Date: 20080620
Docket: IMM-3382-07
Citation: 2008 FC 780
Ottawa, Ontario, June 20,
2008
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
SULEYMAN
ERBIL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Erbil Suleyman applied for permanent residence in Canada as a member of
the Convention refugee abroad class. A visa officer at the Canadian Embassy in
Tokyo determined that he was inadmissible to Canada under paragraph 34(1)(f) of
the Immigration and
Refugee Protection Act because of Mr.
Suleyman’s past involvement with the Kurdistan Workers’ Party (or “PKK”) in
Turkey.
[2]
Mr. Suleyman now seeks judicial review of the visa officer’s decision,
asserting that the officer erred in rendering an inadmissibility decision
without first affording him the opportunity to seek Ministerial relief pursuant
to subsection 34(2) of IRPA.
[3]
The visa officer further erred, Mr. Suleyman says, in failing to advise
him that consideration was being given to finding him to be inadmissible under
subsection 34(1) of IRPA, and in failing to disclose extrinsic evidence
relied upon in arriving at the decision under review.
[4]
Mr. Suleyman says that the visa officer also erred in failing to
properly consider the fact that he had been recognized as a Convention refugee
by the Office of the United Nations High Commission for Refugees.
[5]
Finally, Mr. Suleyman says that the visa officer erred in law by
mis-interpreting the term “subversion by force”.
[6]
For the reasons that follow, I am not persuaded that the visa officer
erred as alleged. As a consequence, the application for judicial review will
be dismissed.
Background
[7]
Mr. Suleyman is a citizen of Turkey, who currently resides in Japan. He
acknowledges that while he was in Turkey, he assisted the PKK in a variety of
ways: by providing medicine, clothing and food to PKK members, by providing
assistance and transportation to wounded PKK members, by acting as a courier
for the PKK, by working for PKK causes and by engaging in propaganda
activities.
[8]
While denying having been an active participant, Mr. Suleyman also
admits to having been present during a fight between PKK guerrillas and the
Turkish military, which resulted in the death of four Turkish military
personnel.
[9]
Although Mr. Suleyman was recognized as a Convention refugee by the
UNHCR, his claim for refugee protection in Japan was subsequently refused. He
then applied for permanent residence in Canada as a member of the Convention
refugee abroad class. Mr. Suleyman disclosed his involvement with the PKK in
his application, stating that while he was not a member of the party, he had
voluntarily assisted and supported it.
[10]
Following an interview with a visa officer, the officer determined that
Mr. Suleyman was inadmissible to Canada on the basis that he was a member of an organization for which there are reasonable grounds
to believe has engaged in the subversion by force of a government. It is this
decision that forms the subject matter of this application for judicial review.
Legislative Framework
[11]
The visa officer’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;
(b) engaging in or instigating the
subversion by force of any government;
…
(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).
(2) The matters referred to in subsection
(1) do not constitute inadmissibility in respect of a permanent resident or a
foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the
national interest.
|
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;
…
f) être
membre d'une organisation don=t 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).
(2) Ces faits n'emportent pas
interdiction de territoire pour le résident permanent ou l'étranger qui
convainc le ministre que sa présence au Canada ne serait nullement
préjudiciable à l'intérêt national.
|
[12]
In making a finding under section 34 of the Act, a visa officer is also 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.
|
Standard of Review
[13]
Mr. Suleyman’s first four issues all involve questions of procedural
fairness. As the Federal Court of Appeal observed in see Sketchley
v. Canada (Attorney General), 2005 FCA 404, at paragraphs 52 and 53, the
pragmatic and functional analysis (since replaced by the “standard of review
analysis”) does not apply where judicial review is sought based upon an alleged
denial of procedural fairness. Rather, the task for the Court is to determine
whether the process followed by the decision-maker satisfied the level of
fairness required in all of the circumstances.
[14]
I do not understand this to have changed as a consequence of the recent decision of the Supreme Court of Canada in Dunsmuir v. New
Brunswick, [2008] S.C.J. No. 9: see Justice Binnie’s
concurring decision at paragraph 129, where he confirmed a
reviewing court has the final say in relation to questions of procedural
fairness. See Dunsmuir, at paragraph 151, and Canada (Attorney General) v. Clegg, 2008 FCA 189
at paragraph 19.
