Jahazi v. Canada (Citizenship and Immigration)

Jahazi v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2010-03-02
Neutral citation
2010 FC 242
File numbers
IMM-3968-08
Notes
Reported Decision
Decision Content
Federal Court
Cour fédérale
Date: 20100302
Docket: IMM-3968-08
Citation: 2010 FC 242
Ottawa, Ontario, March 2, 2010
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
MOHAMMAD JAHAZI
NARGUES BEHNAZ MORTAZAVI-IZADI
HAMED JAHAZI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of immigration officer Andrée Blouin, dated August 14, 2008, who refused the Applicant’s application for permanent residence due to a determination of inadmissibility on security grounds pursuant to section 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). Mr. Jahazi, an Iranian citizen, is a highly regarded scientist who has been employed in high level research at the National Research Council (“NRC”). He left Canada on December 16, 2008, at the expiration of his last temporary work permit.
[2] Prior to the hearing of the judicial review application, the Minister of Citizenship and Immigration (the “Minister”) applied under section 87 of IRPA for the non-disclosure of certain information considered and relied upon by the officer in making her determination. Counsel for the Applicant did not object to that motion, but sought the appointment of a Special Advocate to represent the interests of Mr. Jahazi. The ex parte and in camera hearing of that motion took place on August 25, 2009. Subsequently, both parties were heard by way of teleconference on the section 87 motion and on the motion to appoint a Special Advocate on October 19, 2009. On October 26, 2009, I ordered that the section 87 motion of the Respondent be granted, and that the motion of the Applicant to appoint a Special Advocate be dismissed. At the time, I gave brief oral explanations for my decisions and indicated that more extensive reasons would be provided with my reasons on the merit of the application for judicial review submitted by Mr. Jahazi.
I. Background
[3] The Applicant was born in 1959. In 1977, he left Iran to study in France. He obtained an engineering degree in 1984 and a Master degree in 1985. He then moved to Canada to do his Ph.D. at McGill University; he graduated in 1989 and was ranked on the Dean’s honour list. In the meantime, he married Mrs. Narges Behnaz Mortazavi Izadi in 1987, with whom they later had two sons (one to be born in Canada in 1989, the other in Iran in 1993).
[4] After briefly working at McGill University as a researcher, the Applicant returned to Iran with his family in 1990. He was hired first as an assistant professor, and then as an associate professor (in 1996), at Tarbiat Modarres Univesity (“TMU”), where he taught in his field of expertise (materials). While still a professor at TMU, he also worked two days a week at the Iranian Research Organization for Science and Technology (“IROST”) between 1998 and 2000, where he was a Deputy Director for research and technology.
[5] The Applicant came back to Canada in 2001, on a work permit, after being offered a research position at McGill University. Shortly afterward, he also applied and obtained a senior position (Group leader) at the Institute for Aerospace Research of the NRC. He came to Canada with his wife and two children.
[6] The Applicant applied for permanent residence in September 2001, and he was interviewed (with his wife) for the first time at the Canadian Consulate in Buffalo, New York, on June 27, 2003. After a lengthy delay in the treatment of his file and the intervention of the Applicant’s Member of Parliament to accelerate the process, a first decision was finally rendered on May 25, 2005. The Applicant’s permanent residence application was refused pursuant to section 34(1)(f) of IRPA. The Applicant sought judicial review of that decision. After leave was granted, the Minister agreed to reconsider his application; the application for judicial review was therefore discontinued, and Mr. Jahazi’s application for permanent residence was sent back for redetermination by a different officer.
[7] A second interview of the Applicant took place in the Canadian Consulate in Buffalo on April 17, 2008, first with two officers of the Canadian Security and Intelligence Service (“CSIS”), and then with immigration officer Blouin. He maintained throughout his interview that his professional duties in Iran were very junior, that his presence in Canada was beneficial to Canada, and that he was never asked to provide information to Iranian authorities and did not know any Iranian diplomat.
