Docket: IMM-6630-14
Citation:
2015 FC 1264
Toronto, Ontario, November 12, 2015
PRESENT: The
Honourable Madam Justice Mactavish
|
BETWEEN:
|
|
CHANTHIRAKUMAR
SELLATHURAI
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
PUBLIC SAFETY AND
EMERGENCY
PREPAREDNESS
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
The Immigration and Refugee Board found that
Chanthirakumar Sellathurai was inadmissible to Canada on security grounds
because of his past membership in the Liberation Tigers of Tamil Eelam, an
organization for which there are reasonable grounds to believe has engaged in
acts of terrorism. Mr. Sellathurai then sought Ministerial relief from the
finding of inadmissibility in accordance with subsection 34(2) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27. His request was denied by
the Honourable Steven Blaney, the then‑Minister of Public Safety and
Emergency Preparedness.
[2]
Mr. Sellathurai now seeks judicial review
of the Minister’s decision, asserting that the Minister breached the duty of
fairness owed to him by failing to personally provide reasons for his decision,
or to properly adopt the rationale provided by a departmental official as his
reasons. The Minister further erred, Mr. Sellathurai says, in making an
adverse credibility finding against him without first conducting a personal
interview, and by failing to carry out a balanced assessment of his application
for Ministerial relief.
[3]
For the reasons that follow, I find that the
Minister did not err as alleged. Consequently, Mr. Sellathurai’s
application for judicial review will be dismissed.
I.
Background
[4]
Mr. Sellathurai is a Tamil citizen of Sri
Lanka who says that he first became involved in Tamil causes in 1982, when he
joined the Tamil United Liberation Front. In 1983, Mr. Sellathurai was
arrested by the Sri Lankan police because of his involvement in the
organization, and it is at this point that he says that he became supportive of
the Liberation Tigers of Tamil Eelam (LTTE).
[5]
Mr. Sellathurai claims he never formally
joined the LTTE because he does not believe in violence. He acknowledges that
he did, however, provide assistance to the LTTE in order to reduce the pressure
being placed on him to formally join the organization. Amongst other things,
Mr. Sellathurai says that he provided food and refreshments at meetings,
distributed pamphlets, engaged in fundraising, assisted in recruitment, and
provided transportation services to the LTTE. Mr. Sellathurai also
assisted the LTTE in the civil administration of Jaffna between 1986 and 1987,
performing volunteer work that included taking injured persons to hospitals,
building air raid shelters, collecting food and clothing, and helping the
homeless.
[6]
In a 2001 admissibility decision, the
Immigration and Refugee Board found that Mr. Sellathurai’s activities on
behalf of the LTTE were sufficient to make him a member of the organization. In
coming to this conclusion, the Board found that Mr. Sellathurai’s efforts
on behalf of the LTTE were “important and essential for
[the group]”, and that Mr. Sellathurai’s activities were “essential components required for the LTTE to continue
functioning”. Mr. Sellathurai’s application for leave to judicially
review this decision was dismissed, with the result that the IRB’s finding on
this point is now final.
[7]
Mr. Sellathurai joined the World Tamil
Movement (WTM) after his arrival in Canada in 1987, and he remained associated
with the organization until 1997. Mr. Sellathurai was a director of the
WTM from 1989 to 1992, although he has denied that he held a leadership role in
the organization. Mr. Sellathurai’s participation in the WTM consisted of
volunteering at the WTM newspaper, conveying the news from Sri Lanka over the
radio and telephone, assisting in the production of the WTM’s local radio
broadcast, and emceeing WTM social and cultural events. Mr. Sellathurai
also engaged in fundraising for the WTM from 1991 to 1994, although the amount
of money raised by him is in dispute. Mr. Sellathurai acknowledges that
the monies that he raised were then forwarded to the LTTE in Sri Lanka,
although he says that he was not aware of this at the time.
II.
