might have amounted to a
reviewable error had the officer simply relied on Ms. Ugbazghi’s admission
without also considering the evidence that independently led to a conclusion of
membership.
[41] As
to the reasonableness of the officer's decision about membership, I note that
the admission of membership contained in Ms. Ugbazghi's personal information
form was not an isolated admission. As counsel for the Minister argued, Ms.
Ugbazghi has consistently taken the position that she was a member of the ELF.
Specifically:
·
on September 16, 2002, she signed a refugee intake form in which
she stated that she was a member of the ELF who had been detained twice and who
would provide a letter proving her membership;
·
on September 18, 2002, she told an immigration officer at an
interview that proof existed in Ethiopia that she was a member of the ELF from
1977 to July, 2002, and that she had contributed $5.00 per month to the ELF;
and,
·
on January 26, 2004, she stated in her application for permanent
residence that she was a member of the ELF.
[42] It
was only in the statutory declaration, prepared by counsel, that Ms. Ugbazghi
stated that she was a member of an ELF support group. She provided no evidence
confirming the existence of such a separate, support group.
[43] Ms.
Ugbazghi described the group's activities as follows:
14. With
respect to the political content of our meetings, we talked about the need to
bring justice and equality to Eritreans. We talked about our preference for a
peaceful resolution to the problems of Eritreans, although we also talked about
the need to support the freedom fighters. We talked about the aims and goals
of the ELF which were, as I understood them, to bring justice, freedom and
democracy to Eritreans. There was never any talk or reporting about taking
people hostage or the hijacking of airlines.
15. We
also talked about what we could do to help the cause. These things included
encouraging friends to support the ELF, and distributing pamphlets and
magazines.
[44] It
is fair, in my view, to characterize this group as one that completely
identified with the goals and activities of the ELF, and one that worked to
further the goals and activities of the ELF. There is no evidence that the
group had any other goals or activities. The evidence does not support a
finding that this group was entirely separate and distinct from the ELF as
Ms. Ugbazghi now claims.
[45] Further,
Ms. Ugbazghi admitted that she: attended meetings where the participants shared
the aims and goals of the ELF and talked about the need to support the
"freedom fighters" and how to "help the cause" of the ELF; paid
a small amount of money each month to the ELF; and, distributed pamphlets that
encouraged others to join the armed struggle or to donate to it. The term
"member" is to be given an unrestricted and broad interpretation. In
my view, it was not unreasonable for the officer to conclude that Ms.
Ugbazghi's activities furthered the goals of the ELF and that her conduct amounted
to membership in the ELF. As the Federal Court of Appeal noted in Poshteh,
at paragraph 36, in any case it is always possible to say that a number of
factors support a membership finding and a number of factors point away from
membership. The weighing of these factors is within the expertise of the
officer.
[46] Notwithstanding
that I find the officer’s decision is not unreasonable, Ms. Ugbazghi has completed
only eight years of formal education. In 1966, at age 14, she entered into an
arranged marriage. She had seven children during the period 1967 to 1976. In
1977, as a 24-year-old mother of seven, she began attending group meetings.
Her involvement ended in 1981.
[47] Without
doubt, subsection 34(1) of the Act is intended to cast a wide net in order to
capture a broad range of conduct that is inimical to Canada's interests.
Parliament's intent is further reflected in section 33 of the Act, which
requires that the facts that constitute inadmissibility include facts that
"there are reasonable grounds to believe" occurred. Thus, the test
for inadmissibility is whether “there are reasonable grounds to believe” that a
foreign national was a member of an organization that “there are reasonable
grounds to believe” engages, has engaged, or will engage in acts of terrorism.
This is a relatively low evidentiary threshold. It is because of the very
broad range of conduct that gives rise to inadmissibility that the Minister is
given discretion, in subsection 34(2) of the Act, to grant relief against inadmissibility.
[48] The
facts of this case, in my respectful view, show the wisdom of such a relieving
provision and show the need for careful consideration of all of the facts
surrounding a request for ministerial relief.
Conclusion
[49] For
these reasons, the application for judicial review will be dismissed.