[8] By letter dated July 3, 2008, Ms. Blouin further asked the Applicant to give details with respect to: 1) his contacts with Iranian diplomats posted abroad; 2) whether he had ever been asked to provide information on Iranian citizens while he was living outside of Iran; 3) whether he had ever been made aware or approved research projects on biological weapons or weapon of mass destruction while he was a professor at TMU or during his mandate at IROST; and 4) whether he had ever facilitated linkages between researchers and firms with a view to build such weapons. In concluding her letter, Ms. Blouin explicitly appraised the applicant of her concerns in the following terms:
J’aimerais vous rappeler la raison pour laquelle nous vous avons revu en entrevue : compte tenu de votre cheminement et de vos activités professionnelles en Iran et au Canada, nous croyons que vous avez entretenu des rapports particuliers avec le Gouvernement iranien, que ce soit en lui transmettant de l’information sur des concitoyens ou en favorisant des recherches sur les armes de destruction massive, nucléaires ou biologiques.
Par conséquent, vous pourriez être interdit de territoire pour le Canada selon l’article 34(1)(a) et/ou 34(1)(f).
[9] The Applicant answered Officer Blouin’s concerns by letter dated July 8, 2008, denying once more any special connection with the Iranian government or any military research project, and any membership in any organization.
[10] The Applicant’s application for permanent residence was refused by letter dated August 14, 2008. Mr. Jahazi was found to be inadmissible under s. 34(1)(f). It is this decision that is currently under review.
II. The impugned decision
[11] The Officer found the Applicant inadmissible because she had reasons to believe that he had taken part in different kinds of subversive activities and that he had associated with groups that were engaged in terrorist activities. The Officer also indicated she had confidential information that supporting her belief that the Applicant had furnished information about dissidents to the Iranian government during the time he was studying in both Europe and Canada and that he had participated in the arms effort and in subversive activities related to the military regime in Iran.
[12] The basis for the officer’s conclusion, as set out in her decision letter, was that the Applicant had tried to minimize his responsibilities at TMU and at the IROST. She noted that he was appointed as a professor at TMU at a young age, and that professors and students at this newly created university were carefully selected by the government. She added that the regime had good reasons to believe that he supported the Iranian government’s ideology despite the fact that he had been outside of the country for 12 years, and she was therefore convinced that he had been of use to the Iranian government by gathering information on dissidents during his studies.
[13] The Officer indicated that it is well known TMU is under the control of the Iranian Revolutionary Guards Corps (“IRGC”). Although the Applicant spent many years in the western world, he benefited from a privileged treatment at TMU and his responsibilities never ceased to grow until 2000. She went on to note that the Applicant had participated in the selection of projects, had supervised students, had twinned young researchers and enterprises, and had been seconded to the IROST. During those years, she wrote, the IRGC had armed terrorist groups in the Middle East, and the IROST has been accused of implication in the making of weapons of mass destruction.
[14] Within the Computer Assisted Immigration Processing system (CAIPS) notes, the Officer points out that this information was obtained through an internet search about the IROST organization. She quotes Iran Watch as stating:
Affiliated with the Ministry of Culture and Higher Education of Iran; established in 1980 to support and train researchers by providing scientific and administrative facilities and the possibility of collaborative research opportunities; listed by the Japanese government as an entity of concern for biological, chemical and nuclear weapon proliferation; identified by the British government in February 1998 as having procured goods and/or technology for weapons of mass destruction programs, in addition to doing non-proliferation related business; reportedly acted as a front for the purchase of fungus for producing toxins from Canada and Netherlands.
[15] Further down in the CAIPS notes, the Officer wrote:
Les sites internets, tels que JANE, Iranwatch, Wisconsin project on nuclear arms control lient l’Université et le Regime Iranien, et les IRGC et la recherche universitaire, et mentionnent que les IRGC sont impliques dans la vente d’armes a des organisations terroristes, qu’ils entrainent des membres d’organisation terroristes, et financent ces organisations. Il semble que le candidat soit tombe en disgrace vers la fin des annees 90. Il ne veut plus retourner en Iran.