Mr. Sellathurai’s Immigration History
[8]
Mr. Sellathurai arrived in Canada on April
21, 1987, and claimed refugee protection upon his arrival. On January 31,
1990, Mr. Sellathurai was found to have a credible basis for a claim to be
a Convention refugee, allowing him to apply directly for permanent residence in
Canada without there being a formal determination of his refugee claim by the
IRB. As a result, Mr. Sellathurai has never been determined to be a
Convention refugee.
[9]
Mr. Sellathurai applied for permanent
residence on June 8, 1992, and his application was denied on July 14, 1997. The
refusal resulted from Citizenship and Immigration Canada’s determination that
there were reasonable grounds to believe that he was inadmissible to Canada
under section 19(1)(f)(iii)(B) of the Immigration Act, R.S.C. 1985,
c. I-2, because of his involvement with the LTTE. The IRB made a final
determination regarding Mr. Sellathurai’s inadmissibility in October of
2001, finding that he was, in fact, a member of the LTTE and was therefore
inadmissible under section 19(1)(f)(iii)(B). As noted earlier,
Mr. Sellathurai sought leave to judicially review this decision, and leave
was refused on November 7, 1997.
[10]
On August 20, 2002, Mr. Sellathurai applied
for Ministerial relief from the IRB’s inadmissibility findings, making detailed
submissions in support of his application. He provided additional submissions
in March of 2006, May of 2006, July of 2007, October of 2008, December of 2008,
January of 2013 and February of 2014.
[11]
Mr. Sellathurai was provided with drafts of
the Canada Border Services Agency’s recommendation to the Minister in April of
2006, September of 2008, July of 2010, July of 2011, and December of 2013. The
CBSA made its final recommendation to the Minister on July 4, 2014, and the
Minister made his decision denying Mr. Sellathurai relief on August 19,
2014. It is the Minister’s decision denying relief to Mr. Sellathurai
under subsection 34(2) of IRPA that underlies this application for
judicial review.
III.
The Minister’s Decision
[12]
As is the practice in cases such as this, the CBSA
prepared a briefing note summarizing the application for consideration by the
Minister. The summary in this case is some 15 pages long. It provides an
overview of the Ministerial relief process and identifies the legal test that
is to be applied by the Minister in deciding whether relief should be granted
to Mr. Sellathurai. The document further provides background information
regarding both the LTTE and the WTM. It then reviews Mr. Sellathurai’s
immigration history and discusses a disclosure issue that arose at one stage of
the process.
[13]
Under the heading “Elements
Considered”, the briefing note provides a detailed discussion of
Mr. Sellathurai’s involvement with the LTTE and the WTM, including his
version of various events and his position on several issues. The brief then
provides an assessment of Mr. Sellathurai’s application, discussing the
evidence weighing against Mr. Sellathurai and explaining why
Mr. Sellathurai’s arguments on various points should not be accepted. The
analysis concludes with a recommendation by the President of the CBSA that
Ministerial relief not be granted to Mr. Sellathurai.
[14]
The document concludes with a statement by the
Minister that he was “not satisfied that the presence
of Mr. Chanthirakumar Sellathurai in Canada would not be detrimental to the
national interest. I deny relief.”
IV.
Analysis
[15]
Before turning to consider
Mr. Sellathurai’s arguments, it is important to start by noting that it is
the applicant for Ministerial relief who bears the onus of satisfying the
Minister that his or her presence in Canada would not be detrimental to the
national interest: Al Yamani v. Canada (Minister of Public Safety and
Emergency Preparedness), 2007 FC 381 at para. 69, 311 F.T.R. 193.
[16]
Given the discretionary nature of subsection
34(2) decisions, the standard of review to be applied in reviewing the
substance of a decision of the Minister refusing to grant Ministerial relief is
that of reasonableness: Agraira v. Canada (Minister of Public Safety and
Emergency Preparedness), 2013 SCC 36 at paras. 49-50, [2013] 2 S.C.R. 559.
[17]
With these principles in mind, I will address
Mr. Sellathurai’s arguments as to the alleged errors in the decision under
review.
V.
Did the Minister Adopt the Briefing Note as his
Reasons?
