Docket:
IMM-10703-12
Citation: 2014 FC 168
Ottawa, Ontario, February 21, 2014
PRESENT: The
Honourable Madam Justice Simpson
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BETWEEN:
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P.S.
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
The Applicant applies for judicial review of a
decision of the Immigration Appeal Division (the IAD) dated September 24, 2012 (the
Decision) which allowed an appeal by the Minister of Citizenship and
Immigration and concluded that the Applicant is inadmissible to Canada as a
member of the Sri Lankan Liberation Tigers of Tamil Eelam (the LTTE).
The Facts
[2]
The initial decision of the Immigration Division
of the Immigration and Refugee Board dated August 25, 2011 provided the
following information:
[27] In this
case the question of whether a civilian should be construed to be a member must
be considered in the context of the LTTE in Sri Lanka. There was no dispute at
this hearing that the LTTE had insinuated itself into all aspects of the
community life in the Vanni area. The LTTE had set itself up as the de facto
government and created a police force, a judiciary, a penal code, laws on
banking, inland revenue, excise and road taxes and a highway code. The LTTE had
health and education departments. For the civilian Tamil population daily life
in this area included unavoidable contact or association with the LTTE in one
form or another. [Exh. P2]
[…]
[30] [P.S.]’s
descriptions of his workplace have been consistent throughout his numerous
interviews. The store was in an area enclosed by a fence, there was also a
kitchen, a well, the manager’s office and some other buildings inside the
enclosed area. The name of the manager in charge of the complex was Oleinte
Kannan and he was a member of the LTTE. There were about 50 employees and none
of the employees were members of the LTTE. [P.S.] knew it was an LTTE-owned
store because his uncle had told him it was.
[31] [P.S.]’s
job involved receiving goods and keeping an account of all the items in the
store. He said the type of goods in the store included flour, rice, sugar,
paper, salt and similar foodstuffs. He said it was more or less a wholesale
outlet for the LTTE and the main buyer was the LTTE. The food was brought by
truck to the store and it was kept there until it was taken to the kitchen for
cooking. The cooked food was packaged into shopping bags and then collected and
taken elsewhere. [P.S.] believed the food went to LTTE camps because people who
came to collect it were LTTE members.
[…]
[35] It is clear
from his answer that [P.S.] believed the food was collected for LTTE members
because of who collected the food, but there is no evidence it was going to the
“front lines.”
During [P.S.]
detention the Minister’s representatives stated they would be investigating the
food section of the LTTE and what role it played in respect to food
distribution to LTTE members. Either the Minister did not complete that
investigation or it was unsuccessful in obtaining any evidence about LTTE food
distribution to its troops because no independent evidence was presented at
this hearing.
[3]
The IAD’s Decision included the following
additional facts. It said:
[7] The
respondent was interviewed on a number of occasions in Canada and testified before the ID and at the IAD hearing. The respondent claimed that he was not a
member of the Liberation Tigers of Tamil Ealam (The “LTTE”). The respondent
testified he worked for the LTTE from April 2007 to May 2009 and received a
monthly salary. He explained his duties involved receiving food products and
arranging delivery of food prepared as required but he was not a member of the
LTTE and he did not take a nickname.
[8] The
respondent explained the circumstances that lead him to work at the LTTE
compound. The respondent testified he was living with his family in a LTTE
controlled area and after graduating high school in 2004, because he did not
qualify to get into university, he began upgrading his education and worked
part-time. The respondent testified that in August 2006 the LTTE came to his
home and wanted him to join their movement because they required one member
from every household to join but his father refused on the basis the respondent
was his only son there as the respondent’s elder brother was in India. The respondent explained that in October 2006 the LTTE began entering homes and
taking individuals without consent. The respondent testified that he did not
want to join the LTTE because he would have to fight and kill others, which he
did not want to do, and he feared losing his life and he did not support what
the LTTE was doing. The respondent explained that he could not leave the area
without a pass because it was a controlled area and the LTTE would not issue
passes to youths like him and although his uncle worked for the LTTE he could
not obtain a pass for him. The respondent testified that his parents told him
to go into the forest to hide and he remained in the forest for about 6 months.
