Sinnaiah v. Canada (Minister of Citizenship and Immigration), 2004 FC 1576

Date: 20041110

Docket: IMM-10035-03

Citation: 2004 FC 1576

Ottawa, Ontario, this 10^th day of November, 2004

Present:           THE HONOURABLE MR. JUSTICE O'REILLY

BETWEEN:

                                               BALASUBRAMANIAM SINNAIAH

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                    REASONS FOR JUDGMENT AND JUDGMENT

[1]                Mr. Balasubramaniam Sinnaiah is a citizen of Sri Lanka and is married to a Canadian citizen. He currently resides in Germany, where he sought and obtained refugee status in 1991. His spouse, Ms. Maharany Nadarajah, sponsored Mr. Sinnaiah's application for permanent residence in Canada. An officer in the Canadian Embassy in Berlin refused the application because he suspected that Mr. Sinnaiah was a member of a terrorist organization, the Liberation Tigers of Tamil Eelam ("LTTE"). As a result, the couple has been separated for more than a year.

[2]                Mr. Sinnaiah argues that the officer had no basis whatsoever for dismissing Mr. Sinnaiah's application and asks me to overturn the officer's decision. I agree that the officer erred and I must, therefore, allow this application for judicial review.

I. Issue

[3]                Was there evidence providing the officer with reasonable grounds for believing that Mr. Sinnaiah was a member of the LTTE?

II. Analysis

(a) Legal Framework

[4]                A person is inadmissible to Canada if there are reasonable grounds to believe he or she is a member of a terrorist group (ss. 33, 34, Immigration and Refugee Protection Act, S.C. 2001, c. 27). Both parties in this case accept that the LTTE is a terrorist group.

[5]                The requirement for "reasonable grounds" represents a low, yet meaningful, evidentiary threshold. Some evidence of actual membership must exist, although it need not satisfy the civil standard of a balance of probabilities: Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.); Thanaratnam v. Canada (Minister of Citizenship and Immigration) 2004 FC 349, [2004] F.C.J. No. 395 (FC)(QL);

[6]                To establish "membership" in an organization, there must at least be evidence of an "institutional link" with, or "knowing participation" in, the group's activities: Chiau, above; Thanaratnam, above.

[7]                To decide whether there is sufficient evidence of membership in a terrorist organization, one must make a finding of mixed law and fact. Therefore, this Court will only overturn an officer's conclusion on this issue if it is unreasonable.

(b) The Officer's Decision

[8]                The officer was concerned about information that Mr. Sinnaiah had provided to German authorities for purposes of his refugee claim. The officer outlined his concerns in a letter to Mr. Sinnaiah dated July 31, 2003, to which he invited Mr. Sinnaiah to reply. He told Mr. Sinnaiah that the information he had reviewed "suggests a strong likelihood that you were a de facto member if not de jure of the LTTE".

[9]                A transcript of the German refugee hearing contains Mr. Sinnaiah's detailed description of mistreatment by the Sri Lankan Army and Indian soldiers. His parents, brothers, employees and pets were shot. His house was burned down. Members of the LTTE arrived and helped him, and then took him to a neighbouring area. The Indian soldiers had taken a photo album from his home which they used to track him down in Mullaitivu. The album was passed to Sri Lankan soldiers through the Eelam Peoples Revolutionary Liberation Front ("EPRLF"), which had "given him away". The LTTE later asked him to collaborate with them. Instead, he fled to Colombo.

[10]            In his letter, the officer asked Mr. Sinnaiah a number of questions:

·      Why would the LTTE help him?

·      How and why did the EPRLF betray him?

·      What was the significance of the photo album?

[11]            The officer felt that Mr. Sinnaiah's version of events skirted around his relationship with the LTTE and indicated that he had some ties with it.

[12]            Mr. Sinnaiah responded to the officer's questions by way of a statutory declaration. In it, he stated that he had never been a member of the LTTE. Nor did he have any association with it. The LTTE helped him by coming to the area the Indian army had attacked and assisting in the disposal of dead bodies. He had not said that the EPRLF had "betrayed" him. He said that it used the photo album to point him out to the Indian army and the Sri Lankan army. These armies learned of his whereabouts from the photo album. The statement also included further details about the mistreatment Mr. Sinnaiah had suffered and the actions of the various conflicting groups.

[13]            The officer was unimpressed by Mr. Sinnaiah's statutory declaration. He told Mr. Sinnaiah that his statement that he has had no connection or association with the LTTE, EPRLF or any other organization was "clearly wholly self-serving and not proof of anything." He found Mr. Sinnaiah to be inadmissible to Canada because his membership in a terrorist organization had been established.

