Date:
20130610
Docket:
IMM-6416-12
Citation:
2013 FC 623
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
June 10, 2013
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
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LUIS ALVARO PIZARRO
GUTIERREZ
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Applicant
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and
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MINISTER OF
CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by a Citizenship and Immigration
Canada (CIC) officer dated June 18, 2012, denying the application for permanent
residence of Luis Alvaro Pizarro Gutierrez (the applicant) because he is
inadmissible for security reasons under paragraphs 34(1)(c) and (f)
of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
For
the reasons that follow, and after carefully reviewing the records and the
arguments submitted by both parties, I have reached the conclusion that this
application for judicial review cannot be allowed. On the evidence that was
before her, the officer could reasonably find that the applicant was involved
in terrorist organizations and, as a result, is inadmissible.
I. Facts
[3]
The
applicant was born in Chile in 1971. He became politically involved at a very
young age, joining the ranks of the Chilean Communist Party in 1985. He
subsequently also participated in the activities of the Manuel Rodriguez
Patriotic Front (FPMR), the Movement of the Revolutionary Left (MIR) and the
Milices rodriguistes during General Pinochet’s dictatorship.
[4]
The
applicant left Chile in 1991. He lived in Argentina until 1993, then travelled
to Germany where he stayed for two months before settling in Belgium in June
1993. In 1994, the applicant was granted refugee status there.
[5]
In
2001, the applicant acquired Belgian citizenship. The same year, the applicant and
his spouse—a Canadian citizen—had a son who is now a Canadian citizen.
[6]
The
applicant and his family settled in Canada in 2002. In 2003, the applicant submitted
an application for permanent residence after his spouse sponsored him. Since
that time, the applicant has obtained annual work permits.
[7]
In
2004, the applicant was interviewed by the Canadian Security Intelligence
Service (CSIS) about his activities in Chile. The CSIS prepared a report that
the applicant obtained a copy of only after he filed his application for
judicial review.
[8]
On
March 6, 2012, the applicant received a call‑in letter for an
interview by Citizenship and Immigration Canada concerning his [translation] “inadmissibility under
section 34 of the Immigration and RefugeeProtection Act because of [his]
membership in the Frente Patriotico Manuel Rodriguez from 1981 to
1989”. The interview took place on March 21, 2012.
[9]
The
officer communicated her decision denying the application for permanent
residence in a brief letter dated June 18, 2012. After the applicant
initiated this application for judicial review, the respondent sent him the
officer’s notes taken during the interview as well as a 13‑page document,
also dated June 18, 2012, entitled [translation]
“DETERMINATION OF ADMISSIBILITY”. This document may be considered the officer’s
reasons.
II. Impugned decision
[10]
The
refusal letter sent to the applicant is very short and is essentially in the
following lines:
[translation]
It appears that you are a person described in subparagraphs (1)(c)
and (f) of section 34 of the Immigration and Refugee Protection Act
(IRPA). I have determined that you are inadmissible to Canada because of
your activities in the Milices rodriguistes and the Manuel Rodriguez Patriotic
Front, and your membership in the Movement of the Revolutionary Left. The
period of your successive affiliation with these three organizations was,
according to your statements, from 1987 to 1991.
Consequently, your application for permanent
residence in Canada is denied.
[11]
In
the document entitled [translation]
“DETERMINATION OF ADMISSIBILITY” mentioned above, the officer first summarized
the facts of the case and then went over the applicant’s statements at his
interview with the CSIS in 2004:
•
He joined the Milices rodriguistes in 1987 and participated in a few
missions with them (he threw Molotov cocktails, erected barricades and provided
technical support to the Manuel Rodriguez Patriotic Front (FPMR);
•
He joined the FPMR in 1988, where he blew up utility poles and shot in
the direction of police officers with a firearm;
• He
knew the FPMR’s organization and operation;
• He
took commando training with the FPMR.
