Digests

Gariev v. Canada (Minister of Citizenship and Immigration)

IMM-5286-02

2004 FC 531, Dawson J.

6/4/04

19 pp.

Judicial review of immigration counsellor's (officer) decision at Canadian Embassy in Moscow reasonable grounds upon which to believe applicant member of inadmissible class of persons described in Immigration and Refugee Protection Act (IRPA), s. 34(1)(f)--Applicant citizen of Belarus, presently residing and working in Cyprus as computer programmer--In 1998, applied for permanent residence in Canada in independent category--Subsequently, application approved, subject to satisfactory conclusion of security, criminal, medical checks--In 2002, officer determined reasonable grounds to believe applicant member of organization (GRU or Russian Military Intelligence) engaged in acts of espionage-- Minister applied under IRPA, s. 87 for non-disclosure of information considered, relied upon by officer--S. 78 providing procedure--Judge must insure confidentiality of information in question if of opinion disclosure would be injurious to national security or to safety of any person-- Judge obliged to hear all information which Minister asserts cannot be disclosed in absence of affected foreign national and his or her counsel--If of opinion disclosure injurious to national security or safety, order will issue allowing Minister's application and information then forms part of record on application for judicial review--If of opinion information could be disclosed, returned to Minister and not forming part of record--Application for non-disclosure supported by affidavit, by confidential affidavit and by supplemental confidential affidavit--On s. 87 application, principles articulated in Henrie v. Canada (Security Intelligence Review Committee), [1989] 2 F.C. 229 (T.D.); affd (1992), 88 D.L.R. (4th) 575 (F.C.A.) applied--Disclosure of redacted information in tribunal record would be injurious to national security or safety--Evidence not establishing disclosure of remaining confidential information injurious to national security or safety because of information already appearing on public record, and because some of evidence contained in confidential affidavits consisted of blanket statements claiming disclosure of some information would be injurious to national security or safety--Court requiring admissible evidence, whether factual or expert, which can be weighed, assessed to determine whether disclosure would be injurious to national security-- Mere assertion of conclusions insufficient-- Minister advised of Court's conclusions as to what information could/could not be disclosed--As to merits of judicial review application, applicant arguing that in order for officer to have determined applicant caught by Act, s. 34(1)(f), he had to have bona fide belief in serious possibility based on credible evidence applicant direct member of GRU or that Military Unit in which he served part of GRU organization--Public record disclosing much credible eviden-ce supporting officer's conclusion applicant inadmissible to Canada under Act, s. 34(1)(f)--Application dismissed-- Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 34(1), 78, 87.