Date: 20090922
Docket: IMM-2088-08
Citation: 2009 FC 948
Vancouver, British Columbia, September 22, 2009
PRESENT:
The Honourable Mr. Justice de Montigny
BETWEEN:
VAHAKN VASKEN
KARAKACHIAN
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review under section 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the IRPA or the Act), of a
decision by immigration officer Andrée Blouin, dated February 29, 2008, denying
the applicant’s application for permanent residence.
[2]
The fundamental issue
here is whether the officer could reasonably conclude that the applicant is
inadmissible on the ground that he is a member of the Armenian Revolutionary
Federation and thereby contravenes paragraph 34(1)(f) of the Act. Having
studied the records filed by the two parties as well as their written and oral
submissions, I have come to the conclusion that this application for judicial
review must be allowed.
FACTS
[3]
The applicant is a
citizen of Lebanon by birth. He also obtained Australian
citizenship in 1994 and United
States citizenship in 2005.
He has been a
temporary resident of Canada since February 2000, and he
held a work permit that expired on January 12, 2008. He was managing editor of
a community newspaper that was named best ethnic publication in Canada by the Department of Heritage
in September 2002.
[4]
In March 2002,
the applicant and his wife initiated procedures to obtain permanent residence
in Canada. In June of that same year,
they received their Quebec selection certificate. Their
application for permanent residence in Canada was received by the Consulate General of
Canada in Buffalo on or about September 3, 2002.
[5]
The
applicant was first interviewed at the Consulate General on or about October 8,
2003. Despite
repeated requests by the applicant’s representative for a decision on his
application, it was not until May 25, 2007 that the Consulate General finally
sent the applicant a letter of refusal based on paragraph 34(1)(f) of
the Act.
[6]
On
November 22, 2007, this Court granted the applicant leave to apply for judicial
review of that initial decision. Consequently, the applicant was asked to
appear at the Consulate General of Canada in Buffalo for
a second interview, which was held on January 9, 2008.
[7]
On
February 29, 2008, immigration officer Andrée Blouin sent the applicant a
letter in which she informed him that his application for permanent residence
(and that of his wife) was denied.
IMPUGNED
DECISION
[8]
The immigration
officer’s letter is relatively terse and essentially informs Mr. Karakachian
that his application for permanent residence is denied on the ground that there
are reasonable grounds to believe that he is a member of an organization referred
to in paragraph 34(1)(f), that is, an organization that “… engages, has
engaged or will engage in acts” of terrorism. The explanations supporting that
conclusion are limited to the following single paragraph:
Specifically,
you are a member of the inadmissible class described in subsection
34(1)f). I have reached this conclusion because during your interview on
January 9, 2008, your decision to not answer, question or refute our concerns
about the violent history of the Armenian Revolutionary Federation (ARF), an
organization for which you have confirmed being a supporter for many years and
a member for the past 2 years, lead me to conclude that you were not unaware of
the past use of violence and terrorism by the ARF to reach its political aims.
[9]
In the
notes she entered in the CAIPS system on the same day she sent the letter of
refusal to the applicant (a month and a half after the interview), the
immigration officer expands somewhat on her reasons for denying the applicant’s
application for permanent residence. She first explains the reason for the
interview, which is that the Court referred the applicant’s case to another immigration
officer on the ground that he had not been given the opportunity to respond to
the allegations that he had supported and even been a member of the Armenian
Revolutionary Federation (ARF). She adds:
Explained
that based on information on our file the ARF has been involved in the past in
violent actions against government and civilians in order to reach their
political goals. I had documents printed from the internet on the desk, and
applicant did not ask to see the documentation nor tried to refute my
preamble. Coming from open sources, I would have shown them to him if he had
asked for them. He did not.
[10]
Asked to respond to
the officer’s concerns, the applicant replied by explaining the social
involvement of the ARF and by pointing out to the officer that the ARF was now
part of the government in Armenia. He added that he had been a member of
the ARF for only the past two years, although he had been a sympathizer before
then.