[12]
The
officer also noted that the applicant had stated in both his applications for
permanent residence (in 2003 and 2011) that he had [translation] “used armed struggle or maintained
relationships with a group that used armed struggle or violence or encouraged
their use to reach political, religious or social objectives”.
[13]
The
officer summarized the evidence the applicant gave at his interview on
March 21, 2012, as follows:
• He
was actively involved in the Chilean Communist Party;
• He
was actively involved in a militarized cell of the FPMR;
• He
carried a weapon and acted as a lookout while other militants blew up poles;
• He
never set off any explosives himself;
• He
never used his weapon;
•
He blew up utility poles in residential areas to trigger demonstrations;
• He
made roadside bombs and encouraged others to do so.
[14]
The
officer then consulted documentary sources and conducted a detailed analysis of
the nature of the organizations the applicant had belonged to, i.e. the MIR,
the FPMR and the Milices rodriguistes. She found that these organizations committed
acts described in subparagraphs 83.01(1)(b)(i) and (ii) of the Criminal
Code or conspired, incited the commission and supported these acts.
Consequently, the officer found that there were reasonable grounds to believe
that these organizations, during their existence, engaged in the acts described
in paragraphs (a), (b) and (c) of subsection 34(1) of
the IRPA.
[15]
The
officer then analyzed the applicant’s involvement in these different
organizations and, inter alia, made the following findings from the
documentary evidence and the applicant’s oral and written statements:
•
The applicant admitted that he had been a member of the FPMR and had been [translation] “an internal public leader”.
In addition, he demonstrated extensive knowledge of the FPMR’s structure, its
cells and their operation. The documents corroborated the information he gave
in this regard;
•
The officer found that such knowledge of an environment where compartmentalization
was a question of life or death and where the members lived and acted in secret
and in hiding could only be proportionate to the applicant’s degree of
involvement and responsibility within the organization;
•
The applicant’s statements in the interview with CIC were inconsistent with
the documentary evidence regarding the termination of the FPMR’s activities.
Contrary to what the applicant maintained, the FPMR continued to exist and to carry
out attacks and other acts of violence after 1987 and until 1991. This period
corresponds to the time when the applicant was active in the FPMR, according to
the first statements made to the CSIS;
•
The activities and acts admitted by the applicant correspond in all respects
to those reported in open source documents and characterize the techniques of
both the Milices rodriguistes and the FPMR in their goal to incite the
population to what the Chilean Communist Party called [translation] “national insurrection”: triggering local and
national power outages, systematic use of various explosives for acts of
sabotage on a small and large scale, and the operating techniques during
operations: surveillance of “safe houses”, surveillance during acts of sabotage,
logistical support, handling weapons, the role of training, close ties and
trust between the FPMR and the Milices, compartmentalization, etc.;
•
Even though the applicant said he did not play an active role in the acts of
violence committed by one or more MIR factions, the officer gave weight to the timelessness
factor in section 33 of the IRPA given the knowledge that the
applicant had to have had of the nature of the organization because of his
involvement in the Chilean Communist Party, the Milices and the FPMR;
•
The applicant’s reasons for leaving Chile remain vague as do the reasons why
he is reluctant to return to Chile;
•
Although the applicant belonged to the Chilean Communist Party at the age of
14, he became active in the Milices rodriguistes at 16 and participated in FPMR
operations beginning at the age of 17. In light of the decision in Poshteh v Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005] 3 FCR 487 [Poshteh], she
noted that one of the factors to be considered in determining the impact of the
status as a minor on inadmissibility is whether the minor has the requisite
knowledge or mental capacity to understand the nature and effect of his or her
actions, and that the closer the minor is to 18 years of age, the greater will
be the likelihood that he or she possesses this knowledge or capacity.
[16]
After
considering all the evidence on file, the officer concluded that there were
reasonable grounds to believe that the applicant was described in
paragraphs 34(1)(c) and 34(1)(f) of the IRPA and that
he was inadmissible for the following reasons:
[translation]
DECISION
Considering the statements made by the applicant at
his interview with the CSIS that he was a member of the Milices rodriguistes and
later of the FPMR, that he admitted participating in sabotaging high voltage
towers, that he had carried a weapon on a number of occasions while on
surveillance and had taken commando training;
Considering that the applicant admitted to the CIC
officer that he had been a member of those organizations, had made roadside
bombs and used dynamite, engaged in sabotage, supported the FPMR’s activities
and operations, had a leadership role in the FPMR and had used armed struggle
and violence, had incited the commission of these acts;
Considering that the documentary evidence notes that
the actions of the MIR and the FPMR caused the deaths of civilians and
militants, collateral damage that was denounced as serious violations of human
rights in the Rettig Report [Report of the Chilean National Commission on Truth
and Reconciliation] and whereas the role of the Milices rodriguistes was to
support the FPMR’s activities;
Considering the nature of these three organizations;
In light of the definition of terrorism in the
Canadian Criminal Code;
After considering all the facts and the documents on
file, I have reasonable grounds to believe that the claimant is described in
section 34(1)(c) and 34(1)(f) of the IRPA.
Consequently, he is inadmissible to Canada.
III. Issues
[17]
The
applicant raised a number of issues, all of which deal with compliance with the
rules of procedural fairness without really challenging the officer’s findings
that he was a member of organizations described in paragraphs 34(1)(a)(b)
and (c) of the IRPA or that he himself had engaged in acts of
terrorism.
[18]
The
issues raised by the applicant may be summarized as follows:
(1) Are
the reasons for the decision adequate or is it based on arbitrary speculation?
(2) Did
the officer err by not considering that the applicant had been granted refugee
status in Belgium?
(3) Did
the officer err in her consideration of the best interests of the child or
breach procedural fairness by not informing the applicant that he could raise
the best interests of his child?
(4) Did
the officer breach procedural fairness by not informing the applicant that he
could obtain an exemption because of his age?
(5) Did
the officer breach procedural fairness by not disclosing to the applicant the
documents she was relying on to make her decision, thereby depriving him of the
opportunity to respond to that evidence?
IV. Analysis
A. Preliminary comment
[19]
The
respondent made a preliminary motion in this case on January 24, 2013,
under section 87 of the IRPA, to prohibit the disclosure of the
information that was redacted when the certified tribunal record was created in
this application for judicial review. The respondent maintained that the
disclosure of this confidential information would be injurious to natural
security or endanger the safety of other persons. After reading the redacted
passages and hearing the respondent’s representations, in camera and ex
parte, the Court granted the motion by way of an order issued on
February 19, 2013.
[20]
It
should be noted that the redacted passages include only a few lines at pages 24
to 27 of the tribunal record, which contains 1861 pages. A good part of the
deleted content deals with information of an internal or administrative nature
that is irrelevant for the purposes of this application for judicial review.
With respect to the more substantive portion of the redacted information, whose
disclosure would be injurious to national security or endanger the safety of
other persons, it is not likely to prejudice the applicant insofar as it deals
with information that he already knows or that was already communicated to him.
B. Standard of review
[21]
The
Federal Court of Appeal has held that the question of whether a person is a
“member” of an organization described in paragraph 34(1)(f) of the IRPA
is a question of mixed fact and law reviewable on a standard of reasonableness:
