Date: 20100719
Docket: IMM-5147-09
Citation: 2010 FC 752
Ottawa, Ontario, July 19, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
DANISH HAROON PEER
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Is one engaged
in “espionage,” within the meaning of
subsection 34(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, if one is information gathering surreptitiously
for one’s county of origin, only in that country, in a manner that is legal in
that country, without violating any international law, and without malicious
intent? If, in those circumstances, one is engaged in espionage, then the
applicant is inadmissible to Canada on security grounds because of his activities for Pakistan’s Corps of Military Intelligence
(CMI) and its Inter-Services Intelligence Directorate (ISI). If, in those
circumstances, one is not engaged in espionage, then this application for
judicial review of a visa officer’s decision denying the applicant a permanent
resident visa must be allowed, on the basis that the officer erred in
determining that the applicant was inadmissible to Canada.
[2]
Despite
the able submissions of counsel for the applicant, it is my view that the
applicant was engaged in espionage, within the meaning of the Act and this application
for judicial review is dismissed.
Background
[3]
The
applicant, Danish Haroon Peer, is a citizen of Pakistan. His wife, Shahzain D. Peer, is
a citizen of Canada. They were married on July 20,
2002, in Islamabad, Pakistan. They have three young
children all of whom were born in Canada.
[4]
On
October 19, 2004, Shahzain D. Peer applied to sponsor the applicant as a member
of the family class. In this application, the applicant disclosed that he had worked
for various Pakistani intelligence entities. The Canadian High Commission in Islamabad flagged this disclosure as a
possible source of inadmissibility.
[5]
In
April 2006, the applicant was interviewed by the High Commission regarding his
involvement with the CMI and the ISI. The extent of the applicant’s admissions
in this interview is in dispute. The applicant states that he answered the
interviewer’s questions truthfully to the extent that his oath of secrecy
permitted, and that he only admitted to conducting domestic intelligence
gathering activities “directed towards protecting Pakistan’s armed forces personnel and
nation in general from the menace of terrorism.” The applicant further states:
“[n]one of these activities were ever directed towards any democratic
government and I never stated at any time that I had been involved in, or had
knowledge of, any activities that could imply espionage, subversion or
terrorism against any democratic country, including Canada.”
[6]
The
respondent states that a brief was prepared following the interview of the
applicant and that detailed notes were also prepared by another officer after
reviewing the brief. According to the initial brief, the applicant admitted to
gathering intelligence information on Indian, Israeli and American intelligence
services present in Pakistan.
The brief also states that the applicant mentioned Canada when discussing the work he
conducted against “hostile governments and intelligence agencies,” and that he
“was responsible for collecting and collating information that came in from ISI
stations all around the country....”
[7]
On May
5, 2008, the High Commission sent that applicant a procedural fairness letter
informing him that there may be reasonable grounds to believe that he was
inadmissible for security reasons and inviting him to make further submissions
before a final decision was made. On July 2, 2008, the applicant provided
further submissions arguing that he had not engaged in activities that would
make him inadmissible and requesting that the best interests of his three
Canadian-born children be considered.
[8]
By
letter dated August 31, 2009, the visa officer denied the applicant’s
application for a permanent resident visa on the basis that he was inadmissible
for security reasons. It is this decision that the applicant asks the Court to
quash.
[9]
Both the negative decision letter
and the CAIPS notes form the reasons for the visa officer’s decision. The visa
officer determined that there were reasonable grounds to believe that the
applicant was “a member of the inadmissible class of persons described in
subsection 34(1) of the Immigration and Refugee Protection Act” either
because he engaged in an act of espionage or an act of subversion against a
democratic government or because he was a member of an organization that
engaged in such activities. The visa officer stated that the applicant was
employed by the CMI and the ISI from 1995 to 2004 and that “[b]oth institutions
are involved in intelligence and counter-intelligence activities that target
the intelligence agencies and governments of other countries including Canada.”
[10]
The visa officer rejected the
applicant’s submission that his activities with these institutions “were
undertaken to protect his own country and not undertaken against the government
of another country, and are also undertaken by [redacted] officers, and thus
should not render him inadmissible.” The visa officer stated that she
preferred the applicant’s more detailed admissions outlined in the
post-interview brief over the more general and innocuous discussion of his
activities provided in his further submissions. The visa officer further
stated that “[a] description of his personal activities does not address his
admitted membership in a group that carries out such activities.”
