Mamut v. Canada (Citizenship and Immigration)

Mamut v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2024-10-08
Neutral citation
2024 FC 1593
File numbers
IMM-1407-22, IMM-8585-22
Decision Content
Date: 20241008
Dockets: IMM-1407-22
IMM-8585-22
Citation: 2024 FC 1593
Ottawa, Ontario, October 8, 2024
PRESENT: Mr. Justice Norris
BETWEEN:
Docket: IMM-1407-22
KHALIL MAMUT
AMINIGULI AIZEZI
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AND BETWEEN:
Docket: IMM-8585-22
Salahidin ABDULAHAD
Zulipiye YAHEFU
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. OVERVIEW [1] Salahidin Abdulahad and Khalil Mamut are Chinese citizens of Uyghur ethnicity. They were both captured in Pakistan and turned over to the United States military after coalition forces invaded Afghanistan in response to the terrorist attacks in the United States on September 11, 2001. In early 2002, Mr. Abdulahad and Mr. Mamut were transferred to the Guantanamo Bay detention facility. They were held there until 2009, when they were released to be resettled in Bermuda.
[2] Mr. Abdulahad’s spouse, Zulipiye Yahefu, was granted refugee protection by Canada. When she applied for permanent residence in Canada in December 2013, Ms. Yahefu included Mr. Abdulahad on her application. Ms. Yahefu became a permanent resident in July 2014 but Mr. Abdulahad’s application remains outstanding. Ms. Yahefu is now a Canadian citizen.
[3] Mr. Mamut’s spouse, Aminiguli Aizezi, was also granted refugee protection in Canada. When she applied for permanent residence in Canada in June 2015, she included her then only child (a son) as well as Mr. Mamut on her application. Ms. Aizezi and her son became permanent residents in March 2017 but Mr. Mamut’s application remains outstanding. Ms. Aizezi and her son are now Canadian citizens.
[4] On February 14, 2022, Mr. Mamut and Ms. Aizezi commenced an application for judicial review (IMM-1407-22). On August 31, 2022, Mr. Abdulahad and Ms. Yahefu commenced a similar application (IMM-8585-22). The applicants contend that they are entitled to a legal remedy because of the failure of the Minister to make a decision on the outstanding applications for permanent residence in a reasonable time. Because the applications for judicial review share a number of issues in common, they have been joined and are being determined together.
[5] Previous Orders and Judgments dealt with the respondent’s objections to disclosure of information in the Certified Tribunal Records (CTRs) on grounds of common law deliberative secrecy (2023 FC 1108), section 37 of the Canada Evidence Act, RSC 1985, c C-5 (2024 FC 370), and section 87 of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) (2024 FC 536). An earlier Order also dealt with the applicants’ requests for anonymity or confidentiality orders (2024 FC 243).
[6] There is no issue that the delay in processing the applications for permanent residence has been largely, if not entirely, due to concerns that Mr. Abdulahad and Mr. Mamut may be inadmissible to Canada for security reasons under section 34 of the IRPA. Specifically, after they applied for permanent residence, concerns were raised that Mr. Abdulahad and Mr. Mamut may be inadmissible to Canada due to their alleged association with the East Turkistan Islamic Movement (ETIM). US authorities had also relied on this alleged association to justify the men’s detention at Guantanamo Bay. The issue of inadmissibility on security grounds has still not been resolved by decision makers acting on behalf of the Minister of Citizenship and Immigration.
[7] Mr. Abdulahad and Mr. Mamut contend that there has been inordinate delay in the processing of their applications for permanent residence. Indeed, they submit that the Minister’s delay in resolving the issue of their inadmissibility on security grounds is so excessive, oppressive, and unfair as to constitute an abuse of process. As a remedy, they seek an order staying the security inadmissibility proceedings and directing the Minister to proceed with the processing of their applications for permanent residence. In the alternative, they seek an order directing the Minister to find that they are not inadmissible on security grounds or, conversely, prohibiting the Minister from finding them inadmissible on this basis. Further, and in any event, they submit that the test for mandamus is met and the Minister should be ordered to render a decision on their applications for permanent residence without additional undue delay.