Poshteh, above. The same applies to determining whether there are
reasonable grounds to believe that the organizations in question have engaged,
are engaging or will engage in acts of terrorism. In fact, these two aspects
are closely related, and both raise questions of mixed fact and law in which
immigration officers have a degree of expertise, as our Court has also
recognized on a number of occasions: see, inter alia, Jalil v Canada
(Minister of Citizenship and Immigration), 2006 FC 246 at paras 19‑20,
[2006] 4 FCR 471 [Jalil]; Daud v Canada (Minister of Citizenship and
Immigration), 2008 FC 701 at para 6, (available on CanLII) [Daud]; Omer
v Canada (Minister of Citizenship and Immigration), 2007 FC 478 at paras 8‑9,
157 ACWS (3d) 601.
[22]
On
the other hand, it should be noted that the standard of proof that an
immigration officer must apply in the context of sections 34 to 37 of the IRPA
is that of “reasonable grounds to believe” that the facts stated in those
sections have occurred, are occurring or may occur (IRPA, s 33). It is
settled law that this standard requires more than mere suspicion but is not
equivalent to the balance of probabilities required in civil matters: Mugesera
v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para
114, [2005] 2 S.C.R. 100; Charkaoui v Canada (Citizenship and Immigration),
2007 SCC 9 at para 39, [2007] 1 S.C.R. 350. Accordingly, the role of this Court
when reviewing an immigration officer’s inadmissibility decision is not to
determine whether, in fact, there were reasonable grounds to believe that the
individual engaged in or was a member of an organization that engaged in the
alleged acts but to consider whether the officer’s finding that there were
reasonable grounds to believe can itself be regarded as reasonable.
[23]
Questions
of procedural fairness must be assessed on a standard of correctness. In this
area, no deference is required: Sketchley v Canada (Attorney General),
2005 FCA 404 at para 53, [2006] 3 FCR 392.
(1)
Are the reasons for the decision adequate or is it based on arbitrary
speculation?
[24]
The
applicant claims that the officer did not give adequate reasons for her
decision and relied on speculation rather than reasonable grounds, as
section 33 of the IRPA requires; in support of his argument, he
relies on the wording of the letter advising him that his application for
permanent residence had been denied, and specifically on the following sentence
(reproduced at paragraph 10 of these reasons): “It appears that you are a
person described in subparagraphs (1)(c) and (f) of section 34 of the
Immigration and Refugee Protection Act (IRPA).” He also states,
but without really explaining his thought, that the immigration officer did not
clearly indicate what she meant by “terrorism” and how it applied to his
specific case.
[25]
This
argument has no merit and cannot be accepted. It must be remembered at the
outset that the officer’s notes to the file (in this case, the document entitled
[translation] “Determination of Admissibility”)
are part of the decision she issued, as the Supreme Court indicated in Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at
para 44 (available on CanLII). A careful reading of these notes shows that the
officer was well aware of the applicable standard of proof and referred to it explicitly
in the first lines of her analysis after quoting sections 33 and 34 of the
IRPA.
[26]
Furthermore,
there is no doubt, in my opinion, that the officer could reasonably find that
there were reasonable grounds to believe that the applicant was described in
paragraphs 34(1)(c) and 34(1)(f) of the IRPA for his
activities in the Milices rodriguistes and the FPMR and his membership in the
MRI from 1987 to 1991, and that there are reasonable grounds to believe that
these organizations engage and have engaged in acts of terrorism. The applicant
admitted this at his interview with the CSIS in 2004 and confirmed it to some
extent at his interview with the officer in March 2012. In his application for
permanent residence submitted in 2011, the applicant himself, in answering the
question about organizations he was a member of, wrote the Manuel Rodriguez
Patriotic Front (which he described as a revolutionary organization). In his
previous application submitted in 2003, he had also mentioned the Movement of
the Revolutionary Left in response to the same question.
[27]
“Terrorism”
is not defined as such in the IRPA. It is true that on numerous
occasions, this Court has relied on the definition given by the Supreme Court
in Suresh v Canada (Minister of Citizenship and Immigration), 2002
SCC 1 at para 98, [2002] 1 S.C.R. 3 [Suresh]:
. . . any ‘act intended to cause death or
serious bodily injury to a civilian, or to any other person not taking an
active part in the hostilities in a situation of armed conflict, when the
purpose of such act, by its nature or context, is to intimidate a population,
or to compel a government or an international organization to do or to abstain
from doing any act’.
[28]
The
fact remains that this is not the only possible definition of terrorism, as shown
by the variety of wording in international instruments and various national
statutes. The Supreme Court, moreover, recognized in Suresh, above, at
para 95, that one searches in vain for an authoritative definition of
terrorism. In choosing not to define terrorism in the IRPA, the Canadian
Parliament refused to restrict itself to a narrow, rigid view of the term and
left it to administrative decision‑makers and ultimately to the courts to
develop the concept flexibly, taking the circumstances into account.
