Docket: IMM-4072-16
Citation: 2017 FC 1026
Ottawa, Ontario,
November 9, 2017
PRESENT: The Honourable Mr. Justice LeBlanc
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BETWEEN:
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AIERKEN
MALIKAIMU
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AYOOB HAJI
MOHAMMED
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Applicants
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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Respondents
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ORDER AND
REASONS
ON THE MOTION FOR THE APPOINTMENT OF A
SPECIAL ADVOCATE
[1]
The Applicants, Ayoob Haji Mohammed [Mr.
Mohammed] and Airken Malikaimu [Ms. Malikaim], are husband and wife. They
are seeking leave to judicially review a decision of a visa officer stationed
at the Canadian Embassy in Rome, Italy [the Visa Officer], who, on July 11,
2016, rejected Mr. Mohammed’s application for permanent residence on national security
grounds. Mr. Mohammed’s application was sponsored by Ms. Malikaim, who is a
Canadian citizen.
[2]
In the course of the leave proceedings, the
Respondent was ordered to produce the notes of an interview Mr. Mohammed
attended at the Canadian Embassy in Tirana, Albania, on January 15, 2015, while
his permanent residence application was being assessed. When that order became
definitive, the Respondent brought a motion under section 87 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the “Act”]
claiming that the disclosure of these notes could be injurious to national
security or endanger the safety of a person.
[3]
The Applicants urge the Court, in such context,
to appoint a special advocate pursuant to section 87.1 of the Act. That
provision allows a judge of this Court, during a judicial review, to appoint a
special advocate where he/she is of the opinion that
considerations of fairness and natural justice require such appointment in
order to protect the interests of the applicant.
[4]
For the reasons that follow, I have determined
that the appointment of a special advocate is not necessary in this case, at
least at this stage of the proceeding.
I.
Background Facts
[5]
Mr. Mohammed is a citizen of China of Uighur
ethnicity. He resides in Albania as a refugee since March 2006. While in
Albania, he met Ms. Malikaim through an online social networking site. They
married in March 2010. The couple have two children. A few years after their
wedding, Ms. Malikaim submitted a spousal sponsorship application to sponsor
Mr. Mohammed to come to Canada as a permanent resident.
[6]
In their written submissions in response to the
Respondent’s section 87 motion [the Section 87 Motion] and in support of their
request for the appointment of a special advocate, the Applicants describe, as
follows, a series of events. These events allegedly began in 2001 when Mr.
Mohammed says he travelled to Pakistan to obtain a student visa that would
allow him to study in the United States. This led to Mr. Mohammed being detained
by the US military in Afghanistan in the aftermath of the September 11, 2001
attacks on the World Trade Center in New-York City, transferred to the American
military prison of Guantanamo Bay, Cuba, and eventually released and flown to
Albania with refugee protection:
3. Mr. Mohammed travelled with a
friend to Pakistan in fall 2001 to obtain his student visa. His friend would
also be travelling to the US, and so after Mr. Mohammad was issued his visa, he
decided to wait for his friend’s visa to be issued. The pair knew that Pakistan
was a dangerous place for individuals of Uighur ethnicity, which necessitated
them to go to Afghanistan and wait there until the remaining visa was issued.
4. After the US began military
operations in Afghanistan after the events of September 11, 2001, however, Mr.
Mohammad was forced to slip back into Pakistan to escape the rising
hostilities. Pakistan proved to be no safer, since he was there captured by
bounty hunters, along with a number of other Uighurs, and sold to the US
military.
…
7. Mr. Mohammad was first held in an
American prison in Kandahar, Afghanistan, and was then transferred to the
prison at Guantanamo Bay, Cuba. While in Guantanamo Bay, however, the Combatant
Status Review Tribunal determined that Mr. Mohammad was not an enemy
combatant. This was confirmed by the US Department of Justice in a Reply
Memorandum in 2005 as part of a habeas corpus application submitted by
Mr. Mohammad.
8. Mr. Mohammad could not be
released from Guantanamo Bay, however, since the US government had difficulty
finding a country where Mr. Mohammad could be transferred, but would not be
subject to torture. The US government also opposed release of Mr. Mohammad on habeas
corpus grounds, since they wanted to wait for the resolution of appeals of
other Guantanamo Bay detainees’ cases. Albania ultimately agreed to take Mr. Mohammad
as a refugee in 2006, and he was finally released from Guantanamo Bay and flown
to Albania on May 5, 2006.
