Docket: IMM-1651-11
Citation: 2012 FC 370
Ottawa, Ontario, March 29, 2012
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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ZORICA VUKIC
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Zorica
Vukic’s application for permanent residence was refused because a visa officer
determined that there were reasonable grounds to believe that her husband was
inadmissible to Canada for having been a member of
an organization engaged in espionage.
[2]
For the
reasons that follow, I am satisfied that Mrs. Vukic and her husband were
treated fairly in the immigration process, and that the officer’s
inadmissibility finding was reasonable. Consequently the application for
judicial review will be dismissed.
Background
[3]
Mrs. Vukic
is a Serbian citizen, currently living in Ottawa under a Temporary Resident Work Permit.
[4]
Mrs.
Vukic’s husband, Zoran, worked at the Embassy of the Federal Republic of Yugoslavia (now Serbia and Montenegro) in Ottawa between 1998 and 2002. He was the
Communications Attaché at the Embassy, and was responsible for receiving and
transmitting all secure communications between the Embassy and the Ministry of
Foreign Affairs in Belgrade.
[5]
Mr. Vukic
says that as the Communications Attaché, he was required to transmit encrypted
messages to the Ministry of Foreign Affairs in Belgrade. The only other method of secure
communication between the Embassy in Ottawa and the Ministry in Belgrade was by diplomatic bag or
courier. These communications were co-ordinated by a different official at the
Embassy.
[6]
Mr. Vukic
was interviewed at the Canadian Embassy in Belgrade on August 16, 2005, in connection with
the family’s application for permanent residence. On December 21, 2005, Mrs.
Vukic and her family were informed that the Visa Section in Vienna was in possession of new
information that required further investigation. Mr. Vukic was interviewed once
again on March 20, 2006.
[7]
By letter
dated May 4, 2007, Mrs. Vukic was advised that there were “reasonable grounds
to believe” that Mr. Vukic was inadmissible to Canada under section 34(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27. The letter stated that Mr.
Vukic is or was a member of the Sluzba za istrazavanje dokumentacije (or
“SID”), an organization that systematically engaged in espionage against
Western democratic governments and institutions during the Communist era. The
letter also invited Mr. and Mrs. Vukic to submit additional information if they
had evidence to rebut this concern.
[8]
Mr. and
Mrs. Vukic subsequently provided the officer with a substantial package of
material including, amongst other things, Mr. Vukic’s curriculum vitae,
affidavits from a number of individuals (including two former ambassadors), an
organization chart for the Ministry of Foreign Affairs and documents relating
to Mr. Vukic’s employment.
[9]
The visa officer
nevertheless determined that there were reasonable grounds to believe that Mr.
Vukic was inadmissible to Canada under section 34(1) of IRPA,
and that as a member of Mr. Vukic’s family, Mrs. Vukic was also inadmissible to
Canada under section 42(a) of IRPA.
[10]
Mrs. Vukic
sought leave to commence an application for judicial review of this decision.
This application was subsequently discontinued on consent on the basis that the
matter would be reconsidered by a different visa officer.
[11]
Mr. Vukic
was interviewed by the new visa officer in Vienna on February 9, 2011 and a negative
decision was rendered in relation to the application for permanent residence
the following day.
The Visa Officer’s Decision
[12]
The visa officer
found that Mrs. Vukic was inadmissible to Canada under section 42(a) of IRPA
as a result of her husband being inadmissible under paragraphs 34(1)(a) and
(f) of IRPA. The officer found that there were reasonable grounds to
believe that Mr. Vukic was inadmissible to Canada for having been a member of the SID, an
organization engaged in espionage. The officer based her decision on three main
findings.
[13]
First, the
officer found that Mr. Vukic’s evidence that he was employed by the Ministry of
Foreign Affairs did not preclude him from also working with or for the SID
during the same period.
[14]
Second, the
officer noted that Mr. Vukic was the only communications officer working at the
Yugoslavian Embassy in Ottawa between 1998 and 2002, and that he was
responsible for receiving and transmitting all secure communications between
the Embassy and Belgrade. In light of this, the officer
found that Mr. Vukic’s statement during his February 9, 2011 interview that he
never saw communications to or from the SID was not credible. The officer also
noted that this statement appeared to contradict earlier statements provided by
Mr. Vukic.
