Federal Court Decisions

 

 

 

 

Date: 20070605

Docket: IMM-2139-06

Citation: 2007 FC 585

Ottawa, Ontario, June 5, 2007

PRESENT:     The Honourable Mr. Justice Blais

 

 

BETWEEN:

MAXIMIN SEGASAYO

Applicant

and

 

THE MINISTER OF PUBLIC SAFETY

AND EMERGENCY PREPAREDNESS

 

Respondent

 

 

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision of the Minister of Public Security and Emergency Preparedness (the Minister) rendered February 24, 2006, denying the applicant relief pursuant to subsection 35(2) of the Act, and recommending that the Minister of Citizenship and Immigration not grant permanent residence to the applicant.

 

BACKGROUND

[2]               Maximin Segasayo (the applicant), was the Rwandan ambassador to Canada from 1991 to 1995. On January 26, 1996, the applicant and his family were given Convention refugee status by the Immigration and Refugee Board (the Board). The applicant and his family subsequently filed applications for permanent residence in February of 1996. The applicant’s three children and his wife were granted permanent residence in 2004 and 2005 respectively.

 

[3]               On April 27, 1998, the Minister of Citizenship and Immigration Canada (CIC) designated the Rwandan government as a regime which engaged in crimes against humanity and genocide from October 1990 to April 1994, and from April 1994 to July 1994. As a result of his prior status as the Rwandan ambassador of two designated regimes, the applicant was advised by CIC on July 20, 1998, that he was inadmissible to be landed in Canada, in accordance with paragraph 19(1)(l) of the Immigration Act, R.S.C. 1985, c. I-2.

 

[4]               On August 5, 1998, the applicant sought a ministerial exemption on the basis that he was not complicit in the crimes committed during the Rwandan genocide of 1998, and for that reason, his permanent presence in Canada would not be detrimental to the national interest. Under the current legislation, the ministerial relief provision is found at subsection 35(2) of the Act.

 

[5]               On November 9, 2004, the applicant filed a writ of mandamus with this Court (IMM-9338-04), seeking a decision on his permanent residence application and that of his wife, which was granted by Justice O’Reilly on May 26, 2005. On May 6, 2005, the applicant’s wife was landed.

 

[6]               By letter dated June 8, 2005, the Canada Border Service Agency (CBSA) sent the applicant a package containing a draft Briefing Note (the Briefing Note), reversing the May 2002 recommendation, together with thirteen attachments, which constituted the CBSA’s recommendation to the Minister concerning the applicant’s request for ministerial relief. Attachments 3 and 4 were partially redacted before being sent to the applicant. The applicant was provided with an opportunity to respond to this material, which he did in the form of an affidavit and additional submissions forwarded to the CBSA on December 28, 2005.

 

[7]               On February 17, 2006, the final version of the Briefing Note was sent to the Minister, along with the original thirteen attachments and the applicant’s December 2005 submissions. On February 24, 2006, the Minister denied the application for ministerial relief. The Briefing Note dated February 17, 2006, was filed by the respondent as the written reasons for the Minister’s decision.

 

[8]               On March 24, 2006, the applicant applied for judicial review of the Minister’s decision. On September 22, 2006, the Minister produced a redacted certified Tribunal Record, on the grounds that disclosure of the redacted portions would be injurious to national security or to the safety of any person.

 

[9]               The respondent then brought a motion before this Court under section 87 of the Act, for the continued non-disclosure of the redacted portions to the applicant, his counsel and the public. After considering arguments from both parties, I agreed to grant the order.

 

 

ISSUES FOR CONSIDERATION

[10]           The following issues will be considered in this judicial review application:

1)        Did the Minister breach his duty of fairness by not disclosing to the applicant all of the information relied upon in making his decision?

2)        Did the Minister err in his decision not to grant the applicant ministerial relief pursuant to subsection 35(2) of the Act?

 

STANDARD OF REVIEW

[11]           On the question of procedural fairness, the decision of the Minister must be reviewed on a standard of correctness (Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539). As such, if this Court finds that the duty of fairness owed to the applicant was violated, no deference will be given to the decision-maker and the application to set aside the decision will be granted (Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R. 650).