[11]
The visa officer rejected the
applicant’s argument that his activities were no different than those conducted
by intelligence services around the world. The visa officer held that this
similarity did not alleviate the applicant from the inadmissibility provisions
of the Act. The visa officer held that “[t]he legislation does not specify
that a specific motive behind such activities or a specific motive behind the
membership in such a group is a requirement for a finding of inadmissibility.”
[12]
The visa officer determined that:
[t]here are
reasonable grounds to believe that the applicant was directly or indirectly
involved with the espionage activities of the Pakistani Corps of Military
Intelligence (CMI), Military Intelligence (MI) and the Inter-Services
Intelligence (ISI) agency while a member of these groups and that those
organizations have been involved in espionage against democratic states.
[13]
The visa officer then
turned to the applicant’s submissions regarding the best interests of his
children. The visa officer noted the current instability in Pakistan, the family’s preference to live in Canada, and the fact
that the family currently lives together in Dubai, United
Arab Emirates, where the
applicant is employed. The visa officer noted that “[t]he expected difference
between the education and health care the children are likely to receive as a
result of a finding of inadmissibility is not indicated.” The visa officer
determined that even though there is a disparity in the standard of living
available to the children in Canada and that available in either Pakistan or the United
Arab Emirates, “it has not
been shown that the finding of inadmissibility would prevent the financial and
emotional needs of the children from being met.” The visa officer concluded:
“[a]lthough a finding of inadmissibility will have a negative impact on the
children affected by the decision, I do not believe that this impact outweighs
the requirement to find the applicant inadmissible given the nature of the
inadmissibility in question.”
[14]
On this basis, the
visa officer rejected the applicant’s application for a permanent resident
visa.
Issues
[15]
In my view, only two issues are
raised in the application:
1.
Did the visa officer err in
relying on and preferring the internal post-interview brief over the further
submissions of the applicant?
2.
Does a finding that there are
reasonable grounds to believe that the applicant engaged in espionage or was a
member of a group that engaged in espionage, within the meaning of subsections
34(1)(a) and (f) of the Act, require a determination that the activities in
question were taken with a certain level of hostile intent?
Analysis
1. The Officer’s Reliance on the Respondent’s
Internal Brief
[16]
The visa
officer’s preference of the internal post-interview brief over the further
submissions of the applicant is a finding of fact reviewable on the
reasonableness standard.
[17]
Any visa
officer can make entries into the CAIPS notes. The entering of information
does not constitute proof of the content of that information simply because it
was entered, and is contained, in the CAIPS notes. In Chou v. Canada (Minister of Citizenship and Immigration) (2000), 190 F.T.R. 78, Madam Justice Reed held that:
... the CAIPS notes should be admitted as part of the record,
that is, as the reasons for the decision under review. However, the underlying
facts on which they rely must be independently proven. In the absence of a visa
officer's affidavit attesting to the truth of what he or she recorded as having
been said at the interview, the notes have no status as evidence of such.
[18]
In this
case, the visa officer relied on the post-interview brief, which is included in
the certified tribunal record before the Court, as well as officer CLG’s
summary of that brief contained within the CAIPS notes. Neither the officer
who prepared the post-interview brief nor officer CLG provided affidavits in
support of the respondent’s position in this application. In Wang v. Canada (Minister of
Employment and Immigration), [1991] 2 F.C. 165 (C.A.), relied on in Chou, the Court of Appeal at
p. 170-171 rejected the submission that such documents should be admitted into
evidence as proof of their contents:
The
respondent argues that, because of the inconvenience of arranging depositions
by visa officers who, by definition, are outside Canada, the Court ought to accept their notes and memoranda as proof of
the truth of their contents even though no affidavit averring to that truth is
filed. In this, as in some of the other appeals dealt with serially, the visa
officer concerned produced notes made during the interview and/or a memorandum
made considerably later setting forth his recollection. These were produced as
exhibits to the affidavit of an immigration officer in Canada who had reviewed the pertinent file and selected material
considered relevant to the proceeding in Court.
