IMM‑7498‑05
2006 FC 1310
Zaheer Mohiuddin Mohammed (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Mohammed v. Canada (Minister of Citizenship and Immigration) (F.C.)
Federal Court, von Finckenstein J.—Ottawa, October 30, 2006.
Citizenship and Immigration — Immigration Practice — Motion for non‑disclosure of tribunal record for reasons of national security, public safety in context of judicial review of immigration officer’s denial of permanent resident status — Immigration and Refugee Protection Act (IRPA), ss. 86, 87 dealing with non‑disclosure of materials in immigration matters — Although IRPA, s. 87 applying to judicial review proceedings, limited to information under ss. 11, 86(1), 112, 115 — Such information not including circumstances of applicant’s case — Federal Courts Rules (FCR), rr. 317, 318 procedure for tribunal to object to disclosure of certain materials not incorporated by reference into Immigration and Refugee Protection Rules — Application of FCR, r. 4 (“gap rule”) — R. 318(3) invoked — Procedure set out in IRPA, s. 87 followed — Withheld information would be injurious to national security, safety of persons — Motion granted.
Practice — “Gap” Rule — Motion for non‑disclosure of tribunal record for reasons of national security, public safety brought in context of judicial review of immigration officer’s denial of permanent resident status — Federal Court Rules (FCR), r. 4 containing “gap rule” to deal with lacuna in rules regarding sensitive information tribunal not wanting to disclose in judicial review of immigration decision — R. 4 invoked to apply FCR, r. 318(3), follow procedure set out in Immigration and Refugee Protection Act, s. 87 — Motion granted.
This was a motion by the respondent for non‑disclosure of the tribunal record for reasons of national security and public safety and for a declaration that the tribunal be allowed to object to disclosure by serving a written objection. It was brought in the context of an application for judicial review of the denial by an immigration officer (tribunal) of permanent resident status after the applicant was granted Convention refugee status. The denial was based on the applicant’s membership in the Mohajir Quami Movement (MQM), an organization found to have engaged in acts of terrorism, and the applicant was considered inadmissible under paragraph 34(1)(f) of the Immigration and Refugee Protection Act (IRPA). After leave to seek judicial review was granted, the certified tribunal record was served on the parties. But the Tribunal withheld several pages of documents in its possession on the basis that disclosure of the documents “would be injurious to national security or the safety of any person”. The applicant then filed a motion to determine whether it was open to the respondent to provide an incomplete disclosure of the tribunal record without first seeking the Court’s directions on the matter contrary to rules 317 and 318 of the Federal Courts Rules (FCR). The respondent was ordered to forward the withheld portions to the Court under seal and to bring the present motion for non‑disclosure of the portions of the tribunal record it sought to withhold from the applicant. Hearing dates on the motion were subsequently scheduled.
The issue was what is the appropriate procedure to follow to determine whether part of the tribunal record should not be disclosed for national security reasons.
Held, the motion should be granted.
Rules 15, 16 and 17 of the Federal Courts Immigration and Refugee Protection Rules govern applications for leave to commence judicial review proceedings. They make no reference to withholding portions of the record for any reason including reasons of national security. Sections 86 and 87 of the IRPA deal with non‑disclosure of materials in immigration matters. Although section 87 would normally apply to an application for judicial review, it is limited to information protected under subsection 86(1) or information arising under section 11, 112 or 115 of the IRPA. The applicant’s application does not involve those sections since he made an inland application for permanent residence and was considered inadmissible. Rule 4 of the Immigration and Refugee Protection Rules (Rules) incorporates by reference parts of the FCR, but not Part 5 wherein rules 317 and 318, which provide for a procedure allowing a tribunal to object to the disclosure of certain materials are found. Thus there is a lacuna in the Rules regarding sensitive information that a tribunal does not want to disclose in cases concerning judicial reviews of immigration decisions. Rule 4 of the FCR contains a “gap rule” to deal with such lacuna. Because the issue here was not covered either in the Rules or in the FCR, rule 4 was applicable and was invoked to allow the Court to use FCR, rules 317 and 318. Relying on subsection 318(3) of the FCR, the procedure set out in section 87 of the IRPA was followed since it specifically refers to judicial review proceedings and the Court must stay as close as possible to the original legislative intent when filling lacuna. Parliament evidently had IRPA, section 87 in mind when considering non‑disclosure in the context of judicial reviews. Moreover, although the applicant would be entitled to a summary of the suppressed information if the procedure under IRPA, section 86 were followed, the information sought to be withheld in this case would be very difficult to summarize and would be of no help to the applicant while imposing a considerable burden on the respondent.