[8] For the reasons that follow, this application will be allowed in part. I am satisfied that there has been inordinate delay in the processing of the applications for permanent residence and that this entitles the applicants to a remedy. While I agree that the delay in both cases is excessive, it would not assist the applicants to characterize it as amounting to an abuse of process. This is because the remedy they seek on this basis – a stay of the inadmissibility assessments – is self-defeating. Unless a Court grants a constitutional remedy, which is not the case here (the applicants have not advanced any claims under the Charter), its remedial powers do not extend to ordering the Minister to disregard the requirements of the IRPA. Under that Act, before Mr. Abdulahad and Mr. Mamut can become permanent residents, an officer must be satisfied that they are not inadmissible. As a result, if the Minister were ordered not to consider their inadmissibility on security grounds, this would stymie their applications for permanent residence; an officer acting on behalf of the Minister would have no choice but to reject the applications. In any event, the remedy of a stay is not warranted because it is not meaningfully responsive to the prejudice the applicants have suffered as a result of the inordinate delay. Furthermore, I am not satisfied that the preconditions for an order directing the Minister to find that the applicants are not inadmissible on security grounds or, conversely, prohibiting the Minister from finding them inadmissible on these grounds, have been met.
[9] Nevertheless, the delay in these cases is clearly excessive, the Minister has fallen far short of demonstrating that the time that has been taken is justified, and the Minister has not shown why any additional time to make decisions on the applications for permanent residence is warranted. Accordingly, but subject to any further Order of the Court, the Minister must render decisions on the applications for permanent residence no later than 30 days from the date of this Judgment. Finally, in my view, this is an appropriate case for an award of costs.
II. BACKGROUND [10] Mr. Abdulahad’s application for permanent residence has now been outstanding for almost 11 years; Mr. Mamut’s for over 9 years. The present applications for judicial review were commenced in 2022 but they could not be heard on their merits until contested objections to the disclosure of information in the CTRs were dealt with. Leave to proceed with the applications was granted on February 13, 2024. The public hearing of the applications took place on April 16, 2024. An ex parte, in camera hearing took place on May 7, 2024. The Court reserved its decision.
[11] It is not necessary to describe the history of the applications for permanent residence in great detail. It will suffice to highlight the principal periods of time that have been taken up with the issue of the applicants’ potential inadmissibility on security grounds. To the extent that they are disclosed in the CTRs or set out in the applicants’ affidavits, the relevant events in the processing of the applications are not in dispute. While there is significant overlap between the two cases, each application followed its own path so their respective histories will be set out separately below.
[12] Since the security inadmissibility concerns relate to the applicants’ alleged association with or membership in the ETIM, it is helpful to review this background first before turning to the processing of the applications for permanent residence.
A. The applicants’ detention and release by US authorities [13] Mr. Abdulahad was born in 1977 in Kashgar, People’s Republic of China. In June 2001, after witnessing the ongoing persecution of Uyghurs (sometimes spelled Uighurs or Uighers) and the harassment of his family, Mr. Abdulahad left China for Pakistan, hoping to continue his education there. When his legal status in Pakistan expired (it was valid for only one month), he feared returning to China so he decided to seek out a Uyghur community he had heard about in a village outside Jalalabad, Afghanistan. He arrived there in August 2001.
[14] Mr. Abdulahad describes his experiences of persecution in China, his decision to leave for Pakistan, and his experiences in Pakistan and Afghanistan in detail in a statutory declaration sworn on April 6, 2020, in connection with his application for permanent residence. He also swore an affidavit in support of the present application on November 15, 2022, that covers much of the same ground. He swore a further affidavit on February 27, 2024. He was not cross-examined in connection with this application.
[15] Mr. Mamut was born in Kashgar in 1978. Due to Chinese oppression and persecution of Uyghurs, in 1998, he left China to study in Pakistan. He studied in Lahore for three years. In 2001, his Chinese passport was expiring so, being afraid to return to China, Mr. Mamut sought out a group of Uyghurs in Afghanistan he believed could help him with the renewal of his passport so that he could return to Pakistan. He ended up in the same village in Afghanistan as Mr. Abdulahad.
[16] Mr. Mamut describes his experiences of persecution in China, his decision to leave for Pakistan, and his experiences in Pakistan and Afghanistan in detail in a statutory declaration sworn on April 6, 2020, in connection with his application for permanent residence. He also swore an affidavit in support of the present application on March 26, 2022, that covers much of the same ground. He swore a further affidavit on February 27, 2024. He was not cross-examined in connection with this application.
