Date: 20120110
Docket: IMM-2732-11
Citation: 2012 FC 22
Ottawa, Ontario, this 10th
day of January 2012
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
Yoonis Samtar GULEED
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of the decision of Karine Amato, an
immigration officer for the Canada Border Services Agency (the “officer”),
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27,
(the “Act”) by
Yoonis Samtar Guleed (the “applicant”). In her decision, the officer concluded
that the applicant’s claim for refugee status was ineligible for referral to
the Refuge Protection Division (“RPD”) pursuant to paragraphs 101(1)(d)
and 104(1)(a) of the Act: the applicant had been recognized refugee
status in the United States and could be returned to that country.
* * * * * * *
*
[2]
The applicant
is a citizen of Somalia. Due to the conditions
in Somalia, notably the coup d’État occurring in 1991 and the state of
continual violence within the country, the applicant being from the minority
Migdan tribe, left his home and subsequently moved around. In 2002, he left for
the United
States and
claimed refugee status. In April 2003, he was granted refugee status in the United States.
[3]
In
2009, he was convicted of the crimes of hit & run and arson in Virginia, serving a prison term
from October 2009 to March 2010. However, after being released, the applicant
alleges that his American lawyer had told him that he risked losing his refugee
status and being deported to Somalia due to these criminal convictions. Consequently, he left
the United States on September 31, 2010, arriving in Canada on October 1, 2010. The
applicant subsequently claimed refugee status based on race and membership in a
particular social group, in addition to a risk to his life and a risk of cruel
and unusual treatment if forced to return to Somalia.
[4]
However,
upon arrival in Canada, the applicant used his
cousin’s name as an alias to enter the country (Ilyas Ali Gulet), fearing his
criminal convictions in the United States would hinder his refugee claim in Canada. On February 18, 2011,
the applicant was reported inadmissible under paragraphs 20(1)(a) and
41(a) of the Act due to his failure to obtain a permanent resident visa
before seeking admission to Canada on a permanent basis. Consequently, a departure order was
issued against him. His refugee claim was nonetheless found to be eligible and
was referred to the Immigration Refugee Board (“IRB”). It is at this time that
the applicant revealed his true identity and that he had been granted refugee
status in the United
States.
[5]
On
February 25, 2011, the Canada Border Services Agency (“CBSA”) informed the officer
by email that the American authorities had confirmed that the applicant could
return to the United
States,
despite his prior criminal conviction. The enforcement superintendent for the
CBSA, Mr. Storozuk, later met with the U.S. immigration officer to obtain the necessary
information on the applicant’s US
refugee claim and to obtain a verbal confirmation that the applicant would be
admitted upon return.
[6]
In a
letter dated March 24, 2011, the officer scheduled an interview with the applicant
for April 14, 2011, in order to discuss his refugee status in the United States. The applicant was
invited to provide written submissions and additional evidence before the officer
would render her final decision. In a letter dated April 18, 2011, the applicant’s
legal counsel outlined his major arguments, notably that he could not return to
the United
States due
to his prior criminal convictions which made him an alien guilty of a crime of
moral turpitude under the Immigration and Nationality Act, Pub. L.
82-414, 66 Stat. 163 (June 27, 1952) (the “INA”) (sections 212(2)A(i)(I) and
101(3) of the INA). Moreover, the applicant argued that he could not
return to the United
States
because he did not possess the valid travel documents required to be readmitted
into the country.
[7]
On
April 20, 2011, after the interview between the applicant and an associate of
the officer’s, the officer notified the applicant of his ineligibility.
Afterwards, the applicant was informed that he could apply for a Pre-Removal
Risk Assessment, which he did on May 27, 2011.
[8]
In
her letter to the applicant dated April 20, 2011, pursuant to section 104 of
the Act, the officer notified the applicant that his claim for refugee
protection in Canada was ineligible for consideration: he was found to be a Convention
refugee in another country than Canada and can be returned to that country as
per paragraph 101(1)(d) of the Act. The officer does not provide any
additional information and does not comment on any of the representations made
by the applicant at the interview.
[9]
Consequently,
on April 26, 2011, the applicant filed the present application for judicial
review of the officer’s finding of ineligibility.
* * * * * * * *
[10]
The
relevant legislation is annexed to these reasons for convenience.
[11]
The applicant
raises the following issues:
i.
Did the officer
breach her duty of procedural fairness in failing to provide adequate reasons
for her decision?
ii.
Did the officer
further breach her duty of procedural fairness by refusing to disclose the
information she received from the U.S. authorities, thereby depriving the applicant
of the opportunity to respond?
[12]
The
applicable standard of review to such issues of procedural fairness is
correctness (Cha v. Minister of Citizenship and Immigration, 2004 FC
1507 at para 41 [Cha]; Ha v. Minister of Citizenship and Immigration,
2004 FCA 49 at para 45; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 [Dunsmuir]).
* * * * * * * *
i. Did
the officer breach her duty of procedural fairness in failing to provide
adequate reasons for her decision?
