Docket: IMM-7093-10
Citation: 2011 FC 1342
Ottawa, Ontario, November 22, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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JEYAKUMAR KRISHNAMOORTHY
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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]
The
applicant, Jeyakumar Krishnamoorthy, seeks judicial review under section 72 of
the Immigration and Refugee Protection Act, SC 2001, c 27 (hereafter
“the IRPA”) of a decision made on November 17, 2010 that he was inadmissible to
Canada because there are reasonable grounds to believe that he is a member of a
terrorist organization contrary to s.31(1)(f) of the IRPA.
[2]
For
the reasons below, I find that the decision was unreasonable and procedurally
unfair. Thus the application for judicial review is granted.
BACKGROUND
[3]
Mr.
Krishnamoorthy is a Tamil from the North of Sri Lanka. He is married to a
Canadian citizen and they have two Canadian born children.
[4]
The
applicant arrived in Canada on 27 April 2003. In August of the same
year his refugee claim was declared abandoned by the Immigration and Refugee
Board. An application for judicial review of that decision was rejected by the
Federal Court on 15 February 2005.
[5]
In
September 2004, sponsored by his wife, the applicant submitted an application
for permanent residence from within Canada. The application was
approved in principle in September 2006.
[6]
Mr.
Krishnamoorthy was interviewed by the Canadian Security Intelligence Service (“CSIS”)
in January 2007. CSIS officials prepared a brief indicating that there was
information that led them to believe that the applicant was a member of the
Liberation Tigers of Tamil Eelam (“LTTE”). The Counter Terrorism Section (“CTS”)
of the Canadian Boarder Services Agency (“CBSA”) prepared a memorandum citing the
potential inadmissibility of the applicant. The applicant requested disclosure
of the CSIS report and the CTS memorandum but the request was denied.
[7]
The
applicant was interviewed by an Immigration Officer on April 20, 2010. In the interview, the
applicant indicated that in 1986, when he was in the 10th grade, he sold soap
for and distributed pamphlets from the LTTE. This continued until 1988 when he
relocated. The applicant was 17 and 18 years of age when he participated in
these activities. The applicant stated that during that period the LTTE constituted
the local administration, was not engaged in hostilities and was not feared in
his district. He says that he was later coerced into providing additional assistance
to the LTTE during a period of hostilities in the 1990s.
DECISION UNDER REVIEW
[8]
The
officer accepted that the applicant’s activities in support of the LTTE in the
1990s were done out of fear and duress. He found, however, that although the
applicant had denied being a member of the LTTE on several occasion and had
denied voluntarily assisting the LTTE, the help he provided the LTTE while he
was in high school was voluntary and not the result of coercion.
[9]
The
officer also noted that the applicant admitted providing false information in
his personal information form (“PIF”) and found that there were various
inconsistencies between the applicant’s PIF, his CSIS interview and statements
made during his interview with the officer. This raised credibility issues, in the
officer’s view.
[10]
The officer
concluded that the applicant was inadmissible because he voluntarily
participated in activities that financed and promoted the LTTE, a terrorist
organization, when he was in high school.
ISSUES
[11]
The
issues raised in this application are:
i.
Did
the officer err in concluding that the applicant was a member of the LTTE?
ii.
Did
the officer breach procedural fairness by failing to disclose the CTS
memorandum and the CSIS report?
STANDARD OF REVIEW
[12]
The
standard of review for decisions relating to s.34(1) of the IRPA is
reasonableness: Hussain v Canada (Minister of Citizenship and Immigration),
2004 FC 1196 at para 12; Kanendra v Canada (Minister of Citizenship and
Immigration), 2005 FC 923 at paras 9-12; Jalil v Canada (Minister of
Citizenship and Immigration), 2006 FC 246 at paras 19-20; and Ugbazghi v
Canada (Minister of Citizenship and Immigration), 2008 FC 694 at para 36.
The standard of reasonableness is described in Dunsmuir v New Brunswick, 2008 SCC 9 at paragraphs
47-48.
[13]
Deference
is not accorded the decision maker where procedural fairness is at issue: Khosa
v Canada (Minister of
Citizenship and Immigration), 2009 SCC 12 at para 43. The approach to be
taken is not whether the decision was correct but whether the procedure employed
was fair: Pusat v (Minister of Citizenship and Immigration), 2011 FC 428
at para 14.
RELEVANT LEGISLATION
[14]
This
application concerns section 33 and paragraphs 34(c) & (f) of the IRPA:
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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
…
(c)
engaging in terrorism;
…
(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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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 :
…
c) se livrer au terrorisme;
…
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
Motion to protect
information in the Certified Tribunal Record
[15]
Prior
to the hearing, the respondent brought a motion under s.87 of the IRPA to
protect certain information that was redacted in the CSIS and CTS documents
included in the certified tribunal record from disclosure to the applicant and
to the public. The applicant took no position on the motion other than to
request that the Court review the documents to determine whether the redacted
information was such that if disclosed, the information would be injurious to
national security or would endanger the safety of any person. Upon review of
the documents including the unredacted content in camera and ex parte
the motion was granted.