[11]
Clearly not satisfied
with that reply, the officer repeated her concerns regarding the ARF. Here is
what she writes in her notes on the subject:
I
repeated again that we had concerns about the violent activities of the
ARF. Applicant was very careful in his answer, saying that he has never
read that the party was involved in terrorism. He was very careful, and the
formula “having never read” did not come out fluidly.
Asked
again about his response to our concerns of the ARF having used violent actions
to reach their goals, applicant started with the historic background of the
ARF: created in 1890, working towards a better life for Armenians and Armenia, having the genocide recognized; lobbying, etc. Applicant
mentioned that there was a terrorist group named Assala, but he mentioned
nothing regarding the Justice commandos against Armenian genocide, which have
been linked with the ARF.
Applicant
confirmed that he was a sympathizer and then member of the ARF and he was
evasive in responding to the concerns put to him about the violent activities
of the ARF. I directly asked the applicant to respond to our concerns about
involvement of the ARF in terrorist activities and he deliberately did not
address our concerns.
[12]
The immigration
officer then notes that she again mentioned having information on file, but
that the applicant did not ask to see or attempt to rebut that information.
[13]
She ends her notes as
follows:
I
am not satisfied that the applicant did not know about the past involvement of
the ARF in promoting and advocating terrorism to reach its aims. Based on
the information on file and put to the applicant, there are reasonable grounds
to believe that the ARF is an organization that (engages), has engaged or
will engage in acts referred to in A34(1)(a), (b) or (c). This renders him
inadmissible under A34(1)f).
I
am also not satisfied of the bona fides of this applicant as he chose to
not answer truthfully the questions I asked him. This renders him inadmissible
under A16.
ISSUES
[14]
This application for
judicial review raises three issues:
a. Did the immigration officer
breach the principles of procedural fairness by not disclosing her documentary
sources to the applicant so that he could respond to them?
b.
Did the immigration
officer err in concluding that the applicant is a member of a terrorist
organization?
c. Did the immigration officer
err in concluding that the applicant contravened section 16 of the Act by
failing to answer truthfully the questions put to him?
ANALYSIS
-
Preliminary Issue
[15]
On December 23, 2008,
the respondent filed a motion under section 87 of the IRPA to obtain the
non-disclosure of confidential security intelligence information that was
blocked out in the panel’s certified record. This motion was supported by a
secret affidavit explaining the reasons for which the blocked-out information
cannot be disclosed, to which was appended the confidential information that
the respondent seeks to protect.
[16]
In response to that
motion, the applicant requested the appointment of a special advocate to
protect his interests in his absence during the hearing of the motion.
[17]
In
accordance with the practice that has been established in similar matters, an ex
parte and in camera hearing was first held on March 11, 2009, at
which the Minister called the author of the secret affidavit filed in support
of the motion to testify. I was then able to ask that person questions
regarding the information that the respondent seeks to keep confidential and
the grounds underlying that motion.
[18]
Subsequently, on
March 20, 2009, I heard the submissions of the two parties by conference call. On that occasion, counsel for the
applicant submitted the grounds on which she believed the Minister’s motion should
be dismissed and also argued alternatively for the need to appoint a special
advocate. The Minister’s motion and the applicant’s request to appoint a
special advocate were then taken under consideration.
[19]
On April 6,
2009, another conference call involving counsel for both parties was held, during
which I communicated my decision to grant the motion filed by the Minister
under the authority of section 87 of the IRPA and to deny the
applicant’s request to appoint a special advocate. I then briefly explained the
reasons for my decision, making it clear that I would provide more extensive reasons
in the context of the final decision regarding the application for judicial
review itself. Here, therefore, are those reasons.
[20]
Section 87
is in Division 9 (sections 76-87.1) of the IRPA and provides a means of safeguarding
the confidentiality of national security information in immigration matters. This
provision incorporates, with any necessary modifications, the provisions of
section 83 concerning the procedure to be followed with respect to security
certificates.