During that time, the respondent explained that his parents with food and the LTTE
visited their home 6-7 times searching for him and had posted surveillance. The
respondent testified that he told his father to find some alternative
arrangements because it was difficult living in the forest and in April 2007,
when the respondent’s uncle visited his
home his parents
agreed to the suggestion that the respondent could work in the LTTE compound
where his uncle was working because he would be safe. He further testified his
uncle was able to take him to work at the LTTE compound because the recruiting
for fighting was done by a different group of the LTTE than those involved with
the LTTE compound. The respondent testified that he worked at the LTTE compound
from April 6, 2007 until May 13, 2009 when the LTTE was defeated by the
government.
[…]
[10] The
respondent explained the compound was run by Oliente Kannon. Although the
respondent testified he never saw him in a uniform, he was the one responsible
for the operation of the compound and who paid the respondent monthly and he
had a vehicle with a specialized LTTE license plate. In earlier statements the
respondent stated that Mr. Kannon was a LTTE member. The respondent further
explained that the compound was fenced and entries and exits were controlled.
At the hearing, the respondent testified he did not know who brought in the
food trucks but he would take inventory of the food brought in and the food
would be prepared by others in the kitchen and he would then arrange for what
was requested and the food would be collected by people in uniforms or civilian
dress but he did not know where the food was being distributed. In earlier
statements the respondent stated he believed the food went to LTTE camps
because the people who came to collect the food were LTTE members. The
respondent testified that he lived on the compound and worked from 5 am to 5
pm. At the hearing the respondent testified that during the time he worked at
the compound he only left the compound to visit family 4 times and his father
only visited a few times and his mother one time. He explained he traveled with
Mr. Kannon on his vehicle that had a special license plate so they would not be
stopped by the LTTE and there was one time he was able to take Mr. Kannon’s
vehicle on his own. In earlier statements the respondent stated he never left
the compound and his father had stated the respondent had visited the home 15
times.
[11] The
respondent testified he had learned about the Martyr’s Day events when in
school and had participated in such events in school. He testified he was aware
of the LTTE and its terrorist activities against the government, including:
bombings; use of combat; targeting civilians; and suicide bombers such as the
Black Tigers. The respondent testified he understood the LTTE were waging war
for land for the Tamil people but in his opinion it was not feasible or good
for the people.
Legislation
[4]
The relevant legislation is paragraph 34(1)(f)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, [the IRPA]:
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34.(1) A permanent resident or a foreign
national is inadmissible on security grounds for
…
(f) being
a member of an organization that there are reasonable grounds to believe
engages, has engaged or will engage in acts referred to in paragraph (a),
(b) or (c).
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34.(1) Emportent interdiction de
territoire pour raison de sécurité les faits suivants:
…
f) être
membre d’une organisation dont il ya des motifs raisonnables de croire
qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b)
ou c).
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The Standard
of Review
[5]
There is no issue that the standard of review for decisions under
s.34(1) of the IRPA is reasonableness and that the standard of reasonableness
is described in Dunsmuir v New Brunswick, 2008 SCC 9 at paragraphs
47-48.
Membership
[6]
The IRPA does not define the term “member” but
it is to be interpreted in an unrestricted and broad manner because issues of
national security and public safety are engaged – see Poshteh v Canada (Citizenship and Immigration Canada) [2005] F.C.J. No. 381 at paras 27 – 29.
[7]
However, as Mr. Justice Mosley observed in Toronto
Coalition to Stop the War at para 118:
[118] But an
unrestricted and broad definition is not a license to classify anyone who has
had any dealings with a terrorist organization as a member of the group.
Consideration has to be given to the facts of each case including any evidence
pointing away from a finding of membership: Poshteh, at para. 38.