[16]
Much
of the redacted content of the documents was found to be non-relevant information
of an internal or administrative nature that is routinely protected from
disclosure on national security grounds. Other, more substantive information
that could have
some probative value appeared to be information that had already been disclosed
to the applicant, in one form or another, elsewhere in the Certified Record.
[17]
At
the request of the respondent, I considered the redacted information in
arriving at a decision on the merits of this application.
Did the Officer err in
concluding that the applicant was a member of the LTTE?
[18]
The
applicant acknowledges that the LTTE is a terrorist organization as
contemplated by paragraph 34(1)(f). The respondent acknowledges that there is
no evidence that the applicant himself engaged in any terrorist activities on
behalf of the LTTE.
[19]
I
find that the officer erred in concluding that the applicant was a member of
the LTTE by failing to consider the relevant criteria set out in the
jurisprudence for determining “membership” as required by paragraph 34(1)(f). The
officer did not consider the applicant’s intentions, his degree of involvement
and his commitment towards the LTTE.
[20]
The
threshold for a determination of inadmissibility under s.34(1) of the IRPA is
“reasonable grounds to believe”. This has been interpreted as more than mere
suspicion, but less than the balance of probabilities: s.33 of the IRPA; and
Canada (Minister of
Citizenship and Immigration) v Thanaratham, 2005 FCA 122 at para 22.
[21]
The
term “member” is not defined in the IRPA but in the context of the legislative
scheme is to be interpreted broadly: see Poshteh v Canada (Minister of
Citizenship and Immigration), 2005 FCA 85 at paras 27-29; Chiau v Canada (Minister of
Citizenship and Immigration), [2001] 2 FC 297 at para 25; and Kanendra at
paras 22-23).
[22]
In Suresh
(Re), [1997] FCJ No 1537, Justice Teitelbaum concluded that the applicant
was a member of a terrorist group by looking at all the circumstances which
included more benign activities, such as collecting food, and more involved and
“serious” activities such as being a full time executive, and collecting funds
for the organization (at paras 20-21). The applicant in that case may not have
participated in violent and direct terrorist activities, but his involvement
with and his support of the terrorist organization, and his intention were
unambiguous.
[23]
In Tharmavarathan
v Canada (Minister of
Citizenship and Immigration), 2010 FC 985, Justice Mandamin stated that:
[28] 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. [emphasis added]
The jurisprudence points to a number of criteria
– involvement, length of time, degree of commitment – that defines what membership
in a broad sense may be. Not every act of support for a group that there are reasonable
grounds to believe is involved in terrorist activities will constitute membership.
[24]
As
stated by Justice O'Reilly in Sinnaiah v Canada (Minister of
Citizenship and Immigration), 2004 FC 1576 at para 6:
To establish
"membership" in an organization, there must at least be evidence
of an "institutional link" with, or "knowing participation"
in, the group's activities: Chiau, above; Thanaratnam, above.
[emphasis added]
[25]
Support
for this approach may be found in Poshteh at paras 30-32; in Motehaver v Canada
(Minister of Public Safety and Emergency Preparedness), 2009 FC 141 at para
30; in Kashif Omer v Canada (Minister of Citizenship and Immigration),
2007 FC 478 at para 13; in Harb c Canada (Ministre de la Citoyenneté et de
l'Immigration), 2003 FCA 39 at paras 19 & 22; in Farkhondehfall v
Canada (Minister of Citizenship and Immigration), 2010 FC 471; and in Toronto
Coalition to Stop the War v Canada (Minister of Public Safety and Emergency
Preparedness), 2010 FC 957 at paras 118, 120, and 124-128. As I stated in Toronto
Coalition to Stop the War at paras 118 & 128:
[118] But an unrestricted and
broad definition is not a license to classify anyone who has had any dealings
with a terrorist organization as a member of the group. Consideration has to be
given to the facts of each case including any evidence pointing away from a
finding of membership: Poshteh, at para. 38.
[128] Membership may be found from the
evidence as a whole, as was done in the cases cited above, including
statements and actions that provide a basis from which to infer that the
purpose of the contribution was to facilitate or to enable the terrorist
objects of the organization. [emphasis added]
[26]
In
cases which have found that low-level activities such as distributing pamphlets
can be evidence that a person is a member of a terrorist organization, such as Ugbazghi
and Motehaver, above, the applicants were found to have engaged in
other, more substantial activities for the organization that amounted to a
higher degree of commitment and involvement. In Ugbazghi the applicant
participated in meetings and made donations, and was part of a group that
supported the terrorist organization (see paras 38-39). In Motehaver the
applicants also participated in meetings and gave funds. His involvement with
the organization was also over a long period of time and he was well acquainted
with the organization and its goals (see para 24).
[27]
In
this case, the officer erred by not considering the criteria for membership set
out in the jurisprudence. On the record before me, including the redacted
information which I have considered, the evidence would not support a finding
that the applicant had any commitment toward the LTTE and its objectives when
he assisted the organization during the 1980s. The evidence does not establish
that the applicant, as a teenage boy participating in low-level activities, was
in any way integrated into the LTTE. This is not a case of a teenage recruit to
the LTTE’s military cadres.
