Date: 20091029
Docket: IMM-4096-08
Citation: 2009
FC 1112
Ottawa, Ontario, October 29, 2009
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
AIYAMPILLAI NADARASA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial
review of a decision made by a visa officer at the Canadian High Commission in Colombo, Sri Lanka, refusing the
applicant’s application for permanent residence under the family class. The
applicant was found inadmissible as a result of his misrepresentations, and
also for security reasons.
[2]
Prior to the hearing of the judicial
review application, the Minister of Citizenship and Immigration (the
“Minister”) applied under s. 87 of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (the “IRPA”) for the non-disclosure of
information considered and relied upon by the Officer in making his
determination. This information was redacted from the Certified Tribunal
Record. The ex parte and in camera hearing of that motion was
held on May 28, 2009. Subsequently, counsel for the applicant and for the
Minister were invited to make submissions publicly, by way of teleconference,
which took place on June 1, 2009. I then ordered that the motion of the respondent
be granted and that the information redacted from the Certified Tribunal Record
not be disclosed to the applicant and the public. The following reasons deal
with both the Minister’s motion for non-disclosure and with the merits of Mr.
Nadarasa’s application for judicial review.
BACKGROUND
[3]
The applicant is a 72
year old citizen of Sri
Lanka. In January 2005, the
oldest of his two sons, Vimalan, now a Canadian citizen, filed an application
to sponsor him to Canada as a member of the Family Class. Following
the tsunami in South-East Asia, his son’s application to sponsor him was
fast-tracked. After his son was determined to be eligible to sponsor him on
January 14, 2005, the application was forwarded to the Canadian High Commission
in Colombo in July 2005.
[4]
In February 2007, the
applicant and his wife attended a first interview at the High Commission. There
is no record of that interview, but according to the affidavit filed by the
applicant in support of his application for judicial review, he was questioned
about his education, employment, and the activities of the Tamil Tigers
(“LTTE”) in the districts where he was living and working throughout the course
of his career. He apparently denied, personally and on behalf of his family,
any involvement in the LTTE.
[5]
Almost one year
later, he was contacted and requested to attend another interview on February
5, 2008. As was the case in the first interview, he was questioned about his
employment history with the Sri Lankan government. According to the CAIPS notes,
the Officer mentioned to the applicant that he found it hard to believe that
the LTTE would not interfere with his duties, even when he was issuing permits
to allow persons without land to acquire and cultivate pieces of land, since
this was the territory under their control. The applicant simply retorted that
his rulings were accepted, and that the LTTE must have acquired lands from
other people by using other methods. The Officer similarly challenged the
applicant’s affirmation that he was never approached for money by the LTTE when
he was an administrator responsible for the payment of staff salaries; the
applicant’s explanation was that the LTTE collect tax mostly from landlords and
those engaged in business.
[6]
Following that
portion of the examination, the applicant was then asked questions about the
difficulties his children faced from the LTTE. The applicant stated that the
police captured his youngest son, Vickraman, and detained him for three years
because he was suspected of being a LTTE member. The applicant claimed that his
son had no interaction with the LTTE, and that his son never cleared forests,
filled sandbags or took photographs for the LTTE. The applicant also claimed
that he was aware of his son’s activities at all times and that his son never
went out. The Officer mentioned to him that his version of events “conflicts greatly
with the statements Vickraman made in Canada”.
[7]
The Officer then
asked the applicant whether he and his family had ever been displaced. He
replied that from 1996 to 2002, they were displaced from Kilinochchi to
Akarayam. The applicant was asked why this period of residence was not
mentioned in his application. The applicant replied that he only put his
mailing address, as he only considered this address to be important. The
Officer pointed out that the application refers to addresses where he lived.
[8]
The Officer asked the
applicant what happened to his home during his displacement. He stated that he
had rebuilt his home in 2002, and would go back to check on it once a month. He
did not move back to his house and rented it to someone he knew. The Officer
asked about the person who rented his house. He said a teacher rented it,
whereas in his previous interview, he had said that the LTTE had taken over his
house. Again, there was some confusion in this respect, and the name of the
renter provided by the applicant was different from the name he provided in the
last interview.