Finally, the release of the information sought to be withheld would be injurious to national security or to the safety of persons. Therefore, the information was authorized to be released subject to the redactions indicated thereon.
statutes and regulations judicially
considered
Canada Evidence Act, R.S.C., 1985, c. C‑5, s. 38 (as am. by S.C. 2001, c. 41, ss. 43, 141).
Federal Courts Immigration and Refugee Protection Rules, SOR/93‑22 (as am. by SOR/2005‑339, s. 1), rr. 4 (as am. idem, s. 3), 15 (as am. by SOR/2002‑232, s. 8), 16, 17 (as am. idem, s. 14).
Federal Courts Rules, SOR/98‑106, rr. 1 (as am. by SOR/2004‑283, s. 2), 4, 317 (as am. by SOR/2002‑417, s. 19), 318.
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 11, 34(1), 78 (as am by S.C. 2005, c. 10, s. 34(E)), 86, 87, 112, 115.
cases judicially considered
referred to:
Naeem v. Canada (Minister of Citizenship and Immigration), Lemieux J., IMM‑5395‑05, 29/5/06 (F.C.).
MOTION for non‑disclosure of part of the Tribunal record for reasons of national security and public safety brought in the context of judicial review of an immigration officer’s denial of permanent resident status. Motion granted.
appearances:
Lorne Waldman for applicant.
Lorne McClenaghan and Marcel R. Larouche for respondent.
solicitors of record:
Waldman & Associates, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order and order rendered in English by
von Finckenstein J.:
Background
[1]Zaheer Mohiuddin Mohammed (the applicant) applied for permanent residence in Canada after being granted Convention refugee status. The application was denied on November 4, 2005, pursuant to subsection 34(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) based on his membership in the Mohajir Quami Movement (the MQM), an organization that was found to have engaged in acts of terrorism. The applicant does not dispute that he was and is a member of the MQM, but disputes that he or the MQM engaged in acts of terrorism.
[2]The applicant was granted leave to seek judicial review in an order dated July 27, 2006, by Justice Barnes. The July 27 order directed the tribunal to send copies of its record to the parties and to the Registry of the Court by August 17, 2006.
[3]The tribunal, an immigration officer employed by Citizenship and Immigration Canada [CIC], prepared and certified the tribunal record and served the certified tribunal record on the Court and the parties. The certified tribunal record was accompanied by a cover letter under the signature of June Levato (Levato letter). The Levato letter disclosed that the tribunal was withholding several pages of documents in its possession on the basis that disclosure of the documents “would be injurious to national security or the safety of any person”.
[4]The applicant then made a motion dated September 6, 2006, to determine whether it was open to the respondent to provide an incomplete disclosure of the tribunal record without first seeking the Court’s directions on the matter contrary to rules 317 [as am. by SOR/2002-417, s. 19] and 318 of the Federal Courts Rules, SOR/98‑106 [r. 1 (as am. SOR/2004-283, s. 2)] (FCR) or section 38 [as am. by S.C. 2001, c. 41, ss. 43, 141] of the Canada Evidence Act, R.S.C., 1985, c. C‑5 (CEA).
[5]Prothonotary Lafrenière ordered the Minister of Citizenship and Immigration (the respondent) to forward the withheld portions to the Court under seal. He also ordered the respondent to bring a motion for non‑disclosure of the portions of the tribunal record it seeks to withhold from the applicant.
