Date: 20091021
Dockets: IMM-1105-09
IMM-1107-09
Citation: 2009
FC 1064
Ottawa, Ontario, October 21, 2009
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
ALI
FARKHONDEHFALL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Ali Farkhondehfall seeks judicial review of two decisions of an
immigration officer. The first found that, in accordance with section 34(1) of
the Immigration and Refugee Protection Act, S.C. 2001, c.27, he was
inadmissible to Canada as there were reasonable grounds to believe that he had
been a member of an organization that engages, has engaged or will engage in
acts of terrorism. The second decision dismissed his application for
permanent residence because of his inadmissibility.
[2]
The Minister of Citizenship and Immigration has brought motions for the
non-disclosure of portions of the Certified Tribunal Record in each case, in
accordance with section 87 of IRPA. The Minister asserts that the
disclosure of the redacted information would be injurious to national security
or to the safety of any person.
[3]
In response to the Minister’s section 87 motions, Mr. Farkhondehfall has
brought motions of his own seeking the appointment of a special advocate to
protect his interests in the section 87 proceedings in each application.
[4]
For the reasons that follow, I have determined that considerations of
fairness and natural justice do not require the appointment of a special
advocate to protect the interests of Mr. Farkhondehfall in either application.
As a consequence, the motions seeking the appointment of a special advocate will
be dismissed.
Background
[5]
Mr. Farkhondehfall is a citizen of Iran. He arrived in Canada in 1991
and was granted refugee protection shortly thereafter. Mr. Farkhondehfall then
applied for permanent residence, and his application was approved in principle
in June of 1993.
[6]
Mr. Farkhondehfall was interviewed by an immigration officer on two
occasions in between December of 1998 and December of 2001. It was subsequently
determined that he was inadmissible to Canada under the provisions of section
19(1)(f)(iii)(B) of the former Immigration Act. Mr. Farkhondehfall’s
application for Ministerial relief was later rejected, as was his application
for permanent residence.
[7]
Mr. Farkhondehfall then sought judicial review of both the refusal of
his application for permanent residence, as well as the refusal of Ministerial
relief. Leave was granted in both cases, and section 87 motions were brought
by the Minister in the context of those proceedings.
[8]
Mr. Farkhondehfall made no submissions with regard to the Minister’s
motions for non-disclosure. Instead, his counsel submitted a letter stating
that “Upon review of the tribunal record and in view of the fact that the
majority of the evidence has been disclosed, we will not be seeking the
appointment of a special advocate.”
[9]
The section 87 motions were then dealt with by Justice Hansen, who
granted an order of non-disclosure with respect to most of the redactions
claimed by the Minister, having been satisfied that the disclosure of the
redacted information would be injurious to the national security of Canada or
endanger the safety of any person.
[10]
Both of Mr. Farkhondehfall’s applications for judicial review were
ultimately allowed on consent, and the cases remitted to the Minister and to an
immigration officer for redetermination. It is the decisions resulting from
the redetermination of Mr. Farkhondehfall’s admissibility and his eligibility
for permanent residence that underlie his current applications for judicial
review.
[11]
The issue of Ministerial relief is not currently before the Court.
Following Justice Hansen’s decision setting aside the initial refusal of
Ministerial relief, Mr. Farkhondehfall’s request was turned down a second time
by the Minister. Leave to judicially review this second decision was denied by
this Court.
[12]
Counsel agree that with one exception, the contents of the two records
before me in these applications, and the redactions that have been made to
these records, are identical to the records and redactions that were before
Justice Hansen. The exception involves an email that was generated after
Justice Hansen’s decision, in the context of the redetermination proceedings,
which thus only appears in the records before me. This six page document has
five lines of text redacted from it.
The Minister’s Issue Estoppel Argument
[13]
The Minister argues that the request for the appointment of a special
advocate should not be entertained as Mr. Farkhondehfall is barred from seeking
such an appointment due to the principles of issue estoppel.
[14]
As I understand the Minister’s argument, having declined to seek the
appointment of a special advocate in earlier proceedings, and given that the
redactions in issue now are essentially the same as they were in those earlier
proceedings, Mr. Farkhondehfall should now be estopped from seeking the
appointment of a special advocate in the context of these applications.
[15]
I am not satisfied that the doctrine of issue estoppel has any application
in this case.
[16]
Issue estoppel is a public policy doctrine designed to advance the
interests of justice: Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R.
460, 2001 SCC 44. Its object is to prevent parties from re-litigating issues
that have already been decided in other proceedings.
[17]
The policy considerations underlying the doctrine of issue estoppel
include the need to have an end to litigation, as well as the desire to protect
individuals from having to defend multiple legal proceedings arising out of the
same set of circumstances: Angle v. Canada (Minister of National Revenue –
M.N.R.), [1975] 2 S.C.R. 248, at p.267, per Laskin J. (dissenting).
[18]
Concerns have also been expressed about the cost of duplicative
proceedings, as well as the risk of inconsistent results if the same issue is
pursued in multiple fora: Rasanen v. Rosemount Instruments Ltd. [1994]
O.J. No. 200, 17 O.R. (3d) 267 (Ont. C.A.), at para. 69, per Carthy J.A. (concurring
in the result).
[19]
As the Supreme Court of Canada noted in Angle, there are three
elements that must be established to engage the doctrine of issue estoppel:
i) The same
issue has been decided in an earlier proceeding;
ii) The
decision which raises the issue estoppel is a final decision; and
iii) The
parties to the two proceedings are the same parties, or are their privies. (at
p.254)
[20]
The issue of Mr. Farkhondehfall’s entitlement to the appointment of a
special advocate has never been decided before now. As a result, there is no
“decision”, final or otherwise, that could possibly give rise to an estoppel.
[21]
To the extent that the Minister’s argument may more properly be framed
in terms of waiver, the fact that Mr. Farkhondehfall may have waived his right
to seek the appointment of a special advocate in earlier proceedings has little
bearing on the issues before the Court in this case. There could be any number
of reasons, strategic or otherwise, as to why no such motion was brought in the
context of the previous litigation. Therefore, I do not view Mr.
Farkhondehfall’s failure to seek the appointment of a special advocate in
earlier proceedings as creating any impediment to his seeking such an
appointment now.
Mr. Farkhondehfall’s Submissions on the Special Advocate
Issue
[22]
Mr. Farkhondehfall contends that a number of factors should be weighed
by the Court in assessing whether considerations of fairness and natural
justice require the appointment of a special advocate to protect the interests
of an individual in a given case. No one factor will necessarily be
determinative – rather, the task for the Court should be to balance all of the
competing considerations in order to arrive at a just result.
[23]
Mr. Farkhondehfall submits that although his liberty interests are
admittedly not engaged in these proceedings in the way that they would be in a
security certificate case, the decisions in issue here are nonetheless very
important to him. Without permanent residency, Mr. Farkhondehfall cannot leave
the country or sponsor family members to come to Canada. He is also unable to
apply for Canadian citizenship.
[24]
As a consequence, taking into account the factors identified by the
Supreme Court of Canada in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2
S.C.R. 817, Mr. Farkhondehfall argues that the content of the duty
of procedural fairness owed to him in relation to these proceedings should be
relatively high. In support of this contention, he also relies on the decision
of Justice Dawson in Mekonen v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1133, 66 Imm. L.R. (3d) 222, at
para.17, which came to the same conclusion in the context of an admissibility
assessment under subsection 34(1) of IRPA.
[25]
Referring to the observations of the Supreme Court of Canada in Charkaoui
v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350,
Mr. Farkhondehfall points out that judges in Canada do not perform an
inquisitorial function, and that it is through the adversarial system that
evidence is tested.
[26]
Mr. Farkhondehfall further observes that special advocates have been
appointed in cases involving proceedings under section 38 of the Canada
Evidence Act, in order to meet the requirements of procedural fairness: see
Canada (Attorney General) v. Khawaja, 2007 FC 463, 280 D.L.R. (4th) 32,
and Khadr v. Canada (Attorney General), 2008 FC 46, 322 F.T.R. 256.
[27]
Finally, Mr. Farkhondehfall argues that the amount of material redacted
from the records in these two proceedings is significant and appears to relate
specifically to the issue of his alleged membership in the Mujahedin-e-Khalq
(or “MEK”). As such, Mr. Farkhondehfall should have the opportunity to have
that information tested and to have potentially contrary evidence adduced on
his behalf.
Analysis
[28]
The special advocate provisions of the Immigration and Refugee
Protection Act had their genesis in the Supreme Court of Canada’s decision
in the Charkaoui case. There, the Court held that in light of the
significant liberty and security interests at stake in security certificate proceedings,
the requirements of fundamental justice necessitated that the individual named
in the certificate be provided with full disclosure of the case against him or
her, or a “substantial substitute” for such disclosure had to be found: see Charkaoui,
at para. 61.
[29]
While the amendments made to IRPA in the wake of the Charkaoui
decision made the appointment of special advocates mandatory in security
certificate proceedings, the appointment of special advocates in other types of
cases under the Act is left to the discretion of the presiding designated
judge.
[30]
That is, section 87.1 of IRPA gives this Court the discretion to
appoint a special advocate if it “is of the opinion that considerations of
fairness and natural justice require” such an appointment in order to protect
the interests of an applicant.
[31]
I agree with Mr. Farkhondehfall that in considering a motion such as
this, a number of factors should be weighed by the Court in assessing whether considerations
of fairness and natural justice require the appointment of a special advocate to
protect the interests of the individual. I also accept that no one factor will
necessarily be determinative – rather, the task for the Court should be to
balance all of the competing considerations in order to arrive at a just
result.
[32]
One set of related factors to be considered involves the importance of
the decision in issue to the individual, the nature of the interests affected,
and the degree of procedural fairness to which the individual is entitled in
the case at hand.
[33]
As the Supreme Court observed in Baker, the content of the duty
of fairness is variable, and how much fairness will be owed in a given case
depends on the context of the specific case, including the importance of the
issues for the person so affected.
[34]
While the decisions underlying these applications for judicial review
are undoubtedly important to Mr. Farkhondehfall, they do not involve either his
liberty interests or his removal from this country. While counsel contends
that negative decisions in relation to Mr. Farkhondehfall’s admissibility and
his eligibility for permanent residence could potentially lead to his removal
from Canada further down the road, such an argument is speculative, at best, at
this stage in the process. Indeed counsel herself described the possibility of
Mr. Farkhondehfall’s eventual removal from Canada as “theoretical”.
[35]
That said, the nature of the decisions in issue and the limitations that
his current status necessarily imposes on Mr. Farkhondehfall’s activities are sufficiently
serious as to dictate that he be entitled to a relatively high level of
procedural fairness.
[36]
So too does the objective nature of the decisions in issue, and the fact
that no appeal is provided for by the Immigration and Refugee Protection Act
with respect to either of the decisions under review: see Mekonen, at
para. 17. Insofar as this latter consideration is concerned, Mr.
Farkhondehfall is limited to his applications for judicial review, and then
only with leave of the Court.
[37]
Another relevant consideration is the amount of information that has not
been disclosed to Mr. Farkhondehfall. He says that the amount of the redacted
information is “substantial”. I do not agree that this is so.
[38]
As this Court observed in Segasayo v. Canada (Minister
of Public Safety and Emergency Preparedness), 2007 FC 585, 313 F.T.R. 106,
in security certificate proceedings, the amount of information that is not
disclosed to the subject of the certificate will usually be extensive.
Moreover, the individual in question will have no way of knowing the extent of
the non-disclosure: see Segasayo, at para. 28.
[39]
In contrast, the redactions from the records in these proceedings are
minimal. The tribunal records in each of these cases are identical. Each is
282 pages in length. Redactions appear on 16 pages. In a number of cases, the
redactions amount to a word or two, or a couple of lines of text. As the
Minister pointed out, it is apparent on the face of the redacted record that some
redactions merely involve telephone numbers, or the names of CSIS personnel.
[40]
Moreover, as Justice Noël observed in Dhahbi c. Canada (Ministre de
la citoyenneté et de l’immigration), 2009 CF 347, experience has shown that
in cases such as this, the information redacted from the record often adds
little to the matters in issue. Examples cited by Justice Noël include
references to investigative techniques, administrative and operational methods,
and information regarding relationships between CSIS and other agencies in Canada
and abroad: at para. 24. A number of the redactions in issue in this case
clearly fall within that description.
[41]
Another relevant consideration is the extent to which the affected
individual has been made aware of the case that they have to meet.
[42]
A careful review of the unredacted Certified Tribunal Record in these
cases discloses that Mr. Farkhondehfall has had access to the overwhelming
majority of the information on the record. I am satisfied that he is fully
aware of the substance of the information that was relied upon by the immigration
officer in finding that he was inadmissible to Canada, and in dismissing his
application for permanent residence. Indeed, it is clear that much of the
information relied upon was obtained from Mr. Farkhondehfall himself in the course
of his interviews with Citizenship and Immigration Canada personnel.
Conclusion
[43]
In light of the above considerations, I have concluded that
considerations of fairness and natural justice do not require the appointment
of a special advocate in these proceedings. As a result, Mr. Farkhondehfall’s
motions are dismissed. A copy of these reasons should be placed on each file.
ORDER
THIS COURT ORDERS that Mr. Farkhondehfall’s motions
are dismissed.
“Anne
Mactavish”
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