 

[12]           On the question of whether the Minister erred in his decision not to grant the applicant ministerial relief pursuant to subsection 35(2) of the Act, we can look at the decision of Chief Justice Allan Lutfy in Miller v. Canada (Solicitor General), 2006 FC 912, [2006] F.C.J. No. 1164, (QL), to determine the proper standard of review. In Miller, above, the applicant was found to be inadmissible under subsection 34(1) of the Act for security reasons, having been a covert operative in Canada of the Russian foreign intelligence service Sluzhba Vnyeshnyeiy Razvyedky (SVR). The applicant subsequently sought ministerial relief under subsection 34(2) of the Act, on the ground that her “presence in Canada would not be detrimental to the national interest”, the exact same wording that can be found under subsection 35(2) of the Act. Chief Justice Lutfy applied the pragmatic and functional approach, as described in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 and Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, to determine the proper standard of review for the Minister’s decision to grant this exceptional relief. Chief Justice Lutfy’s analysis can be found at paragraphs 37 to 40 of Miller, above:

¶ 37     Concerning the first factor, the Minister's decision disposing of an application under subsection 34(2) of the IRPA is not shielded by a privative clause nor is it subject to any appellate process. However, judicial review is available but only on the granting of leave.

 

¶ 38      The Minister has expertise in applications under subsection 34(2) of the IRPA, relating as they do to security matters with which the Minister is charged.

 

¶ 39      The third factor, the purpose of the statutory provision, also favours deference. The fact of the applicant's inadmissibility is not being challenged. The issue before the Minister was whether she was satisfied, notwithstanding the applicant's inadmissibility, that the applicant's presence in Canada would not be detrimental to the national interest. In other words, subsection 34(2) empowers the Minister to grant exceptional discretionary relief, in the face of a pre-existing finding of inadmissibility: Ali v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1416, 2004 FC 1174 at paragraph 43. In my view, the fact that the Minister's discretionary decision under subsection 34(2) of the IRPA is non-delegable strongly favours deference: see Esmaeili-Tarki v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 633, 2005 FC 509 at paragraph 25.

 

¶ 40      Finally, the nature of the problem before the Minister involved the exercise of broad discretion in a substantially factual matter.

 

[13]           Chief Justice Lutfy then concluded at paragraph 42 of Miller, above, that the proper standard of review was patent unreasonableness. Given the similarities between sections 34 and 35 of the Act, which are essentially differentiated by the reason for inadmissibility, I agree with the analysis performed by Chief Justice Lutfy and his conclusion that patent unreasonableness is the proper standard. As such, the decision of the Minister will only be set aside if it was based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before him.

 

ANALYSIS

1) Did the Minister breach his duty of fairness by not disclosing to the applicant all of the information relied upon in making his decision?

 

[14]           The applicant first submits that the non-disclosure of all relevant documents used in the decision-making process, due to the redacted nature of some of the annexes to the Briefing Note, constitutes a breach of natural justice, as the applicant was not in a position to know the full case against him and to reply accordingly.

 

[15]           It must be noted that the applicant was provided with a copy of the draft Briefing Note and all of the annexes, with the exception of a few redacted pages, and was allowed to respond with submissions of his own. Therefore, the only issue is whether the applicant’s right to procedural fairness was violated as a result of the non-disclosure of the redacted portion of the record.

 

[16]           The respondent maintains that the non-disclosure does not constitute a violation of procedural fairness, and has applied to this Court for an order of non-disclosure under section 87 of the Act, which I agreed to grant, so that the applicant continues to be denied access to the redacted portion of the record in the context of this judicial review application.

 

[17]           In considering whether the non-disclosure violates the applicant’s right to procedural fairness, I must weigh two competing factors. The first is the duty of fairness owed by the Minister to the applicant to provide a “full and frank disclosure” of all relevant information (Charkaoui v. Canada, 2004 FCA 421, [2005] 2 F.C.R. 299). This is essential because the applicant has the onus of establishing that his presence in Canada would not be detrimental to the national interest, as per the wording of subsection 35(2) of the Act, and thus must be aware of the Minister’s concerns in order to provide an adequate response. In addition, in the context of this judicial review application, the onus remains with the applicant to demonstrate that the Minister has erred in his determination and consequently, that his decision should be set aside. The other factor to be considered is the public interest in protecting information injurious to national security. The Supreme Court of Canada’s position on this balancing of interests was recently summarized by Chief Justice Beverly McLachlin in Charkaoui v. Canada (Minister of Citizenship and Immigration), 2007 SCC 9, [2007] S.C.J. 9 (QL), where she wrote at paragraph 58:

¶ 58     More particularly, the Court has repeatedly recognized that national security considerations can limit the extent of disclosure of information to the affected individual. In Chiarelli, this Court found that the Security Intelligence Review Committee (SIRC) could, in investigating certificates under the former Immigration Act, 1976, S.C. 1976-77, c. 52 (later R.S.C. 1985, c. I-2), refuse to disclose details of investigation techniques and police sources. The context for elucidating the principles of fundamental justice in that case included the state's "interest in effectively conducting national security and criminal intelligence investigations and in protecting police sources" (p. 744). In Suresh, this Court held that a refugee facing the possibility of deportation to torture was entitled to disclosure of all the information on which the Minister was basing his or her decision, "[s]ubject to privilege or similar valid reasons for reduced disclosure, such as safeguarding confidential public security documents" (para. 122). And, in Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, 2002 SCC 75, the Court upheld the section of the Privacy Act, R.S.C. 1985, c. P-21, that mandates in camera and ex parte proceedings where the government claims an exemption from disclosure on grounds of national security or maintenance of foreign confidences. The Court made clear that these societal concerns formed part of the relevant context for determining the scope of the applicable principles of fundamental justice (paras. 38-44).

 

[18]           After thoroughly scrutinizing the ‘secret evidence’, I concluded that this evidence should remain undisclosed to the applicant, his counsel and the public, subject to those portions the Minister had agreed to release during the ex parte in camera hearing, since disclosure of the information in question would be injurious to national security. In doing so, I rejected the argument that the applicant’s right to procedural fairness was violated.

 

[19]           The main reason why I reached this conclusion with respect to the section 87 application for non-disclosure is the same reason which leads me to conclude that reliance by the Minister on non-disclosed information in the context of the application under subsection 35(2) of the Act did not violate the applicant’s right to procedural fairness. Simply put, the amount of redacted material in the Tribunal Record is quite small. In fact, the secret evidence consists of an internal memo of the CBSA, two and a half pages in length, where portions of five different paragraphs are redacted, and a six-page letter from the Canadian Security Intelligence Service to the CBSA, where 12 out of 17 paragraphs are redacted. When one considers that the Tribunal Record is 702 pages in length, it is my opinion that the information that is not disclosed to the applicant represents a very small portion of the information relied upon by the Minister. As the applicant has been given access to the overwhelming majority of the information provided to the Minister, most of which was actually submitted by the applicant, the non-disclosure of those few paragraphs appears quite reasonable in light of the national security concerns and would not amount to a breach of procedural fairness.

 

[20]           I have also addressed, in my order in response to the motion for non-disclosure, the decision of the Supreme Court of Canada in Charkaoui, above, released on February 23, 2007, and I believe it would be appropriate to do the same in this decision on the judicial review application.

 

[21]           In Charkaoui, above, the Supreme Court of Canada declared the procedure followed for the judicial confirmation of security certificates and the review of detention, found at sections 77 to 85 of the Act, to be unconstitutional. Since the procedure outlined in section 78 of the Act applies in the context of motions for non-disclosure under section 87 of the Act, I have considered the constitutionality of the procedure followed under section 78 within the context of applications for non-disclosure under section 87 of the Act.

 

[22]           First, however, it is important to note that the procedure under section 87 of the Act was applied by analogy in this case, since there are no rules within the Act or Regulations that specifically provide for non-disclosure of materials based on national security in general, or that are specifically tailored to situations where an applicant was denied ministerial relief under subsection 35(2) of the Act. The only sections within the Act which speak to the matter of non-disclosure are sections 86 and 87. However, those sections are not directly applicable to this case. Section 86 applies only with respect to admissibility hearings, a detention review or an appeal before the Immigration Appeal Division, while section 87 concerns only information considered pursuant to sections 11, 86, 112 or 115 of the Act, none of which apply in this case.

 

[23]           After careful consideration, I decided that it would be appropriate to follow the jurisprudence developed by this Court in Mohammed v. Canada (Minister of Citizenship and Immigration), 2006 FC 1310 and in Naeem v. Canada (Minister of Citizenship and Immigration), 2007 FC 123, where the lacuna in the existing rules was addressed by relying on rule 4 of the Federal Courts Rules, SOR/2004-283 in order to bridge the “gap” left by this “legislative oversight” (Naeem, above) and consequently by applying the procedure outlined under section 78 of the Act to address the issue of non-disclosure in the context of subsection 35(2) of the Act.