[17] Mr. Abdulahad and Mr. Mamut had to flee the village in Afghanistan at the end of October 2001, when it came under aerial bombardment by US forces. Together with a group of 16 other Uyghurs, they hid in nearby mountains and then made their way to Pakistan. At first, some local individuals assisted the group but they soon turned them over to the Pakistani military, reportedly in exchange for bounties. Mr. Abdulahad, Mr. Mamut, and the others were then turned over to the US military. Subsequently, they were all transferred to the detention facility that had just been constructed at the US Naval Base at Guantanamo Bay, Cuba. In total, 22 Uyghurs captured in Afghanistan or Pakistan were sent to Guantanamo Bay.
[18] For the next two years, Mr. Abdulahad and Mr. Mamut were held without any sort of hearing to determine the lawfulness of their detention. In July 2004, following decisions of the Supreme Court of the United States holding that Guantanamo Bay detainees were entitled to challenge the lawfulness of their detention through a federal writ of habeas corpus (Rasul v Bush, 542 U.S. 466 (2004) and Hamdi v Rumsfeld, 542 U.S. 507 (2004)), the US Department of Defense established the Combatant Status Review Tribunal (CSRT) to review whether detainees were being rightfully held. Guantanamo Bay detainees, including Uyghur detainees, nevertheless continued to pursue relief in US courts through habeas corpus filings (although there was some uncertainty about the availability of this remedy until this was finally resolved in the detainees’ favour by the Supreme Court in Boumediene v Bush, 533 US 723 (2008)).
[19] One of the central allegations against Mr. Abdulahad and Mr. Mamut was that they were members of the ETIM. The United States had designated the ETIM as a terrorist organization in August 2002. In September 2002, the ETIM was added to the United Nations Security Council sanctions list.
[20] For detainees like Mr. Abdulahad and Mr. Mamut, who were not alleged to be members of al-Qaida or the Taliban, the Department of Defense had stipulated that, to establish that their detention as enemy combatants was warranted, it had to prove by a preponderance of evidence that they were part of or supporting forces, that those forces were associated with al-Qaida or the Taliban, and that they are engaged in hostilities against the United States or its coalition partners: see Parhat v Gates, 532 F.3d 834 (D.C. Cir.) at 16-17. In the cases of Mr. Abdulahad and Mr. Mamut, the forces in question were the ETIM.
[21] In determining whether a detainee was an enemy combatant, the CSRT could consider both unclassified and classified evidence and information. Proceedings would be conducted in the presence of the detainee but the tribunal could also proceed ex parte. Detainees could be assisted by a member of the US armed forces but they were not entitled to any form of legal representation.
[22] The allegation that Mr. Abdulahad and Mr. Mamut were members of the ETIM appears to have rested largely, if not entirely, on the characterization of the village near Jalalabad, where they had admittedly stayed for a few months, as an ETIM training camp. While Mr. Abdulahad and Mr. Mamut were informed of the unclassified gist of the allegations against them in connection with the CSRT process, no information or evidence supporting the allegation that the village was an ETIM training camp, that the ETIM was affiliated with al-Qaida or the Taliban, or that the “camp” had anything to do with fighting the United States was disclosed to them (or has been made available to them since then, for that matter). Mr. Abdulahad and Mr. Mamut maintained that they had gone to the village solely because they believed they would be safe there and they had nowhere else to go. They denied being members of the ETIM. Indeed, they maintained that the first time they ever heard about the group was when they were questioned about it by US officials. They maintained that they bore no enmity towards the United States and had never engaged in hostilities against it. US authorities did not produce any evidence to contradict these latter assertions. Nevertheless, the CSRT continued the detentions of Mr. Abdulahad and Mr. Mamut as enemy combatants.
[23] Since its inception, the CSRT process was the subject of intense legal debate and, separate and apart from the larger question of the lawfulness of the detention of “enemy combatants” at the Guantanamo Bay facility, the process was widely condemned as fundamentally unfair. As well, whether there was ever a sound basis to designate the ETIM as a terrorist organization has also been the subject of significant debate. The US designation was revoked in October 2020; however, the ETIM still appears on the United Nations Security Council sanctions list. The organization has never been designated by Canada as a terrorist entity.
[24] After Mr. Abdulahad and Mr. Mamut were released from Guantanamo Bay, some US information concerning them found its way into the public record, notably through a leak of hundreds of classified military documents relating to Guantanamo Bay detainees. The documents were published by the New York Times in April 2011.
[25] Included in these documents was a classified memorandum concerning Mr. Abdulahad dated February 21, 2004, prepared by the Department of Defense, Joint Task Force Guantanamo. A copy of this memo was subsequently disclosed to Mr. Abdulahad (on July 1, 2020) by the Consulate General of Canada in New York in connection with his application for permanent residence. The purpose of the memo was to recommend Mr. Abdulahad’s transfer to the control of another country for continued detention. (The memo pre-dates the creation of the CSRT process. It appears that Mr. Abdulahad had been cleared for transfer from Guantanamo Bay to another country as early as 2003, as long as he continued to be detained after the transfer.) The memo set out the US assessment of Mr. Abdulahad as follows:
• Detainee sought out and received training in an ETIM training camp in Afghanistan.
• Detainee is a probable member of the East Turkistan Islamic Movement (ETIM), which is a Uigher separatist organization dedicated to the creation of a Uigher Islamic homeland in China, through armed insurrection and terrorism.
• Sensitive reporting indicates that ETIM and the Islamic Movement of Uzbekistan (IMU) have unified their efforts to form a larger and more capable terrorist organization, which is now directly affiliated and supported by Al-Qaida and other terrorist groups.
• Reporting has also noted that both ETIM and the IMU have expanded and focused their efforts on the United States and have made attacking Americans their main priority.
• Both organizations have extensive Al-Qaida ties and numerous affiliations have existed for several years with other Islamic extremist groups.
• Detainee has admitted to affiliations with the Islamic Movement of Uzbekistan (IMU).
• Detainee was captured in Pakistan along with other Uigher fighters and Al-Qaida members in 2001.
[26] The memo summarized the US assessment of Mr. Abdulahad as follows:
Based on information collected and available to Joint Task Force Guantanamo as of 15 January 2004, detainee [. . .] is assessed as being a probable member of the East Turkistan Islamic Movement. Detainee has had some level of terrorist training, as confirmed by associations with known terrorist group(s) and is highly vulnerable to future recruitment by terrorist groups targeting the US and its allies. It has been determined that the detainee poses a medium risk as he may possibly pose a threat to the U.S., its interests or its allies.
[27] Also included in the leak was a similar classified memorandum concerning Mr. Mamut, dated June 17, 2005. A copy of this memo was subsequently disclosed to Mr. Mamut (on July 1, 2020) by the Consulate General of Canada in New York in connection with his application for permanent residence. Like Mr. Abdulahad, Mr. Mamut had also been cleared for transfer to another country, as long as he continued to be detained after the transfer.
[28] The memo summarized the US assessment of Mr. Mamut as follows:
For this updated recommendation, detainee is assessed to be a trained member of the Eastern Turkistan Islamic Movement (ETIM) (also known as the Eastern Turkistan Islamic Party or organization, ETIP or ETIO). The ETIM is affiliated with Al-Qaida and its global terrorist network. ETIM individuals have reportedly fought alongside the Taliban against coalition forces in Afghanistan. Additionally, ETIM is reportedly a member of the “League of Islamic Mujahidin” (LEVO). Their primary objective is creating an Islamic caliphate (rule of Islam) that will encompass the entire Central Asian region, starting with Afghanistan. It is assessed detainee made a commitment to jihad. He advocates Islamic extremism/militancy by his involvement with the ETIM. He likely will regroup with ETIM if released. It is assessed this detainee is a MEDIUM risk, as he may pose a threat to the US, its interests and allies.
[29] While these memos (and other contemporaneous documents) provide some insight into the US assessments of Mr. Abdulahad and Mr. Mamut when they were being held at Guantanamo Bay, they reveal nothing about the information or evidence that supported the key allegations: that the ETIM was a terrorist organization aligned with al-Qaida, that it had shifted its attention from China to attacking Americans and American interests, and that the village where Mr. Abdulahad and Mr. Mamut had stayed for a few months was an ETIM training camp.
