Date: 20030612
Docket: IMM-1571-00
Citation: 2003 FCT 741
Ottawa, Ontario, Thursday the 12th day of June 2003
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
HAIQUAN YAO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] On February 16, 2000, a visa officer at the Canadian Consulate General in New York determined that there were reasonable grounds to believe that Mr. Yao is, or was, a member of an organization that there are reasonable grounds to believe is, or was, engaged in acts of espionage or subversion against democratic government, institutions, or processes as they are understood in Canada. Mr. Yao was therefore a member of the class of persons who are inadmissible to Canada, described in clause 19(1)(f)(iii)(A) of the Immigration Act, R.S.C. 1985, c. I-2 ("former Act"). The visa officer also concluded that Mr. Yao had not satisfied him, as the Minister's delegate, that Mr. Yao's admission to Canada would not be detrimental to Canada's national interest. Therefore, Mr. Yao did not meet the exception set out in paragraph 19(1)(f) of the former Act.
[2] These are my reasons for allowing the Minister's application under section 87 of the Immigration and Refugee Protection Act, S.C. 2002, c. 27 ("Act") for the non-disclosure of information considered and relied upon by the visa officer, and for subsequently dismissing the application for judicial review.
BACKGROUND FACTS
[3] Mr. Yao is a citizen of the People's Republic of China ("PRC"). He submitted his application for permanent residence in Canada in the Independent Category on the basis that he had trained and worked as a newspaper editor and journalist.
[4] Mr. Yao was first interviewed on February 1, 1996. At that time his application was conditionally approved pending medical, criminal and security checks. As result of the security checks, the Canadian Security Intelligence Service ("Service" or "CSIS") interviewed Mr. Yao and his wife in March of 1997 and again in September of 1997.
[5] At the first interview with CSIS representatives, Mr. Yao advised that he had been educated at the Institute of International Relations ("BIRI") and that following his studies he was assigned to the People's Daily newspaper ("PD") to work in New York. He stated that he was chosen to work in New York because of his language skills, his maturity and his loyalty. Before being posted abroad he was given a one month political indoctrination. He then came to the United States as a junior journalist and reported on United Nations' activities in New York, especially economic affairs. Mr. Yao attended local trade fairs with Chinese economic delegations. He reported on the delegations of lesser importance. He conducted interviews with members of the Chinese emigre community, with fellow journalists, and with diplomats within the United Nations. Mr. Yao indicated that he was not "targeting" anyone, but rather tried to develop friendships with U.S. citizens whom he met at various functions. Mr. Yao also indicated that his reports focussed primarily on Taiwan, and all information regarding Taiwan was sent to Beijing. When questioned as to the Ministry of State Security ("MSS") Mr. Yao indicated that he was unaware of any MSS involvement in the PD.
[6] At the second CSIS interview Mr. Yao insisted that he was not a MSS officer, although he felt that the MSS had, initially, an interest in him. With respect to his posting to the United States, Mr. Yao claimed that he suspected that his superior was a MSS officer, but he had no evidence of this. Mr. Yao stated that he handled all PD correspondents transiting in New York, and that he had heard that a number of them were affiliated with the MSS, but that he did not know of any himself. The only name he could recall was that of an individual already known by authorities to be a defector. Mr. Yao said he did not know the defector was a MSS officer until after his defection. Mr. Yao denied any discussion at the first interview with respect to whether the focus of the PD was directed towards U.S.-Taiwan issues. Mr. Yao refused to provide details of friends and relatives in Canada, stating that he would rather not immigrate to Canada if it meant he had to answer such personal questions. He refused to write his name in Chinese characters.
[7] In January of 1999, CSIS issued a brief concerning Mr. Yao. The brief stated that information the Service possessed led it to believe that Mr. Yao is a member of the MSS, an organization that is, or was, engaged in acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada. The brief outlined what had transpired at the interviews, as set out above. This brief and a report on the MSS prepared by CSIS were provided to Citizenship and Immigration Canada and then forwarded to the program manager of information services in New York.
[8] As a result, by letter dated November 16, 1999, the visa officer advised Mr. Yao that he was in possession of information which provided reasonable grounds to believe that Mr. Yao was a member of the inadmissible class of persons described in clause 19(1)(f)(iii)(A) of the former Act. The letter went on to state that if Mr. Yao wished to proceed with his application for permanent residence he would be required to undergo another personal interview at which time he would have the opportunity to offer evidence to disabuse the visa officer of this concern or to present any evidence which Mr. Yao believed would satisfy the Minister that Mr. Yao's admission would not be detrimental to the national interest.
