Date: 20001212
Docket: A-75-98
CORAM: LINDEN, J.A.
SEXTON, J.A.
EVANS, J.A.
BETWEEN:
SING CHI STEPHEN CHIAU
Appellant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard at Toronto, Ontario, on September 27 and 28, 2000.
Judgment delivered at Ottawa, Ontario on Tuesday, December 12, 2000.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED BY: LINDEN J.A.
SEXTON J.A.
Date: 20001212
Docket: A-75-98
CORAM: LINDEN, J.A.
SEXTON, J.A.
EVANS, J.A.
BETWEEN:
SING CHI STEPHEN CHIAU
Appellant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
This is an appeal from a decision of Dubé J. ([1998] 2 F.C. 642) dismissing an
application for judicial review of a refusal by a visa officer in Hong Kong to issue a visa to the appellant, Sing Chi Stephen Chiau. The basis of the officer's decision was that there were reasonable grounds to believe that Mr. Chiau was a member of a criminal organization and was hence inadmissible under paragraph 19(1)(c.2) of the Immigration Act, R.S.C. 1985, c. I-2.
Underlying almost every aspect of this appeal is a task that presents a considerable challenge to the officials and institutions of an open and democratic society, including its courts, namely, the need to strike an appropriate balance between the interests of the individual and the duty of the state to protect national security.
The individual interest at stake in this case is the appellant's right to have his application for a visa determined, and his application to have that decision reviewed, in accordance with law, including the norms of procedural fairness.
To be balanced against this is the need for state authorities to obtain and rely on information supplied in confidence by law enforcement authorities, including foreign governments and institutions, the disclosure of which may cause valuable sources of intelligence to dry up, to the detriment of the state's ability to detect and exclude non-citizens whose admission to Canada might jeopardise national security through their connections with organized crime.
Mr. Chiau is a very successful actor. He is well known among Cantonese speaking people in East and South East Asia, and elsewhere, as a result of his appearances in films and television programmes. Since 1981 he has been under contract with TVB, a Hong Kong television company, which has also been his agent in the negotiation of his film contracts. In addition, he has made more than twenty films, including seven films for two Hong Kong studios that are widely believed to be controlled by a particular triad. On the other hand, there is no suggestion that TVB is under triad control.
Triads typically are highly structured organizations, often run by members of a family, that are engaged in crime: drugs, prostitution, extortion, people-smuggling and gambling, in particular. In addition, members of a triad may also run legitimate businesses. For example, it is widely believed that triads control a substantial portion of the film and entertainment industry in Hong Kong.
Mr. Chiau's first application for a visa to enter Canada as a permanent resident in the self-employed class was refused by a visa officer in Singapore in September 1993, on the same ground as the refusal under review in this appeal. However, in 1994 the Trial Division of the Federal Court set this decision aside on consent, because Mr. Chiau had not been given an interview before the officer refused his visa application.
The appellant renewed his visa application in November 1995, this time to the visa section of the Canadian High Commission in Hong Kong, believing that his application file would be transferred to Hong Kong from Singapore. In January 1996, the appellant received a letter from the visa officer in Hong Kong handling his application, Jean Pierre Delisle, who had been posted to Hong Kong to handle the security and criminality screening of visa applicants.
The letter advised him that there was reason to believe that Mr. Chiau might be inadmissible under paragraph 19(1)(c.2) of the Act, and invited him to attend an interview on March 5, 1996 "to ascertain if you have maintained any links with triads or other organised criminal elements."
There is some controversy about precisely what happened at the interview, which Mr. Chiau attended alone, particularly with respect to whether Mr. Chiau had with him copies of contracts to make films for companies other than those believed to be controlled by a triad. Mr. Delisle said that he did not, and that he invited Mr. Chiau to provide copies, either then or later, which he failed to do.
Mr Chiau, on the other hand, said that he had brought copies of contracts with him to the interview, but that the visa officer was only interested in those with the allegedly triad-controlled studios. He denied that Mr. Delisle requested him to produce copies of contracts with film companies that were not triad-controlled.
I should also note that Mr. Delisle stated that, when he decided to refuse to issue a visa he did not have available to him the copy of the business plan that Mr. Chiau had submitted with his original application, because it was missing from the file that had been transferred from Singapore. However, Mr. Delisle accepts that he did have before him copies of Mr. Chiau's contract with TVB. Mr. Chiau stated that he did not provide a business plan to Mr. Delisle because he assumed that the plan that he submitted with his previous visa application in Singapore would have been forwarded to Hong Kong.