[15]
Finally, the
officer did not accept Mr. Vukic’s statement that he did not know how the SID
operated at the Embassy in Ottawa. The officer found that it
was difficult to believe that Mr. Vukic would have no knowledge of the presence
and activities of the SID at the Embassy, given that he had worked at the
Embassy for four years as one of a very small contingent of employees. The officer
also observed that Mr. Vukic’s predecessor had worked for the SID.
[16]
Mrs. Vukic
submits that she and her husband were treated unfairly by the visa officer, and
that the inadmissibility decision was unreasonable.
Legislative Framework
[17]
Before turning to
consider the facts of this case, it is helpful to have an understanding of the
inadmissibility provisions in issue in this case. These are paragraphs 34(1)(a)
and (f) and section 42(a) of IRPA.
They provide that:
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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;
[…]
(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).
42. A
foreign national, other than a protected
person, is
inadmissible on grounds of an inadmissible
family member
if
(a)
their accompanying family member or,
in prescribed
circumstances, their non-accompanying
family member
is inadmissible;
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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;
[…]
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).
42. Emportent, sauf pour le résident
permanent ou une personne protégée, interdiction de territoire pour
inadmissibilité familiale les faits suivants :
a) l’interdiction de
territoire frappant tout membre de sa famille qui l’accompagne ou qui, dans
les cas réglementaires, ne l’accompagne pas;
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[18]
In making a finding
under section 34(1) of the Act, an immigration officer is also to be guided by
section 33 of IRPA, which provides that:
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33. The facts that constitute
inadmissibility under sections 34 to 37 include facts arising from omissions
and, unless otherwise provided, include facts for which there are reasonable
grounds to believe that they have occurred, are occurring or may occur.
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33. Les faits — actes ou omissions —
mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés
sur la base de motifs raisonnables de croire qu’ils sont survenus,
surviennent ou peuvent survenir.
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Were Mr. and Mrs. Vukic Treated Unfairly
by the Visa Officer?
[19]
Mrs. Vukic
alleges that she and her husband were treated unfairly by the visa officer.
According to Mrs. Vukic, they were not provided with the evidence against Mr.
Vukic, and thus did not have a fair opportunity to respond to the officer’s
concerns. Mrs. Vukic also alleges that the officer’s reasons were inadequate
and that the visa officer was biased.
[20]
I agree
that the disclosure and bias questions raise issues of procedural fairness.
However, the sufficiency of the reasons provided by the officer goes to the
reasonableness of the decision: Newfoundland and Labrador Nurses' Union v.
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708.
[21]
Where an issue of
procedural fairness arises, the task for the Court is to determine whether the
process followed by the decision-maker satisfied the level of fairness required
in all of the circumstances: see Canada (Citizenship and Immigration) v.
Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 43.
[22]
The
jurisprudence of this Court has established that the duty of fairness will not
be breached as long as an applicant had an opportunity to respond to the visa officer’s
concerns: see, for example, Moiseev v. Canada (Minister of Citizenship and
Immigration),
2008 FC 88 at para. 28; Jahazi v. Canada (Minister of Citizenship and
Immigration),
2010 FC 242 at para. 52.
[23]
In this
case, Mrs. Vukic had been aware since February of 2007 that immigration
officials were concerned about her husband’s past association with the SID.
These concerns were put to Mr. Vukic during his various interviews, and he was
offered a complete opportunity to address the officer’s concerns in the course
of those interviews.
[24]
Mr. and
Mrs. Vukic were also provided with an opportunity to provide the officer with
whatever documentary evidence that they wanted to provide in order to support
their position. Moreover, they took full advantage of this opportunity.
[25]
Indeed,
the applicant has not identified any evidence or information relied upon
by the visa officer in arriving at her decision of which they were unaware, or
which caught either Mrs. Vukic or her husband by surprise. Nor has the couple
identified any information relied upon by the officer to which they were denied
an opportunity to respond.
[26]
Mrs. Vukic
also alleges that the officer was biased, and that the officer was
“intentionally and maliciously trying to invent contradictions from previous
interviews in order to justify her decision and to protect evidence that she
[refused] to disclose”. It is also alleged that the officer “tamper[ed] with
the truth and construe[d] lies”: see Mrs. Vukic’s memorandum of fact and law at
para. 37.
[27]
The test
for determining whether actual bias or a reasonable apprehension of bias exists
in relation to a particular decision-maker is well known. The question for the
Court is what an informed person, viewing the matter realistically and
practically - and having thought the matter through - would conclude. That is,
would he or she think it more likely than not that the decision-maker, either
consciously or unconsciously, would not decide fairly: see Committee for
Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at p.