[16] Finally, the Officer noted in her refusal letter that the Applicant’s credibility was challenged during the interviews with CSIS officers. In the CTR, a CSIS brief dated May 28, 2008 explains the credibility concerns mentioned by Officer Blouin. Apart from those already mentioned, the brief refers to a contradiction between the Applicant’s statement to the effect that he travelled to Toronto only once and his wife’s declaration in 2003 that he had been there on a number of occasions. A discrepancy was also noted between the Applicant denying ever travelling to China, and later acknowledging that he had been there for ten days on a scientific conference after having been asked to explain a stamp of entry and exit for China in his passport.
[17] For all of those reasons, the Immigration Officer found Mr. Jahazi inadmissible pursuant to s. 34(1)(f) of IRPA and refused his application for permanent residence.
III. Issues
[18] In his able submissions on behalf of Mr. Jahazi, Mr. Waldman raised the following four issues:
Did the Officer err in her application of s. 34(1)(f) because she failed to disclose the terrorist organization the Applicant was a member of and did not explain the nature of the subversive activity the Applicant was involved in? Did the Officer breach the principles of natural justice by relying on information gathered from the internet that is inherently unreliable, and without giving the Applicant an opportunity to respond to it? Did the Officer err in law by relying on confidential information that was also inherently unreliable and by not giving the Applicant an opportunity to discuss it? Did the Officer make unreasonable inferences and findings of fact?
[19] Before addressing these issues, however, I shall deal with the Respondent’s motion for non-disclosure pursuant to section 87 of the IRPA and with the Applicant’s motion for the appointment of a special advocate. I shall also consider some preliminary evidentiary issues raised by both parties, as well as the standard of review applicable to the four issues identified in the above paragraph.
III. Analysis
A. The section 87 application and the motion for the appointment of a special advocate
[20] Section 87 is found in Division 9 (sections 76-87.1) of IRPA and provides a means by which the confidentiality of national security matters in immigration files can be ensured. Section 87 incorporates the provisions of section 83 with any necessary modifications. Paragraph 83(1)(c) provides that a judge shall, upon request of the Minister, hear an application for non-disclosure in the absence of the public and of the Applicant and his counsel if, in the judge’s opinion, its disclosure could be injurious to national security or endanger the safety of any person.
[21] The state has a considerable interest in protecting national security and the security of its intelligence services. The disclosure of confidential information could have a detrimental effect on the ability of investigative agencies to fulfil their mandates in relation to Canada’s national security. The competing interests of the public’s right to an open system and the state’s need to protect information and its sources was discussed by the Supreme Court of Canada in Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3. In that case, the Supreme Court acknowledged that the state has a legitimate interest in preserving Canada’s supply of intelligence information received from foreign sources and noted that the inadvertent release of such information would significantly injure national security: see in particular paras. 42-43 of that decision.
[22] The Supreme Court and other courts have repeatedly recognized the importance of the state’s interest in conducting national security investigations and that the societal interest in national security can limit the disclosure of materials to individuals affected by the non-disclosure: see, for ex., Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] S.C.J. No. 9, at para. 58; Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711, [1992] S.C.J. No. 27, at p. 744; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 , [2002] 1 S.C.R. 3, at para. 122; Ruby v. Canada (Solicitor General), above.
[23] That being said, the Court of Appeal of England and Wales recently reiterated that in a country governed by the rule of law upheld by an independent judiciary, it is the courts that must ultimately determine whether and when the confidentiality principle essential to the working arrangements between allied intelligence services must give way to the interests of justice: see Mohamed, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2010] EWCA Civ 65 (10 February 2010).