I see no
justification for deviating from evidentiary norms in these circumstances. No
legal basis for acceding to the respondent's argument has been demonstrated
and, in my opinion, it is devoid of a practical basis. In the first place,
unless the error said to vitiate the decision appears on the face of the
record, the intended immigrant also, by definition, outside Canada must depose
to his or her evidence and, unlike the visa officer, may not be conveniently
located to do so. There is no justice in according one witness to the
proceeding an opportunity to present evidence in a manner that precludes it
being tested by cross-examination. In the second place, the suggestion of
administrative inconvenience seems flimsily based. Given that visa officers
normally inhabit premises in which may be found other functionaries before whom
affidavits acceptable in Canadian courts may be sworn, there seems no practical
reason why his or her version of the truth cannot, with equal convenience, be
produced in affidavit as in memorandum form. Finally, should a disappointed
applicant wish to inconvenience a visa officer by a cross-examination there is
the sanction that the right will have to be exercised, at least initially, at
some considerable expense to the applicant.
[19]
It was open to the visa officer to rely on the post-interview
brief as well as the CAIPS notes of officer CLG and to prefer this information
over that provided by the applicant. I agree with the respondent that the
post-interview brief contradicts the applicant’s further submissions. However,
for the reasons described in Chou and Wang, neither the
post-interview brief nor the CAIPS notes entries of officer CLG are properly
before this Court. Both pieces of information could have been properly
submitted as evidence had the respondent taken the time to have the relevant
officers swear affidavits – the respondent did not and this information cannot
be considered by the Court.
[20]
The visa officer erred in relying on the post-interview brief and
officer CLG’s CAIPS notes entries because the truth of the contents of these
documents was never proven. Nonetheless, this does not constitute a reviewable
error because it is not material to the determinative finding of the visa
officer that this applicant was engaged in espionage.
2. The Finding that the
Applicant Was Engaged In Espionage or
Was a Member of a Group that Engaged in Espionage
[21]
The applicant accepts the visa
officer’s finding was that he was a member of two intelligence agencies but
says that he was not engaged in espionage. The applicant says that his
intelligence gathering activities for these intelligence agencies do not render
him inadmissible because they do not amount to espionage or subversion against
a democratic government, institution or process. The parties are in agreement that
the only allegation against the applicant was his involvement in espionage and
that he was not involved in subversion.
[22]
The applicant submits that the
“[m]ere gathering of intelligence on the activities of foreign nationals is
intelligence gathering and absent evidence that the applicant carried his work
further so as to attempt to undermine other democratic countries” a finding of
espionage cannot be supported. The applicant cites Qu v. Canada (Minister
of Citizenship and Immigration), 2001 FCA 399, in support of his submission
that involvement in the lawful domestic intelligence gathering activities of
intelligence services does not render a foreign national inadmissible because
it does not amount to espionage.
[23]
The applicant relies on the
doctrine of equivalency for the proposition that if his activities are no
different than the lawful activities of the Canadian Security Intelligence Service
(CSIS) in Canada then they should not constitute espionage. The
applicant further submits that the visa officer failed to support his finding
that either the CMI or the ISI, of which the applicant was a member, had been
involved in espionage against a democratic organization.
[24]
The respondent submits that even
if the post-interview brief is not considered, the applicant’s other statements
supported the officer’s finding of the applicant’s engagement in espionage.
The respondent contends that the applicant is drawing a semantic distinction
between “intelligence gathering” and “espionage.” The respondent also cites Qu
but in support for its submission that the applicant’s activities
constitute “espionage.” The respondent argues that “[t]he act of gathering
information used for intelligence purposes that related to Canada as well as
another democratic state, India, is espionage as defined by the Court.” The
respondent further argues that the visa officer made no reviewable error in
finding that there were reasonable grounds to believe that the CMI or the ISI
engaged in espionage against democratic organizations.
[25]
There is no dispute that the
applicant was a member of the CMI and the ISI and that he conducted
“intelligence gathering” activities for these organizations in Pakistan.
There can be no dispute that these “intelligence gathering” activities included
gathering information relating to persons from democratic countries in Pakistan. The
applicant in the affidavit filed in support of this application attests to the
following:
Officer Tayyeb asked me about other
intelligence operations. I told her if foreign groups were visiting in our
area of responsibility, we would carry out their discreet surveillance. To be
specific, I told her that as my uncles used to perform arts and music festivals
which were attended by troupes from different countries including Canada and India, I would also join their company to keep an eye on these
foreigners. Moreover, the Indians and Sikhs would also visit the holy shrines
in Punjab and we would carry out their discreet
surveillance in our area of responsibility for the protection of the Indian
nationals as well as the visitors.
[26]
The applicant gave very little
specific information to the visa officer during the interview. His explanation
was that:
I could only
give her general details of what I had been doing in intelligence and I
couldn’t give her specific details due to the fact that I was under an oath not
to reveal such information. I told her that as per the Pakistan Act 1923, I
cannot reveal such sensitive information.