[13]
The applicant
claims the officer breached her duty of procedural fairness in failing to
provide reasons for her ineligibility finding. Her written reasons consist of
one sentence and do not address any of the applicant’s submissions, nor whether
he can actually return to the United States. The applicant relies on Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker] to establish the officer’s
duty to provide reasons.
[14]
The applicant
alleges that the officer did not explain why the applicant can be returned to
the United
States
despite his criminal convictions and the lack of the requisite refugee travel
documents (section 223.1 of the Code of Federal Regulations, 8 C.F.R.). The
applicant therefore claims that the officer’s reasons do not allow for a
meaningful review of the merits of her ineligibility finding (VIA Rail
Canada Inc v. National Transportation Agency, [2001] 2 F.C. 25 (C.A.)).
[15]
The respondent,
for his part, relying on the recent decision of the Supreme Court of Canada in Newfoundland
and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board),
2011 SCC 62, comes to a different conclusion. The respondent submits that the
officer’s decision, while short, contains all the necessary information
allowing for a meaningful review. The respondent submits that the applicant’s
record is evidence that he had all the materials necessary to contest the
merits of the officer’s ineligibility determination.
[16]
In Newfoundland
and Labrador Nurses’ Union, supra, on the issue of the “adequacy” of
reasons, the Supreme Court of Canada stated the following at paragraphs 14, 15,
16 and 18:
[14] Read
as a whole, I do not see Dunsmuir as standing for the proposition that
the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as
advocating that a reviewing court undertake two discrete analyses – one for the
reasons and a separate one for the result (Donald J. M. Brown and John M.
Evans, Judicial Review of Administrative Action in Canada (loose-leaf)
at § 12:5330 and 12:5510). It is a more organic exercise – the reasons must be
read together with the outcome and serve the purpose of showing whether the
result falls within a range of possible outcomes. This, it seems to me, is what
the Court was saying in Dunsmuir when
it told reviewing courts to look at “the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes” (para. 47).
[15] .
. . This means that courts should not substitute their own reasons, but they
may, if they find it necessary, look to the record for the purpose of assessing
the reasonableness of the outcome.
[16] Reasons
may not include all the arguments, statutory provisions, jurisprudence or other
details the reviewing judge would have preferred, but that does not impugn the
validity of either the reasons or the result under a reasonableness analysis. A
decision-maker is not required to make an explicit finding on each constituent
element, however subordinate, leading to its final conclusion (Service
Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses
Assn., [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons
allow the reviewing court to understand why the tribunal made its decision and
permit it to determine whether the conclusion is within the range of acceptable
outcomes, the Dunsmuir criteria are met.
[18] .
. . I found the description by the Respondents in their Factum particularly
helpful in explaining the nature of the exercise:
“When
reviewing a decision of an administrative body on the reasonableness standard,
the guiding principle is deference. Reasons are not to be reviewed in a vacuum
– the result is to be looked at in the context of the evidence, the parties’
submissions and the process. Reasons do not have to be perfect. They do not
have to be comprehensive. [para. 44]”
[17]
With
these principles in mind, the officer did have an obligation to inform the
applicant of her ineligibility finding (paragraph 104(1)(a) of the Act).
However, the officer did not have a duty to provide detailed reasons. The officer
did not have any obligation to provide extensive reasons in making her decision
under section 104 of the Act, but rather had to appraise the evidence.
[18]
In
her decision, the officer told the applicant why he was ineligible: he had been
recognized refugee status in the United States and could be returned to that country, as
per paragraph 101(1)(d) of the Act. The applicant was given a meaningful
opportunity to advance his views and present evidence at the interview. I
further agree with the respondent that since the applicant was fully capable of
bringing the present application for judicial review, the reasons given by the
officer were sufficient.
[19]
Moreover,
the Guidelines do not impose any additional procedural safeguards on the officer,
besides requiring that her decision be based on the evidence, that it take into
account the applicant’s observations, that the applicant be notified of her
decision and that the evidence be disclosed. There is no longer any specific
requirement under the Act obligating the officer to provide reasons, contrary
to the former requirement under the Act. Under former subsection 45(3) of the
Act, reasons were required in cases of an ineligibility finding terminating an
applicant’s claim for refugee protection.
[20]
For
these reasons, given that the burden of proving eligibility was on the
applicant (subsection 100(4) of the Act), the officer’s reasons were adequate.
We do know why the applicant was ineligible: he has refugee status in the
Untied States and can be returned to that country since the officer obtained
assurances from the American authorities. In my view, in the context of the
evidence, “the reasons allow the reviewing court to understand why the tribunal
made its decision and permit it to determine whether the conclusion is within
the range of acceptable outcomes” (Newfoundland and Labrador Nurses’ Union,
supra, at para 16).
ii. Did
the officer breach her duty of procedural fairness by refusing to disclose the
information she received from the U.S. authorities, thereby depriving the applicant
of the opportunity to respond?