[6]Consequently, the respondent has brought this motion for non‑disclosure requesting:
1. A declaration that the respondent is not required to disclose the redacted portions of the certified tribunal record for reasons of national security and public safety; and
2. A declaration that the tribunal was permitted to object to disclosure by serving a written objection.
[7]On October 11, 2006, Chief Justice Lutfy ordered:
(a) an ex‑parte in camera hearing to be heard the morning of October 25, 2006, in the absence of counsel for the applicant; and
(b) a public hearing of the motion of the respondent in the afternoon of October 25, 2006, with counsel for both sides being present.
Issue
[8]At the public hearing both sides agreed that there is only one issue to be decided, namely:
a. What is the appropriate procedure to be followed to determine whether part of the tribunal record may not be disclosed by reasons of national security?
Analysis
[9]Applications for leave to commence judicial review proceedings in immigration matters are governed by Rules 15 [as am. by SOR/2002-232, s. 8], 16 and 17 [as am. idem, s. 14] of the Federal Courts Immigration and Refugee Protection Rules [SOR/93-22 (as am. by SOR/2005-339, s. 1)] (Immigration Rules) which provide as follows:
15. (1) An order granting an application for leave
(a) shall specify the language and the date and place fixed under paragraphs 74(a) and (b) of the Act for the hearing of the application for judicial review;
(b) shall specify the time limit within which the tribunal is to send copies of its record required under Rule 17;
(c) shall specify the time limits within which further materials, if any, including affidavits, transcripts of cross‑examinations, and memoranda of argument are to be served and filed;
(d) shall specify the time limits within which cross‑examinations, if any, on affidavits are to be completed; and
(e) may specify any other matter that the judge considers necessary or expedient for the hearing of the application for judicial review.
(2) The Registry shall send to the tribunal a copy of an order granting leave forthwith after it is made.
(3) The tribunal shall be deemed to have received a copy of the order on the tenth day after it was sent by mail by the Registry.
16. Where leave is granted, all documents filed in connection with the application for leave shall be retained by the Registry for consideration by the judge hearing the application for judicial review.
17. Upon receipt of an order under Rule 15, a tribunal shall, without delay, prepare a record containing the following, on consecutively numbered pages and in the following order:
(a) the decision or order in respect of which the application for judicial review is made and the written reasons given therefore,
(b) all papers relevant to the matter that are in the possession or control of the tribunal,
(c) any affidavits, or other documents filed during any such hearing, and
(d) a transcript, if any, of any oral testimony given during the hearing, giving rise to the decision or order or other matter that is the subject of the application for judicial review,
and shall send a copy, duly certified by an appropriate officer to be correct, to each of the parties and two copies to the Registry.
[10]It should be noted that there is no reference to withholding portions of the record for any reason including reasons of national security as argued in this case.
[11]Sections 86 and 87 of the IRPA deal with non‑disclosure of materials in immigration matters.
86. (1) The Minister may, during an admissibility hearing, a detention review or an appeal before the Immigration Appeal Division, make an application for non‑disclosure of information.
(2) Section 78 applies to the determination of the application, with any modifications that the circumstances require, including that a reference to “judge” be read as a reference to the applicable Division of the Board.
87. (1) The Minister may, in the course of a judicial review, make an application to the judge for the non‑disclosure of any information with respect to information protected under subsection 86(1) or information considered under section 11, 112 or 115.
(2) Section 78, except for the provisions relating to the obligation to provide a summary and the time limit referred to in paragraph 78(d), applies to the determination of the application, with any modifications that the circumstances require.
[12]As this case concerns an application for judicial review, section 87 ordinarily would be the applicable section. However, section 87 is limited to information protected under subsection 86(1) or information arising under section 11, 112 or 115. In this instance the applicant was accepted as a Convention refugee and made an inland application for permanent residence. His application in no way involves subsection 86(1), section 11, 112 or 115 of the IRPA. Instead, he was considered inadmissible under paragraph 34(1)(f) of the IRPA.
