Date: 20101125
Docket: IMM-5376-09
Citation: 2010 FC 1181
Ottawa, Ontario, November 25,
2010
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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RAJARATNAM VIMALENTHIRAKUMAR
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
Procedure
must not trump substance, otherwise justice could be set aside prior to
complete or final analysis by procedural (or technical) sophism:
[26] …
the doctrine of legitimate expectations cannot lead to substantive rights
outside the procedural domain… (Emphasis added).
(Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817; specific reference is
also made to paras. 20-24 inclusive below).
II. Judicial Procedure
[2]
This
is an application for judicial review of the Decision of a Visa Officer, dated
October 14, 2009, made at the Canadian Embassy, in Paris, France, wherein
the Officer refused the Applicant’s Application for Permanent Residence in
Canada on the grounds that he was inadmissible to Canada pursuant to paragraph
34(1)(f) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA).
III. Background
[3]
The
Applicant, Mr. Rajaratnam Vimalenthirakumar, is a 37-year old Tamil male
citizen of Northern Sri Lanka. In 1997 (when he was 24), the Applicant
travelled to France and claimed
refugee status. He alleges he was persecuted by the Liberation Tigers of Tamil
Eelam (LTTE) and the Sri Lankan army. In France, the
Applicant was granted refugee status in the year 2000 and has resided therein
since 1997 (Applicant’s affidavit, Application Record (AR) at pp. 1-2).
[4]
In
May 2004, the Applicant submitted an Application for Permanent Residence in Canada. He was
sponsored by his Canadian wife (whom he married in July 2003). In his
Application, the Applicant stated, inter alia, that he was a member of
the Students Organization of Liberation Tigers (SOLT) in Sri Lanka from 1994 to
1997.
[5]
On
October 14, 2009, the Officer refused the Applicant’s Application on the ground
that he was inadmissible to Canada pursuant to paragraph 34(1)(f) of
the IRPA. In this regard, the Officer found that the Applicant was a member of
an organization, being the LTTE and the SOLT, that there are reasonable grounds
to believe, engages, has engaged or will engage in the acts referred to in
subsection 34(1)(b) (instigating the subversion by force of a
government), or paragraph 34(1)(c) (terrorism)).
IV. Issue
[6]
Has
the Applicant demonstrated that the Officer’s Decision is unreasonable?
V. Standard of Review
[7]
Given
the factual elements present in questions of membership in an organization and
the expertise that officers have when assessing the facts against the
inadmissibility criteria, the standard of review for the Officer’s Decision
that the Applicant is inadmissible pursuant to paragraph 34(1)(f) of the
IRPA, is that of reasonableness. Judicial deference to such decisions remains
appropriate. A decision reasonably open to an officer, demonstrating
justification, transparency and intelligibility within the decision-making
process and falling with a range of possible, acceptable outcomes, should be
upheld by this Court (Saleh v. Canada (Minister of Citizenship and
Immigration), 2010 FC 303, 363 F.T.R. 204 at paras. 15 and 20; Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para. 97).
VI. Pertinent Legislative Provision
[8]
Paragraphs
34(1) (b), (c) and (f) of the IRPA provide:
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34. (1) A permanent resident or a
foreign national is inadmissible on security grounds for
…
(b) engaging in or
instigating the subversion by force of any government;
(c) engaging in terrorism;
…
(e) engaging in acts of
violence that would or might endanger the lives or safety of persons in Canada; or
(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).
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34. (1) Emportent interdiction de
territoire pour raison de sécurité les faits suivants :
[...]
b) être l’instigateur ou
l’auteur d’actes visant au renversement d’un gouvernement par la force;
c) se livrer au terrorisme;
d) constituer un danger pour la
sécurité du Canada;
[...]
e) être l’auteur de tout acte de
violence susceptible de mettre en danger la vie ou la sécurité d’autrui au
Canada;
f) être membre d’une
organisation dont 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).
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[9]
Subsection
3(1) of the IRPA contains Parliament’s intentions and the objectives of the
IRPA. Paragraphs 3(1) (h) and (i) provide:
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…
(h) to
protect the health and safety of Canadians and to maintain the security of
Canadian society;
(i) to
promote international justice and security by fostering respect for human
rights and by denying access to Canadian territory to persons who are criminals
or security risks; and
…
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[...]
h) de protéger la
santé des Canadiens et de garantir leur sécurité;
i) de promouvoir, à
l’échelle internationale, la justice et la sécurité par le respect des droits
de la personne et l’interdiction de territoire aux personnes qui sont des
criminels ou constituent un danger pour la sécurité;
[...]