[9] In February of 2000, Mr. Yao attended his final interview at the Canadian Consulate General in New York.
[10] During that interview Mr. Yao wrote his name in Chinese letters upon request, and denied refusing to do so in the past. Mr. Yao did admit that he had possibly refused to disclose the name of his closest friend whom he shared an apartment with, but he said this was because his friend was also applying for citizenship in Canada, and Mr. Yao did not want to ruin his friend's chances.
[11] Mr. Yao failed to convince the visa officer that there were not reasonable grounds upon which to believe that Mr. Yao was, or had been, a member of the MSS. Nor was Mr. Yao able to satisfy the visa officer that his permanent residence in Canada would not be detrimental to the national interest. Accordingly, his application was refused.
[12] Mr. Yao denies that he was or ever has been a member of the MSS, and denies that he has ever done work on its behalf. Mr. Yao states that he is unaware of the functions, duties, essential nature, affairs, purpose or mandate of the MSS.
[13] All of this information is contained in the public record in this proceeding.
THE CONFIDENTIAL INFORMATION
[14] Prior to the hearing of the application for judicial review, the Minister applied pursuant to subsection 87(1) of the Act for the non-disclosure of certain information considered by the visa officer when processing Mr. Yao's application for entry. Such information was blacked out in the certified tribunal record filed in court (the "confidential information").
[15] Section 87 of the Act provides:
| 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.
87(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. |
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87. (1) Le ministre peut, dans le cadre d'un contrôle judiciaire, demander au juge d'interdire la divulgation de tout renseignement protégé au titre du paragraphe 86(1) ou pris en compte dans le cadre des articles 11, 112 ou 115.
87(2) L'article 78 s'applique à l'examen de la demande, avec les adaptations nécessaires, sauf quant à l'obligation de fournir un résumé et au délai.
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[16] Section 78 of the Act, referred to in subsection 87(2), is as follows:
| 78. The following provisions govern the determination: (a) the judge shall hear the matter; (b) the judge shall ensure the confidentiality of the information on which the certificate is based and of any other evidence that may be provided to the judge if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person;(c) the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit; (d) the judge shall examine the information and any other evidence in private within seven days after the referral of the certificate for determination; (e) on each request of the Minister or the Solicitor General of Canada made at any time during the proceedings, the judge shall hear all or part of the information or evidence in the absence of the permanent resident or the foreign national named in the certificate and their counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person; (f) the information or evidence described in paragraph (e) shall be returned to the Minister and the Solicitor General of Canada and shall not be considered by the judge in deciding whether the certificate is reasonable if either the matter is withdrawn or if the judge determines that the information or evidence is not relevant or, if it is relevant, that it should be part of the summary; (g) the information or evidence described in paragraph (e) shall not be included in the summary but may be considered by the judge in deciding whether the certificate is reasonable if the judge determines that the information or evidence is relevant but that its disclosure would be injurious to national security or to the safety of any person; (h) the judge shall provide the permanent resident or the foreign national with a summary of the information or evidence that enables them to be reasonably informed of the circumstances giving rise to the certificate, but that does not include anything that in the opinion of the judge would be injurious to national security or to the safety of any person if disclosed; (i) the judge shall provide the permanent resident or the foreign national with an opportunity to be heard regarding their inadmissibility; and (j) the judge may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence.
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78. Les règles suivantes s'appliquent à l'affaire_:
a) le juge entend l'affaire; b) le juge est tenu de garantir la confidentialité des renseignements justifiant le certificat et des autres éléments de preuve qui pourraient lui être communiqués et dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d'autrui; c) il procède, dans la mesure où les circonstances et les considérations d'équité et de justice naturelle le permettent, sans formalisme et selon la procédure expéditive; d) il examine, dans les sept jours suivant le dépôt du certificat et à huis clos, les renseignements et autres éléments de preuve;
e) à chaque demande d'un ministre, il examine, en l'absence du résident permanent ou de l'étranger et de son conseil, tout ou partie des renseignements ou autres éléments de preuve dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d'autrui;
f) ces renseignements ou éléments de preuve doivent être remis aux ministres et ne peuvent servir de fondement à l'affaire soit si le juge décide qu'ils ne sont pas pertinents ou, l'étant, devraient faire partie du résumé, soit en cas de retrait de la demande;
g) si le juge décide qu'ils sont pertinents, mais que leur divulgation porterait atteinte à la sécurité nationale ou à celle d'autrui, ils ne peuvent faire partie du résumé, mais peuvent servir de fondement à l'affaire;
h) le juge fournit au résident permanent ou à l'étranger, afin de lui permettre d'être suffisamment informé des circonstances ayant donné lieu au certificat, un résumé de la preuve ne comportant aucun élément dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d'autrui;
i) il donne au résident permanent ou à l'étranger la possibilité d'être entendu sur l'interdiction de territoire le visant; j) il peut recevoir et admettre en preuve tout élément qu'il estime utile - même inadmissible en justice - et peut fonder sa décision sur celui-ci.