[24] In this proceeding, 27 of the 200-page CTR have been partially redacted on the ground that their disclosure would be injurious to national security or endanger the safety of any person. The procedure with respect to the Minister’s application was the same as that adopted by my colleagues in similar applications. An in camera and ex parte hearing first took place, where the Court was able to question the affiant who swore the confidential affidavit supporting the application for non-disclosure. Counsels were subsequently invited to make submissions in open court (by way of teleconference). During that hearing, Mr. Waldman acknowledged that the Minister was entitled to bring his section 87 motion, and that he relied on the Court to determine, if the case had been made out, for non-disclosure.
[25] In determining whether the disclosure of the redacted information would be injurious to national security or to the safety of any person, I relied on what has now become the locus classicus in Canadian jurisprudence on that issue, as articulated by Mr. Justice Addy in Henrie v. Canada (Security Intelligence Review Committee), [1989] 2 F.C. 229, [1988] F.C.J. No. 965 at para. 29-30:
[…] in security matters, there is a requirement to not only protect the identity of human sources of information but to recognize that the following types of information might require to be protected with due regard of course to the administration of justice and more particularly to the openness of its proceedings: information pertaining to the identity of targets of the surveillance whether they be individuals or groups, the technical means and sources of surveillance, the methods of operation of the service, the identity of certain members of the service itself, the telecommunications and cipher systems and, at times, the very fact that a surveillance is being or is not being carried out. This means for instance that evidence, which of itself might not be of any particular use in actually identifying the threat, might nevertheless require to be protected if the mere divulging of the fact that it is in fact subject to electronic surveillance or to a wiretap or to a leak from some human source within the organization.
It is of some importance to realize that an “informed reader”, that is, a person who is both knowledgeable regarding security matters and is a member of or associated with a group which constitutes a threat or a potential threat to the security of Canada, will be quite familiar with the minute details of its organization and of the ramifications of its operations regarding which our security service might well be relatively uninformed. As a result, such an informed reader may at times, by fitting a piece of apparently innocuous information into the general picture which he has before him, be in a position to arrive at some damaging deductions regarding the investigation of a particular threat or of many other threats to national security. He might, for instance, be in a position to determine one or more of the following: (1) the duration, scope, intensity and degree of success or of lack of success of an investigation; (2) the investigative techniques of the Service; (3) the typographic and teleprinter systems employed by C.S.I.S.; (4) internal security procedures; (5) the nature and content of other classified documents; (6) the identities of service personnel or of other persons involved in an investigation.
[26] Having duly considered the submissions made by counsel for the Respondent, the testimony of the affiant who swore the secret affidavit, and the documents that were filed on the public record and confidentially, I am satisfied that the disclosure of the redacted information would be injurious to national security or safety. I also determined that the non-disclosed information may be relied upon by the Minister and by the Court in ruling on the judicial review application.
[27] As already mentioned, counsel for the Applicant vigorously argued for the necessity of appointing a special advocate. In his written submissions, he made much of the same arguments that he had put forward in Kanyamibwa v. Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 66, [2010] F.C.J. No. 59. They need not be dealt with here; to the extent that these arguments are generic in nature, they have been addressed at paras. 46 ff. of my reasons in that case.
[28] At the hearing, however, Mr. Waldman stressed two factors to be taken into consideration. First of all, he submitted that the decision to refuse permanent residency to the Applicant will have a major impact on him and his family. Even if Mr. Jahazi has now left Canada with his family, he has lived here for eight years and his children have grown up here; indeed, his oldest son was born here during a previous visit to Canada. Moreover, the Applicant argues that he is a specialist in his field and could make an important contribution to Canadian industry; his application for permanent residence is therefore not principally motivated by a desire to improve his economic opportunities.
[29] Secondly, Mr. Jahazi contended that the redacted information was extremely significant, as it presumably reveals the name of the organization of which he is alleged to be a member. In his view, he cannot be expected to refute such allegations, even if the allegations were entirely mistaken, without knowing the name of that organization.