 

[24]           Turning now to the decision in Charkaoui, above, it is important to note that the Supreme Court of Canada recognized that “[t]he right to know the case to be met is not absolute”, and that there are Canadian statutes, other than the Act, which provide for ex parte or in camera hearings, “in which judges must decide important issues after hearing from only one side” (Charkaoui, above, paragraph 57).

 

[25]           In considering the particular issue of security certificates, Chief Justice McLachlin concluded that:

¶ 61     In the context of national security non-disclosure, which may be extensive, coupled with the grave intrusions on liberty imposed on a detainee, makes it difficult, if not impossible, to find substitute procedures that will satisfy s. 7. Fundamental justice requires substantial compliance with the venerated principle that a person whose liberty is in jeopardy must be given an opportunity to know the case to meet, and an opportunity to meet the case. […] If s. 7 is to be satisfied, either the person must be given the necessary information, or a substantial substitute for that information must be found. Neither is the case here.

 

[26]           While this may be true in the context of security certificates, such is not necessarily the case in the context of an application for ministerial relief under subsection 35(2) of the Act. In fact, as the respondent noted, a judicial review of a denial of ministerial relief under subsection 35(2) differs substantially from both a judicial determination concerning the reasonableness of a security certificate and a judicial review of the detention of a person subject to a security certificate.  

 

[27]           The first distinction to be made is that, while both processes may result in deportation, only those subject to a security certificate face detention while awaiting a decision on their inadmissibility. As such, only the security interest, not the liberty interest, is at stake in this case. The respondent also points out that even deportation is not a certainty in this case, since the applicant has been recognized as a Convention refugee, and is thus subject to section 115 of the Act, which prohibits his deportation barring a determination by the Minister that he “should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada”. Under the circumstances, the respondent maintains that, as a result of the limited impact of the Minister’s decision on the applicant’s life and liberty interests, the procedure set out in section 78 of the Act constitutes a fair process within the meaning of Charkaoui, above. I agree with the respondent’s conclusion on this point.

 

[28]           The second very important distinction concerns the amount of information that was not disclosed to the application. Where a security certificate is issued, the information that is kept from the person named in the security certificate is in the form of a Security Intelligence Report prepared by the Canadian Security Intelligence Service, a report which will usually contain a large number of annexes. Therefore, this is a situation where the non-disclosure will likely be extensive. Moreover, the person named in the certificate will have no way of knowing the extent of the information that is being withheld. Such is not the case under section 87, where a redacted Tribunal Record may be prepared and where the person will be able to determine the exact amount of information that is being kept from them. In this case, as stated above, only a portion of two short documents, out of the 702-page Tribunal Record, were redacted. Since the applicant was aware of the great majority of the information on which the decision-maker relied, there was also no need to provide him with a “substantial substitute” to the redacted portions of the Tribunal Record.

 

[29]           The final distinction is that the procedure under section 78 applies to this case only by analogy, by operation of rule 4 of the Federal Courts Rules, and thus the Court is free to fashion any additional procedure which it feels would be more in keeping with the principles of fundamental justice.

 

[30]           It is my conclusion therefore that the decision of the Supreme Court of Canada in Charkaoui, above, on the constitutionality of section 78 of the Act in the context of the review of security certificates, does not preclude reliance on section 78 procedures in the context of the judicial review of a denial of ministerial relief under subsection 35(2) of the Act, as long as the Court ensures that the applicant’s right to procedural fairness is not violated in the process. As such, I do not seek to distinguish the decision in Charkaoui, above, but simply to demonstrate that the process followed in this case falls within the parameters set out by the Supreme Court of Canada to ensure that the requirements of section 7 of the Charter are met.

 

[31]           Therefore, I maintain my position that there was no breach of the applicant’s right to procedural fairness resulting from the Minister’s failure to disclose all of the information relied upon in making a determination under subsection 35(2) of the Act, or in maintaining the non-disclosure of the information in question in the context of this judicial review application.

 

2) Did the Minister err in his decision not to grant the applicant ministerial relief pursuant to subsection 35(2) of the Act?

 

[32]           As the former Rwandan ambassador to Canada in the first half of the 1990s, the applicant was declared inadmissible pursuant to paragraph 19(1)(l) of the Immigration Act, which reads as follows:

 

[33]           Subsection 19(1.1) of the Immigration Act sets out who will be considered to be “senior members of or senior officials in the service of a government”, a definition which includes, at paragraph (f), “ambassadors and senior diplomatic officials”.

