Date: 20090513
Docket: IMM-528-08
Citation: 2009
FC 496
Ottawa, Ontario, May 13, 2009
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
VITALI
MALKINE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
ON THE MOTION FOR THE
APPOINTMENT OF A SPECIAL ADVOCATE
[1]
Vitali Malkine’s application for a single entry Temporary Resident Visa
was refused as a result of a visa officer’s determination that Mr. Malkine was
a person described in paragraphs 37(1)(a) and 37(1)(b) of the Immigration
and Refugee Protection Act, S.C. 2001, c.
27. The officer found that Mr. Malkine was inadmissible to Canada for
being a member of a group engaged in organized or transnational crime.
[2]
Mr. Malkine seeks judicial review of the officer’s decision. In the
context of this application for judicial review, the Minister has brought a
motion for non-disclosure of portions of the Certified Tribunal Record, in
accordance with the provisions of section 87 of IRPA, asserting 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 motion, Mr. Malkine has brought this
motion seeking the appointment of a special advocate to protect his interests
in the section 87 proceedings.
[4]
For the reasons that follow, I have determined that the appointment of a
special advocate is not necessary in this case. As a consequence, Mr.
Malkine’s motion will be dismissed.
Background
[5]
Because many of Mr. Malkine’s submissions on this motion related to Mr.
Malkine’s lengthy history with Canadian immigration authorities, it is
necessary to have some understanding of that history in order to put his
submissions into context.
[6]
As early as 1994, Mr. Malkine attempted to come to Canada as a landed
immigrant in the entrepreneur category under the former Immigration Act.
After his first application was refused, Mr. Malkine successfully sought
judicial review in this Court: see Malkine v. Canada (Minister
of Citizenship and Immigration), (1999), 177 F.T.R. 200. Mr. Malkine’s
application was then remitted for re-determination
by a different visa officer.
[7]
Three years later, not having received a decision with respect to the re-determination
of his application, Mr. Malkine returned to this Court, this time seeking an
order of mandamus. This application was dismissed after the Minister of
Citizenship and Immigration agreed to a timeline for the determination of his
application. In January of 2005, Mr. Malkine’s application for permanent
residency was refused for misrepresentation, and once again Mr. Malkine sought
judicial review in this Court.
[8]
This time, the Minister consented to the application for judicial review
being allowed, and an Order was issued remitting the matter for a further
re-determination. Mr. Malkine's application was then reconsidered once again,
and was once again refused. Mr. Malkine did not apply for judicial review with
respect to that decision. Instead, he commenced an action in this Court seeking
damages, as well as a declaration that the January 2005 decision was reached
improperly, as a result of an unlawful agreement or conspiracy that sought to
deprive him of his ability to gain permanent resident status in Canada.
[9]
Mr. Malkine’s statement of claim was struck out by a prothonotary. His
appeal of that decision was dismissed based upon the Court’s finding that the
action amounted to a collateral attack on the visa officer’s decision. The
Court held that the relief that Mr. Malkine was seeking should properly have
been sought through an application for judicial review: see Malkine v. Canada
(Minister of Citizenship and Immigration), 2007 FC 573.
[10]
No longer interested in moving to this country, Mr. Malkine then applied
for a Temporary Resident Visa. This time, Mr. Malkine sought to come to Canada
for five days, in order to attend to issues relating to his ownership of a
number of commercial condominium units in the City of Toronto. It is the
negative decision made in relation to this application that underlies Mr.
Malkine’s most recent application for judicial review.
The Visa Officer’s Decision
[11]
The visa officer determined that Mr. Malkine was inadmissible to Canada
under paragraphs 37(1)(a) and (b) of IRPA.
[12]
Amongst other things, the unredacted portion of the officer’s CAIPS
notes state that Mr. Malkine is a Senator in the Federation Council – the Upper
House of the Russian Federation. The notes go on to describe Mr. Malkine as
being considered to be “among the ranks of known Russian oligarchs”, and
discuss his former position as Chairman of the Board of the Russian Credit
Bank, an institution that was allegedly controlled by criminal organizations.
[13]
Mr. Malkine is also identified in the notes as a shareholder in a company
known as “Abalone Investments Limited”. This company was allegedly involved
in a transaction by which monies intended to reduce the debt owed by Angola to Russia
were diverted to the company’s account. Mr. Malkine is reported to have
personally received some $48 million (U.S.) in the transaction.
[14]
The CAIPS notes also refer to Mr. Malkine’s association with individuals
involved in money laundering, the arms trade, and the trade in Angolan
“conflict diamonds”. Mr. Malkine’s involvement in former Russian President
Yeltsin’s re-election campaign is also discussed, with the officer stating that
Mr. Malkine had used profits from organized crime to subvert the democratic
process in Russia.
Mr. Malkine’s Submissions on the Special Advocate Issue
[15]
Mr. Malkine vehemently denies ever having been involved in organized
crime. He says that he has never been provided with any credible evidence to
support the allegations against him, and has thus never been able to respond to
those allegations. Moreover, access to information requests made on Mr.
Malkine’s behalf with numerous government agencies, including the Canadian
Security Intelligence Service, the Department of Foreign Affairs and
International Trade and the Financial Transactions and Reports Analysis Centre
of Canada (“FINTRAC”) have not revealed any negative information regarding Mr.
Malkine.
[16]
According to Mr. Malkine, the decision under review is part of a pattern
on the part of the Minister to delay or refuse his immigration-related
applications. The Minister’s conduct has negatively affected Mr. Malkine’s
reputation, and the allegations against him have been personally embarrassing.
While Mr. Malkine has been able to travel freely to many other countries, the
unsupported allegations against him have prevented him from entering Canada on
trade missions, or to deal with his investments in this country.
[17]
While acknowledging that the redactions from the Certified Tribunal
Record in this case are minimal, Mr. Malkine is concerned that affidavits filed
by the Minister in support of the section 87 motion may contain additional
information regarding Mr. Malkine’s alleged criminal activities. Mr. Malkine
does not know if these affidavits were before the visa officer, nor would he
have any way of knowing how much additional negative information would be
contained in these affidavits. As a consequence, Mr. Malkine says that a
special advocate should be appointed so as to protect his interests in relation
to this information.
[18]
Mr. Malkine further submits that this is an exceptional situation.
While recognizing that no Charter rights are at stake in this case, he submits
that his business interests have been affected, and he has suffered damage to
his reputation as a result of the repeated refusal of his immigration-related
applications.
[19]
In light of the 15-year history of his interactions with Canadian
immigration authorities, Mr. Malkine says that fairness requires that a special
advocate be allowed to test the undisclosed information, in order that this
matter can be resolved, for once and for all.
Analysis
[20]
The special advocate provisions of IRPA had their genesis in the
Supreme Court of Canada’s decision in Charkaoui v. Canada
(Citizenship and Immigration), 2007 SCC 9. In Charkaoui, the
Supreme Court held that in light of the significant liberty 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.
[21]
While the amendments to IRPA made in the wake of the Charkaoui
decision make 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.
[22]
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.
[23]
While I accept that Mr. Malkine is frustrated as a result of his
experience with the Canadian immigration system over the last 15 years, his
current application for judicial review is not an opportunity to revisit each
of his earlier unsuccessful immigration applications. What is at issue in this
case is an application for judicial review of a decision denying him a
Temporary Resident Visa, and his request for the appointment of a special
advocate has to be viewed in that context.
[24]
Unlike security certificate proceedings, no Charter rights are at stake
in this case. Mr. Malkine is not in detention, and there is no issue of his potential
removal to a place where his life or freedom would be at risk. Indeed, the
only reason that Mr. Malkine has given for wanting to come to Canada is to
protect his economic interests in this country. As such, the Charter’s
“fundamental justice” guarantees are not engaged. Instead, the issue is one of
common-law procedural fairness.
[25]
As the Supreme Court of Canada observed in Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the content
of the duty of fairness is variable, and how much fairness is owed in a given
case depends on the context of the specific case at issue.
[26]
The visa officer’s decision in this case did not deprive Mr. Malkine of
any legal rights. As a foreign national, he had no right to enter Canada: Canada
(Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711,
at para. 24.
[27]
Where, as here, what is at stake is a Temporary Resident Visa, the
nature of the individual interests at stake suggest that the requirements of
procedural fairness will be at the lower end of the spectrum: see, for example,
Chiau v. Canada (Minister of Citizenship and
Immigration), [2001]
2 F.C. 297 (F.C.A.) at paras. 38-41; Khan v. Canada
(Minister of Citizenship and Immigration), 2001 FCA 345 (F.C.A.), at paras.
30-32.
[28]
Also relevant is the fact that the amount of information that has not
been disclosed to Mr. Malkine is very limited. As was noted in Segasayo v. Canada
(Minister of Public Safety and Emergency Preparedness), 2007 FC 585, 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.
[29]
In contrast, in this case the entire Tribunal record is 29 pages in
length, and the redactions account for a total of approximately 21 lines of
text. Indeed, Mr. Malkine has conceded that the redacted information is
“minimal”.
[30]
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, names and
telephone numbers of CSIS personnel, and information regarding relationships
between CSIS and other agencies in Canada and abroad: at para. 24. Some of the
redactions in issue in this case would fall within that description.
[31]
A review of the unredacted Certified Tribunal Record discloses that Mr.
Malkine has had access to the overwhelming majority of the information on the
record, and is aware of the substance of the information that was relied upon
by the visa officer in refusing his application for a Temporary Resident Visa.
[32]
Mr. Malkine has also expressed concern with the affidavit or affidavits
filed by the Minister in support of the section 87 application. The two
affidavits relied upon by the Minister explain the reasons why, in the view of
the deponents, the disclosure of the redacted information would be injurious to
the national security of Canada or would endanger the safety of any person.
There are no additional allegations regarding Mr. Malkine contained in these
affidavits, and given that the affidavits were sworn after Mr. Malkine had
commenced his application for judicial review, it is clear that the affidavits
were not before the visa officer when the decision under review was made.
Conclusion
[33]
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 this case. As a result, Mr. Malkine’s motion is
dismissed.
ORDER
THIS
COURT ORDERS that the applicant’s motion for the appointment of a special
advocate is dismissed.
“Anne
Mactavish”
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