[30] Following the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, at paras 22-27 it is beyond dispute that the content of the duty of fairness must vary according to the specific context of each case. In Segasayo v. Canada (Minister of Public Security and Emergency Preparedness), 2007 FC 585, [2007] F.C.J. No. 792, Mr. Justice Pierre Blais (as he then was) outlined relevant factors when considering whether non-disclosure violates an applicant’s right to procedural fairness. These factors, which are instructive in the case at bar, include the extent of non-disclosure, the nature of the rights at stake, and the materiality/probity of the information subject to the non-disclosure.
[31] Applying similar considerations to the present case, the Court is of the view that the interests of fairness and natural justice do not require that a special advocate be appointed for the interests of the Applicant to be adequately protected. Despite the Applicant and his family’s contentions that they have resided in Canada for eight years, the fact remains that the underlying application for permanent residence is an application submitted outside Canada. The Federal Court of Appeal has held that the duty of procedural fairness to applicants in such a situation is at the lower end of the spectrum: Khan v. Canada (Minister of Citizenship and Immigration), 2001 FCA 345, [2001] F.C.J. No. 1699, at para. 31.
[32] Moreover, the Applicant and his family are not detained or facing removal, but are challenging the negative decision on their application for permanent residence made from outside Canada. Accordingly, their rights under s. 7 of the Canadian Charter of Rights and Freedoms are not engaged. I am not insensitive to the serious consequences of the visa officer’s decision for the Applicant and his family; however, they Applicant has not satisfied me that this case is within the realm of fundamental rights to life, liberty and security of the person. The Supreme Court of Canada has made it clear that non-citizens do not have the right to enter or remain in Canada. There is no individual right at stake for an unqualified Applicant to enter Canada. The highly discretionary visa decision context militates against a broader content of procedural fairness claimed by the Applicants: Chiarelli, above, at p. 733; Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539, at para. 46.
[33] Secondly, in contrast to the security certificate cases, the extent of non-disclosure in the present case is limited. There have been relatively minimal redactions from the CTR. As well, based upon the affidavits filed by the Applicant at various stages of this application for leave and judicial review, it is fair to say that he has had access to an overwhelming majority of the information on the record and is aware of the substance of the information relied upon by the visa officer.
[34] A review of the CTR demonstrates that the amount of redacted information is very limited. Specifically, pages 11, 26, 30, 44, 82, 84 and 97 each contain less than one line of redacted information. Much of that information would be of little help to the Applicant. As Justice Noël observed in Dhahbi c. Canada (Ministre de la Citoyenneté et de l’immigration), 2009 CF 347, [2009] A.C.F. no 400, at para. 24, it is common practice in files of this nature to redact from the CTR 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. Most of the redacted information in those pages would fall into that category. Moreover, information on page 85 and the first paragraph of page 86 were redacted, solely for purposes of relevance. Only 19 pages out of the total 201 pages in the CTR contain redactions of one line or more. Finally, the public information in the CTR shows that the pages containing those redacted portions consist, at least in part, of repetitious information.
[35] Of course, assessing the extent of non-disclosure is not merely a quantitative exercise, it must also take into account the significance of the redacted information. While Mr. Jahazi would understandably like to know the name of the organization of which he is suspected of being a member, I am convinced that his ability to make his case to the visa officer does not turn on that piece of information. Having carefully read both the CTR and the redacted information, I am satisfied that the Applicant was made fully aware of the visa officer’s concerns and was given ample opportunity to address these concerns. Not only was he interviewed twice, but he was also put on notice by letter sent to him before a final decision was made on the specific issues that were still on the visa officer’s mind. Had he answered those questions to the satisfaction of the visa officer, Mr. Jahazi would have assuaged her suspicions with respect to his membership in any prohibited organization by the same token. In those circumstances, I am therefore in agreement with the Respondent that the interests of fairness and natural justice do not require the appointment of a special advocate.
