Al Sayegh (Re), docket DES-1-97

     DES-1-97

BETWEEN:

IN THE MATTER OF a certificate in

relation to Hani Abd Rahim AL SAYEGH;

AND IN THE MATTER OF the referral of

that certificate to the Federal Court of

Canada pursuant to paragraph 40.1(3)(a)

of the Immigration Act, R.S.C. 1985, c. I-2;

     REASONS FOR ORDER

     [Delivered from the Bench at Ottawa, Ontario

     on Monday, May 5, 1997]

McGILLIS, J.

         At the outset, I wish to place the present proceedings in context by reviewing briefly the legislative scheme, its purpose, and the role of the Court.

         In terms of the safety and security of our country, the Crown has always enjoyed the prerogative right at common law "...to determine that the continued presence in Canada of an alien, subject to a deportation order, would not be conducive to the public good."¹ That traditional prerogative right has been legislatively enshrined over the years in various provisions of the Immigration Act, R.S.C. 1985, c. I-2 as amended. At present, sections 39 and 40.1 of the Act provide the Minister of Citizenship and Immigration and the Solicitor General of Canada with specific powers, duties and obligations concerning situations involving the safety and security of Canada. In the decision Ahani v. Canada, [1995] 3 F.C. 669; aff'd (1996), 201, N.R. 233 (F.C.A.), I described the purpose of those provisions, and summarized the procedure to be followed under section 40.1 in the following terms, at pages 680 to 685:

In the 1988 amendments to the Part III Exclusion and Removal provisions in the Immigration Act, Parliament enacted two completely separate and distinct legislative schemes, under the heading "Safety and Security of Canada", governing the removal from Canada of persons with criminal or terrorist backgrounds or propensities: sections 39 [as am. by S.C. 1992, c. 49, s. 29] and 40 [as am. idem,

s. 30] for permanent residents and sections 40.1 and 40.2 [as enacted idem, s. 32] for persons other than Canadian citizens and permanent residents. In the 1992 amendments to the Immigration Act, Parliament adopted section 38.1 [as enacted idem, s. 28], which explained the legislative purposes of sections 39 to 40.1. In particular, Parliament indicated that the express purposes of these statutory provisions were:

38.1...

(a) to enable the Government of Canada to fulfil its duty to remove persons who constitute a threat to the security or interests of Canada or whose presence endangers the lives or safety of persons in Canada;

(b) to ensure the protection of sensitive security and criminal intelligence information; and

(c) to provide a process for the expeditious removal of persons found to be members of an inadmissible class referred to in section 39 or 40.1.

A review of section 38.1 of the Immigration Act further confirms that, in enacting different legislative procedures for permanent residents and for persons who are not Canadian citizens or permanent residents, Parliament expressly recognized that the latter group have no right to come into or to remain in Canada, while permanent residents have only a qualified right to do so.

In enacting section 40.1 of the Immigration Act, Parliament created a mechanism for the expeditious review by an independent judicial arbiter of the reasonableness of the decision of two separate ministers to issue a certificate that a person, other than a Canadian citizen or permanent resident, is a member of an inadmissible class of persons for various specified reasons, including terrorism. Under the scheme established in section 40.1, the Minister and the Solicitor General are required to make their decision that a person is a member of an inadmissible class solely on the basis of "security or criminal intelligence reports received and considered by them." The filing of the ministerial certificate with an immigration officer or other specified officials triggers various statutory procedures, including the mandatory detention of the named person and the reference of the certificate to this Court for a determination of its reasonableness. Within three days of the filing of the certificate, the Minister must "cause a notice to be sent" informing the named person that a certificate has been filed and that, following a reference to this Court, a deportation order may be made against him. Within seven days of the reference of the certificate to this Court, the Chief Justice or a judge designated by him (designated judge) must examine, in camera, the security or criminal intelligence reports considered by the Minister and the Solicitor General "and hear any other evidence or information that may be presented" on their behalf. Since the Minister and the Solicitor General are required to make their decisions solely on the basis of the security or criminal intelligence reports, the designated judge knows exactly what information was considered by them prior to the issuance of the certificate. The security or criminal intelligence reports are the only evidence when the designated judge must hear in camera. In the event that "other evidence or information" is to be tendered, the Minister or Solicitor General may request that "all or part of such evidence or information" be heard by the designated judge in the absence of the named person and his counsel. The designated judge may only accede to this ministerial request where he forms the opinion that the disclosure of the evidence or information "would be injurious to national security or to the safety of persons."

     ...