[13]The Immigration Rules incorporate, by reference, parts of the FCR. Rule 4 [as am. by SOR/2005-339, s. 3] of the Immigration Rules provide:
4. (1) Subject to subrule (2), except to the extent that they are inconsistent with the Act or these Rules, Parts 1 to 3, 6, 7, 10 and 11 and rules 383 to 385 of the Federal Courts Rules apply to applications for leave, applications for judicial review and appeals.
(2) Rule 133 of the Federal Courts Rules does not apply to the service of an application for leave or an application for judicial review.
[14]Rules 317 and 318 of the FCR provide for a procedure allowing a tribunal to object to the disclosure of certain materials. They provide as follows:
317. (1) A party may request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application and not in the possession of the party by serving on the tribunal and filing a written request, identifying the material requested.
(2) An applicant may include a request under subsection (1) in its notice of application.
(3) If an applicant does not include a request under subsection (1) in its notice of application, the applicant shall serve the request on the other parties.
318. (1) Within 20 days after service of a request under rule 317, the tribunal shall transmit
(a) a certified copy of the requested material to the Registry and to the party making the request; or
(b) where the material cannot be reproduced, the original material to the Registry.
(2) Where a tribunal or party objects to a request under rule 317, the tribunal or the party shall inform all parties and the Administrator, in writing, of the reasons for the objection.
(3) The Court may give directions to the parties and to a tribunal as to the procedure for making submissions with respect to an objection under subsection (2).
(4) The Court may, after hearing submissions with respect to an objection under subsection (2), order that a certified copy, or the original, of all or part of the material requested be forwarded to the Registry.
[15]Unfortunately, rules 317 and 318 are found in Part 5 of the FCR. Rule 4 of the Immigration Rules does not incorporate Part 5 into said Rules.
[16]Thus, there seems to be a lacuna in the Rules for dealing with sensitive information that a tribunal does not want to disclose in cases concerning judicial review of immigration decisions.
[17]To deal with such a lacuna, the FCR contain a so-called “gap rule” within rule 4, which provides:
4. On motion, the Court may provide for any procedural matter not provided for in these Rules or in an Act of Parliament by analogy to these Rules or by reference to the practice of the superior court of the province to which the subject‑matter of the proceeding most closely relates.
[18]It strikes me that rule 4 is directly applicable to the situation at hand. Here we are dealing with a situation where the parties have brought a motion asking me to deal with an issue not covered either in the Immigration Rules or the FCR.
[19]Parenthetically, I would like to note that no one appearing before me on this motion advanced the proposition that material injurious to national security or the safety of persons must be disclosed by reason of the lack of procedure for non‑disclosure. Both parties before me only stressed that the decision as to whether something can be withheld or not should be made by the court and not by the respondent alone. I certainly agree with that proposition.
[20]The closest analogy can be found in rules 317 and 318 of the FCR. I shall therefore deal with the subject-matter of this motion by invoking rule 4 so as to allow me to use rules 317 and 318.
[21]Subsection 318(3) of the FCR allows for directions as to the procedure to be followed. The question therefore arises as to what type of procedure should be invoked.
[22]The parties are unanimous that three types of analogous procedures exist that could be invoked:
(a) section 38 of the CEA; or
(b) the procedure set out in section 86 of the IRPA; or
(c) the procedure set out in section 87 of the IRPA.
[23]The parties also agree that the procedure in section 38 of the CEA is unduly complicated, would require a separate application and would involve another party, the Attorney General of Canada. I agree and, in the spirit of dealing with applications for judicial review expeditiously, I discard the CEA option.
[24]As between sections 86 and 87, the difference lies in the applicant’s entitlement to a summary under section 86 as to the suppressed information, while the same is not available under section 87.