[7]
As part of the processing of his application for
permanent residence, Mr. Mohammed was asked by the Visa section of the Canadian
Embassy in Rome to attend two interviews. One was held on January 15, 2015 [the
First Interview], the other on March 10, 2016 [the Second Interview].
II.
The Visa Officer’s Decision
[8]
As indicated at the outset of these Reasons, the
Visa Officer held that Mr. Mohammed did not qualify for the issuance of a
permanent resident visa to Canada on inadmissibility grounds. More
particularly, the Visa Officer found Mr. Mohammed to be inadmissible pursuant
to paragraphs 34(1)(c) and (f) of the Act for engaging in terrorism and for
being a member of an organization - the East Turkistan Islamic Movement [ETIM] -
for which there are reasonable grounds to believe engages, has engaged or will
engage in acts of terrorism.
[9]
In her letter of July 11, 2016 informing Mr.
Mohammed of her decision, the Visa Officer outlined as follows the grounds for her
belief that Mr. Mohammed was a member of the ETIM:
During your interview on March 10, 2016, you
stated that you went to Afghanistan and lived for 3 months with a group of
individuals who were fighting for the political objective of the independence
of Turkistan. You stated during your interview that the group was armed and
that you saw Kalashnikovs in the cave where you lived with this group. You
stated that the political orientation of this group was against China and that they
were in Afghanistan to train against the Chinese authorities. You stated that this
group was maybe named the “ETIM” by the Americans. You did not deny that you
may have been with this group that the Americans labeled as “ETIM” and that you
shared their political vision and lived/traveled with them for 3 months in
Afghanistan.
You were accused by the tribunal at
Guantanamo Bay in 2004 as travelling to Afghanistan to learn how to use
weapons. A US report states that you received training in an ETIM training camp
in Afghanistan. You were arrested there and detained and brought to Guantanamo Bay
as you were considered an enemy combatant i.e. someone who has supported the
hostilities against the US or its allies. You stated on March 10 2016 during
your interview that, “after the interrogation (in Afghanistan), they told us
that they captured us at the wrong place at the wrong time.” Credibility
concerns were raised during your interview on March 10 2016 as the officer did
not find it credible that the American authorities made an error in capturing
you at the wrong place and at the wrong time. You were asked on March 10 2016
during your interview why the American authorities would not simply release you
if the had no reason to believe that you were connected to a terrorist group,
and why they would have sent you to Guantanamo if they did not have concerns
about your personal history. Your responses at interview did not disabuse me of
my concerns.
Furthermore, credibility concerns were
raised in relation to your travel to Afghanistan. The officer raised the
concern that it did not appear credible that you would travel to Afghanistan
just after the 9/11 attacks because you were waiting for your friend’s visa and
that you would choose to travel there for touristic purposes. Another
credibility concern was raised during your interview on March 10, 2016 in
relation to your narrative that you coincidentally ended up in a camp of Uigher
people in Afghanistan who were training to fight for the liberation of
Turkistan. You stated that, “In Afghanistan there is a group of people who come
together to train against China.” It is unclear how you knew that there was a
group of people training to fight in this location if you had no interest in
fighting. You stated that, “When I was with the people who were fighting for
the independence of Turkistan we were fighting for political independence not
religion.” It is unclear why you would state “we were fighting” for this
objective if you were not yourself involved in the fight. There are reasonable
grounds to believe that, as the group was armed and you stated that members of
this group went to Afghanistan to be trained against Chinese authorities, and
as you lived with this group for 3 months, that you also received training to
fight for ETIM’s political objectives. Your responses at interview did not
disabuse me of my concerns.
[10]
In order to arrive at these findings, the Visa
Officer indicated in her letter having considered “the
information [Mr. Mohammed] provided, the information [Mr. Mohammed] provided
during the interview and open-source information.” The only interview to
which the letter refers is the Second Interview.
III.
The Background to the Section 87 Motion
[11]
What led to the filing of the Respondent’s
motion under section 87 of the Act [the Section 87 Motion] is rather unusual.