[21]
It is
settled law that the good administration of justice generally requires judicial
debates to be public. However, Canadian courts have repeatedly recognized the
constitutionality of in camera or ex parte hearings where
national security considerations so require. In this regard, the Supreme Court
wrote:
More
particularly, the Court has repeatedly recognized that national security
considerations can limit the extent of disclosure of information to the
affected individual. In Chiarelli, this Court found that the Security
Intelligence Review Committee could, in investigating certificates under the
former Immigration Act, 1976, S.C. 1976-77, c. 52 (later R.S.C. 1985, c.
I-2), refuse to disclose details of investigation techniques and police
sources. The context for elucidating the principles of fundamental justice in
that case included the state’s “interest in effectively conducting national
security and criminal intelligence investigations and in protecting police
sources” (p. 744). In Suresh, this Court held that a refugee
facing the possibility of deportation to torture was entitled to disclosure of
all the information on which the Minister was basing his or her decision,
“[s]ubject to privilege or similar valid reasons for reduced disclosure, such
as safeguarding confidential public security documents” (para. 122). And, in Ruby
v. Canada (Solicitor General), [2002] 4 S.C.R. 3, 2002 SCC 75, the Court
upheld the section of the Privacy Act, R.S.C. 1985, c. P-21, that
mandates in camera and ex parte proceedings where the government
claims an exemption from disclosure on grounds of national security or
maintenance of foreign confidences. The Court made clear that these
societal concerns formed part of the relevant context for determining the scope
of the applicable principles of fundamental justice (paras. 38-44).
Charkaoui v. Canada
(Citizenship and Immigration),
2007 SCC 9, at paragraph 58 (Charkaoui No. 1). See also Almrei v. Canada (Minister of Citizenship and Immigration), 2004 FC 420, at paragraph 58; Henrie
v. Security Intelligence Review Committee (S.I.R.C.), [1989] 2 F.C. 229,
at page 238; affd at [1992] F.C.J. No. 100 (F.C.A.)
[22]
That said,
courts must constantly seek to maintain a balance between legitimate national
security considerations and the equally legitimate interests of a person pitted
against the state in a judicial proceeding. In Henrie, above, Justice Addy
provided useful reference points for
determining whether certain information would be injurious
to national security or endanger the safety of certain persons:
In
criminal matters, the proper functioning of the investigative efficiency of the
administration of justice only requires that, wherever the situation demands
it, the identity of certain human sources of information remain concealed. By
contrast, in security matters, there is a requirement to not only protect the
identity of human sources of information but to recognize that the following
types of information might require to be protected with due regard of course to
the administration of justice and more particularly to the openness of its
proceedings: information pertaining to the identity of targets of the
surveillance whether they be individuals or groups, the technical means and
sources of surveillance, the methods of operation of the service, the identity
of certain members of the service itself, the telecommunications and cypher
systems and, at times, the very fact that a surveillance is being or is not
being carried out. This means for instance that evidence, which of itself might
not be of any particular use in actually identifying the threat, might
nevertheless require to be protected if the mere divulging of the fact that
CSIS is in possession of it would alert the targeted organization to the fact
that it is in fact subject to electronic surveillance or to a wiretap or to a
leak from some human source within the organization.
It
is of some importance to realize than an “informed reader”, that is, a person
who is both knowledgeable regarding security matters and is a member of or
associated with a group which constitutes a threat or a potential threat to the
security of Canada, will be quite familiar with the minute details of its
organization and of the ramifications of its operations regarding which our
security service might well be relatively uninformed. As a result, such an
informed reader may at times, by fitting a piece of apparently innocuous
information into the general picture which he has before him, be in a position
to arrive at some damaging deductions regarding the investigation of a
particular threat or of many other threats to national security. He might, for
instance, be in a position to determine one or more of the following: (1) the
duration, scope intensity and degree of success or of lack of success of an
investigation; (2) the investigative techniques of the service; (3) the
typographic and teleprinter systems employed by CSIS; (4) internal security
procedures; (5) the nature and content of other classified documents; (6) the
identities of service personnel or of other persons involved in an
investigation.
