Date: 20100625
Docket: IMM-5381-09
Citation: 2010 FC 696
Ottawa, Ontario, June 25,
2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
AFZAL RANA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
An
immigration officer concluded that Mr. Rana is inadmissible to Canada as he was
a member of the Muttahida Quami Movement (formerly known as Mohajir Quami
Movement) (MQM) which she had reasonable grounds to believe had engaged in
terrorist activities in Pakistan. This is the judicial review of that decision.
[2]
The
relevant parts of s. 34(1) of the Immigration and Refugee Protection Act
provide:
|
34. (1) A
permanent resident or a foreign national is inadmissible on security grounds
for
(a) engaging in an
act of espionage or an act of subversion against a democratic government,
institution or process as they are understood in Canada;
(b) engaging in or
instigating the subversion by force of any government;
(c) engaging in
terrorism;
[…]
(f) being a member
of an organization that there are reasonable grounds to believe engages, has
engaged or will engage in acts referred to in paragraph (a), (b)
or (c).
|
34. (1) Emportent interdiction de territoire pour
raison de sécurité les faits suivants :
a)
être l’auteur d’actes d’espionnage ou se livrer à la subversion contre toute
institution démocratique, au sens où cette expression s’entend au Canada;
b)
être l’instigateur ou l’auteur d’actes visant au renversement d’un
gouvernement par la force;
c)
se livrer au terrorisme;
[…]
f)
être membre d’une organisation dont il y a des motifs raisonnables de croire
qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b)
ou c).
|
[3]
Mr.
Rana advances three broad propositions in support of his position that the
decision should set aside and the matter referred back to another immigration
officer for reconsideration. He asserts that he was never a member of the MQM,
merely a supporter. Furthermore, he was a supporter of the MQM-A. The officer
failed to draw a sufficiently clear distinction between MQM-A and MQM-H, the
latter being the one which engaged in terrorist activities. Finally, he
asserts that the rules of natural justice were breached in that the officer had
before her notes of previous interviews with him, copy of which were not
provided to him in advance of his interview and that undue influence was placed
on the officer to reach the decision she did.
[4]
It
is unnecessary, and indeed it would be inappropriate, for me to assess the
reasonableness of the findings that Mr. Rana was a member of MQM-A, and that it
had engaged in terrorist activities at relevant times. Mr. Rana was entitled
to, but did not receive, due process.
[5]
It
is a fundamental principle of our rule of law that one know the case he has to
meet, to be given a fair opportunity to meet that case, and to have the matter
decided with impartiality.
[6]
It
had not been disclosed to Mr. Rana and his counsel that the officer had on file
a letter from an intelligence officer of the Canadian Border Service Agency (CBSA)
to the CBSA’s immigration enforcement supervisor to which was attached a CBSA memorandum
to which, in turn, was attached a brief from the Canadian Security Intelligence
Service (CSIS).
[7]
The
letter states in part:
Security Review is of the opinion that
the CSIS report (attached) compiled after interviewing RANA,
provides sufficient evidence to support a determination of
inadmissibility under IRPA, Sec.A34. However, the immigration officer is
responsible to make a determination with respect to admissibility.
[8]
The
CBSA memorandum states: “In our opinion, the information outlined in the brief
i.e. the CSIS brief, “provides evidence to support a determination of
inadmissibility under section A34 of the Immigration and Refugee Protection
Act (IRPA).” It goes on to say:
As the decision-maker the Immigration
office is responsible to review all of the evidence and to make the
determination with respect to admissibility. To assist in making a well-informed
decision, we are providing you with a copy of the CSIS brief.
[My emphasis.]
[9]
The
question is not whether this silent undue pressure led to actual bias on the
immigration officer’s part. The issue is whether there is an appearance of
bias.
[10]
The
immortal words of Mr. Justice De Grandpré in Committee for Justice and Liberty v. Canda
(National Energy Board), [1978] 1 S.C.R. 369, at p. 394, have been
repeated by Canadian courts ever since:
[The] apprehension of bias must be a
reasonable one, held by reasonable and right minded persons, applying
themselves to the question and obtaining thereon the required information. In
the words of the Court of Appeal, that test is “what would an informed person,
viewing the matter realistically and practically – and having thought the
matter through – conclude. Would he think that it is more likely than not that Mr.
Crowe, whether consciously or unconsciously, would not decide fairly.”
[11]
Although
the immigration officer is certainly not a judge, the fact remains that it was
her decision to make and hers alone. The decision of the Supreme Court in Canada (Minister of
Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391,
is instructive. In that case, an assistant deputy attorney general with the
federal Department of Justice met with the Chief Justice of the Federal Court of
Canada simply to discuss the scheduling of various cases. The merits were not
on the agenda. The Chief Justice later spoke with the judge handling the matter
and assured the assistant deputy attorney general that the matter would be
expedited, which it was. All of this was done outside the presence and
knowledge of the other parties, who complained bitterly and moved that the
proceedings be permanently stayed.
[12]
Then,
the judge responsible for the matter recused himself. At para. 72, the Supreme Court
said:
What emerges out of this is a simple test
for determining whether the appearance of judicial independence has been
maintained: whether a reasonable observer would perceive that the Court was
able to conduct its business free from the interference of the government and
over judges.
The Court went on:
[86] Although
the meeting and subsequent exchange of letters between Mr. Thompson and
the Chief Justice were very serious matters that compromised the appearance of
the Chief Justice’s and the Associate Chief Justice’s independence, on balance
the damage was not sufficiently serious to warrant the granting of that
ultimate remedy of a stay of proceedings. The lesser remedy of ordering
the appellants’ cases to proceed before a different judge of the Federal Court ‑‑
Trial Division will, together with the additional conditions, suffice.
[13]
How
could a reasonable observer think otherwise than that it was put to the officer
by the CBSA and by CSIS that the only “well-informed” decision was the one
which was actually made? The appropriate recourse is to start over. As Mr.
Justice Le Dain held in Cardinal v. Kent Institution, [1985] 2 S.C.R.
643, at p. 661:
I find it necessary to affirm that the denial of a right to a
fair hearing must always render a decision invalid, whether or not it may
appear to a reviewing court that the hearing would likely have resulted in a
different decision. The right to a fair hearing must be regarded as an
independent, unqualified right which finds its essential justification in the
sense of procedural justice which any person affected by an administrative
decision is entitled to have. It is not for a court to deny that right and
sense of justice on the basis of speculation as to what the result might have
been had there been […]
[14]
Mr.
Rana proposed questions to be certified to support an appeal. Since he was
successful, the certification of the proposed questions would serve no useful
purpose in this case.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that:
1.
The
judicial review is granted.
2.
The
matter is referred back to another immigration officer for a fresh
determination.
3.
There
is no serious question of general importance to certify.
“Sean Harrington”
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