[30] Meanwhile, in Parhat v Gates, which was released on June 20, 2008 (just over a week after the Supreme Court released its decision in Boumediene v Bush), the United States Court of Appeals for the District of Columbia granted judicial review of the decision of the CSRT that Huzaifa Parhat, another Uyghur detainee, is an enemy combatant. It appears that Parhat was at the same “training camp” as Mr. Abdulahad and Mr. Mamut and that they were all part of the same group that fled to Pakistan and then were captured and turned over to the US military. The court concluded that the evidence before the CSRT (including classified information) was insufficient to sustain its determination that Parhat is an enemy combatant under the Department of Defense’s own definition of that term (see paragraph 20, above).
[31] The court noted that the CSRT’s determination that Parhat is an enemy combatant was based on its finding that he is “affiliated” with a Uyghur independence group (the ETIM) and a further finding that the group was “associated” with al-Qaida and the Taliban. The court’s decision to allow the application for judicial review turned on the latter finding. The court observed: “The Tribunal’s findings regarding the Uighur group rest, in key respects, on statements in classified State and Defense Department documents that provide no information regarding the sources of the reporting upon which the statements are based, and otherwise lack sufficient indicia of the statements’ reliability” (at 2). To survive judicial review, the CSRT’s determination of a detainee’s status “must be based on evidence that both the Tribunal and the court can assess for reliability” (at 3). In the absence of such evidence (either classified or unclassified) supporting the necessary findings concerning the ETIM, the finding that Parhat is an enemy combatant had to be set aside.
[32] Subsequently, the US government notified the US District Court for the District of Columbia (the court with habeas corpus jurisdiction in respect of Guantanamo Bay detainees) that it would no longer consider 17 Uyghur detainees, including Mr. Abdulahad, Mr. Mamut, and Mr. Parhat, as enemy combatants. It conceded that there were no material factual differences between Parhat and the others, including the applicants, and that the court’s holding in Parhat v Gates applied to them all equally. (Earlier, in May 2006, five other Uyghur detainees had been released and resettled in Albania.) On October 8, 2008, the District Court concluded that the continued detention of all these individuals was unlawful. The men remained at Guantanamo Bay, however, pending successful efforts to resettle them in a foreign country.
[33] Following negotiations with Bermuda, in June 2009, Mr. Abdulahad, Mr. Mamut, and two other Uyghur detainees were released from Guantanamo Bay and resettled there. Other Uyghur detainees were resettled elsewhere. None could be repatriated to China because of the risks they would face there.
B. Mr. Abdulahad’s application for permanent residence [34] Mr. Abdulahad and Ms. Yahefu were married in a religious ceremony in Bermuda in February 2012. Ms. Yahefu is also a Chinese citizen of Uyghur ethnicity. In December 2013, after she was granted refugee protection by Canada, Ms. Yahefu applied for permanent residence in Canada. She included Mr. Abdulahad on her application. In July 2014, Ms. Yahefu was informed that she met the requirements to apply for permanent resident status. She was also informed that Mr. Abdulahad’s application would be processed by the office of the Consulate General of Canada in New York (CGNY). Over the next several months, the Immigration Section at the CGNY requested various documents and other background information from Ms. Yahefu and Mr. Abdulahad, all of which they provided promptly.
[35] On February 24, 2015, the Canada Border Services Agency (CBSA) requested security advice from the Canadian Security Intelligence Service (CSIS) concerning Mr. Abdulahad’s application for permanent residence.
[36] On July 17, 2015, the CGNY convoked Mr. Abdulahad for an interview in relation to his application for permanent residence. The interview was to take place in Bermuda on August 19, 2015. However, on August 12, 2015, the CGNY cancelled the interview due to the unavailability of a Uyghur interpreter.
[37] On August 18, 2015, CSIS provided its security advice to the CBSA. In providing this advice, CSIS considered Mr. Abdulahad’s purported support of Uyghur nationalism as it may relate to Uyghur separatist movements. The validity period of this assessment has now elapsed.
[38] On November 20, 2015, the National Security Screening Division (NSSD) of the CBSA provided an inadmissibility assessment concerning Mr. Abdulahad to Immigration, Refugees and Citizenship Canada (IRCC). The assessment concluded that there were reasonable grounds to believe that Mr. Abdulahad is inadmissible to Canada under paragraph 34(1)(c) of the IRPA for engaging in terrorism and under paragraph 34(1)(d) of that Act for being a danger to the security of Canada. Information concerning Mr. Abdulahad’s apprehension in Pakistan, his detention at Guantanamo Bay, and his purported support of Uyghur nationalism as it may relate to Uyghur separatist movements was considered in this assessment.