[12]
After having filed their application for leave
and judicial review on September 29, 2016, the Applicants indicated not having received
the written reasons of the Visa Officer’s decision. In accordance with rule
9(1) of the Federal Courts Citizenship, Immigration and Refugee Protection
Rules, SOR/93-22 [CIRP Rules], the Visa Officer was requested to provide a copy
of her reasons for decision. On October 4, 2016, in response to that request,
the Visa Officer filed a 9-page document consisting of the notes she entered in
the Visa Section’s Global Case Management System [GCMS] regarding Mr.
Mohammed’s application for permanent residence. These notes only make reference
to what was stated by Mr. Mohammed at the Second Interview.
[13]
On November 10, 2016, the Applicants’ former
counsel complained that the notes of the First Interview as well as the “open source information” relied upon by the Visa
Officer to make her decision were missing, resulting in an incomplete Rule 9
disclosure. The Respondent disagreed, claiming that the Visa Officer’s
obligations under Rule 9 had been met.
[14]
On December 23, 2016, the Applicants filed a
motion under rule 14(2) of the CIRP Rules, seeking an order directing the
Respondent to disclose the notes of the First Interview and the open source
information. Rule 14(2) empowers the leave judge to order the production of
documents in possession or control of the decision maker that he/she considers
required for the proper disposition of the leave application.
[15]
The Applicants claimed that without this
information, they were unable to properly prepare the application record - and
the Court to properly exercise its authority to grant or deny leave - since the
full basis of the Visa Officer’s findings was not known to either of them.
[16]
The Respondent opposed the Applicants’ motion,
claiming that the notes of the First Interview [the Notes] were unnecessary for
the disposition of the Applicants’ leave application. In support of its
contention, the Respondent filed an affidavit from the Visa Officer. The
affidavit states that the January 15, 2015 interview was conducted by “partners” and that the Visa Officer neither had
access to, nor considered, the Notes in making her decision.
[17]
On February 15, 2017, a judge of this Court [the
Motion Judge] granted the Applicants’ motion, thereby ordering the Respondent
to produce, by March 15, 2017, both the Notes and the open source information
relied upon by the Visa Officer in support of her decision [the Rule 14 Order].
No reasons were provided.
[18]
On February 27, 2017, the Respondent sought
reconsideration of the Rule 14 Order pursuant to rule 397 of the Federal
Courts Rules, claiming that the Motion Judge had either overlooked or
accidentally failed to consider the Visa Officer’s evidence that she did not
have access to - let alone relied upon - the Notes in making her decision. In
its written submissions, the Respondent indicated that should the Motion Judge uphold
the production of these notes, a motion under section 87 of the Act would be
brought on the basis that the disclosure of this information could be injurious
to national security or endanger the safety of any person. The Respondent also suggested
that the matter be referred to a judge of this Court designated to deal with
national security issues.
[19]
The Respondent’s motion to reconsider was
dismissed on March 22, 2017. The Motion Judge held that the Respondent had
failed to identify “any matter that should have been
dealt with that I overlooked or accidentally omitted to deal with.” The Motion
Judge added that the Respondent would have the opportunity to address its relevancy
arguments “at the hearing of the Application.”
[20]
On March 27, 2017, the Respondent disclosed the
open source information it was directed to produce by the Motion Judge. As for
the Notes, the Rule 14 Order was met with the Section 87 Motion in order to
protect these notes from disclosure. That motion was filed on March 31, 2017,
and led, as indicated at the outset of these Reasons, to the Applicants’ request
for the appointment of a special advocate.
[21]
It would appear that this is the first time a
motion under section 87 of the Act has been brought at the leave stage of a
judicial review proceeding initiated under the Act.
IV.
The Steps taken to Deal with the Special
Advocate Issue
[22]
In A.B. v Canada (Citizenship and
Immigration), 2012 FC 1140 [A.B.], Justice Simon Noël stated that in
order to properly exercise his or her discretion to appoint or not a special
advocate under section 87.1 of the Act, the presiding judge ought to (i) examine
the redactions, (ii) keep in mind the whole record, (iii) preside, if required,
over an ex parte, in camera hearing, (iv) ask for justification
for the redactions, (v) question the relevancy as presented, (vi) suggest and,
if necessary, order the unveiling of the information if it is not justified in
law and fact and (vii) read the decision subject to the judicial review
proceeding. It is only then, according to Justice Noël, that the standards of
fairness and natural justice will, in light of the knowledge gained from such
approach, be better understood and applied to the case at bar (A.B., at
para 9).
