Date: 20170127

Docket: IMM-4720-15

Citation: 2017 FC 106

[ENGLISH TRANSLATION]

Ottawa, Ontario, January 27, 2017

PRESENT: The Honourable Mr. Justice LeBlanc

BETWEEN:

ISEN SINANI

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

JUDGMENT AND REASONS

[1]  The applicant is challenging the decision by a visa officer at the Canadian embassy in Vienna, Australia (the Officer), refusing to issue him a permanent visa resident in the family class because he had reasonable grounds to believe that he was inadmissible on security grounds under section 34 of the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act).

[2]  The applicant argues that the Officer’s decision must be set aside because it is unreasonable and the process that led to it breached the rules of procedural fairness. It must be noted at the outset that that decision was based largely on information that, for national security reasons, was not entirely disclosed to the applicant. However, it must also be noted that, in two orders over the course of the proceedings following interlocutory applications regarding which the applicant had the opportunity to present his position, the Court stated that it was satisfied that the essential parts of that information had nonetheless been disclosed to the applicant during the security check and procedural fairness process related to his application for permanent residence and that, under the circumstances, the rules of natural justice did not require the appointment of a special advocate within the meaning of section 85 of the Act.

[3]  Having considered the record as a whole, I am of the view that, for the following reasons, this application for judicial review should not be allowed.

I.  Context

[4]  The applicant is a citizen of Macedonia, where he lives with his parents. He is Muslim from birth. Between 2003 and 2009, he went to Egypt and then to Saudi Arabia to pursue religious studies in Arabic. In 2009, he returned to Egypt, this time for university studies on Islam. He left Egypt in May 2011.

[5]  On November 5, 2012, the applicant married a Canadian citizen who he had met a few months earlier and who is also Muslim from birth. The marriage was performed in Macedonia. In January 2013, sponsored by his new spouse, who lives in Canada, the applicant filed an application for permanent residency in the family class.

[6]  It was established early in that application process that the applicant met the regulatory requirements regarding the family class. However, following an initial security check regarding his admissibility to Canada, additional checks proved necessary, in cooperation with partner agencies, including the Canada Border Services Agency (CBSA).

[7]  In August 2014, the applicant was called to an interview at the Canadian embassy in Austria. The interview was related particularly to his knowledge of the doctrine of Takfir, an Islamic concept that, according to the applicant’s memorandum, citing Almrei (Re), 2009 FC 1263, is cited by certain Islamic extremist groups to justify acts of violence.

[8]  In early June 2015, CBSA sent Citizenship and Immigration Canada a classified report in which its National Security Screening Division stated that it was of the view that the applicant is inadmissible on security grounds within the meaning of paragraphs 34(1)(c), (d) and (e) of the Act particularly because, in its view, there are reasonable grounds to believe that, if he has the opportunity, the applicant [translation] “will take part in activities that can be considered as acts of ‘terrorism’, whether in Canada or abroad” (Certified Tribunal Record, at p. 215).

[9]  That report was followed by a fairness letter in which the applicant was informed that the assessment of his permanent residency application had raised two concerns. The first is that, contrary to the requirement in subsection 16(1) of the Act, he did not truthfully answer interview questions regarding his reasons for leaving Egypt and Saudi Arabia, and the fact that the stated that he did not know and had never met anyone who espoused the doctrine of Takfir. In that regard, the letter stated that the applicant had been vague and evasive regarding those topics while also showing an in-depth knowledge of the doctrine of Takfir. The second concern is related to the security screening in his regard, which showed that there are reasonable grounds to believe that he was in contact in Macedonia, Egypt and Saudi Arabia [translation] “with individuals who committed or planned to commit terrorist acts and with individuals who recruited young people to radicalize them to commit such acts” and that he is therefore inadmissible in Canada within the meaning of paragraphs 34(1)(c), (d) and (e) of the Act (Certified Tribunal Record, at p. 222).

[10]  That letter invited the applicant to respond to those concerns, which he did on August 11, 2015 by submitting a letter and documentation.

