Date: 20100910
Docket: IMM-2114-09
Citation: 2010 FC 900
Ottawa, Ontario, September 10, 2010
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
NAGULESWARAN
SHANMUGASUNDARAM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
An
immigration officer concluded that Naguleswaran Shanmugasundaram was
inadmissible to Canada as there were reasonable grounds for believing that he
was a member of the Tamil Eelam Liberation Army (or “TELA”), an organization
for which there were reasonable grounds to believe had engaged in terrorist
activities.
[2]
Mr.
Shanmugasundaram seeks judicial review of the officer’s decision, asserting
that the officer erred in his analysis of the membership issue by failing to
consider explanations offered by Mr. Shanmugasundaram for apparent
inconsistencies in his evidence, and by drawing unreasonable inferences from
the facts surrounding Mr. Shanmugasundaram’s involvement with various Tamil
organizations within Sri
Lanka.
[3]
For
the reasons that follow, I have concluded that the immigration officer did
indeed err in his analysis of the membership issue, with the result that the
application for judicial review will be allowed. In the circumstances it is
not necessary to address Mr. Shanmugasundaram’s arguments as to whether TELA
can properly be considered to have been an organization which had engaged in
terrorism.
A Preliminary
Observation
[4]
The
officer’s reasons contain numerous references to a number of different Tamil
organizations which were active in Sri Lanka at various times in that country’s recent
history. In addition to TELA, these organizations include the Liberation
Tigers of Tamil Eelam (the “LTTE”), the People’s Liberation Organization of
Tamil Eelam (or “PLOTE”), the Hill Country People’s Front, and the Up Country
Tamil Front.
[5]
The
documentary evidence describes TELA as being a splinter group of the Tamil
Eelam Liberation Organization (or “TELO”). It appears that TELA did not exist
for very long. It was created in 1982, and following events occurring in 1983,
TELA was absorbed by PLOTE.
[6]
It
is important to note that although these various organizations are mentioned in
the officer’s reasons, the inadmissibility finding was based entirely upon Mr.
Shanmugasundaram’s membership in TELA. No membership finding was made with
respect to any of these other organizations.
[7]
It
is clear from the jurisprudence that in making an inadmissibility finding under
paragraph 34(1)(f) of the Immigration and Refugee Protection Act, an
immigration officer must identify the terrorist organization in question with
specificity: see Ali v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1416
at paras. 66-68.
[8]
In
these circumstances, I will confine my analysis to the reasonableness of the
officer’s findings with respect to Mr. Shanmugasundaram’s membership in TELA.
The Section
87 Proceedings
[9]
After
the commencement of this application for judicial review, the Minister brought
a motion for non-disclosure of certain limited portions of the Certified
Tribunal Record, in accordance with the provisions of section 87 of the Immigration
and Refugee Protection Act. The Minister claimed that the disclosure of
the redacted information would be injurious to national security or to the
safety of any person.
[10]
I
carefully reviewed the redacted portions of the Certified Tribunal Record, as
well as a secret affidavit filed in support of the motion. I also heard viva
voce testimony from the deponent of the affidavit and oral submissions from
counsel for the Minister in an ex parte, in camera hearing. As a
result of concerns expressed by me in the course of that hearing, additional
information with respect to the claimed redactions was subsequently provided to
the Court by the Minister. At the end of the day, I was satisfied that the
disclosure of the redacted portions of the Certified Tribunal Record would be
injurious to national security or would endanger the safety of any person.
Consequently, the Minister’s motion for non-disclosure was granted.
Standard of
Review
[11]
Mr.
Shanmugasundaram argues that the officer erred in
finding that he was a member of TELA. I understand both parties to agree that
the officer’s membership finding is reviewable on the standard of
reasonableness. Given that what is in issue are questions of mixed fact and
law, I agree that reasonableness is the appropriate standard: see Poshteh
v. Canada (Minister of
Citizenship and Immigration), 2005 FCA 85, [2005] F.C.J. No. 381 at para. 24.
