Date: 20070116
Docket: IMM-3048-06
Citation: 2007 FC 43
Edmonton, Alberta, January 16,
2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
MIKHAIL ALEXANDER LENNIKOV
IRINA LENNIKOVA AND
DIMITRI
(DMITRI) LENNIKOV
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mikhail
Alexander Lennikov and his wife and child are all Russian citizens. The
family’s application for permanent residency in Canada was refused
because an immigration officer formed the opinion that Mr. Lennikov was
inadmissible to Canada because of his past employment with the KGB.
[2]
This
finding was confirmed by the Immigration Division of the Immigration and
Refugee Board, which found that Mr. Lennikov had been a member of a group that
had engaged in acts of espionage or subversion against a democratic government,
institution or process, and was thus inadmissible to Canada. Mr.
Lennikov’s wife and child were also found to be inadmissible, as his
accompanying family members.
[3]
The
applicants now seek judicial review of the Immigration Division’s decision,
asserting that the Board committed a number of errors in coming to the
conclusion that Mr. Lennikov had been a member of a group that had engaged in
acts of espionage against a democratic government or institution. For the
reasons that follow, I am not persuaded that the Board erred as alleged, and
accordingly, the application will be dismissed.
Background
[4]
Mr.
Lennikov attended the Far Eastern State University in the former U.S.S.R. He
was enrolled in the Department of Oriental Studies, where he specialized in the
Japanese language.
[5]
While
attending university, Mr. Lennikov worked part-time as an interpreter for
“Intourist”, a government agency providing tours to foreign tourists. He was
also the leader of Kom So Mol, a Communist Youth League.
[6]
Mr.
Lennikov traveled to Japan in October of 1981, as part of a Kom So
Mol tour. Shortly before he left for Japan, Mr. Lennikov was
approached for the first time by a KGB agent, a man who he identifies only as
“Maximov”. Maximov asked Mr. Lennikov to provide character references for the
students in his class, all of whom were studying either the Chinese or Japanese
language. Character references such as that sought from Mr. Lennikov were
evidently used by the KGB to determine whether individuals should be allowed to
travel abroad.
[7]
Mr.
Lennikov says that providing this sort of information was part of his role as a
student leader at the university.
[8]
Before
Mr. Lennikov left for Japan, he says that Maximov asked him to keep a
lookout for anything of note that he observed while in that country. Mr.
Lennikov says that he met many Japanese people during the trip, and that they
gave him their business cards.
[9]
When
Mr. Lennikov returned from his trip to Japan, he met with
Maximov, and gave him the business cards of the Japanese businessmen that he
had met, because, he says, he really had nothing of any value to give to him.
[10]
Maximov
was evidently very interested in the activities of the Japanese police while
they were on board the Russian students’ ship, while it was docked in Japanese
ports. He was also interested in a Mr. Sato, a socialist member of the
Japanese Parliament that the group had met. Mr. Lennikov says that he had only met
Mr. Sato briefly, and couldn’t provide much information about him.
[11]
Maximov
contacted Mr. Lennikov again after he had graduated from the Far Eastern State
University, and advised him that he had sent a request to the Employment
Distribution Commission to have Mr. Lennikov hired by the KGB. This request was
accepted and Mr. Lennikov began work for the KGB in August of 1982.
[12]
Mr.
Lennikov says that although he did not want to go to work for the KGB, he felt
that he had no choice. While he did not fear for his personal safety, he felt
that his career and his ability to travel outside the U.S.S.R. would have been
compromised had he declined the KGB’s offer of employment.
[13]
Mr.
Lennikov ultimately went to work as an officer in the First Department in the
Japanese Section in the KGB’s Vladivostok office, with the rank
of Lieutenant. The First Department was responsible for monitoring Japanese
businessmen who were visiting the Soviet Union. Mr. Lennikov’s responsibilities
included the translation of Japanese documents and maintaining contact with two
or three informants who were students of the Oriental Studies Department at the
Far Eastern State University.