[11]  On September 10, 2015, the Officer dismissed the applicant’s temporary residency application (Certified Tribunal Record, at p. 224). Essentially, that decision indicates the following:

[Translation]

On July 22, 2015, I sent you a letter indicating that you may not meet the requirements for immigration to Canada because I was not satisfied that you had truthfully answered all questions put to you and because I had reasonable grounds to believe that you were inadmissible under paragraphs 34(1)(c), (d) and (e) of the Act.

I have carefully reviewed your response to that letter and the supporting documents provided, which we received on August 11, 2015, but they did not address the elements mentioned in the letter on July 22, 2015. I therefore remain satisfied that, on a balance of probabilities, you have still not truthfully answered all questions put to you and I am satisfied that there are reasonable grounds to believe that you are inadmissible under paragraphs 34(1)(c), (d) and (e) of the Act.

[12]  The notes entered by the officer in Citizenship and Immigration Canada’s National Case Management System (NCMS) provides us with more information on the reasons for his decision. We note the following from them, according to the Officer:

1. In general, the applicant did not provide a detailed and general explanation of the reasons that led him to study religion in Egypt and Saudi Arabia;

2. In particular, the documentary evidence that he presented in that regard, although it shows that he legally lived and studied in those two countries, does not, however, establish that he was not involved in other activities;

3. There is no indication in that regard that he did not have the time to take other courses or meet with other individuals;

4. There is no documentary evidence to show how he spent his time in 2006 and 2007;

5. The applicant did not demonstrate why he needed to return to Egypt in 2009 to continue studies there at an educational institution – Mishkah University – that only offered Islamic courses online;

6. The applicant did not address the reasons that led him to leave Egypt and Saudi Arabia in relation to the allegation that he had met individuals who promoted acts of terrorism and who radicalized youth to commit such acts; and

7. No evidence was submitted to show that the applicant associates or has associated with individuals who belong to a school of thought opposed to that of Tafkir, while it was not unreasonable to expect the applicant to be able to submit a letter of support from former classmates or professors confirming his espousal of a doctrine of peace.

II.  Issues and standard of control

[13]  The issue here is to determine whether, as the applicant claims, the officer’s decision is unreasonable in light of all the evidence or if it was made contrary to the rules of procedural fairness.

[14]  It is well-established that, in this regard, the standard of review applicable to the merits of the Officer’s decision is reasonableness (Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, at para 85, [2002] 1 S.C.R. 3; Karahroudi v Canada (Minister of Citizenship and Immigration), 2016 FC 522, at para 29 [Karahroudi]), while the standard application to issues related to procedural fairness is that of correctness (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, at para 43). The parties do not question this.

[15]  Before undertaking an analysis of the issues, the legal framework of the applicant’s permanent residency application and how it was processed must first be determined. I will then examine the issue of procedural fairness, as that was the basis of the efforts of counsel for the applicant at the hearing. I will end my analysis by examining the issue of the reasonableness of the Officer’s decision.

III.  Analysis

A.  Legal framework

[16]  Under section 11 of the Act, to be authorized to enter Canada, a foreign national must have a visa or any other document required by regulations, issued by an immigration officer. That visa or document can only be issued by the officer if it is shown, following an examination, that the foreign national meets the requirements of the Act and is not inadmissible. In any review, section 16 of the Act requires, in particular, that foreign nationals truthfully answer questions put to them and provide relevant documents and evidence.

[17]  Section 34 of the Act sets forth the facts that can lead to inadmissibility on security grounds. In this case, as we have seen, the applicant was inadmissible under paragraphs 34(1)(c), (d) and (e), which read as follows:

[18]  Under section 33 of the Act, to result in inadmissibility, these facts must be assessed based on “reasonable grounds to believe that they have occurred, are occurring or may occur”. Thus, to trigger the application of section 34, the danger to the security of Canada does not need to be current; it is enough that it could occur (Harkat v Canada (Citizenship and Immigration), 2012 FCA 122, at para 152).

