Date:
20130506
Docket:
IMM-2321-12
Citation:
2013 FC 473
Ottawa, Ontario,
May 6, 2013
PRESENT: The
Honourable Mr. Justice Mosley
BETWEEN:
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ALLA OKOMANIUK
VOLODYMYR OKOMANIUK
DANA OKOMANIUK
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
Alla
and Volodymyr Okomaniuk and their daughter Dana, citizens of Ukraine, applied for permanent residence in Canada in December 2006. Their application was refused
by letter dated February 9, 2011 on the ground that Volodymyr was inadmissible
as a former member of the Ukrainian Security Service. This is their application
for judicial review of that decision under s 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
For
the reasons that follow, the application is granted.
BACKGROUND:
[3]
Mr.
Okomaniuk worked for the Ukrainian Security Service (SBU) from 1995 to 1998 in
a counter-terrorism role, in particular to risks from religious extremists. During
this time he was given six months of compulsory training at the Academy of the
Security Service of Ukraine but not the 5-year training customary for career
SBU officers. He then worked for the Department of the State Guard as an
“officer of defence” from 1998 to 2000.
[4]
His
wife Alla Okomaniuk trained as a teacher and then entered government service in
1997. From 2000 to 2004 she was posted as First Secretary at the Ukrainian
Embassy in Ottawa. She left the government in 2004 and since 2007 the couple
have managed a restaurant in
the town of Khmelnytskyi, Ukraine.
[5]
Mr.
Okomaniuk says that during his wife’s posting to the Ottawa Embassy, he was
employed by the State Border Service as a security guard at the Embassy. He was
subordinate to a senior guard and, through that guard, to a security officer who
was an SBU member. Mr. Okomaniuk says that he reported up to the SBU officer
only concerning protection of the Embassy’s physical premises, damage to
property or vehicles, and emergencies.
[6]
Ms.
Okomaniuk received sufficient points to qualify for permanent residence in the
skilled worker class.
[7]
The
Computer Assisted Immigration Processing System (CAIPS) notes in the court
record indicate that in August 2009; a “simplified processing docs request” was
sent to the applicants, who provided documentation on their education, work,
and travel histories, as well as photographs. In October 2009 it was assessed
that Ms. Okomaniuk qualified on the points chart even though her work in Canada at the embassy did not count towards adaptability points.
[8]
However,
it was deemed necessary to clarify whether Mr. Okomaniuk had worked for the
security service, or the state protection service of the Ministry of the
Interior. The applicants sent more documentation, which was received in October
2009. In April 2010, an interview was scheduled for May 19, 2010 and duly took
place.
[9]
In
June, August, October, and December 2010, the applicants inquired about the
status of their case and were advised that it was still under consideration. The
Canada Border Security Agency (CBSA) provided a recommendation to the
Immigration Officer in December 2011. This was reviewed and an interview was
scheduled “for procedural fairness purpose”.
[10]
The
notes record that the interview was conducted in Ukrainian on February 7, 2011 with
an interpreter present. Mr. Okomaniuk was asked to confirm that he was a member
of the Ukrainian Security Service (SBU) from 1995 to 1998. He confirmed it. He
explained the chain of command for his security guard work in Canada.
[11]
Sections
34(1)(a) and (f) of IRPA were then explained to the applicants. It
was indicated that although Mr. Okomaniuk did not fall under s 34(1)(a),
there were reasonable grounds to believe that he did fall under 34(1)(f).
DECISION UNDER
REVIEW:
[12]
The
CAIPS notes for February 7, 2011 indicate that all the information available,
including the recommendation provided by CBSA dated 22 December 2011, had been
reviewed. It is noted that: “Based on the information provided by the CBSA I
have reasonable grounds to believe that the SBU is an organization that has
engaged in activities described at 34(1)(a) of IRPA during the period of
Mr. Okomaniuk’s membership in the organization.” Since he had admitted his
membership, “I therefore have reasonable grounds to believe that Mr. [sic]
is inadmissible”.