[23]
In accordance with that approach, I first became
apprised of the interview notes at issue by calling an in camera
hearing, which was held on May 11, 2017, in the presence of one counsel and the
deponent of the Classified Affidavit filed in support of the Section 87 Motion.
In the course of that hearing, I was able to ask the deponent questions
regarding the Notes and the grounds underlying the claim for non-disclosure. I
also heard submissions from counsel who, in the course of these submissions,
sought leave to file a supplemental Classified Affidavit. Leave was granted.
The same day, I held a case management teleconference with counsel for the
Applicants and the Respondent to apprise them of how the special advocate issue
would be dealt with.
[24]
On June 16, 2017, I held a second in camera
hearing with counsel and the deponent of the supplemental Classified Affidavit where,
again, I was able to ask questions regarding the grounds underlying the claim
for non-disclosure and hear submissions from counsel. Responses to undertakings
given at that hearing were provided at the end of July 2017, by way of an
additional Classified Supplemental Affidavit.
[25]
I then heard both parties’ submissions on the
special advocate appointment issue by way of a teleconference call held on
September 26, 2017.
V.
The Applicants’ Submissions
[26]
The Applicants claim that without the
appointment of a special advocate, they will be denied the opportunity to be
heard and to meet the case against them in respect of both the Section 87 Motion
and the underlying leave application of the Visa Officer’s decision. They say
that appointing a special advocate in this case “is the
only way for this Court to honour an inherent and basic principle of fairness
underlying the Canadian legal system.”
[27]
In particular, they submit that having no notion
of what is contained in the Notes impacts their ability not only to respond to
the section 87 motion but also to know the identity and agency of the person
who interviewed Mr. Mohammed. This in turn impacts their ability to know whether
their rights under the Canadian Charter of Rights and Freedoms (the Charter)
are engaged. More particularly, the Applicants contend that Mr. Mohammed’s Charter
rights would be engaged if Canadian state actors allowed Mr. Mohammed to be
interviewed by foreign state agents at the Canadian Consulate in Tirana under
the guise of gathering information as part of Mr. Mohammed’s application for
permanent residence. They add that this information would be all the more
important given Mr. Mohammed’s status as a former Guantanamo Bay detainee. Only
the presence of a special advocate can, in their view, prevent the introduction,
in the present proceedings, of information and evidence derived from Mr.
Mohammed’s detention at Guantanamo Bay that is neither reliable nor appropriate.
[28]
The Applicants further claim that the
undisclosed information in the present case is much more significant than in
the cases where the Court declined to appoint a special advocate since unlike
these cases, the application of the Charter to the present proceedings may
depend upon the redacted information, the secret affidavits filed in support of
the Section 87 Motion or information that may be derived from a
cross-examination of the authors of these affidavits. They note that in the
cases where the appointment of a special advocate was refused, the undisclosed material
was held to be minimal compared to the disclosed material whereas here, it is,
according to them, significant and extensive.
[29]
The Applicants also make the point that the
non-disclosure of the Notes impairs their ability to address, and the Court’s
ability to assess on a preliminary basis, the credibility concerns raised by
the Visa Officer. They claim that only a full set of the statements made by Mr.
Mohammed, which would include those made during the First Interview, can enable
them and the Court to properly address this issue.
[30]
Finally, the Applicants contend that the factors
set out in the seminal case of Baker v Canada (Citizenship and Immigration),
[1999] 2 S.C.R. 817 [Baker] weigh strongly in favour of a high degree of
procedural fairness in determining whether a special advocate should be
appointed in this case. They claim that unlike decisions made on applications
for permanent residence made outside Canada, which are administrative in nature
and attract a minimal degree of procedural fairness, decisions regarding the non-disclosure
of information and the appointment of a special advocate pursuant to sections
87 and 87.1 of the Act, are judicial in nature and require, therefore, greater
procedural protection. To the extent that this important distinction has been
overlooked, they say prior Federal Court decisions on such issues “misconceived the appropriate context within which to measure
the duty of procedural fairness owed to foreign nationals.”
VI.