[28]
Although
there is no evidence that the applicant was coerced into distributing the
pamphlets and selling the soap, it appears that these activities were common
among the high school students in his district at a time of relative peace
within the community. From my reading of the evidence, this was seen more as a
benign diversion from their studies and duties at home. The applicant
characterized them as “fun”. When he wasn’t at school, the applicant had
little to do other than to tend to the produce on the family’s farm. His
knowledge of the LTTE’s true nature, gained in later years, cannot be used
against him to colour his role during a few months in 1985-86. At that time,
the documentary evidence discloses, the North of Sri Lanka was de facto
under the control of the LTTE monitored by UN Peace Keepers from India.
[29]
There
was no corroborating evidence pointing toward membership, as the applicant did
not willingly support the LTTE in later years, did not voluntarily participate
in other LTTE activities, and did not financially or otherwise support the LTTE.
[30]
Concerns
over the truthfulness of the applicant do not amount in themselves to
reasonable grounds of belief in membership: Shanmugasundaram v Canada (Minister of
Citizenship and Immigration), 2010 FC 900 at paras 24-25. While they may
call into question the applicant’s version of events, they do not constitute
evidence of participation. Here, there were only minor inconsistencies in the
applicant’s PIF and interviews. While they could be taken into account in
assessing the value of his evidence, they proved nothing. The applicant was
consistent with respect to his involvement in 1985-86.
[31]
Considering
the law and the evidence, I find that the officer made a reviewable error in
concluding that there are reasonable grounds to believe that the applicant was
a member of the LTTE in the late 1980s. The officer’s decision does not fall
“within a range of acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir at para 47).
Did the officer breach
the duty of fairness through non-disclosure?
[32]
While
my decision on the prior issue is sufficient to dispose of this application, I
think it appropriate to comment on the question of procedural fairness raised
by the applicant.
[33]
The
applicant submits that the Minister breached procedural fairness by failing to
disclose the CSIS brief and CTS memorandum prior to his interview with the
officer. The applicant contends that advance disclosure of such extrinsic
evidence is required when the documents “have such a degree of influence on the
decision maker” that they can be considered instruments of advocacy (see Mekonen
v Canada (Minister of Citizenship and Immigration), 2007 FC 1133 at paras
18-19; see also Baybazarow v (Minister of Citizenship and Immigration),
2010 FC 665 at paras 13-14).
[34]
The
respondent argues that the brief and memorandum were not extrinsic evidence.
The principle of fairness only required that the applicant be apprised of the
crux of the allegations found in the reports during the interview. The
respondent submits that this was done.
[35]
The
respondent relies on Nadarasa v Canada (Minister of Citizenship and Immigration), 2009 FC 1112 to assert
that advance disclosure was not required. The Court, in that case, did express
that the entitlement to advance disclosure of documents relied upon by the
applicant was not absolute. However, the Court also considered what the duty of
fairness would entail when documents are not disclosed. Justice de Montigny
stated that the information contained in such documents should “be disclosed to
the applicant so that he or she has an opportunity to know and respond to the
case against him or her” (at para 25). In the present case, such disclosure was
not done.
[36]
The
respondent is correct that the duty of fairness may be met through means that
fall short of the full disclosure of reports relied upon by the officer, such
as by providing the gist of the allegations and an opportunity to respond to
them. The question
is whether advance disclosure is required in the particular circumstances of
the case. The difficulty here is that the applicant was only informed of the
allegations towards the close of the interview after the officer had posed a
number of questions based on information contained in the reports.
[37]
It
is clear from the officer’s decision, that she gave much weight to the CSIS and
CTS reports in reaching her decision. The officer relied on inconsistencies
between the different interviews and clearly followed the recommendations set
out in the CTS memorandum. I am thus satisfied that these documents are to be
considered as instruments of advocacy as described by Justice Dawson in Mekonen:
[19] The content and purpose of the CBSA
memorandum lead me to conclude that it was an instrument of advocacy designed,
in the words of the Federal Court of Appeal in Bhagwandass,
"to have such a degree of influence on the decision maker that advance
disclosure is required 'to 'level the playing field'".
[38]
Advance
disclosure would have provided the applicant with a better opportunity to address
the allegations of membership. In Pusat, above, a case similar to this
one, it was found that the applicant was entitled, out of fairness, to advance
disclosure or at least to a compensatory measure, such as post interview
submissions, in order to make an informed submission on the points against him (see
paras 31- 34).
[39]
In the
context of this case, procedural fairness required advance disclosure of the
allegations set out in the CSIS and CTS documents.
[40]
In
the result, the application is granted and the matter remitted for reconsideration
by a different officer. No serious questions of general importance were
proposed and none will be certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The application for judicial review is allowed, and the decision of the Immigration
Officer made on November 17, 2010 is hereby set aside.
2.
The matter is remitted for redetermination by a different Immigration Officer
in accordance with these reasons.
3. No
questions are certified.
“Richard
G. Mosley”
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