2014 FC, 2014 FC 1026

Date: 20141029 Docket: T-1393-13 Citation: 2014 FC 1026 Ottawa, Ontario, October 29, 2014 PRESENT: The Honourable Madam Justice Heneghan BETWEEN: SAFWAN ALBATAL Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA Respondent JUDGMENT AND REASONS I. INTRODUCTION [ 1 ] Mr. Safwan Albatal (the “Applicant”) seeks judicial review, pursuant to

Section 41 of the Access to Information Act, R.S.C. 1985, c. A-1 (the “Act”) of a decision made by the Minister of Citizenship and Immigration Canada (the “Minister” or the “Respondent”). In that decision, made on April 26, 2013, the Respondent disclosed certain information in response to an Access to Information request submitted by the Applicant. II. BACKGROUND [ 2 ] The following details are taken from the affidavits of the parties filed in this application as well as from the exhibits to those affidavits. The Applicant is an IT engineer living in Ottawa. He was born in Syria in 1971.

While living in Germany, he submitted an application for immigration to Canada. He was assisted by a Canadian Immigration Consultant. In the course of his application, the Applicant authorized the German government to disclose information to the Canadian immigration authorities. [ 3 ] As part of the process in his application for permanent residence, the Applicant was asked to attend an interview at the Canadian Embassy in Berlin. He attended the interview on March 1, 2004. The interview was conducted by a man dressed in civilian clothes; a man wearing a uniform was also present.

According to the Applicant, the questions focussed on the Syrian intelligence services and the involvement, if any, that he had with them. [ 4 ] The Applicant deposed that his Immigration Consultant told him that the interview had been conducted as a security interview and not as a “typical” immigration interview. According to the Consultant, the uniformed man was a security officer. The Applicant now believes that false information identifying him with Syrian intelligence was forwarded to the Canadian authorities during the processing of his application for permanent residence.

He believes that the provision of such information is the reason why he was subjected to a security interview. [ 5 ] The Applicant’s application for permanent residence was accepted and he landed in Canada in April 2005. [ 6 ] On December 10, 2012, the Applicant submitted his access request to the Respondent, requesting specific information about his immigration file. [ 7 ] On December 14, 2012, the Applicant submitted a second access request. He asked that this request supersede his first request.

The second request contained a list or revised questions similar to those set out in the first request. [ 8 ] On January 11, 2013, the Respondent advised the Applicant by letter that an extra 30 days were required to comply with his request for information. This delay was authorized by paragraph 9(1) (

a) of the Act . [ 9 ] The Applicant submitted a complaint to the Officer of the Information Commissioner (the “OIC”) about the delay in the release of the requested information, by letter dated February 11, 2013. [ 10 ] Under cover of a letter dated February 19, 2013, the Respondent released information in response to the Applicant’s access request.

However, certain portions of the requested information were withheld or redacted by the Respondent pursuant to subsection 15(1) of the Act , which gives government institutions the discretion to refuse to disclose any records which could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or states allied with Canada, or the detection or suppression of subversive activities. [ 11 ] Subsequently, the Applicant made another complaint to the OIC challenging the Respondent’s decision to withhold information. This complaint was registered on March 13, 2013 by the OIC.

[12] On March 21, 2013, the OIC provided its response to the Applicant’s first complaint about delay. The OIC determined thatthe Respondent’s request for an extension of time was unsupported. It found that the Applicant’s complaint about delay was well-founded.

However, since the information requested was ultimately released, the complaint was recorded as resolved withoutrecommendations from the OIC to the head of the Respondent department. [13] By letter dated February 19, 2013, the Respondent advised the Applicant that the requested documents were being disclosedin their entirety and sent the Applicant supplementary information. This disclosure purported to contain all the records in theRespondent’s possession concerning the Applicant’s immigration file. [14] This letter was mistakenly dated February 19, 2013.

According to a letter dated July 17, 2013, the letter should have beendated April 26, 2013. [15] In the letter of July 17, 2013, the OIC released the results of its investigation of the Applicant’s second complaint about theRespondent’s application of section 15(1) of the Act as a basis for refusing to disclose the requested information.

It found the complaintto be well-founded but since the Respondent had withdrawn his reliance on subsection 15(1) of the Act, the OIC determined that thecomplaint was concluded and it was not necessary to make recommendations. [16] The decision of April 26, 2013 consists of a letter, forwarding further information to the Applicant. The letter advised that therecords being forwarded are all the records in the possession of the Respondent relating to the Applicant. There were no more redactionsand no information was withheld. III. SUBMISSIONS A.

The Applicant’s Submissions [17] The Applicant’s argues that the disclosed records are not responsive to his request. He submits that there are many emptyfields and he cannot tell if his file had truly been wholly disclosed. [18] The Applicant argues that he is entitled to ask for information even if it does not directly relate to him.

He claims that he isentitled to know the names and employers of the persons who attended his immigration interview. [19] To the extent that the Respondent said that some records had been destroyed and were not available for disclosure, theApplicant submits that the Respondent could get copies of the documents. He argues that the disclosed records show that theRespondent had received information about the Applicant from other organizations, that is, the ones referred to as “HQOTT” and “FRG-NRT”, as well as the German government.