[8]
As well he cautioned in Jeyadumar
Krishnamoorthy v Canada (Citizenship and Immigration Canada), 2011 FC 1342 at para 23 that “Not every act of support for a group that there are
reasonable grounds to believe is involved in terrorist activities will
constitute membership.
[9]
A review of the case law canvassed by Mr.
Justice Mosley in his decision in Krishnamoorthy, above, reveals that
the following factors are among those that may be considered in deciding
whether an applicant’s participation in activities associated with a terrorist
organization constitute membership in the organization:
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The participant’s knowledge of the organization’s
methods and goals;
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The voluntariness of the participation;
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The degree to which the participation furthers
the organization’s objectives
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The degree to which participation is
combative/military;
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The participant’s intentions – disclosed by
statements and actions;
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The duration of the participation; and
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The participant’s membership in related
supportive groups.
[10]
In my view, the environment or context in which
the participation occurred is also a factor which should be considered.
The Issues
[11]
The Applicant agreed that the LTTE is a terrorist organization and that
he is neither a Canadian citizen nor a permanent resident. The issues are:
1.
Whether the IAD made material errors of fact when it considered whether
the Applicant was a member of the LTTE?
2.
Whether the IAD failed to consider relevant evidence on the issue of
membership?
Issue 1
[12]
The Applicant says that the IAD erred in concluding first that the Applicant
– “had been successfully hiding in the jungle for several months” and second that
he “was aware of other Sri Lankans evading recruitment and having escaped the
LTTE controlled area”. These findings are crucial because they underpin the
IADs conclusion that the Applicant “chose” to work for the LTTE when he had
other options such as hiding or escaping.
[13]
The Applicant hid in the jungle for six months from October 2006 to
April 2007. During that time he was kept alive by food packages his parents
left him once a week. There was a shortage of water and he testified that
eventually he could not sustain himself and had to return home notwithstanding
the risk of forced recruitment. In my view, it was not reasonable to conclude on
this evidence that his hiding in the jungle was “successful”.
[14]
The Applicant also testified that, by the time he hid in the jungle, the
LTTE had seriously restricted passes and was killing those who tried to leave
the area. His understanding was corroborated by the documentary evidence which
showed that passes were restricted as of August 2006. In view of this evidence it
was unreasonable for the IAD to conclude that escape was an option when it
involved a serious likelihood of being killed.
Issue 2
[15]
I am also persuaded that the IAD failed to have regard for all the
evidence when it said in paragraph 34 of the Decision, “The factors that
support a finding of membership outweigh the factors that point away from a
finding of membership”. However, the following evidence which points away from
membership was not mentioned in the Decision:
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The evidence that the Applicant did not support the LTTE and thought
that its activities hurt the people. It is noteworthy that the IAD took no
issue with the credibility of this evidence.
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The evidence that the “compound” was not a military or even quasi
military facility and was not located near such facilities. It was a food
service facility and like every other undertaking in Vanni it was operated by a
LTTE manager. The Applicant stocked shelves and dispensed cooked food to both
civilians and people in uniform. The Applicant’s evidence – which was not questioned
– was that he did not know where the food was served.
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The evidence that the facility was fenced but not guarded – there was no
military presence and workers and their families and friends were free to come
and go as they wished. There was no evidence that workers were required to live
at the facility. The only evidence was that those who did so were poor.
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The evidence that the Applicant lived in a coercive environment. His
actions – hiding in the jungle – and his statements made it clear he was not an
LTTE supporter yet he faced the constant risk of recruitment and the risk was
greater if he lived at home with his parents. The risk was demonstrated when
the LTTE kidnapped the Applicant’s mother in an effort to lure him home. He was
safest when he lived at the food service facility.
[16]
In my view the IAD’s failure to address this
evidence was unreasonable.
Conclusion
[17]
Because the IAD made two serious factual errors
and failed to consider crucial evidence, the application will be allowed.
Certification for appeal
[18]
No question of general importance was posed for certification pursuance
to section 79 of the IRPA.
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