Docket: IMM-1949-14
Citation:
2015 FC 832
Ottawa, Ontario, July 8, 2015
PRESENT: The
Honourable Mr. Justice Roy
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BETWEEN:
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MENGHSTEAB
ARAIA
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for the judicial review
of a decision made by an officer at Citizenship and Immigration Canada [the
“decision-maker”] on February 5, 2014. The judicial review application is made
pursuant to section 72 of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA].
[2]
The decision under review found the applicant to
be a person that is inadmissible on security grounds. More specifically, he is
a foreign national about whom there are reasonable grounds to believe that he
is inadmissible for, in the words of paragraph 34(1)(f) of the IRPA, “(f) being a member of an organization that … has engaged or
will engage in acts referred to in paragraph (a), (b), (b.1) or (c)”.
Paragraph (c) refers to “engaging in terrorism”.
[3]
Unfortunately, the file is rather obscure on a
number of fronts. First, it is less than clear why it took ten years to get to
this point. Second, the way in which this matter has been handled has been less
than transparent. In the end, I conclude that this has to be returned for redetermination.
I.
Chronology
[4]
Given the circumstances of this case, a
chronology of events might prove useful:
•
the applicant was born in 1953. He was born in
Eritrea which, at the time, had been federated to Ethiopia through the
intervention of the United Nations. Prior to 1952, Eritrea had been governed by
Italy and Great Britain;
•
Ethiopia revoked the autonomy conferred on
Eritrea; a group known as Eritrea Liberation Front [ELF] emerged in 1962;
•
the applicant acknowledges having been involved
with ELF, which he calls a “movement” in his
affidavit of August 6, 2014. The so-called “movement”
sought independence for Eritrea from Ethiopia.
•
in 1973, the applicant left Eritrea after having
been detained for three months for a failure to abide by a curfew twice. It appears
that the applicant’s public support for independence manifested itself through
participation in two demonstrations;
•
the applicant travelled to Washington, D.C., in
June 1973;
•
he attended school in Oklahoma in 1974-1975;
•
he moved to Houston, Texas in 1975;
•
from 1975 to 1999, the applicant was a member of
a group called ELF. He was the chairperson of what he claims comprised five to
ten people whose activities were the distribution of leaflets and the
collection of donations in order to provide support to refugees in Sudan. The
group, the applicant claims, had no connection to the ELF active in Eritrea;
•
the applicant became “involved” with another
group, the Eritrean Revolutionary Democratic Front [ERDF]; it would appear that
the ERDF split from the ELF in 1977;
•
the applicant crossed the border at Fort Erie,
Ontario, on October 6, 2003 and claimed refugee status upon arrival. Such
status was obtained on May 7, 2004;
•
an application for permanent residence was made
thereafter. It was approved in principle on March 29, 2005 with background
checks to follow;
•
a letter summoning the claimant to an interview
was sent on December 15, 2008. The record shows some activity within the Canada
Border Services Agency [CBSA] during the summer of 2006; the applicant was interviewed
by the Canadian Security Intelligence Service;
•
on January 14, 2009, an interview was conducted
by an officer of Citizenship and Immigration Canada [CIC];
•
on January 20, 2009, a letter sent by the
officer of CIC invited the applicant’s submissions in order to benefit from an
exemption from the ground of inadmissibility. The letter, to say the least, is
confusing. Not only does the letter speak of “relief
under paragraphs A34(1)(c) and A34(1)(f)”, which provides no such
relief, but it comes from an officer of CIC who refers to the Minister of
Public Safety and Emergency Preparedness who would consider the relief, yet the
matter would be dealt with by “our National
Headquarters”. Nowhere can we read what findings, if any, had been made
under subsection 34(1) of the IRPA;
•
on that same day, January 20, 2009, the said
officer of CIC communicated internally that he had determined that the
applicant was inadmissible under paragraphs 34(1)(f) and 34(1)(e). That
determination was not communicated to the applicant;
•
the applicant presented submissions with a view
to obtaining an exemption on February 5, 2009. These submissions were
transmitted to CBSA on February 12, 2009;
•
on January 17, 2013, some four years later, an
immigration processing agent responded to the applicant’s query about the
status of his immigration file. There was no news to communicate. To this day,
there has not been a decision rendered concerning the request for an exemption;
•
on May 16, 2013, CIC issued an Operational
Bulletin announcing a change from the process that called for the holding of
applications for permanent residence where a decision must be made on
inadmissibility on security grounds (like the applicant’s case) until the
Minister of Public Safety and Emergency Preparedness has made a decision on an
exemption request. The process announced that the automatic hold does not
continue until a decision on ministerial relief has been made;
•
on February 5, 2014, the decision subject to
judicial review herein was rendered by a CIC officer other than the one who
handled the case until 2009.