Consequently, the reasonableness of an inadmissibility finding related to
terrorism will depend not on the decision‑maker’s application of a
precise definition of this concept to the facts of the case but on the fit
between the definition chosen (as long as it is reasonable and can be justified
in principle) and the evidence on file. See, to the same effect, Daud at
para 11; Jalil at para 32.
[29]
In
this case, the officer chose to apply the definition of “terrorism” in
section 83.01 of the Criminal Code. She certainly cannot be faulted
for that, and the applicant did not present any arguments to that effect. It is
possible that this definition is a little broader than the description of
terrorism that the Supreme Court gave in Suresh, above. However, that is
not sufficient to make her decision unreasonable. On the one hand, it must be
noted that the Supreme Court indicated that the notion of terrorism in section
19 of the Immigration Act, RSC 1985, c I-2 “includes” the
description set out at paragraph 27 of these reasons. On the other hand, it was
certainly open to the officer to refer to the definition of terrorism inserted
into the Criminal Code through the Anti‑Terrorist Act, SC
2001, c 41, to the extent that the IRPA states in its preamble (s 3(1)(i))
that one of its objectives is to “promote international justice and security by
fostering respect for human rights and by denying access to Canadian territory
to persons who are criminals or security risks”. Last, no one could argue that
the acts of violence identified by the officer and committed by the MIR, the
FPMR and the Milices rodriguistes are not acts of terrorism, even by adopting a
narrower definition of terrorism than the one adopted by Parliament in the Criminal
Code.
[30]
In
her notes to file, the officer pointed out in particular that the Global
Terrorism Database has identified 306 acts of terrorism in Chile either clearly
attributed to the MIR between 1976 and 1994 or that this organization is
suspected of committing, including acts of intimidation and targeted
assassinations, bombings, acts of sabotage using explosives on electrical and
transportation infrastructure, government buildings, businesses and industries,
armed attacks, assassinations and hostage‑taking in which the targets
were members of government, security forces and journalists. As for the FPMR,
the officer consulted the documentary evidence and noted that this group
distinguished itself by a highly militarized structure and by its particularly
violent terrorist tactics, that it was involved in urban guerrilla warfare and
the use of explosives like the MIR and that 830 acts of sabotage, bombings,
kidnappings and assassinations were claimed or attributed to this group between
1984 and 1997. Finally, the Milices rodriguistes served as a recruitment pool
and support network for the FPMR militants and trained people to erect
barricades, cause power outages and confront security forces when they wanted
to enter working‑class areas.
[31]
Accordingly,
the officer could reasonably find, in light of the evidence on file, that there
were reasonable grounds to believe that these groups were organizations that are
engaging, have engaged or will engage in acts of terrorism. Again, the
applicant did not really dispute this finding, except to state that one must
take into account the fact that these organizations were fighting against a
dictatorship that itself was extremely violent and repressive. The notion of
terrorism (at least as it is understood and implemented in Canada) does not
distinguish between “good” and “bad” terrorism and cannot be justified by the
goal sought: see Suleyman v Canada (Minister of Citizenship and Immigration),
2008 FC 780 at para 59‑60 (available on CanLII) [Suleyman]. However,
it may well be that the Minister can consider the context in which the acts of
terrorism mentioned above were committed for the purposes of determining
whether the applicant’s presence in Canada would be detrimental to the national
interest under subsection 34(2) of the IRPA. I will come back to
this later.