[25]The respondent advocates following the procedure set out in section 87, while the applicant submits that section 86 is more appropriate. The applicant’s rationale being that while the applicant should not know the material that falls under the national security umbrella, he is entitled to a summary so that he knows at least the ambit of the information that works against him.
[26]In this case the applicant has been advised that he is not being granted permanent residency, as he is considered to be inadmissible by virtue of paragraph 34(1)(f) of the IRPA, i.e. being a member of an organization in which there are reasonable grounds to believe engages or has engaged or will engage in acts of terrorism. The decision of the CIC officer T. Argyrides, dated November 4, 2005, in the underlying application for judicial review states:
I have considered the documentary evidence presented by counsel on record on behalf of Mr. Mohammad (sic), his admission of his membership with the MQM (Altaf faction) and his support of the parties’ ideology and principals. It is this officer’s opinion that there are reasonable grounds to believe that Mr. Mohammad (sic) is a member of the MQM Altaf group, an organization that there are reasonable grounds to believe is or was engaged in terrorist activity. [Application record, at p. 9.]
[27]The applicant is thus aware that it is his membership in the MQM that caused the immigration officer to consider him inadmissible.
[28]Section 87 refers specifically to judicial review proceedings, while section 86 is more geared to non‑ admissibility hearings based on ministerial certificates. It behooves the Court when filling lacuna to stay as close as possible to the original legislative intent. In this case, Parliament evidently had section 87 in mind when considering non‑disclosure in the context of judicial reviews. Accordingly, it seems to me that section 87 is the more appropriate procedure to be used under these circumstances.
[29]In addition, I would note that a summarizing some of the information normally sought to be withheld (i.e. relating to CSIS [Canadian Security Intelligence Service] procedures, file numbers, contacts, working relationships and names of CSIS personnel) is extremely difficult, would be of no help to the applicant yet imposes a considerable burden on the respondent. Finally, I see that my colleague, Lemieux J., equally ordered a motion under section 87 in the similar case of Naeem v. Canada (Minister of Citizenship and Immigration), file number IMM 5395‑05 on May 29, 2006.
[30]This morning I reviewed in camera in the absence of applicant’s counsel, the materials the respondent wishes to withhold. I am satisfied that the release of the information sought to be withheld would be injurious to national security or to the safety of persons. I, therefore, have authorized the release of the information subject to the redactions indicated thereon.
[31]This application for judicial review shall now proceed on the basis of the tribunal record made of:
(a) the portion already furnished to the applicant; and
(b) the remainder redacted as per my order of October 27, 2006.
[32]Adapting section 78 [as am. by S.C. 2005, c. 10, s. 34(E)] to the circumstances of an application for judicial review (as mandated by subsection 87(2)), I am of the view that:
1. The hearing on the merits should be conducted in two parts:
· a public hearing the morning of November 20, 2006, with counsel for both sides being present; and
· an ex‑parte in camera hearing to be heard in the afternoon of November 20, 2006, in the absence of counsel for the Applicant.
2. When making its decision on the merits in the judicial review application the Court will consider both:
· the publicly available Tribunal record; and
· the information in the redacted portions of the Tribunal record, available at the in camera hearing, to the extent, if any, that pertains to the applicant.
[33]Finally this matter should have come before the Court by way of motion of the respondent urging the Court to adopt the procedure spelled out above. It is hoped that this will happen in future cases. Given that the applicant had to bring this matter to the attention of this Court, an order for costs of this motion in favour of the applicant will issue.
ORDER
THIS COURT ORDERS that:
1. The motion for non‑disclosure of part of the Tribunal record is granted. The respondent shall file with the Court and serve the applicant with the redacted version of the Tribunal record as attached to my order of October 27, 2006.
2. The hearing of the application on the merits of this case on November 20, 2006, will take place in two parts:
· a public hearing the morning of November 20, 2006, with counsel for both sides being present; and
· an ex‑parte in camera hearing to be heard in the afternoon of November 20, 2006, in the absence of counsel for the applicant.
3. The applicant shall have his costs in this motion.