[19]  It is now well-established that, although the belief needed to trigger 34 must be based on more than mere suspicion, it does not necessarily need to be established on the standard applicable in civil matters of the balance of probabilities. To meet this common burden, the belief must be objectively based on compelling and credible information (Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40, at para 114, [2005] 2 S.C.R. 100; Nagulathas v Canada (Minister of Citizenship and Immigration), 2012 FC 1159, at para 27).

[20]  Moreover, in a judicial review of a decision like the one reached in this case, the respondent can apply to the Court, under section 87 of the Act, for non-disclosure of information if disclosure would be injurious national security or endanger the safety of any person. To that end, the Court may, under section 87.1 of the Act, based on considerations of fairness and natural justice, require the appointment of a special advocate, whose role under subsection 85.1(1) of the Act is to defend the interests of the foreign national in a proceeding in camera and in the absence of the foreign national or his or her counsel in the review of a motion filed by the respondent.

B.  Procedural fairness

[21]  Essentially, the applicant claims that the Officer breached the rules of procedural fairness, as they applied to him under, in particular, the Citizenship and Immigration Canada Overseas Processing Operational Manual, in three ways: (i) by failing to give him enough advance notice of what would be discussed at his interview in August 2004, which was primarily related to his knowledge of Islam and the doctrine of Takfir; (ii) by failing to disclose to him all information that he had and on which his decision would be based, including extrinsic evidence; and (iii) by not giving sufficient reasons for his decision.

[22]  These three grounds cannot succeed.

[23]  The courts have consistently held that the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para 21). In other words, it is up to the Court to determine whether the process that led to the impugned decision in a given case satisfies the degree of procedural protection required in the circumstances of the case.

[24]  In that regard, the courts have also consistently held that the degree of procedural fairness required of a visa officer who must determine whether to grant a visa to a person outside Canada is at the lower end of the spectrum. In other words, it is minimal, even if the refusal to grant the visa can have significant implications for that person and his or her family. This is not only because the Act does not confer the right to obtain a visa and because the decision to grant or refuse a visa remains highly discretionary, but also because, in such cases, a visa applicant who is in Canada and is inadmissible does not risk being held in detention or being removed to a country where his or her life, safety or freedom is at risk (Chiau v Canada (Minister of Citizenship and Immigration) (2000), [2001] 2 FC 297, at para 54, [2000] FCJ No. 2043 (QL) (CA) [Chiau]; Khan v Canada (Minister of Citizenship and Immigration), 2001 FCA 345, at para 30, [2002] 2 FC 413 [Khan]; Medovarski v Canada (Minister of Citizenship and Immigration), 2005 SCC 51, at para 46, [2005] 2 S.C.R. 539 [Medovarski]; Fouad v Canada (Minister of Citizenship and Immigration), 2012 FC 460, at para 14 [Fouad]).

[25]  It is therefore enough, for the rules of procedural fairness to be respected, for visa officers to disclose the information on which they plan to base their decision, so visa applicants can present their version of the facts and correct any errors or misunderstandings (Maghraoui v Canada (Minister of Citizenship and Immigration), 2013 FC 883, at para 22 [Maghraoui]; Karahroudi, at para 33). In my view, this obligation has been met in the circumstances of this case.

[26]  Regarding the interview held in August 2014, it is true that the call-in letter did not state the nature of the concerns that Canadian authorities had about him beyond the general statement that, following an in-depth examination of his permanent residency application, it was determined that he should be subject to an interview to determine if he was admissible to Canada and if he met the requirements of the Act (Applicant’s record, at pp 49-50). However, the evidence shows that those concerns were discussed at the interview, that they were subsequently clarified and that they were set out as clearly as possible in the fairness letter dated July 22, 2015, a letter to which the applicant, I must repeat, was given the opportunity to respond, which he did in detail in August 2015.

[27]  Properly considering all the circumstances, I do not see any breach of the rules of procedural fairness on this point.

