Attila and Andrea Kiss, Hungarian
citizens of Roma ethnicity, sought judicial review after IRCC cancelled their
Electronic Travel Authorizations at Budapest International Airport, preventing
them from boarding a flight to Canada. During the judicial review, the Minister
sought to withhold portions of the officer’s notes under section 87 of the Immigration
and Refugee Protection Act, arguing that disclosure of the travel-screening
“Indicators” relied upon by the officer would harm national security.
The Federal Court rejected most
of the Minister’s claim because the indicators were already publicly known or
were largely common-sense considerations.
Key Principle
Under section 87 of the IRPA, the
Minister bears the burden of establishing that disclosure would be injurious to
national security or endanger the safety of a person. General assertions that
disclosure may help individuals evade immigration screening are insufficient.
Information already disclosed or available in the public domain will generally
not justify continued secrecy on national security grounds.
Background
The Kisses intended to travel
from Hungary to Canada to visit Andrea’s sister in Toronto. Andrea had
previously visited Canada without difficulty, while Attila had obtained an eTA
in January 2019.
At Budapest airport, security
personnel questioned them about their intended stay, employment, available
funds, luggage, family in Canada, and the immigration status of their hosts. An
immigration officer later cancelled their eTAs.
The officer’s notes referred to
concerns including the length of the proposed visit, weak explanation of
planned activities, ability to take extended leave from work, limited funds,
lack of checked baggage, and the immigration history of their Canadian hosts.
Court Findings
• National Security Injury Had
to Be Established
The Court emphasized that section
87 requires evidence that disclosure would be injurious to national
security. The Court must independently scrutinize such claims rather than
simply accept the Minister’s position.
• Most Indicators Were Already
Public
The Minister acknowledged that
many screening questions had already been disclosed through
access-to-information requests. Public information showed that officers may
consider purpose and duration of travel, employment, family ties, available
funds, invitation letters, luggage, hosts in Canada, and planned tourism
activities.
The Kisses also produced evidence
showing that similar screening practices were publicly known in Hungary.
• Public Information Could Not
Be Protected
The Court found it untenable to
claim national security confidentiality over indicators already publicly
available. Many of the inferences the Minister sought to protect, such as
concerns arising from unexplained lengthy travel, weak ties, limited funds, or
insufficient luggage, were also matters of common sense.
• One Indicator Remained
Confidential
The Court accepted the Minister’s
position concerning one undisclosed indicator because there was no evidence
that it was publicly known and the Minister provided sufficient evidence of
potential national security harm.
Outcome
The Minister’s motion under
section 87 was granted only in part. Most of the travel-screening indicators
had to be disclosed, while one indicator remained protected.
Case
Citation:
Kiss v. Canada (Citizenship and Immigration), 2020 FC 584 (CanLII)
Prepared by:
Dr. Muhammad Abrar (Barrister and Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and Statistics Analyst