None of that information was disclosed to the Applicant. [20] As well, the Applicant complains that documents disclosed by the Respondent contain numerous coded abbreviations that arenot explained. He argues that he cannot understand the disclosed information without knowing the meaning of those abbreviations andaccordingly, the Respondent has effectively refused access to information. B. The Respondent’s Submissions [21] The Respondent submits that he has now disclosed all the information requested by the Applicant.

Although he had initiallyrefused to disclose some information, that refusal was abandoned during the investigation by the OIC. [22] The Respondent argues that the records requested by the Applicant have been disclosed. He submits that the Applicant’ssubmissions, about incomplete disclosure, are based on speculation. [23] Further, to the extent that the Applicant is seeking records from provincial governments, those requests are beyond the scopeof the Act. [24] The Respondent further submits that it he was only obliged to identify records subject to his control and to determine if thoserecords should be disclosed.

He is not obliged to inquire about the existence of records held by other government institutions, relying inthis regard in Leahy v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FCA 227 , 47 Admin. L.R. (5th) 1. IV. DISCUSSION AND DISPOSITION [25] The sole issue to be addressed in this application for judicial review is whether the Respondent refused to provide theApplicant access to information pursuant to the Act. [26] Subsection 4(1) of the Act authorizes a person to seek disclosure of any records in their possession of a government agency.

Ifaccess is refused, the agency bears the burden of justifying that refusal, pursuant to

section 48 of the Act. [27] Subsection 4(1) and

section 48 of the Act are relevant and provide as follows:

(1) Subject to this Act, but notwithstandingany other Act of Parliament, every personwho is (

a) a Canadian citizen, or (

b) a permanent resident within the meaningof subsection 2(1) of the Immigration andRefugee Protection Act, has a right to and shall, on request, be givenaccess to any record under the control of agovernment institution. 4.

(1) Sous réserve des autres dispositions dela présente loi mais nonobstant toute autre loifédérale, ont droit à l’accès aux documentsrelevant d’une institution fédérale et peuventse les faire communiquer sur demande :

a) les citoyens canadiens;

b) les résidents permanents au sens duparagraphe 2(1) de la

Loi sur l’immigrationet la protection des réfugiés. 48. In any proceedings before the Courtarising from an application under

section 41or 42, the burden of establishing that the headof a government institution is authorized torefuse to disclose a record requested underthis Act or a part thereof shall be on thegovernment institution concerned. 48. Dans les procédures découlant desrecours prévus aux articles 41 ou 42, lacharge d’établir le bien-fondé du refus decommunication totale ou partielle d’undocument incombe à l’institution fédéraleconcernée. [28] In the present case, the Respondent initially refused to provide some information to the Applicant on the basis that disclosurewas except pursuant to subsection 15(1) of the Act.

However, subsequently, the Respondent withdrew his objection and disclosed allinformation in his possession about the Applicant’s immigration application. [29] It appears from the record that the Respondent has provided all information within his possession relating to this Applicant.

The Respondent has no control over information in the possession and control of provincial authorities and should the Applicant wish toaccess said information, his remedy lies in making a request to such provincial authorities in conforming with the relevant provinciallegislation. [30] The Respondent has given a positive response to the Applicant. These suspicions on his part about the existence of otherinformation is not a ground to order the Respondent to do anything more; see the decision in Creighton v. Canada (Superintendent ofFinancial Institutions), [1990] F.C.J. No. 353.

Destruction of material at the Canadian Embassy in Berlin, pursuant to a documentretention policy, is not per se, improper. [31] Pursuant to

section 41 of the Act, an application for judicial review can only proceed when there has been a refusal to discloseinformation. Since the Respondent has now disclosed to the Applicant all the records in his control, there is no basis for the Applicant’sapplication for judicial review. The fact that there initially was a refusal does not matter now, since the Respondent has disclosed allinformation within his control. The application is therefore moot, as there is no longer a live controversy between the parties, and anydecision by the Court would have no practical effect; see the decision in Borowski v.

Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342 at paragraph 15. [32] In the result, there is no refusal to disclose information and there is no basis to grant this application for judicial review. Theapplication will be dismissed. [33] In the exercise of my discretion, pursuant to the Federal Courts Rules, SOR/98-106, I make no order as to costs. JUDGMENT THIS COURT’S JUDGMENT is that the application for judicial review is dismissed. In the exercise of my discretion, pursuant to theFederal Courts Rules, SOR/98-106, there is no order as to costs. "E.

Heneghan" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1393-13

STYLE OF CAUSE: SAFWAN ALBATAL v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: aPRIL 28, 2014 JUDGMENT AND REASONS: HENEGHAN J. DATED: October 29, 2014 APPEARANCES : Safwan Albatal For The Applicant (On his own behalf) Patrick Bendin For The Respondent SOLICITORS OF RECORD : Safwan Albatal Ottawa, ON For The Applicant (on his own behalf) William F. Pentney Deputy Attorney General of Canada Ottawa, ON For The Respondent