[12]
In
reviewing a decision against the reasonableness standard, the Court must
consider the justification, transparency and intelligibility of the
decision-making process, and whether the decision falls within a range of
possible acceptable outcomes which are defensible in light of the facts and the
law: see Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 90 at para. 47, and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 59.
The
Legislative Authority for the Decision
[13]
Before
turning to examine the arguments advanced by Mr. Shanmugasundaram, it is
helpful to review the legislative framework governing inadmissibility findings
such as this.
[14]
The
inadmissibility finding in this case was made under the provisions of section
34(1)(f) of the Immigration and Refugee Protection Act, the relevant
portions of which provide that:
|
34. (1) A permanent resident or a
foreign national is inadmissible on security grounds for
…
(f) being a member of an organization
that there are reasonable grounds to believe engages, has engaged or will
engage in acts referred to in paragraph (a), (b) or (c).
|
34. (1) Emportent interdiction de
territoire pour raison de sécurité les faits suivants :
…
f) être membre d'une organisation don=t il y a des motifs
raisonnables de croire qu'elle est, a été ou sera l'auteur d'un acte visé aux
alinéas a), b) ou c).
|
Paragraph 34(1)(c) refers to organizations
engaging in terrorism.
[15]
In
making a finding under section 34(1) of the Act, an immigration officer is also
guided by section 33 of IRPA, which provides that:
|
33. The facts that constitute
inadmissibility under sections 34 to 37 include facts arising from omissions
and, unless otherwise provided, include facts for which there are reasonable
grounds to believe that they have occurred are occurring or may occur.
|
33. Les faits — actes ou omissions —
mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés
sur la base de motifs raisonnables de croire qu’ils sont survenus,
surviennent ou peuvent survenir.
|
The Legal
Tests to be Applied in Assessing Admissibility under s. 34(1)(f) of IRPA
[16]
In
order to conclude that Mr. Shanmugasundaram was inadmissible to Canada, the
immigration officer had to find that he was, or had
been, a
member of an organization for which there are reasonable grounds to believe
engages, has engaged or will engage in terrorism. There are three aspects
involved in such a finding that require comment, namely the “reasonable grounds to believe” standard, the concept of “membership”, and the definition of
“terrorism”.
[17]
The
Supreme Court of Canada described the “reasonable
grounds to believe” evidentiary standard in Mugesera v. Canada (Minister of
Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, as requiring
“something more than mere suspicion, but less than the standard applicable in
civil matters of proof on the balance of probabilities”. The Supreme Court
went on to hold that reasonable grounds will exist “where there is an objective
basis for the belief which is based on compelling and credible information”: at
para. 114.
[18]
Insofar
as the test for membership is concerned, it is clear that actual or formal
membership in an organization is not required – rather the term is to be
broadly understood: see Chiau v. Canada (Minister of Citizenship and
Immigration), [1998] 2 F.C. 642 at para. 34. Moreover, there will always
be some factors that support a membership finding, and others that point away
from membership: see Poshteh at para. 36.
[19]
As
to the definition of terrorism, the officer adopted the definition from Suresh
v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at para. 96,
where the Supreme Court of Canada described terrorism as:
Any ... act intended to cause death or
serious bodily injury to a civilian, or to any other person not taking an
active part in the hostilities in a situation of armed conflict, when the
purpose of such act, by its nature or context, is to intimidate a population,
or to compel a government or an international organization to do or to abstain
from doing any act.
[20]
With
this understanding of the legal tests to be applied in assessing admissibility
under paragraph 34(1)(f) of the Immigration and Refugee Protection Act,
I turn now to consider whether the immigration officer’s finding that Mr.
Shanmugasundaram was inadmissible under paragraph 34(1)(f) of IRPA was
reasonable.
Did the
Officer Err in Concluding that Mr. Shanmugasundaram was a Member of TELA?