[21]
The applicant
further argues that the officer erred in refusing to disclose the specific
information she received from the U.S. authorities, thereby depriving him of an
opportunity to respond. Rather, the officer had a duty to disclose the emails
between the Canadian and American authorities regarding the applicant’s return
to the United
States.
The applicant submits that while he was informed by the CBSA of the U.S. authorities’
assurances, his request to review the emails was denied. Consequently, he was
left to speculate as to why he would be allowed to return, considering the
provisions of the INA dealing with aliens and crimes of moral turpitude.
[22]
The respondent,
for his part, asserts that the officer did not have a duty to disclose the
email correspondences between the Canadian and American authorities because
such information was protected under article 6 of the Statement of Mutual
Understanding on Information Sharing and article 7 of the Annex Regarding
the Sharing of Information on Asylum and Refugee Status Claims to the Statement
of Mutual Understanding on Information Sharing.
[23]
The applicant
was informed of the assurances provided by the U.S. authorities. While he requested the disclosure
of these assurances, the respondent claims that the information is also
privileged under sections 37 and 38 of the Canada Evidence Act, R.S.C. 1985,
c. C-5.
[24]
The respondent
goes on to explain that an officer’s duty to disclose evidence in the present
context must also be accessed in light of the factors set out in Baker (Haghighi
v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407
(C.A.) [Haghighi]). Unlike the case of Haghighi, the officer’s ineligibility
determination does not put an end to the applicant’s quest for protection
within Canada, but restricts his
choice of procedure. In such circumstances, the respondent does not believe the
officer had any obligation to provide copies of the emails and disclose their
specific contents.
[25]
Therefore,
the officer did not violate any principles of natural justice: her decision was
based on the evidence, her reasons were sufficient and she communicated to the applicant
the available evidence, allowing him to meaningfully participate in the
ineligibility determination.
[26]
The
test to determine if an officer had a duty to disclose extrinsic evidence is
whether the disclosure of the document was required to provide the applicant
with a reasonable opportunity in all circumstances to participate in a
meaningful manner in the decision-making process (Haghighi at para 26; Monemi
v. Solicitor General, 2004 FC 1648 at para 24 [Monemi]; Thamotharampillai
v. Minister of Citizenship and Immigration, 2003 FC 836 at paragraphs 37
and 40). In applying the factors set out in Baker, in order to qualify
an officer’s duty to disclose, this Court must be mindful of the extent to
which a duty to disclose the emails would likely have avoided the risk of error
in making the decision (Haghighi at para 28).
[27]
Unlike
in Haghighi, disclosure of the emails would not have provided the applicant
with the opportunity to comment on alleged errors, omissions or other deficiencies
(at para 37). In Haghighi, an officer considering a claim on
humanitarian and compassionate grounds had a duty to disclose in order to avoid
such errors, given that the evidence at issue, a post-claim determination
officer’s risk assessment report, was derived from voluminous, nuanced and
inconsistent information in different sources on country conditions (at para
37). In Ormankaya v. Minister of Citizenship and Immigration, 2010 FC
1089, the applicability of Haghighi was limited to its specific context:
an officer determining an application based on humanitarian and compassionate
grounds had a duty to disclose to the applicant a risk assessment report (at
para 33). Hence, past case law is of limited utility: an inquiry into what is
required to satisfy an officer’s duty of fairness must be contextualized (Monemi
at para 15). Thereby a conclusion reached in one context cannot automatically
be transposed to another (Monemi at para 15).
[28]
Moreover,
in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1
S.C.R. 3, the Supreme Court of Canada tempers the duty to disclose,
acknowledging that the material on which the Minister bases his decision must
be provided to the refugee, subject to privilege and other reasons for
reduced disclosure.
[29]
The officer
did not have a duty to disclose the contents of the emails between the Canadian
and American authorities. Rather, it was sufficient that the applicant was
aware of their existence. This disclosure of their existence was sufficient, in
my opinion, to provide the applicant with a reasonable opportunity in all
circumstances to participate in a meaningful manner in the officer’s
determination. Even if the applicant had read the specific contents of the
emails, it would not have enabled him to comment on alleged errors, omissions
or other deficiencies in these messages (Haghighi).
[30]
Rather,
the officer had the obligation to make further inquiries about the applicant’s
status in the United
States,
which she did. She also granted the applicant an interview and allowed him to
make submissions, as per the Guidelines.
[31]
Moreover,
the emails appear to be protected by the Statement of Mutual Understanding
on Information Sharing between Canada and the United States.
[32]
Therefore,
I do not believe the officer had a duty to disclose the emails between the
Canadian and American authorities to the applicant. It was sufficient that the applicant
was aware of their existence and the assurances they provided: the applicant
was given a reasonable opportunity in all circumstances to participate in a
meaningful manner in the officer’s determination (Baker, Haghighi).