[14]
In
addition, Mr. Lennikov was involved in assessing prospective informants in Japan, providing
opinions as to their reliability.
[15]
In
1984, as part of his duties with the KGB, Mr. Lennikov travelled to Sapporo, Japan, with the
local Governor. Mr. Lennikov acted as an interpreter during the trip, but says
that he did not perform any intelligence work while in Japan.
[16]
Mr.
Lennikov was then promoted to Senior Lieutenant. Although he was progressing
with his career, Mr. Lennikov was not happy in his position, and in 1985, he
drafted a report requesting that he be transferred to the Second Department of
the KGB, which was involved in Counterintelligence. Mr. Lennikov says that this
report embarrassed the acting head of the First Department, and that he was
forced to withdraw the request. In exchange for withdrawing the report, Mr.
Lennikov says that he was offered long overdue training.
[17]
In
1986, Mr. Lennikov began trying to leave the KGB, taking a position as
assistant for international relations for the Governor of the province of
Primorye.
While working for the Governor, Mr. Lennikov remained a KGB employee, and he
continued to gather personal information from students at the university for
the KGB.
[18]
When
the head of the First Department in Vladivostok was replaced in 1986,
Mr. Lennikov asked to leave the KGB, requesting a full transfer to the
Governor’s office. He did not receive a response to this request. However, in
1987 he was promoted to the rank of Captain.
[19]
In
1988, Mr. Lennikov was recalled to the local KGB office. Very unhappy with his
situation, he drafted a report to his superiors in which he outlined why it was
that he was not suitable for employment within the KGB. When the head of the
First Department was on leave, Mr. Lennikov submitted his report to the head of
Personnel. By November of 1988, he had been dismissed from the KGB on the grounds
that he was incapable of service.
[20]
Mr.
Lennikov worked in a variety of other positions after leaving the KGB.
However, he understood that he was viewed as a traitor for having embarrassed
the KGB. Concerned for his safety and that of his family, in 1995 Mr. Lennikov
and his family left Russia for Japan, where Mr. Lennikov
spent a couple of years conducting research.
[21]
In
1997, Mr. Lennikov was accepted at the University of British Columbia, and moved
with his family to Vancouver, entering Canada on a study
permit.
[22]
In
April of 1999, the family filed their application for permanent residence in Canada. In
conjunction with this application, Mr. Lennikov and his family attended for an
interview with an Immigration Officer. After the interview, the officer
determined that Mr. Lennikov was inadmissible to Canada as a result
of his previous employment with the KGB.
[23]
Mr.
Lennikov then underwent further interviews, which resulted in a report being
prepared under the provisions of subsection 44(2) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27. The matter was then referred to
the Immigration Division for an admissibility hearing.
The Immigration
Division’s Decision
[24]
The
Immigration Division identified the two questions that it was required to
address as firstly, whether there were reasonable grounds to believe that the
KGB was an organization which had engaged in an act of espionage against a
democratic government, institution or process, as these terms are understood in
Canada. In the
event that the Board concluded that this was indeed the case, it then had to
determine whether there were reasonable grounds to believe that Mr. Lennikov
had been a member of that organization, within the meaning of paragraph
34(1)(f) of IRPA.
[25]
The
Board commenced its analysis by considering the standard of proof to be applied
in section 34, holding that “reasonable grounds to believe” required “more than
a flimsy suspicion”. This was a low threshold, less than the civil test of the
balance of probabilities, according to the Board.
[26]
There
was no issue before the Board about the fact that the KGB was an organization
that had engaged in acts of espionage against democratic governments,
institutions or processes. The Board recognized, however, that the KGB had a complex
operational structure, which, with some minor differences, was replicated in
the provinces across the Soviet Union.