Henrie v. Canada
(Security Intelligence Review Committee), above, at pages 242-243.
[23]
Given
those principles, and having had the opportunity to examine the witness who
signed the affidavit in support of the motion filed by the Minister, I came to
the conclusion that the disclosure of the confidential information that was
blocked out of the panel’s certified record would be injurious to national
security and endanger the safety of a person. This information must accordingly
remain secret and will not be disclosed to the public, the applicant or his
counsel.
[24]
There
remains the question of whether a special advocate should be appointed to
protect the interests of the applicant. Contrary to the situation with respect
to a security certificate, where the appointment of a special advocate is
always required under paragraph 83(1)(b), this decision is left to the
discretion of the judge who hears the application for judicial review where
that application is made in the context of other proceedings provided by law. Under
that provision, the judge may appoint a special advocate if the judge is of the
opinion that “considerations
of fairness and natural justice” so require.
[25]
In the context of the
case at bar, the appointment of a special advocate does not seem necessary to
me for the following reasons. I
note first of all that the applicant cannot benefit from any of the rights
under section 7 of the Charter since he applied for a visa outside the country
in order to obtain permanent resident status in Canada. Such an application does not affect his
life, liberty or security since Mr.
Karakachian is not in detention and does not risk being removed to a country
where he could suffer mistreatment, but involves economic interests at most: Malkine
v. Canada (Citizenship and Immigration), 2009 FC 496, at paragraph 24.
[26]
As my
colleagues have noted in similar situations, the requirements of procedural
fairness must be adapted to the particular circumstances of each case. Not being a Canadian citizen, Mr.
Karakachian has no right to enter Canada: Canada
(Minister of Employment and Immigration) v. Chiarelli,
[1992] 1 S.C.R. 711, at paragraph 24. In fact, the Federal Court of Appeal has
already held that the duty of fairness owed to visa applicants is minimal: Khan
v. Canada (Minister of Citizenship and Immigration), 2001 FCA 345; Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297
[27]
Furthermore, the
portions of the certified record that were blocked out were not substantial and
do not prevent the applicant from availing himself of all means against the
negative decision he is challenging. His counsel admits, in fact, that the information to which
he is being refused access probably came from him; what he is alleging,
therefore, is not ignorance of that information but rather its possible
interpretation. That does not strike me as a valid ground for appointing a
special advocate.
[28]
Having read the
entire record, and in particular the blocked-out evidence that is the subject
of the motion filed by the Minister under section 87 of the Act, I have therefore
come to the conclusion that Mr. Karakachian had access to the gist of the
information on which the immigration officer relied to deny him a permanent
resident visa. The information to which he does not have access would add
little to his understanding of the reasons for the decision and in no way
prevents him from advancing all possible arguments against the decision. In
these circumstances, the appointment of a special advocate is not required to
ensure procedural fairness before this Court.
- Standard of Review
[29]
The question of
whether the ARF is a terrorist organization is one of mixed fact and law, in
that it is necessary first to define what a terrorist organization is and then to
determine whether the organization in question can be characterized as such. This
Court has found that the question of whether an organization falls within paragraph
34(1)(f) of the Act must be reviewed on the reasonableness standard: see,
for example, Kanendra v. Canada (Minister of Citizenship and Immigration),
2005 FC 923; Omer v. Canada (Minister of Citizenship and Immigration),
2007 FC 478; Yamani v. Canada (Minister of Public Safety and
Emergency Preparedness), 2006 FC 1457; Rajadurai v. Canada
(Minister of Citizenship and Immigration), 2009 FC 119; Jilani v. Canada
(Minister of Citizenship and Immigration), 2008 FC 758. The same holds for
the related question of whether the applicant was a member of that organization:
Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85. Finally, the same standard must also be
applied in reviewing the officer’s decision made under subsection 16(1) of the
Act, given the major factual basis of such a decision.
