Date: 20101004
Docket: IMM-5902-09
Citation: 2010 FC 985
Toronto, Ontario, October 4,
2010
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
SUPPIAH THARMAVARATHAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Tharmavarathan (the Applicant), a Tamil man from Sri Lanka, applied for
judicial review of a decision by an Immigration Officer refusing his
application for permanent residence in Canada. The Officer refused the
application on the basis that the Applicant was excluded under subsection 34(1)
of the Immigration and Refugee Protection Act, S.C.2001, c. 27 (IRPA),
as he believed that the Applicant had been a supporter or a member of a
terrorist organization, the Liberation Tigers of Tamil Eelam (LTTE).
[2]
The
Respondent relies in good measure on the CAIPS notes for its assertion that the
Officer had a basis for a reasonable belief the Applicant had been a member of
LTTE. However, the Respondent did not include an affidavit of the Officer
attesting to the truth of the content of the CAIPS notes.
[3]
I grant
this judicial review because the CAIPS notes alone cannot be relied upon for
the truth of their contents, and the evidence in the Applicant’s mother’s
personal information form (PIF) was insufficient for the Officer to have
reasonable grounds for believing the Applicant was a member of the LTTE.
Background
[4]
The
Applicant is a citizen of Sri
Lanka who
identifies as Tamil. His mother successfully immigrated to Canada and applied to sponsor the
Applicant and his other two siblings.
[5]
The
Officer conducted several interviews with the Applicant. The first one was held
on June 16, 2006 to determine whether the Applicant fell within the dependent
child category. A second interview was held on July 19, 2006. A third was held
on June 22, 2009 where the Officer informed the Applicant that there were
concerns about his background, based on some of the statements made by the
Applicant’s mother in her PIF.
Decision Under Review
[6]
On
September 23, 2009, the Officer rejected the Applicant’s application for a
permanent resident visa on the basis that there were reasonable grounds to
believe that the Applicant was inadmissible on grounds of security under
subsection 34(1) of IRPA.
[7]
The
Officer noted inconsistencies in what the Applicant had said during the several
interviews, in particular whether the Applicant had ever worked for the LTTE:
I asked you to explain why you had worked
for the LTTE gathering firewood, cooking for them, and doing computer work for
them. You now denied ever doing these things. It was also noted that in the
interim, your sister had been interviewed and refused. This appears to have
made you reconsider what you initially said. You admitted that your sister had
worked for them in a trusted position. Your mother had claimed the entire
family has worked for the LTTE in one form or another. If you did not work for
the LTTE under duress or otherwise you clearly appear to have associated with
LTTE supporters as your family have clearly worked for them and often in
positions of trust.
[8]
The
Officer also noted that the Applicant seemed to blame his father’s death on the
Sri Lankan Army (SLA), “despite the fact that the supposed attack on your
father does not match up with the time of your father’s death or the nature of
his death. This appears to betray a sympathy for the LTTE and a hatred of the SLA.”
[9]
The
Officer found that the Applicant’s complete denial of what he had previously
said diminished the Applicant’s credibility and supported the belief that the
Applicant was a supporter or even a member of the LTTE. As such, the Officer
believed the Applicant to be inadmissible and refused his application.
[10]
In
deciding that the Applicant was completely lacking in credibility, the Officer
relied extensively on the interviews with the Applicant as set out in the CAIPS
notes. The Officer did not provide an affidavit setting out the events leading
to the recording of the CAIPS notes or otherwise verifying the statements of
fact contained therein.
Legislation
[11]
The
relevant provisions of the Immigration and Refugee Protection Act, S.C.2001,
c. 27 (IRPA) are:
|
34(1)
A permanent resident or a foreign national is inadmissible on security
grounds for
(a)
engaging in an act of espionage or an act of subversion against a democratic
government, institution or process as they are understood in Canada;
(b)
engaging in or instigating the subversion by force of any government;
(c)
engaging in terrorism;
(d)
being a danger to the security of Canada;
(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).
|
34.
