Date: 20150312
Docket: IMM-740-14
Citation: 2015 FC 313
Ottawa, Ontario, March 12, 2015
PRESENT: The Honourable Madam Justice Mactavish
| BETWEEN:
|
| ABDUL KHALIL ALEAF, RAIHANA ALEAF and TAYEBA ALEAF and ABDUL SABOOR ALEAF (by their Litigation Guardian
ABDUL KHALIL ALEAF)
|
| Applicants
|
| and
|
| THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
| Respondent
|
ORDER AND REASONS
[1] Abdul Khalil Aleaf’s application for permanent residence as a member of the Convention refugee class or country of asylum class was refused because a visa officer found that Mr. Aleaf’s story was not credible. No finding was made by the officer that Mr. Aleaf was inadmissible to
[2] Mr. Aleaf seeks judicial review of the visa officer’s decision. In the context of this application, the Minister has brought a motion under section 87 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 for the non-disclosure of portions of the Certified Tribunal Record, asserting that the disclosure of the redacted information would be injurious to national security or to the safety of any person. In response to the Minister’s motion, Mr. Aleaf has brought his own motion seeking the appointment of a Special Advocate to protect his interests in the section 87 proceedings. These reasons pertain only to Mr. Aleaf’s motion.
[3] For the reasons that follow, I have determined that considerations of fairness and natural justice do not require the appointment of a Special Advocate in this case. As a consequence, Mr. Aleaf’s motion will be dismissed.
I.
Analysis
[4] The Special Advocate provisions of IRPA were enacted as a result of the Supreme Court of Canada’s decision in Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350. In Charkaoui, the Supreme Court held that in light of the significant liberty interests at stake in Security Certificate proceedings, the requirements of fundamental justice necessitated that the individual named in the Certificate be provided with full disclosure of the case against him or her, or a “substantial substitute”
for such disclosure had to be found: see Charkaoui, at para. 61.
[5] While the amendments to IRPA enacted following the Charkaoui decision make the appointment of Special Advocates mandatory in Security Certificate proceedings, the appointment of Special Advocates is left to the discretion of the presiding designated judge in other types of immigration cases. That is, section 87.1 of IRPA gives this Court the discretion to appoint a Special Advocate where “it is of the opinion that considerations of fairness and natural justice require”
such an appointment in order to protect the interests of an applicant.
[6] A number of factors have to be weighed in assessing whether fairness and natural justice require the appointment of a special advocate to protect the interests of the individual in a given case. No one factor will necessarily be determinative – rather, the Court must balance all of the competing considerations in order to arrive at a just result: Freeman v.
[7] I accept that this matter is undoubtedly of great importance to Mr. Aleaf and his family. However, in contrast to Security Certificate proceedings, there are no rights under section 7 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982 c.11, at stake in this case. This is because non‑citizens outside of Canada do not generally hold Charter rights: Tabingo v.
[8] I recognize that there are limited exceptions to this principle, where, for example, the non-Canadian is physically present in Canada or is subject to a criminal trial in Canada: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; Slahi v Canada (Minister of Justice), 2009 FC 160, 340 F.T.R. 236, aff’d 2009 FCA 259, 394 N.R. 352, leave to appeal refused [2009] S.C.C.A. No. 444. None of the exceptions identified in the jurisprudence apply here. Mr. Aleaf is not in
[9] Because section 7 of the Charter is not engaged in this proceeding, the issue is therefore one of common-law procedural fairness.
[10] As the Supreme Court of Canada observed in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, the content of the duty of fairness varies depending on the context of the specific case at issue.
[11] As noted earlier, the decision in issue in this case is of considerable importance to Mr. Aleaf and his family, a factor that militates in favour of a higher level of procedural fairness being owed to him. So too does the fact that no appeal is provided for by IRPA with respect to the decision under review: see Mekonen v.
[12] That said, there are other factors that limit the content of the duty of fairness owed to visa applicants, including Mr. Aleaf: Khan v. Canada (Minister of Citizenship and Immigration), 2001 FCA 345 at paras. 30-31, [2002] 2 F.C. 413. In particular, the visa officer’s decision in this case did not deprive Mr. Aleaf of any legal rights because, as a foreign national, he has no right to enter Canada: Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711, at para. 24, [1992] S.C.J. No. 27. This reduces the level of procedural fairness owed to Mr. Aleaf: Chiau v.
[13] Also relevant is the fact that the amount of information that has not been disclosed to Mr. Aleaf is limited. As the Court observed in Segasayo v.
[14] As Justice Noël observed in Dhahbi v. Canada (Minister of Citizenship and Immigration), 2009 FC 347, [2009] F.C.J. No. 400, in cases such as this, the information redacted from the record often adds little to the matters in issue. Examples cited by Justice Noël include references to investigative techniques; administrative and operational methods; names and telephone numbers of CSIS personnel; and information regarding relationships between CSIS and other agencies in Canada and abroad: at para. 24. Many of the redactions in this case fall within that description.
[15] Moreover, a review of the un-redacted Certified Tribunal Record reveals that Mr. Aleaf has already had access to much of the information on the record, and has been made aware of the nature of the Minister’s concerns with respect to his past activities.
[16] Finally, the issues raised by the respondent’s section 87 motion appear to be narrow, and the Court is clearly well-positioned to address the national security claims in this case without the involvement of a Special Advocate.
II.
Conclusion
[17] Taking all of the above considerations into account, I have concluded that considerations of fairness and natural justice do not require the appointment of a Special Advocate in this case. As a result, Mr. Aleaf’s motion is dismissed.
[18] The Court will, however, be holding an ex parte, in camera hearing in accordance with the provisions of paragraph 83(1)(c) of IRPA in order to determine whether disclosure of the redacted information would indeed be injurious to national security or to the safety of any person.
ORDER
THIS COURT ORDERS that Mr. Aleaf’s motion for the appointment of a Special Advocate is dismissed.
"Anne L. Mactavish"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
| DOCKET:
|
IMM-740-14
|
| STYLE OF CAUSE:
|
ABDUL KHALIL ALEAF v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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MOTION IN WRITING CONSIDERED AT
| order and REASONS:
|
MACTAVISH J.
|
| DATED:
|
March 12, 2015
|
WRITTEN REPRESENTATIONS BY:
| Timothy Wichert
|
For The Applicants
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| Brad Gotkin
|
For The Respondent
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SOLICITORS OF RECORD:
| Jackman, Nazami and Associates
Barristers and Solicitors
|
For The Applicants
|
| William F. Pentney
Deputy Attorney General of
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For The Respondent
|