 

[34]           In the current legislation, the inadmissibility provision can now be found at paragraph 35(1)(b) of the Act, which reads as follows:

 

[35]           The definition of who will be considered a “prescribed senior official in the service of government” is now found at section 16 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations) and continues to include “ambassadors and senior diplomatic officials”.

 

[36]           The ministerial exemption is now found at subsection 35(2) of the Act, which provides that:

 

[37]           In Esse v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 46 (QL), Justice Marshall Rothstein considered the purpose of paragraph 19(1)(l) and subsection 19(1.1) of the Immigration Act. He wrote at paragraph 11 of his decision:

¶ 11      In this regard, a reading of paragraph 19(1)(l) and subsection 19(1.1) reveals that the focus of these provisions is to ensure, as far as possible, that Canada does not become a haven for persons who have engaged in terrorism, systematic or gross human rights violations, war crimes or crimes against humanity.  The scheme of the legislation is to consider senior members or officials of a government as persons who were able to exert a significant influence on the exercise of the government's power such that they must take responsibility for the objectionable acts of their government.

 

Persons holding specific positions within a government are deemed to be senior members of, or senior officials in the service of a government for that purpose.  It is on that basis that the applicant, as an ambassador, was considered to be a person within the meaning of paragraph 19(1)(l).  To obtain a Minister's exception, one would have to demonstrate, if indeed it was consistent with the facts, that notwithstanding his or her position as a deemed senior member or official in the service of a government, that there was no complicity in the objectionable acts of that government.  While consideration of a person being a danger to the public in Canada might also be included (although there are other provisions dealing specifically with such matters), surely complicity in the acts of the offending government is the most obvious consideration.

 

[38]           Both the applicant and the respondent agree that, in order to be granted ministerial relief under subsection 35(2) of the Act, the burden is on the applicant to demonstrate that he “would not be detrimental to the national interest”, which can be accomplished by demonstrating that the applicant was not complicit in the objectionable acts of his government. What the parties disagree on is whether the applicant has actually succeeded in meeting this burden.

 

[39]           The applicant maintains that he has provided credible evidence that he was not complicit in the objectionable acts of his government and that his presence in Canada would not be detrimental to the national interest, and invites the Court to examine the evidence submitted against the decision of the Minister, and to conclude that there was in fact no evidence of complicity.

 

[40]           The respondent argues for his part that the Minister, based on a thorough review of the material before him, determined that the applicant had been able to exert influence on the exercise of power in Rwanda and that he had been complicit in the acts of the Rwandan government during the time it was a designated regime. Accordingly, the decision of the Minister to deny the applicant relief under subsection 35(2) of the Act was perfectly reasonable. The respondent also points out that, as the proper standard of review for the Minister’s decision is patent unreasonableness, this Court should not re-weigh the evidence or set aside the decision of the Minister simply because it would have come to a different conclusion.

 

[41]           While I agree with the respondent’s submissions on this point, I am more concerned with the applicant’s second argument to the effect that the Minister erred in law when he failed to review or comment on compelling evidence submitted by the applicant. While there is no requirement that a decision-maker comment on every piece of evidence, the applicant submits that there is a distinction between specific evidence that speaks directly to an applicant’s case, and evidence which is more general in nature. The applicant then proceeds to list a series of specific documents addressing concerns of the Minister which were not discussed in the Minister’s reasons. Accordingly, the applicant submits that the failure of the Minister to consider compelling evidence specific to the applicant’s case that corroborates his submissions, as well as his failure to specifically refer to this evidence in the written reasons, can vitiate the decision, since it demonstrates that the decision was based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before him.

 

[42]           The respondent for his part maintains that there is a presumption that the Minister has considered all of the evidence before him, which can only be rebutted in situations where the reasons do not refer to evidence that squarely contradicts his findings of fact. The respondent argues that the presumption is not rebutted in this case, as there is no evidence identified by the applicant that is not accounted for in the reasons. Furthermore, even if some of the evidence referred to in the reasons was misconstrued, which the respondent denies, this is not a basis for setting aside the decision, since the decision was nonetheless rationally supported by other evidence before the Minister, and there is thus no basis for this Court to intervene.

 

[43]           The respondent is correct in stating that there is a presumption, recognized by the Supreme Court of Canada in Woolaston v. Canada (Minister of Employment and Immigration), [1973] S.C.R. 102, that the decision-maker considered all of the evidence in the record before rendering its decision.

