IAD not entitled to access information over which claim of informer privilege was asserted, even for purpose of assessing that claim

Respondent sponsored his wife to come to Canada from India but his application was refused because visa officer was not satisfied that marriage was genuine. Respondent appealed and in context of that appeal, Minister of Citizenship and Immigration provided appeal record in which portion of officer’s notes had been redacted. Immigration Appeal Division (IAD) directed Minister to provide it with unredacted appeal record, including portion of record which Minister asserted was covered by informer privilege. IAD found that for Minister to redact contents of appeal record based on informer privilege, IAD must be satisfied that privilege applied to information which Minister sought to withhold. Minister brought application for judicial review. Application granted. IAD erred in finding that it was entitled to access information over which informer privilege was claimed and in finding that it was required to review redacted information in present case to confirm existence of privilege. IAD was not within “circle of privilege” and was not entitled to access information over which claim of informer privilege was asserted, even for purpose of assessing that claim. There must be express statutory language if tribunal’s enabling statute was to be interpreted as entitling it to access privileged information and provisions in Immigration and Refugee Protection Act fell short of express, clear and unambiguous statutory language necessary. Jurisprudence applicable to informer privilege did not support IAD’s understanding of test as requiring demonstration of two separate elements, which were expectation of confidentiality and promise of confidentiality.

Canada (Citizenship and Immigration) v. Hanjra (2018), 2018 CarswellNat 1255, 2018 CarswellNat 766, 2018 FC 208, 2018 CF 208, Richard F. Southcott J. (F.C.); application for judicial review allowed (2017), 2017 CarswellNat 3357, 2017 CarswellNat 3358, Paul Aterman Member (Imm. & Ref. Bd. (App. Div.)).