[39] On May 10, 2016, Ms. Yahefu was granted permanent residence in Canada.
[40] On November 25, 2016, an immigration officer at the CGNY sent Mr. Abdulahad a procedural fairness letter setting out potential concerns that he may be inadmissible to Canada on security grounds. After quoting section 34 of the IRPA in full, the letter states: “Specifically, records indicate you were arrested by the American authorities and transferred to Guantanamo Bay in 2002. You were involved in military activity, assisted in the building and received military training at a Uighur training camp.” The letter states that, before a final decision is made on his application for permanent residence, Mr. Abdulahad “may submit additional information relating to this issue” within 60 days.
[41] Mr. Abdulahad responded to the procedural fairness letter by letter dated January 4, 2017. He addressed each provision of section 34 of the IRPA, denying that any of them applied to him. He also enclosed a memorandum from Susan Baker Manning, one of his American habeas corpus lawyers, setting out the history of his case, including his detention at and ultimate release from Guantanamo Bay.
[42] A year later, on January 16, 2018, the CGNY convoked Mr. Abdulahad for another interview in Bermuda. This time, it proceeded as scheduled on January 30, 2018. The interview was conducted without the assistance of a Uyghur interpreter. Among the topics covered was Mr. Abdulahad’s potential inadmissibility for security reasons, including his activities in Afghanistan prior to his capture. Mr. Abdulahad heard nothing further from the CGNY.
[43] In April 2019, Mr. Abdulahad retained Downtown Legal Services (DLS) to represent him in his application for permanent residence and related legal proceedings. From the outset, DLS raised concerns about the length of time the application for permanent residence had been outstanding. An application for mandamus was filed on November 1, 2019 (IMM-6616-19) but it was eventually discontinued on March 5, 2020, because it appeared that the application for permanent residence was finally moving forward.
[44] Shortly after the mandamus application was filed, the Migration Section of the CGNY requested additional information from Mr. Abdulahad, which he provided. Then, on February 7, 2020, a migration officer with the CGNY sent Mr. Abdulahad a second procedural fairness letter. In the letter, the officer stated:
After careful review of the details of your application, due to your membership in the ETIM, an organization that has engaged in terrorism, I am concerned that you are a member of the inadmissible class of persons described in section 34(1)(f) [of the IRPA] in reference to paragraph 34(1)(c).
Pursuant to paragraph 34(1)(f) in reference to paragraph 34(1)(c), a foreign national is inadmissible for being a member of an organization that there are reasonable grounds to believe engages, has engaged or will in engage in terrorism.
[45] The letter goes on to explain that the concerns arose from Mr. Abdulahad having stayed at a Uyghur training camp in Afghanistan for approximately three months where he received “military training in the form of physical and small-arms training (AK-47/Kalashnikov) and engaged in security duties for this camp and participated in building the camp.” The letter states that this indicates his role as a member of the ETIM, which ran the training camp. The letter then notes that the ETIM had been listed as a terrorist organization by the United Nations Security Council on the basis of its terrorist activities in China as early as May 1998. Mr. Abdulahad was given 60 days to address these concerns.
[46] In response, on February 13, 2020, DLS requested disclosure of certain documents in order to be able to respond properly to the concerns raised in the procedural fairness letter. Specifically, DLS requested disclosure of any notes arising from Mr. Abdulahad’s interview with IRCC on January 30, 2018; the letter from CSIS to the CBSA dated August 18, 2015, providing its security advice concerning Mr. Abdulahad (see paragraph 37, above); and the letter from the CBSA to IRCC dated November 20, 2015, providing an inadmissibility assessment (see paragraph 38, above). (Mr. Abdulahad had learned of the latter two documents through a request under the Access to Information Act, RSC 1985, c A-1).
[47] Despite the lack of a response to the disclosure request, on April 7, 2020, DLS provided a comprehensive response to the February 7, 2020, procedural fairness letter. DLS also requested a decision on Mr. Abdulahad’s application for permanent residence within 60 days.
