Docket: IMM-4629-15
Citation:
2016 FC 522
Ottawa, Ontario, May 10, 2016
PRESENT: The
Honourable Mr. Justice Mosley
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BETWEEN:
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MORTEZA MASHAYEKHI KARAHROUDI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
The Applicant challenges the decision of a visa
officer at the Embassy of Canada in Warsaw, Poland refusing his application for
permanent residence as a member of the Skilled Worker Class.
[2]
The officer’s decision was based largely on
information that was not disclosed to the Applicant, as to do so could be
injurious to national security. For that reason, much of the able argument
advanced on the Applicant’s behalf by his counsel was moot as it could not address
all of the factual matters underlying the decision.
[3]
Having considered all of the evidence including
those portions of the Certified Tribunal Record withheld from the Applicant and
the submissions of the parties, the application is dismissed.
II.
Background
[4]
Mr. Morteza Mashayekhi Karahroudi is a citizen
of Iran with a Master’s degree in geophysics from Tehran University. Following his
graduation in 1990, he began working as a geophysicist with the Atomic Energy
Organization of Iran (AEOI). In 1997, he applied to immigrate to Canada under
the Federal Skilled Worker Category. Mr. Karahroudi disclosed his work with the
AEOI in that application. The application was approved and he arrived in Canada
with his family on October 18, 1998. They returned to Iran after only a few
months in Canada, because his wife’s mother fell ill. The Applicant’s entire
family was also issued a visa to travel to Canada in 2003.
[5]
The AEOI is the primary Iranian organization
involved in research and development in the field of nuclear technology. It has
been listed by the British, US, and EU governments as an entity of concern for
the proliferation of nuclear weapons. It is also listed in the Annex to United
Nations Security Council (UNSC) Resolution 1737, adopted in 2006, as an entity
involved in Iran’s nuclear proliferation program. Since 2006, the UNSC has
imposed four rounds of sanctions against Iran in response to the proliferation
risks posed by its nuclear program.
[6]
On 22 July, 2010, Canada implemented the UNSC
Resolutions through the Special Economic Measures Act, SC 1992, c 17. In
the 2009/2010 Public Report of the Canadian Security Intelligence Service
(CSIS or the Service), it was noted that Iran’s proliferation efforts pose a
direct threat to Canada’s national security.
[7]
In 2009, the Applicant submitted the application
for permanent residence which is the subject of this judicial review. By way of
a letter dated 3 June, 2014, the Applicant was asked to attend an interview at
the Canadian Embassy in Warsaw. The interview was conducted on 30 July, 2014.
During the interview the Applicant was questioned about his history, including
his employment with the AEOI, his activities since leaving the AEOI, and his
travels outside of Iran. The Applicant indicated that after leaving the AEOI in
2004 he established a private trading company that, among other things,
imported auto parts from China. He also stated that he had travelled widely
outside Iran, largely for vacations.
[8]
The application was then referred to the
National Security Screening Division (NSSD) of the Canadian Border Services
Agency (CBSA). A non-favorable report from the NSSD was received by the Embassy
on 20 March, 2015. Relying on information received from CSIS in a letter dated
23 January, 2015, the NSSD advised that there were reasonable grounds to
believe that the Applicant is inadmissible to Canada under paragraph 34 (1) (d)
of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA).
[9]
The NSSD report noted that “the NSSD is of the view that individuals who are linked, directly
or indirectly, to nuclear proliferation or proliferation of WMD may be found
inadmissible as there are reasonable grounds to believe they present a danger
to the security of Canada”.
[10]
In a letter dated 9 May, 2015 (the procedural
fairness letter), the Applicant was informed that he may be inadmissible to
Canada in accordance with paragraph 34 (1) (d) of the IRPA. The letter
stated: “there are reasonable grounds to believe that
your previous employment with the Atomic Energy Organization of Iran, subsequent
associations and recent travel history includes you as a member of the
inadmissible class of persons”. The Applicant was given 30 days to
respond, and was subsequently granted an extension of time. The NSSD report was
not made available to the Applicant.