[32]
With
respect to the applicant’s personal involvement, the evidence is much less
clear. The applicant acknowledged carrying a weapon a few times when acting as
a lookout while other militants dynamited utility poles and when he was conducting
surveillance of safe houses, but he maintained that he never used it. At most,
he used dynamite to blow up utility poles in neighbourhoods in order to trigger
demonstrations against the regime, and he made roadside bombs. Based on this
evidence, I am not convinced that the officer could reasonably conclude that
the applicant himself committed acts of terrorism. Moreover, I note that she
did not go into detail on this issue, and the applicant did not spend much time
on it either in his written and oral representations. It is true that the
applicant attempted to minimize his role at his interview with the immigration
officer in March 2012. Although he had told the CSIS officer that he had shot
in the direction of a police officer on a mission that went badly, he
subsequently denied this, saying that he did not carry weapons except when
taking courses to learn how to handle them.
[33]
In
short, I have no hesitation in finding that the officer’s decision was
reasonable, at least with respect to the applicant’s participation in terrorist
organizations. Perhaps the Court would not have arrived at the same conclusion,
but that is not the issue. Considering the evidence before her, the officer
could reasonably find that the FPMR, the milices rodriguistes and the MIR are organizations
that engage, have engaged or will engage in acts of terrorism. Even if the
officer erred in determining that the applicant personally carried out acts of
terrorism, that error would be inconsequential insofar as the mere fact of
being a member of a terrorist organization is sufficient to trigger
inadmissibility on security grounds under subsection 34(1) of the IRPA.
(2) Did the
officer err by not considering that the applicant had been granted refugee
status in Belgium?
[34]
The
applicant submits that he cannot fall within paragraphs 34(1)(c) and
(f) of the IRPA because the Belgian authorities granted him
refugee status on the basis of the same facts he is now being criticized for
and that there is nothing in the officer’s decision that overrules the decision
made in Belgium. While recognizing that the Canadian government was not bound
by the decision of the Office of the Commissioner General for Refugees and
Stateless Persons in Belgium, he submits that the officer should have at least considered
this information.
[35]
This
argument cannot be accepted for a number of reasons. First, the respondent is
correct in noting that some of the documents the applicant relies on in this
regard were not submitted to the officer and were submitted for the first time
on this application for judicial review. Furthermore, the officer did in fact note
that refugee status had been granted to the applicant in Belgium.
[36]
But,
more importantly, the fact that an applicant has been granted refugee status in
another country or even in Canada does not relieve an applicant from the burden
of demonstrating to the officer dealing with an application for permanent
residence that he or she is not inadmissible under the IRPA. In fact,
the principles governing inadmissibility on security grounds are completely
different from those that regulate refugee status, including the exception
provided in Article 1F of the United Nations Convention Relating to the
Status of Refugees [Convention]. In other words, the task of an officer
responsible for making a decision on an application for permanent residence
consists in determining whether the applicant is inadmissible to Canada under
the IRPA and the Immigration and Refugee Protection Regulations SOR/2002-227
[Regulations], not to analyze his or her application in the context of the
Convention. Subsection 21(1) of the IRPA and
subparagraph 72(1)(e)(i) of the Regulations are clear and state
that a foreign national can obtain permanent residence only if he or she has
complied with the IRPA and is not inadmissible. These provisions refer
explicitly to section 4 of the IRPA dealing with inadmissibility, which
includes section 34 with respect to inadmissibility on security grounds.
[37]
Moreover,
this Court has already ruled on this issue more than once. By way of
illustration, this is what my colleague, Justice Mactavish, wrote in Suleyman,
above, at paragraphs 52 to 57:
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.
[38]
I
am therefore of the view that the officer was not bound by the decision of the
Belgian authorities to grant the applicant refugee status and that she could
reasonably find that the applicant was nonetheless inadmissible pursuant to
subsection 34(1) of the IRPA because of his participation in the
activities of the Milices rodriguistes, the FPMR and the MIR.
(3)
Did the officer err in her consideration of the best interests of the child
or breach procedural fairness by not informing the applicant that he could
raise the best interests of his child?
[39]
The
applicant criticizes the officer for considering the best interests of his
child on her own initiative, without informing him first and without giving him
the opportunity to make representations in this regard. The officer considered
the fact that the couple’s son suffers from attention deficit disorder and
hyperactivity and that the couple, separated since 2008, had decided to resume
cohabitation for the stability of the child even though the wife had to travel
abroad regularly for her work. However, the officer gave more weight to
national security concerns in balancing the interests here.