[28]  As for the content of what was disclosed to the applicant, it is well-established that national security considerations can limit the extent of disclosure of evidence to a litigant (Charkaoui v Canada (Minister of Citizenship and Immigration), 2007 SCC 9, at para 58, [2007] 1 S.C.R. 350 [Charkaoui]. In that sense, there is no absolute right to disclosure of all evidence.

[29]  There will thus be cases in which the documents on which the decision-maker relied will receive protection under national security privilege and in which the duty of fairness will be satisfied the full content of the documents being disclosed (Maghraoui, at para 22; Karahroudi, at para 34). In Maghraoui more specifically, Justice Yves de Montigny, as he then was, noted as follows the constraints on the visa officer in such a context:

[27]  […] The officer was not required to give the CSIS reports to the applicant. The Supreme Court of Canada has recognized on a number of occasions that national security considerations may limit the scope of the disclosure of information to an individual: Ruby v Canada (Solicitor General), 2002 SCC 75 (CanLII), [2002] 4 S.C.R. 3; Suresh, above; Charkaoui, above. Moreover, there is no similar mechanism to the one provided in sections 86 and 87 before the [Immigration and Refugee Board] and the Federal Court enabling the Minister to bring a motion for non‑disclosure in an administrative proceeding. It is not at all certain that an officer of the Minister can, without statutory authorization, redact on his or her own initiative and without any framework, information whose disclosure could, in the officer’s opinion, be injurious to national security or the safety of any person. […]

[30]  Therefore, nothing authorized the Officer to send the applicant the security assessment reports, in their entirety, based on which he made his findings under section 34 of the Act. With respect to procedural fairness, it was enough for him to send the applicant sufficient information so that he or she has an opportunity to know and respond to the case against him or her. (Nadarasa v Canada (Minister of Citizenship and Immigration), 2009 FC 1112 at para 25 [Nadarasa]).

[31]  In that regard, in her order allowing the motion presented by the applicant under the terms of section 87 of the Act, my colleague, Martine St-Louis J. was satisfied that the “essence” of the information identified by said motion [translation] “was already disclosed to the applicant as part of the security audit and procedural fairness process connected to his permanent residency application” (Order by St-Louis J., July 26, 2016). Having learned of all of the evidence on record, including the information for which disclosure was prohibited by the terms of that order, I am also of the view, like St-Louis J., that the essence of that information was communicated to the applicant and that he could thus “know and respond to the case against him or her” (Nadarasa, at para 25).

[32]  It is important to add that St-Louis J., in a previous order, also said that she was of the view that in that case, no consideration for fairness and natural justice warranted the appointment of a special advocate for the purposes of defending the applicant’s interests during the in camera and ex parte review of the motion presented by the respondent under the terms of section 87 of the Act (Order by St-Louis J., June 16, 2016). That decision, which was discretionary in nature, was not being impugned by the respondent.

[33]  In short, I am of the view that although certain information did not have to be disclosed to him due to the demands of national security, the applicant’s permanent residency application was nevertheless processed and determined by the Officer in full compliance with the rules of procedural fairness.

[34]  Lastly, the applicant argues that the Officer’s decision breached procedural fairness on the ground that it was not sufficiently reasoned to allow him to understand why his permanent residence application was dismissed. However, the argument of insufficient grounds, as opposed to that of the absence of grounds under the circumstances at that time, does not concern procedural fairness, but rather the reasonableness of an administrative decision-maker’s decision, and particularly his justification and the transparency and intelligibility of the decision-making process (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 22, [2011] 3 S.C.R. 708 [Newfoundland Nurses]). Presented from the procedural fairness perspective, the applicant’s argument will therefore not be accepted.

[35]  As we will see, it will neither be accepted by the terms of a reasonableness analysis of the Officer’s decision.