Following the completion of his examination of the security or criminal intelligence reports and the hearing, if any, of other evidence or information in the absence of the named person and his counsel, the designated judge has a heavy burden to provide disclosure in order to permit the named person to challenge the reasonableness of the certificate issued by the Minister and the Solicitor General. In particular, the designated judge must provide the named person with a statement summarizing the information available "as will enable [him] to be reasonably informed of the circumstances giving rise to the issue of the certificate." In preparing the statement of information for the named person, the designated judge must assess the right of the named person to be "reasonably informed of the circumstances ... having regard to whether, in [his] opinion ..., the information should not be disclosed on the grounds that the disclosure would be injurious to national security or to the safety of persons."

     ...

The designated judge must also bear in mind that the "reasonably informed" standard which Parliament chose to adopt in relation to persons other than Canadian citizens and permanent residents is lower than the standard applicable to permanent residents in the parallel scheme enacted in section 39 of the Immigration Act. With respect to permanent residents, Parliament provided in subsection 39(6) of the Immigration Act that a permanent resident must be provided with "a statement summarizing such information... as will enable the person to be as fully informed as possible of circumstances giving rise to the report."

The designated judge must also provide the named person with a reasonable opportunity to be heard.

     ...

At the conclusion of the review, the designated judge must determine whether the certificate is reasonable on the basis of the evidence and information available. If the designated judge finds that the certificate is not reasonable, he must quash it. The determination made by the designated judge is not subject to appeal or review by any court. A certificate which has been reviewed and not quashed by a designated judge constitutes "conclusive proof" that the named person is a member of the inadmissible class or classes described in it.

     ...

The proceedings under section 40.1 of the Immigration Act are directed solely and exclusively to determining the reasonableness of the ministerial certificate identifying the named person as a member of certain inadmissible classes of persons. This section of the legislation does not deal with the question of deportation. [Footnotes omitted]

         Furthermore, the question of the reasonableness of the certificate is purely and simply an immigration matter; the principles, policies and concepts underlying the criminal law have no application in proceedings of this nature.

         I also noted in Ahani v. Canada, supra, at page 694, that "... in enacting section 40.1 of the Immigration Act, Parliament developed a procedure in which it attempted to strike a reasonable balance between the competing interests of the individual and the state." Indeed, as Sopinka, J. observed in Chiarelli v. Canada, [1992] 1 S.C.R. 711, at page 742, in relation to the substantively similar provisions in the predecessor to section 39 of the Immigration Act, "Parliament could have simply provided that a certificate could issue without any hearing."

         Having placed the present proceedings in their proper legislative context, I shall now proceed to deal with the question before me.

         On March 17 and 18, 1997, the Minister of Citizenship and Immigration and the Solicitor General of Canada respectively signed a certificate under section 40.1 of the Immigration Act, indicating that Hani Abd Rahim Al Sayegh, a person other than a Canadian citizen or permanent resident, is a person described in paragraphs 19(1)(c.1)(ii), 19(1)(e)(iii), 19(1)(e)(iv)(C), 19(1)(f)(iii)(B) of the Act. On March 20, 1997, the Minister of Citizenship and Immigration referred the certificate to the Court, under paragraph 40.1(3)(a) of the Immigration Act, for a determination as to whether the certificate should be quashed.

         In accordance with paragraph 40.1(4)(a) of the Immigration Act, I conducted an in camera hearing within seven days of the reference of the certificate to the Court.

         On March 27, 1997, I signed an Order requiring, among other things, that a Statement Summarizing the Information heard in camera be served forthwith on Mr. Al Sayegh, under paragraph 40.1 (4)(b) of the Immigration Act, in order to enable him to be reasonably informed of the circumstances giving rise to the issue of the certificate. I also indicated in my Order that a portion of the information or evidence examined or heard in camera would not be disclosed to Mr. Al Sayegh on the grounds that the disclosure would be injurious to national security or to the safety of persons.

         On May 5, 1997, I provided Mr. Al Sayegh with his opportunity to be heard in this matter, within the meaning of paragraph 40.1(4)(c) of the Act.

         At the outset of the hearing, Mr. Al Sayegh elected, through his counsel, not to testify before me. Given the very detailed information disclosed to Mr. Al Sayegh alleging his direct participation in the terrorist bombing of the Al Khobar Towers in Saudi Arabia on June 25, 1996, his membership in the Saudi Hezbollah and his false refugee claim in Canada, his testimony in this matter was crucial. His decision not to testify before me therefore constitutes a failure on his part to avail himself of his opportunity to be heard under paragraph 40.1(4)(c) of the Immigration Act.

         In the circumstances, I have no hesitation whatsoever in concluding, on the basis of the evidence and information available to me, that the certificate signed by the Minister of Citizenship and Immigration and the Solicitor General of Canada is reasonable.

OTTAWA

Judge

__________________

¹      Chiarelli v. Canada, [1992] 1 S.C.R. 711, 740.