B. Preliminary evidentiary issues
[36] The Applicant argued that the CAIPS notes cannot be relied upon as proof of the underlying facts on which the officer’s decision is based. Since the officer did not file an affidavit attesting to the truth of the contents of the CAIPS notes, they can form part of the record but the facts in dispute must be proven independently of these notes. Therefore, it is submitted that the Court must rely on the undisputed facts before it as outlined in the sworn affidavits of the Applicant and his wife. I agree with the Applicant that in the absence of an officer’s affidavit attesting to the truth of what she or he had recorded as having been said at the interview, their notes cannot be relied on as evidence: Chou v. Canada (Minister of Citizenship and Immigration) (2000), 190 F.T.R. 78, [2000] F.C.J. No. 314, at para. 13; aff’d in 2001 CAF 299. The same is not true, however, of the various briefs and letters found in the CTR, these do not purport to report an interview or an oral conversation. The Court must therefore weigh the evidence emerging from the documentary record against the unchallenged sworn affidavits of the Applicant and his wife.
[37] On the other hand, the Respondent submitted that some paragraphs of the Applicant’s affidavit, sworn on November 14, 2009, relate to events subsequent to the decision on the Applicant’s application for permanent residence. Thus, these paragraphs cannot be part of the material considered by this Court. It is indeed trite law that new evidence cannot be advanced by an applicant at the judicial review stage, except in very limited circumstances such as where procedural fairness is alleged; such circumstances are not found in the present case. See: M.R.A. v. Canada (Minister of Citizenship and Immigration), 2006 FC 207, [2006] F.C.J. No. 252, at paras. 13-14; Sarder v. Canada (Minister of Citizenship and Immigration) (1998), 153 F.T.R. 140, [1998] F.C.J. No. 1230, at paras. 2, 4.
[38] As a result, paragraphs 2, 3, and 5 to 12 of the Applicant’s affidavit sworn on November 14, 2009, cannot be part of the evidence considered by this Court on this application for judicial review. In any event, they are not relevant to the legal issues at stake here, they relate to the effects of the officer’s negative decision on the Applicant and his family’s application. Having said this, the Applicant’s situation, as described in those paragraphs, can be taken into consideration in fashioning an adequate and effective relief, if the application is granted.
C. What is the appropriate standard of review?
[39] The first question in this application raises issues of mixed fact and law. As such, it is reviewable against the standard of reasonableness: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9 at para. 53. The proper interpretation of paragraph 34(1)(f) of IRPA falls within the expertise of visa officers, whose role it is to examine the admissibility of applicants. They are therefore entitled to some deference in their application of the law to the specific facts of a case: see Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005] F.C.J. No. 381; Jalil v. Canada (Minister of Citizenship and Immigration), 2006 FC 246, [2006] F.C.J. No. 320.
[40] As for the third and fourth issues, they clearly involve an assessment of the evidence, and as such, they are questions of fact also reviewable under the reasonableness standard. Accordingly, the Court must determine whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law, and must be concerned with the existence of justification, transparency and intelligibility within the decision-making process: Dunsmuir, above, at paras. 47-48.
[41] Finally, both parties agree that the second question pertains to a breach of natural justice and must be reviewed on a correctness standard: Sketchley v. Canada (Attorney General), 2005 FCA 404, [2005] F.C.J. No. 2056; Canadian Union of Public Employees v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para. 100.
D. Did the visa officer err in her application of s. 34(1)(f)?
[42] Counsel for the Applicant argued that the visa officer misconstrued the legislation and did not apply the appropriate legal test to the facts in this case. The officer found the Applicant inadmissible under s. 34(1)(f) because he has participated in subversive activities and because he was associated with groups involved in terrorist activities. According to the Applicant, this finding is seriously flawed in three respects.