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[17] Pursuant to the Minister's application I examined the confidential information, examined the affidavit material filed for the purpose of establishing that disclosure of the confidential information would be injurious to national security or to the safety of any person, and heard the in camera submissions of counsel for the Minister.
[18] Subsection 87(1) of the Act is new, but it is similar to subsection 82.1(10) of the former Act which provided:
| 82.1 (10) With respect to any application for judicial review of a decision by a visa officer to refuse to issue a visa to a person on the grounds that the person is a person described in any of paragraphs 19(1)(c.1) to (g), (k) and (l),
(a) the Minister may make an application to the Federal Court - Trial Division, in camera, and in the absence of the person and any counsel representing the person, for the non-disclosure to the person of information obtained in confidence from the government or an institution of a foreign state or from an international organization of states or an institution thereof;
(b) the Court shall, in camera, and in the absence of the person and any counsel representing the person,
(i) examine the information, and
(ii) provide counsel representing the Minister with a reasonable opportunity to be heard as to whether the information should not be disclosed to the person on the grounds that the disclosure would be injurious to national security or to the safety of persons;
(c) the information shall be returned to counsel representing the Minister and shall not be considered by the Court in making its determination on the judicial review if, in the opinion of the Court, the disclosure of the information to the person would not be injurious to national security or to the safety of persons; and
(d) if the Court determines that the information should not be disclosed to the person on the grounds that the disclosure would be injurious to national security or to the safety of persons, the information shall not be disclosed but may be considered by the Court in making its determination.
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82.1 (10) Dans le cadre de la demande de contrôle judiciaire d'une décision de l'agent des visas de refuser un visa au motif que l'intéressé appartient à l'une des catégories visées aux alinéas 19(1)c.1) à g), k) ou l) :
a) le ministre peut présenter à la Section de première instance de la Cour fédérale, à huis clos et en l'absence de l'intéressé et du conseiller le représentant, une demande en vue d'empêcher la communication de renseignements obtenus sous le sceau du secret auprès du gouvernement d'un État étranger, d'une organisation internationale mise sur pied par des États étrangers ou l'un de leurs organismes;
b) la Section de première instance de la Cour fédérale, à huis clos et en l'absence de l'intéressé et du conseiller le représentant :
(i) étudie les renseignements,
(ii) accorde au représentant du ministre la possibilité de présenter ses arguments sur le fait que les renseignements ne devraient pas être communiqués à l'intéressé parce que cette communication porterait atteinte à la sécurité nationale ou à celle de personnes;
c) ces renseignements doivent être remis au représentant du ministre et ne peuvent servir de fondement au jugement de la Section de première instance de la Cour fédérale sur la demande de contrôle judiciaire si la Section de première instance de la Cour fédérale détermine que leur communication à l'intéressé ne porterait pas atteinte à la sécurité nationale ou à celle de personnes;
d) si la Section de première instance de la Cour fédérale décide que cette communication porterait atteinte à la sécurité nationale ou à celle de personnes, les renseignements ne sont pas communiqués mais peuvent servir de fondement au jugement de la Section de première instance de la Cour fédérale sur la demande de contrôle judiciaire. |
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[19] The significant difference between the two provisions is that subsection 87(1) of the Act is broader, allowing the Minister to make an application for the non-disclosure of "any information" on grounds that its disclosure would be injurious to national security or the safety of any person. The prior provision was limited to information "obtained in confidence from the government or an institution of a foreign state or from an international organization of states or an institution thereof".