Mr. Delisle asked Mr. Chiau during the interview whether he knew a certain member of a triad, whom he named, and enquired about his relationship with two of the principals of the companies that owned the films studios for which he had worked. The officer also suggested to Mr. Chiau that it was odd that, despite the number of film companies operating in Hong Kong, he seemed only to have worked for triad-controlled studios.
The answers received by Mr. Delisle to these questions did not satisfy him that Mr. Chiau was being truthful. For instance, having first denied knowing the named triad member, the appellant later agreed that, if Mr. Delisle had been referring to the person whose recent death had been widely reported in the Hong Kong media, he had known him, but had been confused about the name.
As for the person who ran a film studio for whom Mr. Chiau had worked, and whom the United States Senate Sub-committee on Asian Organized Crime had identified as a member of the ruling council of a triad, Mr. Chiau claimed that he had a strictly business relationship with him in connection with the movies that he had made for his studio.
There was also discussion at the interview about an incident, widely reported in the Hong Kong press, in which a gun had been fired into the office of one of the allegedly triad-controlled film studios for whom Mr. Chiau worked. The head of the company that owned the studio was reported to have said that this was an attempt by another triad to intimidate the studio into permitting Mr. Chiau to make a movie for one of its companies.
Mr. Chiau told Mr. Delisle that this person had no authority to claim that his studio could veto the companies for whom Mr. Chiau could work. Indeed, TVB subsequently clarified an earlier statement that it had made by stating that none of the film producers had a general veto over Mr. Chiau's performance under non-conflicting contracts with other companies.
As I have already indicated, Mr. Delisle's evidence was that he asked for copies of contracts between Mr. Chiau or his company, and non-triad controlled film studios. Despite the uncertainties surrounding it, I am not satisfied that this evidence was incorrect. It is not determinative that Mr. Chiau subsequently attached a list of non triad- controlled companies for whom he had made films to the affidavit that he swore for the purpose of this application for judicial review.
In a letter dated March 26, 1996, Mr. Delisle informed Mr. Chiau that his application for a visa had been refused on the ground that he might be a person described in paragraph 19(1)(c.2) of the Act, in that there were reasonable grounds to believe that Mr. Chiau was a member of an organization reasonably suspected of being involved in organized criminal activity.
Mr. Delisle concluded that Mr. Chiau was inadmissible as a person described in paragraph 19(1)(c.2) of the Immigration Act. He based his decision on the answers to the questions that he had put to Mr. Chiau about his long term relationship with one of the film studios and its head, and their connection with a particular triad, on the information supplied by Mr. Chiau, and on the confidential information that he was not at liberty to disclose.
| C. THE TRIAL DIVISION'S DECISION |
At the hearing of the application for judicial review of this decision in the Trial Division, counsel for the Minister invoked subsection 82.1(10) of the Immigration Act, and made submissions in camera and ex parte. He explained to the Judge the nature and significance of the confidential information that was before the visa officer and why its disclosure would be injurious to national security or to Canada's international relations. If, as counsel submitted to the Judge, this was the case, the Court could take the information into account in reviewing the visa officer's decision.
After hearing these ex parte submissions and carefully inspecting the confidential information, the Judge found (supra, at paragraph 18, page 655):
| ... the information to be relevant, weighty, trustworthy and of such a nature that it ought not to be revealed to the person concerned. It became obvious to me that if such confidential information were to be revealed, even without disclosing the name of the foreign government or of the institution of a foreign state, the source of information would immediately dry up. |
In light of the confidential information, the information that the officer had provided to Mr. Chiau about the nature of his concerns and the opportunity that the appellant had had to respond to them, and the fact that he had no legal right to enter Canada, the Judge concluded that Mr. Chiau had been afforded a reasonable opportunity to know and answer the case against him. Hence, the refusal of the visa had not been in breach of the duty of fairness.
The Judge also held that there were "reasonable grounds" for the officer's belief that Mr. Chiau was a "member" of a criminal organization, namely a triad, within the meaning of paragraph 19(1)(c.2) of the Act. He defined (supra, at paragraph 27, page 658 ) "reasonable grounds to believe" in this context as connoting "a bona fide belief in a serious possibility based on credible evidence", a lower standard of proof than the normal civil standard of the balance of probabilities.