[43] First, it is contended that the officer did not make a clear finding that the Applicant was a member of a prohibited organization. Rather, she concluded that he was associated (“associé”) with an unspecified organization. That would constitute an error, as membership requires more than a mere association with an organization. Counsel conceded that the concept of membership has been interpreted broadly; for that very reason, he argued that it should not be expanded even more by drawing within its ambit the notion of being associated.
[44] Second, counsel for the Applicant submitted that the reasons are insufficient because they fail to indicate the group, that the Applicant is allegedly a member of, and that has engaged in acts of terrorism. Furthermore, to the extent that the reasons purport to allege that the Applicant was engaged in acts of terrorism, the reasons are said to be deficient for not disclosing the alleged acts.
[45] Third, the Applicant claims that the officer erred by misinterpreting the requirements necessary for an act to constitute a “subversive activity” pursuant to section 34(1)(f) of IRPA. The officer believes the Applicant shared information with the Iranian government about dissidents while studying in Europe and Canada. But even if this were true, which the Applicant denies, this would not amount to subversive activities. Relying on Qu v. Canada (Minister of Citizenship and Immigration), 2001 FCA 399, [2001] F.C.J. No. 1945 counsel for the Applicant submitted that furnishing information about individual students does not constitute subversive activity because it has not accomplished any kind of change by illicit means nor has it been done for improper purposes related to an organization. Moreover, the officer did not identify any democratic institutions which could be undermined by the alleged sharing of information, and did not specify any actions involving force or any negative outcomes resulting from the transfer of information.
[46] After having carefully read the visa officer’s letter as well as the CTR, I have determined that she did not err in applying the test of membership to the Applicant’s case. It is true, she did not explicitly state that the Applicant is a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c) of paragraph 34(1). However, it is clear that this can be be inferred from her finding that he has been “associé” with such groups. After all, she did quote section 34(1)(a), (b), (c) and (f) just before coming to that conclusion, and she was well aware of the legal requirement. The fact that she rephrased her concerns using the word “associé” instead of “member” cannot be of much significance in this context.
[47] Moreover, as pointed out by the Respondent, the concept of “membership” has received
quite a broad and unrestrictive interpretation in the case law. In Poshteh, above, the Federal Court of Appeal held as follows:
[27] There is no definition of the term “member in the Act. The courts have not established a precise and exhaustive definition of the term. In interpreting the term “member” in the former Immigration Act, R.S.C. 1985, c. I-2, the Trial Division (as it then was) has said that the term is to be given an unrestricted and broad interpretation. The rationale for such an approach is set out in Canada (Minister of Citizenship and Immigration) v. Singh (1998), 151 F.T.R. 101 at paragraph 52 (T.D.):
[52] The provisions deal with subversion and terrorism. The context in immigration legislation is public safety and national security, the most serious concerns of government. It is trite to say that terrorist organizations do not issue membership cards. There is no formal test for membership and members are not therefore easily identifiable. The Minister of Citizenship and Immigration may, if not detrimental to the national interest, exclude an individual from the operation of s. 19(1)(f)(iii)(B). I think it is obvious that Parliament intended the term “member” to be given an unrestricted and broad interpretation.
[28] The same considerations apply to paragraph 34(1)(f) of the Immigration and Refugee Protection Act. As was the case in the Immigration Act, under subsection 34(2) of the Immigration and Refugee Protection Act, membership in a terrorist organization does not constitute inadmissibility if the individual in question satisfies the Minister that their presence in Canada would not be detrimental to the national interest. (…)
[29] Based on the rationale in Singh and, in particular, on the availability of an exemption from the operation of paragraph 34(1)(f) in appropriate cases, I am satisfied that the term “member” under the act should continue to be interpreted broadly.
See also: Almrei (Re), 2009 FC 1263, [2009] F.C.J. No. 1579; Chiau v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 642, [1998] F.C.J. No. 131, aff’d in [2001] 2 F.C. 297; Qureshi v. Canada (Minister of Citizenship and Immigration), 2009 FC 7, [2009] F.C.J. No. 3, at paras. 22-23; Denton-James v. Canada (Minister of Citizenship and Immigration), 2004 FC 1548, [2004] F.C.J. No. 1881, at paras. 12-15.
