Yao v. Canada (Minister of Citizenship and Immigration), 2003 FCT 741

Date: 20030612

Docket: IMM-1571-00

Citation: 2003 FCT 741

Ottawa, Ontario, Thursday the 12^th day of June 2003

PRESENT:      The Honourable Madam Justice Dawson

BETWEEN:

                                                               HAIQUAN YAO

                                                                                                                                             Applicant

                                                                         - and -

                       THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                          Respondent

                                          REASONS FOR ORDER AND ORDER

DAWSON J.

[1]                 On February 16, 2000, a visa officer at the Canadian Consulate General in New York determined that there were reasonable grounds to believe that Mr. Yao is, or was, a member of an organization that there are reasonable grounds to believe is, or was, engaged in acts of espionage or subversion against democratic government, institutions, or processes as they are understood in Canada. Mr. Yao was therefore a member of the class of persons who are inadmissible to Canada, described in clause 19(1)(f)(iii)(A) of the Immigration Act, R.S.C. 1985, c. I-2 ("former Act"). The visa officer also concluded that Mr. Yao had not satisfied him, as the Minister's delegate, that Mr. Yao's admission to Canada would not be detrimental to Canada's national interest. Therefore, Mr. Yao did not meet the exception set out in paragraph 19(1)(f) of the former Act.

[2]                 These are my reasons for allowing the Minister's application under section 87 of the Immigration and Refugee Protection Act, S.C. 2002, c. 27 ("Act") for the non-disclosure of information considered and relied upon by the visa officer, and for subsequently dismissing the application for judicial review.

BACKGROUND FACTS

[3]                 Mr. Yao is a citizen of the People's Republic of China ("PRC"). He submitted his application for permanent residence in Canada in the Independent Category on the basis that he had trained and worked as a newspaper editor and journalist.

[4]                 Mr. Yao was first interviewed on February 1, 1996. At that time his application was conditionally approved pending medical, criminal and security checks. As result of the security checks, the Canadian Security Intelligence Service ("Service" or "CSIS") interviewed Mr. Yao and his wife in March of 1997 and again in September of 1997.

[5]                 At the first interview with CSIS representatives, Mr. Yao advised that he had been educated at the Institute of International Relations ("BIRI") and that following his studies he was assigned to the People's Daily newspaper ("PD") to work in New York. He stated that he was chosen to work in New York because of his language skills, his maturity and his loyalty. Before being posted abroad he was given a one month political indoctrination. He then came to the United States as a junior journalist and reported on United Nations' activities in New York, especially economic affairs. Mr. Yao attended local trade fairs with Chinese economic delegations. He reported on the delegations of lesser importance. He conducted interviews with members of the Chinese emigre community, with fellow journalists, and with diplomats within the United Nations. Mr. Yao indicated that he was not "targeting" anyone, but rather tried to develop friendships with U.S. citizens whom he met at various functions. Mr. Yao also indicated that his reports focussed primarily on Taiwan, and all information regarding Taiwan was sent to Beijing. When questioned as to the Ministry of State Security ("MSS") Mr. Yao indicated that he was unaware of any MSS involvement in the PD.

[6]                 At the second CSIS interview Mr. Yao insisted that he was not a MSS officer, although he felt that the MSS had, initially, an interest in him. With respect to his posting to the United States, Mr. Yao claimed that he suspected that his superior was a MSS officer, but he had no evidence of this. Mr. Yao stated that he handled all PD correspondents transiting in New York, and that he had heard that a number of them were affiliated with the MSS, but that he did not know of any himself. The only name he could recall was that of an individual already known by authorities to be a defector. Mr. Yao said he did not know the defector was a MSS officer until after his defection. Mr. Yao denied any discussion at the first interview with respect to whether the focus of the PD was directed towards U.S.-Taiwan issues. Mr. Yao refused to provide details of friends and relatives in Canada, stating that he would rather not immigrate to Canada if it meant he had to answer such personal questions. He refused to write his name in Chinese characters.

[7]                 In January of 1999, CSIS issued a brief concerning Mr. Yao. The brief stated that information the Service possessed led it to believe that Mr. Yao is a member of the MSS, an organization that is, or was, engaged in acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada. The brief outlined what had transpired at the interviews, as set out above. This brief and a report on the MSS prepared by CSIS were provided to Citizenship and Immigration Canada and then forwarded to the program manager of information services in New York.