 

[44]           Justice John M. Evans in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL), provided a good summary of the factors to be considered when deciding whether the failure of the decision-maker to refer to specific evidence in the reasons could make the decision patently unreasonable. He wrote at paragraphs 15 to 17:

¶ 15      The Court may infer that the administrative agency under review made the erroneous finding of fact "without regard to the evidence" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency.  Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.

 

¶ 16      On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources.  A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.

 

¶ 17      However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts.  Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact.  Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.

 

[45]           In the present case, there is no question that the applicant has submitted a large volume of material, so that the Minister could not be expected to mention every piece of evidence in his decision.

 

[46]           In my view, the Briefing Note clearly sets out the applicant’s position that he was not complicit in the acts of his government and that he was not in a position to exert influence. It is clear from the evidence provided by the Minister and by the applicant himself, that the applicant was not physically present in Rwanda at the time when there were multiple human rights violations, and particularly during the genocide in 1994. The Briefing Note refers to those facts. It also refers to the applicant’s submissions that he was not complicit in developing policies promoting ethnic exclusion and that he did not consider himself politically active.

 

[47]           The applicant admitted that he was provided with a draft of the Briefing Note in June 2005 and that he had the opportunity to respond to the allegations mentioned in the Briefing Note. In fact, he did submit numerous documents in December 2005 to address the concerns raised in the Briefing Note.

 

[48]           In Chiau v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2043 (QL), at paragraphs 35 and 51, Justice Evans held:

¶ 35 It was common ground that in determining a visa application a visa officer is subject to the duty of fairness, and that this includes a reasonable opportunity to know and respond to information on which the officer proposes to rely in making his decision. Whether the appellant was denied this reasonable opportunity depends on an analysis of the factual, administrative and legal contexts of the decision.

 

. . .

 

¶ 51 I have concluded on the basis of the above considerations that there was no breach of the duty of fairness. The appellant was not denied a reasonable opportunity to know and answer the case against him before he was refused a visa, even though the visa officer in part had based his decision on material that he kept entirely confidential.

 

 

 

[49]           I have carefully reviewed the documents that were referred to by the applicant in his memorandum and his oral submissions. One document on which much emphasis was placed is a letter by Dr. Monique Hachey, dated September 5, 1998. In this letter, we learn that Dr. Hachey was married to one of the applicant’s best friends, and thus knew him very well. Nevertheless, there was an important gap in her knowledge of the applicant, as she stated that his wife was a Tutsi, while she in fact identified herself as a Hutu in her personal information form. Dr. Hachey also shares her belief that the applicant was an opponent of the government, which is the reason why he was appointed ambassador. She writes:

 

La présence de Mr. Segasayo dans ce groupe d’opposant [sic], allait encouragez [sic] les jeunes intellectuels de sa région à lui emboîter le pas, ainsi le président allait être rapidement isolé avec ses vieux compagnons, sans espoir de relève.

 

La solution fut trouvée : il fallait éloigner Mr. Segasayo et, compte tenu du travail remarquable qu’il avait fait à la Caisse Hypothécaire, il fut jugé commode de le nommer ambassadeur.

 

 

 

[50]           Not only is this opinion by Dr. Hachey not supported by the evidence, but it is also very difficult to reconcile with the reality in Rwanda at the time. Clearly, most of the information on which this opinion of Dr. Hachey is based, comes directly from the applicant, particularly when she describes the day-to-day operations within the embassy. In my view, it was not unreasonable for the Minister to give little weight to this particular document.

 

[51]           Another important document ignored by the Minister, according to the applicant, is a letter from Mrs. Gloria Nafziger, Refugee Coordinator (Toronto Office) for Amnesty International Canada, sent in support of his application on December 19, 2005. It is important to mention that she formed her opinion of the applicant on the basis of the letter of support from Dr. Hachey, identified as a leading human rights advocate in Rwanda at the time of the genocide, whose letter should be given strong consideration. The remainder of the letter refers to Amnesty International research on Rwanda and spends more time on what happened after 2000, than on what happened during the genocide period from 1990 to 1996. The letter also repeats the statement of support provided by the same organization in Ottawa, in a letter written in October 1999, a letter that was also based on the letter by Dr. Hachey.