As for the meaning of "member", the Judge held that, given the policy underlying paragraph 19(1)(c.2), the term "member" was not limited to a person who actively participated in criminal acts, or to one with a membership card whose name appeared on a membership list. Rather, it should be understood more broadly to mean simply a person who "belonged to" the criminal organization in question.
On the basis of the public record and of the content of the confidential information, the Judge concluded that the visa officer's decision that there were "reasonable grounds to believe" that Mr. Chiau was a "member" of a certain triad, an organization reasonably believed to be involved in organized criminal activity, could not be characterised as "patently unreasonable". Hence, there was no basis on which the Court could quash the refusal.
| D. THE LEGISLATIVE FRAMEWORK |
For the sake of convenience, the provisions of the Immigration Act to which reference will be made in these reasons are set out below.
| 8(1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person.
|
8(1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements.
|
| 19(1) No person shall be granted admission who is a member of any of the following classes:
...
(c.2) persons who there are reasonable grounds to believe are or were members of an organization that there are reasonable grounds to believe is or was engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence under the Criminal Code, the Narcotic Control Act or Part III or IV of the Food and Drugs Act that may be punishable by way of indictment or in the commission outside Canada of an act or omission that, if committed in Canada, would constitute such an offence, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest;
|
|
| 19(1) Les personnes suivantes appartiennent à une catégorie non admissible_:
...
(c.2) celles dont il y a des motifs raisonnables de croire qu'elles sont ou ont été membres d'une organisation dont il y a des motifs raisonnables de croire qu'elle se livre ou s'est livrée à des activités faisant partie d'un plan d'activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d'une infraction au Code criminel, à la Loi sur les stupéfiants ou aux partie III ou IV de la Loi sur les aliments et drogues qui peut être punissable par mise en accusation ou a commis à l'étranger un fait - acte ou omission - qui, s'il avait été commis au Canada, constituerait une telle infraction, sauf si elles convainquent le ministre que leur admission ne serait nullement préjudiciable à l'intérêt national;
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| 39(2)Where the Minister and the Solicitor General of Canada are of the opinion, based on security or criminal intelligence reports received and considered by them, that a permanent resident is a person described in paragraph 19(1)(c.2), subparagraph 19(1)(d)(ii), paragraph 19(1)(e), (f), (g), (k) or (l) or 27(1)(a.1), subparagraph 27(1)(a.3)(ii) or paragraph 27(1)(g) or (h), they may make a report to the Review Committee.
|
39(2) Le ministre et le solliciteur général du Canada peuvent, en lui adressant un rapport à cet effet, saisir le comité de surveillance des cas où ils sont d'avis, à la lumière de renseignements secrets en matière de sécurité ou de criminalité dont ils ont eu connaissance, qu'un résident permanent appartiendrait à l'une des catégories visées à l'alinéa 19(1)c.2), au sous-alinéa 19(1)d)(ii), aux alinéas 19(1)e), f), g), k) ou l) ou 27(1)a.1), au sous-alinéa 27(1)a.3)(ii) ou aux alinéas 27(1)g) ou h).
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| 39(6)The Review Committee shall, as soon as practicable after a report is made to it pursuant to subsection (2), send to the person with respect to whom the report is made a statement summarizing such information available to it as will enable the person to be as fully informed as possible of the circumstances giving rise to the report.
82.1(10) With respect to any application for judicial review of a decision by a visa officer to refuse to issue a visa to a person on the grounds that the person is a person described in any of paragraphs 19(1)(c.1) to (g), (k) and (l),
(a) the Minister may make an application to the Federal Court -- Trial Division, in camera, and in the absence of the person and any counsel representing the person, for the non-disclosure to the person of information obtained in confidence from the government or an institution of a foreign state or from an international organization of states or an institution thereof;
(b) the Court shall, in camera, and in the absence of the person and any counsel representing the person,
(i) examine the information, and
(ii) provide counsel representing the Minister with a reasonable opportunity to be heard as to whether the information should not be disclosed to the person on the grounds that the disclosure would be injurious to national security or to the safety of persons;
(c) the information shall be returned to counsel representing the Minister and shall not be considered by the Court in making its determination on the judicial review if, in the opinion of the Court, the disclosure of the information to the person would not be injurious to national security or to the safety of persons; and
(d) if the Court determines that the information should not be disclosed to the person on the grounds that the disclosure would be injurious to national security or to the safety of persons, the information shall not be disclosed but may be considered by the Court in making its determination.