II.
The decision
[5]
A determination was made in January 2009 that
there were reasons to believe this applicant engages, has engaged or will
engage in terrorism. That determination was made on the basis of the applicant
being a member of the ELF from 1969 to 1973. After listing information obtained
from the applicant at the time he sought and obtained refugee status in this
country and also during the interview conducted in January 2009, the CIC
officer concluded that the applicant is inadmissible because of his membership
in the ELF starting in 1969. The documentation on file does not provide the
reasons for that conclusion, but it seemed to have been derived from the
information gathered.
[6]
The decision under review came five years later.
It was evidently rendered in application of the new policy which does not
require that inadmissibility findings under subsection 34(1) of the IRPA be
held in abeyance automatically until the Minister of Public Safety and Emergency
Preparedness has made a decision concerning an exception to a declaration of
inadmissibility finding under subsection 34(2) (I note that subsection 34(2)
was repealed in 2013 and was replaced by section 42.1 of the IRPA).
[7]
It does not appear that the decision-maker met
with the applicant. Rather, the decision letter speaks in terms of a review of
the material available as of January 2009. The decision letter concluded that
the application for permanent residence is denied. Paragraph 34(1)(f) of the
IRPA is invoked.
[8]
A document, entitled “Review
& Conclusion”, dated September 26, 2013, constitutes the
justification for the decision. The CIC officer relies solely on the
information gathered by others. The conclusion that the applicant was a member
of the ELF comes from the Personal Information Form filled out in October 2003.
The decision-maker notes that the applicant’s family was active in the ELF, yet
he does not even allude to the January 2009 interview of the applicant which
stresses that the applicant’s father, who was involved with the ELF, had
separated from the applicant’s mother and they did not have much contact; the
applicant claimed that his father remarried and started a new family.
[9]
The Review & Conclusion continues by stating
that the applicant said that his youth membership included attending secret
meetings, distributing written materials, fundraising and recruiting other
young people. The document goes on to conclude that, “[a]s
a result he was detained without charge for 3 months.” That rather ominous
description is not consistent with the notes taken of the interview of January
2009 during which the applicant contends that he was detained for having
violated a curfew; actually, the applicant claimed that his detention was not
because of his involvement with the ELF. In fact his claim is to the effect
that he did not hold an office in the ELF: he joined a student group that
supported the ELF, as was the case of most of the population in Eritrea. Furthermore,
the applicant contends that he did not distribute leaflets in Eritrea as this
was illegal. Actually, the use of the word “included” would not be appropriate
in that there were no other activities in support of the ELF, although the
applicant recognizes that he knew during the period of 1969 to 1973 that, in
the words of the interviewer in January 2009, “the ELF
had an armed struggle inside Eritrea and there were freedom fighters.”
Although the applicant states that he never used violence, he seems to have
been more equivocal about his knowledge of the use of violence by the ELF,
answering “I don’t know” to the question “[d]id the ELF use violence when you were involved?”,
but responding “I don’t know of the ELF using violence
– never heard of violence” to the question “[w]ere
you ever involved in violent activities on behalf of the ELF?”.
[10]
It remains very much unclear where is the
support for the proposition that the applicant “became
actively involved in the political activities of the ELF. He was elected
“chairman of the Texas State of ELF”.” The applicant would have left
Eritrea in 1973 and stayed in D.C. for a few months; he then studied in
Oklahoma (1974-1975) and then settled in Houston, Texas, in 1975 until his
arrival in Canada in 2003. During his years in Texas, the applicant became the
chairman of the Eritrean Liberation Front in Houston for a period of time;
however the group would have been very small (five to ten people) and its
activities were limited to distributing leaflets and receiving small donations.
It may be suspected that the applicant’s involvement was somewhat more
extensive because he confirms attending meetings of the Alliance of Eritrean
National Forces in Washington, D.C. in 1998 and a conference organized by the
same organization in July 2000. Although there is no denying the interest the
applicant continued to have for his country of origin since his departure at 20
years of age, more than 40 years ago, it is very much unclear where is the
support for the strong statement that he became actively involved in the
political activities of the ELF on the record before this Court.