[48] Eventually, in response to the earlier disclosure request, on July 1, 2020, the Migration Section of the CGNY provided Mr. Abdulahad with a copy of notes from his interview in Bermuda on January 30, 2018. It also provided him with a copy of the February 21, 2004, Memorandum from the Department of Defense, Joint Task Force Guantanamo (see paragraph 25, above). The covering letter does not address the requests for the August 18 and November 20, 2015, security assessments. (These letters were eventually disclosed to Mr. Abdulahad as part of the CTR prepared in connection with the present application. Both were subject to redactions under section 87 of the IRPA that were confirmed by the Court, although a non-injurious summary of redacted information in the letters was ordered released.)
[49] On August 27, 2020, DLS provided a detailed response to the information disclosed on July 1, 2020. DLS also requested a decision on Mr. Abdulahad’s application for permanent residence within 30 days. In a follow-up letter dated October 2, 2020, DLS reiterated its request that a decision be made as soon as possible.
[50] On November 17, 2020, DLS requested that the processing of Mr. Abdulahad’s application for permanent residence be held in abeyance temporarily so that further submissions could be provided on the implications of the recent decision by the United States to de-list the ETIM as a terrorist organization. These further submissions were provided on February 12, 2021. Once again, DLS requested a decision within 60 days.
[51] On May 26, 2021, the migration officer at the CGNY assigned to Mr. Abdulahad’s case wrote a detailed email to the NSSD. The email was sent in accordance with a “contrary outcome” process that had been adopted by IRCC and the CBSA.
[52] Briefly, security screening of applicants for permanent residence is a joint undertaking involving the IRCC decision maker and the CBSA. IRCC and the CBSA developed a process to ensure that IRCC decision makers undertake a final consultation with its screening partners before making a decision that is contrary to the security recommendation provided by the CBSA. The contrary outcome process applies in two circumstances: (1) when IRCC has received a non-favourable inadmissibility recommendation from the CBSA and the IRCC decision maker wishes to issue a visa with no finding of inadmissibility; or (2) when IRCC has received a favourable recommendation from the CBSA and the IRCC decision maker wishes to refuse the visa on a ground of inadmissibility under sections 34, 35 or 37 of the IRPA.
[53] As set out above, the NSSD had provided IRCC with a non-favourable inadmissibility recommendation on November 20, 2015. Evidently, the IRCC migration officer initiated the contrary outcome process because he was considering approving the application for permanent residence despite the NSSD’s recommendation.
[54] I pause here to note that, when the IRCC officer’s email was first included in the CTR prepared by the Minister in connection with this application for judicial review, it was redacted in its entirety, including the date it was sent. The respondent sought orders upholding the redactions under common law deliberative secrecy and, when this was rejected, under section 37 of the CEA. The latter claim was allowed in part. (See, respectively, 2023 FC 1108 and 2024 FC 370.) It was in connection with the litigation of these privilege claims that the respondent provided evidence concerning the contrary outcome process and confirmed that the IRCC officer disagreed with CBSA’s adverse assessment. There appears to be no issue that this evidence should also be considered in connection with the merits of the present applications as all the parties have relied on it in advancing their respective positions.
[55] On August 31, 2022, Mr. Abdulahad and Ms. Yahefu commenced the present application for judicial review.
[56] The CTR was produced on June 14, 2023. As just noted, it included the May 26, 2021, email from the migration officer to the NSSD (albeit in redacted form). Even though it was produced two years after the officer sent the contrary outcome email, the CTR does not include any response from the NSSD. This is despite the fact that, according to the outline of the contrary outcome process in CBSA’s Immigration Control Manual, the CBSA had committed to providing a final reply within five working days of being advised of a possible contrary outcome (although an extension of time could be requested). The respondent has not provided any evidence of when or even if the NSSD responded to the May 26, 2021, email from the IRCC officer. In the meantime, as already noted, the validity period of the 2015 CSIS security assessment has elapsed.
[57] It appears that, at some point, Mr. Abdulahad’s application was assigned to a new IRCC officer.
[58] On October 23, 2023, Mr. Abdulahad was convoked for another interview. This interview took place on January 31, 2024, in the United Kingdom, where Mr. Abdulahad and his family were staying with temporary status. Mr. Abdulahad has heard nothing from IRCC since then.