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| 39(6) Afin de permettre à l'intéressé d'être informé le mieux possible des circonstances qui ont donné lieu à l'établissement du rapport, le comité de surveillance lui adresse, dans les meilleurs délais suivant la réception de celui-ci, un résumé des informations dont il dispose à ce sujet.
82.1(10) Dans le cadre de la demande de contrôle judiciaire d'une décision de l'agent des visas de refuser un visa au motif que l'intéressé appartient à l'une des catégories visées aux alinéas 19(1)c.1) à g), k) ou l)_:
a) le ministre peut présenter à la Section de première instance de la Cour fédérale, à huis clos et en l'absence de l'intéressé et du conseiller le représentant, une demande en vue d'empêcher la communication de renseignements obtenus sous le sceau du secret auprès du gouvernement d'un État étranger, d'une organisation internationale mise sur pied par des États étrangers ou l'un de leurs organismes;
b) la Section de première instance de la Cour fédérale, à huis clos et en l'absence de l'intéressé et du conseiller le représentant_:
(i) étudie les renseignements,
(ii) accorde au représentant du ministre la possibilité de présenter ses arguments sur le fait que les renseignements ne devraient pas être communiqués à l'intéressé parce que cette communication porterait atteinte à la sécurité nationale ou à celle de personnes;
c) ces renseignements doivent être remis au représentant du ministre et ne peuvent servir de fondement au jugement de la Section de première instance de la Cour fédérale sur la demande de contrôle judiciaire si la Section de première instance de la Cour fédérale détermine que leur communication à l'intéressé ne porterait pas atteinte à la sécurité nationale ou à celle de personnes;
d) si la Section de première instance de la Cour fédérale décide que cette communication porterait atteinte à la sécurité nationale ou à celle de personnes, les renseignements ne sont pas communiqués mais peuvent servir de fondement au jugement de la Section de première instance de la Cour fédérale sur la demande de contrôle judiciaire.
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The Trial Judge certified three questions under subsection 83(1) of the Act, each of which raised "a serious question of general importance." However, as Ms. Jackman, counsel for the appellant, was quick to point out, the Federal Court of Appeal must consider any ground relied on in the appeal. She identified a total of five grounds, including the certified questions, on which she submitted that the appeal should be allowed:
| (i) the visa officer breached the duty of fairness when he refused the visa on the basis of information supplied to him in confidence by law enforcement bodies, none of which he disclosed to the appellant; |
| (ii) the visa officer erred in law in concluding that he had "reasonable grounds" for his belief that the appellant was a "member" of a criminal organization; |
| (iii) the Trial Division Judge denied the appellant a fair hearing when he took into account the confidential information that was before the visa officer without providing a gist of it to either the appellant or his counsel; |
| (iv) the Trial Judge erred in law in accepting the confidential information as true without subjecting it to adequate testing to assure himself of its reliability; and |
| (v) the Trial Judge erred in law in applying the "patently unreasonable" standard of review to the visa officer's determination that the appellant was a "member" within the meaning of paragraph 19(1)(c.2) of the Act. |
Before addressing the issues outlined above, I should say something about the confidential information, and the Court's consideration of it.
First, we did not find it necessary to hear submissions of counsel for the Minister on whether the Court could, and should on this appeal, conduct an in camera hearing in the absence of the appellant and his counsel, at which counsel for the Minister would take the Court through the confidential material and explain why it supported the visa officer's decision and should not be disclosed. Such a procedure is expressly provided in subsection 82.1(10) of the Immigration Act in proceedings before the Trial Division and we do not have to decide whether this highly unusual procedure is also available in the Federal Court of Appeal.
Second, we read the confidential affidavits and their supporting material since they were part of the record before the Trial Judge and the visa officer. Ms. Jackman did not object to our so doing. We did not, however, read the "secret" written submissions prepared by counsel for the Minister, or the "secret" book of authorities that he submitted to the Court, since we felt able to appreciate for ourselves the nature and relevance of the information contained in the secret affidavits.
Third, the nature and sources of the information, and the conditions on which it was supplied, left us in no doubt that its disclosure might well prejudice Canada's national security and relations with foreign governments and institutions. Even to provide a summary that did not name the sources could inadvertently reveal information, including the identity of the informants, that could be useful to organized crime and endanger lives. Hence disclosure might well result in the drying up of these and similar sources on which Canadian authorities must rely in order to exclude those inadmissible under paragraph 19(1)(c.2) of the Act.
Fourth, in the course of her oral argument Ms. Jackman recognized that the content and nature of the secret information before the Court could render her submissions moot, since, of necessity, they were based solely on the public record. Mr. Wruck, counsel for the Minister, acknowledged this when he said that this was almost entirely a fact-based case, in the sense that, if the Court accepted the information in the secret affidavits, most of the legal issues on which Ms. Jackman relied resolved themselves.
We agree with these observations; the content of the secret affidavits, four in all, render most of Ms. Jackman's able arguments moot. The affidavits and their supporting documentation comprise approximately 200 pages. They contain detailed and concrete information about triads in general, and about the particular triad of which the visa officer believed Mr. Chiau to be a member, and link Mr. Chiau to that triad. Taken together with the public record, these materials amply justify the visa officer's decision.
| Issue 1: Was it a breach of the duty of fairness for the visa officer to refuse the appellant's visa application without providing him with at least a summary of the content of the information in the affidavit? |
It was common ground that in determining a visa application a visa officer is subject to the duty of fairness, and that this includes a reasonable opportunity to know and respond to information on which the officer proposes to rely in making his decision. Whether the appellant was denied this reasonable opportunity depends on an analysis of the factual, administrative and legal contexts of the decision.
It is trite law that the content of the duty of procedural fairness varies according to context: the concept of fairness is situational, not abstract or absolute. The Supreme Court of Canada has identified a number of factors to be taken into consideration in determining the content of the duty of fairness in any given situation: see, in particular, Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, 682-87; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at 837-844.
Drawing on the reasons for judgment in these cases, I now consider the factors most relevant to determining whether the visa officer disclosed sufficient information to Mr. Chiau to provide him with a reasonable opportunity to disabuse Mr. Delisle of his concerns.
(i) the importance of the decision to the individual
First, it is necessary to consider the seriousness of the impact on the individual of an adverse administrative decision. The visa officer's decision in this case did not deprive the appellant of any legal right, since non-citizens have no right at common law or under statute to enter Canada (Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, 733), although the statutory scheme under which immigration control is administered does not leave admission decisions to the untrammelled discretion of the Minister or her officials. Nor did Mr. Chiau have any connection with Canada that rendered the refusal of a visa a particular hardship.
Moreover, a refusal to issue a visa is not final, in the sense that the individual may always apply again. However, it must also be acknowledged that, when an applicant is refused a visa under paragraph 19(1)(c.2) of the Act, subsequent applications by that person are likely to be subject to a higher level of scrutiny than they might otherwise have attracted.
On the other hand, Ms. Jackman submitted that the ground on which the visa was refused was likely to damage the appellant's reputation and cause him financial loss, particularly since he is so well known and his case has attracted considerable media interest. I would note, however, that Mr. Chiau has some responsibility for any adverse publicity that he has received. It was, after all, not the visa officer who publicised the refusal or the ground on which it was based. If it had not occurred before, publicity was inevitable when Mr. Chiau exercised his right to make an application for judicial review of the refusal.
While, as I have noted, it was not disputed that the duty of fairness applies to the determination of visa applications, the nature of the individual interests at stake in this case suggests that the procedural content of the duty to which the appellant was entitled before the visa officer rendered his decision was at the lower end of the spectrum.
(ii) the nature of the decision and the decision-making process
Here, the question is the extent to which the impugned decision, and the process by which it was made, resemble an adjudication: the closer the resemblance, the greater the content of the rules of procedural fairness. The following three factors point to imputing a relatively high procedural content to the duty of fairness in this case: that the decision was based on reasonably objective criteria, rather than pursuant to an open-ended and subjective discretion, and on facts concerning the individual, and that it applied only to the appellant.
On the other hand, visa officers do not hold adjudicative-type hearings before reaching their decisions: visa application interviews, at which applicants are normally not permitted to be accompanied by counsel, could not be mistaken for the kind of hearing conducted by most independent administrative tribunals. Officers' decisions are based in large part on the content of the file, supplemented by the interview.
(iii) the public interest
The content of the duty of fairness may also be reduced below that indicated by other factors by the presence of a countervailing public interest, including the withholding of confidential information which, while relevant to an administrative decision adversely affecting an individual, would prejudice national security or international relations if disclosed to the person concerned.