[50] The
Minister requested the opportunity to propose a question for certification
arising out of the Court’s reasons on both the section 87 application and the
Court's discussion of the concept of membership. While the Minister was
successful, fairness dictates that Ms. Ugbazghi be afforded the opportunity to
propose a certified question. She shall serve and file any correspondence with
respect to certification within three working days of receipt of these
reasons. The Minister shall have three working days in which to respond.
[51] Following
consideration of any submissions, a judgment will issue dismissing the
application.
“Eleanor
R. Dawson”
1. Bill C-3, An Act to amend the Immigration and Refugee
Protection Act (certificate and special advocate) and to make a consequential
amendment to another Act, 2nd Sess., 39th Parl., 2008, cl. 7 (assented
to 14 February 2008).
APPENDIX A
Sections 25, 33, 34 and subsection 83(1) of the Immigration
and Refugee Protection Act are as follows:
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25(1) The
Minister shall, upon request of a foreign national who is inadmissible or who
does not meet the requirements of this Act, and may, on the Minister’s own
initiative, examine the circumstances concerning the foreign national and may
grant the foreign national permanent resident status or an exemption from any
applicable criteria or obligation of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
(2) The
Minister may not grant permanent resident status to a foreign national
referred to in subsection 9(1) if the foreign national does not meet the
province’s selection criteria applicable to that foreign national.
[…]
33 The facts
that constitute inadmissibility under sections 34 to 37 include facts arising
from omissions and, unless otherwise provided, include facts for which there
are reasonable grounds to believe that they have occured, are occurring or
may occur.
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).
(2) The
matters referred to in subsection (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.
[…]
83(1) The
following provisions apply to proceedings under any of sections 78 and 82 to
82.2:
(a) the judge
shall proceed as informally and expeditiously as the circumstances and
considerations of fairness and natural justice permit;
(b) the judge
shall appoint a person from the list referred to in subsection 85(1) to act
as a special advocate in the proceeding after hearing representations from
the permanent resident or foreign national and the Minister and after giving
particular consideration and weight to the preferences of the permanent
resident or foreign national;
(c) at any
time during a proceeding, the judge may, on the judge’s own motion — and
shall, on each request of the Minister — hear information or other evidence
in the absence of the public and of the permanent resident or foreign
national and their counsel if, in the judge’s opinion, its disclosure could
be injurious to national security or endanger the safety of any person;
(d) the judge
shall ensure the confidentiality of information and other evidence provided
by the Minister if, in the judge’s opinion, its disclosure would be injurious
to national security or endanger the safety of any person;
(e) throughout
the proceeding, the judge shall ensure that the permanent resident or foreign
national is provided with a summary of information and other evidence that
enables them to be reasonably informed of the case made by the Minister in
the proceeding but that does not include anything that, in the judge’s
opinion, would be injurious to national security or endanger the safety of
any person if disclosed;
(f) the judge
shall ensure the confidentiality of all information or other evidence that is
withdrawn by the Minister;
(g) the judge
shall provide the permanent resident or foreign national and the Minister
with an opportunity to be heard;
(h) the judge
may receive into evidence anything that, in the judge’s opinion, is reliable
and appropriate, even if it is inadmissible in a court of law, and may base a
decision on that evidence;
(i) the judge
may base a decision on information or other evidence even if a summary of
that information or other evidence is not provided to the permanent resident
or foreign national; and
(j) the judge
shall not base a decision on information or other evidence provided by the
Minister, and shall return it to the Minister, if the judge determines that
it is not relevant or if the Minister withdraws it.
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25(1)
Le ministre doit, sur demande d’un étranger interdit de territoire ou qui ne
se conforme pas à la présente loi, et peut, de sa propre initiative, étudier
le cas de cet étranger et peut lui octroyer le statut de résident permanent
ou lever tout ou partie des critères et obligations applicables, s’il estime
que des circonstances d’ordre humanitaire relatives à l’étranger — compte
tenu de l’intérêt supérieur de l’enfant directement touché — ou l’intérêt
public le justifient.
(2)
Le statut ne peut toutefois être octroyé à l’étranger visé au paragraphe 9(1)
qui ne répond pas aux critères de sélection de la province en cause qui lui
sont applicables.
[…]
33
Les faits — actes ou omissions — mentionnés aux articles 34 à 37 sont, sauf
disposition contraire, appréciés sur la base de motifs raisonnables de croire
qu’ils sont survenus, surviennent ou peuvent survenir.
