Motion judge owed deference to evidence of injury

Immigration and Citizenship - Admission - Appeals and Judicial Review

Applicant applied for judicial review for visa officer’s denial of his permanent residence application on basis of inadmissibility. Minister of Citizenship and Immigration prepared redacted version of officer’s Certified Tribunal Record. Minister brought motion under s. 87 of Immigration and Refugee Protection Act for non-disclosure order to cover redacted information, advising that redacted materials would not be relied on to justify officer’s decision as Minister intended to consent to judicial review application . Motion was only granted in part, with refusal to withhold disclosure of about half of redactions claimed under s. 87 of Act. Minister appealed. Appeal allowed. As there was no public interest balancing test under s. 87 of Act, disclosure had to be prohibited if it was found that it would be injurious . Although motion judge’s references to relevance of redacted information or its usefulness to applicant were inappropriate, his reasons did not support view that he ordered disclosure of information that he found to be injurious. Despite motion judge’s discussion of relevance and applicant’s interests, he did not conduct public interest balancing exercise . Motion judge’s findings on injury for two separate redacted passages that said same thing were significantly inconsistent as, if disclosure of information would be injurious in one instance, it would also be injurious in other and motion judge did not provide any reasons for discrepancy. Motion judge owed deference to evidence of injury led by Minister and should have further justified his decision not to accept witness’s evidence that injury would result notwithstanding prior inadvertent disclosure. It appeared that relevance of information to underlying judicial review application might have affected motion judge’s decision to order disclosure of certain specific information to some extent, where relevance should form no part of analysis.

Canada (Attorney General) v. Soltanizadeh (2019), 2019 CarswellNat 3432, 2019 FCA 202, Richard Boivin J.A., Yves de Montigny J.A., and Judith Woods J.A. (F.C.A.); reversed (2018), 2018 CarswellNat 605, 2018 CarswellNat 606, 2018 FC 114, 2018 CF 114, Richard G. Mosley J. (F.C.).

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