[18]
Mr. Sellathurai first submits that the
Minister cannot be presumed to have adopted the reasoning contained in the
briefing note, and that he was required to provide his own reasons for denying
relief. In the absence of such reasons, Mr. Sellathurai submits we cannot
know whether the Minister conducted a balanced assessment of Mr. Sellathurai’s
application, the result being that the Minister’s decision lacks the
justification, transparency and intelligibility required of a reasonable
decision: Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47, [2008] 1
S.C.R. 190.
[19]
Citing the Supreme Court’s decision in Suresh
v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1
S.C.R. 3, Mr. Sellathurai argues that in the specific factual context of
this case, it was not sufficient for the Minister to simply adopt a
recommendation from the Minister’s officials as his own reasons.
[20]
The argument now being advanced by
Mr. Sellathurai has been considered and rejected in a number of decisions
of this Court: see, for example, Al Yamani, above at paras. 52, 54-59; Miller
v Canada (Solicitor General), 2006 FC 912 at paras. 61-62, [2007] 3 F.C.R.
438. More importantly, the argument has also been rejected by the Federal Court
of Appeal in Haj Khalil v Canada (Minister of Public Safety and Emergency
Preparedness), 2014 FCA 213 at para. 29, 464 N.R. 98.
[21]
Mr. Sellathurai contends that these
decisions are distinguishable, submitting that even if a briefing note could
otherwise serve as reasons for a Minister’s decision, in this case, the
Minister did not formally adopt the reasons as his own. That is, instead of
specifically stating that he concurred with the findings contained in the
briefing note, as appears to have been done in the Miller case, in this
case the Minister merely noted on the briefing note that he was “not satisfied that the presence of Mr. Chanthirakumar
Sellathurai in Canada would not be detrimental to the national interest”.
Nowhere does the Minister specifically state that he was adopting the briefing
note as his reasons.
[22]
I do not accept this submission, which is, in my
view, based upon a selective reading of the document. The analysis in the
briefing note concludes with a statement by the President of the CBSA that “the CBSA is not satisfied that the presence of Mr.
Sellathurai in Canada would not be detrimental to the national interest”.
Immediately prior to the page set aside for the Minister’s signature, the
President states “[t]he CBSA requests that you review
the attachments in the context of the Agency’s assessment and indicate your
approval or denial of Mr. Sellathurai’s application for Ministerial relief”.
The note goes on to advise the Minister that “[i]f you
agree with the CBSA’s recommendation to deny relief, Mr. Sellathurai will not
be relieved from inadmissibility …”. The recommendation concludes by
stating that “If you do not agree with the CBSA’s
recommendation to deny relief to Mr. Sellathurai, please provide reasons”.
[23]
The Minister then ticked off the box indicating
that relief was being denied, which was located under the statement that he was
“not satisfied that the presence of Mr. Chanthirakumar Sellathurai
in Canada would not be detrimental to the national interest.”
[24]
When the Minister’s decision is viewed in
context, it is clearly implicit that, in concurring with the recommendation
contained in the briefing note, the Minister was adopting the reasoning of the
President of the CBSA as his own. The purpose of the duty to provide reasons is
so that the person affected by the decision knows why the decision was made. It
is quite clear from a review of the document as a whole why the Minister chose
not to grant Ministerial relief to Mr. Sellathurai, and no error has been
demonstrated in this regard.
VI.
Was Mr. Sellathurai Entitled to an Oral
Hearing?
[25]
Mr. Sellathurai also argues that he was
denied procedural fairness in this matter, as credibility findings were made in
the briefing note without him first being afforded an oral hearing.
[26]
Where an issue of procedural fairness arises,
the Court’s task is to determine whether the process followed by the
decision-maker satisfied the level of fairness required in all of the
circumstances: see Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 at para. 43, [2009] 1 S.C.R. 339.
[27]
The right to an oral hearing is not absolute. As
the Supreme Court observed in Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 at paras. 30-34, 174 D.L.R. (4th) 193, the
principles of procedural fairness require that a party be given a meaningful
opportunity to participate in the proceeding and that they be able to present
their case fully and fairly. This principle is to be applied flexibly, however,
depending on the nature of the proceeding, with the result being that some
cases will require an oral hearing, while others will not. The overriding
question in all instances is whether the party was afforded a meaningful
opportunity to participate in the proceeding.