C.  The reasonableness of the Officer’s decision

[36]  It is now well established that the fact that a decision by an administrative decision-maker is not adequately reasoned is not enough on its own to find that said decision is unreasonable (Newfoundland Nurses, at para 14). In that matter, the Court must keep from adopting an overly formalist approach and require perfection from the administrative decision-maker. Some restraint is required in that regard. In other words, the fact that the reasons for the decision under review do not refer to all the arguments, statutory provisions, jurisprudence or other details that the Court would have preferred is not enough to impugn the validity of said reasons or even those of the result arising from said decision (Newfoundland Nurses, at para 16).

[37]  Carrying out the assessment of the adequacy of the decision’s reasons must instead be done in correlation with the achieved result in the overall context of the evidence on record, the arguments submitted by the parties, and the applicable process. Thus, if it is not moreover allowed to substitute the words of the decision under review for his own words, the Court remains enabled, before finding in the inadequacy of reasons, to review the entire record in order to assess the reasonableness of the result and in so doing determine whether the reasons adequately explain the basis for the decision (Newfoundland Nurses, at para 18; Karahroudi, at para 40; De Silva v Canada (Minister of Citizenship and Immigration), 2014 FC 709 at para 40-41).

[38]  In this case, we can still say that the reasons for the Officer’s decision would have been more explicit, but when we consider them in light of the entire record, including the Officer’s notes in the GCMS, I am satisfied, on the basis of the teachings in Newfoundland Nurses, that they reflect the essence of the concerns that underlie said decision and that they thus contribute to its reasonability. Simply put, said reasons, as I understand them, reveal that the applicant did not satisfy the Officer, even though the burden was his, that he is not inadmissible due to his reluctance surrounding important facts revealed by the security investigation that was done as part of the processing of his permanent residence application. I consider that justification to be adequate under the circumstances of this case.

[39]  On that basis, the applicant essentially argues that the Officer’s decision only rests on suspicions and is inspired by cultural and ethnic stereotypes. Considering the evidence on record, including what was not disclosed for reasons of national security, I am satisfied that the Officer’s concerns did not rely on simple conjecture or even on any stereotypes whatsoever, but were founded on objective evidence that, with a view to an analysis based on reasonableness, warrants the Officer’s findings.

[40]  In that regard, I recall that when the Court is called upon to determine the reasonableness of a decision by an administrative decision-maker, the Court’s role is not to substitute the administrative decision-maker’s assessment of the evidence and mixed questions of law and of fact that underlie the decision under review with its own assessment. That role is more limited in that the Court will generally only intervene, given the expertise of the administrative decision-maker regarding the questions that he or she is accustomed to handling, if the impugned decision does not have the qualities of justification, transparency and intelligibility or if the decision falls within the possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190).

[41]  In this case, the Officer, as I recall, found that the applicant generally had not provided explanations that were detailed and credible regarding, in particular, (i) what drove him to study religion in Egypt and Saudi Arabia, to leave both of those countries, and then return to Egypt to continue with his religious studies there at an institution that in fact offers online courses, (ii) his use of time when he was in those two countries; and (iii) the meetings that he may have had, as well as in Macedonia, with individuals who advocate committing acts of terrorism and radicalizing youth in order to encourage them to commit such acts.

[42]  In light of all the evidence on record, in my view, it was right for the Officer to find as he did. In other words, the Officer’s finding, in which he is satisfied that there were reasonable grounds to believe that the applicant is inadmissible under paragraphs 34(1)(c), 34(d), and 34(e) of the Act, and when it is examined in light of the entire record, including the evidence protected by national security privilege, in my view, has the attributes of justification, transparency, and intelligibility and falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law.

[43]  As part of this application for judicial review, the applicant clearly tried to refine his evidence in certain regards, particularly by submitting transcripts and a residency permit from the Saudi institution that he attended. However, that evidence cannot be considered by the Court, since it was not before the Officer, who, because of that, was not able to verify its authenticity, exactitude or even its probative value. As the respondent highlights, the judicial review of the reasonableness of a decision made by an administrative decision-maker, aside from exceptions that are not applicable in this case and that are moreover not cited, again to be done in light of the evidence that was before that decision-maker at the time that the decision was made, since it is up to him, and not the Court, to rule on the facts (Runchey v Canada (Attorney General), 2013 FCA 16 at para 31).