[11]
The Applicant’s representative submitted a ten
page reply dated 8 July, 2015. The reply noted that the Applicant had obtained
a copy of the Global Case Management System (GCMS) notes related to his file
via an Access to Information Act request. The GCMS notes did not include
a summary or any notes pertaining to the Applicant’s July 2014 interview. The Applicant
submitted that there is also no explanation in the notes for why the
immigration officer would have connected the Applicant’s recent travel to his
employment at the AEOI or who the “subsequent
associations” of concern might be. As part of his reply submissions, the
Applicant requested a copy of any reports relied on by the officer in Warsaw so
that he could respond to the evidence against him.
[12]
The Applicant was informed in a letter dated 2
September, 2015 (the refusal letter), that in accordance with paragraph 34 (1)
(d) of the IRPA, he did not meet the requirements for a permanent
resident visa.
III.
Decision under Review
[13]
The refusal letter stated the following:
[T]he Atomic Energy Organization of Iran
(AEOI) is the main organization involved in research and development in the
field of nuclear technology. The AEOI has been listed by the British, U.S. and
E.U. government as an entity of concern for proliferation activity. It is also
listed in the Annex to the United Nations Security Council Resolution 1737
(2006) as an entity involved in Iran’s nuclear proliferation program. Entities
that engage in activities related to nuclear proliferation pose a danger to the
security of Canada. The Atomic energy Agency of Iran is such an entity. Given
your work history and associations with this company you facilitated directly
or indirectly these activities. You are therefore inadmissible to Canada as per
section 34(1)(d)) of the Immigration and Refugee Protection Act.
IV.
Relevant Legislation
[14]
The applicable provision of the IRPA
reads 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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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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V.
Issues
[15]
The issues addressed in this application are:
(1)
The respondent’s preliminary motion for non-disclosure.
(2)
The appropriate standard of review.
(3)
Whether the officer breached the principles of
natural justice by failing to disclose the CBSA-NSSD memo and CSIS letter, and
by failing to consider the Applicant’s response to the fairness letter?
(4)
Whether the officer’s decision is unreasonable
because they failed to justify their decision, or in the alternative, because
the officer made unreasonable inferences and findings of fact in relation to
the Applicant’s inadmissibility under paragraph 34(1) (d) of the IRPA?
VI.
Analysis
A.
Respondent’s Preliminary Motion for
Non-disclosure
[16]
The Certified Tribunal Record (CTR) was filed on
24 February, 2016 with a number of blank pages representing information that
was being withheld by the Minister of Citizenship and Immigration (the Minister).
The respondent then brought an application on 1 March, 2016 for a nondisclosure
order pursuant to s. 87 of the IRPA supported by three classified
affidavits. The redacted information consisted of large sections of the
CBSA-NSSD memo and the CSIS letter which the officer considered when making a
finding of inadmissibility. The Court was advised by the respondent that they
intended to rely on the information for which the s. 87 order was being sought
on the judicial review of this application.
[17]
In a letter to the Court dated March 16, 2016,
the Applicant took no position on the non-disclosure motion but asked that the
Court review the redacted information to determine whether it would, if disclosed,
be injurious to national security. The Applicant also requested that the
respondent not be permitted to rely on any new evidence contained in the
classified affidavits filed in support of the motion to substantiate the
decision of the officer under review.
[18]
The Court read the redacted information and the
three classified affidavits filed in support by the respondent. One affidavit
pertained only to information that is routinely protected and would carry no
weight in these proceedings. The Court considered that it was not necessary to
hear from that affiant. The other two affiants testified and were closely
examined by the Court on the more substantive information in a closed and ex
parte hearing on 7 April, 2016. There was no evidence in the three
affidavits or the oral testimony which could be considered new evidence in
support of the officer’s decision.
[19]
In the course of the ex parte hearing,
the respondent agreed to a certain amount of further disclosure and the Court
was provided with revised pages to be added to the CTR and disclosed to the Applicant.
After considering the matter, the Court concluded that the s. 87 application
was justified and supported by the evidence and submissions. An order to that
effect with reasons was issued on 8 April, 2016 (2016 FC 397).
[20]
In an effort to provide the Applicant with some
understanding of the content of the redacted information, an Annex was attached
to the order containing an unclassified summary along with the revised pages of
the CTR.
[21]
To date there has been uncertainty as to whether
s. 87, which imports s. 83 of the IRPA, could be interpreted to allow
for the issuance of a summary of information withheld on the basis of national
security.
[22]
Justice Noël addressed this question in AB v
Canada, 2012 FC 1140, which was a judicial review application regarding the
denial of a sponsored application for permanent residence status. The Minister
filed a s. 87 Motion, and the Applicant sought to have a special advocate
assigned and requested that a summary of the information be disclosed. Justice
Noël denied the request, noting in his Order and Reasons for Order on the
motion:
[12] Because disclosure of certain types of information would be
injurious to national security or endanger the safety of any person, such
information cannot be disclosed (see Charkaoui v
Canada (Citizenship and Immigration), 2007 SCC 9, at para 58). I am
satisfied that there was no need to involve a special advocate at that stage. As
for the request for a summary of the redacted information, although permitted
for the purposes of certificate proceedings (see section 83 (1) of the IRPA),
it is explicitly excluded for the purposes of judicial reviews involving
immigration matters and information protected on grounds of national security
(see section 87 of the IRPA).
[23]
Section 87 of the IRPA provides as follows:
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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 in respect of the
proceeding and in respect of any appeal of a decision made in 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 et à tout appel de toute décision rendue au cours de
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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[Emphasis added]
[24]
At first impression, the underlined words could
be construed as removing any discretion for the Court to order that a summary
be provided.
[25]
However, s. 87 excludes “obligations”
to appoint a special advocate and to provide a summary of protected
information. These obligations arise in the context of security certificate
proceedings under sections 78 and 82 to 82.2. Section 83 codifies a set of
requirements for those proceedings. Under paragraph 83 (1) (a), the Judge
hearing a certificate case shall appoint a special advocate upon hearing
the representations of the parties. And under paragraph 83 (1) (e), the Judge shall
ensure that the permanent resident or foreign national who is the subject of
the proceeding is provided with a summary of the information or other evidence
that enables them to be reasonably informed of the case made by the Minister.
[26]
The clear legislative intent of the language in
s. 87 is that neither of these obligations applies to non-disclosure motions
that arise in another immigration proceeding. Nothing in the section precludes
the Court from exercising its discretion to provide a summary when it deems it
appropriate. A summary is, nevertheless, not explicitly required in order to
guarantee a fair process on a s. 87 motion. This interpretation is supported by
Justice Noël’s subsequent Reasons for Judgment in AB v Canada, 2013 FC 134:
[58] In her September 16, 2011 letter
to the Applicant, the officer requested an interview to inform him of her
“concerns” and to give him an opportunity to respond to them. It also informed
the Applicant that inadmissibility based on national security grounds, which is
encompassed by section 34 of the IRPA, was possible without further
specification. As seen previously, the Applicant's counsel requested that the
officer provide the documentation on which her “concerns” were based and to
specify the precise subsection(s) of section 34 at issue.
[59] Having read the CBSA and the CSIS
briefs and having reviewed the CTR as a whole, it is clear that that the briefs
were of utmost importance to the officer. Her “concerns” were based in large
part - if not totally - on these documents. They contain the information that
formed the basis of the decision made.
[60] Such documents initially contained
protected information. As seen in this file and as a result of a section 87
review, redactions were lifted while some information still remain redacted but
it is information that is known to the Applicant through other avenues such as
questions asked during the CSIS interviews or other means. In such cases, it
may be appropriate to consider the issuance of a summary of the content in
order to protect national security assets such as human, technical sources.
This was not necessary in the present case. [Emphasis added]
[27]
The Court appreciates that the summary provided
in this case contained little information that would assist the Applicant in understanding
the reasons for his refusal. The right of an individual to have an application
for a visa determined and to have that decision reviewed in accordance with law,
including the norms of procedural fairness, may need to be balanced against the
duty of the state to protect national security. As stated by the Federal Court
of Appeal in Chiau v Canada (Minister of Citizenship and Immigration),
[2001] 2 F.C. 297 at para 2 [Chiau], such matters present a considerable
challenge to the institutions of an open and democratic society. On occasion,
the process of balancing the interests will work to the disadvantage of the
individual. That does not mean that the process is unfair. In considering
these issues, the Court must be vigilant to ensure that the application for
non-disclosure is based on solid evidence and a realistic prospect of harm and
not over-claiming by the state.
B.
Standard of Review
[28]
There was no dispute between the parties with
regard to the applicable standards. Questions of natural justice invoke a
standard akin to correctness: Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12, at para 43. The task for the Court is to determine whether the
process followed by the decision-maker satisfied the level of fairness required
in all of the circumstances. The content of the duty of fairness owed to a
foreign national seeking entry to Canada falls on the lower end of the
spectrum, especially where issues of national security arise: Chiau, at
paras 48-54; Khan v Canada (Minister of Citizenship and Immigration),
2001 FCA 345 at para 30; Fallah v Canada (Minister of Citizenship and
Immigration), 2015 FC 1094, at para 8 [Fallah].
[29]
The standard of review for the substance of a
visa officer’s decision is one of reasonableness: Suresh v Canada (Minister
of Citizenship and Immigration), 2002 SCC 1, at para 85 [Suresh]; Fallah
at para 13. The factual inferences drawn by the officer are also assessed
on a reasonableness standard: Dunsmuir v New Brunswick, 2008 SCC 9, at
para 47 [Dunsmuir].
C.
Breach of natural justice
(1)
Failure to disclose the CBSA-NSSD memo and CSIS
letter
[30]
The Applicant contends that the officer breached
the principles of natural justice and procedural fairness by failing to
disclose the “non-favorable” decision received
by the Embassy. They rely on my decision in Pusat v Canada (Minister of
Citizenship and Immigration), 2011 FC 428, in support of this position.
[31]
In Pusat, I considered the procedural
fairness involved in a process whereby a visa officer found an Applicant
inadmissible in accordance with paragraph 34 (1) (f) of the IRPA, and
held:
25 In the particular circumstances of this
case, the certified record contains documents that predate the first refusal and
appear to have strongly influenced the officer's decision. In my view, those
documents, with redactions if necessary, or at least the gist of the
information they contain, should have been disclosed to the Applicant prior to
the second interview so that he might have been better prepared to answer
questions about the grounds for suspecting that he was a member of the PKK.
26 The documents in the certified record
include a memorandum from the Canada Border Security Agency's (CBSA) Counter
Terrorism Section which recommends that the Applicant be found inadmissible for
being a member of the PKK. The memorandum identifies a number of criteria to be
assessed in making a determination of inadmissibility pursuant to paragraph 34
(1) (f) and relates several of those factors to information provided by the
Applicant in an earlier interview. Other criteria cited in the memorandum have
no bearing on the Applicant's history or conduct. The officer's analysis
mirrors that part of the CBSA memorandum which reflects adversely on the
Applicant. While it is the role of the officer to weigh all of the factors and
determine whether the Applicant is a member of a terrorist organization,
fairness required that the Applicant be given a reasonable opportunity to
address those factors before a decision was made.
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'".
[32]
The Applicant contends that as in Pusat,
he was not given the opportunity to respond to the concerns raised in the “non-favourable” decision despite making a request for
any documents that the officer may have relied on to reach their finding of
inadmissibility.