[9]
Again, the applicant
was asked which of his sons worked for the LTTE. The applicant answered
Vickmaran, but then quickly checked himself and said his sons had never worked
for the LTTE, that the police only suspected his youngest son of working for
the LTTE. The Officer pointed out that this was a problem because Vickmaran
clearly stated to Canadian officials that he did work for the LTTE.
[10]
The Officer told the
applicant that he found it impossible that he would have been unaware that Vickmaran
was working three to four times a week for the LTTE. The applicant was
distressed by this, and said that he may not have known what his sons were
doing as he was working all day. Yet, the Officer pointed out to the applicant
that he had previously claimed to know for sure what his sons were doing.
[11]
The Officer
subsequently told the applicant that he believed he was not being truthful
about this and several other things related to his own work and interactions
with the LTTE, and that he was misrepresenting himself with respect to
knowledge of his youngest son’s activities and with respect to his own interactions
with the LTTE. He told him that his misrepresentations could have resulted in
an error in the administration of the Act, and that the applicant was therefore
inadmissible under s. 40 of the PRRA. He also stated that he had serious
concerns that there may be undisclosed information which could render the
applicant inadmissible under section 34 of the IRPA. All that the
applicant said was that he was disappointed by the decision, but he offered no
other response to the Officer’s concerns.
[12]
According to a redacted
Canadian Security Intelligence Service (“CSIS”) report on the applicant, which
the Officer had presumably seen before the second interview, Vickraman was
interviewed by CSIS in Canada and he clearly avowed that he worked for
the LTTE between 1992 and 1996 while he lived with his father. He helped the
LTTE three or four times a week by digging ditches, filling sandbags and taking
photos. He also worked as a sentinel for the LTTE in Kilnochchi. He affirmed
that he was convinced that the use of violence was necessary to attain the
objectives of the LTTE. According to an undated note in the Certified Tribunal
Record, this youngest son of the applicant was facing a deportation order
following a negative Pre-Removal Risk Assessment.
THE IMPUGNED DECISION
[13]
In his
refusal letter the Officer apprised the applicant of his assessment that he did
not qualify as a member of the Family Class, essentially on the basis of his
misrepresentations. The most relevant part of that letter reads as follows:
At your interview on the 5th
of February 2008, you misrepresented or withheld the following material facts:
- Details about family
interaction with the LTTE
- Places of residence
- Renters of your properties
The misrepresentation or
withholding of these material facts induced or could have induced errors in the
administration of the Act, as by misrepresenting personal and family background
information, you were denying me a line of questioning regarding your
admissibility, which could have resulted in me reaching an incorrect
admissibility decision.
As a result, you are
inadmissible to Canada for a period of two years
from the date of this letter. In addition, as a result of your multiple
misrepresentations, I am not satisfied you are also not admissible from a
security perspective.
ISSUES
[14]
The
applicant raises essentially two questions in his application for judicial
review. First, he submits that the Visa Officer breached a principle of natural
justice in basing his decision on extrinsic evidence to which he had no ability
to respond. Second, he argues that the reasons for the decision are inadequate,
and couched in vague or general terms.
[15]
Both of
these issues must be assessed against the standard of correctness. Issues of
procedural fairness must be reviewed as issues of law, and no deference is due
on these questions. As the Federal Court of Appeal stated in Sketchley v. Canada (A.G.) 2005 FCA 404, at para. 53, “[t]he
decision-maker has either complied with the content of the duty of fairness
appropriate for the particular circumstances, or has breached this duty”.
[16]
But first, I shall deal with the motion brought by the respondent
pursuant to s. 87 of the IRPA.