[11]
The decision-maker goes on to examine the
origins of the Eritrean Liberation Front and its activities. According to open
sources, the ELF would have been guilty of numerous actions between at least
1969 and 1990; there were internal struggles that resulted in splintered
groups, to the point that the decision-maker notes that “by 1992 the ELF had virtually disappeared from Eritrean
political scene.”
[12]
It is surprising to read in the paragraph of
Review & Conclusion introducing a long string of actions attributed to the
ELF, language that is rather cautious:
Furthermore, between 1969 and 1977, members
linked to the ELF were involved in a string of attempted as well as
successful aircraft hijackings in Athens, Madrid, Rome, Frankfurt, Makale,
Addis Ababa and Karachi. In addition, various open sources have linked the
ELF to numerous and varied incidents of terrorist activity beginning from
their inception in 1960, until approximately 1990. [Emphasis added]
[13]
It is on that basis that the
decision-maker reached a conclusion: the Personal Information Form and the
January 2009 interview conducted by someone else. However, instead of reaching
his own conclusion, the decision-maker states (about the reasonable grounds to
believe the applicant is inadmissible, on security grounds, for being a member
of an organization that engages or has engaged in terrorism) that he is “not persuaded by the evidence to come to a different
conclusion than that reached on 20 January 2009.” As already pointed
out, that conclusion was never shared with the applicant.
[14]
The decision-maker presents a test which, I am
afraid, is not completely accurate. He speaks of:
Reasonable grounds to believe has been
described as a set of facts and circumstances that would satisfy an ordinarily
cautious and prudent person.
While partly subjective, it does require
objective evidence such as corroboration. The reasonable grounds standard means
that there needs to be an objective basis for the belief and that the Immigration
officer must be able to satisfy a third party such as an adjudicator or a court
that there are indeed reasons to support the belief. The information on which
the belief is based should be compelling, credible and corroborated.
Be that as it may,
the decision does not articulate how the test is met other than stating that
the decision-maker is not persuaded to come to a different conclusion than that
reached by someone else some five years earlier.
III.
The applicant’s position
[15]
The applicant made a number of arguments of
unequal value: he professes a violation of his right to procedural fairness
because he was not notified of the change in policy in May 2013. Furthermore,
the applicant claims he had a right to the disclosure of the “determination”
made by another officer on January 20, 2009, in spite of the fact that the “determination”
does not constitute the decision under review.
[16]
The decision made is also said to be
unreasonable because of the lack of proper analysis: the contention is that the
decision-maker did not define terrorism, nor did he explain his conclusion that
the acts constitute terrorism. The applicant contends that the decision-maker
ought to have distinguished between various groups that would have been part of
the ELF movement and, more generally, the decision-maker made errors concerning
the facts.
[17]
Finally, the applicant complains of an error of
law in the interpretation of paragraph 34(1)(f) in view of the fact that
subsection 34(2) has been repealed, to be replaced by section 42.1. The
argument is to say that the issue of innocent membership should now be
addressed as part of the interpretation of paragraph 34(1)(f), now that section
42.1, which is said to have a narrower scope than subsection 34(2) now
repealed, provides for ministerial relief.
IV.
Standard of review
[18]
It is not disputed, and the Court agrees, that
questions of fact and of mixed fact and law, are reviewable on a standard of
reasonableness. However, the applicant contends that the issue of the
interpretation to be given to paragraph 34(1)(f) of the IRPA requires the
standard of review of correctness. He is wrong. Questions of law are
presumptively reviewable on a standard of reasonableness where the tribunal
interprets “its own statute or statutes closely
connected to its function, with which it will have particular familiarity”
(Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir],
at para 54). The existence of the presumption has been confirmed many times
since Dunsmuir (see McLean v British Columbia (Securities
Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Canadian Artists’
Representation v National Gallery of Canada, 2014 SCC 42, [2014] 2 S.C.R. 197;
Alberta (Information and Privacy Commissioner) v Alberta Teachers’
Association, 2011 SCC 61, [2011] 3 S.C.R. 654 [Alberta Teachers’).
[19]
The presumption has not been displaced by the
applicant, which means that the standard of review of reasonableness will
apply.
[20]
Issues of procedural fairness on the other hand
call for a standard of review of correctness: “For
instance, the standard for determining whether the decision maker complied with
the duty of procedural fairness will continue to be “correctness”.” (Mission
Institution v Khela, 2014 SCC 24, [2014] 1 S.C.R. 502 at para 79; see also Sketchley
v Canada (Attorney General), 2005 FCA 404; Dunsmuir, supra, at
para 129.) An applicant must satisfy a court that a particular duty applies and
if so, whether the duty has been violated.