[30]
The Court
must therefore ask itself whether the decision made by the officer has the
qualities of reasonableness, that is, whether the decision-making process was
justified, transparent and intelligible, and whether the decision falls within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law; Dunsmuir v. New Brunswick,
2008 SCC 9, at paragraph 47.
[31]
In this regard, it is
important not to confuse the standard of review with the standard of proof. Under paragraph 34(1)(f)
of the Act, the standard of proof that applies is set out in section 33. These
two provisions read as follows:
|
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.
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).
|
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.
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).
|
[32]
The
standard of proof that corresponds to the existence of “reasonable grounds to
believe” requires more than mere suspicion but less than the civil standard of
balance of probabilities. Reasonable grounds will exist where there is an
objective basis for the belief which is based on compelling and credible
information. Here is what I wrote in Moiseev
v. Canada (Minister of Citizenship and
Immigration), 2008 FC
88, [2008] F.C.J. No. 113, at paragraph 16:
The
standard of review should not be confused with the standard of proof
required to establish inadmissibility under section 34 of the IRPA.
In making its finding that the applicant was inadmissible on security grounds
pursuant to that section, the visa officer had to pay attention to section 33
of the IRPA, according to which facts that constitute inadmissibility
“include facts for which there are reasonable grounds to believe that they have
occurred, are occurring or may occur”. The “reasonable grounds” standard
requires “a bona fide belief in a serious possibility based on credible
evidence” (…). The Supreme Court of Canada has found that this standard
requires more than suspicion, but less than the civil standard of balance of
probabilities: see Mugesera v. Canada
(Minister of Citizenship and Immigration), 2005 SCC 40.
[33]
Therefore, the role
of this Court is not to determine whether the ARF is or was a terrorist
organization, nor even whether there were reasonable grounds to believe that
the applicant falls within paragraph 34(1)(f), or, on a balance of
probabilities, also falls within subsection 16(1) of the Act. The only question
that the Court must decide is whether the officer could reasonably come to the
conclusion she reached, based on the evidence before her: Thanaratnam v.
Canada (Minister of Citizenship and Immigration), 2005 FCA 122, at
paragraphs 32-33; Mendoza v. Canada (Minister of Public Safety and
Emergency Preparedness), 2007 FC 934, at paragraph 25.
[34]
Lastly, it
goes without saying that questions of procedural fairness do not require a
standard of review analysis. If the Court finds that the duty of fairness has
been breached, it has no choice but to allow the application for judicial
review: A.G. of Canada v.
Sketchley, 2005 FCA 404.
- Procedural Fairness
[35]
The applicant submits
that the impugned decision is rendered invalid by a breach of procedural fairness
because the officer did not disclose her documentary sources to him, so that he
was unable to examine them and then discuss them with her. He alleges more
specifically that at no time did the officer show him the documents, cite them
or allow him to consult them.
[36]
For her
part, the officer reports in the notes she wrote after the applicant’s
interview that the printed documents she had obtained on the Internet were on
her desk and that the applicant never asked to see them. Consequently, the
respondent argues that the applicant waived his right to obtain a copy of the
documentation on which the officer relied in making her decision and accepted
the situation, and therefore cannot complain about it now.
[37]
In the
circumstances here, I do not think one can infer from the applicant’s conduct a
tacit waiver of his right to be informed of the content of the documents on
which the officer relied in making her decision. The applicant was not
represented during the interview and he cannot be faulted for not asking to see
the documents that were on the officer’s desk in the absence of any offer on
her part. It seems to me that the applicant could legitimately assume that the
documents on the officer’s desk were not intended for him.