* * * * * * * *
[33]
For
the above-mentioned reasons, the application for judicial review is dismissed.
[34]
The
parties declined to propose any question for certification.
JUDGMENT
The application for judicial
review of the decision of Karine Amato, an immigration officer for the Canada
Border Services Agency, pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, is dismissed.
“Yvon
Pinard”
ANNEX
Immigration and Refugee Protection Act, S.C. 2001, c. 27:
|
Referral to Refugee Protection Division
Consideration of claim
100.
(3) The Refugee Protection Division may not consider a claim until it is
referred by the officer. If the claim is not referred within the three-day
period referred to in subsection (1), it is deemed to be referred, unless
there is a suspension or it is determined to be ineligible.
Duty of claimant
(4) The
burden of proving that a claim is eligible to be referred to the Refugee
Protection Division rests on the claimant, who must answer truthfully all
questions put to them. If the claim is referred, the claimant must produce
all documents and information as required by the rules of the Board.
Ineligibility
101. (1) A claim is ineligible to be
referred to the Refugee Protection Division if
(d) the
claimant has been recognized as a Convention refugee by a country other than Canada
and can be sent or returned to that country;
Notice of ineligible claim
104. (1) An
officer may, with respect to a claim that is before the Refugee Protection
Division or, in the case of paragraph (d), that is before or has
been determined by the Refugee Protection Division or the Refugee Appeal
Division, give notice that an officer has determined that
(a) the claim is ineligible under
paragraphs 101(1)(a) to (e);
Termination and nullification
(2) A
notice given under the following provisions has the following effects:
(a) if
given under any of paragraphs (1)(a) to (c), it terminates
pending proceedings in the Refugee Protection Division respecting the claim;
and
(b) if
given under paragraph (1)(d), it terminates proceedings in and
nullifies any decision of the Refugee Protection Division or the Refugee
Appeal Division respecting a claim other than the first claim.
|
Examen de la recevabilité
Saisine
100.
(3) La saisine de la section survient sur déféré de la demande; sauf
sursis ou constat d’irrecevabilité, elle est réputée survenue à l’expiration
des trois jours.
Obligation
(4) La
preuve de la recevabilité incombe au demandeur, qui doit répondre
véridiquement aux questions qui lui sont posées et fournir à la section, si
le cas lui est déféré, les renseignements et documents prévus par les règles
de la Commission.
Irrecevabilité
101. (1) La demande est irrecevable dans les cas
suivants :
d) reconnaissance
de la qualité de réfugié par un pays vers lequel il peut être renvoyé;
Avis sur la recevabilité de la
demande d’asile
104. (1) L’agent donne un avis portant, en
ce qui touche une demande d’asile dont la Section de protection des réfugiés
est saisie ou dans le cas visé à l’alinéa d) dont la Section de
protection des réfugiés ou la Section d’appel des réfugiés sont ou ont été
saisies, que :
a) il
y a eu constat d’irrecevabilité au titre des alinéas 101(1)a) à e);
Classement et nullité
(2) L’avis
a pour effet, s’il est donné au titre :
a) des
alinéas (1)a) à c), de mettre fin à l’affaire en cours
devant la Section de protection des réfugiés;
b) de
l’alinéa (1)d), de mettre fin à l’affaire en cours et d’annuler
toute décision ne portant pas sur la demande initiale.
|
Immigration and Nationality Act, Pub. L. 82-414, 66 Stat. 163 (June 27,
1952):
|
Alien
101. (3) The term “alien” means any person
not a citizen or national of the United
States.
212. –
General classes of aliens ineligible to receive visas and ineligible for
admission; waivers of inadmissibility.
Sec. 212.
(a) Classes of Aliens Ineligible for Visas or Admission.-Except as otherwise
provided in this Act, aliens who are inadmissible under the following
paragraphs are ineligible to receive visas and ineligible to be admitted to
the United States:
(2) Criminal
and related grounds.
(A) Conviction of certain crimes.
(i) In general.-Except as provided in clause (ii), any alien
convicted of, or who
admits having committed, or who admits committing acts which constitute
the
essential elements of-
(I) a crime involving moral turpitude (other than a purely
political offense) or
an attempt or conspiracy to commit such a crime, or
(II) a violation of (or a conspiracy or attempt to violate)
any law or regulation
of a State, the United
States, or a foreign
country relating to a controlled
substance (as defined in section 102 of the Controlled Substances Act
(21
U.S.C. 802), is inadmissible.
|
|
|
Code of Federal Regulations, 8 C.F.R. Part 223 – Reentry permits,
refugee travel documents, and advance parole documents.