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[10]
The
term “member of an organization” should be given an unrestricted and broad
interpretation, as public safety and national security are the most serious
concerns of government (Canada (Minister of Citizenship and Immigration)
(1998), 151 F.T.R. 101, 82 A.C.W.S. (3d) 136 at para. 51).
[11]
The
person concerned does not need to be significantly integrated in a large
measure within an organization before he meets the test for membership. Also,
it is not necessary for the person concerned to have personally participated in
the acts of terrorism, if he, to his knowledge, in fact, assisted the
organization directly or indirectly (Poshteh v. Canada (Minister of
Citizenship and Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487 at par. 31; Chiau
v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297, 102
A.C.W.S. (3d) 178 (C.A.)).
[12]
The
determination of whether an applicant is a “member of an organization that there
are reasonable grounds to believe” requires a very low threshold. The burden of
proof for a finding of “reasonable grounds to believe” (which applies to
questions of fact) is lower than the civil standard of proof. The immigration
officer need only have a bona fide belief in a serious possibility of
membership, based on credible evidence (Mugesera v. Canada (Minister of
Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 at paras.
114-116; Chiau, above, at para. 60).
VII. Analysis
[13]
The Court is in
complete agreement with the position of the Respondent.
[14]
The
onus was on the Applicant to provide sufficient evidence to satisfy the Officer
that he was admissible to Canada. The Applicant failed to satisfy the Officer of such,
namely, that he was not a member of an organization, being the LTTE and the
SOLT, that there are reasonable grounds to believe, engages, has engaged or
will engage in the acts referred to in paragraph 34(1)(b) of the IRPA
(instigating the subversion by force of a government), or paragraphs 34(1)(c)
of the IRPA (terrorism). It is significant to note that the Applicant admitted
in his Application for Permanent Residence and throughout the proceedings that
he was a member of the SOLT (Decision, Court Tribunal Record (CTR) at pp. 35-36;
Translated CAIPS Notes; Application for Permanent Residence, CTR at pp. 2-15).
[15]
Based
on a number of significant discrepancies, contradictions, and
implausibilities in the Applicant’s narrative and his involvement with the
SOLT, the Officer found that the Applicant was not credible. These credibility
findings were based on specific evidence, before the Officer and, therefore,
open to the Officer to make (Translated CAIPS Notes).
[16]
In Kazimirovic
v. Canada (Minister of Citizenship and Immigration) (2000), 98 A.C.W.S.
(3d) 1276, [2000] F.C.J. No. 1193 (QL) (T.D.), a visa officer denied the
applicant’s visa application as a result of credibility concerns with the
applicant’s narrative concerning his lack of knowledge of atrocities committed
while he was in the military. On judicial review, the Federal Court found the
visa officer’s decision to be reasonable. The Court stated that the burden
rested with the applicant to convince the visa officer of his admissibility to
enter Canada, and the applicant,
having given what the officer considered to be an unbelievable narrative
relating to his military service, simply failed to discharge it.
[17]
The
same reasoning applies herein. The burden was on the Applicant to convince the
Officer that he was not a member of an organization, being the LTTE and the
SOLT, that there are reasonable grounds to believe, engages (or has engaged or
will engage) in the acts referred to in paragraph 34(1)(b) of the IRPA
(instigating the subversion by force of a government), or paragraph 34(1)(c)
of the IRPA (terrorism). The Applicant failed to discharge that burden. The
Officer considered the Applicant’s explanations and rejected them. The
Officer’s findings were reasonably open to him on the evidence (Decision, CTR
at pp. 35-36; Translated CAIPS Notes).
[18]
The
Applicant submits that the Officer had made a positive decision and found him
to be admissible to Canada. In effect, the
Applicant is asserting that the Officer was functus when he stated in
the CAIPS Notes that the Applicant is not inadmissible. Contrary to the
Applicant’s submission, at no time, did the Officer or anyone else at the
Canadian Embassy make a positive decision in favor of the Applicant or
determine that he was admissible to Canada. The Officer only made an initial
or preliminary finding that the Applicant appeared admissible; however,
no decision was made, no visa was issued and the Officer continued to process
the application (Affidavit of Denis Crepault at para. 6).