Analysis
[31]
As this Court has stated on a number of
occasions, the Act’s special advocate provisions were introduced as a result of
the Supreme Court of Canada decision in Charkaoui v Canada (Citizenship and
Immigration), 2007 SCC 9 [Charkaoui]. In that case, the Supreme
Court determined that the challenges to the fairness of the process leading to
possible deportation and the loss of liberty associated with detention in the
context of security certificates issued under the Act raised important issues
of liberty and security and on that basis, concluded that section 7 of the Charter
was engaged. It held that to satisfy the section 7 analysis there must be
meaningful and substantial protection, the question being whether the basic
requirements of procedural fairness have been met, either in the usual way or
in an alternative fashion appropriate to the context, having regard to the
government’s objective and the interest of the person affected (Charkaoui,
at paras 18 and 27; see also: Malkine v Canada (Citizenship and
Immigration), 2009 FC 496, at para 20; Farkhondehfall
v Canada (Citizenship and Immigration), 2009 FC 1064, at para 28 [Farkhondehfall]; Kanyamibwa v Canada (Public Safety and
Emergency Preparedness), 2010 FC 66, at para 43).
[32]
The special advocate system was identified in Charkaoui
as an example of a less intrusive alternative to reconcile the demands of
national security with the procedural protections guaranteed by the Charter (Charkaoui, at paras 86-87).
[33]
In the wake of Charkaoui, Parliament made
it mandatory to appoint a special advocate in security certificate proceedings.
However, in other types of immigration cases, the appointment of special
advocates was left to the discretion of the presiding designated judge. In
these cases, as the wording of section 87.1 clearly contemplates, a special
advocate will only be appointed where the presiding designated judge is of the
opinion that considerations of fairness and natural justice require such
appointment in order to protect the interest of the applicant (Farkhondehfall, at para 29; Karakachian
v Canada (Citizenship and Immigration), 2009 FC 948, at para 24 [Karakachian];
Afanasyev v Canada (Citizenship and Immigration), 2010 FC 737, at para
24 [Afanasyev]).
[34]
There is therefore no absolute right to have a
special advocate appointed when an in camera hearing is requested under
section 87 of the Act (Dhahbi v Canada (Citizenship and Immigration),
2009 FC 347, at para 21). By the very wording of section 87, proceedings brought
under that provision, which are governed by the procedure outlined in section
83 of the Act applicable to security certificate matters, are explicitly not
subject to the obligation to appoint a special advocate.
[35]
Although of the utmost importance, the right to
know the case to be met is not absolute either. So far, Canadian courts have
declined to recognize notice and participation as invariable constitutional
norms. The approach to procedural fairness remains, as stated in Baker, context-specific
(Baker, at para 21; Charkaoui, at para 57).
[36]
The same can be said of the open-court principle
which, despite its fundamental nature in our legal system, remains subject to a
number of exceptions, national security considerations being one. As the Court
pointed out in Karakachian, at paragraph 21, “Canadian
courts have repeatedly recognized the constitutionality of in camera or ex parte
hearings where national security considerations so require.” The
Applicants correctly point out, however, that these exceptions need to be
carefully delineated and assessed on a case by case basis (Afanasyev, at
para 22).
[37]
With these principles in mind, this Court has proceeded
to identify a number of factors to consider in determining whether fairness and
natural justice require the appointment of a special advocate. These factors
include the degree of procedural fairness owed to the applicant, the extent of
non-disclosure, the materiality/probity of the information subject to
non-disclosure and the applicant’s ability to meet the case against him/her (Farkhondehfall, at paras 31 to 41; Jahazi v. Canada (Citizenship and Immigration),
2010 FC 242, at para 30 [Jahazi]).
[38]
It is trite law that the duty of procedural
fairness is flexible and variable, and depends on an
appreciation of the context of the particular statute and the rights affected (Baker,
at para 21; Farkhondehfall, at para 33). Again, a number of factors are relevant to determining how much
fairness will be owed in a given case: (i) the nature of the decision being
made and the process followed in making it; (ii) the nature of the statutory
scheme and the terms of the statute pursuant to which the body operates; (iii)
the importance of the decision to the individual affected; (iv) the
legitimate expectations of the person challenging the decision; (v) and the
choices of procedure made by the agency itself (Baker, at paras 23-27).