[15]
Insofar as Mr. Suleyman’s application relates to
the visa officer’s understanding of the term “subversion by force”, the outcome
of this application would not change, whether the standard of reasonableness or
correctness is applied. To the extent that Mr. Suleyman’s argument relates to
the sufficiency of the visa officer’s reasons, this engages a question of
procedural fairness, and is thus reviewable in the manner discussed in the
preceding paragraph.
Analysis
[16]
Mr. Suleyman has raised a number of issues on this application. While
there is considerable overlap between the issues, as there was in the
submissions made by counsel, I will endeavour to deal with each of the issues
separately, in the order in which they were addressed by counsel.
[17]
Before turning to address these issues, however, it should be noted that
while Mr. Suleyman denied having been a member of the PKK at his interview with
the visa officer, no issue has been taken with the officer’s membership finding
before this Court. This is understandable, given the extent of Mr. Suleyman’s
admitted involvement with the PKK, and the broad and unrestricted meaning to be
given to the word “member” as it is used in paragraph 34(1)(f) of IRPA:
see Poshteh v. Canada (Minister of Citizenship and Immigration), 2005
FCA 121 at paragraphs 27 and 28.
No “Window of Opportunity”
Provided for an Application for Ministerial Relief
[18]
Mr. Suleyman notes that the visa officer’s finding that he was
inadmissible to Canada was communicated to him at the same time that the
officer advised him that his application for permanent residence was being
refused.
[19]
According to Mr. Suleyman, since the opportunity to seek Ministerial
relief in accordance with subsection 34(2) of IRPA only arises after
there has been a determination that an applicant falls within subsection 34(1),
there has to be a delay or, as he puts it, a “window of opportunity”, between
the finding of inadmissibility and the refusal of the application for permanent
residence, in order to allow applicants to seek such relief.
[20]
In the absence of such a window of opportunity, Mr. Suleyman says that
the possibility of an applicant being able to apply for Ministerial relief
prior to the refusal of the application for permanent residence would
necessarily be foreclosed.
[21]
In support of this argument, Mr. Suleyman points to a provision in the
CIC Immigration Manual, which provides that “The application for entry into Canada
should be held in abeyance while the Minister [of Public Safety and Emergency
Preparedness] considers the matter of relief”. According to Mr. Suleyman, this
provision created the legitimate expectation that his application for permanent
residence would be held in abeyance until he had an opportunity to seek
Ministerial relief. The failure to allow him such an opportunity amounts, he
says, to a denial of procedural fairness.
[22]
Mr. Suleyman does concede that nothing would have prevented him from
applying for Ministerial relief under subsection 34(2) after he received the
visa officer’s decision refusing his application for permanent residence. He
also concedes that this option still remains open to him. However, Mr.
Suleyman argues that this is not a desirable alternative, as it would require
the filing of a fresh application, with all of the attendant delays in
processing that this would entail.
[23]
I do not agree with Mr. Suleyman’s interpretation of the process to be
followed under section 34 of IRPA.
[24]
As I noted in Ali v. Canada (Minister of Citizenship and Immigration)¸ 2004 FC 1174,
there are two discrete components to section 34 of IRPA. Subsection
34(1) involves a determination being made by a visa officer as to whether there
are reasonable grounds for believing, amongst other things, that an applicant
is a member of one of the classes of organizations described in the subsection.
[25]
In contrast, subsection 34(2) contemplates that a different
decision-maker, namely the Minister himself, consider whether the admission to Canada
of a foreign national such as Mr. Suleyman would be detrimental to the national
interest.
[26]
Nothing in the statute contemplates that an applicant has to be given an
opportunity to seek Ministerial relief before a decision can be made under
subsection 34(1). Moreover, the jurisprudence of this Court has clearly
determined that it is not unfair to have the visa officer’s determination made
before an application for Ministerial relief is dealt with.
[27]
By way of example, in Hassanzadeh v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1121, the applicant argued that there was no jurisdiction to
proceed with a subsection 34(1) inadmissibility determination, in the situation
where a subsection 34(2) application had already been filed with the Minister.
That argument was rejected by Justice Mosley, who found that there was nothing
procedurally unfair in having the inadmissibility determination precede the
Minister's consideration of the exemption request.
[28]
In contrast to the situation
that presented itself in Hassanzadeh,
in this case, Mr. Suleyman argues that there is no jurisdiction to proceed with
a subsection 34(1) inadmissibility determination in circumstances where no
subsection 34(2) application has been filed with the Minister.
[29]
As in Hassanzadeh, Mr.