[27]
The
Board relied on a variety of sources for a definition of espionage, including
the decision in Qu v. Canada (Minister of Citizenship
and Immigration), [2002] 3 F.C. 3, 2001 FCA 399 and the former Official
Secrets Act. Applying this definition, the Board found that not only was
the First Chief Directorate of the KGB in Moscow involved in espionage (which
both parties conceded) but that the KGB “in its entirety” was actively involved
in espionage.
[28]
The
Board found that the KGB was a “state within a state”. This conclusion was
based on the documentary evidence, which, among other things, indicated that
the raison d’être of the KGB, at all levels, was to protect the
dictatorship of the USSR by gathering information internally and
externally for the sole target of state consolidation.
[29]
Turning
to Mr. Lennikov’s membership in the KGB, the Board considered his allegation
that he was forced to work for the KGB and could not safely refuse to join the
organization due to the consequences to his personal life and career, as well
as the Minister’s assertion that he was not coerced to join the KGB, and that
had he declined the offer of employment, he would have suffered no harm.
[30]
In
rejecting Mr. Lennikov’s claim of coercion, the Board noted that he had
testified that he did not really fear for his life, but more for his career
prospects.
[31]
The
Board also observed that Mr. Lennikov had an extensive knowledge of the KGB.
Moreover, despite his attempts to minimize his contribution to the
organization, both the documentary evidence and common sense dictated that he
must have known that the information that he gathered was being used by the KGB
for espionage purposes.
[32]
While
the evidence did not necessarily indicate that Mr. Lennikov committed acts of
espionage himself, the Board found that it was clear that he was at least
complicit in such acts during his years of service with the KGB.
[33]
The
Board also rejected Mr. Lennikov’s characterization of his duties as simply
administrative in nature. While he may not have received training in espionage
techniques, he was given complex files to deal with, including the translation
of documents, the supervision of student informants, and the collection of
information regarding Japanese businessmen.
[34]
Furthermore,
Mr. Lennikov benefited from several promotions within the KGB, despite
allegedly having intentionally caused turmoil by requesting transfers and
requesting to leave the organization. The Board also noted that Mr. Lennikov
had maintained his contacts in the KGB after having left the organization.
[35]
Finally,
the Board noted that despite the circumstances allegedly surrounding Mr.
Lennikov’s departure from the KGB in 1988, his Work Book nonetheless indicated
that he continued to work for the Soviet government until 1991. Moreover, he
participated in government joint ventures, and returned on a university
exchange from Japan to teach at the Orient Studies University at Vladivostok from 1994 to
1997.
[36]
There
was also no evidence that either Mr. Lennikov or his family suffered any harm
as a result of his departure from the KGB in the eight years before he came to Canada.
[37]
The
Board therefore concluded that Mr. Lennikov was a person described in paragraph
34(1)(f) of IRPA, and a deportation order was issued. Mr. Lennikov’s
wife and son were also made subject to deportation orders, as Mr. Lennikov’s
accompanying family members.
Legislative Framework
[38]
The
Board’s inadmissibility finding was made under the provisions of section 34 of
the Immigration and Refugee Protection Act, the relevant portions of
which provide that:
|
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;
… or
(f) being a member of an organization that there are
reasonable grounds to believe engages, has engaged or will engage in acts
referred to in paragraph (a), (b) or (c).
|
34. (1)
Emportent interdiction de territoire pour raison de sécurité les faits
suivants :
a) être l’auteur d’actes d’espionnage ou
se livrer à la subversion contre toute institution démocratique, au sens où
cette expression s’entend au Canada;
…
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).
|
[39]
In
making its finding under section 34 of the Act, the Board is guided by section
33 of IRPA, which provides that:
|
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.
|
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.
|
General Observations Regarding the Standard of
Review
[40]
After
carrying out a pragmatic and functional analysis, the Federal Court of Appeal
in Poshteh v. Canada (Minister of Citizenship and Immigration), [2005] 3
F.C.R. 487, 2005 FCA 85, found that the Immigration Division has expertise in
fact-finding which requires great deference to its findings of fact. I
interpret this to mean that such findings are to be reviewed against a standard
of patent unreasonableness.
