Zhao v. Canada (Citizenship and Immigration), 2024 FC 645 : Federal Court Sets Aside Security Inadmissibility Decision Based on Undisclosed Evidence and Procedural Unfairness

The Federal Court allowed an application for judicial review after finding that an immigration officer breached procedural fairness by relying on undisclosed evidence to conclude that the applicant was inadmissible to Canada on security grounds under subsection 34(1)(f) of the Immigration and Refugee Protection Act (IRPA). The applicant, a Chinese citizen who had previously studied at a military university and served in a communications unit of the People’s Liberation Army (PLA), was found inadmissible based on alleged membership in an organization engaged in espionage. The Court held that although officers may rely on publicly available information, they must disclose evidence that forms the basis of key findings so applicants have a meaningful opportunity to respond.

Key Principle

Procedural fairness requires immigration officers to disclose the substance of evidence relied upon in reaching an inadmissibility decision and provide applicants with a meaningful opportunity to respond. Where an officer relies on undisclosed sources to support critical findings or fails to address a central legal argument raised by the applicant, the resulting decision will be set aside for breach of natural justice.

Background

The applicant applied for permanent residence under the family class after previously studying at the People’s Liberation Army Information Engineering University and serving as an engineer in a PLA signals intelligence unit between 1992 and 1996. Following a procedural fairness letter expressing concerns about security inadmissibility, the applicant acknowledged his military service but maintained that his duties were limited to maintaining computer and telecommunications equipment. He further argued that the organization had not engaged in espionage against Canada during the period of his service and that later evidence concerning the PLA’s activities should not be applied retrospectively. Despite these submissions, the officer concluded that there were reasonable grounds to believe the applicant had been a member of an organization engaged in espionage contrary to Canada’s interests.

Court Findings

• Undisclosed Evidence Cannot Support a Critical Finding

The Court distinguished between information that had already been disclosed to the applicant and new evidence that had not. While one undisclosed report merely repeated information already provided in the procedural fairness process, a second undisclosed academic publication formed the sole basis for the officer’s finding that the PLA had continuously engaged in espionage against Canada dating back to the applicant’s period of military service. Because the applicant was never given an opportunity to respond to that evidence, the officer breached procedural fairness.

• Officers Must Address Central Legal Submissions

The Court also found that the officer failed to engage with the applicant’s argument that security inadmissibility required a temporal connection between his membership in the organization and its alleged espionage activities. Instead of addressing the legal authority relied upon by the applicant, the officer simply relied on the undisclosed source to conclude that the organization had engaged in continuous espionage since the 1930s. The failure to address this central submission constituted an independent reviewable error.

• Failure to Consider the Temporary Resident Permit Request

Although unnecessary to determine the application, the Court noted the Minister’s concession that the officer committed a further reviewable error by failing to consider the applicant’s request for a Temporary Resident Permit under section 24 of the IRPA after finding him inadmissible.

Outcome

The Federal Court allowed the application for judicial review, set aside the inadmissibility decision, and remitted the matter to a different officer for redetermination. The decision reinforces that security inadmissibility proceedings attract a heightened duty of procedural fairness and that applicants must be given a meaningful opportunity to respond to evidence forming the basis of an adverse finding before a decision is rendered.

Case Citation:
Zhao v. Canada (Citizenship and Immigration), 2024 FC 645 (CanLII)