[39]
So far, this Court, when called upon to
determine whether considerations of fairness and natural justice require the
appointment of a special advocate in the context of a motion brought under
section 87 of the Act in cases where the underlying decision being challenged
is, as is the case here, that of a visa officer rejecting an application for
permanent residence submitted outside Canada, has always held that the duty of
fairness owed to the person affected by such a decision is at the lower end of
the spectrum (Karakachian, at para 26).
[40]
This is generally so because:
a)
The person affected - a non-citizen - has no
right to enter or remain in Canada;
b)
Contrary to what is the case of individuals
named in security certificates, that person is not facing detention or removal;
c)
The consequences for that person of the decision
dismissing his/her permanent residence application, although they may be
serious, do not engage his/her Charter rights; and
d)
Decisions made by visa officers granting or
rejecting an application for permanent residence submitted abroad are highly
discretionary.
(Jahazi, at para 32)
[41]
As indicated previously, the Applicants submit
that this approach to the Baker factors is incorrect as it fails to take
into account the appropriate context within which to measure the duty of
procedural fairness owed to foreign nationals facing an application for non-disclosure
pursuant to section 87 of the Act. They claim that the Baker factors
must be situated within the regime Parliament created for the discretionary
appointment of special advocates under section 87.1, which, in their view, signals
a clear intention that a special advocate be available to foreign nationals in
the Applicants’ position and entails the exercise of judicial, as opposed to
quasi-judicial or administrative, discretion. In other words, what matters is
the context leading to the decisions to be made under sections 87 and 87.1, not
the one leading to the decision denying the permanent residence application. That
context, the argument goes, calls for a high level of procedural protection
because of the judicial nature of the decisions to be rendered. I understand
the argument to mean that the appointment of a special advocate in a section 87
motion context should be the norm, and non-appointment the exception.
[42]
Accepting this submission would mean that I
would deviate from prior decisions of this Court on this
issue, something the principle of judicial comity discourages in order to prevent
the creation of conflicting lines of jurisprudence and promote, as a result,
certainty in the law (Apotex Inc. v Allergan Inc., 2012 FCA 308, at paras 43-48 [Apotex]; Alyafi v Canada (Citizenship and Immigration), 2014 FC 952, at
paras 42-45 [Alyafi]). As applied by this Court, this principle is
to the effect that the conclusions
of law reached by a judge “will
not be departed from by another judge unless he or she is convinced that the
departure is necessary and can articulate cogent reasons for doing so” (Apotex, at para 48). Departure may
be deemed necessary when the judge is convinced that the decision of the other
judge is wrong (Apotex, at para 47; Alyafi, at para 44).
[43]
Here, I respectfully see no reason to depart
from what has been so far, for this Court, a clear and non-conflicting line of
authority. My understanding of the appropriate context that must inform the
assessment of the Baker factors in a situation like the present one differs
from that of the Applicants. First, the Applicants’ contention that Parliament
clearly intended that a special advocate be available to foreign nationals in
their position needs to be nuanced. As I pointed out earlier, Parliament has
expressly remove the obligation to appoint a special advocate (and to provide a
summary of the non-disclosed information) in the context of motions brought
under section 87 of the Act. This means that, as a general rule, such motions
will be considered without the participation of a special advocate. As we have
seen, such participation can only occur in instances where a designated judge
of this Court is of the opinion that considerations of fairness and natural
justice requires the appointment of a special advocate so as to protect the
interests of the applicant. This signals, in my view, a less generous approach
to participatory rights than the one put forward by the Applicants.
[44]
Second, the discretion conferred on the Court by
section 87.1 is aimed at protecting the interests of the permanent resident or
foreign national. This can only be, ultimately, the applicant’s interests in
the outcome of the underlying judicial review proceeding and in his/her ability
to meet the case against him/her in this respect. When, as here, the case to
meet involves procedural fairness issues and concerns the rejection of an application
for permanent residence submitted abroad, the proper context is one where, as
determined by the Federal Court of Appeal in Canada
(Citizenship and Immigration) v Khan, 2001 FCA 345, at
para 31, the duty of fairness owed to the foreign national is at the low end of the spectrum. This is, no doubt, a relevant
contextual consideration as it is informative of the nature and importance of
the rights at stake.