[41]
Moreover,
the Federal Court of Appeal also found that questions of mixed fact and law,
including those involving legal questions relating to the interpretation of the
term ‘member’ are entitled to some deference, and should be reviewed against
the standard of reasonableness.
[42]
I
will return to consider the applicable standard of review governing each of the
issues raised by Mr. Lennikov, in the context of my discussion of those issues.
The Reasonable Grounds to Believe Standard
[43]
Before
turning to consider the arguments advanced by Mr. Lennikov, however, it is
helpful to first have an understanding of the standard of proof required to
establish inadmissibility under section 34 of IRPA. That is, what
does “reasonable grounds to believe” mean?
[44]
In Mugasera
v. Canada (Minister of Citizenship and Immigration) [2005] 2 S.C.R. 100,
[2005] S.C.J. No. 39, 2005 SCC 40, the Supreme Court of Canada held that the
"reasonable grounds to believe" standard requires something more than
mere suspicion, but less than the standard applicable in civil matters of proof
on the balance of probabilities: see ¶114.
[45]
With
this understanding of the applicable standard, I turn now to consider Mr.
Lennikov’s arguments.
The KGB as a Monolithic Institution
[46]
While
conceding that the First Chief Directorate of the KGB was indeed engaged in
espionage, Mr. Lennikov says that the Board erred in treating the KGB as a
monolithic organization, whose entire focus was on espionage-related
activities. According to Mr. Lennikov, if this were the case, anyone who had
ever worked for the KGB, in whatever capacity, would be inadmissible under the
provisions of paragraph 34(1)(f) of the Immigration and Refugee Protection
Act.
[47]
Mr.
Lennikov points out that the KGB was the state security apparatus of the former
Soviet Union, and performed many legitimate governmental functions relating to
the security of the State, such as border security and the regulation of
immigration, in addition to its espionage activities.
[48]
In
support of Mr. Lennikov’s contention that the Board erred in failing to
properly consider whether the department that he worked for in the KGB’s Vladivostok office was itself
actually engaged in espionage, he points to the decision of Member Nupponen in Person
Concerned v. Minister of Citizenship and Immigration, Decision A4-00550.
In that case the Board conducted a careful analysis of the evidence relating to
the activities of the KGB, concluding that it would be inappropriate to
characterize the entire KGB organization as one engaged in espionage, without a
real analysis of precisely what it was that the individual in question did
within the organization.
[49]
The
determination of whether an organization is one described in subsection 34(1)
of IRPA has previously been reviewed by this Court on the standard of
reasonableness: see, for example Kanendra v. Canada (Minister of Citizenship
and Immigration), 2005 FC 923, [2005] F.C.J. No. 1156 at ¶12 (F.C.), where
the Court adopted the pragmatic and functional analysis conducted by Justice
Rothstein, then of the Federal Court of Appeal in the Poshteh matter
referred to above.
[50]
The
question, then, is whether the findings of the Board in this regard are
supported by reasons that will withstand a somewhat probing examination: see Canada (Director of
Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748,
144 D.L.R. (4th) 1 at ¶ 56).
[51]
A
review of the documentary evidence reveals that the central KGB organization
was divided into a series of Directorates, each with different responsibilities.
In this regard, it will be recalled that Mr. Lennikov conceded that the First
Chief Directorate of the KGB was indeed engaged in espionage.
[52]
The
Board also found that the structure of the central KGB was mirrored in the
provinces, with some modifications in the nomenclature of the component parts
of the provincial branches. By way of example, the Board noted that the term
“Directorate” was used at the central level, whereas the term “Department” was
used in the provinces.
[53]
In
this regard, it bears repeating that Mr. Lennikov worked in the First
Department in the Japanese Section in the KGB’s Vladivostok office.