[33]
As Justice Judith Snider pointed out in Gebremedhin
v Canada (Minister of Citizenship and Immigration), 2013 FC 380, at para 9,
each case must turn on its facts. Not every document considered by an
immigration officer must be disclosed. The relevant question is whether the Applicant
had the opportunity to meaningfully participate in the decision-making process:
Bhagwandass v Canada (Minister of Citizenship and Immigration), 2001 FCA
49, at para 22.
[34]
In El Maghraoui v Canada (Minister of
Citizenship and Immigration), 2013 FC 883, at para 22, Justice de Montigny recognized
that there will be instances in which documents may be protected by privilege
based on national security. The duty of fairness, he found, can be met without
having to furnish all of the documents and reports the decision-maker relied
upon.
[35]
In this instance, the Applicant was given an
interview during which he answered questions about his position and employment
history with the AEOI, any continued connection with the AEOI, and concerns
with respect to his travel history. It would have been helpful to the Court to
have had the officer’s notes of that interview but they were not included in
the CTR nor requested by the Applicant. He was provided with an opportunity to
respond to the fairness letter which raised concerns regarding his involvement
with the AEOI and Iran’s nuclear program. While he has maintained throughout
these proceedings that he does not know what “subsequent
associations” the officer was referring to in the fairness letter, the
failure of the officer to provide him with the specific documents upon which
those concerns were based does not constitute a breach of procedural fairness
in the particular circumstances of this case.
(2)
Did the officer fail to consider the Applicant’s
response to the fairness letter?
[36]
The Applicant submits that his attempt to
respond to the concerns raised in the fairness letter was not addressed in the
refusal letter. The tribunal record, he argues, establishes that the officer
issued their decision without considering the Applicant’s response, effectively
rendering the fairness letter meaningless.
[37]
The officer’s annotation in the electronic case
management system to the effect that the response was considered is, in my
view, a sufficient answer to this complaint. The duty of fairness does not
require that the officer include a detailed written assessment of each point in
the refusal letter. In addition, the response provided by the Applicant was
largely a restatement of the information that he had already provided the
officer.
D.
Reasonableness of the decision.
[38]
The Applicant submits that the officer’s
decision is unreasonable because they failed to adequately justify their
conclusions as to why there are reasonable grounds to believe that the Applicant
is a danger to the security of Canada. As stated in Mugesera v Canada (MCI),
2005 SCC 40, at para 114, there must be an objective basis for the reasonable
grounds based on compelling and credible information.
[39]
The reasons provided must “allow the reviewing court to understand why the tribunal
made its decision and permit it to determine whether the conclusion is within
the range of acceptable outcomes” : Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at para 16
[Newfoundland Nurses]. The reasons provided must contain enough
information about the decision so that the party can understand the basis for
the decision and for the reviewing court to assess whether the decision met
minimum standards of legality: Ralph v Canada (Attorney General), 2010
FCA 256, at paras 17-19.
[40]
As discussed above, the Court has had the
opportunity to read the complete record including the information which was the
subject of the non-disclosure Motion and Order. It is now well established that
in considering the adequacy of reasons provided for a decision in a
reasonableness analysis the Court may take into account the evidentiary record.
As stated by Justice Stratas in Vancouver International Airport Authority v
Public Service Alliance of Canada¸ 2010 FCA 158, at para 17(b), the
task is to determine whether the reasons satisfy, in a minimal way, the
fundamental purposes required of them. A handful of well-chosen words can
suffice.
[41]
In the context of this particular case, and in
consideration of the evidentiary record, I am satisfied that the decision was
adequately explained. On the basis of the entire record it is clear that the
reasons provided by the officer are not simply conclusions but reflect the
substance of the concerns underlying the decision. The concerns were not based
on mere speculation or suspicion but are well-founded on objective evidence.
[42]
As I noted at the outset, counsel for the Applicant
argued this case from the unenviable position of not having access to all of
the information in the tribunal record. Notwithstanding that burden, her
written and oral submissions on behalf of her client were all that her client
could have hoped for in the circumstances.
[43]
Neither party proposed questions for
certification. This case turned on its particular factual circumstances.
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