V.
Analysis
[21]
The issue of the interpretation of paragraph
34(1)(f) of the IRPA can be disposed of quickly. The decision under review does
not address this question of law. A judicial review application is for the
purpose of reviewing the decision made by the decision-maker. An argument that
has not been made before the decision-maker which, by force, has not been
disposed of does not have to be considered for the first time on judicial
review. Entertaining the argument without the benefit of the views of a
tribunal’s specialized functions and expertise militates against exercising
discretion to hear the case. Furthermore, the determination of the issues is
entrusted to the administrative tribunal by Parliament (Alberta Teachers’,
supra). A court reviews a decision when made.
[22]
The applicant’s argument appears to be that only
under subsection 34(2) was it possible for an applicant to argue that the
Minister should apply his discretion in favour of someone who was an innocent
member of an organization engaged in terrorism. With the repeal of
subsection 34(2) and its replacement with section 42.1, which it is argued
is narrower in scope, an applicant should be allowed to argue innocent
membership under paragraph 34(1)(f). Not only is the argument predicated on the
application under subsection 34(2) made six years ago having disappeared with
the repeal of subsection 34(2), and an application under section 42.1 not being
capable of providing relief in appropriate cases, but it disregards that issues
under paragraph 34(1)(f) are properly before the Minister of Citizenship
and Immigration while ministerial relief is to be decided by the Minister of
Public Safety and Emergency Preparedness (section 4 of the IRPA). In my view,
it would be inopportune to consider the issue in those circumstances. As stated
by Justice Rothstein in Alberta Teachers’:
[22] The ATA sought judicial review of
the adjudicator’s decision. Without raising the point before the Commissioner
or the adjudicator or even in the originating notice for judicial review, the
ATA raised the timelines issue for the first time in argument. The ATA was
indeed entitled to seek judicial review. However, it did not have a right to
require the court to consider this issue. Just as a court has discretion to
refuse to undertake judicial review where, for example, there is an adequate
alternative remedy, it also has a discretion not to consider an issue raised
for the first time on judicial review where it would be inappropriate to do so:
see, e.g., Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R.
3, per Lamer C.J., at para. 30: “[T]he relief which a court may grant by
way of judicial review is, in essence, discretionary. This [long-standing
general] principle flows from the fact that the prerogative writs are
extraordinary [and discretionary] remedies.”
Indeed, there is
still pending a review under ss 34(2) and the applicant has not argued that
such review will not take place. In this case, the judicial review application
should be dealt with on a different basis.
[23]
The issue of being notified of the change in
policy whereby the Minister of Citizenship and Immigration would be faulted for
having decided to make his determination under paragraph 34(1)(f) before
the Minister of Public Safety and Emergency Preparedness under subsection 34(2)
(or section 42.1) is said to constitute a breach of the duty of procedural fairness.
[24]
It should be clear that the two decisions, under
paragraph 34(1)(f) and subsection 34(2) (or section 42.1), are separate and apart.
They are made by different decision-makers and they bring about different
considerations. The IRPA does not provide for an order in which they have to be
made. Logically, it is argued by some, it may be said that there is no point in
making a determination under paragraph 34(1)(f) if a different minister is to
conclude that the matter does not constitute inadmissibility as the presence in
Canada is not contrary or detrimental to the national interest. Conversely,
what is the point of making a decision under subsection 34(2) if the person is
not declared inadmissible under subsection 34(1), and paragraph 34(1)(f) in the
case at bar. Arguably, the scheme of the Act may leave the impression that a
decision under paragraph 34(1)(f) should come first because some may read
subsection 34(2) (or section 42.1) as an exception to inadmissibility. For my
part, I am not convinced that such is the case any more because Parliament did
not speak of subsection 34(2) (or section 42.1) being an exception, but rather
in terms of the matter in section 34 not constituting inadmissibility. As the
Federal Court of Appeal put it in Poshteh v Canada (Minister of Citizenship
and Immigration), 2005 FCA 121, 252 DLR (4th) 335 [Poshteh], “There is simply no temporal aspect to subsection 34(2).