[20] Notwithstanding that difference, I am satisfied that generally the jurisprudence which developed under the former Act remains relevant. Thus, when considering whether disclosure would be injurious to national security or to the safety of persons it is appropriate to apply the test propounded by Mr. Justice Addy in Henrie v. Canada (Security Intelligence Review Committee) (1988), 53 D.L.R. (4th) 568; affirmed 88 D.L.R. (4th) 575. There, Mr. Justice Addy wrote at pages 578 and 579:
[...] 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 cypher systems and, at times, the very fact that a surveillance is being or it 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 C.S.I.S. is in possession of it would alert the targeted organization to 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 than 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.
[21] In arguing that the confidential information should remain confidential in the case at bar, the Minister argued in its public motion record that if the confidential information was released it could result in a reader being in a position to determine or learn one or more of the following:
(a) the duration, scope, intensity and degree or success or lack of success of an investigation;
(b) the investigative techniques of the foreign state;
(c) the nature and content of the investigation;
(d) the identities of the individuals working for the foreign states or of other persons involved in an investigation;
(e) it could identify the techniques and methodology of the investigation;
(f) it could identify the degree of success or lack of success of the investigation;
(g) it could jeopardise the lives of the people involved;
(h) it could identify the relationships between Canadian government institutions and foreign governmental institutions which could be jeopardised by the disclosure of this information since foreign governments would not be prepared to enter into those kinds of arrangements in the future;
(i) it could also identify individuals who are the subject or targets of the investigation by Canadian and foreign governments.
[22] Having reviewed the confidential information and the confidential affidavit filed in support of this motion, I am satisfied that the disclosure of the confidential information would be injurious to Canada's national security or the safety of any person because, if released, it could result in an informed reader learning one or more of the matters set out above. In the result, I ordered that the confidential information and the confidential affidavit relied upon by the Minister not be disclosed and are to remain confidential.
THE DECISION THAT MR. YAO IS A MEMBER OF AN INADMISSIBLE CLASS
(i) The Issues
[23] Three issues were pursued on Mr. Yao's behalf in oral argument. They were:
a) Did the visa officer err in concluding there were reasonable grounds to believe Mr. Yao is, or was, a member of the MSS?
b) Did the visa officer err by failing to recommend Mr. Yao for Ministerial relief?
c) If the application is allowed, should the matter be remitted for re-determination in accordance with the provisions of the former Act?
[24] The last issue was not raised by the applicant until two business days before the oral hearing of the judicial review, when it was raised in correspondence between counsel. Counsel for the Minister objected to the issue being dealt with by the Court and relied upon the decision of the Federal Court of Appeal in Sandhu v. Canada (Minister of Citizenship and Immigration) (2000), 258 N.R. 100 to argue that counsel should not be permitted to raise at the hearing arguments not raised in the memorandum of fact and law.
[25] At the hearing, I reserved my decision on this objection and heard argument on the substantive issue of the nature of relief available.
(ii) The Relevant Legislation
[26] Clause 19(1)(f)(iii)(A) of the former Act was as follows:
| 19. (1) No person shall be granted admission who is a member of any of the following classes:
[...]
(f) persons who there are reasonable grounds to believe
[...]
(iii) are or were members of an organization that there are reasonable grounds to believe is or was engaged in
(A) acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada, or
[...]
except persons who have satisfied the Minister that their admission would not be detrimental to the national interest.
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19. (1) Les personnes suivantes appartiennent à une catégorie non admissible :
[...]
(f) celles dont il y a des motifs raisonnables de croire qu'elles :
[...]
(iii) soit sont ou ont été membres d'une organisation dont il y a des motifs raisonnables de croire qu'elle se livre ou s'est livrée:
(A) soit à des actes d'espionnage ou de subversion contre des institutions démocratiques, au sens où cette expression s'entend au Canada,
[...]
le présent alinéa ne visant toutefois pas les personnes qui convainquent le ministre que leur admission ne serait nullement préjudiciable à l'intérêt national.
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(iii) Did the visa officer err when he decided there were reasonable grounds for believing that Mr. Yao is, or was, a member of an organization engaged in espionage?
[27] Mr. Yao did not challenge the conclusion of the visa officer that there were reasonable grounds to believe that the MSS is, or was, engaged in espionage as described in the former Act. Therefore, it is only necessary to consider the conclusion that there were reasonable grounds upon which to believe that Mr. Yao is, or was, a member of the MSS.
[28] The standard of proof required to establish reasonable grounds for a belief is a standard of proof that connotes "a bona fide belief in a serious possibility based on credible evidence". See: Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.) at paragraph 60. It is not necessary for the Minister to establish either actual membership in an espionage agency, or actual acts of espionage.
