Revocation decision effectively a disguised denial of his security clearance request, applicant said
An international consultant has applied to the Federal Court seeking judicial review of a Public Services and Procurement Canada (PSPC) decision to revoke his reliability status and deny his request for “secret” security clearance.
According to the applicant, Khaled Ibrahim, the PSPC had breached the Standard on Security Screening and his rights to procedural fairness and its decision was unreasonable. He asked the Federal Court to issue an order setting aside the decision and remitting the matter back to the PSPC for reconsideration.
Background of the case
The applicant served as a diplomat for the Egyptian Ministry of Foreign Affairs until he vacated his post in 2008. He then immigrated to Canada and became a permanent resident in August 2010. From 2009 to 2017, he worked for the United Nations as a senior program officer. In 2017, he started working as an international consultant for Global Affairs Canada (GAC). Following assessment of his honesty and reliability, he was granted a 10-year reliability status in April 2017 for his work with the GAC. In September 2019, he became a Canadian citizen.
To continue working on the GAC projects, the applicant was advised to secure a “secret” security clearance. A “secret” security clearance involves an assessment of an individual’s loyalty to Canada and is required before an employee may access classified information. Since he already possesses a reliability status, the applicant, through a consulting firm, submitted a request for “secret” security clearance to the PSPC in July 2017.
As part of the security screening process, the PSPC must verify the applicant’s background information for the last 10 years. He then obtained documents from the various countries where he had worked and submitted all the requested documentation and information in 2018, including a detailed account of all his travel outside of Canada during the 10-year period.
As the PSPC had difficulty conducting security screening in relation to his travel abroad, the applicant attended a telephone interview in July 2019, in which he provided an additional five references. For the same reason, the applicant attended an in-person interview in January 2020. During the interview, the PSPC investigators focused on his employment stint with the Egyptian Ministry of Foreign Affairs, particularly his training in the early 1990s and his postings in Italy and Serbia between 1996 and 2005.
PSPC decision
In November 2020, the PSPC revoked the applicant’s reliability status and denied his request for “secret” security clearance. In its decision, the PSPC made the following findings:
- The applicant’s information disallowed the PSPC to verify his employment and financial history in Egypt, Sudan, Central African Republic and Ivory Coast;
- Since the applicant lived in said countries for more than six months in a row during the 10-year period, the PSPC failed to complete appropriate inquiries, verifications and assessments;
- The applicant failed to initially disclose the full scope of his work as a diplomat and contacts with the Egyptian officials and deliberately concealed his contact with the intelligence officer in Italy. This called into question his reliability, honesty and trustworthiness;
- Since the applicant still maintains regular contact with former colleagues currently employed with Egyptian Ministry of Foreign Affairs, he was therefore at risk of being induced or coerced into disclosing sensitive information.
Applicant’s contentions
In his application for judicial review, the applicant alleged that the PSPC breached the Standard on Security Screening by failing to inform him that his reliability status was being reviewed for cause and he would be interviewed extensively about his activities prior to the 10-year period. He also alleged that the PSPC violated his rights to procedural fairness, as he was not informed in writing of the reasons why the PSPC was considering revoking his reliability status and provided with an opportunity to respond to the adverse information.
The applicant argued that the PSPC decision was unreasonable for the following reasons: First, the PSPC made no “reasonable, genuine and demonstrable efforts” to verify the applicant’s background information. Second, despite the PSPC investigator’s acknowledgment of his mistake that the applicant already possessed his reliability status when he met a former colleague from the Egyptian Ministry of Foreign Affairs in 2015, the PSPC still reflected this mistake in its decision. And third, since he moved to Canada, the applicant no longer maintains regular contact with his former colleagues still employed with the Egyptian Ministry of Foreign Affairs.
The applicant claimed that the PSPC decision to revoke his reliability status was effectively a disguised denial of his request for “secret” security clearance in order to deprive him of recourse rights to which he is entitled under s. 18 of National Security and Intelligence Review Agency Act.
As a remedy, the applicant seeks for an order setting aside the PSPC decision, remitting the matter back for reconsideration and declaring that the PSPC revoked his reliability status to unlawfully deprive him of his recourse rights.
Respondent’s arguments
In its memorandum, the respondent, Attorney General of Canada, alleged that the PSPC’s procedure was fair because it was not required to give warning to the applicant that he would be asked about his previous work as an Egyptian diplomat. It further alleged that the PSPC’s interview invitation was broadly worded because it indicated that the applicant’s “out-of-country time” and “past and current lifestyle” would be discussed.
The respondent claimed that the applicant had the opportunity to explain or comment during the security interview on any concerns related to the PSPC’s inability to conduct the required screening activities. Under the Standard on Security Screening, “a security interview provides an opportunity for the screening official and the individual to discuss any matters of concern and gives the individual the opportunity to explain the situation before a decision is rendered.”
The respondent contended that the PSPC decision was reasonable. The decision clearly set out the facts and explained how such facts led to the conclusion that allowing the applicant to access sensitive government information poses a serious security concern, the respondent said.
The respondent noted that even if the PSPC director had denied the request for “secret” security clearance, the applicant had no recourse to the complaint process established pursuant to the National Security and Intelligence Review Act. “That process is only available to individuals for whom denial of a security clearance has led to loss of employment or denial of a contract in the public service. The applicant was not applying regarding a particular contract or did not lose a contract as a result of the director’s decision,” the respondent explained.
The respondent stated that there was no evidence suggesting that the PSPC director made his decision for the purpose of unlawfully depriving the applicant of his recourse rights. “There is no basis to infer this from the record.”
The respondent seeks an order to have the application for judicial review dismissed.
Justice Catherine Kane presided the application hearing Tuesday, November 9, and has reserved her decision. Paul Champ and Bijon Roy of Champ & Associates represented the applicant. Kevin Palframan appeared for the respondent.