[13]
The
refusal letter dated February 9, 2011 cites “reasonable grounds to believe”
that Mr. Okomaniuk is inadmissible under section 34(1)(f) but does not
mention the CBSA report.
ISSUES:
[14]
The
issues which arise in this matter are as follows:
a. Were the visa officer’s reasons
deficient with respect to the finding that the applicants were inadmissible to
Canada pursuant to section 34(1)(f) because they did not evidence an
assessment of the SBU activities in question?
b. Did the visa officer breach
principles of procedural fairness by not disclosing the CBSA report on which
the conclusion about the SBU was based?
[15]
Prior
to the hearing of this matter, the respondent brought an application for the
protection of certain information in the certified tribunal record under s 87
of the IRPA. A closed hearing was held to determine whether the redacted
information should be disclosed.
[16]
Having
read the information that the Minister sought to protect from disclosure and
upon receiving evidence and submissions from the respondent in the closed
session, I was satisfied that the redacted information was not relevant to any
of the issues before the Court. An Order issued granting the Minister’s
application for nondisclosure subject to any representations received from the
applicants at the open hearing.
[17]
At
the open hearing, counsel for the applicants advised that he had nothing to
submit with respect to the redacted material and did not think that it would
affect the outcome. I agreed with that submission.
APPLICABLE
LEGISLATION:
[18]
The
relevant provisions of the Act are as follows:
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34. (1) A
permanent resident or a foreign national is inadmissible on security grounds
for
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34. (1) Emportent
interdiction de territoire pour raison de sécurité les faits suivants :
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(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;
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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;
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(b) engaging in or instigating the subversion by force
of any government;
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b) être l’instigateur ou l’auteur d’actes visant au renversement
d’un gouvernement par la force;
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c) engaging in terrorism;
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c) se livrer au terrorisme;
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(d) being
a danger to the security of Canada;
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d) constituer un danger pour la
sécurité du Canada;
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(e) engaging
in acts of violence that would or might endanger the lives or safety of
persons in Canada; or
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e) être l’auteur de tout acte de violence susceptible de mettre
en danger la vie ou la sécurité d’autrui au Canada;
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(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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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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(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.
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(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.
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42. A
foreign national, other than a protected person, is inadmissible on grounds
of an inadmissible family member if
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42. Emportent,
sauf pour le résident permanent ou une personne protégée, interdiction de
territoire pour inadmissibilité familiale les faits suivants :
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(a) their
accompanying family member or, in prescribed circumstances, their non-accompanying
family member is inadmissible; or
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a) l’interdiction de territoire frappant tout membre de sa
famille qui l’accompagne ou qui, dans les cas réglementaires, ne l’accompagne
pas;
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(b) they are an
accompanying family member of an inadmissible person.
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b) accompagner,
pour un membre de sa famille, un interdit de territoire.
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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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ANALYSIS:
Standard of Review
[19]
The
admissibility decision under 34(1) was within the discretion of the officer and
would normally be reviewable on a standard of reasonableness: Ugbazghi
v Canada (Minister of Citizenship and Immigration), 2008 FC 694
at para 36.
However, the applicants allege that the officer fettered his or her discretion
and did not assess the CBSA memorandum. They contend that the officer merely
applied the CBSA memorandum without question and therefore did not exercise his
or her discretion.
[20]
The
standard of review with respect to the fettering of discretion is correctness,
as stated by the Federal Court of Appeal in Thamotharem v Canada (Minister
of Citizenship and Immigration) 2007 FCA 198
at paragraph 33.
[21]
The second issue relating to the non-disclosure of the CBSA report
concerns procedural fairness and is also subject to review without deference.
Were
the visa officer’s reasons deficient because they did not evidence an
assessment of the SBU activities in question?
[22]
The
applicants contend that the visa officer relied on the CBSA memorandum to
conclude that the SBU is an organization described in s 34(1)(f) without
conducting any independent analysis of that issue. Reasons must be detailed
enough for the applicants to sufficiently know why the application was denied: Ogunfowora v Canada (MCI),
2007 FC 471 at para 60. Here there were no “reasoned reasons” as discussed in Adu
v Canada (MCI), 2005 FC 565 at paras 10-11. A finding of
inadmissibility is particularly significant to an applicant and caution must be
exercised to ensure that it is properly made. The requirement for reasons in
such circumstances was stressed in Alemu v Canada (MCI), 2004 FC 997 at
paras 24, 27 and 36. See also Jalil v Canada (MCI), 2006 FC 246 at paras
25-29.
[23]
In
this case, the only ground of inadmissibility was membership in the SBU, and
the characterization of the SBU was, therefore, of the utmost importance. The
officer did not engage in any independent analysis regarding the SBU, merely
citing “information provided by the CBSA”.
[24]
The
applicants rely on Peer v Canada (MCI), 2010 FC 752 [Peer] at
para 28:
I agree with the
submissions of the applicant that "there is nothing in the reasons or the
evidence to justify any finding that the organization [of which the applicant
was a member] engaged in espionage or subversion at all." The officer
provides no basis at all for her conclusion that the CMI and/or the ISI are
organizations falling within the description provided in subsection 34(1) of
the Act. The only support for this conclusion was to be found in the reports
that were not properly before the officer. If this were the only basis
on which the applicant was found inadmissible, this application would be
allowed; however, the officer also found that the applicant himself had
engaged in espionage within the meaning of subsection 34(1)(a) of the Act.
[Underlining
added]
[25]
Here,
unlike in the Peer case, it is not in question that the report was
properly before the officer. But nor is there any alternate basis of personal
involvement alleged that would justify inadmissibility. It is also impossible
to tell from the CAIPS notes whether the officer turned his or her mind to the
nature of the SBU or what he or she understood “espionage” to mean.
[26]
The
respondent contends that the visa officer’s linkage of the 34(1)(f)
finding to 34(1)(a).
was sufficient clarity for the applicants and for this Court, and a sufficient
basis for meaningful judicial review: Newfoundland and Labrador
Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62. In
this instance, neither the allegation of membership in the SBU nor the
allegation that the SBU was involved in espionage were denied by the
applicants.
[27]
I
think that it is clear from the CAIPS notes that the officer relied almost
entirely upon the CBSA report. That in itself was not surprising as the officer
would not necessarily have access to any better source of information about the
nature of the organization in question. But there is also no indication in the
notes that the officer considered disclosing the report to the applicants,
redacted as necessary, and giving them an opportunity to respond to the
information it contained.
[28]
I
find that the reasons provided were deficient due to the lack of evidence of an
independent assessment by the officer.
Did
the visa officer breach principles of procedural fairness by not disclosing the
CBSA report?
[29]
In
Pusat v Canada (MCI), 2011 FC 428 [Pusat] at paras 28-30, this
Court held that judicial review ought to be allowed on the basis of
non-disclosure of a CBSA memorandum:
28 The CBSA memorandum considered by the
Officer in this instance was similar to that discussed by Justice Eleanor
Dawson, as she then was, in Mekonen v. Canada (Minister of Citizenship and
Immigration), 2007 FC
1133, 66 Imm.
L.R. (3d) 222. That case also dealt with the issue of disclosure in
the context of a paragraph 34 (1) (f) determination. Citing factors applied by
the Federal Court of Appeal in Haghighi v. Canada (Minister of Citizenship
and Immigration), [2000] 4
F.C. 407 (C.A.) (QL), and Canada (Minister of Citizenship and
Immigration) v. Bhagwandass, 2001 FCA
49, Justice Dawson found that the
circumstances of that case required the officer to provide the applicant with
the CBSA memorandum and other open-source documents to allow him to make
submissions that were responsive to the material. This was necessary, she held
at paragraph 26 of her reasons, 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.
29 At paragraph 19, Justice Dawson found that
the CBSA memo in question in that case: [W]as an instrument of advocacy
designed, in the words of the Federal Court of
Appeal in Bhagwandass [Canada (Minister of Citizenship and
Immigration) v. Bhagwandass, "to have such a degree of influence on the
decision maker that advance disclosure is required 'to 'level the playing
field'".
30 The CBSA memorandum in the present case
contains a recommendation in almost identical terms to that in Mekonen
and states that the information being forwarded to the officer "provides
sufficient conclusive evidence to support a determination of inadmissibility
pursuant to paragraph 34 (1) (f) IRPA". As in Bhagwandass and Mekonen,
disclosure was required to level the playing field. See also: Rana v. Canada
(Minister of Citizenship and Immigration), 2010 FC 696,
a case decided by Justice Sean Harrington in which the failure to disclose a
similar report in analogous circumstances was found to have denied the
applicant procedural fairness.
[30]
The
respondent contends that the applicants were advised at the procedural fairness
interview of the concern that Mr. Okomaniuk had been a member of the Ukraine
security services while working at the Ukrainian embassy in Canada and that the
SBU was an organization that conducted espionage. The conclusion of the CBSA
memorandum was presented to the applicants for comment and they were given
an opportunity to respond at that time.
[31]
The
respondent contends that this was sufficient to meet the requirements of
procedural fairness because it is unclear what evidence the applicants were
prevented from adducing to rebut the content of the report. Nor is it clear,
the respondent argues, what assistance advance disclosure could have given the
applicants.
[32]
In
my view, the memorandum in the present instance did amount to “an instrument of
advocacy” as discussed in Pusat, above, and Mekonen, which the
former cites. This is not a case such as Johnson v Canada (MCI),
2008 FC 2 where the inadmissibility concerns arose from the provisions of the
IRPA itself. In Johnson, the applicant was inadmissible by reason of a
criminal conviction. It was not necessary for the officer to disclose the fact
that he was aware of Johnson’s conviction when the interview was conducted. The
fact of the conviction was known to Johnson and his admissibility stemmed
directly from the occurrence of that fact. Here, it was necessary for the
officer to determine the nature of the SBU and its activities and Mr.
Okomaniuk’s membership in the organization before the admissibility finding
could be made.
[33]
While
it may not have been necessary to disclose the actual memorandum, particularly
as it contained information that it would prove necessary to redact, the
content or gist of the concern about the nature of the SBU and Mr. Okomaniuk’s
involvement with it should have been conveyed to the applicants prior to the
interview: Nadarasa v Canada (MCI), 2009 FC 1112 at paragraph 25 citing the following
quote from Justice Rothstein (then from this Court) in Dasent v Canada
(Minister of Citizenship and Immigration), [1995] 1 FC 720, at para 23:
The
relevant point as I see it is whether the applicant had knowledge of the
information so that he or she had the opportunity to correct prejudicial
misunderstandings or misstatements. The source of the information is not of
itself a differentiating matter as long as it is not known to the applicant.
The question is whether the applicant had the opportunity of dealing with the
evidence. This is what the long-established authorities indicate the rules of
procedural fairness require. In the well known words of Lord Loreburn L.C. in Board
of Education v. Rice, [1911] A.C. 179 (H.L.) at page 182:
They
can obtain information in any way they think best, always giving a fair
opportunity to those who are parties in the controversy for correcting or
contradicting any relevant statement prejudicial to their view.
See
also: Muliadi v. Canada (Minister of Employment and
Immigration), [1986] 2 F.C. 205 (F.C.A.); Chen v. Canada (Minister of Citizenship and Immigration), 2007 FC 41; Knizeva v. Canada (Minister of Citizenship and Immigration), 2006 FC 268.
[34]
In
this instance, the applicants were not given a fair opportunity to correct or
contradict the content of the CBSA memorandum. It is clear from the information
filed by the applicants on this application that they could have presented such
information had they been given the chance to do so. It was not sufficient for
the officer to inquire, at the end of the interview, whether they had anything
to add at that time.
[35]
In
the result, I am satisfied that there has been a breach of procedural fairness
and the matter should be remitted for a fresh determination by another officer.
In the circumstances, the applicants must be allowed to present the information
they would have submitted had they been given the opportunity by the visa
officer in the first instance.
[36]
No
serious questions of general importance were proposed for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is granted and the
matter is remitted for redetermination by a different visa officer in
accordance with these reasons. No questions are certified.
“Richard G. Mosley”
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