Suleyman’s argument is based upon the premise
that a decision by the Minister under subsection 34(2) is an integral part of
the inadmissibility determination under subsection 34(1). That argument has
already been rejected by this Court in cases such as Ali,
previously cited, and Hassanzadeh.
[30]
Moreover, as the Federal Court of Appeal observed in Poshteh,
previously cited, at paragraph 10, there is no temporal aspect to subsection
34(2) of IRPA, and nothing to fetter the discretion of the Minister as
to when in the process a Ministerial exemption might be granted.
[31]
Furthermore, a review of the relevant provisions of the Immigration
Manual does not support Mr. Suleyman’s contention that he had the legitimate
expectation that a two-step process would be followed, with a window of
opportunity being provided to allow him to make application for Ministerial
relief, before a decision would be rendered with respect to his application for
permanent residence under subsection 34(1).
[32]
Read in context, the provision in the Manual relied upon by Mr. Suleyman
clearly contemplates applications for entry into Canada being held in abeyance
in situations where a request for Ministerial relief has actually been received
prior to a decision being rendered in relation to the application for permanent
residence.
[33]
Such an interpretation is consistent with the jurisprudence of
this Court. In this regard, I refer to Hassanzadeh, cited above, where Justice Mosley noted at paragraph 28
of his reasons that while a subsection
34(2) exemption decision would normally follow a determination of
inadmissibility under subsection 34(1), such a sequence of events is not
mandated by the statute.
[34]
Justice Mosley went on to observe that there could be exceptional reasons for seeking Ministerial
relief prior to a decision having been rendered with respect to the
inadmissibility issue. He then stated that “In most instances, it would be
preferable for the evidence to be presented and the fact finding to be
conducted by the Board before the Minister considers an application for
discretionary relief”.
[35]
Thus it is clear that the provision in the Immigration Manual relied
upon by Mr. Suleyman is intended to address the situation where an application
for Ministerial relief was received before a decision had been made with
respect to the application for entry into Canada. That is not the case here.
As a consequence, the Manual could not have created a legitimate expectation
that Mr. Suleyman’s application for permanent residence would have been held in
abeyance indefinitely, pending the determination of a potential, but as yet
unfiled, application for Ministerial relief.
[36]
Finally, Mr. Suleyman concedes that he was not entitled to notice as to
the availability of the Ministerial relief provisions, given that the
availability of this process is evident on the face of the statute: see Hussenu v. Canada
(Minister of Citizenship and Immigration), 2004 FC 283, at paragraphs 25,
28 and 30.
[37]
Surely, if there is no obligation on the respondent to even advise an
applicant as to the potential availability of Ministerial relief, the Minister
cannot be required to hold a decision on the admissibility issue in abeyance
for an indeterminate period of time, on the off-chance that an applicant may,
at some point seek, to avail him- or herself of the provisions of subsection
34(2).
Notice of the Statutory Provision in Issue
[38]
Mr. Suleyman also argues that the visa officer acted unfairly in failing
to give him proper notice that consideration was being given to finding him to
be inadmissible pursuant to either section 34(1)(b) or 34(1)(f) of the Immigration
and Refugee Protection Act.
[39]
As I understand Mr. Suleyman’s argument, he is not suggesting that he
was not aware that his involvement with the PKK was of concern to the visa
officer. Indeed, such an argument would have undoubtedly been doomed to
failure, given that the documentation relating to his application for permanent
residence, including his own application form and the record of his interview
with the visa officer contained in the CAIPS notes, all make it abundantly
clear that Mr. Suleyman was well aware that this was significant, and was
indeed the central preoccupation of the officer considering the application.
[40]
Rather, Mr. Suleyman’s argument appears to be closely tied to his first
issue, in that he says that he should have been made aware that consideration
was being given to finding him inadmissible under subsection 34(1), in order to
allow him to apply for Ministerial relief under subsection 34(2) before a final
decision had been made in this regard.
[41]
However, as Justice Dawson recently reiterated in Johnson v. Canada
(Minister of Citizenship and Immigration), 2008 FC 2, there is no obligation on an officer to give an applicant notice
of the officer's concerns where those concerns arise directly from the provisions
of the Immigration and Refugee Protection Act and Regulations that the
officer is bound to follow in assessing the applicant’s application. (See also
Ayyalasomayajula v. Canada (Minister of Citizenship and
Immigration), [2007] F.C.J. No. 320, at paragraph 18, and the cases cited
therein).