[54]
The
Board carefully reviewed the documentary evidence in coming to its conclusion
that “the KGB was dedicated to the consolidation and expansion of the USSR in
its entirety, that espionage within the meaning of the inadmissibility section
was a regular source of information gathering and that not only the First
Directorate in Moscow was involved in acts of
espionage”.
[55]
This
finding was amply supported by the documentary evidence before the Board,
including documents provided by Mr. Lennikov himself. What Mr. Lennikov takes
issue with is the weight that the Board attributed to the documentary evidence,
and the fact that the presiding member in this case weighed the evidence
differently than did Member Nupponen in the case relied upon by Mr. Lennikov.
[56]
It
is not the task of the Court on judicial review to re-weigh the evidence that
was before the Board. In this case, there was evidence before the Board that
reasonably supported its finding with respect to the nature of the KGB as an
organization, and I see no basis for interfering with that conclusion.
[57]
Moreover,
the evidence before the Board amply demonstrates that however the KGB may have
been structured, the work that Mr. Lennikov himself did, such as the recruiting
of informants in Japan, and passing information on to the First Directorate
with respect to prospective informants directly related to espionage.
[58]
The
Board did not accept that Mr. Lennikov was unaware of the use that was made of
the information that he passed on to the First Directorate. This is a finding
of fact, and as such is entitled to considerable deference. On the basis of
the documentary record before the Board, and the fact that Mr. Lennikov
demonstrated a substantial knowledge of the KGB organization, I am satisfied
that the Board’s finding in this regard was entirely reasonable.
The Complicity Analysis
Argument
[59]
Mr.
Lennikov submits that the Board erred in applying the concept of complicity, as
it has been developed in the context of Article 1F of the United Nations’ Convention
Relating to the Status of Refugees to the issue of membership in an
organization, within the meaning of paragraph 34(1)(f) of the Immigration and
Refugee Protection Act.
[60]
According
to Mr. Lennikov, the use of a complicity analysis in cases under section 34 of the
Immigration and Refugee Protection Act would broaden the ambit of the
section to such an extent that, for instance, any American working for the U.S.
Department of Homeland Security, whether as a border guard, secretary or
accountant, would be inadmissible to Canada.
[61]
At
the outset, it should be noted that there is jurisprudence of this Court to the
effect that the case law defining complicity that has evolved in the context of
exclusion cases, applies equally to at least one of the inadmissibility
provisions of the Immigration and Refugee Protection Act: see Zazai
v. Canada (Minister of Citizenship and Immigration), [2005] 2 F.C.R. 78,
2004 FC 1356, at ¶ 49, aff’d, 2005 FCA 303. See also Murillo v. Canada (Minister of
Citizenship and Immigration), [2002] 3 F.C. 287, 2002 FCT 1240.
[62]
As
the Federal Court of Appeal observed at paragraph 13 of Zazai,
complicity is not a crime per se, but is rather is a mode of committing a
crime. With this in mind, it is perhaps noteworthy that both Zazai and
Murillo dealt with inadmissibility findings made under section 35 of the Immigration
and Refugee Protection Act, or its predecessor section under the Immigration
Act, based upon the applicants’ involvement in crimes against humanity. In
contrast, this case relates to section 34 of the Act, dealing with
inadmissibility on security grounds.
[63]
That
said, I am not required to make a blanket determination as to whether, as a
matter of law, a complicity-type analysis is appropriate for use in determining
whether an individual is a member of an organization that has engaged in acts
of espionage against a democratic government or institution.
[64]
This
is because in this case, it was Mr. Lennikov himself who put the matter in
issue, having argued before the Immigration Division that he should not be
found to have been a member of an organization engaged in espionage because he
had been forced to work for the KGB against his will, and had not done so
voluntarily.
[65]
In
assessing the credibility of Mr. Lennikov’s evidence in this regard, it seems
to me to have been entirely reasonable for the Board to have examined the
circumstances surrounding his employment with the KGB, the nature of his duties
while he was employed by the organization, whether or not it was open to him to
leave the KGB, and whether he did so at the first reasonable opportunity.