Nothing in subsection 34(2) appears to fetter the discretion of the Minister as
to when he might grant a ministerial exemption” (at para 10). I share
the view expressed in Hassanzadeh v Canada (Minister of Citizenship and
Immigration), 2005 FC 902, that there is no prescribed order, contrary
perhaps to section 5 of the Immigration Act of 1952 (Immigration Act,
RSC 1952), or section 19 of the Immigration Act of 1976 (Immigration
Act, 1976, SC 1976-77, ch 52). If there is an order it might be that which
was followed in this case. Justice MacTavish put it succinctly in Ali v
Canada (Minister of Citizenship and Immigration), 2004 FC 1174:
[42] A subsection 34(2) inquiry is
directed at a different issue to that contemplated by subsection 34(1). The
issue for the Minister under subsection 34(2) is not the soundness of the
officer’s determination that there are reasonable grounds for believing that an
applicant is a member of a terrorist organization--that determination will have
already been made. Rather, the Minister is mandated to consider whether,
notwithstanding the applicant’s membership in a terrorist organization, it would
be detrimental to the national interest to allow the applicant to stay in
Canada.
[43] In other words, subsection 34(2)
empowers the Minister to grant exceptional relief, in the face of a finding
that has already been made by the immigration officer.
[25]
What is important is that the flexibility that
is inherent in the current scheme does not change the outcome. The Minister of
Public Safety and Emergency Preparedness makes his determination independently
of that made by the Minister of Citizenship and Immigration. And vice versa.
Indeed, the Minister of Citizenship and Immigration may have provided his own
relief to a decision made under subsection 34(1) through the discretion granted
in him by sections 25 and 25.1 of the IRPA, the so-called humanitarian and
compassionate [H&C] relief. The relief under subsection 34(2) (or section
42.1), which is based on the national interest, is different from the H&C
relief. As the Supreme Court put it in Agraira v Canada (Public Safety and
Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559:
[44] In short, s. 34(2) of the IRPA
establishes a pathway for relief which is conceptually and procedurally
distinct from the relief available under s. 25 or s. 25.1. It should be borne
in mind that an applicant who fails to satisfy the Minister that his or her
continued presence in Canada would not be detrimental to the national interest
under s. 34(2) may still bring an application for H&C relief. Whether such
an application would be successful is another matter.
I will come back to
the availability of the H&C relief.
[26]
It follows that there is nothing riding
on the order in which these decisions are made. If there is nothing in
subsection 34(2) to fetter the discretion of the Minister as to when he may
make a decision, as found by the Court of Appeal, it is difficult to see how
the Minister of Citizenship and Immigration could himself fetter his discretion
where the order in which decisions are made would not matter. In Canada
(Minister of Citizenship and Immigration) v Adam, [2001] 2 FCR 337, the
Federal Court of Appeal found that then section 19 of the then Immigration
Act required that the ministerial exemption be granted first. As pointed
out earlier, such is not the case any more as the Federal Court of Appeal
concluded in Poshteh, supra, that “Adam
is not authority for the interpretation the Minister places on subsection
34(2).”
[27]
It is said that the “ “doctrine
of legitimate expectations” has been recognized as a discrete category in which
participatory rights are protected by the courts as a matter of fairness”
(Brown and Evans, in Judicial Review of Administrative Action in
Canada (Brown and Evans, Judicial Review of Administrative Action in
Canada (Toronto, On: Carswell, 2013) (loose-leaf), ch 7 at 1700). Here, the
participatory rights of the applicant are not, and cannot, be jeopardized by
the order in which discrete decisions are made.
[28]
More importantly, the legitimate expectations cannot be
ambiguous. The Supreme Court in Canada (Attorney General) v Mavi, 2011
SCC 30, [2011] 2 S.C.R. 504, defined the doctrine in precise terms:
[68] Where a government official makes
representations within the scope of his or her authority to an individual about
an administrative process that the government will follow, and the
representations said to give rise to the legitimate expectations are clear,
unambiguous and unqualified, the government may be held to its word, provided
the representations are procedural in nature and do not conflict with the decision
maker’s statutory duty. Proof of reliance is not a requisite. See Mount
Sinai Hospital Center, at paras. 29-30; Moreau-Bérubé v. New Brunswick
(Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, at para. 78; and C.U.P.E.
v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para.
131. It will be a breach of the duty of fairness for the decision maker to fail
in a substantial way to live up to its undertaking: Brown and Evans, at pp.
7-25 and 7-26.
It has not been
established in this case that there was in fact a policy in place that required
that the decision made under subsection 34(1) was always made after the
decision under subsection 34(2). If there was a practice, for whatever
bureaucratic imperative, it was not universal.