[42]
As was the case in Johnson, the visa officer’s concerns in this
case arose directly from the provisions of the Act. As a result, there was no obligation on the officer to give Mr. Suleyman notice
of the officer's concerns.
[43]
It is also noteworthy that Mr. Suleyman’s affidavit is entirely silent
in relation to this issue, and thus there is no evidence to indicate that he
was not fully aware that consideration was being given to finding him inadmissible
under subsection 34(1) of Immigration and Refugee Protection Act. As a
consequence, I am not persuaded that Mr. Suleyman was denied procedural
fairness in this regard.
Failure to Disclose Extrinsic Evidence
[44]
Mr. Suleyman asserts that it was unfair for the visa officer not to have
provided him with a copy of an email received by the visa officer from the
Canadian Border Services Agency, which he describes as having contained
“advice” with respect to his application for permanent residence. Mr. Suleyman
further contends that he should also have been afforded the opportunity to make
submissions with respect to the email.
[45]
In support of his contention that he was denied procedural fairness in
this regard, Mr. Suleyman relies on the decision in Mekonen v. Canada
(Minister of Citizenship and Immigration), 2007 FC 1133, which involved another
undisclosed CBSA memo received by a visa officer in the context of a section
34(1) admissibility determination.
[46]
At paragraph 19 of the Mekonen decision, Justice Dawson found
that the 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, [2001] 3 F.C. 3 (C.A.)] “to have such a degree of influence on
the decision maker that advance disclosure is required ‘to ‘level the playing
field’”.
[47]
However, a review of the Mekonen decision reveals that the memo
in question in that case was quite different in nature than the document in
issue in this case. That is, the CBSA memo in issue in Mekonen had open
source information about the organization under consideration in that case
appended to it. In addition, the memo contained a recommendation, along with
the observation that the information being forwarded to the visa officer
“provides evidence to support a determination of inadmissibility”.
[48]
In this case, the visa officer had evidently already made his decision
with respect to Mr. Suleyman’s admissibility prior to forwarding the decision
to the CBSA for its concurrence. The undisclosed CBSA email in issue here
consists of three lines, two of which apologize for the delay in responding,
and thank the officer for “keeping [them] in the loop” about the application.
The third line simply states “Please proceed with the refusal”.
[49]
In contrast to the memo in issue in Mekonen, the email in issue
in this case could by no stretch of the imagination be described as ‘an
instrument of advocacy’, nor could it have had “such a degree of influence on
the decision maker that advance disclosure is required to ‘level the playing
field’”. As a consequence, I am not persuaded that the failure to forward a
copy of the email to Mr. Suleyman, or to give him an opportunity to respond to
it constituted a denial of procedural fairness.
Failure to Properly Address the UNHCR Finding that Mr.
Suleyman was a Convention Refugee
[50]
Although Mr. Suleyman acknowledges that the visa officer was not bound
by the UNHCR’s finding that he was a Convention refugee, he says that the visa
officer erred by making a finding that was inconsistent with the UNHCR’s
finding, without providing reasons for his disagreement with that finding.
[51]
In particular, Mr. Suleyman argues that by recognizing him as a
Convention refugee, the UNHCR implicitly recognized that he was not excluded by
virtue of Article 1F of the Refugee Convention, which provides that:
The
provisions of this Convention shall not apply to any person with respect to
whom there are serious reasons for considering that:
(a) he has
committed a crime against peace, a war crime, or a crime against humanity, as
defined in the international instruments drawn up to make provision in respect
of such crimes;
(b) he has
committed a serious non-political crime outside the country of refuge prior to
his admission to that country as a refugee;
(c) he has
been guilty of acts contrary to the purposes and principles of the United
Nations.
[52]
According to Mr. Suleyman, it is impossible to fall outside the
exclusion clause of the Refugee Convention, and still come within paragraph
34(1)(f) of IRPA by virtue of paragraph 34(1)(b), given that engaging
in, or instigating the subversion by force of any government is a serious
non-political crime.
[53]
This argument has already been rejected by this Court. That is, in Omer
v. Canada (Minister of Citizenship and Immigration), [2007]
F.C.J. No. 642, Justice Blais considered the relationship between exclusion
under Article 1F of the Refugee Convention and inadmissibility under paragraph
34(1)(f) of the Immigration and Refugee Act, observing that the two
determinations involved quite different considerations.