[66]
In
other words, having put the voluntariness of his involvement directly in issue
in this case, it is not now open to Mr. Lennikov to argue that the Board erred
in considering factors relevant to that question.
[67]
Before
leaving this issue, I should also observe that the Board’s findings with
respect to the circumstances surrounding Mr. Lennikov’s joining and leaving the
KGB were amply supported by the evidence before it, in particular by Mr.
Lennikov’s own admissions. In this regard, I am satisfied that it was indeed
reasonably open to the Board to find that Mr. Lennikov was not coerced, such
that his activities could not be considered to have been voluntary.
Did the Board
Err in Finding that the Japanese businessmen were Members of a Trade or
Commercial Association?
[68]
Mr.
Lennikov submits that the Board erred in finding that the Japanese businessmen
that Mr. Lennikov met with during his visit to Japan were members of a trade or
commercial association, which qualifies as a democratic institution under
section 34(1) of the Immigration and Refugee Protection Act, as that
term has been interpreted in decisions such as that of the Federal Court of
Appeal in Qu v. Canada (Minister of Citizenship and Immigration),
previously cited, at para. 46.
[69]
It
is not necessary to consider this issue in any detail, as whether or not the
Japanese businessmen were members of an association that qualifies as a
democratic institution within the meaning of section 34 of Immigration and
Refugee Protection Act, given Mr. Lennikov’s own admission that he provided
information used to recruit KGB informants in Japan.
The Fairness Issue
[70]
Finally,
Mr. Lennikov submits that it was unfair for the Board to rely on a finding that
he himself was engaged in espionage, given the Minister’s position before the
Board that it was not being alleged that Mr. Lennikov was himself actively
engaged in espionage within the meaning of subsection 34(1)(a) of IRPA,
but only that he was a member of an organization engaged in espionage within
the meaning of subsection 34(1)(f).
[71]
Questions
of procedural fairness are to be reviewed against a standard of correctness.
That is, it is not necessary to go through a pragmatic and functional analysis
in relation to a question of procedural fairness – it is for the Court to
determine whether the procedure that was followed in a given case was fair or
not, having regard to all of the relevant circumstances: Sketchley v. Canada
(Attorney General), [2005] F.C.J. No. 2056, 2005 FCA 404, at ¶ 52-53.
[72]
While
it is true that the Board did make passing comments in its decision with
respect to Mr. Lennikov’s own direct involvement in espionage activities, at
the end of the day, the Board’s finding was that Mr. Lennikov was inadmissible
under subsection 34(1)(f) of the Act. Moreover, the Board’s analysis was
always framed in terms of Mr. Lennikov’s involvement in an organization
involved in espionage.
[73]
No
finding was made under subsection 34(1)(a) in relation to Mr. Lennikov.
Indeed, the Board specifically recognized that the evidence before it may not
have been sufficient to support a finding under this provision.
[74]
In
these circumstances, I am not persuaded that there was a breach of procedural
fairness on the part of the Board.
Conclusion
[75]
For
these reasons, the application for judicial review is dismissed.
Certification
[76]
Mr.
Lennikov has proposed a question for certification relating to the
appropriateness of the Board’s complicity analysis. As was noted above, the
Board’s analysis was responsive to the argument advanced by Mr. Lennikov
himself to the effect that he should not be held to account for his work with
the KGB because of the involuntary nature of that involvement.
[77]
Given
that my decision with respect to the appropriateness of the Board’s
consideration of complicity-type factors does not determine the appropriateness
of this type of analysis as a matter of general principle, but is confined to
the specific facts of this case, I am not persuaded that the question is an
appropriate one for certification, and I decline to certify it.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that:
1. This
application for judicial review is dismissed; and
2. No
serious question of general importance is certified.
“Anne
Mactavish”
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