Mohammed v. Canada (Immigration, Refugees and Citizenship), 2019 FC 326 : Security Inadmissibility Refusal Set Aside Where Applicant Was Not Given Proper Notice of Section 34 Concerns or Evidence Relied Upon

The Federal Court reviewed the refusal of a family class permanent residence application based on security inadmissibility under section 34 of IRPA.

The officer concluded that there were reasonable grounds to believe the applicant was a member of the East Turkistan Islamic Movement, an organization alleged to have engaged in terrorism. The Court set the decision aside because the process did not provide the applicant with a meaningful opportunity to know and answer the case against him.

Key Principle

Where serious inadmissibility concerns arise under section 34 of IRPA, procedural fairness requires an applicant to receive sufficient notice of the specific concerns and a meaningful opportunity to respond.

An interview can sometimes satisfy this obligation. However, fairness may be breached where:

• the applicant is not told beforehand that the interview concerns security inadmissibility;
• the specific statutory grounds are not adequately identified;
• important reports relied upon by the officer are not disclosed; and
• the applicant is not given an opportunity to make further submissions after the concerns are finally revealed.

The more serious the consequences of the decision, the more important meaningful participation becomes.

Background

The applicant was a Chinese citizen of Uyghur ethnicity who lived in Albania with his Canadian citizen wife and their two Canadian children. His wife sponsored him for permanent residence under the family class.

The application openly disclosed his history in Pakistan, Afghanistan, and Guantanamo Bay. His counsel specifically advised IRCC that the case was unusual, maintained that American authorities had exonerated him, and requested an opportunity to respond should further admissibility concerns arise.

The applicant later attended two immigration interviews. Neither interview invitation advised him that security inadmissibility under section 34 would be the subject of questioning.

During the second interview, the officer eventually raised concerns about alleged membership in the East Turkistan Islamic Movement. However, CSIS and CBSA reports that informed the officer’s assessment were not disclosed to him.

Court Findings

The Court identified three significant procedural fairness problems.

First, the applicant received no prior notice of the specific security concerns. The interview invitations were generic and did not mention section 34. The true purpose of the questioning was not revealed until near the end of the second interview.

The problem was compounded because the officer discussed possible inadmissibility under paragraphs 34(1)(d) and (f) during the interview, but ultimately refused the application under 34(1)(c) and (f).

Second, the officer failed to disclose the CSIS and CBSA reports that played an important role in the decision-making process. The Court held that this prevented the applicant from meaningfully responding to the information being used against him.

Third, because the specific concerns had not been adequately disclosed in advance, fairness required that the applicant be given an opportunity to make post-interview submissions. No such opportunity was provided.

The Minister argued that the refusal should nevertheless stand because a negative result was inevitable. The Court rejected that position. It could not assume that the applicant’s explanations or submissions, had he been given a fair opportunity to provide them, would have made no difference.

Outcome

The Federal Court allowed the application for judicial review and returned the permanent residence application for a new determination.

Case Citation:

Mohammed v. Canada (Immigration, Refugees and Citizenship), 2019 FC 326 CanLII