[8]                 As a result, by letter dated November 16, 1999, the visa officer advised Mr. Yao that he was in possession of information which provided reasonable grounds to believe that Mr. Yao was a member of the inadmissible class of persons described in clause 19(1)(f)(iii)(A) of the former Act. The letter went on to state that if Mr. Yao wished to proceed with his application for permanent residence he would be required to undergo another personal interview at which time he would have the opportunity to offer evidence to disabuse the visa officer of this concern or to present any evidence which Mr. Yao believed would satisfy the Minister that Mr. Yao's admission would not be detrimental to the national interest.

[9]                 In February of 2000, Mr. Yao attended his final interview at the Canadian Consulate General in New York.

[10]            During that interview Mr. Yao wrote his name in Chinese letters upon request, and denied refusing to do so in the past. Mr. Yao did admit that he had possibly refused to disclose the name of his closest friend whom he shared an apartment with, but he said this was because his friend was also applying for citizenship in Canada, and Mr. Yao did not want to ruin his friend's chances.

[11]            Mr. Yao failed to convince the visa officer that there were not reasonable grounds upon which to believe that Mr. Yao was, or had been, a member of the MSS. Nor was Mr. Yao able to satisfy the visa officer that his permanent residence in Canada would not be detrimental to the national interest. Accordingly, his application was refused.

[12]            Mr. Yao denies that he was or ever has been a member of the MSS, and denies that he has ever done work on its behalf. Mr. Yao states that he is unaware of the functions, duties, essential nature, affairs, purpose or mandate of the MSS.

[13]            All of this information is contained in the public record in this proceeding.

THE CONFIDENTIAL INFORMATION

[14]            Prior to the hearing of the application for judicial review, the Minister applied pursuant to subsection 87(1) of the Act for the non-disclosure of certain information considered by the visa officer when processing Mr. Yao's application for entry. Such information was blacked out in the certified tribunal record filed in court (the "confidential information").

[15]            Section 87 of the Act provides:

[16]            Section 78 of the Act, referred to in subsection 87(2), is as follows:

[17]            Pursuant to the Minister's application I examined the confidential information, examined the affidavit material filed for the purpose of establishing that disclosure of the confidential information would be injurious to national security or to the safety of any person, and heard the in camera submissions of counsel for the Minister.

[18]            Subsection 87(1) of the Act is new, but it is similar to subsection 82.1(10) of the former Act which provided:

[19]            The significant difference between the two provisions is that subsection 87(1) of the Act is broader, allowing the Minister to make an application for the non-disclosure of "any information" on grounds that its disclosure would be injurious to national security or the safety of any person. The prior provision was limited to information "obtained in confidence from the government or an institution of a foreign state or from an international organization of states or an institution thereof".

[20]            Notwithstanding that difference, I am satisfied that generally the jurisprudence which developed under the former Act remains relevant. Thus, when considering whether disclosure would be injurious to national security or to the safety of persons it is appropriate to apply the test propounded by Mr. Justice Addy in Henrie v. Canada (Security Intelligence Review Committee) (1988), 53 D.L.R. (4^th) 568; affirmed 88 D.L.R. (4^th) 575. There, Mr. Justice Addy wrote at pages 578 and 579:

[...] in security matters, there is a requirement to not only protect the identity of human sources of information but to recognize that the following types of information might require to be protected with due regard of course to the administration of justice and more particularly to the openness of its proceedings: information pertaining to the identity of targets of the surveillance whether they be individuals or groups, the technical means and sources of surveillance, the methods of operation of the service, the identity of certain members of the service itself, the telecommunications and cypher systems and, at times, the very fact that a surveillance is being or it not being carried out. This means for instance that evidence, which of itself might not be of any particular use in actually identifying the threat, might nevertheless require to be protected if the mere divulging of the fact that C.S.I.S. is in possession of it would alert the targeted organization to the fact that it is in fact subject to electronic surveillance or to a wiretap or to a leak from some human source within the organization.

It is of some importance to realize than an "informed reader", that is, a person who is both knowledgeable regarding security matters and is a member of or associated with a group which constitutes a threat or a potential threat to the security of Canada, will be quite familiar with the minute details of its organization and of the ramifications of its operations regarding which our security service might well be relatively uninformed. As a result, such an informed reader may at times, by fitting a piece of apparently innocuous information into the general picture which he has before him, be in a position to arrive at some damaging deductions regarding the investigation of a particular threat or of many other threats to national security. He might, for instance, be in a position to determine one or more of the following: (1) the duration, scope intensity and degree of success or of lack of success of an investigation; (2) the investigative techniques of the Service; (3) the typographic and teleprinter systems employed by C.S.I.S.; (4) internal security procedures; (5) the nature and content of other classified documents; (6) the identities of service personnel or of other persons involved in an investigation.

[21]            In arguing that the confidential information should remain confidential in the case at bar, the Minister argued in its public motion record that if the confidential information was released it could result in a reader being in a position to determine or learn one or more of the following:

(a)            the duration, scope, intensity and degree or success or lack of success of an investigation;

(b)            the investigative techniques of the foreign state;

(c)            the nature and content of the investigation;

(d)            the identities of the individuals working for the foreign states or of other persons involved in an investigation;

(e)            it could identify the techniques and methodology of the investigation;

(f)             it could identify the degree of success or lack of success of the investigation;

(g)            it could jeopardise the lives of the people involved;

(h)            it could identify the relationships between Canadian government institutions and foreign governmental institutions which could be jeopardised by the disclosure of this information since foreign governments would not be prepared to enter into those kinds of arrangements in the future;

(i)             it could also identify individuals who are the subject or targets of the investigation by Canadian and foreign governments.

[22]            Having reviewed the confidential information and the confidential affidavit filed in support of this motion, I am satisfied that the disclosure of the confidential information would be injurious to Canada's national security or the safety of any person because, if released, it could result in an informed reader learning one or more of the matters set out above. In the result, I ordered that the confidential information and the confidential affidavit relied upon by the Minister not be disclosed and are to remain confidential.

THE DECISION THAT MR. YAO IS A MEMBER OF AN INADMISSIBLE CLASS

(i) The Issues

[23]            Three issues were pursued on Mr. Yao's behalf in oral argument. They were:

a)          Did the visa officer err in concluding there were reasonable grounds to believe Mr. Yao is, or was, a member of the MSS?

b)          Did the visa officer err by failing to recommend Mr. Yao for Ministerial relief?

c)          If the application is allowed, should the matter be remitted for re-determination in accordance with the provisions of the former Act?

[24]            The last issue was not raised by the applicant until two business days before the oral hearing of the judicial review, when it was raised in correspondence between counsel. Counsel for the Minister objected to the issue being dealt with by the Court and relied upon the decision of the Federal Court of Appeal in Sandhu v. Canada (Minister of Citizenship and Immigration) (2000), 258 N.R. 100 to argue that counsel should not be permitted to raise at the hearing arguments not raised in the memorandum of fact and law.

[25]            At the hearing, I reserved my decision on this objection and heard argument on the substantive issue of the nature of relief available.

(ii) The Relevant Legislation

[26]            Clause 19(1)(f)(iii)(A) of the former Act was as follows:

(iii) Did the visa officer err when he decided there were reasonable grounds for believing that Mr. Yao is, or was, a member of an organization engaged in espionage?

[27]            Mr. Yao did not challenge the conclusion of the visa officer that there were reasonable grounds to believe that the MSS is, or was, engaged in espionage as described in the former Act. Therefore, it is only necessary to consider the conclusion that there were reasonable grounds upon which to believe that Mr. Yao is, or was, a member of the MSS.

[28]            The standard of proof required to establish reasonable grounds for a belief is a standard of proof that connotes "a bona fide belief in a serious possibility based on credible evidence". See: Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.) at paragraph 60. It is not necessary for the Minister to establish either actual membership in an espionage agency, or actual acts of espionage.

