Sogi v. Canada (Ministre de la Citoyenneté et de l'Immigration), 2004 CAF 212 (2004)
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Sogi v. Canada (Ministre de la Citoyenneté et de l'Immigration), 2004 CAF 212 (2004)
Date: 20040528
Docket: A-597-03Citation: 2004 FCA 212Present: STRAYER J.A.ROTHSTEIN J.A.MALONE J.A.BETWEEN:BACHAN SINGH SOGIAppellantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondentHeard at Toronto, Ontario, on April 28, 2004Judgment delivered at Ottawa, Ontario, on May 28, 2004.REASONS FOR JUDGMENT BY: ROTHSTEIN J.A.CONCURRED IN BY: STRAYER J.A.MALONE J.A.Date: 20040528Docket: A-597-03Citation: 2004 FCA 212Present: STRAYER J.A.ROTHSTEIN J.A.MALONE J.A.BETWEEN:BACHAN SINGH SOGIAppellantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondentREASONS FOR JUDGMENTROTHSTEIN J.A.OVERVIEW[1] This is an appeal from a decision of MacKay J. of the Federal Court (2003 FC 1429). The issue is whether the procedure, whereby a member of the Immigration Division of the Immigration and Refugee Board may, in making an admissibility decision, take into account security intelligence information without disclosing it to the affected individual, contravenes section 7 of the Canadian Charter of Rights and Freedoms (Charter).[2] The appellant submits that section 7 is engaged because he is in detention and because he has suffered psychological stress and stigma. Accordingly, he asserts that his liberty and security of the person interests have been adversely affected. He says a member of the Immigration Division lacks the independence and expertise necessary to make an order that departs materially from the ordinary rules of procedural fairness by denying him the right to know the case he has to meet. He therefore submits that the procedure which confers this power on Immigration Division members does not accord with the principles of fundamental justice.FACTS[3] The appellant, a national of India, arrived in Canada on May 8, 2001 and made a claim for refugee protection. On August 7, 2002, an immigration officer reported his opinion to the Minister of Citizenship and Immigration (the Minister) that the appellant was a member of the Babbar Khalsa International, an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts of terrorism. On the same day, the Minister referred the matter to the Immigration Division for an admissibility hearing.[4] The appellant has been in detention since August 8, 2002.[5] Before the member of the Immigration Division, the Minister applied, in camera and ex parte , for non-disclosure of certain information. The member determined that the information was relevant to the appellant's admissibility and that its disclosure would be injurious to national security or to the safety of any person. The confidentiality application was granted on August 16, 2002 and the appellant was only provided with a summary of the information.[6] On October 8, 2002, the Immigration Division member determined that the appellant was inadmissible, pursuant to paragraph 34(1)( f ) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (IRPA), on the grounds alleged: that he was a member of a terrorist organization, the Babbar Khalsa International.[7] On judicial review, the Minister applied for continued non-disclosure of information, which was granted by MacKay J. on May 8, 2003. By Order dated December 16, 2003, MacKay J. dismissed the appellant's application for judicial review of the Immigration Division member's decision that the appellant was inadmissible.STATUTORY SCHEME[8] Subsection 44(1) of IRPA provides that an immigration officer who is of the opinion that a foreign national in Canada is inadmissible may submit a report of the relevant facts to the Minister. Under paragraph 34(1)( f ), one ground of inadmissibility is that an individual is a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts of terrorism. Under subsection 44(2), the Minister may, if she is of the opinion that the report is well-founded, refer it to the Immigration Division for an admissibility hearing.[9] Subsection 86(1) provides that, during an admissibility hearing before the...See the full content of this document
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