[29]
I share the view of Justice MacTavish that the
alleged change in policy does not result in unfairness. In Omer v Canada
(Citizenship and Immigration), 2015 FC 494, my colleague wrote:
[15] More fundamentally, Ms. Omer has
not been able to articulate how CIC’s policy change resulted in any unfairness
to her. In particular, she has not satisfactorily explained what, if anything,
would be different if the Ministerial Relief decision were made before her
permanent residence application was decided rather than after. Ms. Omer’s
application for Ministerial Relief will continue to be processed, and there is
nothing in the record before me suggesting that this application will be
negatively affected by the fact that a decision has now been made refusing her
application for permanent residence.
Like her, I would
not completely discount the possibility that a change in policy could rise to
the level of affecting the participatory rights of an applicant. This is simply
not the case here. There is nothing unfair in the order in which decisions
based on different considerations are made. As for the decision before this
Court, there was no violation of the doctrine of legitimate expectations.
[30]
The other two issues raised by the applicant do,
however, constitute reviewable errors that require that the matter be sent back
to another decision-maker for a redetermination.
[31]
Both issues relate to the decision made on
February 5, 2014 and, more precisely, how it is articulated. After having
described what the CIC officer considered to be the test that must be met, he
simply notes the evidence reviewed and concludes, without more, that “I … am not persuaded by the evidence to come to a different
conclusion than that reached on 20 January 2009.” There are difficulties
with that conclusion.
[32]
It is not disputed that the decision rendered in
February 2014 was not preceded by the taking of any new evidence by the
decision-maker, who decided on the basis of the record assembled by the officer
who made a determination in January 2009. The decision-maker did not hear or
gather the evidence. He did not hear the applicant, yet he decided. It is not
disputed either that the applicant was never made aware of that determination,
yet the decision-maker evidently used that determination as a benchmark. The
decision-maker took it that he had to be persuaded by the same evidence, which
he had not heard, to come to a different conclusion than that reached some five
years earlier. How could the applicant participate in a meaningful manner in
the decision-making process leading to the decision of February 2014 if he does
not even know of a determination made five years earlier and on which the
decision-maker relies as a benchmark?
[33]
In Haghighi v Canada (Minister of Citizenship
and Immigration), [2000] 4 FCR 407, the requirement to be informed is put
thus:
[37] In my opinion, the duty of
fairness requires that inland applicants for H & C landing under subsection
114(2) be fully informed of the content of the PCDO’s risk assessment report,
and permitted to comment on it, even when the report is based on information
that was submitted by or was reasonably available to the applicant. Given the
often voluminous, nuanced and inconsistent information available from different
sources on country conditions, affording an applicant an opportunity to comment
on alleged errors, omissions or other deficiencies in the PCDO’s analysis may
well avoid erroneous H & C decisions by immigration officers, particularly
since these reports are apt to play a crucial role in the final decision. I
would only add that an opportunity to draw attention to alleged errors or
omissions in the PCDO’s report is not an invitation to applicants to reargue
their case to the immigration officer.
Here, the only
decision that disposes of the matter is the decision rendered in February 2014.
It is evident that the decision-maker, who is not the officer who had carriage
of the case, put significant weight on the determination made five years
earlier. It is the reliance put on that determination that makes it
particularly important that the determination of January 2009 be disclosed (Bhagwandass
v Canada (Minister of Citizenship and Immigration), 2001 FCA 49, [2001] 3
FCR 3 [Bhagwandass]).
[34]
I find myself in agreement with Justice Dawson,
as she then was, who concluded in Mekonen v Canada (Citizenship and Immigration),
2007 FC 1133, 66 Imm LR (3d) 222 [Mekonen]:
[4] While the applicants have raised
a number of interesting arguments, in my view, one issue is determinative. I
find that, on the facts and circumstances of this particular case, the officer
breached the duty of fairness that he owed to Mr. Mekonen. The officer did so
by failing to provide Mr. Mekonen with copies of documents that the officer had
obtained and considered in making his decision, and by failing to afford Mr.
Mekonen an opportunity to comment on the information contained within those
documents. Additionally, to the extent that the officer found that there were
reasonable grounds to believe that the ELF is an organization that there are
reasonable grounds to believe is, or was, engaged in terrorism, the officer
erred by failing to indicate how he understood and applied the definition of
“terrorism”.
[35]
Ironically, Mekonen was concerned with
membership in the ELF, as in this case. Although the document that was not
disclosed in Mekonen was a memorandum prepared by the CBSA, while here
it is a determination made by a CIC officer, it is also the content and purpose
of the determination that in this case “have such a
degree of influence over the decision maker that advance disclosure is required
in order to “level the playing field” ” (as cited at para 19 of Mekonen
and taken from Bhagwandass at para 22).