[29] In the present case, there was evidence in the public record before the visa officer that:
i) Mr. Yao was educated at the BIRI. The MSS is known to employ its graduates;
ii) Mr. Yao is fluent in English. The MSS seeks people who speak English;
iii) Immediately following his studies, Mr. Yao was assigned to the PD without requesting such assignment;
iv) The PD is known to have MSS operatives posing as journalists working for the MSS;
v) During his interviews with CSIS, Mr. Yao was uncooperative. While initially he completely denied any knowledge of MSS activities, when challenged he stated that he suspected his superior was a member of the MSS and later stated that he had heard that a number of PD correspondents were associated with the MSS;
vi) Mr. Yao denied stating at his first interview with CSIS that his reports focussed primarily on Taiwan, and that all information regarding Taiwan was sent to Beijing;
vii) During the time Mr. Yao was posted in New York he interviewed members of the local Chinese community. A major task of MSS officers overseas is to monitor dissident movements. This includes the infiltration of groups and the development of profiles on group members to determine how serious these individuals are in their beliefs, and how much of a threat they pose to the PRC; and
viii) During his interview with CSIS, Mr. Yao claimed that he would rather forego obtaining Canadian status rather than answer questions considered by CSIS to be routine. This led CSIS to question the true motive for Mr. Yao's application for permanent residence to Canada.
[30] In addition to this evidence, the visa officer had before him the confidential information.
[31] On the basis of the totality of the material before the visa officer, I am satisfied that the visa officer's conclusion that Mr. Yao was inadmissible to Canada under clause 19(1)(f)(iii)(A) of the former Act was neither unreasonable nor patently unreasonable. There was credible evidence before the officer upon which he could form a bona fide belief in a serious possibility of membership. The evidence as a whole supported more than a flimsy suspicion. In so concluding I rely upon the confidential information, together with the fact that in addition to fitting the profile of a member of the MSS, Mr. Yao gave significantly conflicting answers about the involvement of the MSS in the PD on the two occasions he was interviewed by CSIS.
(iv) Did the visa officer err by failing to recommend Mr. Yao for Ministerial relief?
[32] Mr. Yao was advised by the visa officer's letter to him of November 16, 1999 that the final interview afforded him the opportunity to provide evidence with respect to a Ministerial exemption. Mr. Yao does not assert that he provided any such information, but rather states that because he has the ability to successfully establish himself in Canada, he should be admitted. The CAIPS notes reflect that when the visa officer asked Mr. Yao for any additional information, Mr. Yao simply said that his strongest claim is that he has two children, he is forty years old, and he is now focussed on his children.
[33] Paragraph 19(1)(f) of the former Act provided that the Ministerial exemption exists for those "who have satisfied the Minister that their admission would not be detrimental to the national interest". The onus is on an applicant to satisfy the Minister or his delegate of this.
[34] I find no reviewable error in the decision of the visa officer. Based on the dearth of evidence provided by Mr. Yao, the visa officer could not be satisfied that the admission of Mr. Yao would not be detrimental to the national interest.
(v) The Scope of Relief Available
[35] As I have found no reviewable error, the application for judicial review will be dismissed. It is therefore not necessary for me to deal with Mr. Yao's request that any redetermination be conducted under the former Act. While significant doubt exists in my mind as to whether an order remitting this matter for redetermination in accordance with the former Act would be consistent with the transitional provisions under the Act and its associated regulations, the argument before me was not well-developed. I therefore refrain from expressing what would, in any event, be an obiter view.
[36] Counsel posed no question for certification and no question arises on this record.
ORDER
[37] IT IS HEREBY ORDERED THAT:
The application for judicial review is dismissed.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1571-00
STYLE OF CAUSE: HAIQUAN YAO V. MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: January 28, 2003 and May 20, 2003
REASONS FOR ORDER
AND ORDER: Hon. Madam Justice Dawson
DATED: June 12, 2003
APPEARANCES:
Mr. Matthew Moyal FOR THE APPLICANT
January 28 and May 20, 2003
Ms. Marissa Bielski FOR THE RESPONDENT
January 28, 2003
Ms. Marissa Bielski
Ms. Pamela Larmondin FOR THE RESPONDENT
January 28 and May 20, 2003
SOLICITORS OF RECORD:
Moyal and Moyal
Barristers and Solicitors
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT