A former covert operative in Canada for the Russian Foreign Intelligence Service (“Miller”) was unsuccessful on her application for judicial review of a decision of the Minister of Public Safety and Emergency Preparedness (the “Minister”), which concurred in the recommendation of the Canada Border Services Agency that Miller should not be granted relief from her inadmissibility pursuant to the Immigration and Refugee Protection Act provision holding that a foreign national is inadmissible on security grounds for engaging in an act of espionage or an act or subversion against a democratic government, institution or process, as they are understood in Canada
Administrative law – Decisions of administrative tribunals – Border Service Agency – Minister of Public Safety – Foreign nationals – Espionage – Deportation orders – Immigration – Ministerial decisions – Failure to provide reasons – Procedural requirements and fairness – Judicial review – Compliance with legislation – Standard of review – Patent unreasonableness
Miller v. Canada (Solicitor General),  F.C.J. No. 1164, Federal Court, July 24, 2006, Lutfy C.J.
Miller was a Russian citizen and formerly a covert operative of the Russian Foreign Intelligence Service in Canada. In the early 1990s, she lived in Canada, under the assumed name Laurie Katherine Mary Lambert, where she was a covert operative for the Russian Foreign Intelligence Service, along with her former husband. In 1996, a warrant was issued for her arrest and the matter came before the Federal Court (Trial Division) to determine the reasonableness of the security certificate under which the warrant was issued. An intelligence summary was presented that provided an overview of the alleged espionage activities attributed to Miller, which included the collection of political, economic, scientific and military information for communication to the Government of the Russian Federation.
Miller chose not to contest the security certificate and did not take advantage of the opportunity to be heard before the Federal Court at that time. The security certificate was held to be reasonable and in June of 1996, Miller and her former husband were deported to Russia.
Miller contended that she resigned from the Russian Foreign Intelligence Service in October of 1996 and was divorced from her husband that year. In December 1996, she married a Canadian citizen, Peter Miller.
In August of 1998, Miller applied for permanent residence in Canada as a member of the family class and Peter Miller completed the spousal sponsorship application. In November 2001, a Visa officer concluded that Miller was inadmissible on security grounds under the former Act, as having been a member of an organisation that there are reasonable grounds to believe is or was engaged in acts of espionage.
Miller sought ministerial relief pursuant to s. 34(2) of the Immigration and Refugee Protection Act (“IRPA”) and she subsequently provided written submissions for the Minister’s consideration. Miller refused to discuss details of her activities while working for the Russian Foreign Intelligence Service in her submissions to the Minister.
The Minister ultimately decided not to grant relief from inadmissibility in Miller’s case. The appropriate standard of review regarding the exercise of a Minister’s discretion was held to be that of patent unreasonableness given that the nature of the problem before the Minister involved a broad discretion in a substantially factual matter and where the statutory provision also favoured deference.
The Federal Court held that the Minister had a duty to provide reasons for her decision and that the duty to provide reasons is applicable in the administrative law context in general and in the immigration context in particular.
Miller argued that because the Minister relied on the report of the Canadian Border Services Agency to constitute her reasons for decision rather than providing those reasons personally, procedural fairness had not been accorded to her. However, the Court held that the adoption of a report as reasons for decision occurs in the context of decisions by the Canadian Human Rights Commission, as well as in the context of danger opinions that had previously been considered by the Federal Court.
The Court held that while the Minister’s decision was non-delegable, subsection 6(3) of the IRPA only precluded the Minister from delegating the ability to make determinations under subsection 34(2). The Minister could therefore concur in the Canadian Border Services Agency recommendations as contained in the memorandum while retaining and exercising the sole ability to make the determination as to whether Miller had satisfied her that her presence in Canada would not be detrimental to the national interest.
The Court moved on to consider whether the Minister erred in exercising her discretion. The Applicant acknowledged that she had the onus of satisfying the Minister that her presence in Canada would not be detrimental to the national interest, but she argued that the Minister erred by speculating improperly that Miller had not resigned from the Russian Foreign Intelligence Service, by applying the wrong test as to whether Miller had demonstrated any positive contribution to Canadian society, and by placing undue emphasis on Miller’s past. The Federal Court rejected all three arguments. The broad language used in subsection 34(2) of the IRPA was felt to be reflective of Parliament’s intention that the Minister be free to take into account a wide range of factors in exercising her discretion. Miller argued that the memorandum that was endorsed by the Minister, did not include evidence about the efforts made to nurture Miller’s marriage, including her spouse’s frequent trips to Russia. The Court held that although Miller might disagree with the weight assigned in the memorandum to the factors that she considered to be the most important, she had fallen short of demonstrating that the memorandum did not “address” the “major points in issue” as mandated by the decision in Via Rail Canada Inc. v. National Transportation Agency et al (2000), 193 D.L.R. 4th 357.
Miller’s application was dismissed.
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