The Applicant, a citizen of
Kazakhstan, challenged the cancellation of his Canadian multiple-entry visa.
The visa had been cancelled because an officer doubted that the Applicant
intended to use it for its stated purpose of tourism.
During judicial review, the
Minister sought to withhold portions of the Certified Tribunal Record under
section 87 of the Immigration and Refugee Protection Act (“IRPA”),
arguing that disclosure could affect national security or the safety of a
person.
The Federal Court dismissed the
Minister’s motion.
Key Principle
Section 87 of the IRPA is an
exceptional confidentiality mechanism intended to protect secret or classified
information connected to national security or comparable concerns. It is not a
general mechanism for protecting ordinary personal, private, or confidential
information.
Further, the Minister must
establish that disclosure would be injurious to national security or would
endanger the safety of a person. Evidence showing only that disclosure may cause harm is insufficient.
Background
The Applicant, his wife, and
daughter obtained ten-year Canadian visitor visas in 2017. Following the
couple’s separation and divorce, the Applicant alleged that his former wife
travelled to Canada with their daughter without his consent.
The Applicant later obtained a
Kazakh court order granting joint custody and planned to travel to Canada
partly to locate his daughter and determine whether the custody order could be
enforced.
When attempting to travel through
London in February 2019, he discovered that his Canadian visa had previously
been cancelled.
The information explaining the
cancellation was redacted from the Certified Tribunal Record. The Minister
sought protection of that information under section 87.
Court Findings
• Section 87 Is Limited to
Secret or Classified Information
The Court examined Division 9 of
the IRPA, its statutory context, legislative history, and the
exceptional procedures associated with protected national-security information.
The Court concluded that section
87 was not intended to protect every type of confidential information arising
in immigration proceedings.
The information at issue
primarily raised privacy concerns rather than national-security concerns. The
visa officer himself testified that the decision not to disclose the
information was motivated by protecting another person’s privacy.
The Court held that such
information could instead be protected through ordinary mechanisms, such as a
confidentiality order under Rule 151 of the Federal Courts Rules.
• Minister Failed to Establish
Required Harm
Even if section 87 had applied,
the Minister had not met the evidentiary burden.
The Minister was required to
prove, on a balance of probabilities, that disclosure would be injurious
to national security or endanger someone’s safety.
The evidence stated only that
disclosure may cause harm. The Court found this insufficient.
Privacy concerns, although
legitimate, did not satisfy the statutory standard of demonstrating that
disclosure would endanger a person’s safety.
Outcome
The Federal Court dismissed the
Minister’s section 87 motion. The Court found that the information did not fall
within the intended scope of Division 9 of the IRPA and, alternatively,
that the Minister failed to establish that disclosure would cause the required
level of harm.
The Minister was given 30 days to
seek an ordinary confidentiality order.
Case
Citation:
X v. Canada (Citizenship and Immigration), 2020 FC 864 (CanLII)
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian
Immigration Case Law and Statistics Analyst