[44]  The application for judicial review will therefore be dismissed.

[45]  In light of the outcome of said application, the applicant asks the Court to certify the following two questions for the Federal Court of Appeal:

• a) Did the immigration officer breach procedural fairness by not giving an applicant for a Canadian permanent residency visa the opportunity to explain himself regarding the information in secret reports?

• b) Does an applicant for a Canadian permanent residency visa have to receive maximum procedural fairness when his family is living in Canada during the processing of his application at a Canadian visa office overseas?

[46]  There is openness to certification when it is a serious question of general importance and transcends the interests of the parties to the litigation while allowing the appeal to be resolved (Zazai v Canada (Minister of Citizenship and Immigration), 2004 FCA 89 at para 11; Canada (Minister of Citizenship and Immigration) v Liyanagamage (1994), 176 NR 4 at para 4, [1994] FCJ no. 1637 (QL)(CA)).

[47]  Both questions from the applicant are indeed important to him, but I am not satisfied that they are serious questions of general importance or even that they would allow for the resolution of the appeal.

[48]  In the case of the first question, as we have seen, it has been understood for a long time that there is no absolute right to disclosure of all evidence and that considerations for national security can limit the extent of the disclosure (Charkaoui, at para 58). Nevertheless, in the current state of law, as we have also seen, the rules of procedural fairness require that the offender, where possible, be made aware of the essence of the concerns stemming from reports that contain secret information such that he can know and respond to the case against him. In that sense, we can say that permanent resident visa applicants are offered, as part of the current system, the opportunity to respond regarding the information in secret reports.

[49]  In this case, the applicant was made aware of the essence of the information in the reports that were not sent to him in their entirety and he availed himself of that to give his version of the facts. The first question proposed for certification, therefore, does not appear to me, under the circumstances, to be either of general importance or likely to settle the appeal.

[50]  As for the second question, it has also been well established for a long time that the degree of procedural fairness that is required by a visa officer, who is called upon to determine whether there are grounds to grant a visa to a person who is outside of Canada, is minimal, since even though a refusal to grant a visa may have significant repercussions for that person and his family, unlike a foreigner who is in Canada and is inadmissible, this does not raise issues that engage the right to life, liberty and the security of the person, which require a high level of procedural fairness (Chiau, at para 54; Khan, at para 30; Medovarski, at para 46).

[51]  Once again, the legal situation seems to be set and even with a generous reading, it does not allow for a Canadian permanent residence visa applicant to receive “maximum” procedural fairness when his family lives in Canada during the processing of his application at a Canadian visa office overseas.

[52]  Therefore, no questions will be certified.

[53]  In conclusion, I must recall that counsel for the applicant argued this case in an unenviable position, since he did not have access to all the information on file. Under the circumstances, the applicant cannot hope for more from his counsel.

JUDGMENT

THE COURT ORDERS that:

1. The application for judicial review is dismissed;

2. No questions are certified.

“René LeBlanc”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:		IMM-4720-15
STYLE OF CAUSE:		ISEN SINANI v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:	QUÉBEC CITY, QUEBEC
DATE OF HEARING:	NOVEMBER 17, 2016
JUDGMENT AND REASONS:	LEBLANC J.
DATED:	JANUARY 27, 2017

APPEARANCES:

Ibrahima Dabo	FOR THE APPLICANT ISEN SINANI
Evan Liosis	FOR THE RESPONDENT THE MINISTER OF CITIZENSHIP AND IMMIGRATION

SOLICITORS OF RECORD:

Ibrahima Dabo Counsel Québec City, Quebec	FoR THE APPLICANT ISEN SINANI
William F. Pentney Deputy Attorney General of Canada Montréal, Quebec	FOR THE RESPONDENT THE MINISTER OF CITIZENSHIP AND IMMIGRATION