In this case, as I have already indicated, the officer based his decision in part on intelligence information gathered by the government or institution of a foreign state, the disclosure of which would cause these and other sources of similar information to dry up, to the detriment of Canadian security. Having examined the documents in question, I agree with this assessment.
The activities of organized crime present a major threat to the security of all nations. The benefits of globalization, including the increased ease with which people, money, goods and information are able to cross national boundaries, are not confined to legitimate businesses. International cooperation among governments and their law enforcement agencies is a vital element in the attempt to curb the insidious international spread of the power of organized crime.
(iv) the factual context
The factors considered above must be balanced, not in the abstract, but in the factual context of the particular case. Thus, a determination of whether fairness required the disclosure of any part of the secret material on which the visa officer relied must also
include a consideration of the extent to which the individual's knowledge of the nature of the visa officer's concerns effectively enabled him to respond.
In fact, Mr. Chiau was relatively well informed. He knew the legal basis on which the officer was minded to base his decision; he knew the organization of which he was suspected of being a member; he knew that the basis of this suspicion included his relationship with allegedly triad-controlled studios and their heads, and with another member of the triad.
He was thus far from being in the dark about the officer's concerns, and could have attempted to assuage them by, for instance, providing evidence that he had made films for studios other than those believed to be owned by triad-controlled companies.
Despite the lack of clarity in the evidence about what took place at the visa interview, I am not persuaded that Mr. Chiau was denied a fair opportunity to present material, either at or after the interview, that might have supported his position. It is relevant here to note that subsection 8(1) of the Act places on applicants for admission to Canada the burden of establishing that their entry would not be contrary to the Act.
(v) compliance with the duty of fairness
I have concluded on the basis of the above considerations that there was no breach of the duty of fairness. The appellant was not denied a reasonable opportunity to know and answer the case against him before he was refused a visa, even though the visa officer in part had based his decision on material that he kept entirely confidential.
Despite the individualised and relatively structured nature of the decision-making power exercised by the visa officer, the adverse effect of the decision on the appellant was comparatively slight. In contrast, the potential damage to Canada's security and international relations as a result of disclosing any part of the confidential material was substantial. The amount of information given to the applicant, and the opportunity that he had to respond, are also relevant to my conclusion that no breach of the duty of fairness occurred.
It is true, as Ms. Jackman pointed out, that subsection 39(6) of the Immigration Act imposes a duty on the Security Intelligence Review Committee to provide to a person about whom a report is made a summary of security or intelligence reports so that the person concerned can be as fully informed as possible about the circumstances giving rise to the report: see Chiarelli v. Canada (Minister of Employment and Immigration), supra.
However, this statutory requirement does not necessarily indicate that the duty of fairness requires the production of a similar summary before a person is refused a visa on national security grounds. This is because section 39 of the Act applies to the deportation of permanent residents of Canada: deportation normally has a more serious impact on the individual concerned, and on his or her family, than the refusal of a visa to a person seeking admission to Canada as an independent immigrant, and thus attracts greater procedural safeguards. When another decision, such as the refusal of a visa, has a less serious impact on individual interests, there is less justification for requiring a degree of disclosure that might result in damage to national security, and the factors determining the content of the duty of fairness must be rebalanced.
| Issue 2: Did the visa officer err when he decided that there were "reasonable grounds" for believing that the appellant was a "member" of a criminal organization? |
It is convenient to consider together the issues of whether the visa officer committed reviewable error when he determined that there were "reasonable grounds" for believing that Mr. Chiau was a "member" of a criminal organization, namely a particular triad.
Whatever difficulties there might have been in supporting the visa officer's decision on these issues on the basis of the public record alone, when the content of the secret affidavits is considered there can be no doubt that, on any plausible meaning of the term "member" in the context of paragraph 19(1)(c.2) of the Act, there were reasonable grounds for the officer to believe that Mr. Chiau was a member of the triad.
It is not, therefore, either necessary, or helpful, to say much more about the meaning of the term "member" for the purpose of paragraph 19(1)(c.2). However, by equating being a "member" with "belonging to" a criminal organization, the Trial Division Judge correctly concluded that, in this context, the term should be broadly understood. In deference to Ms. Jackman's arguments, I would make two other observations.
First, in my view, paragraph 19(1)(c.2) of the Act is broad enough to enable Canada to protect its national security by excluding, not only those intending to commit crimes here, but also those whose presence in Canada may be used to strengthen a criminal organization or to advance its purposes.