[27]
The issue that remains in dispute
is whether the applicant’s activities, or the activities of the CMI and/or the
ISI, rendered the applicant inadmissible pursuant to subsection 34(1) of the
Act.
[28]
I agree with the
submissions of the applicant that “there is nothing in the reasons or the
evidence to justify any finding that the organization [of which the applicant
was a member] engaged in espionage or subversion at all.” The officer provides
no basis at all for her conclusion that the CMI and/or the ISI are
organizations falling within the description provided in subsection 34(1) of
the Act. The only support for this conclusion was to be found in the reports
that were not properly before the officer. If this were the only basis on
which the applicant was found inadmissible, this application would be allowed;
however, the officer also found that the applicant himself had engaged in
espionage within the meaning of subsection 34(1)(a) of the Act.
[29]
The visa officer rejected the
applicant’s argument that his activities were no different than those conducted
internally by intelligence services around the world and therefore he was not
engaged in espionage. The visa officer held that this similarity did not remove
the applicant from the inadmissibility provisions of the Act. The visa officer
held that “[t]he legislation does not specify that a specific motive behind
such activities or a specific motive behind the membership in such a group is a
requirement for a finding of inadmissibility.”
[30]
The question of whether lawful
domestic “intelligence gathering” amounts to “espionage” is a question of pure
law reviewable on the correctness standard. The question of whether the visa
officer could find that there are reasonable grounds to believe that the
applicant engaged in espionage, without also finding that the activities in
question were taken with a certain level of hostile intent, is also a pure
question of law reviewable on the correctness standard.
[31]
Section 34(1)(a) of the Act reads:
|
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;
|
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;
|
[32]
In Qu the Court of
Appeal did not pronounce explicitly on the definition of “espionage” as it overturned
the trial decision on the basis of how the trial judge interpreted the phrase
“democratic government, institution or process.” Justice Lemieux, who
initially heard that application, noted that “espionage” is not defined in the
Act. In interpreting the meaning of “espionage” Justice Lemieux made reference
to various dictionary definitions of the word “espionage,” to various related
domestic legislation, and to the decision in Shandi (Re) (1991), 51 F.T.R. 252.
[33]
Justice
Lemieux held at page
96:
"Espionage"
is simply a method of information gathering--by spying, by acting in a covert
way. Its use in the analogous term "industrial espionage" conveys the
essence of the matter -- information gathering surreptitiously.
"Subversion"
connotes accomplishing change by illicit means or for improper purposes related
to an organisation.
[34]
I share his view that “espionage”
does not connote the same level of intent, hostile or otherwise, as
“subversion.” This interpretation is reinforced when subsection 34(1) is read
in its entirety. The combined use of the words “espionage” and “subversion” in
subsection 34(1)(a) suggests, as Justice Gibson found in Al Yamani v. Canada (Minister of Citizenship and
Immigration), [2000] 3 F.C. 433 (T.D.), that their meanings are disjunctive. This, in turn, suggests that “espionage” does not have
to have an illicit outcome as its goal.
[35]
Further, I am of the view that the
accuracy of Justice Lemieux’s definition is not dependant on whether the person
who is engaged in the espionage does so only within the boundaries of his home
country and reports to agencies in his home country, as in this case, or does
so in a foreign country and reports to agencies of his home country, as was the
case in Qu.
[36]
I have no doubt that
many centuries ago one could not easily engage in espionage unless one
travelled to a foreign land to gather the relevant information because there
was no other way the information could be obtained. That is quite simply not
the case now, if it ever was. If I were to accept the submission of the
applicant that one cannot engage in espionage while remaining in one’s own
country, I would have to accept that intelligence agents who monitor telephone
and internet communications from the safety of their country are engaged only
in “intelligence gathering” and not in espionage, even when the information
they gather relates to sensitive state secrets.
[37]
The applicant might
suggest that those agents are engaged in an illegal activity and thus fall
outside his proposed definition of espionage. However, while the interception
of these communications may be an offence in the country from whence the communications
originate, I have no doubt that the actions of these interceptors will be
perfectly legal and, in fact, are sanctioned in their own country.
[38]
This leads to the
fallacy in the applicant’s submission with respect to the doctrine of equivalency.