[21]
A
review of the immigration officer’s reasons discloses that the finding that the
were reasonable grounds to believe that Mr. Shanmugasundaram was a member of
TELA was based to a large extent on inconsistencies in his description of his
involvement with that organization. Mr. Shanmugasundaram was always consistent
in asserting that his involvement with TELA was limited to a period of a couple
of months in July and/or August of 1983. However, his description of the
circumstances surrounding his involvement with TELA, and the nature of the
activities that he carried out on behalf of the organization varied over time.
[22]
That
is, in an interview with the Canadian Security Intelligence Service, Mr.
Shanmugasundaram stated that on a couple of occasions during the summer of 1983
he helped a friend distribute flyers on behalf of TELA, and that this was the
full extent of his involvement with the organization. In describing his
involvement with TELA in his Personal Information Form, Mr. Shanmugasundaram
makes no mention of his activities having been carried out under any form of duress
or compulsion.
[23]
In
contrast, in an interview with immigration authorities, Mr. Shanmugasundaram
stated that on three or four occasions in the summer of 1983 he was forced to
give a TELA member a ride on his bicycle to collect food from houses. It
appears that Mr. Shanmugasundaram never provided a satisfactory explanation for
this inconsistency, beyond suggesting that there could have been problems with
the interpretation of his answers.
[24]
The
inconsistency in Mr. Shanmugasundaram’s evidence in this regard could certainly
give rise to concerns as to the truthfulness of his evidence with respect to
his involvement with TELA, but would not, by itself, provide a sufficient basis
for a finding of membership.
[25]
In a
similar vein, Mr. Shanmugasundaram’s evidence that TELA was a social service
organization could also have potentially raised concerns with respect to his
truthfulness, but was not, in and of itself, an indicator of membership in that
organization.
[26]
The
immigration officer’s membership finding was also based upon the fact that a
senior member of PLOTE was involved in negotiating Mr. Shanmugasundaram’s
release from detention in October of 1993, and again in 1994. Mr.
Shanmugasundaram had been detained because he was suspected by Sri Lankan
authorities of having been an intelligence agent for the LTTE.
[27]
Mr.
Shanmugasundaram explained that while he was in detention, he had spent two
years sharing a cell with a representative of the Up Country Tamil Front. This
individual was said to be a friend of the leader of PLOTE. It was because of
these relationships that the leader of PLOTE intervened on Mr.
Shanmugasundaram’s behalf to secure his release from detention, going so far as
to stand as a surety on his behalf.
[28]
The immigration
officer found that the personal intervention of the leader of PLOTE in securing
Mr. Shanmugasundaram’s release from detention suggested that Mr.
Shanmugasundaram’s involvement in PLOTE was more than minimal. This was a
reasonable inference, insofar as it related to Mr. Shanmugasundaram’s
involvement with PLOTE in 1993. However, it must be recalled that the officer
never found that Mr. Shanmugasundaram had ever been a member of PLOTE.
[29]
The
officer also found that the intervention of the PLOTE leader also suggested
that Mr. Shanmugasundaram’s involvement in TELA was more than minimal. This
latter inference was not reasonable.
[30]
It
appears that TELA was a short-lived and relatively obscure Tamil organization,
which ceased to exist as an independent entity sometime around 1983, when it
was absorbed by PLOTE. In my view, it was unreasonable for the officer to find
that Mr. Shanmugasundaram’s involvement with TELA in 1983 was sufficient to
make him a “member” of that organization, based upon a series of events
occurring some 10 years after the fact, involving a representative of a
successor organization.
Conclusion
[31]
As
was noted earlier, although the officer’s reasons make reference to several
different Tamil organizations, the membership finding related only to TELA. For
the reasons cited above, based upon the reasons given by the immigration
officer, I am of the view that the officer’s finding in this regard was
unreasonable. Consequently, the application for judicial review is allowed.
Certification
[32]
Neither
party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that:
1. This
application for judicial review is allowed, and the matter is remitted to a
different immigration officer for re-determination in accordance with these
reasons; and
2. No serious question of
general importance is certified.
“Anne
Mactavish”
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