Date: 20110407
Docket: IMM-2253-10
Citation: 2011 FC 428
Ottawa, Ontario, April 7, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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SIH MEHMET PUSAT
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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
[1]
An
immigration officer at the Canadian Embassy in Ankara, Turkey found that
there were reasonable grounds to believe that Sih Mehmet Pusat was a member of
the Kurdistan Workers Party (PKK), an organization which the Government of
Canada has listed as a terrorist entity. As a result, Mr. Pusat’s application
for permanent residency as a member of the family class was denied for a second
time. This application for judicial review will be granted on the ground that
Mr. Pusat was denied procedural fairness.
BACKGROUND:
[2]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
[3]
The
applicant is a Turkish citizen and an Alevi Kurd. His wife is a Turkish citizen
who came to Canada in October
2003 and was granted refugee status. She became a Canadian permanent resident
on May 16, 2006. The applicant and his family previously sought refugee status
in Germany, but he was deported back to Turkey in June 1999
when the claim was denied.
[4]
The
applicant applied for permanent residency in Canada with his
wife’s sponsorship. In September 2007, the applicant attended an interview at
the Canadian Embassy in Ankara, to discuss his application. The interview
focused on whether he qualified as a member of the family class, but did
briefly discuss his admissibility. The applicant explained that though he
supports some of the PKK’s goals, he does not support the PKK because he did
not believe in violence.
[5]
On
September 3, 2009, the application was refused on the grounds that the
applicant was inadmissible for being a member of the PKK (the first refusal).
The applicant sought judicial review of that decision on the ground that the
reasons for suspecting his membership in the PKK had not been disclosed to him.
The Minister of Citizenship and Immigration agreed to re-open the application
for redetermination by a different officer in return for the applicant
discontinuing the application for judicial review.
[6]
The
application was sent back to the Canadian Embassy in Ankara for
redetermination and a second interview was scheduled for April 14, 2010. Prior
to the second interview, the applicant’s counsel contacted the respondent to obtain
disclosure of any evidence of the applicant’s membership in the PKK. The
respondent did not answer any of the applicant’s counsel’s three letters. The
computer assisted immigration processing system (CAIPS) notes in the certified
tribunal record contain entries indicating that the applicant was called a day
prior to the interview and advised that he did not need to bring any documents
to support the bona fides of his marriage and that the interview was to
review his admissibility to Canada, not his eligibility as a member of the
family class. That portion of the CAIPS notes is also attached as an exhibit to
the affidavit of an assistant in the respondent’s counsel's office.
[7]
At
the interview, the applicant was again questioned about his involvement with
the PKK. The applicant admitted to attending a PKK meeting in Switzerland, to donating
money to the party, selling their magazines and event tickets, and to attending
events put on by the PKK. He repeated his abhorrence of violence and stated
that he was not a member of the PKK, but told the officer that there is social
pressure in the Kurdish community to take part in PKK activities and to donate
money to the party. He stated that any involvement with PKK activities on his
part was a result of coercion and social pressure. The applicant also admitted
to having lived in Switzerland, even though he had not disclosed this fact on
his application. The applicant stated that, since returning to Turkey, he has not
been involved in any PKK activities and has not attended any PKK events.
[8]
The
applicant’s counsel was not given the opportunity to make submissions following
the interview. The decision was made the next day and communicated to the
applicant on April 19, 2011.
[9]
The
certified tribunal record filed with the Court pursuant to Rule 17 of the Federal
Courts Immigration and Refugee Protection Rules, SOR/93-22 contains a
number of redactions of information in the documents contained in the file of
the Immigration Section at the Ankara Embassy. The respondent brought a motion
under s. 87 of the IRPA to protect that information from disclosure to the
applicant and in the public record. On being informed that the respondent did
not intend to rely on the redacted information, the applicant advised the Court
that he did not object to the motion. The Chief Justice reviewed the redacted
information and, being satisfied that it was of no material relevance to the
outcome of this proceeding, by order dated November 19, 2010 adjourned the
motion sine die. Neither party has requested that the motion be brought
back on for determination. The redacted information has not been relied upon in
this decision.
DECISION
UNDER REVIEW:
[10]
On
April 15, 2010, the officer found that there were reasonable grounds to believe
that the applicant was a member of an organization that engages, has engaged or
will engage in acts of espionage, subversion or terrorism and was therefore
inadmissible pursuant to paragraph 34(1)(f) of the IRPA. Specifically, the
officer found reasonable grounds to believe that the applicant was a member of
the PKK. This finding was based on the applicant’s financial contributions,
attendance at meetings, participation in events, distribution of literature and
involvement in fundraising.
[11]
In
the analysis which forms part of his reasons for decision, the officer noted
that the applicant claimed to have been coerced or pressured into participating
in PKK activities. The officer found that the applicant had changed his story
about his involvement with the PKK when he was confronted with the possible
conclusion of inadmissibility as a result of that involvement. The applicant
had also failed to disclose his period of residence in Switzerland and had not
been truthful about terms of incarceration. In the result, the officer questioned
his credibility. He concluded that the applicant's activities for the PKK were
multiple, sustained over time, and would have contributed to strengthening the
capacity of the PKK to conduct their militant operations.
ISSUES:
[12]
The
issues argued on this application included procedural fairness, the
reasonableness of the finding that there are grounds to believe that the
applicant is a PKK member and the adequacy of the officer’s reasons for so
finding.
As I have found that the applicant was denied procedural fairness and will
grant the application for that reason, I do not consider it necessary to
address the other issues.
RELEVANT
STATUTORY PROVISONS:
[13]
Paragraph
34 (1) (f) of IRPA reads as follows:
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34.
(1) A permanent resident or a foreign national is inadmissible on security
grounds for
…
(f)
being a member of an organization that there are reasonable grounds to
believe engages, has engaged or will engage in acts referred to in paragraph
(a), (b) or (c).
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34.
(1) Emportent interdiction de territoire pour raison de sécurité les faits
suivants :
…
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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ANALYSIS:
Standard of Review
[14]
Where
procedural fairness is in question, as here, the proper approach is to ask
whether the requirements of natural justice in the particular circumstances of
the case have been met. The question is not whether the decision was “correct”
but whether the procedure used was fair. A standard of review analysis is not required:
Sketchley v. Canada (Attorney General), 2005 FCA
404, [2006] 3 F.C.R. 392 at paras 52 and 53. Deference to the decision-maker
is not at issue. See: Ontario (Commissioner
Provincial Police) v. MacDonald, 2009 ONCA 805, 3 Admin L.R. (5th)
278 at para. 37 and Bowater Mersey Paper Co. v. Communications, Energy and
Paperworkers Union of Canada, Local 141, 2010 NSCA 19, 3 Admin L.R. (5th)
261 at paras. 30-32.
Was there a breach of
procedural fairness?
[15]
The
applicant submits that the officer breached procedural fairness by failing to
disclose the grounds for suspecting the applicant of PKK membership. The
applicant’s counsel repeatedly contacted the respondent prior to the second
interview to seek disclosure of the grounds should this suspicion continued to
be a live issue, but no response was forthcoming. The applicant submits that
this breach is particularly egregious in light of the fact that the first
decision was set aside for this same reason.
[16]
The
applicant also argues that the officer breached procedural fairness by failing
to give him the opportunity to make submissions about his admissibility after
the interview. The applicant argues that this failure to allow him to respond
breached departmental policy, which requires that the grounds for
inadmissibility be disclosed to applicants who should then be allowed to
respond before a decision is rendered. The applicant relies on Jang v. Canada (Minister of
Citizenship and Immigration), 2001 FCA 312, 278 N.R. 172. The applicant
submits that procedural fairness requires that the applicant get a “fairness
letter” and then be given the chance to respond.
[17]
The
respondent says that, according to the CAIPS notes, the applicant was notified
prior to his second interview that the subject of the interview would be his
admissibility to Canada. The respondent submits that procedural
fairness did not require the applicant to be notified of the inadmissibility
concerns where they pertain to membership in a terrorist organization: Suleyman
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 780 at paragraphs 40-41. The
disclosure obligation only applies to extrinsic evidence and not to previous
statements made by the applicant himself: Kunkel v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 347, 88 Imm. L.R. (3d) 1.
[18]
The
respondent notes that the applicant had previously been found inadmissible for
membership in the PKK, and that the officer based the decision on the
applicant’s previous statements and on the documents submitted, as well as the
statements made in the second interview. The respondent argues that the
applicant was therefore aware of the grounds for the officer’s suspicion that
he was a member of the PKK and that the officer did not base the decision on
information not known to the applicant.
[19]
The
record is clear that the respondent did not reply to the communications from
counsel and did not provide any meaningful disclosure before the interview,
notwithstanding that the application was sent back on consent to be
reconsidered for that reason. The respondent' s attempt to rely on the CAIPS
notes as evidence that he was informed of the purpose of the interview by a
telephone call from someone, presumably an administrative assistant at the Embassy,
two days prior to the event, is misplaced. There is no affidavit evidence from
the assistant to verify the facts stated in the CAIPS notes.
[20]
CAIPS
notes are routinely admitted as part of the reasons for the decision under
review. However, the underlying facts on which they rely must be independently
proven. In the absence of an affidavit attesting to the truth of what was
recorded as having been done, the notes have no status as evidence of such: Chou v.
Canada
(2000), 3 Imm. L.R. (3d) 212, 190 F.T.R. 78 at para. 13; aff'd 2001 FCA 299, 17
Imm. L.R. (3d) 234. It is not sufficient to attach the notes as an exhibit to
the affidavit of an assistant in the respondent counsel’s office, as was done
here. Hence, there is no evidence that the call was in fact made to the
applicant or that he was informed of the purpose of the interview.
[21]
Even
if the call was made as the CAIPS notes indicate, the instruction given to the
assistant in Ankara was simply to advise the applicant that he need not bring
documents to demonstrate the genuineness of his marriage and that his
admissibility remained in issue.
[22]
In
a letter sent by facsimile on April 12, 2010, just two days prior to the
interview, counsel for the applicant reminded the immigration program manager
at the Embassy that the prior refusal had been set aside on the ground that the
applicant had not received disclosure of the grounds on which he was suspected
of being a member of the PKK. In a letter dated March 30, 2010, counsel had
noted that the applicant had been asked to provide documentation establishing
the bona fides of his marriage but had not been asked about any issues
relating to inadmissibility. In the April 12, 2010 letter, Counsel requested
disclosure regarding the suspected inadmissibility in the event that it was
still an issue and if so, requested that the interview be postponed and
disclosure provided prior to the re-scheduled interview.
[23]
Counsel
for the respondent agreed at the hearing that the Embassy should not have
ignored this correspondence. It was argued, however, that the failure to
respond to counsel’s letters did not constitute a material breach of procedural
fairness.
[24]
Kunkel,
above, the Federal Court of Appeal decision relied upon by the respondent,
concerned disclosure of extrinsic evidence prior to an interview regarding an
application for permanent residence. At paragraph 11, the Court said:
While extrinsic evidence must
be presented to applicants to provide them with a meaningful opportunity to
respond, the opportunity to respond will vary, depending upon the factual
context. What is fair and reasonable in one instance may not be in another.
There is no general requirement that extrinsic evidence be provided to
applicants prior to an interview, or that they be given an opportunity to
clarify the situation after an interview. It may be that disclosing the
evidence during an interview and providing applicants with the opportunity to
explain will suffice. What constitutes sufficient notice turns on the
circumstances of the particular case.
[25]
In
the particular circumstances of this case, the certified record contains
documents that predate the first refusal and appear to have strongly influenced
the officer's decision. In my view, those documents, with redactions if
necessary, or at least the gist of the information they contain, should have
been disclosed to the applicant prior to the second interview so that he might
have been better prepared to answer questions about the grounds for suspecting
that he was a member of the PKK.
[26]
The
documents in the certified record include a memorandum from the Canada Border
Security Agency's (CBSA) Counter Terrorism Section which recommends that the
applicant be found inadmissible for being a member of the PKK. The memorandum
identifies a number of criteria to be assessed in making a determination of
inadmissibility pursuant to paragraph 34 (1) (f) and relates several of those factors
to information provided by the applicant in an earlier interview. Other
criteria cited in the memorandum have no bearing on the applicant’s history or
conduct. The officer’s analysis mirrors that part of the CBSA memorandum which
reflects adversely on the applicant. While it is the role of the officer to
weigh all of the factors and determine whether the applicant is a member of a
terrorist organization, fairness required that the applicant be given a
reasonable opportunity to address those factors before a decision was made.
[27]
This
is not a case like Suleyman, above, where due to the extent of the
applicant’s extensive involvement in the PKK, membership was not in issue. In
that case, the real issue was whether there were sufficient grounds to support
a ss. 34 (2) Ministerial exemption. Here, membership was not conceded and it
was open to the officer on a balancing of all of the evidence to reach a
different conclusion. Fairness required that the officer consider not only the
factors that pointed to membership but also those that pointed away such as,
for example, the applicant’s argument that members of Kurd communities in
Turkey and abroad were coerced to participate in PKK activities.
[28]
The
CBSA memorandum considered by the Officer in this instance was similar to that
discussed by Justice Eleanor Dawson, as she then was, in Mekonen v. Canada
(Minister of Citizenship and Immigration), 2007 FC 1133, 66 Imm. L.R. (3d)
222. That case also dealt with the issue of disclosure in the context of a
paragraph 34 (1) (f) determination. Citing factors applied by the Federal Court
of Appeal in Haghighi v. Canada (Minister of Citizenship and Immigration),
[2000] 4 F.C. 407 (C.A.) (QL), and Canada (Minister of Citizenship and
Immigration) v. Bhagwandass, 2001 FCA 49, Justice Dawson found that the
circumstances of that case required the officer to provide the applicant with
the CBSA memorandum and other open-source documents to allow him to make
submissions that were responsive to the material. This was necessary, she held
at paragraph 26 of her reasons, in order for Mr. Mekonen to have a meaningful
opportunity to present relevant evidence and submissions and to have his
evidence and submissions fully and fairly considered by the officer.
[29]
At
paragraph 19, Justice Dawson found that the CBSA memo in question in that case:
[W]as
an instrument of advocacy designed, in the words of the Federal Court of Appeal
in Bhagwandass [Canada (Minister of Citizenship and Immigration)
v. Bhagwandass, “to have such a degree of influence on the decision maker that
advance disclosure is required ‘to ‘level the playing field’”.
[30]
The
CBSA memorandum in the present case contains a recommendation in almost
identical terms to that in Mekonen and states that the information being
forwarded to the officer “provides sufficient conclusive evidence to support a
determination of inadmissibility pursuant to paragraph 34 (1) (f) IRPA”. As in Bhagwandass
and Mekonen, disclosure was required to level the playing field. See
also: Rana v. Canada (Minister of
Citizenship and Immigration), 2010 FC 696, a case decided by Justice
Sean Harrington in which the failure to disclose a similar report in analogous
circumstances was found to have denied the applicant procedural fairness.
[31]
The
CBSA memorandum in this case refers to a second document, dated June 11, 2009
and found at page 100 of the certified record, which contains information
concerning the applicant held by the Canadian Security Intelligence Service. Much
of the content of this report is information that was previously obtained from
or disclosed to the applicant, such as inconsistencies between his application
and his wife’s refugee claim. While the duty of fairness may not have required
further disclosure of that information, any content that went to the question
of his membership in the PKK should have been disclosed subject to the need to
protect sources and other information of a sensitive nature.
[32]
The
applicant argues that he was entitled to a “fairness letter” similar to those
provided in medical inadmissibility cases such as Jang, above, and an
opportunity to provide post-interview submissions in response to the officer’s
concerns. As the Federal Court of Appeal stated in the excerpt reproduced from Kunkel,
above, what fairness requires will depend on the circumstances. Given the
failure to provide advance disclosure, it would have been prudent for the
respondent to give the applicant an opportunity to respond to the concerns
about membership after the interview and before the decision was made.
[33]
In
the event that the Court found that procedural fairness has been breached in
this case, the respondent urged the Court to employ the doctrine of no useful
purpose and decline to grant a remedy citing Mobil Oil Canada Ltd. v. Canada
Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, 111 D.L.R (4th)
1 at paras. 51-54 and Yassine v. Canada (Minister of
Employment and Immigration) (1994), 172 N.R. 308, 27 Imm. L.R. (2d) 135
(FCA) at paras. 9-11.
[34]
In
Mobil Oil, a determination of a question of law by the Court meant that
there was only one possible outcome of another hearing. In the present
circumstances, the applicant’s admissibility is still in issue and I am not
persuaded that he could not offer an explanation for the factors cited in the
CBSA memorandum that might result in a finding that there are no reasonable
grounds to believe that he is a PKK member. Yassine dealt with an
implied waiver of the breach of procedural fairness in that case. The applicant
had failed to comment on additional evidence when given the opportunity to do
so. In this instance, there was no implied waiver. The documents were only
provided as part of the certified tribunal record in response to this
application for judicial review. The applicant has them now and can make
informed submissions to the next immigration officer who will consider the
matter.
[35]
No
serious questions of general importance were proposed.
JUDGMENT
IT IS THE
JUDGMENT OF THIS COURT that:
1.
The
application for judicial review is allowed, and the decision of the Immigration
Officer made on April 15, 2010 is hereby set aside.
2.
The
matter is remitted for redetermination by a different Immigration Officer in
accordance with these reasons.
“Richard
G. Mosley”
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