223.1 Purpose of documents
(b) Refugee travel document. A refugee travel document is issued
pursuant to this part and article 28 of the United Nations Convention of July
29, 1951, for the purpose of travel. Except as provided in §223.3(d)(2)(i), a
person who holds refugee status pursuant to section 207 of the Act, or asylum
status pursuant to section 208 of the Act, must have a refugee travel
document to return to the United States after temporary travel abroad unless
he or she is in possession of a valid advance parole document.
|
Canada Evidence Act, R.S.C., 1985, c. C-5:
|
Specified Public Interest
Objection to disclosure of
information
37. (1) Subject to
sections 38 to 38.16, a Minister of the Crown in right of Canada or other
official may object to the disclosure of information before a court, person
or body with jurisdiction to compel the production of information by
certifying orally or in writing to the court, person or body that the
information should not be disclosed on the grounds of a specified public
interest.
Obligation of court, person
or body
(1.1) If an objection is made
under subsection (1), the court, person or body shall ensure that the
information is not disclosed other than in accordance with this Act.
Objection made to superior
court
(2) If an objection to the
disclosure of information is made before a superior court, that court may
determine the objection.
Objection not made to
superior court
(3) If an objection to the
disclosure of information is made before a court, person or body other than a
superior court, the objection may be determined, on application, by
(a) the Federal Court, in the case
of a person or body vested with power to compel production by or under an Act
of Parliament if the person or body is not a court established under a law of
a province; or
(b) the trial division or trial
court of the superior court of the province within which the court, person or
body exercises its jurisdiction, in any other case.
Limitation period
(4) An application under
subsection (3) shall be made within 10 days after the objection is made or
within any further or lesser time that the court having jurisdiction to hear
the application considers appropriate in the circumstances.
Disclosure order
(4.1) Unless the court having
jurisdiction to hear the application concludes that the disclosure of the
information to which the objection was made under subsection (1) would
encroach upon a specified public interest, the court may authorize by order
the disclosure of the information.
Disclosure order
(5) If the court having
jurisdiction to hear the application concludes that the disclosure of the
information to which the objection was made under subsection (1) would
encroach upon a specified public interest, but that the public interest in
disclosure outweighs in importance the specified public interest, the court
may, by order, after considering both the public interest in disclosure and
the form of and conditions to disclosure that are most likely to limit any
encroachment upon the specified public interest resulting from disclosure,
authorize the disclosure, subject to any conditions that the court considers
appropriate, of all of the information, a part or summary of the information,
or a written admission of facts relating to the information.
Prohibition order
(6) If the court does not
authorize disclosure under subsection (4.1) or (5), the court shall, by
order, prohibit disclosure of the information.
Evidence
(6.1) The court may receive
into evidence anything that, in the opinion of the court, is reliable and
appropriate, even if it would not otherwise be admissible under Canadian law,
and may base its decision on that evidence.
When determination takes
effect
(7) An order of the court
that authorizes disclosure does not take effect until the time provided or
granted to appeal the order, or a judgment of an appeal court that confirms
the order, has expired, or no further appeal from a judgment that confirms
the order is available.
Introduction into evidence
(8) A person who wishes to
introduce into evidence material the disclosure of which is authorized under
subsection (5), but who may not be able to do so by reason of the rules of
admissibility that apply before the court, person or body with jurisdiction
to compel the production of information, may request from the court having
jurisdiction under subsection (2) or (3) an order permitting the introduction
into evidence of the material in a form or subject to any conditions fixed by
that court, as long as that form and those conditions comply with the order
made under subsection (5).
Relevant factors
(9) For the purpose of
subsection (8), the court having jurisdiction under subsection (2) or (3) shall
consider all the factors that would be relevant for a determination of
admissibility before the court, person or body.
International Relations and National Defence
and National Security
Definitions
38. The following
definitions apply in this section and in sections 38.01 to 38.15.
“potentially injurious
information” means
information of a type that, if it were disclosed to the public, could injure
international relations or national defence or national security.
“sensitive information” means information
relating to international relations or national defence or national security
that is in the possession of the Government of Canada, whether originating
from inside or outside Canada, and is of a type that the Government of Canada is taking
measures to safeguard.
|
Renseignements d’intérêt public
Opposition à divulgation
37. (1) Sous réserve
des articles 38 à 38.16, tout ministre fédéral ou tout fonctionnaire peut
s’opposer à la divulgation de renseignements auprès d’un tribunal, d’un
organisme ou d’une personne ayant le pouvoir de contraindre à la production
de renseignements, en attestant verbalement ou par écrit devant eux que, pour
des raisons d’intérêt public déterminées, ces renseignements ne devraient pas
être divulgués.
Mesure intérimaire
(1.1) En cas d’opposition, le
tribunal, l’organisme ou la personne veille à ce que les renseignements ne
soient pas divulgués, sauf en conformité avec la présente loi.
Opposition devant une cour
supérieure
(2) Si l’opposition est
portée devant une cour supérieure, celle-ci peut décider la question.