ANALYSIS
A) The motion for
non-disclosure
[17]
The state
has a considerable interest in protecting national security and the security of
its intelligence services. The disclosure of confidential information could
have a detrimental effect on the ability of investigative agencies to fulfil
their mandates in relation to Canada’s national security: see Almrei
v. Canada (Minister of Citizenship and
Immigration),
2004 FC 420, at para. 58; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at p. 744-746.
Indeed, this Court recognized in Henrie v. Canada (S.I.R.C.), [1989]
2 F.C. 229, that information related to national security ought not to be
disclosed is an important exception to the principle that the court process
should be open and public.
[18]
The
Supreme Court of Canada and other courts have repeatedly recognized the
importance of the state’s interest in conducting national security
investigations and that the societal interest in national security can limit
the disclosure of materials to individuals affected by the non-disclosure. In Ruby
v. Canada (Solicitor General), [2002] 4 S.C.R. 3, the Court encouraged a
deferential standard of judicial review if the Minister is able to demonstrate
that disclosure reasonably supports a finding of danger to Canada’s security.
[19]
The
rationale underlying the need to protect national security information has been
considered by this Court in the context of immigration cases: see, for ex., Sogi
v. Canada (Minister of Citizenship and Immigration), 2003 FC 1429; affirmed
2004 FCA 212; Gariev v. Canada (Minister of Citizenship and
Immigration) 2004 FC 531; Alemu v. Canada (Minister of
Citizenship and Immigration) 2004 FC 997; Segasayo v. Canada
(Minister of Public Security and Emergency Preparedness), 2007 FC 372; Malkine
v. Canada (Minister of Citizenship and Immigration), 2009 FC 496; Rajadurai
v. Canada (Minister of Citizenship and Immigration), 2009 FC 119.
[20]
In the present case, the Minister claims that
the disclosure of the redacted portions of the Certified Tribunal Record (the
“CTR”) would be injurious to national security or endanger the safety of certain
individuals. The applicant, on the other hand, contends that the information
redacted from the Record impedes his ability to know and comprehend the case
that he has to meet.
[21]
Having carefully
reviewed the information redacted from the CTR and contained in the secret
affidavit and the attachments thereto, for which the respondent requests an
order for non-disclosure, I have concluded that it falls squarely within the
net of information which, if released, would be injurious to the national
security of Canada and endanger the safety of persons and therefore ought not
to be disclosed to the public or the applicant and his counsel. In the specific
circumstances of this case, the applicant’s right to know does not
counterbalance the important national security interest relied upon by the
respondent.
[22]
First of all, as was
the case in many of the cases referred to at paragraph 19, the applicant is not
detained and his liberty interest is not at stake, contrary to the situation of
persons subject to a security certificate. Indeed, the applicant does not even
reside in Canada, and he cannot therefore claim that any
of the rights proclaimed in the Canadian Charter of Rights and Freedoms
have been infringed by the non-disclosure of some information.
[23]
Moreover, the
redacted portion of the CTR is minimal, and I am satisfied that it does not
affect his ability to make his case. The decision was not made on the basis of
information not communicated to the applicant, and the crux of the Visa
Officer’s concerns was explicitly conveyed to the applicant. As he acknowledges
in his affidavit, he was made aware more than once that his and his family’s
interactions with the LTTE were at the root of the Visa Officer’s suspicions. He
was told that his story did not match his youngest son’s version. As a result,
I am unable to find that the redactions of the CTR sought by the respondent
prejudiced in any significant way the capacity of the applicant to make
representations and to participate fully and meaningfully in his application
for judicial review of the challenged decision.
B) The use of extrinsic
evidence
[24]
The applicant submits
that the Visa Officer breached a principle of natural justice because he based
his decision on extrinsic evidence to which he had no ability to respond. More
particularly, the applicant argues that the Officer never presented to him the
evidence upon which he relied to intimate that the applicant’s youngest son had
admitted working for the LTTE. As a result, he could not address this apparent
contradiction directly and was left expressing his distress when told about his
son’s activities by the Officer.