[19]
The
fact that the Officer did not make a decision (until February 16, 2009) is
evidenced by the fact that on February 16, 2009 (the day which the Applicant
submits a decision was made), the Officer requested updated documents from the
Applicant and continued to process the Application (Translated CAIPS Notes).
[20]
The
caselaw provides that the visa officer has the jurisdiction to change or
reverse an initial or preliminary finding that the Applicant
appeared admissible. In fact, even if the Officer had made a decision that the
Applicant was admissible, which is strongly denied, he (and/or another Officer)
would have the jurisdiction to change that decision, prior to the issuance of
the visa.
[21]
For
instance, in the case of Brysenko v. Canada (Minister of
Citizenship and Immigration) (2000), 193 F.T.R. 129, 99 A.C.W.S. (3d) 1035,
a visa officer interviewed the applicant for permanent residence and made a
positive selection decision. The application was complete, with the only remaining step
being the issuance of a visa. Approximately two months later, a second visa officer
reviewed the file and found that she was not comfortable with the first visa
officer’s decision. The second visa officer asked the applicant to provide her
with further information. The applicant did not do so. Instead, she filed an
application for judicial review arguing that the second visa officer could not
reopen the decision, because the first visa officer was functus. The
Federal Court, per Justice Barbara Reed, found that the second visa officer
(who was charged with issuing the visa) had the jurisdiction to reverse the
earlier assessment and refuse the application. Justice Reed concluded that the
doctrine of functus did not apply to the first decision and held that
the principle of functus only applies to final decisions, and the final
decision is the issuance of a visa.
[22]
A
similar case is the decision in Park v. Canada (Minister of Citizenship and
Immigration) (1998), 143 F.T.R. 35, 77 A.C.W.S. (3d) 620; affirmed 2001 FCA
165, 106 A.C.W.S. (3d) 325, wherein a visa officer informed the applicant that
the processing of his application was complete and that “we are prepared to
issue the immigrant visas upon receipt of copies of your passports”. The
applicant promptly provided copies of his passports to the Embassy. Some time
later, the visa officer discovered the applicant had been convicted of a crime
and concluded that he was inadmissible for criminality. The applicant brought
an application for judicial review and argued that once a decision to issue an
immigrant visa is taken, the visa officer is functus. The Federal Court
and Federal Court of Appeal concluded that the doctrine of functus had
no application to the visa officer’s reversal of his own inadmissibility
finding made earlier in the case and that the visa officer is not functus
once a decision to issue an immigrant visa is made.
[23]
Another
similar case is the decision in Lo v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 1155, 229 F.T.R. 145, wherein this
Court was asked to determine whether a visa officer has jurisdiction to reconsider
the inadmissibility decision of another visa officer. In Lo, this Court
determined that a visa officer could change an inadmissibility finding of
another visa officer prior to the issuance of a visa, even where there is no
new information, where the second visa officer disagrees with the former visa
officer’s inadmissibility analysis. In concluding that the visa officer was not
functus officio, this Court stated that “visa officers must retain the
discretion to look at previous decisions in order to ensure immigrants are not
inappropriately allowed into Canada”.
[24]
Thus,
the caselaw has settled the issue of whether a visa officer has the
jurisdiction to change an interlocutory decision made prior to the issuance of
a visa. Clearly, this proposition applies with much greater tone where a visa
officer merely makes an interim or preliminary finding that the applicant
appeared admissible, and no visa was issued.
[25]
The
Applicant submits that the Officer misapprehended the test in determining
inadmissibility and that the decision is unintelligible, as the Officer stated
(twice in the CAIPS Notes) that he had “reasonable doubts to believe”.
Paragraph 34(1)(f) of the IRPA provides “reasonable grounds to
believe” (Emphasis added).
[26]
It
is noted that in the Officer’s Decision, he uses the words “reasonable grounds
to believe”. In the CAIPS Notes, the Officer uses the words “reasonable grounds
to believe” twice, and the words “reasonable doubts to believe” twice
(Decision, CTR at pp. 35-36; Translated CAIPS Notes).