[14]            The officer was cross-examined for purposes of this application for judicial review. He said that he had no reason to doubt Mr. Sinnaiah's evidence. There were no inconsistencies in his statements. The officer accepted that Mr. Sinnaiah might have been sought by Indian soldiers and the Sri Lankan army simply by virtue of his being a young Tamil male. According to the documentary evidence, many persons in the same situation as Mr. Sinnaiah were falsely arrested on suspicion of being LTTE members. The officer agreed that Mr. Sinnaiah's explanation of the LTTE's assistance was reasonable. The officer also conceded that the EPRLF's interest in Mr. Sinnaiah might have been for purposes of extortion and not because of any ties between Mr. Sinnaiah and the LTTE. The officer acknowledged that Mr. Sinnaiah had explained that the photo album had been used as a means of discovering his whereabouts. Further, the officer agreed that the LTTE attempted to recruit many young Tamils. Little significance could be taken from the fact that Mr. Sinnaiah was asked to join them.

[15]            The officer also agreed that the documentary evidence was consistent with Mr. Sinnaiah's version of events. The officer stated that the only reason he dismissed Mr. Sinnaiah's statutory declaration was because it was "self-serving". He felt that Mr. Sinnaiah's denial was predictable. Therefore, his statement to that effect could not be given any weight. Further, the officer was troubled by Mr. Sinnaiah's statement that the Indian army had suspected every young Tamil person of being an LTTE member and began to arrest innocent people. He felt that this was an exaggeration, but agreed that most young people were probably suspected.

[16]            The officer took the approach that a member of an organization is someone who is associated with it or has supported it, financially or otherwise. He conceded that he had no evidence that Mr. Sinnaiah had given the LTTE any support of any kind. However, he believed that the evidence before him pointed to some kind of association between Mr. Sinnaiah and the LTTE.

[17]            In my view, at best, the information originally before the officer might have justified a whiff of suspicion. I would not fault the officer for asking Mr. Sinnaiah some further questions after reviewing his file. However, the officer's response to Mr. Sinnaiah's additional information suggests that nothing other than definitive proof of non-membership in the LTTE would have satisfied him. Mr. Sinnaiah's denial was considered self-serving. His answers did not indicate that he was a member of the LTTE, but neither did they prove that he was not a member. In the end, the officer might have been entitled to his suspicions. But there was not a scintilla of evidence before him that could have satisfied a threshold of reasonable grounds to believe that Mr. Sinnaiah was actually a member of the LTTE.

[18]            Accordingly, I must allow this application for judicial review and order that Mr. Sinnaiah's application be re-assessed by a different officer. Mr. Sinnaiah asked for a special remedy: an order that the officer reconsidering the application be directed to find that the existing record does not disclose reasonable grounds to believe that Mr. Sinnaiah is a member of the LTTE. He also asked for costs.

[19]            I decline to grant Mr. Sinnaiah's requests. In my view, these reasons are clear in their characterization of the contents of the existing record. I will simply order the officer to reassess Mr. Sinnaiah's application in keeping with these reasons. I do not see any exceptional circumstances that would justify an order as to costs. Neither party proposed a question of general importance for me to certify, and none is stated.

                                                                   JUDGMENT

THIS COURT'S JUDGMENT IS that:

1.          The application for judicial review is allowed;

2.          The matter is returned to be re-assessed by a different officer in keeping with these reasons;

3.          No question of general importance is stated.

                                                                                                                             "James W. O'Reilly"       

                                                                                                                                                   F.C.J.                 

                                                                         Annex

FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                         IMM-10035-03

STYLE OF CAUSE:         BALASUBRAMANIAM SINNAIAH v. MCI

PLACE OF HEARING:               TORONTO

DATE OF HEARING:                 November 2, 2004

REASONS FOR JUDGMENT

AND JUDGMENT BY:             THE HONOURABLE MR. JUSTICE O'REILLY

DATED:                                        November 10, 2004

APPEARANCES BY:

Mr. Lorne Waldman                        FOR THE APPLICANT

Ms. Kareena R. Wilding                  FOR THE RESPONDENT

SOLICITORS OF RECORD:

WALDMAN & ASSOCIATES

Toronto, ON                             FOR THE APPLICANT

MORRIS ROSENBERG        

Deputy Attorney General of Canada

Toronto, ON                             FOR THE RESPONDENT