[40]
The
officer was not required to consider the best interests of the child as the
respondent emphatically points out. This was not an application for permanent
residence based on humanitarian and compassionate considerations but an
application for permanent residence under the “spouse or common‑law
partner in Canada” class. In addition, the onus was on the applicant to submit
evidence and relevant information regarding his child’s situation if he really
wanted the officer to take it into account. She cannot be faulted for going
beyond what was strictly required in the context of the application submitted
by the applicant or for not considering information that was not given to her.
(4)
Did the officer breach procedural fairness by not informing the applicant that
he could obtain an exemption because of his age?
[41]
The
applicant also faults the officer for not telling him that he could obtain an
exemption because he was a minor at the time of the alleged acts. It is true
that at the interview the officer does not seem to have questioned the
applicant about his age and particularly his understanding of his acts at the
time he carried them out. The fact remains that she correctly applied the
principles that emerge from Poshteh, above, in the reasons for her
decision, as previously stated.
[42]
First,
it should be noted that there is no blanket exemption for minors under
section 34 of the IRPA, in contrast to what paragraph 36(3)(e)
states for inadmissibility on grounds of criminal activity. Accordingly, the
fact that a person was a minor is a factor that can be considered in applying
paragraph 34(1)(f) but will not constitute in itself a ground for
exemption. The onus will be on applicants to convince an officer that they did
not have the maturity, responsibility or mental capacity required to appreciate
the nature of their acts:
Having concluded that, although there is no blanket
exemption for minors, an individual's status as a minor is still relevant under
paragraph 34(1)(f), the next question is what considerations are to be
taken into account.
It seems to me that in the context of age, relevant
considerations in paragraph 34(1)(f) would be matters such as whether
the minor has the requisite knowledge or mental capacity to understand the
nature and effect of his actions. It is open to the minor to advance those
considerations and whatever other arguments support an exemption from paragraph
34(1)(f) on the basis of his status as a minor and to provide evidence
in support of those arguments.
Poshteh, above, at para 46‑47.
[43]
Not
only is it incumbent on applicants to argue that they did not have the mental
capacity to understand the effects of their actions and to provide evidence of
that, but there will also be a presumption that “the closer the minor is to 18
years of age, the greater will be the likelihood that the minor possesses the
requisite knowledge or mental capacity” (Poshteh, above, at para 51). These
are precisely the principles that the officer applied in this case. After referring
to Poshteh, she noted that the applicant, although he was a member of
the Chilean Communist Party at the age of 14, became active in the Milices
rodriguistes at 16 and participated in FPMR operations beginning at the age of
17. She also noted that he did not present any arguments for an exemption based
on his age at the time of the incidents. In short, her decision is fully
consistent with Poshteh, above. The onus was on the applicant, not the
officer, to establish that he should be granted an exemption because of his
age. Accordingly, the decision appears to me to be unassailable in this regard.
(5)
Did the officer breach procedural fairness by not disclosing to the
applicant the documents she relied on to make her decision, thereby depriving
him of the opportunity to respond to that evidence?
[44]
The
applicant alleges that the officer did not comply with the rules of procedural
fairness because she did not give him the opportunity to comment on the
decisions found on the Internet concerning the general situation in Chile at
the relevant time and, specifically, the documents regarding the organizations that
the applicant was a member of or had worked for. The applicant submits that he
found out about these documents for the first time when the officer’s decision
was sent to him. These documents, about ten in number, are from non‑governmental
organizations, universities, the U.S. State Department, the Central Intelligence
Agency and a magazine (Jane’s World Insurgency and Terrorism). Also in this
list are three works published in 1988 and 1998.