[25]
But contrary to the
applicant’s submission, the jurisprudence of this Court is not to the effect
that an applicant must actually be given the document relied upon by the
decision-maker, but that the information contained in that document be
disclosed to the applicant so that he or she has an opportunity to know and
respond to the case against him or her. The following quote from Justice
Rothstein (then from this Court) in Dasent v. Canada (Minister of Citizenship and
Immigration), [1995] 1 F.C.
720, at para. 23, is illustrative of that principle:
The relevant point as I see it is whether
the applicant had knowledge of the information so that he or she had the
opportunity to correct prejudicial misunderstandings or misstatements. The
source of the information is not of itself a differentiating matter as long as
it is not known to the applicant. The question is whether the applicant had the
opportunity of dealing with the evidence. This is what the long-established
authorities indicate the rules of procedural fairness require. In the well
known words of Lord Loreburn L.C. in Board of Education v. Rice, [1911]
A.C.179 (H.L.) at page 182:
They can obtain information in any way
they think best, always giving a fair opportunity to those who are parties in
the controversy for correcting or contradicting any relevant statement
prejudicial to their view.
See also: Muliadi v. Canada
(Minister of Employment and Immigration), [1986] 2 F.C.
205 (F.C.A.); Chen v. Canada (Minister of Citizenship and
Immigration), 2007 FC 41; Knizeva v. Canada (Minister of Citizenship and
Immigration), 2006 FC
268.
[26]
It is worth noting
that Citizenship and Immigration Canada Overseas Processing Manual states that
applicants must be provided with an opportunity to disabuse an officer of any
concerns. The Procedures chapter of that Manual (OP 1) states the following:
Applicants must be allowed to
bring evidence and to make an argument. This includes being provided with
adequate translation/interpretation. Officers must consider all the evidence and
must record (in CAIPS) what they based their assessment on, and why they did
not consider some of the evidence. Officers must meet this requirement in all
cases, but to different degrees. The opportunity should be proportionate to the
complexity of the application. With visitor visa applicants, officers should
express their own concerns and record the applicant’s response in the case notes.
The applicant must be made aware of the “case to be met,” i.e., the information
known by the officer must be made available to the applicant prior to the
decision being made. For example, if an officer relies on extrinsic evidence
(i.e., evidence received from sources other than the applicant), they must give
the applicant an opportunity to respond to such evidence. Permanent residence applicants
and some visitors may need extra time to address any concerns. The record of
the exchange must be more detailed in such cases. When the concern is medical
in nature, officers must follow the procedures outlined in OP 15. Officers must
also follow specific instructions to assess the occupational experience of
skilled workers (see OP 6). Officers should give factual and objective reasons for their decision.
[27]
In the case at bar,
the applicant stated at his interview with the Officer that his youngest son
had never interacted in any way with the LTTE. In response, the Officer
confronted the applicant with statements made by Vickraman to Canadian
authorities to the effect that he had worked for the LTTE while in Sri Lanka. It is clear from the CAIPS notes that the Officer gave the
applicant an opportunity to respond, and the applicant does not dispute this. I
fail to understand what more the applicant could have said had he been given
the statements made by his son in writing.
[28]
In light of the
above, therefore, I find that the Officer clearly did not breach the rules of
procedural fairness by failing to disclose extrinsic information to the
applicant for comment. The applicant was confronted with the information and
failed to provide a reasonable explanation for the contradictions.
C) The adequacy of the
reasons
[29]
The test of adequacy
has been well articulated by the Federal Court of Appeal in Via Rail Canada
Inc. v. Lemonde, [2001] 2
C.F. 25 in the following
terms:
[21] The duty to give reasons is only
fulfilled if the reasons provided are adequate. What constitutes adequate
reasons is a matter to be determined in light of the particular circumstances
of each case. However, as a general rule, adequate reasons are those that serve
the functions for which the duty to provide them was imposed. In the words of
my learned colleague Evans J.A., “[a]ny attempt to formulate a standard of adequacy
that must be met before a tribunal can be said to have discharged its duty to
give reasons must ultimately reflect the purposes served by a duty to give
reasons” [J.M. Evans et al, Administrative Law (4th ed.),
Toronto: Emond Montgomery, 1995, at p. 507].