Second, it will not always be possible to draw a bright line between the legitimate business activities of a criminal organization and its criminal activities. The former may be used to launder the proceeds of the latter, while the organization's criminal activities may in turn be financed by profits made from a successful legitimate business that it controls. Hence, a person's participation in a legitimate business, knowing that it is controlled by a criminal organization, in some circumstances may support a reasonable belief that the person is a member of the criminal organization itself.
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 (F.C.A.).
Ms. Jackman argued that the evidence from which the decision-maker inferred that "reasonable grounds" existed must be not only "credible", but also likely to be true on a balance of probabilities. I doubt whether it would be appropriate to apply this more rigorous standard in all circumstances. Much will depend on the context: the standard of proof is often more demanding before a power is exercised that has a serious impact on an important individual right. However, refusing to issue a visa to Mr. Chiau was not such a situation, even though the refusal was based on national security grounds.
Having examined the confidential material in the Court's record, I am satisfied that the Trial Judge was correct to conclude that the visa officer did not commit a reviewable error when he concluded that, on the totality of the material on which he based his refusal, there were "reasonable grounds" to believe that the appellant was a member of a criminal organization.
| Issue 3: Did the Trial Judge breach the duty of fairness by failing to provide to the appellant, or to his counsel on an undertaking of strict confidentiality, a summary of the confidential material before the hearing of the application for judicial review? |
In addition to the considerations that led me to conclude that the duty of fairness did not oblige the visa officer to provide a summary of the confidential intelligence information before refusing the visa, it would, in my opinion, be inconsistent with the scheme of the Act to import such a requirement into subsection 82.1(10).
This provision establishes a detailed procedural code for the Court's examination of confidential information of the prescribed types. It does not require the production of a summary of the material. When Parliament intended this, it specifically so provided, as in subsection 39(6) of the Act, where, as I have already noted, an adverse decision could result in the more serious sanction of deportation.
| Issue 4: Did the Trial Judge err in failing to test the confidential information by cross-examination or other means before acting upon it? |
Given the detailed and specific nature of the information contained in the confidential material, and the nature and multiplicity of the sources from which it came, the Trial Division Judge was fully justified in finding the material (supra, at paragraph 43, page 663 ) "cogent, persuasive and worthy of consideration" without having to do more than to read it.
| Issue 5: Did the Trial Judge err in reviewing the visa officer's determination that there were "reasonable grounds" to believe that the appellant was a "member" of a criminal organization on a standard of unreasonableness? |
Again, the content of the confidential information in the Court's file makes it unnecessary to answer this question. The visa officer's decision would satisfy any of the applicable standards of review, including, on questions of law, that of correctness.
For these reasons, I would dismiss the appeal and would answer the certified questions as follows:
| 1. Is a person entitled as a matter of procedural fairness to a summary of the information that, under subsection 82.1(10) of the Act, the Court has determined should not be disclosed to the person, even if that summary does not contain the identity of the informer? |
Answer: No.
| 2. Is counsel representing the person entitled as a matter of procedural fairness to a summary of the information determined by the Court not to be disclosed to the person under subsection 82.1(10) of the Act, without the identity of the informer being revealed to counsel, upon counsel's undertaking not to reveal the summary to the person? |
Answer: No.
| 3. What is the proper interpretation of the terms "reasonable grounds" and "members" within the context of paragraph 19(1)(c.2) of the Act? |
| Answer: On the facts it is not necessary to answer this question; however, in light of the record as a whole, including the confidential material, the Judge made no reviewable error in his treatment of these issues. |
[64] I would answer the additional questions raised by counsel for the appellant as follows:
| (i) The visa officer did not breach the duty of fairness when he refused to issue a visa on the basis, in part, of confidential information that he did not summarise for the appellant or his counsel. |
| (ii) In view of the nature and content of the confidential information, the Trial Judge was entitled, without testing it further, to rely on it in determining that the officer had not erred in concluding that there were reasonable grounds to believe that the appellant was a member of a criminal organization. |
| (iii) On the facts, it is unnecessary to determine whether the Trial Division Judge applied an appropriate standard of review to the visa officer's finding that there were reasonable grounds to believe that the appellant was a "member" of a criminal organization. |
"John M. Evans"
J.A.
"I agree
A.M. Linden J.A."
"I agree
J. Edgar Sexton J.A."
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