[38]
A person who appears
before a government authority is generally not on an equal footing and will
generally not assume that he is entitled to see documents that happen to be on
the desk of the person interviewing him. Since the officer did not expressly
invite him to consult the documents on which she was relying, the applicant
could reasonably believe that he was not permitted to see them. I realize that
the duty of fairness is relatively relaxed in the context of an application for
permanent residence. Nevertheless, the applicant’s ability to respond to the
officer’s concerns regarding the true nature of the ARF was seriously hindered
by the ignorance in which he was kept as to the documents consulted. Consequently,
I am of the opinion that the applicant’s right to procedural fairness was
infringed.
-
Did the immigration officer err in concluding that the applicant is a member
of a terrorist organization?
[39]
A close reading of
the reasons given by the officer for concluding that the ARF is a terrorist
organization and that the applicant was a member of that organization reveals
several flaws. First, nowhere in her decision does she specify what she means
by the word “terrorism”. Yet this is a concept which is at the very heart of
paragraph 34(1)(f) and of which several definitions can be found in
international instruments and Canadian caselaw: see, among others, Suresh
v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3. Although the term as
such is not defined in the Criminal Code, R.S.C. 1985, c. C-46, the expressions
“terrorist activity” and “terrorist group” are defined in subsection 83.01(1). This
Court has stated on more than one occasion that an immigration officer must
indicate in clear terms what constitutes terrorism and how the concept applies
in the specific case of the applicant who is denied a visa: Jalil v. Canada
(Minister of Citizenship and Immigration), [2006] 4 F.C.R. 471; Naeem
v. Canada (Minister of Citizenship and Immigration), 2007 FC 123; Mekonen
v. Canada (Minister of Citizenship and Immigration), 2007 FC 1133; Beraki
v. Canada (Minister of Citizenship and Immigration), 2007 FC 1360.
[40]
I note in passing
that the ARF is not on the list of terrorist organizations established by the government
under the authority of the Anti-terrorism Act (S.C. 2001, c. 41). The respondent is right to argue
that this requirement does not appear anywhere in the text of subsection 34(1) of
the Act. The fact that an organization does not appear on that list can
nevertheless be considered one indicia among others that it is not a
terrorist organization, at least in the eyes of the Canadian government.
[41]
The
Minister also submitted that the officer had indeed provided a definition of
terrorism to the extent that one of the documents she cites in her notes
contains such a definition. I do not consider that sufficient, and for several
reasons. First, nothing in the officer’s notes would suggest that she has
adopted all of the statements found in that document, which is several pages
long; it cannot be presumed from the fact that she refers to the document
without any further comment that she endorses everything it contains, even
though it cites, among other things, a United Nations resolution adopted in 1994
that gives a definition of what constitutes terrorism. Moreover, the officer could
not delegate to a third party, in this instance a foreign government, the
responsibility of determining what must be considered a terrorist organization
for the purposes of enforcing a Canadian statute. And there, indeed, lies the problem: the document she cites
comes from the Ministry of Foreign Affairs of Azerbaijan and is entitled “Armenian
Aggression Against Azerbaijan”. It would have been far preferable for the
officer to refer to the definition of terrorism given by the Supreme Court in Suresh,
for example, to interpret a Canadian statute. I will return to that document a
little farther on.
[42]
In short, I do not
believe that the officer discharged her duty to define a terrorist organization
for the purposes of paragraph 34(1)(f). Before finding that the ARF is an
inadmissible organization of which the applicant was a member, she had to set
out her thinking in clear terms and could not in effect delegate this
responsibility to another agency, without even giving her reasons for adopting
that definition.
[43]
I also believe that
it was unreasonable for the officer to find that the ARF is a terrorist
organization, and this for several reasons. First, the documentary evidence on which
she relied to draw that conclusion is dubious and lacking in rigour to say the
least. Indeed, the officer relied on only two documents consulted on the
Internet, the first originating with the Ministry of Foreign Affairs of the
Republic of Azerbaijan, to which I have already referred above, and the second
being a very short (half-page) biography of Samuel Weems, a disbarred American
lawyer better known for his relentless campaign to deny the Armenian genocide. It
is important to note that this biography was taken from the Wikipedia online
encyclopedia.