[22] The obligation to provide adequate
reasons is not satisfied by merely reciting the submissions and evidence of the
parties and stating a conclusion. Rather, the decision-maker must set out its
findings of fact and the principal evidence upon which those findings were
based. The reasons must address the major points in issue. The reasoning
process followed by the decision-maker must be set out and must reflect
consideration of the main relevant factors.
[30]
The applicant’s
application for permanent residence was denied due to his inadmissibility for
misrepresentation under paragraph 40(1)(a) of IRPA and due to his
failure to provide sufficient credible and trustworthy information to satisfy the
Officer that the applicant was not inadmissible pursuant to subsection 11(1) of
IRPA. In support of his findings, the Officer noted several
implausibilities in the applicant’s statements, contradictions between his
previous statements and those at the most recent interview, and discrepancies
between his statements and those of his youngest son particularly relating to his
son’s involvement with the LTTE.
[31]
The contradictions,
implausibilities and discrepancies in the applicant’s evidence are set out in a
detailed and comprehensive manner in the CAIPS notes. These notes fully support
the conclusion that the applicant is inadmissible for misrepresentation under
paragraph 40(1)(a) of IRPA and that he failed to provide
sufficient credible and trustworthy information to satisfy the Officer that he
was not inadmissible pursuant to subsection 11(1) of IRPA. The reasons
therefore meet the test of adequacy as they inform the applicant why his
application was denied and they do not prejudice his ability to seek judicial
review. As my colleague Justice Shore stated in Za’rour v. Canada (Minister of Citizenship and
Immigration), 2007 F.C.
1281:
[19] The reasons inform Mr. Za'rour
why his request was denied and has not prejudiced his ability to seek judicial
review. It is well-established that reasons serve the two main purposes of
letting the parties know that the issues have been considered and of allowing
the parties to effectuate any right of appeal or judicial review. (Via Rail
Canada Inc. v. Lemonde (C.A.), [2000] F.C.J. No. 1685 (QL); Townsend v.
Canada (Minister of Citizenship and Immigration), 2003 FCT 371, [2003]
F.C.J. No. 516 (QL); Fabian v. Canada (Minister of Citizenship and
Immigration), 2003 FC 1527, [2003] F.C.J. No. 1951 (QL).)
[20] Moreover, the Supreme Court of Canada
held in R. v. Sheppard, [2002] 1 S.C.R. 869, paragraphs 33, 46 and 53,
that the inadequacy of reasons is not a free-standing right of appeal, in that,
it automatically constitutes a reviewable error. The Court held that
"requirement of reasons, in whatever context it is raised, should be given
a functional and purposeful approach." Where the record as a whole
indicates the basis upon which a trier of fact came to his or her decision, a
party seeking to overturn the decision on the basis of the inadequacy of
reasons, must show that the deficiency in reasons has occasioned prejudice to
the exercise of a legal right to appeal. (Reference is also made to R. v.
Kendall (C.A.), [2005] O.J. No. 2457.)
[32]
Moreover, in spite of
the applicant’s assertions to the contrary, the Officer’s reasons are clear and
concise and are in no way couched in vague or general terms. The Officer
clearly states that the applicant is inadmissible for misrepresentation under
paragraph 40(1)(a) of IRPA and that he failed to provide
sufficient credible and trustworthy information that could satisfy the Officer that
the applicant was not inadmissible pursuant to subsection 11(1) of IRPA.
More specifically, given the numerous and serious misrepresentations “with
respect to knowledge of son’s activities, and with respect to his own interactions
with LTTE”, the inadmissibility ground of concern is clearly that of security (CAIPS
Notes, Application Record, p. 16).
[33]
For the above
reasons, I am therefore of the view that this application for judicial review
ought to be dismissed. No questions of general importance were proposed for
certification, and none arise on the facts of this case.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
the application for judicial review is dismissed. No question is certified.
"Yves
de Montigny"
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