Opposition devant une autre
instance
(3) Si l’opposition est
portée devant un tribunal, un organisme ou une personne qui ne constituent
pas une cour supérieure, la question peut être décidée, sur demande, par :
a) la Cour fédérale,
dans les cas où l'organisme ou la personne investis du pouvoir de contraindre
à la production de renseignements sous le régime d'une loi fédérale ne
constituent pas un tribunal régi par le droit d'une province;
b) la division ou le
tribunal de première instance de la cour supérieure de la province dans le
ressort de laquelle le tribunal, l’organisme ou la personne ont compétence,
dans les autres cas.
Délai
(4) Le délai dans lequel la
demande visée au paragraphe (3) peut être faite est de dix jours suivant
l’opposition, mais le tribunal saisi peut modifier ce délai s’il l’estime
indiqué dans les circonstances.
Ordonnance de divulgation
(4.1) Le tribunal saisi peut
rendre une ordonnance autorisant la divulgation des renseignements qui ont
fait l’objet d’une opposition au titre du paragraphe (1), sauf s’il conclut
que leur divulgation est préjudiciable au regard des raisons d’intérêt public
déterminées.
Divulgation modifiée
(5) Si le tribunal saisi
conclut que la divulgation des renseignements qui ont fait l’objet d’une
opposition au titre du paragraphe (1) est préjudiciable au regard des raisons
d’intérêt public déterminées, mais que les raisons d’intérêt public qui
justifient la divulgation l’emportent sur les raisons d’intérêt public
déterminées, il peut par ordonnance, compte tenu des raisons d’intérêt public
qui justifient la divulgation ainsi que de la forme et des conditions de
divulgation les plus susceptibles de limiter le préjudice au regard des
raisons d’intérêt public déterminées, autoriser, sous réserve des conditions
qu’il estime indiquées, la divulgation de tout ou partie des renseignements,
d’un résumé de ceux-ci ou d’un aveu écrit des faits qui y sont liés.
Ordonnance d’interdiction
(6) Dans les cas où le tribunal
n’autorise pas la divulgation au titre des paragraphes (4.1) ou (5), il rend
une ordonnance interdisant la divulgation.
Preuve
(6.1) Le tribunal peut
recevoir et admettre en preuve tout élément qu’il estime digne de foi et
approprié — même si le droit canadien ne prévoit pas par ailleurs son
admissibilité — et peut fonder sa décision sur cet élément.
Prise d’effet de la
décision
(7) L’ordonnance de
divulgation prend effet après l’expiration du délai prévu ou accordé pour en
appeler ou, en cas d’appel, après sa confirmation et l’épuisement des recours
en appel.
Admissibilité en preuve
(8) La personne qui veut
faire admettre en preuve ce qui a fait l’objet d’une autorisation de
divulgation prévue au paragraphe (5), mais qui ne pourrait peut-être pas le
faire à cause des règles d’admissibilité applicables devant le tribunal,
l’organisme ou la personne ayant le pouvoir de contraindre à la production de
renseignements, peut demander au tribunal saisi au titre des paragraphes (2)
ou (3) de rendre une ordonnance autorisant la production en preuve des
renseignements, du résumé ou de l’aveu dans la forme ou aux conditions que
celui-ci détermine, pourvu que telle forme ou telles conditions soient
conformes à l’ordonnance rendue au titre du paragraphe (5).
Facteurs pertinents
(9) Pour l’application du
paragraphe (8), le tribunal saisi au titre des paragraphes (2) ou (3) prend
en compte tous les facteurs qui seraient pertinents pour statuer sur
l’admissibilité en preuve devant le tribunal, l’organisme ou la personne.
Relations internationales
et défense et sécurité nationales
Définitions
38. Les définitions qui suivent s’appliquent au
présent article et aux articles 38.01 à 38.15.
«
renseignements potentiellement préjudiciables » Les renseignements qui, s’ils sont divulgués, sont
susceptibles de porter préjudice aux relations internationales ou à la
défense ou à la sécurité nationales.
«
«
renseignements sensibles »
Les renseignements, en provenance du Canada ou de l’étranger, qui concernent
les affaires internationales ou la défense ou la sécurité nationales, qui se
trouvent en la possession du gouvernement du Canada et qui sont du type des
renseignements à l’égard desquels celui-ci prend des mesures de protection.
|
Statement of Mutual Understanding on Information Sharing (“SMU”) (entered into by Citizenship and
Immigration Canada (CIC), the U.S. Immigration and Naturalization Service (INS),
and the U.S. Department of States (DOS) and their successors, collectively
referred to as the “Participants”):
|
Article 1:
Definitions
c. “Need
to know” means a determination made by a Participant that specific information
is needed by the requesting Participant in order to perform or assist
in a lawful and authorized government function.
d. “Information”
includes, but is not limited to, all books, papers, maps, photographs,
machine readable materials, or other documentary materials, regardless
of physical form or characteristics including electronic format, made
or received by a Participant that concerns persons, businesses, organizations,
entities, activity or statistical data.