 

[52]           Not only is the Amnesty International letter based on second-hand information, but, as I have already discussed, the source of the information is not so much a leading human rights activist, as a close friend of the applicant. What is perhaps even more troubling is the fact that, for someone supposedly so close to the applicant, she could make such an important mistake with regards to his wife’s ethnicity, given the context of the genocide.

 

[53]           Another important letter of support was written by Mr. Aloys Uwimana, identified as the former Rwandan ambassador to the United States. Again, we see that this individual is a personal friend of the applicant, a friendship that has endured for four decades, going back to 1961 when the two of them were schoolmates. I have carefully reviewed this particular letter and concluded that the content is very much self-serving, not only for the applicant but for the ambassador himself. In fact, the former ambassador candidly admits that he was considered persona non grata in 1994 by the President of the United States who believed at the time that he was involved in the massacres, as a high-level representative of the Rwandan government, and thus he had to fight to remain in the United States. He writes:

… j’engage alors une bataille juridique qui, en avril 1995, me permit d’obtenir, avec toute ma famille, l’asile politique.

 

[54]           Mr. Uwimana also discusses in his letter his experience as the Rwandan ambassador to the United States, and as the President’s former Chief of Staff. He writes :

Aussi, mon expérience de Chef de Cabinet du Président, dans une période singulière d’effervescence politico-sociale et de guerre, m’a permis de me rendre compte que les centres du pouvoir réel n’étaient plus dans les structures traditionnelles de l’État, mais qu’ils s’étaient dilués dans les partis politiques, les pressions diplomatiques des pays partenaires et organisations internationales et, surtout, dans le fait de la guerre. C’est dire que même moi, ancien Ambassadeur à Washington, pourtant un des postes stratégiques pour le Rwanda, et Directeur de Cabinet du Président, je n’ai en rien influencé la politique du gouvernement, et spécialement en ce qui concerne la conduite de la guerre.

 

 

 

[55]           I must admit that I have a lot of difficulties accepting this particular explanation by the ambassador. Mr. Uwimana mentions that he was given a strategic posting as ambassador to the United States and before that, served as the Chief of Staff to the President, and yet claims that he did not exert any influence on the President. How can we believe such an obvious contradiction?

 

[56]            Finally, the applicant refers to a letter sent by himself and a group of fellow intellectuals to President Habyarimana. He suggests that this letter demonstrates that he was challenging the President’s authority. In fact, this letter contains suggestions for change in the governance of the country, but concludes as follows:

Sans prétendre Vous apprendre des choses que Vous ignorez ou auxquelles Vous ne songez pas, nous voulions, Excellence Monsieur le Président de la République, Vous témoigner, de la part de la très grande majorité du Peuple rwandais, notre soutien total; et nous attendons de Votre courage et de Votre clairvoyance des directives pour continuer à œuvrer pour les idéaux de la 2^ème République : la Paix, l’Unité et le Développement national. (my emphasis)

 

 

 

[57]           In my view, this letter cannot be said to show a great challenge to the President, when it includes a statement of “total support”.

 

[58]           All of these letters which the applicant claims constitute crucial evidence ignored by the Minister, only re-iterate the applicant’s position, without the benefit of providing independent and non-biased confirmation. In fact, important factual errors can even be found in some of them.

 

[59]           Overall, even though the applicant rebutted, in his affidavits, some of the allegations found in the Briefing Note, in my view, he did not provide conclusive evidence, so that there is no obligation on the part of the decision-maker to reject evidence simply because the applicant filed affidavits to the contrary. This is a matter of weighing the evidence, which is the responsibility of the decision-maker. In fact, the applicant provided reply submissions to the draft Briefing Note in December 2005. These submissions were before the Minister when he made the decision, and the applicant has failed to convince me that the presumption that the Minister considered all the evidence provided, should be rebutted.

 

[60]           The applicant also referred to an internal memorandum dated May 2002, prepared by Murray C. Bennett and sent to Elizabeth Snow. Both Mr. Bennett and Ms. Snow were employees of Citizenship and Immigration Canada. This memorandum reviewed the situation of the applicant at that time, and recommended that ministerial relief be granted. However, this was an internal document, not a final recommendation, and it was not provided to the Minister for a decision. Many other documents were added to the file subsequently, and the Briefing Note was finalized on February 17, 2006, and provided for decision to the Minister. Clearly, there was no obligation for the Minister to follow a recommendation in a memo between two public servants, prepared three years before the Briefing Note was finalized, and the absence of any mention of this memo in the final Briefing Note is not a reviewable error.