[45]
Such consideration is not ousted simply because the
Court is called upon to decide, as an interlocutory matter to the underlying
main proceeding, whether some information in the case should be withheld from
disclosure and whether, in so deciding, the appointment of a special advocate
is required in order to protect the interests of the applicant. In such
instances, the participatory rights of the applicant, as we have seen, are
precisely curtailed: they are not established as a statutory right, contrary to
what the Act provides for security certificate proceedings, they are left to
the discretion of the Court, and they are very much dependant on the nature and
context of the underlying judicial review application.
[46]
The Applicants further claim that the Baker
factors militate in favor of a broader content of procedural fairness because
their Charter rights are potentially engaged by the fact the First
Interview may have been a pretext allowing foreign state agents to interview Mr.
Mohammed under the guise of gathering information as part of his application
for permanent residence. This is a real possibility, they contend, because of
Mr. Mohammed’s status as a former Guantanamo Bay detainee.
[47]
Having reviewed the notes of the First
Interview, I can only say that this apprehension is unfounded.
[48]
The Applicants also contend that the Rule 14
Order created a legitimate expectation that someone would be allowed to stand
in the place of their counsel and advocate for their interests in disclosure in
the Section 87 Motion so as to preserve the rule of law and the interests of
justice. On the surface, one could say that the Rule 14 Order did indeed create
a legitimate expectation that the Notes would be made available to the Court
and the Applicants. However, in the immigration context, that Order was only
one step in the judicial process that could lead to the disclosure of these
notes given the national security considerations at play.
[49]
Although it is unfortunate that the Section 87 Motion
was not brought earlier in the process, it is properly before the Court and
poses the important question of whether the Rule 14 Order can be enforced in
light of these considerations. Any legitimate expectation arising from that
Order must therefore be tempered by the possibility that a motion under section
87 of the Act be brought in order to protect the Notes from disclosure. The
Applicants, as was the Motion Judge, were made aware of that inevitable possibility
when the Respondent filed its motion for reconsideration. Not being a
designated judge, the Motion Judge had no authority to pursue the matter
further and deal with that aspect of the Applicants’ request for disclosure of
the Notes, which is very much part of the regime set out by Parliament for the
processing of judicial review proceedings initiated under the Act.
[50]
In other words, rule 14 of the CIRP Rules cannot
be read and applied in isolation. The Rule 14 Order was therefore not the end
of the road leading to the disclosure or non-disclosure of the impugned
interview notes. The Applicants knew - or ought to have known - this. I
therefore fail to see how that Order could reasonably have created a reasonable
expectation that the Notes would be disclosed or that a special advocate would
be appointed.
[51]
In sum, I see no reason to depart from this
Court’s jurisprudence applying the Baker factors to requests for the
appointment of a special advocate made by failed permanent residence applicants
residing abroad in the context of motions brought under section 87 of the Act.
In other words, I do not accept the expanded application of these factors to
the case at hand, as advocated by the Applicants.
[52]
This brings me to the other factors set out by
the Court in considering a request made under section 87.1 of the Act. As I
have already indicated, these factors are the extent of non-disclosure, the
materiality/probity of the information subject to non-disclosure and the
applicant’s ability to meet the case against him/her. The Court, in Farkhondehfall, pointed out that not one of
these factors will necessarily be determinative, the Court’s task being “to balance all of the competing considerations in order to
arrive at a just result” (Farkhondehfall, at para 31).
[53]
The Applicants claim that compared to the other
cases where the Court has declined to appoint a special advocate under section
87.1 because the redacted information was minimal or insignificant, the
non-disclosure in this case is far more significant and extensive. In Jahazi,
Justice Yves de Montigny, now a judge of the Federal Court of Appeal, reminded
that the extent of non-disclosure was not merely a quantitative exercise but
also required the significance of the redacted information to be taken into
account.
[54]
Here, I note that this factor can hardly be
assessed from a quantitative standpoint as we are at the leave stage of the
Applicants’ judicial review proceedings. As such, the Court does not have
before it, contrary to what was the case in all the other cases where the Court
was seized of concurrent sections 87 and 87.1 motions, the Certified Tribunal
Record [the CTR] which, according to rule 17 of the CIRP Rules will have to be
filed by the “Tribunal” once leave is granted.
The CTR is comprised, among other things, of “all
papers relevant to the matter that are in the possession or control of the
tribunal” and of “any affidavits, or other
documents filed during any such hearing.” For example, the open source
information relied upon by the Visa Officer in making her decision, which was
disclosed to the Applicants pursuant to the Rule 14 Order, would presumably be
part of the CTR and would account for 70 pages of that record.