C. Mr. Mamut’s application for permanent residence [59] Mr. Mamut and Ms. Aizezi were married in a religious ceremony in Bermuda in June 2012. Ms. Aizezi is also a Chinese citizen of Uyghur ethnicity. After she was granted refugee protection by Canada, Ms. Aizezi applied for permanent residence in Canada in June 2015. She included Mr. Mamut and her son on her application.
[60] Like Mr. Abdulahad’s, Mr. Mamut’s application for permanent residence was assigned to the Migration Section of the Consulate General of Canada in New York. For some time, at least, the same migration officer was assigned to both applications.
[61] On May 6, 2016, the CBSA requested security advice from CSIS concerning Mr. Mamut’s application for permanent residence.
[62] On August 5, 2016, CSIS provided its security advice to the CBSA. In providing this advice, CSIS addressed Mr. Mamut’s alleged support for and training with the ETIM. Information considered in connection with this advice included a document published by the New York Times purporting to be a summary of Mr. Mamut’s unsworn statement to the CSRT that had considered his case in 2004. It also included the Joint Task Force Guantanamo Detainee Assessment dated June 17, 2005, mentioned earlier (see paragraph 27, above). The validity period of CSIS’s assessment has now elapsed.
[63] On January 25, 2018, the NSSD provided an inadmissibility assessment concerning Mr. Mamut to IRCC. The assessment recommended that there were reasonable grounds to believe that Mr. Mamut represents a danger to the security of Canada, and that he is a member of an organization (the ETIM) that has engaged in terrorism, rendering him inadmissible to Canada pursuant to paragraphs 34(1)(d) and (f) of the IRPA. This assessment was valid for 48 months.
[64] Meanwhile, Ms. Aizezi and her son were granted permanent resident status in March 2017.
[65] On January 17, 2018, the CGNY convoked Mr. Mamut for an interview in Bermuda on January 30, 2018. (As set out above, this was the same date Mr. Abdulahad was also to be interviewed.) The interview proceeded as scheduled, without the assistance of a Uygur interpreter. The interviewer informed Mr. Mamut that his application for permanent residence had given rise to security concerns but few particulars were provided. Mr. Mamut heard nothing further from IRCC after this.
[66] In April 2019, Mr. Mamut retained DLS to represent him in his application for permanent residence and related legal proceedings. From the outset, DLS raised concerns about the length of time the application for permanent residence had been outstanding. An application for mandamus was filed on November 1, 2019 (IMM-6617-19) but it was eventually discontinued on March 5, 2020, because it appeared that the application for permanent residence was finally moving forward.
[67] Shortly after the mandamus application was filed, the Migration Section of the CGNY requested additional information from Mr. Mamut, which he provided. Then, on February 7, 2020, a migration officer with the CGNY sent Mr. Mamut a procedural fairness letter. The letter is in all material respects identical to the letter of the same date sent to Mr. Abdulahad (see paragraphs 44 and 45, above).
[68] In the letter, the officer stated:
After careful review of the details of your application, due to your membership in the ETIM, an organization that has engaged in terrorism, I am concerned that you are a member of the inadmissible class of persons described in section 34(1)(f) [of the IRPA] in reference to paragraph 34(1)(c).
Pursuant to paragraph 34(1)(f) in reference to paragraph 34(1)(c), a foreign national is inadmissible for being a member of an organization that there are reasonable grounds to believe engages, has engaged or will in engage in terrorism.
[69] The letter goes on to explain that the concerns arise from Mr. Mamut having stayed at a Uyghur training camp in Afghanistan for approximately two and one-half months where he received “military training in the form of physical and small-arms training (AK-47/Kalashnikov) and engaged in security duties for this camp and participated in building the camp.” The letter states that this indicates his role as a member of the ETIM, which ran the training camp. The letter then notes that the ETIM had been listed as a terrorist organization by the United Nations Security Council on the basis of its terrorist activities in China as early as May 1998. Mr. Mamut was given 60 days to address these concerns.
[70] In response, on February 13, 2020, DLS requested disclosure of certain documents in order to be able to respond properly to the concerns raised in the procedural fairness letter. Specifically, DLS requested disclosure of any notes arising from Mr. Mamut’s interview with IRCC on January 30, 2018; the sources relied on by IRCC to show links between the Uyghur village and the ETIM; and any other documents relating to the inadmissibility concerns on security grounds outlined in