[36]
It bears repeating that the decision-maker
declared that he needed to be persuaded to come to a different opinion than the
conclusion reached by the other officer in January 2009. Fairness required that
the applicant be provided with the determination before the decision was taken.
In Bhagwandass the FCA put the following factors as to be considered:
[22] Haghighi also establishes
that, in considering whether the duty of fairness requires advance disclosure
of an internal Ministry report on which a decision maker will rely in making a
discretionary decision, the question is not whether the report is or contains
extrinsic evidence of facts unknown to the person affected by the decision, but
whether the disclosure of the report is required to provide that person with a
reasonable opportunity to participate in a meaningful manner in the
decision-making process. The factors that may be taken into account in that
regard may include the following: (i) the nature and effect of the decision
within the statutory scheme, (ii) whether, because of the expertise of the
writer of the report or other circumstances, the report is likely to have such
a degree of influence on the decision maker that advance disclosure is required
to “level the playing field”, (iii) the harm likely to arise from a decision
based on an incorrect or ill-considered understanding of the relevant
circumstances, (iv) the extent to which advance disclosure of the report is
likely to avoid the risk of an erroneously based decision, and (v) any costs
likely to arise from advance disclosure, including delays in the
decision-making process.
In the case at
hand, these factors favour disclosure.
[37]
But there is more. I am less than convinced the
decision-maker applied in this case the test. The circumstances surrounding
this case certainly could reasonably justify the suspicions of a
decision-maker. After all, this applicant acknowledged activities in Eritrea
where he was detained without charges for three months. Barely 20 years old, he
ends up in Washington, D.C. and for 26 years he continues political activities
in the United States for the independence of Eritrea in the name of ELF.
However, it does not appear that he ever had any status in the United States before
he crossed the border into Canada in 2003.
[38]
Be that as it may, reasonable suspicions are not
reasonable grounds to believe that a person has been a member of an organization
engaged in terrorism. The difference between suspicion and belief was nicely
described by the High Court of Australia in George v Rockett, (1990) 93
ALR 483:
Suspicion, as Lord
Devlin said in Hussein v Chong Fook Kam [1970] AC 942 at 948, “in its
ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I
suspect but I cannot prove.’” The facts which can reasonably ground a suspicion
may be quite insufficient reasonably to ground a belief, yet some factual basis
for the suspicion must be shown.
…
The objective
circumstances sufficient to show a reason to believe something need to point
more clearly to the subject matter of the belief, but that is not to say that
the objective circumstances must establish on the balance of probabilities that
the subject matter in fact occurred or exists: the assent of belief is given on
more slender evidence than proof. Belief is an inclination of the mind towards
assenting to, rather than rejecting, a proposition and the grounds which can
reasonably induce that inclination of the mind may, depending on the
circumstances, leave something to surmise or conjecture.
Thus, it is often
said that reasonable grounds to believe is a credibly based probability, a
reasonable probability.
[39]
The decision-maker in this case stated “[r]easonable grounds to believe has been described as a set
of facts and circumstances that would satisfy an ordinarily cautious and
prudent person.” But, with all due respect, satisfy that reasonable
person of what? The decision goes on to say that there needs to be an objective
basis for the belief. The decision-maker insists that corroborative evidence be
present, seemingly relying on Mugesera v Canada (Minister of Citizenship and
Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 [Mugesera].
[40]
I should note that the passage relied on in Mugesera
in support of the requirement for corroboration does not refer to it. Although
corroboration would help support the existence of reasonable grounds, I would
not readily conclude that corroboration is required for reasonable grounds to
be present. Corroborative evidence comes from an independent source and tends
to confirm the witness’ testimony such that the corroboration assists in
concluding that the witness is telling the truth. Reasonable grounds and
corroboration should not be confused. One is a standard to be attained while
the other is merely a form of confirmatory evidence. In Mugesera, the
Court simply stated that the “ “reasonable grounds to
believe” standard requires something more than mere suspicion, but less than
the standard applicable in civil matters of proof on the balance of
probabilities” (at para 114). The articulation presented in Chiau v
Canada (Minister of Citizenship and Immigration), [2001] 2 FCR 297 is in my
view more helpful:
[60] As for whether there were “reasonable
grounds” for the officer’s belief, I agree with the Trial Judge’s definition of
“reasonable grounds” (supra, at paragraph 27, page 658) as a standard of
proof that, while falling short of a balance of probabilities, nonetheless
connotes “a bona fide belief in a serious possibility based on credible
evidence.” See Attorney General of Canada v. Jolly, [1975] F.C. 216
(C.A.).