[27]
The
Officer’s use of the words “reasonable doubts to believe” is not
evidence that the Officer applied the wrong test. It is clear from a contextual
reading of the Decision and Reasons as a whole, that the Officer was aware of
and applied the correct test under the IRPA (Decision, CTR at pp. 35-36;
Translated CAIPS Notes).
[28]
The
Federal Court of Appeal confirmed in Hawthorne v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 475, [2003] 2 F.C. 555, that the
particular words chosen by an Officer in deciding an application are not
determinative. What is determinative is that the Officer apply the correct
test, which he did in the case at bar.
[29]
The
Officer’s Decision and Reasons are intelligible and provide the Applicant with
the opportunity to challenge them. To accept the Applicant’s submission would
be to place form over substance (Decision, CTR at pp. 35-36; Translated CAIPS
Notes).
[30]
Although
the Officer did not state the specific grounds under subsection 34(1) of the
IRPA in his Decision, he did state the specific grounds in his Reasons in the
CAPIS Notes. The specific grounds are paragraph 34(1)(f) of the IRPA,
for being a member of an organization that there are reasonable grounds to
believe, engages, has engaged or will engage in the acts referred to in
paragraph 34(1)(b) of the IRPA (instigating the subversion by force of a
government), or paragraph 34(1)(c) of the IRPA (terrorism) (Decision,
CTR at pp. 35-36; Translation CAIPS Notes).
[31]
The
Officer’s Decision and Reasons are intelligible and provide the Applicant with
the opportunity to challenge them. In fact, the Applicant received the
translated CAIPS Notes and Reasons in January 29, 2010, which was 30 days
before he filed his Memorandum of Argument. To accept the Applicant’s
submission would be to place form over substance, negating the very essence of
justice by using a procedural issue to set aside findings based on evidence
before the Officer (Decision, CTR at pp. 35-36; Translated CAIPS Notes).
[32]
There
is no evidence or merit to the Applicant’s argument that the Officer based his
decision only on the evidence collected from the interview and on his knowledge
of Sri
Lanka. It
is trite law that the Officer is presumed to have considered all of the
evidence and does not have to mention all of the evidence that he considered.
The Officer’s Decision and Reasons are reasonable and are based on the evidence
(Decision, CTR at pp. 35-36; Translated CAIPS Notes).
[33]
Contrary
to the Applicant’s submission that he was denied natural justice, the Applicant
received Notice on September 28, 2009, that he was required to attend an
interview at the Canadian Embassy in Paris (on October 14, 2009) to assess
his application and to determine whether he meets the criteria for admission to
Canada (Letter dated September 28, 2009, CTR at pp. 37-38).
[34]
Even
if the Applicant was denied natural justice, which is strongly denied, the
Applicant has waived his right to complain about this matter, as he did not
object to this matter at the interview or beforehand (Mohammadian v. Canada
(Minister of Citizenship and Immigration), 2001 FCA 191, [2001] 4 F.C. 85).
[35]
With
respect to the doctrine of legitimate expectations, there is no evidence that a
representation was made by the Respondent that the Applicant was admissible to Canada. Although the Applicant
alleges that he “was aware that the Embassy had, sometime in early 2009 made a
positive decision finding him to be admissible to Canada”, there are no
documents from the Embassy or elsewhere advising the Applicant of this matter. Even
if there was a representation, which is denied, the representation would have
had to be clear and unambiguous for the doctrine to apply (Monsanto Canada
Inc. v. Superintendent of Financial Services, [2002] O.J. No. 4407, 62 O.R.
(3d) 305 (Ont.C.A.) at para. 83).
[36]
Moreover,
the doctrine of legitimate expectations does not apply in the case at bar, the
Applicant is seeking the substantive right to be found admissible and
issued a visa; however, the jurisprudence is clear: the doctrine of legitimate
expectations does not create substantive rights. The doctrine of
legitimate expectations is merely a part of the rules of procedural fairness.
Where the doctrine is applicable, it can create a right to make representations
or to be consulted, which occurred in the case at bar.
VIII. Conclusion
[37]
For
all of the above reasons, the application for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application for judicial review be dismissed;
2.
No
serious question of general importance be certified
“Michel M.J. Shore”
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