[44]
It is hard
to believe that the officer found these mere two documentary sources sufficient
to make a decision as important as declaring someone inadmissible to Canada because of his membership in
a terrorist organization. The objectivity of the document originating with the
government of Azerbaijan is seriously questionable, given the conflict which
has existed for many years between that country and Armenia and which stems notably from the two
countries’ territorial claims on Nagorno-Karabakh. In that context, it is not
difficult to imagine that a government would be more likely to characterize as “terrorist” an organization based in the
country with which tensions remain high despite an official cease-fire.
[45]
As for Wikipedia, this
Court has on several occasions stressed its limitations in terms of reliability:
see, among others, Fi v. Canada (Minister of Citizenship and Immigration), 2006 FC 1125; Sinan v. Canada
(Minister of Citizenship and Immigration), 2008 FC 714; Khanna v. Canada (Minister of Citizenship and Immigration), 2008 FC 335. Wikipedia is an online
encyclopedia to which individuals contribute voluntarily without editorial supervision
or control. There
is a link on the site’s home page to the following disclaimer:
Wikipedia is an online open-content collaborative encyclopedia,
that is, a voluntary association of individuals and groups working to develop a
common resource of human knowledge. The structure of the project allows anyone
with an Internet connection to alter its content. Please be advised that nothing found here
has necessarily been reviewed by people with the expertise required to provide
you with complete, accurate or reliable information.
That is not to say that you will not find valuable and
accurate information in Wikipedia; much of the time you will. However, Wikipedia
cannot guarantee the validity of the information found here. The content of
any given article may recently have been changed, vandalized or altered by
someone whose opinion does not correspond with the state of knowledge in the
relevant fields.
[46]
It was therefore
risky to say the least to rely on those two sources to conclude that the ARF is
a terrorist organization. Moreover, a careful reading of those documents did
not allow the officer to reasonably draw the conclusion that the ARF is a terrorist
organization. Even
though the movement may have had subversive aims when it was founded in 1890, its
objectives may have since changed. In fact, it appears that the ARF is now a
recognized political party, a member of the Socialist International, and has even
been part of the Armenian government in recent years. Finally, the document
from the government of Azerbaijan does not clearly establish ties
between the ARF and various Armenian splinter groups that committed terrorist
acts on its territory until 1994. In any case, the all-out attack on the
Armenian government and its purported support of international terrorism
suggests that the document is more a propaganda exercise than a rigorous
analysis of the ARF and the prevailing situation in Armenia.
[47]
The
Minister argued that it was largely immaterial whether the ARF was still a
terrorist organization and that for the purposes of paragraph 34(1)(f) of
the Act it was sufficient for an organization to have engaged in terrorist acts
in the past for it to fall under that provision. In that regard, I agree with
my colleague Justice Snider when she wrote in Al Yamani
v. Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC
1457, that timing is not a factor that should be taken into consideration
because paragraph 34(1)(f) clearly refers to membership in an
organization that there are reasonable grounds to believe has engaged in acts
of terrorism in the past.
[48]
That said, I believe
that this must be qualified to a certain extent. It is easy to imagine that the
passage of time might be immaterial where an organization has been inactive for
some time but has not formally renounced violence. On the other hand, the
situation strikes me as entirely different where a violent organization has
transformed itself into a legitimate political party and has expressly given up
any form of violence. It
is difficult to believe that Parliament’s intent was to render inadmissible any
person belonging to a legitimate political party from the mere fact that the
party may have been considered a terrorist organization before that person
joined it.