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).
(2) Ces faits
n’emportent pas interdiction de territoire pour le résident permanent ou
l’étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l’intérêt national.
[…]
83(1)
Les règles ci-après s’appliquent aux instances visées aux articles 78 et 82 à
82.2 :
a) le juge
procède, dans la mesure où les circonstances et les considérations d’équité
et de justice naturelle le permettent, sans formalisme et selon la procédure
expéditive;
b) il nomme,
parmi les personnes figurant sur la liste dressée au titre du paragraphe 85(1),
celle qui agira à titre d’avocat spécial dans le cadre de l’instance, après
avoir entendu l’intéressé et le ministre et accordé une attention et une
importance particulières aux préférences de l’intéressé;
c)
il peut d’office tenir une audience à huis clos et en l’absence de
l’intéressé et de son conseil — et doit le faire à chaque demande du ministre
— si la divulgation des renseignements ou autres éléments de preuve en cause
pourrait porter atteinte, selon lui, à la sécurité nationale ou à la sécurité
d’autrui;
d)
il lui incombe de garantir la confidentialité des renseignements et autres
éléments de preuve que lui fournit le ministre et dont la divulgation
porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité
d’autrui;
e) il veille
tout au long de l’instance à ce que soit fourni à l’intéressé un résumé de la
preuve qui ne comporte aucun élément dont la divulgation porterait atteinte,
selon lui, à la sécurité nationale ou à la sécurité d’autrui et qui permet à
l’intéressé d’être suffisamment informé de la thèse du ministre à l’égard de
l’instance en cause;
f)
il lui incombe de garantir la confidentialité des renseignements et autres
éléments de preuve que le ministre retire de l’instance;
g) il donne à
l’intéressé et au ministre la possibilité d’être entendus;
h)
il peut recevoir et admettre en preuve tout élément — même inadmissible en
justice — qu’il estime digne de foi et utile et peut fonder sa décision sur
celui-ci;
i)
il peut fonder sa décision sur des renseignements et autres éléments de
preuve même si un résumé de ces derniers n’est pas fourni à l’intéressé;
j)
il ne peut fonder sa décision sur les renseignements et autres éléments de
preuve que lui fournit le ministre et les remet à celui-ci s’il décide qu’ils
ne sont pas pertinents ou si le ministre les retire.
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APPENDIX B
IMM-2019-07
Federal
Court
BETWEEN:
Shewaineschi
Tsegai Ugbazghi
Applicant
and
The
Minister of Citizenship and Immigration
Respondent
AFFIDAVIT
OF Tom Heinze
I, Tom Heinze, Paralegal, of the Immigration Law Section of the Department
of Justice’s Ontario Regional Office in the City of Toronto, SWEAR THAT:
1. I am a Paralegal working
for the Department of Justice in Toronto, and am assisting Counsel for the Respondent,
Martin Anderson. I have personal knowledge of the facts related below.
2. On January 31st
2008, I spoke to Andre Seguin, counsel for the Respondent on this Application.
I am informed and believe that the Respondent has filed an Application for
non-disclosure of certain information contained in the certified Tribunal
Record filed in this case.
3. I am
informed by Andre Seguin and do verily believe that the tribunal record, which
reflects the processing of this file, contains both unredacted as well as
redacted document information (the “confidential information”), the disclosure
of which would be injurious to national security or to the safety of any person
in Canada in accordance with subparagraph 78(g) of the IRPA.
4.
I am informed by Andre Seguin and do verily believe that the
confidential information, which was redacted from the public tribunal record,
is information which must be protected and which should not be disclosed to the
Applicant, his counsel or the public.
5.
I am further informed by Andre Seguin and do verily believe that
this application will be supported by a secret affidavit, which will contain
the confidential information. It will be sealed and filed with the Federal
Court in Ottawa. The secret affidavit explains the basis for
the non-disclosure of the information.
6.
I am informed by Andre Seguin and I believe that this confidential
information cannot be disclosed.
7.
I
make this affidavit in regard to an Application for non-disclosure brought by
the Respondent, and for no improper purpose.
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SWORN before
me at the City
of Toronto in the Province of Ontario on January 31, 2008.
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Commissioner for Taking Affidavits
(or as the case may be)
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Tom Heinze
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