[48] The Applicant submitted that there is no evidence to support the legislative requirement in section 34 of IRPA that he be a member of an organization engaged in terrorist or subversive activities, and that no such organization has been clearly identified. I do not agree. The evidence before the officer included confidential reports that point to the Applicant being a member of a specific organization. It is clear from pages 43, 44, 52, and 55 of the CTR that the officer had before her the name of the organization of which the Applicant was alleged to be a member. There was also evidence supporting such a finding. The fact that portions of that information were redacted for reasons of national security did not prevent the officer from taking it into consideration. As already mentioned, the Applicant was not prejudiced by not knowing the name of that organization. He had every opportunity to disabuse the officer of her concerns, especially with respect to his involvement with the Iranian authorities. According to a CSIS brief dated May 28, 2008, he was specifically asked in his April 17, 2008 interview whether he had ever been approached by the Iranian Intelligence Service, whether he had contact with Embassy personnel in Canada, whether he had links with various Islamic student associations, and what his role was at TMU and IROST. The knowledge of the specific organization of which he was eventually found to belong could not have materially modified the substance of his answers, especially since he denied any involvement with a subversive or terrorist organization.
[49] Finally, the Applicant’s contention with respect to the officer’s misinterpretation of “subversive activities” must also be rejected. The premise of the Applicant’s argument is that the officer likened sharing of information about dissidents with the Iranian government to subversive activities. I do not agree. This was not at all the basis for the officer’s negative decision with respect to Mr. Jahazi’s application for permanent residence. It is significant that the officer did not base her finding of inadmissibility on paragraphs (a), (b) or (c) of section 34(1), but only on paragraph 34(1)(f). In other words, she did not find that Mr. Jahazi himself engaged in acts of subversion or terrorism, but that he was a member of an organization that engaged, engages or will engage in such acts. I confess that her reasons are not devoid of ambiguities in this respect. However, I think it is fair to assume that in the officer’s assessment, the fact that Mr. Jahazi passed on information to the Iranian Government about dissident Iranians living abroad, as well as the fact that he taught at TMU and collaborated with IROST, substantiate her finding that he is a member of a subversive or terrorist organization.
[50] I am therefore of the view that this first line of arguments by counsel for the Applicant must fail. The officer did not err in her construction of section 34(1)(f).
E. Did the Officer breach the principles of natural justice by relying on information gathered from the internet that is inherently unreliable, and without giving the Applicant an opportunity to respond to it?
[51] Counsel for the Applicant also submitted that the officer breached procedural fairness by relying on information obtained from the internet to impugn Mr. Jahazi’s credibility without communicating this information to him or giving him an opportunity to respond to it.
[52] The content of the duty of fairness is variable and contextual. The discharge of a visa officer’s duty of fairness must be assessed on a case by case basis. The jurisprudence is quite clear that the duty of fairness is not breached if the applicant had an opportunity to respond to the concerns raised in the visa officer’s mind. As Justice Nadon (as he then was) stated in Au v. Canada (Minister of Citizenship and Immigration), 2001 FCT 243, [2001] F.C.J. No. 435, at para. 33:
…the jurisprudence is to the effect that the duty of fairness is not breached if the applicant is given an opportunity to respond to the concerns raised in the visa officer’s mind by the documents. In Zheng v. Canada (M.C.I.), [1999] F.C.J. No. 1397 (T.D.), the applicant claimed that the visa officer had relied on extrinsic evidence, i.e. information respecting the different cook classifications that had been used in the People’s Republic of China since 1993. The Court stated the following at paragraph 10:
[10] The essential characteristic in [the] jurisprudence is that concerns were raised in the mind of the decision-maker as a result of new information, concerns that were not put to the applicant, and those concerns were significant in le