[29]            In the present case, there was evidence in the public record before the visa officer that:

i)           Mr. Yao was educated at the BIRI. The MSS is known to employ its graduates;

ii)          Mr. Yao is fluent in English. The MSS seeks people who speak English;

iii)          Immediately following his studies, Mr. Yao was assigned to the PD without requesting such assignment;

iv)         The PD is known to have MSS operatives posing as journalists working for the MSS;

v)          During his interviews with CSIS, Mr. Yao was uncooperative. While initially he completely denied any knowledge of MSS activities, when challenged he stated that he suspected his superior was a member of the MSS and later stated that he had heard that a number of PD correspondents were associated with the MSS;

vi)         Mr. Yao denied stating at his first interview with CSIS that his reports focussed primarily on Taiwan, and that all information regarding Taiwan was sent to Beijing;

vii)         During the time Mr. Yao was posted in New York he interviewed members of the local Chinese community. A major task of MSS officers overseas is to monitor dissident movements. This includes the infiltration of groups and the development of profiles on group members to determine how serious these individuals are in their beliefs, and how much of a threat they pose to the PRC; and

viii)        During his interview with CSIS, Mr. Yao claimed that he would rather forego obtaining Canadian status rather than answer questions considered by CSIS to be routine. This led CSIS to question the true motive for Mr. Yao's application for permanent residence to Canada.

[30]            In addition to this evidence, the visa officer had before him the confidential information.

[31]            On the basis of the totality of the material before the visa officer, I am satisfied that the visa officer's conclusion that Mr. Yao was inadmissible to Canada under clause 19(1)(f)(iii)(A) of the former Act was neither unreasonable nor patently unreasonable. There was credible evidence before the officer upon which he could form a bona fide belief in a serious possibility of membership. The evidence as a whole supported more than a flimsy suspicion. In so concluding I rely upon the confidential information, together with the fact that in addition to fitting the profile of a member of the MSS, Mr. Yao gave significantly conflicting answers about the involvement of the MSS in the PD on the two occasions he was interviewed by CSIS.

(iv) Did the visa officer err by failing to recommend Mr. Yao for Ministerial relief?

[32]            Mr. Yao was advised by the visa officer's letter to him of November 16, 1999 that the final interview afforded him the opportunity to provide evidence with respect to a Ministerial exemption. Mr. Yao does not assert that he provided any such information, but rather states that because he has the ability to successfully establish himself in Canada, he should be admitted. The CAIPS notes reflect that when the visa officer asked Mr. Yao for any additional information, Mr. Yao simply said that his strongest claim is that he has two children, he is forty years old, and he is now focussed on his children.

[33]            Paragraph 19(1)(f) of the former Act provided that the Ministerial exemption exists for those "who have satisfied the Minister that their admission would not be detrimental to the national interest". The onus is on an applicant to satisfy the Minister or his delegate of this.

[34]            I find no reviewable error in the decision of the visa officer. Based on the dearth of evidence provided by Mr. Yao, the visa officer could not be satisfied that the admission of Mr. Yao would not be detrimental to the national interest.

(v) The Scope of Relief Available

[35]            As I have found no reviewable error, the application for judicial review will be dismissed. It is therefore not necessary for me to deal with Mr. Yao's request that any redetermination be conducted under the former Act. While significant doubt exists in my mind as to whether an order remitting this matter for redetermination in accordance with the former Act would be consistent with the transitional provisions under the Act and its associated regulations, the argument before me was not well-developed. I therefore refrain from expressing what would, in any event, be an obiter view.

[36]            Counsel posed no question for certification and no question arises on this record.

ORDER

[37]            IT IS HEREBY ORDERED THAT:

The application for judicial review is dismissed.

"Eleanor R. Dawson"

                                                                                                                                                    Judge                        

                                               FEDERAL COURT OF CANADA

                                                             TRIAL DIVISION

                        NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                IMM-1571-00

STYLE OF CAUSE: HAIQUAN YAO V. MCI

PLACE OF HEARING:         TORONTO, ONTARIO

DATE OF HEARING:           January 28, 2003 and May 20, 2003

REASONS FOR ORDER

AND ORDER:                         Hon. Madam Justice Dawson

DATED:                                   June 12, 2003

APPEARANCES:

Mr. Matthew Moyal                               FOR THE APPLICANT

January 28 and May 20, 2003

Ms. Marissa Bielski                                 FOR THE RESPONDENT

January 28, 2003

Ms. Marissa Bielski

Ms. Pamela Larmondin              FOR THE RESPONDENT

January 28 and May 20, 2003

SOLICITORS OF RECORD:

Moyal and Moyal

Barristers and Solicitors

Toronto, Ontario                                                  FOR THE APPLICANT

Morris Rosenberg

Deputy Attorney General of Canada                   FOR THE RESPONDENT