(1) Emportent interdiction de territoire pour raison de sécurité les faits
suivants :
a)
être l’auteur d’actes d’espionnage ou se livrer à la subversion contre toute
institution démocratique, au sens où cette expression s’entend au Canada;
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).
|
Standard
of Review
[12]
Issues of
membership in a terrorist organization are mixed questions of fact and law: Kozonguizi
v. Canada (Minister of Citizenship and Immigration), 2010 FC 308, Chwach
v. Canada (Minister of Citizenship and
Immigration),
2009 FC 1036 at para.13.
[13]
The
Respondent submits that a high level of deference is due to the Officer’s
decision because of the national security aspect of section 32. He submits that
the decision must be “obviously unreasonable” to be reviewable, a term he takes
from Moiseev v. Canada (Minister of Citizenship and
Immigration),
2008 FC 88 (Moiseev).
[14]
I do not
believe Moiseev introduced a new standard of review. A decision that is
unjustifiable, opaque and unintelligible is obviously unreasonable and the
Supreme Court’s direction on the meaning of reasonableness in Khosa v. Canada (Minister of Citizenship and
Immigration),
2009 SCC 12 at para. 59 is more than sufficient for the purpose of review.
Issues
[15]
The
principal issue is whether there is evidence of the fact of membership upon
which the Officer could reasonably conclude the Applicant was a member of the
LTTE. A related and determinative issue in this
proceeding relates to the evidentiary status of the CAIPS notes. Thus, the
issues are:
a.
What
status do the CAIPS notes have as evidence?
b.
Did the
Officer err in finding that the Applicant was a member in a terrorist
organization?
Analysis
What
status do the CAIPS notes have as evidence?
[16]
Despite
relying extensively on the CAIPS notes in their memoranda of argument, the
Respondent had not filed an affidavit to support its assertions based on the
CAIPS notes.
[17]
CAIPS
notes are those entered by an immigration officer in a computer record and are
no different from notes an officer might make in handwritten form. The Federal
Court of Appeal considered the evidentiary status of a visa officer’s memoranda
in Wang v. Canada (Minister of Citizenship and
Immigration),
(1991) 12 Imm. L.R. (2d) 178 at 183 where it stated:
The second matter is fundamental. It is,
in substance, an appeal against the order excluding the visa officer's
memorandum from evidence. The Respondent argues that, because of the
inconvenience of arranging depositions by visa officers who, by definition, are
outside Canada, the Court ought to accept
their notes and memoranda as proof of the truth of their contents even though
no affidavit averring to that truth is filed. In this, as in some of the other
appeals dealt with serially, the visa officer concerned produced notes made
during the interview and/or a memorandum made considerably later setting forth
his recollection. These were produced as exhibits to the affidavit of an
immigration officer in Canada who had reviewed the
pertinent file and selected material considered relevant to the proceeding in
Court.
I see no justification for deviating from
evidentiary norms in these circumstances. No legal basis for acceding to the
Respondent's argument has been demonstrated and, in my opinion, it is devoid of
a practical basis. In the first place, unless the error said to vitiate the
decision appears on the face of the record, the intended immigrant also, by
definition, outside Canada must depose to his or her
evidence and, unlike the visa officer, may not be conveniently located to do
so. There is no justice in according one witness to the proceeding an
opportunity to present evidence in a manner that precludes it being tested by
cross-examination. In the second place, the suggestion of administrative
inconvenience seems flimsily based. Given that visa officers normally inhabit
premises in which may be found other functionaries before whom affidavits
acceptable in Canadian courts may be sworn, there seems no practical reason why
his or her version of the truth cannot, with equal convenience, be produced in
affidavit as in memorandum form. Finally, should a disappointed applicant wish
to inconvenience a visa officer by a cross-examination there is the sanction
that the right will have to be exercised, at least initially, at some
considerable expense to the applicant.
[18]
The
Applicant submits that the alleged facts pertaining to the Applicant’s
responses in interviews recorded in the CAIPS notes are not in evidence. He
refers to the Court’s discussion on the topic of the admissibility of CAIPS
notes without an affidavit in Chou v. Canada (Minister of Citizenship and
Immigration),
[2000] 190 F.T.R 78, 3 Imm L.R. (3d) 212. (Chou). In Chou.
13, Justice Reed found at para:
I accept, then, that the CAIPS notes
should be under review. However, the underlying facts on which they rely must
be independently proven. In the absence of a visa officer’s affidavit attesting
to the truth of what he or admitted as part of the record, that is, as reasons
for the decision she recorded as having been said at the interview, the notes
have no status as evidence of such.
[19]
I find the
CAIPS notes may not be relied on for the truth of their contents since they are
not introduced by an affidavit from the Officer. While they may show the Court
how the Officer reasoned through his decision, they are not part of the factual
evidentiary record.