[54]
In this regard, Justice Blais stated at paragraph 11 of his decision
that:
It should also be noted that, in its decision, the
Board found the applicant to be complicit in the actions of the MQM. Counsel
for each party also made submissions to this Court with regards to the issue of
complicity, which it will not be necessary for this Court to address, since the
issue of complicity is irrelevant to a determination under paragraph 34(1)(f)
of the Act, which refers strictly to the notion of membership in the
organization. The question of inadmissibility under paragraph 34(1)(f)
should thus be distinguished from inadmissibility as a Convention refugee under
section 98 of the Act, which relies on article 1F of the United
Nations Convention Relating to the Status of Refugees, where the ground
for inadmissibility is described as having "committed a crime against
peace, a war crime, or a crime against humanity" and, absent direct proof
as to the involvement of the person in a specific crime, requires a finding of
complicity with the organization who committed such crime. [emphasis added]
[55]
A review of the record in this case confirms that the
UNHCR considered the issue of Mr. Suleyman’s potential exclusion under Article 1F of the Convention, concluding that he was not
excluded as there was no indication that he had personally assisted in the
commission of any of the crimes falling under Article 1F.
[56]
In contrast, the visa officer’s finding that Mr. Suleyman
was inadmissible under paragraph 34(1)(f) of IRPA was based
upon his membership in the PKK. As was noted at the outset of the analysis, no
issue has been taken with respect to the officer’s membership finding.
[57]
As a consequence, I am not persuaded that there was any inconsistency
between the findings of the UNHCR and the visa officer, or that the visa
officer erred as alleged in this regard.
Application of the Term “Subversion by Force”
[58]
Mr. Suleyman’s final argument relates to the visa officer’s
understanding of the term “subversion by force”. There appear to be two different
aspects to Mr. Suleyman’s argument in this regard.
[59]
As I understand Mr. Suleyman’s first argument, he contends that the visa
officer erred by considering the use of force against the government of Turkey
to be necessarily proscribed by paragraph 34(1)(f) of the Immigration and
Refugee Protection Act. That is, Mr. Suleyman contends that the use of
force against some governments may be proper, legitimate and justifiable, as a
last resort against tyranny. In the case of the PKK, Mr. Suleyman submits that
the activities of the PKK had a rational connection with the organization’s
political objective of ending human rights abuses inflicted by the Turkish
government against its Kurdish minority.
[60]
This Court has already rejected this argument in Oremade v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1486. That is, in Oremade, Justice
Strayer observed that while paragraph
34(1)(a) of IRPA only applies to acts of espionage or
subversion against democratic governments, paragraph 34(1)(b), proscribing
those who have engaged in subversion “by force of any government” applies,
regardless of the kind of government which is the target of the subversion: see
Oremade, at paragraph 12.
[61]
That is, Oremade clearly
establishes that the subversion by force of any government,
including a despotic one, is enough for a finding of inadmissibility. The
evidence in this case clearly demonstrated that the PKK was engaged in the use
of force against the Turkish government. As a consequence, I am not persuaded
that the visa officer erred in this regard.
[62]
Mr. Suleyman also submits that the visa officer erred in his application
of the concept of “subversion by force”, by failing to indicate what the
officer understood by the term, and by failing to engage in any analysis of the
concept.
[63]
The term “subversion” has been defined
in the jurisprudence as “accomplishing change by illicit means or for improper
purposes related to an organization”: see Qu v. Canada
(Minister of Citizenship and Immigration), [2002] 3 F.C. 3, 2001 FCA 399,
at paragraph 12.
[64]
In this case, one of the avowed objectives of the PKK is to effect
political change in Turkey. Not only is the documentary record replete with
references to the illicit means used by the PKK to effect such change,
including the use of landmines and the involvement of the organization in human
rights abuses, as the visa officer noted, Mr. Suleyman has admitted to personal
involvement in an armed guerrilla attack against Turkish military personnel.
[65]
While the visa officer’s analysis of this issue may not have been as
comprehensive as would otherwise have been desired, I am not persuaded that the
officer committed a reviewable error in this regard.
Conclusion
[66]
For these reasons, the application for judicial review is dismissed.
Certification
[67]
Mr. Suleyman proposes a series of questions for certification in this
matter. A number of these questions relate to issues that have already been
thoroughly canvassed in the jurisprudence, and are thus not suitable for
certification. Moreover, the concept of “subversion by force” as the term is
used in section 34 of the Immigration and Refugee Protection Act has
already been defined in the case law, and its application in this particular
case does not raise a question of general importance.
[68]
As a consequence, I decline to certify the questions proposed by Mr.
Suleyman.
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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