Article
2: Purpose and Scope
Subject to the domestic laws of the
United States and Canada, the Participants are to assist each
other by sharing information in accordance with the provisions of this SMU
for the following purposes:
- to assist in the effective
administration and enforcement of the Participants’ citizenship and
immigration laws;
- to facilitate the secure
flow of people to Canada or the United States through co-operative border management among the
Participants;
- to promote international
justice and security by fostering respect for human rights and by
denying access to the United
States and Canada to persons who are
criminals or security risks.
Article 3: Conditions for Exchange of Information
Under the SMU
Unless otherwise specified in any
Annex to this SMU, the Participants are to share information under the SMU
consistent with domestic law and the purposes set out in Article 2 if
any of the following circumstances exist:
- there are reasonable
grounds to suspect that the information would be relevant to the
administration or enforcement of the citizenship or immigration laws of
either Canada or the United
States;
Article 6: Subsequent Uses and Treatment
Subsequent uses and treatment of
information shared under this SMU and its annexes are restricted by the
following conditions:
a. Information is shared between the Participants pursuant to an express
understanding of strict confidentiality. Such information, as well as
inquiries and requests for information, received by a Participant under this
SMU is to be accorded protection from disclosure to third parties as provided
under the laws and policies of the receiving Participant with regard to such
information;
- Receiving Participants are
not to use or disclose the information provided under this SMU except
for the purposes enumerated in Article 2 or the Annexes, or as
otherwise required by the laws of the Participant;
-
- The
Participants are to obtain written permission for the disclosure to
third parties of any confidential information received pursuant to this
SMU prior to such disclosure, or as specified in the Annexes, unless
there is a compelling need that would justify a Participant’s not
making such a written request, in which case the requesting Participant
is to give written notice of the disclosure to the providing
Participant as soon as practicable; however
- The
Participants acknowledge that written permission is not required for
disclosure of information to agencies participating as signatories of
the SMU and other agencies in the performance of their citizenship,
immigration or border management functions (including the U.S. Coast
Guard, U.S. Customs Service, U.S. Department of Agriculture, U.S. Federal
Bureau of Investigation, U.S. Central Intelligence Agency, U.S.
Department of Defense, Canada Customs and Revenue Agency, Canadian Food
Inspection Agency, Health Canada, Canadian Security Intelligence
Service, Canadian Department of Fisheries and Oceans, Canadian
Department of Foreign Affairs and International Trade, Canadian
Department of National Defence; Royal Canadian Mounted Police, or their
successors and with oversight and review agencies within the United
States and Canada);
- A
receiving Participant is to provide notice to any third party to which
it discloses information received in confidence under the SMU that the
third party is prohibited from further disclosure unless it obtains
authorization from the providing Participant; and
- To prevent the
unauthorized disclosure, copying, use, or modification of information
provided to a Participant under this SMU, receiving Participants are to
restrict access to such information on a need to know basis, and use
recognized security mechanisms such as passwords, encryption, or other
reasonable safeguards to prevent unauthorized access.
|
|
|
Annex Regarding the Sharing of
Information on Asylym and Refugee Status Claims to the Statement of Mutual
Understanding on Information Sharing:
|
Article 3: Applicability
This Annex does not apply to
refugee status claims made by persons who are citizens of Canada or the United States or who, not having
a country of nationality, are habitual residents of Canada or the United States. This
Annex applies to sharing, on a systematic or case-by-case basis, of
information concerning refugee status claims made in either Participant’s
territory. This Annex does not preclude sharing of information on a
case-by-case pursuant to the SMU or any other annex to the SMU.
Article 5: Data Elements to be shared
There are four broad categories of
information that may be shared:
- information relating to
the identity of the refugee status claimant;
- information relating to
the processing of the refugee status claim;
- information relevant to a
decision to deny a refugee status claimant access to, to exclude such a
claimant from the protection of, the refugee determination system, or to
terminate, cancel or revoke an individual’s existing refugee status in
the United States or Canada; and
- information regarding the
substance or history of previous refugee status claim(s) that will
assist in determining a subsequent refugee status claim.
1.
Information
relating to the identity of the refugee status claimant
Information concerning the identity of a refugee status claimant is essential
to the determination of a refugee status claim. In order to establish the
identity of a refugee status claimant, the officer relies upon biographic,
descriptive or biometrics data. Not all of the identifying data characteristics
listed below may be available for each refugee status claimant. The
identification information that may be shared under this Annex includes, but
is not limited to:
o
Name and
aliases used;
o
Client
identification number (for respective Participant’s reference only);
o
Gender
(both birth and post-operative, if applicable);
o
Physical
description;
o
Biometrics,
including fingerprints, photographs and physical descriptions;
o
Date of
birth (both claimed and actual);
o
Country of
birth (both claimed and actual);
o
Nationality
or nationalities (both claimed and actual);
o
Information
relating to identity documents (e.g. passport number); and
o
Other
relevant identification data (e.g., FBI number, driver’s license number).
2.