[49]
It is true
that subsection 34(2) of the Act softens the inadmissibility provisions
contained in the different paragraphs of subsection 34(1) by providing that a
permanent resident or a foreign national may make an application with a view to
satisfying the Minister that “their presence in Canada would not be detrimental to the national
interest.” However, I am not satisfied that subsection 34(2) was enacted to deal with the type
of situation in which Mr. Karakachian finds himself. Rather, it seems to
me that this case essentially raises the prior question of whether Mr. Karakachian
can be considered a member of a terrorist group.
[50]
It is therefore my
opinion, for all the reasons mentioned in the preceding paragraphs, that the
officer erred in finding that the applicant was a member of a terrorist
organization. She
could not reasonably conclude, based on the documentary evidence before her,
that the ARF is or was a terrorist organization. As already mentioned, it is
not for this Court to determine whether the ARF falls within paragraph 34(1)(f). That determination must
be made by another immigration officer, taking into account the principles that
issue from these reasons.
- Section 16 of the IRPA
[51]
It would
technically not be necessary for me to deal with the submissions of the two
parties with respect to section 16 of the Act, given my findings concerning
paragraph 34(1)(f). It
is true that an unfavourable finding under either of those provisions is
sufficient in principle to dismiss the application for judicial review. Nevertheless,
I believe that the errors committed in applying paragraph 34(1)(f) are
sufficiently serious to warrant referring the matter to another immigration
officer. In any case, the reasoning adopted by the officer pursuant to section
16 strikes me as just as problematic as her approach under paragraph 34(1)(f).
[52]
Subsection 16(1) of
the Act provides that an applicant must act transparently and in good faith in
his dealings with the Department’s representatives. It reads as follows:
|
16. (1) A person who makes an application
must answer truthfully all questions put to them for the purpose of the
examination and must produce a visa and all relevant evidence and documents
that the officer reasonably requires.
|
16. (1) L’auteur d’une demande au titre de
la présente loi doit répondre véridiquement aux questions qui lui sont posées
lors du contrôle, donner les renseignements et tous éléments de preuve
pertinents et présenter les visa et documents requis.
|
[53]
A reading of the
officer’s notes discloses that the applicant was patently not in agreement with
her perception of the ARF. Asked to respond to the officer’s concerns about what
she considered to be terrorist activities by the ARF, the applicant replied by
pointing out the ARF’s social involvement, the party’s participation in the
Armenian government and the fact that it was running a candidate in the next
election. When the officer continued by asking him what he thought of the
violent acts committed by the ARF to achieve its aims, the applicant merely
reminded her of the historical origins of the movement and its aims.
[54]
An
applicant’s statement can be characterized as truthful or not if it concerns
factual data the accuracy of which can be verified or questioned. Yet none of
the information provided by the applicant was questioned. Rather, what the
officer faults the applicant for is not agreeing with her opinion concerning
the ARF. But the fact that he does not share her point of view in no way means
that the applicant is concealing anything from her or attempting to evade her
questions. A person cannot be accused of
lying merely because they do not give the answers one wants to hear, or because
they disagree with the premises underlying the question.
[55]
Given all
the preceding reasons, I am therefore of the opinion that the immigration
officer’s decision was seriously flawed and cannot in any way be considered a
conclusion that a reasonable person would reach on the basis of the information
that was available. Accordingly, this second application for judicial review
made by the applicant must be allowed.
[56]
The
parties submitted no question for certification, and I will certify none. Counsel
for the applicant argued that the certification of a question would unreasonably
delay a decision in a matter that has already dragged on for too long. It is
now over seven years since Mr. Karakachian
filed his application for permanent residence. I am sensitive to that argument and I am also
of the opinion that the applicant is entitled to a prompt consideration of his
application in accordance with the Act.
ORDER
THE COURT ORDERS that the application for judicial review
be allowed and that the applicant’s matter be referred to a different
immigration officer to be assessed without delay in accordance with the Act and
taking into account these reasons.
“Yves de Montigny”
Certified
true translation
Brian
McCordick, Translator
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