Date: 20060602

Docket: IMM-4866-05

Citation: 2006 FC 692

Ottawa, Ontario, this 2^nd day of June 2006

PRESENT: THE HONOURABLE MR. JUSTICE BLAIS

BETWEEN:

BACHAN SINGH, SOGI

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Defendant

REASONS FOR JUDGMENT AND JUDGMENT

[1]     This is an application for judicial review of a decision by the Immigration Division, dated July 26, 2005 in docket IMM-4866-05, concerning the applicant’s detention.

[2]     A non-disclosure application concerning certain secret documents was made and allowed by the Court, with regard to part of the evidence in this file.

[3]     Before deciding whether the secret evidence should be admitted as evidence in this case, the Court closely examined the evidence and questioned the Canadian Security Intelligence Service employee who signed the affidavit.

[4]     It appears from the information received that the member Dubé, who rendered the decision of July 26, 2005, did not consult the documentation supporting the security report submitted by the Service.

[5]     In light of decisions rendered by the Federal Court in three recent cases – Jaballah (Re), 2005 FC 399, Mahjoub v. Minister of Citizenship and Immigration et al., 2005 FC 156, Almrei v. Canada (Minister of Citizenship and Immigration), (2005) FC 355, –  the Court finds that there is a serious error in law that alone justifies the Court’s intervention. In Jaballah, Justice Andrew W. MacKay observes the following in paragraphs 34 to 36:

In this case, it became clear that the record before the delegate included the Security Information Report, i.e. the narrative report by CSIS of its grounds for believing Mr. Jaballah is inadmissible to Canada, without the reference documents or appendices footnoted in that report ...

The decision in Mahjoub has since been followed in respect of the same evidentiary issue by Mr. Justice Blanchard in Almrei v. Canada (Minister of Citizenship and Immigration) (2005), 262 F.T.R. 7 (F.C.) (see paragraphs 14 and 86).

 I note that in the Mahjoub and Almrei decisions the Courts concerned were dealing with decisions made pursuant to subsection 115(2) of the IRPA applicable to Convention refugees as both Messrs. Mahjoub and Almrei were, and thus they were already qualified as persons in need of protection under IRPA. Here the decision in question was made pursuant to subparagraph 113(d)(ii) of IRPA for consideration of an application for protection by a foreign national, as Mr. Jaballah is. While the two provisions relate to differently qualified persons, the essence of the decisions required in both cases is the same, in my opinion. Failures in proper process under subsection 115(2) have equal significance for the process under subparagraph 113(d)(ii). I agree with Mr. Jaballah's argument that the process in Mahjoub and Almrei was found inadequate to support an independent assessment by the Minister's delegate of the danger the person in question posed to the security of Canada. So the similar process in this case would be inadequate to support an independent assessment.

[6]     Although the detailed CSIS report sets out precisely the grounds justifying the applicant’s detention, it seems evident that the member of the Board who must decide whether extension of the detention is warranted has a duty, if examining the file for the first time, to check the reference documents, the appendices and the information on the sources underlying the report before making his or her decision.

[7]     I agree with the holdings of my colleagues in the previously mentioned cases, to wit  Mahjoub, Almrei et Jaballah, that the procedure followed must be sufficient to guarantee the independence of the decision maker, and that the same principles are applicable to Mr. Sogi’s file.

[8]     Accordingly, the application for judicial review of the decision rendered by the member Louis Dubé, dated July 26, 2005, is set aside, and the file referred back to the Board for determination in light of these reasons.

[9]     To this effect, the Board will have to ensure that, at the monthly detention review, the member who hears the application is effectively up to date with the complete file, including the appendices and the information regarding the sources of said report. The member will also have to make sure he or she has access to the most up to date information at the disposal of the Canadian Security Information Service relating to the detained individual.

[10]    The parties have informed the Court that they have no serious questions to propose, therefore no questions will be certified.

JUDGMENT

This application for judicial review of the decision of July 26, 2005 is set aside and referred back to the Commision for determination.

“Pierre Blais”

Certified true translation

Gibson Boyd, BA (tran.)

FEDERAL COURT

NAMES OF COUNSEL AND SOLLICITORS OF RECORD

DOCKETS:                                        IMM-4866-05 and IMM-7355-05

STYLE OF CAUSE:                          BACHAN SINGH, SOGI

                                                            v.

                                                            THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                    Montréal, Quebec

DATE OF HEARING :                     May 30, 31, and June 1^st, 2006

REASONS FOR ORDER                 The Honourable Mr. Justice Blais

AND ORDER:

DATE OF HEARING :                     June 2, 2006

APPEARANCES:

COUNSEL OF RECORD: