Docket: T-371-14
Citation:
2014 FC 1020
Ottawa, Ontario, October 28, 2014
PRESENT: The
Honourable Madam Justice McVeigh
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BETWEEN:
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HIRA SHABBIR
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review under
section 18.1 of the Federal Courts Act, RSC 1985, c F-7, of the decision
of the Minister of Transport (“the Minister”) dated January 23, 2013, refusing the
Applicant’s request for transportation security clearance at Pearson
International Airport pursuant to paragraph 4.8 of the Aeronautics Act,
RSC 1985 c A-2.
I.
Background
[2]
The Applicant, Hira Shabbir, a Canadian citizen,
applied for a transportation security clearance so she could continue to work
at A & W by GME Gill Inc. (in some documents GME Grill Inc.), a restaurant
within a restricted area at Pearson International Airport. On August 19, 2013,
she was given a temporary airport entry permit until her application was
processed.
[3]
The Applicant’s application was refused as she
had a period of time (three years and ten months) in the last five years that
the information she provided was not reliable and verifiable. She disagrees.
[4]
The Transportation Security Clearance Program
(TSCP) is administered by Transport Canada to oversee the issuance, suspension
and cancellation of transportation security clearances. The purpose of the TSCP
is to protect and promote the safety and security of the public, passengers,
crew members and aviation facilities. The TSCP does this by granting
transportation security clearances only after people have met the standards in
the TSCP policy.
[5]
A person requiring a transportation security
clearance must provide a number of documents including government-issued
identification, biographical data, fingerprints, a photograph and also
adequate, reliable and verifiable information on the past five years of their
work, study and residency. This information is subsequently verified with CIC,
RCMP, CSIS and other law enforcement agencies. The TSCP policy at s.I.3 (c)
includes a provision for a review panel to determine whether the information
provided is sufficient, reliable and verifiable.
[6]
The Applicant submitted her first application on
August 18, 2013. Under the section entitled “What have you been doing for the
last five years? – school, employment, unemployment” she provided the following
information for employment and travel:
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Employer/School
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Country
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Dates
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Punjab College for Women
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Punjab, Pakistan
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August 2008-August 2011
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Employed in Canada
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Belleville, ON
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Sept 2011 – Feb 2012
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Unemployment (maternity leave)
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Shakargarh, Pakistan
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Feb 2012- May 2013
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Employed in Canada
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Brampton, ON
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May 2013- present
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Travel:
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Country
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Purpose
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Dates
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Pakistan
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Visiting in-laws
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August 2008- Sept 2011
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Pakistan
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Sister’s marriage
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June 2012- April 2013
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[7]
On August 28, 2013, the Acting Chief of the
Security Screening Program, on behalf of the Minister, wrote the Applicant to
inform her that the information provided was not sufficient, reliable and
verifiable enough to enable Transport Canada to assess the application.
Specifically, the Applicant was out of Canada for three (3) years and ten (10)
months in the five year period prior to the application. Original, supporting
documentation was requested to verify the residency and education activities
from August 2008 to September 2011 and from June 2012 to April 2013. In
response, the Applicant provided multiple documents including:
•
Character certificate from Punjab College for Women, Gujranwala (2007- June 2009);
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Commerce Diploma issued August 2009;
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Marriage certificate March 25, 2011;
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Two Police certificates from Pakistan;
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The first dated September 10, 2013 stating that
there is nothing adverse against the Applicant during her stay in Shakargarh,
District Narowal from July 6, 2011 until September 10, 2013;
o
The second dated September 20, 2013 stating that
there is nothing adverse against the Applicant during her stay in Gujranwala
from birth (September 2, 1987) until marriage (March 25, 2011);
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Son’s birth certificate in Canada, Feb 2012;
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Pakistan National ID card;
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Invitation to sister’s wedding in Pakistan, October 2012.
[8]
The Security Screening Officer, Martha Lee,
asked the Applicant for an email address for the college to verify that the
documents were originals. After the officer sent two unanswered email requests
to the college’s provided email, the Applicant herself contacted the college
and had the documents verified, scanned and sent back from an unidentified
person who wrote from a “hotmail.com” email address and not the college’s
official email address.
[9]
The Security Screening Officer told the
Applicant that the verification must come from the college email address. As
well the dates should be verified as August 2008 to August 2011, not August
2007 to 2009 which is what the college certificate stated. In response, the
Applicant told the officer that she made an error and that she was only in
school in Pakistan from August 2007 to June 2009 and that she was at home with
her parents in Pakistan from July 2009 until her marriage in March 2011. As
this now left a gap, the officer requested that the Applicant must provide full
details on what she was doing while living in Pakistan from June 2009 to June
2011.
[10]
The Applicant responded that she wrote final
exams in June 2009, completed her school and stayed home —unemployed— with her
family until she was married in March 2011. From March 2011 onwards, she stated
that she lived with her husband and in-laws until she returned to Canada in September 2011. The Applicant did not provide any other documentation about her
stay in Pakistan during the gap.
[11]
The Director of Security Screening Programs
notified the Applicant that her application for clearance was refused by the
Minister based on her file and on the recommendation from the Review Panel. The
reason for refusal was that she “did not provide
sufficient, verifiable and reliable information”.
II.
Standard of Review
[12]
Review of whether the Minister erred when
refusing the transportation security clearance pursuant to paragraph 4.8 of the
Aeronautics Act is reviewed on a standard of reasonableness (Thep-Outhainthany
v Canada (Attorney General), 2013 FC 59 citing Clue v Canada (Attorney
General), 2011 FC 323 ).
[13]
Reasonableness requires that there be “…justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within the range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir v New Brunswick, 2009 SCC
9 at para 47, Khosa v Canada (Minister of Citizenship and Immigration),
2009 SCC 12 at para 59). Where the decision was one of fact, discretion or
policy, deference will apply (Dunsmuir at para 53).
III.
Analysis
[14]
The Applicant submitted that she provided
sufficient documentation and that the Security Officer Martha Lee’s
unexplainable errors are enough to send this matter back for reconsideration.
The Applicant just wants her job back as she is the sole provider for her two
and a half year old son and her sponsored husband who just arrived in Canada in September 2014. At the hearing, she said after seeing all the material that was
before the Review Panel, that she better understands the process. Because the
Applicant said she now understands the process, she wants another chance to
re-apply as she is confident she is able to provide the documentation needed
for her transportation security certificate approval.
[15]
The Transportation Clearance Program policy at
section I.9 states:
A Review Panel shall, in the case of an
applicant who did not meet the conditions set out in section I.3, review all
the information provided by the applicant with a view of making a
recommendation to the Minister as whether to grant or refuse to grant a
clearance.
[16]
In this case, the Applicant was refused clearance
as the information provided was not adequately reliable and verifiable for the
whole period of five years prior to the application being made, which is what
is needed as stated in TSCP at section I.3 (3). Consequently, the matter was
referred to the Review Panel.
[17]
The composition of the Review Panel is described
in the TSCP Part II “Standards” at section II.32:
The review panel shall consist of the Director,
Security Screening Programs who is the chairperson and at least one other
member selected by the Director, Security Screening Programs based on his or
her familiarity with the aim and objective of the Transportation Security
Clearance Program.
[18]
At section II.33 of the TSCP:
The Director, Security Screening Programs shall
convene the Review Panel when:
1. The director, Security Screening Programs
will review information provided by an applicant to determine whether it is
sufficient, reliable and verifiable to proceed or to allow an applicant to
re-apply.
[19]
A Review Panel was constituted and consisted of
the Chief, Security Screening Programs and Director, Security Screening
Programs. On January 8, 2014, the Director General, Strategies and Programs
Integration affirmed the recommendation in the Review Panel Recommendation
Rationale to refuse the security clearance. The Director General signed the
refusal for clearance on January 20, 2014.
[20]
The Security Screening Officer, Martha Lee, made
inexplicable errors in her notes of December 18, 2013 and in her “Summary of
Applicant’s File For Review” when referring to the information provided by the
Applicant. The Officer misstated that the Applicant’s birth certificate was
from India instead of Pakistan and that she was unemployed in India. When Martha Lee contacted the Punjab College for Women for verification of information, she
had the Applicant’s wrong birth date (1987-09-08) and that the Applicant
studied at the “Punjab College for Women in India”. The Punjab College for Women is located at Civil Lines, Gujranwala in Pakistan and not in India. The correct date of the Applicant’s birth is 1987-09-02. On the Summary provided by
Martha Lee, the Applicant’s birth date was correctly stated but was not correct
on the request to the school for verification. The Applicant felt these errors
were possibly why the college did not reply as with this incorrect information
they would not have found her in their records.
[21]
The resulting Review Panel Recommendation and
the decision did not have these errors. But even if the errors had not been
corrected they were not material to the actual decision made though were very
disrespectful and important to the Applicant. The college never did email the
officer back to say they could not find the Applicant with the incorrect
information as they did not respond to either of the email requests so it is
unlikely this was an issue as her name was correct. The other error listing India instead of Pakistan as I said was inexcusable, but was not material to the decision.
[22]
The Review Panel Record of Recommendation states
that the clearance was refused because out of the 5 years of information
required to make a decision, only 1 year and 2 months was deemed verifiable and
reliable. The rationale stated for the refusal was the unverified time spent
outside of Canada and that the Applicant did not provide sufficient information
to cover the entire period. Also, the information provided could not be verified
or assessed for reliability.
[23]
The Minister accepted the Review Panel’s
assessment and issued a rejection letter to the Applicant on January 23, 2014.
The Minister did not accept the Applicant’s college documents that were
verified by correspondence between the officer and the “hotmail.com” email
address. The Minister wrote:
... [the] information provided in your
application and in the documents you submitted for a period of 3 years and 10
months while outside of Canada is insufficient. Specifically, you did not
provide sufficient information pertaining to your activities to cover the
entire period under review and, of the information provided, Transport Canada was unable to verify and assess its reliability.
[24]
A recent Federal Court of Appeal decision on a
similar provision in relation to security clearances at marine facilities and
ports is analogous to this situation. In Canada (Minister of Transport, Infrastructure
and Communities) v Farwaha, 2014 FCA 56 at paras 67 to 69, Stratas, JA
wrote regarding section 509 of the Security Regulations, that the security
clearance can only be granted if the information provided is reliable and
verifiable: ““…there must be no doubt in the matter. This
high standard is necessary to prevent the grave consequences that might ensue
if the individual commits injurious or destructive acts in sensitive port
areas” and “…that the person does not pose a risk
to marine security.”
[25]
Airport and Marine facility security cannot be
taken lightly and though this young articulate woman feels she was unfairly
dealt with, I find the decision maker to be reasonable and the decision
supportable.
[26]
Given the seriousness of airport security, the privilege
of a transportation security clearance requires that the Minister exercise
discretion in a manner that enhances security. The information that the
Applicant provided needed to be verifiable. The Minister was reasonable on this
determination.
[27]
As for the Applicant’s stay in Pakistan from June 2009 to September 2011, she did not submit any documentation that the officer
could verify. I note that the Applicant provided police certificates for each
stay in Pakistan, but it is reasonable for the Minister to view these only for
the purpose of assessing criminality. Likewise, the Applicant’s stay in Pakistan from February 2012 to April 2013 is equally unverifiable. The email from the “hotmail.com”
account is likely not sufficiently verifiable because it did not come from the
official school email.
[28]
The Minister has broad discretion conferred by
section 4 of the Aeronautics Act and by the Transportation Security
Clearance Program Policy. The Court must give considerable deference on issues
on policy and discretion as stated by Dunsmuir. The Cancellation or
Refusal policy specifies that any factor that is relevant may be considered. In
this case, it is reasonable for the Minister to consider the provided
information to be insufficient to satisfy the requirement that the previous
five years of activities of the Applicant be verified.
[29]
The Court asked the Respondent about the
Applicant’s ability to reapply and I was directed to section II.36 regarding
subsequent applications. The Applicant can only submit a new application if 5
years have elapsed or if a change has occurred in the circumstances that lead
to the refusal or cancellation. It would appear on these facts that the Applicant
now fully appreciating and knowing what verifiable information is needed may
arguably be a sufficient change in circumstances as anticipated in section II.36
and section II.34. This Court is not making that determination as the exercise
of that discretion will be left to TSCP officials should the Applicant choose
to re-apply.
[30]
I find this decision of the Minister to be a
justified, intelligible, and transparent decision that is within a range of
reasonable outcomes. This decision was reasonably arrived at when considering
that the Applicant did not provide information that could be verified and
reliable.
[31]
The Respondent withdrew their request for costs
at the hearing and none are awarded.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
The application is dismissed;
2.
No costs are awarded.
"Glennys L. McVeigh"
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