[45]
I
cannot agree with the applicant’s argument, essentially for the reasons put
forward by the respondent. First, the applicant was properly informed that his
involvement in Chile with the FPMR, the MIR and the Milices rodriguistes was a
concern because, on the one hand, he had had an interview with the CSIS in 2004
about his involvement in these organizations, and, on the other hand, had
received a call‑in letter specifically in this regard on March 6,
2012. Therefore, it is not surprising that the officer based her findings on documentary
evidence from diverse, credible and trustworthy sources concerning the
political and social situation in Chile during the relevant years as well as
the organizations mentioned by the applicant himself in his application for
permanent residence. In fact, these documents are directly related to the
situation in Chile and the organizations that the applicant said he was a
member of in his application for permanent residence, involvement that was the
subject of an interview with the CSIS.
[46]
Second,
public documents available on the Internet about the situation in a country that
originate from credible and known sources are not extrinsic evidence. These
documents were easily accessible on the Internet, and the fact that the officer
consulted them and referred to them without advising the applicant is not a
breach of the duty of procedural fairness: see, inter alia, Huggins v
Canada (Minister of Citizenship and Immigration), 2005 FC 250 at para 5,
137 ACWS (3d) 809; Beca v Canada (Minister of Citizenship and Immigration),
2006 FC 566 at para 8, 148 ACWS (3d) 624; Mancia v Canada (Minister of
Citizenship and Immigration), [1998] 3 FC 461, 226 NR 134 (CA); Manvalpillai
v Canada (Minister of Citizenship and Immigration), 2005 FC 584 at paras 9‑11,
139 ACWS (3d) 118; Sinnasamy v Canada (Minister of Citizenship and
Immigration), 2008 FC 67 at para 35-40 (available on CanLII); Al Mansuri
v Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 22
at para 52 (available on CanLII).
[47]
Third,
the applicant was confronted with the information contained in the documentary
evidence at his interview. His testimony, far from contradicting the evidence
on the situation in Chile or the Communist Party, the Milices rodriguistes, the
FPMR and the MIR, instead confirmed the information about these organizations, how
they function and the path followed by a person involved, like the applicant,
in the Chilean Communist Party and the opposition to the Pinochet regime at the
relevant time.
[48]
In
fact, the applicant demonstrated extensive knowledge of the FPMR, its cells and
their operation. The information he gave in this regard was corroborated by the
documentary evidence. Furthermore, the activities and acts admitted by the
applicant correspond in all respects to those reported in open source documents
and characterize the techniques of both the Milices rodriguistes and the FPMR
in an effort to incite the population to what the Communist Party called [translation] “national insurrection”. At
any time before a decision was issued, the applicant could have reviewed the
documentary evidence and provided the officer with additional information or
evidence to support his application. He can only blame himself if he did not do
so.
[49]
Last,
the applicant argued that the officer breached the principles of procedural
fairness by not sending him the CSIS report so that he could contradict the
information it contained or, on the contrary, rely on it. Again, procedural
fairness did not require proceeding in that fashion in the circumstances.
[50]
As
appears from the interview notes, the applicant did not ask to see this
document. However, the applicant was confronted on several occasions with the
testimony he gave to the CSIS officer, and it can be assumed that the applicant
knew what he said at that interview. According to the jurisprudence of this
Court, it is not necessary to give the applicant the document itself that the
decision‑maker can rely on as long as the information contained in that
document has been disclosed to the applicant so that he can know the case
against to him or her and correct prejudicial misunderstandings or misstatements:
Nadarasa v Canada (Minister of Citizenship and Immigration), 2009 FC
1112 at para 25 (available on CanLII); Krishnamoorthy v Canada (Minister of
Citizenship and Immigration), 2011 FC 1342 at para 25, 400 FTR 267. In this
case, I am of the opinion that the non‑disclosure of the CSIS report did
not prevent the applicant from arguing his position, and he had ample
opportunity to respond to the concerns expressed in the report.
V. Conclusion
[51]
For
all the foregoing reasons, the application for judicial review must be
dismissed. No serious question of general importance was proposed, and none
will be certified.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that the application for judicial review
is dismissed. No question is certified.
“Yves de Montigny”
Certified
true translation
Mary
Jo Egan, LLB
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