Information
relating to the processing of the refugee status claim
Information regarding the status of a previous or ongoing refugee status
claim in the country of one Participant is relevant to the determination of a
refugee status claim in the country of the other Participant. This information
refers to the processing of the person’s refugee status claim in Canada or
the United States, and consists of, but is not
limited to:
o
Information
regarding whether the refugee status claim was denied access to the refugee
determination system, has been decided, remains pending, or has been declared
abandoned or voluntarily withdrawn;
o
If the
refugee status claim has been decided, information on whether protection was
granted or denied, including the disposition of any appeals; and
o
Information
regarding the cessation or vacation of a determination on a refugee status
claim.
3.
Information
relevant to a decision to deny a refugee status claimant access to, or
exclude such a claimant from the protection of, the refugee status
determination system or to terminate, cancel or revoke an individual’s
existing refugee status in the United States or Canada.
This information is relevant to the decision whether or not to allow the
refugee status claimant access to the refugee status determination system.
This information may also be relevant to the decision as to whether or not a
person ought to be excluded from refugee protection pursuant to
Article 1E or 1F or denied protection according to Article 33(2) of
the 1951 Convention, as implemented in the refugee status determination
systems of the Participants. In Canada, this information may also be
relevant to the decision as to whether the Minister of Immigration decides to
participate in the refugee status determination process pursuant to Canadian
law. The information that may be shared includes, but is not limited to:
o
Information
related to a determination that a refugee status claimant falls or fell
within the provisions of Article 1E or 1F of the 1951 Convention
Relating to Status of Refugees, as implemented by the Participant;
o
Information
related to a determination that a refugee status claimant falls or fell
within the provisions of Article 33(2) of the 1951 Convention
Relating to Status of Refugees, as implemented by the Participant;
o
Information
concerning any outstanding criminal warrants or criminal convictions
pertaining to a refugee status claimant, or the nature of any criminal
offence that either Participant has reasonable grounds to suspect a refugee
status claimant has committed;
o
Information
concerning security allegations pertaining to a refugee status claimant, or
the nature of any security risk that either Participant has reasonable
grounds to suspect a refugee status claimant might present;
o
Information
related to outstanding immigration warrants pertaining to a refugee status
claimant or the nature of any immigration offence(s) that either Participant
has reasonable grounds to suspect a refugee status claimant has committed.
4.
Information
regarding the substance or history of any previous refugee status claim(s)
that will assist in determining a subsequent refugee status claim.
Information regarding previous refugee status claims is relevant to the
assessment of subsequent claims, including the assessment of credibility.
Such information includes, but is not limited to:
o
Country of
last habitual residence;
o
Address;
o
Marital
status and family composition;
o
Immigration
status;
o
Date(s) of
arrival;
o
Places(s)
of entry;
o
Manner of
entry;
o
Information
concerning routes of travel;
o
Occupational
information;
o
Education;
o
Information
submitted in support of a refugee status claim;
o
Information
related to the substance of the refugee status claim; and
o
Records of
decisions taken with respect to the refugee status claim, including reasons.
Article 6: Mechanism for Sharing Data
b. Case-by-case
sharing of information
In
addition to the systematic sharing of information, the Participants
may, in accordance with procedures set forth in the SMU,
share information described in Article 5 of this Annex concerning
refugee status claims on a case-by-case basis pursuant to
the request of either Participant.
Article 7: Confidentiality
a. Each
Participant is to protect from disclosure to any non-participant, to the
fullest extent provided under its country’s laws and regulations, any and all
information, inquiries and requests for information received from the other
Participants under this Annex.
b. Protection
of a refugee status claimant includes protecting the confidentiality of an
individual’s identity and of the information provided in the individual’s
refugee status claim, including the fact that an individual has submitted a
refugee status claim. Unauthorized release of such information may place the
refugee status claimant or a member of the refugee status claimant’s family
at risk of serious harm, including persecution and torture. Consequently,
each Participant is to treat as confidential and protect from disclosure to
any non-participant, to the fullest extent provided under its country’s laws
and regulations, any and all information, inquiries, and requests for
information received from the other Participant under this Annex. The
Participants are to seek to ensure that information is not exchanged or
disclosed to a Participant or non-Participant in such a way as to place
refugee status claimants or their families at risk in their countries of
nationality, or if stateless, countries of last habitual residence.
c. The
Participants acknowledge that written permission is not required, pursuant to
Article 6(c)(i) of the SMU, for the disclosure of information related to
the refugee status claim to other agencies to further their adjudication or
review of refugee status claims. Thus, a Participant may, for example,
release confidential information to the Executive Office for Immigration
Review, United
States federal
courts, and the Immigration and Refugee Board and Federal Court of Canada, in
connection with or in furtherance of the adjudication of a refugee status
claim.
d. Disclosure
by the receiving Participant of any information received under this Annex to
foreign governments or international organizations requires the written
consent of the providing Participant.
|
|
|
Email this Content