394.
[28]
An
allegation of bias, especially an allegation of actual, as opposed to
apprehended, bias, is a serious allegation. Indeed, it challenges the very
integrity of the adjudicator whose decision is in issue. As a consequence, the
threshold for establishing bias is high: R. v. S. (R.D.), [1997]
3 S.C.R. 484, at para. 113.
[29]
Mrs. Vukic
has provided no persuasive evidence to demonstrate that the officer was biased
in this case. The fact that Mrs. Vukic may not agree with the officer’s
assessment of the evidence or with the inferences drawn by the officer from
that evidence is not proof of bias on the part of the officer. Her concerns in
this regard will, however, be addressed in considering the reasonableness of
the officer’s decision.
[30]
As a
consequence, I am not persuaded that the process followed by the visa officer
in this case was unfair.
Was the Visa Officer’s Decision
Unreasonable?
[31]
I
understand the parties to agree that the officer’s finding in relation to the
issue of membership is reviewable on the standard of reasonableness. Given
that what is in issue is a question of mixed fact and law, I agree that this is
the appropriate standard of review: see Poshteh v. Canada (Minister of Citizenship and
Immigration),
2005 FCA 85, [2005] F.C.J. No. 381.
[32]
In reviewing
a decision against the reasonableness standard, the Court must consider the
justification, transparency and intelligibility of the decision-making process,
and whether the decision falls within a range of possible acceptable outcomes
which are defensible in light of the facts and the law: see Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190, at para. 47, and Khosa, above at para. 59.
[33]
Mrs. Vukic
takes issue with the officer’s failure to define the term “espionage” in her
decision, and with the officer’s failure to identify any acts on the part of
Mr. Vukic that would meet that definition.
[34]
This
submission misconstrues the nature of the inadmissibility finding made in this
case. The officer did not find that Mr. Vukic was himself personally involved
in any acts that constituted espionage. Rather, the officer concluded that
there were reasonable grounds to believe that Mr. Vukic was a member of, or
worked in close collaboration with the SID, an organization which was involved
in espionage.
[35]
Mrs. Vukic
has not challenged the officer’s finding that the SID was an organization that
systematically engaged in espionage against Western democratic governments and
institutions during the Communist era. Moreover, this finding was amply
supported by the record, which identified the SID as a department within the
Ministry of Foreign Affairs that was responsible for cryptologic and secure
communications support for Yugoslav embassies abroad. This evidence also showed
that the SID co-ordinated the overseas collection of political and economic
intelligence, as well as intelligence concerning Yugoslav émigrés.
[36]
Therefore,
the only issue is whether there were reasonable grounds to believe that Mr.
Vukic was a “member” of the SID organization for the purposes of paragraph
34(1)(f) of IRPA.
[37]
The
Supreme Court of Canada described the “reasonable grounds to believe” evidentiary standard in Mugesera v. Canada (Minister of Citizenship and
Immigration),
2005 SCC 40, [2005] 2 S.C.R. 100, as requiring
“something more than mere suspicion, but less than the standard applicable in
civil matters of proof on the balance of probabilities”. The Supreme Court
went on to hold that reasonable grounds will exist “where there is an objective
basis for the belief which is based on compelling and credible information”: at
para. 114.
[38]
Insofar as the test
for membership is concerned, it is clear that actual or formal membership in an
organization is not required – rather the term is to be broadly understood: see
Chiau v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C.
642 at para. 34. Moreover, there will always be some factors that support a
membership finding, and others that point away from membership: see Poshteh,
above at para. 36.
[39]
Mrs. Vukic
submits that the officer’s membership finding was not supported by any evidence
or findings and was thus unreasonable. She further contends that the visa officer
relied on dubious speculative information and made grave accusations against
Mrs. Vukic’s husband which have tarnished the reputation of the family. As was
noted earlier, Mrs. Vukic also contends that the reasons given by the officer
for her inadmissibility finding were inadequate.
[40]
I do not
accept any of these arguments.
[41]
Much of
the evidence adduced by Mr. Vukic demonstrated that he was employed by the
Ministry of Foreign Affairs. The officer considered this evidence, observing
that the fact that Mr. Vukic worked for the Ministry of Foreign Affairs did not
preclude him from also working for the SID. This was a reasonable finding.
[42]
Not only
does the organization chart provided by Mr. Vukic show that the SID is in fact
a part of the Ministry of Foreign Affairs, Mr. Vukic also acknowledged in his
December, 2006 interview that the SID and the Ministry of Foreign Affairs were
“intertwined”.
[43]
Mr. Vukic
also asserts that the officer erred in finding that his predecessor worked for
the SID. According to Mr. Vukic, his evidence had been that his predecessor
only went to work for the SID after returning to Belgrade. While Mr. Vukic does appear
to have stated at one point in his February, 2011 interview that his
predecessor had gone to work for the SID after returning to Belgrade, his evidence on this point
was not entirely clear or consistent.
[44]
Indeed,
later in his February, 2011 interview, Mr. Vukic appears to have acknowledged
the possibility that one could work for both the SID and the Ministry of
Foreign Affairs at the same time. That is, he seemed to accept that a Ministry
of Foreign Affairs official at the Embassy may have also been working for the
SID while in Ottawa. It is not clear if this
individual was Mr. Vukic’s predecessor or a different individual.
[45]
In any
event, I am not persuaded that any error that may have been made by the officer
in this regard was sufficiently material to the inadmissibility decision as to
justify setting aside the decision. As will be explained below, the officer had
a number of other reasons for finding Mr. Vukic to be inadmissible, each of
which can withstand scrutiny.
[46]
The officer
examined the evidence with respect to the nature of Mr. Vukic’s employment
while he was working at the Embassy in Ottawa. Given the fact that Mr. Vukic
acknowledged that he was solely responsible for the sending and receiving of
encrypted messages between the Embassy and Belgrade, it was reasonable for the officer to
find that Mr. Vukic would therefore have been involved in the transmission of
messages to and from the SID.
[47]
Given the
broad and unrestricted meaning to be given to the word “member” as it appears in
paragraph 34(1)(f) of IRPA, it was also reasonable for the officer to
find that Mr. Vukic’s support for the activities of the SID was sufficient to
bring him within the scope of the paragraph.
[48]
Moreover,
it was open to the officer to assess the credibility of Mr. Vukic’s statement
at his February, 2011 interview that he never saw any communications to or from
the SID during the time that he worked at the Embassy. The officer’s conclusion
that this claim was not credible was reasonable, particularly in light of Mr.
Vukic’s own description of his role as a “cypher clerk”, and his
acknowledgement of his role in transmitting and receiving of encrypted
messages, some of which he acknowledged were “classified”.
[49]
The officer
noted Mr. Vukic’s claim that messages to and from the SID would have gone
through the political counsellor rather than through Mr. Vukic himself.
However, as the officer noted, Mr. Vukic also stated that the counsellor left
the Embassy a couple of years after Mr. Vukic started working there. Mr. Vukic
claimed not to know who was responsible for communications with the SID after
the political counsellor left, although he said that he had his suspicions.
[50]
It was
also reasonable for the visa officer to question the credibility of Mr. Vukic’s
statement that he had never seen any communication for or from the SID in light
of the notes in the record indicating that Mr. Vukic had previously admitted
that some of the messages that he sent to Belgrade may indeed have been
destined for the SID.
[51]
Finally,
the reasons provided by the officer clearly explain the basis for the
inadmissibility finding. They meet the standard of justification, transparency and
intelligibility required of a reasonable decision.
[52]
Given that
the officer’s finding that there were reasonable grounds to believe that Mr.
Vukic was
inadmissible to Canada for having been a member of
the SID was itself reasonable, it follows that the finding that Mrs. Vukic was
inadmissible to Canada under section 42 of IRPA
as the spouse of an inadmissible individual was also reasonable.
Conclusion
[53]
For these reasons, I
am satisfied that there was no unfairness in the process followed in this case.
I am further satisfied that the officer’s finding that there were reasonable
grounds to believe that Mr. Vukic was inadmissible to Canada for having been a
member of an organization engaged in espionage was reasonable. It was thus
reasonable to conclude that Mrs. Vukic was herself inadmissible to Canada under subsection 42(a) of the Immigration and Refugee Protection Act.
[54]
As a consequence, the
application for judicial review is dismissed.
Certification
[55]
Neither party has
suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This application
for judicial review is dismissed; and
2. No serious
question of general importance is certified.
“Anne
Mactavish”
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