[55]
From a significance standpoint, Mr. Mohammed
admits that the same topics were discussed at both the First and Second Interviews.
In the affidavit he signed in response to the section 87 Motion, Mr. Mohammed
offers a detailed account of his recollection of the First Interview. Therefore,
this is not a case where an applicant ignores the information which is being
refused to him, but rather ignores its possible interpretation. In Karakachian,
Justice de Montigny held that such a situation “[did]
not strike [him] as a valid ground for appointing a special advocate” (Karakachian,
at para 27). I respectfully agree with Justice de Montigny all the more so that
in the present case, the Visa Officer did not consider the Notes in making her
decision and that the Respondent does not intend to rely on them to defend that
decision.
[56]
For the same reasons, I find that the
materiality/probity of the information subject to non-disclosure does not require
appointing a special advocate. When the Rule 14 Order and the Order dismissing
the Respondent’s motion for reconsideration are read together, it appears to me
that the Motion Judge, despite evidence that the Notes were neither before the
Visa Officer nor considered by her in rendering her decision, took a broad view
of relevancy so as to leave the final word on this issue to the leave judge.
This, I believe, is what she meant when she wrote in her Order denying the
motion for reconsideration that the Respondent would have the opportunity to
address its “relevancy arguments” at the “hearing of the Application,” which, in the immigration
context, can only be a reference to the leave stage of the application.
[57]
Not having been seen or considered by the Visa
Officer when she made her decision and the Respondent having indicated that it
does not intend to rely on them to defend that decision, the Notes, although “relevant” in the sense that they relate to an
interview that was held in the course of the processing of Mr. Mohammed’s
permanent residence application, can hardly be characterized as being “material,” that is as
permitting, in such context, the quashing of the decision (Yadav v Canada
(Citizenship and Immigration), 2010 FC 140 at para 37; see also El Dor
v Canada (Citizenship and Immigration), 2015 FC 1406; Aryaie v Canada
(Citizenship and Immigration), 2013 FC 469 at paras 23-27).
[58]
The Applicants insist that the Notes are
material to the question of whether their Charter rights are engaged. As
I already indicated, this argument is based on an apprehension which has no
basis in the facts of this case.
[59]
Finally, I am satisfied that the non-disclosure
of the Notes, should the Section 87 Motion be granted, would not prevent the
Applicants from availing themselves of all means against the impugned decision.
As the Respondent correctly points out, they are quite aware of the reasons why
Mr. Mohammed was found inadmissible for being a member of a terrorist
organization. Both the Visa Officer’s decision letter and the notes of the
Second Interview show the basis of the Visa Officer’s inadmissibility concerns
regarding Mr. Mohammed’s membership in a terrorist organization. They indicate
that Mr. Mohammed stated that he went to Afghanistan and ended up living three
months with a group of individuals who were fighting for the political
objective of the independence of Turkistan; that the group was armed and that
he saw Kalashnikovs in the cave where he lived with his group; that this group
was maybe named ETIM by the American authorities; that he shared the group’s
political vision and lived and travelled with the group for three months.
[60]
The Visa Officer’s credibility concerns are also
cogently expressed and detailed in the decision letter as well as in the notes
of the Second Interview.
[61]
In other words, I am satisfied that the
Applicants have had access so far to the gist of the information on which the
Visa Officer relied to deny Mr. Mohammed a permanent resident visa. This, in my
view, allows them to meet the case against them (Karakachian, at para
28). I believe it is also important to underscore that, at this stage of their
judicial review proceeding, the Applicants only need to show that their
challenge of the Visa Officer’s decision raises a fairly arguable case. The
Applicants’ ability to meet the case against them must therefore be measured
against a significantly lower threshold than the one applicable once leave is
granted. The combined effect of these considerations does not support, in my
view, the claim for the appointment of a special advocate in the circumstances
of this case.
[62]
Being satisfied that no injustice will result to
the Applicants, I find that the appointment of a special advocate is not
required to ensure procedural fairness before this Court.
[63]
The Section 87 Motion itself will be dealt with
in a separate Order.
THIS COURT ORDERS that the Applicants’
motion for the appointment of a special advocate is dismissed.
“René LeBlanc”
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