[39]
In this case, there is no reason
to even begin an equivalency analysis. How CSIS conducts its activities in Canada, and
what it is authorized to do, is entirely irrelevant to interpreting
Parliament’s intention in drafting the inadmissibility provisions found within
the Act. Perhaps it is hypocritical for Parliament to permit CSIS to undertake
certain activities and then determine that a foreigner who does the same thing
in his own country is inadmissible to Canada or there may be valid reasons for
denying admission to foreign intelligence agents (retired or otherwise) who
swear oaths of secrecy and allegiance to other countries and then seek
permanent residence in Canada. It is not for this Court to judge Parliament’s
policy choices. It is the role of this Court to interpret and enforce the laws
as Parliament drafts them, and to ensure their compliance with the Constitution.
[40]
What matters in this case is the
applicant’s surreptitious gathering of information, or spying, on foreign
nationals in Pakistan. The applicant’s motive or his location when doing
this spying is entirely irrelevant in determining that his activities on behalf
of Pakistan intelligence constituted “espionage.”
[41]
The record before the Court, even without
the evidence that the respondent has failed to properly enter into evidence,
strongly supports a conclusion that the applicant was engaged in espionage
against a democratic government,
institution or process, specifically India, as well as Canada. The visa
officer did not err in finding the applicant inadmissible for security reasons
and rejecting his application for a permanent resident visa.
[42]
I
note that subsection 34(2) of the Act provides an exception to the security
inadmissibility described above if the applicant “satisfies the Minister
that [his] presence in Canada would not be
detrimental to the national interest.” Such an avenue is available should the
applicant wish to continue pursuing permanent residence in Canada; however, the
applicant may well be required to disclose much more specific information about
his involvement with a foreign intelligence service than he did to the visa
officer before the Minister is willing to consider the exception.
Certified
Question
[43]
The applicant
proposes the following question for certification:
Is a person inadmissible to Canada for
having engaged in “espionage against a democratic government or institutions” [sic]
pursuant to section 34(1) of the Immigration and Refugee Protection Act if the
person engaged in intelligence gathering activities that are legal in the
country where they take place, do not violate international law and there is no
evidence of hostile intent against the persons who are being observed?
[44]
It is submitted that
this question meets the test for certification established by the Federal Court
of Appeal in Boni v. Canada (Minister of Citizenship and Immigration),
2006 FCA 68 and Canada (Minister of Citizenship and Immigration) v. Liyanagamage
(1994), 176 N.R. 4 (F.C.A.), in that it is a serious question of general
importance that would be dispositive of the appeal.
[45]
It is submitted that
the question is a serious one of general importance as it raises a question of
the proper interpretation of subsection 43(1)(a) of the Act. It is submitted
that the decision in Qu did not deal with the situation at hand, namely
where the applicant has no hostile intent to those who are the target of his
surreptitious surveillance.
[46]
The respondent
submits that the question as to the definition of espionage has been fully
dealt with in Qu and that the facts before the officer and this Court
establish that the applicant was engaged in espionage, as previously defined.
[47]
The applicant submits
that the question would be dispositive of an appeal in this matter for the
following reason:
The officer found that the applicant had
engaged in espionage against democratic institutions because he was a member of
an intelligence agency and had gathered intelligence against democratic
countries. (See Tribunal Record pages 8; 10) There was no finding that the
activities violated international law, were illegal or were carried out with
hostile intent. Indeed it appears that the officer concluded that the mere
fact that the applicant engaged in intelligence gathering with respect to Canada was sufficient to make him inadmissible because there was
no express finding of any hostile intent – merely an assertion that this fact
renders the applicant inadmissible for engaging in espionage against
democratic intuitions.
[48]
I agree with the
applicant’s submissions and will certify the following question which is
rephrased slightly from that proposed:
Is a person inadmissible to Canada for
“engaging in an act of espionage … against a democratic government, institution
or process” within the meaning of subsection section 34(1)(a) of the Immigration
and Refugee Protection Act if the person’s activities consisted of
intelligence gathering activities that are legal in the country where they take
place, do not violate international law and where there is no evidence of
hostile intent against the persons who are being observed?
JUDGMENT
THIS
COURT ORDERS that:
1. This
application is dismissed; and
2. The following
question is certified:
Is a person inadmissible to Canada for
“engaging in an act of espionage … against a democratic government, institution
or process” within the meaning of subsection section 34(1)(a) of the Immigration
and Refugee Protection Act, if the person’s activities consist of
intelligence gathering activities that are legal in the country where they take
place, do not violate international law and where there is no evidence of
hostile intent against the persons who are being observed?
“Russel W. Zinn”
Email this Content