Did
the Officer err in finding that the Applicant was a member in a terrorist
organization?
[20]
With
respect to the proper interpretation of the term “member”, I found in Kozonguizi
that the term should be given a broad and unrestricted meaning. This conclusion
followed the jurisprudence in Poshteh v. Canada (Minister of Citizenship and
Immigration),
2005 FCA 85 and Al Yamani v. Canada (Minister of Citizenship and Immigration), 2006 FC 1457. This is to
say that the person at issue need not be a card-carrying member of a terrorist
or subversive group, or even commit violent acts on their behalf to fall within
the ambit of this section of IRPA.
[21]
The
standard of proof on the question of membership is “reasonable grounds to
believe” which is described as less than the civil standard of a balance of
probabilities and more than mere suspicion: Mugasera v. Canada (Minister of Citizenship and
Immigration),
2005 SCC 40 at para. 114 (Mugasera).
[22]
The
Officer’s reasoning itself rests in the main on the inconsistencies in the
Applicant’s statements as contained in the CAIPS notes. Had the Respondent
provided me with an affidavit introducing the CAIPS notes, I might have been
able to continue my analysis of the Officer’s findings. But, under the
circumstances, all I have before me are assertions made in reliance on the
CAIPS notes which are allegations of fact but not evidence.
[23]
Further,
the alleged facts tipping the scale against the Applicant, namely the
allegation of his skirting around the questions about the LTTE, are solely
contained in the CAIPS notes which are not admissible evidence of the facts
alleged.
[24]
In this
case, the Officer became aware of the possibility that the Applicant may have
been involved with the LTTE based on the information in his mother’s PIF. This
included the mother’s assertion that everyone in the family worked for the LTTE
because they had to.
[25]
The
following are the excerpts from the mother’s PIF which could be construed to
infer there was some relationship between the Applicant and the LTTE:
… The LTTE forced all the people in the
area to help them. My husband was forced to do heavy labour. I was made to do
cooking and cleaning. The LTTE also demanded 50 parcels of food every week. We
were also forced to give money. Over time I had to give 4 sovereigns and a
considerable amount of money. …
In 1995, LTTE demanded we allow at least
one of our children to join them. We paid RS 150,000 to save our children. We
promised to consider their demand once our children completed their studies….
The army considered Mathagal to be an
LTTE stronghold and the people of the area to be strong LTTE supporters. My
children were severely questioned and accused of helping the LTTE….
In 2000 my eldest daughter entered
University. The army were [sic] suspicious of LTTE activity and came to
our house several times to question. Due to this situation my daughter went to
live at the University Dorms….
In June 2002 the Tigers contacted my son
and I and told us we had to work in their office. They wanted my son to do
work with their computers (he was studying computers) and they wanted me to do
general help. We did not want to work for the LTTE.
[26]
These
paragraphs do not tell us if the Applicant actually worked for the LTTE but
there certainly is enough to entertain a suspicion the Applicant may have
worked for the LTTE.
[27]
All I may
consider is the Officer’s reasoning with respect to the mother’s PIF. The only
conclusion I can reach is that the mother’s PIF was certainly enough to create
a suspicion of membership, but not enough to constitute reasonable grounds for
believing the Applicant was a member of the LTTE.
[28]
The
evidence in the mother’s PIF does not provide a sufficient basis for the
Officer to reasonably come to the conclusion that the applicant voluntarily
worked for the LTTE or even at all. The Officer’s inferences may not be
reasonably drawn from the statements in the Applicant’s mother’s PIF. A finding
of membership in the LTTE is not supported if one considers the Applicant’s
involvement, the length of time he was involved, the degree of commitment to
the organization and its objectives from the facts set out in the mother’s PIF,
which shows the Applicant to have been involved at the most, if at all, in
doing minor tasks under compulsion for the LTTE.
[29]
In result,
I find on the evidence, the Officer’s decision to refuse the application for
permanent residence status on the basis that the Applicant was excluded under
subsection 34(1) of the Immigration and Refugee Protection Act, S.C.2001,
c. 27 (IRPA) because the Applicant had been a supporter or a member of a
terrorist organization, the LTTE, to be unreasonable.
Conclusion
[30]
I grant
the application for judicial review.
[31]
The
Parties have not proposed a question of general importance and I certify none.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
The
application for judicial review is granted.
2.
No
question of general importance is certified.
“Leonard
S. Mandamin”
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