 

[61]           Finally, as mentioned in the respondent’s application record, the Minister’s decision was rationally supported by the evidence that was before him, including the following:

(a)                The applicant had the opportunity to interact and speak with the President of Rwanda and other senior government officials during the relevant time, including on social occasions, and the President was responsive to the applicant’s ideas;

(b)               The applicant confirmed his unconditional support to the President in a letter dated October 21, 1990;

(c)                The applicant was frequently considered for positions in the President’s cabinet;

(d)               The applicant reported directly to the Rwandan Minister of Foreign Affairs and Cooperation. Two men who held this position during the relevant time period, namely Dr. Bizimungu and Mr. Bicamumpaka, were indicted by the International Criminal Tribunal for Rwanda on charges of conspiracy to commit genocide, genocide, direct and public incitement to commit genocide, and crimes against humanity. There is no evidence that the applicant disapproved of the actions of his superiors; and

(e)                The applicant acknowledged that he did not disassociate himself from the regimes responsible for the genocide in Rwanda.

 

[62]           The established jurisprudence is to the effect that as long as the Minister’s decision was rationally supported by the evidence, there is no basis for this Court to intervene (Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, Florea v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No. 598 (C.A.) (QL), Kathiripillai v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 889 (C.A.) (QL), Luckner v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 363 (C.A.) (QL)).

 

[63]           Regarding the other arguments raised by the applicant, I have no basis to conclude that the Minister failed to consider the objective of family reunification, the best interests of his three children, or the risk to the applicant should he return to Rwanda. The Briefing Note expressly refers to these factors, as well as to the fact that the applicant is a Convention refugee and that there is no basis to remove him from Canada to Rwanda at this time, as per section 115 of the Act.

 

CONCLUSION

[64]           Therefore, I have no hesitation to conclude that the applicant was not denied procedural fairness and that the Minister’s decision is reasonable and supported by the evidence.

 

[65]           The applicant proposes three questions for certification, the first one being as follows:

Does a Minister breach the duty of fairness by relying on evidence not disclosed to an applicant seeking ministerial exemption pursuant to section 35(2) of IRPA in the absence of any statutory authority to allow the Minister to rely on undisclosed evidence?

 

[66]           In my view, as suggested by counsel for the respondent, a breach of the duty of fairness always depends on the context and the facts of any specific case. The Federal Court of Appeal in Chiau v. Canada, [2000] F.C.J. No. 2043 (QL), and most recently, the Supreme Court of Canada in Charkaoui v. Canada (Minister of Citizenship and Immigration), 2007 SCC 9, [2007] S.C.J. No. 9 (QL), have both decided that limited disclosure due to national security concerns may not breach the duty of fairness.

 

[67]           Therefore, it is not a question of general importance and will not be certified.

 

[68]           The second proposed question for certification is as follows:

What procedures can a Court adopt when reviewing a decision by a Minister to rely on evidence not disclosed to an applicant in denying a section 35(2) application, even thought the decision does not involve detention or the issuance of a security certificate?

 

[69]           Again, the answer to this question will depend on the context of a given case, on whether there are only a few pages redacted or numerous documents that are not being disclosed, and as a result, whether a summary is warranted or whether the applicant can be considered reasonably informed. As such, it is not a question of general importance and will not be certified.

 

[70]           The third proposed question for certification is as follows:

Is a decision of the Minister to refuse a section 35(2) application for ministerial exemption flawed if the reasons of the decision failed to address and determine relevant factors of national interest?

 

[71]           This question as drafted is too broad. Ministerial exemption is decided on a case by case basis. I am not satisfied that this question is of general importance and therefore, it will not be certified.

JUDGMENT

 

1.      This application for judicial review is dismissed;

2.      No question of general importance is certified.

 

        “Pierre Blais”

 

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-2139-06

 

STYLE OF CAUSE:                          Maximin Segasayo v. The Minister of Public Safety and Emergency Preparedness

 

 

 

PLACE OF HEARING:                    Ottawa, Ontario

 

DATE OF HEARING:                      March 29, 2007

 

REASONS FOR ORDER:               The Honourable Mr. Justice Blais

 

DATED:                                             June 5, 2007

 

 

 

APPEARANCES:

 

Ms. Laurie Joe	FOR THE APPLICANT
Mr. Alexandre Kaufman	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

West End Legal Services Ottawa, Ontario	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Ontario	FOR THE RESPONDENT