[41]
In this case, one looks in vain for the
articulation by the decision-maker of his “bona fide” belief in a
serious possibility based on credible evidence or the “objective
basis for the belief which is based on compelling and credible information”,
in the words of the Supreme Court in Mugesera (para 114). The reference
to a “set of facts and circumstances that would satisfy
an ordinarily cautious or prudent person” is not particularly helpful.
It is the quality of the evidence that makes reasonable grounds.
[42]
Ever since Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3
SCR 708, the adequacy of reasons is not a stand-alone basis for quashing a
decision. What is required of reviewing courts “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” (para 14). The decision-maker will have to satisfy
the reviewing court of the following:
[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.
[43]
With respect, the Court is not lacking in paying
respectful attention to the decision-maker’s reasons. It is rather the reasons
that should be supplemented in light of the evidence that are lacking. The lack
of articulation makes the decision unreasonable. Perfection is not needed and
reasons do not have to be extensive. But there continues to be a need for the
reviewing court to determine whether we are within a range of acceptable
outcomes.
[44]
Other than stating that the applicant was a
member of the ELF and that the ELF referred to is the ELF that is alleged to
have perpetrated crimes in the 60’s, 70’s and 90’s which may be seen as
terrorism, there is no articulation of the reasons why this applicant is
believed by this decision-maker to be a member of the organization that
actually perpetrated the crimes. The decision does not explain, even in cursory
fashion, the nature of the ELF and its many incarnations and factions. It does
not seek to articulate why this applicant would be a member, as the notion is
described in our law. There is no doubt that the applicant was a sympathizer of
something called ELF; he supported the independence of Eritrea and the ELF
supported the independence too. Some individuals referring to themselves as the
ELF used violent means to advocate for independence. But the evidence tends to
show that the situation was much more fluid. Maybe there are suspicions that he
was a member of an organization involved in terrorism. But more is needed to
satisfy the standard of reasonableness that there was membership in the
organization that perpetrated crimes, in view of the fluidity of the
circumstances.
[45]
In my view, the decision made in this case does
not have the badges of reasonableness that would allow this Court to conclude
that there is present the “existence of justification,
transparency and intelligibility within the decision-making process” (Dunsmuir,
supra, para 47). Here, there is no indication that the CIC officer “sifted through the record and was alive to the appellant’s
challenge to the credibility of certain documents” as was the case in Kanagendren
v Canada (Citizenship and Immigration), 2015 FCA 86, at para 36. As I tried
to show, it was rather the opposite that transpired in this case.
[46]
As a result, this matter must be returned to a
different decision-maker for redetermination because the applicant was not
provided with the determination, made in January 2009, on which the decision-maker
ostensibly relied heavily, and because the decision made in February 2014 is
not reasonable in view of the inadequacy of the reasons given (Komolafe v
Canada (Citizenship and Immigration), 2013 FC 431). I note that it may be
appropriate and prudent to allow the applicant to be heard as part of the
redetermination because only those who hear can decide. Although the decision
made under paragraph 34(1)(f) is not a formal adjudication, it is a decision
that has significant importance for the applicant, with the facts being
gathered more than six years ago. The parties agreed that there is not a
serious question of general importance that emerges in this case. I agree.
VI.
Redacted passages of the Certified Tribunal
Record [CTR]
[47]
The respondent Minister in this case moved that
some passages from the CTR be redacted in accordance with section 87 of the
IRPA because it is alleged that the disclosure of that information could be
injurious to national security interests or endanger the security of any person.
[48]
The information to be redacted was found at
pages 163, 164, 214, 218 and 359 to 361 of the CTR. Subsequent to the motion
dated May 12, 2015, the respondent limited its original request by removing
proposed redactions at page 218 as well as a segment on page 359.
[49]
It is on that limited basis that the Court
considered the respondent’s request. A hearing in accordance with paragraph
83(1)(c) was held. Following that hearing, a further hearing by conference call
was conducted in order to appraise counsel for the applicant of the Court’s
decision.
[50]
The respondent’s motion was granted. It should
be noted that, having reviewed the material to be redacted, the Court was
convinced that the said material would not, and could not, be of assistance to
the applicant or the respondent in the case at hand.
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