[28]
I accept that the decision under review has
significant consequences for Mr. Sellathurai, which would suggest that he
is entitled to a higher level of procedural fairness than might otherwise be
the case. However, the Supreme Court held in Baker, that even where a
high degree of procedural fairness is owed to a party, an oral hearing is not
necessarily required if the party has other ways of meaningfully participating
in the proceeding: at paras. 32-34.
[29]
That is clearly the case here.
Mr. Sellathurai has had several in-person examinations, including his
initial examination by CIC in 1987, and subsequent examinations by the Canadian
Security Intelligence Service. He had an oral hearing before the Immigration
and Refugee Board, where he had the opportunity to address the nature and
extent of his involvement with the LTTE. He has been made fully aware of CBSA’s
draft recommendations, and he has provided detailed submissions in response to
these recommendations on approximately eight separate occasions.
[30]
Mr. Sellathurai has thus had ample
opportunity to meaningfully participate in this process, and I am satisfied
that in these circumstances, the requirements of procedural fairness have been
met, despite the fact that Mr. Sellathurai was not examined in person by either
the CBSA or by the Minister.
VII.
Was the Minister’s Decision Reasonable?
[31]
Mr. Sellathurai’s remaining submissions go
to the reasonableness of the Minister’s decision. His principle submission is
that the CBSA briefing note was not balanced, with the result that the
Minister’s decision was based upon an unfair summary of the facts and was thus
unreasonable.
[32]
Subsection 34(2) of IRPA empowers the
Minister of Public Safety and Emergency Preparedness to grant relief from a
finding of inadmissibility under subsection 34(1) of the Act where an applicant
can satisfy the Minister “that their presence in Canada
would not be detrimental to the national interest”.
[33]
The test to be applied by the Minister in
deciding whether Ministerial relief should be granted in a given case was
identified by the Supreme Court of Canada in Agraira, above. There, the
Court held that “a broad range of factors may be
relevant to the determination of what is in the "national interest",
for the purposes of s. 34(2)”: at para. 87. In general, the Minister
should be guided by the factors articulated in CIC’s Guidelines regarding “National Interest”, which include:
1.
Will the applicant’s presence in Canada be
offensive to the Canadian public?
2.
Have all ties with the regime/organization been
completely severed?
3.
Is there any indication that the applicant might
be benefiting from assets obtained while a member of the organization?
4.
Is there any indication that the applicant may
be benefiting from previous membership in the regime/organization?
5.
Has the person adopted the democratic values of
Canadian society?
Agraira, above at para. 87 & Appendix D
[34]
An interpretation of the national interest that
relates primarily to national security and public safety, but which does not
exclude the other considerations is reasonable: Agraira, above, at para.
88.
[35]
Mr. Sellathurai does not take issue with
the test that was applied in this case, but rather with its application to the
facts of the case. It is not, however, this Court’s role, sitting in review of
the Minister’s decision, to engage in a re-weighing exercise: Agraira,
at para. 91.
[36]
With this understanding of the relevant
principles, I turn now to address Mr. Sellathurai’s contention that the
assessment of his application for Ministerial Relief was neither fair nor
balanced.
[37]
I would start by observing that
Mr. Sellathurai concedes that although he never took out formal membership
in the LTTE, he was properly considered to be a “member”
under the expansive definition given to the concept of membership in the
jurisprudence. He argues, however, that “there are
members and there are members”, and that a fair and balanced assessment
of his level of involvement in pro-Tamil causes would not lead a reasonable
person to conclude that his presence in Canada would not be detrimental to the
national interest.
a) Failure to Consider the Issue of
Self-Determination
[38]
Mr. Sellathurai first says that the
Minister’s decision failed to take into account the context facing Tamils in
Sri Lanka. Mr. Sellathurai points to the long-standing oppression of the
Tamil population of Sri Lanka by the Sinhalese majority, submitting that his
actions have to be viewed in light of the right of the Tamil population to
self-determination and freedom from oppression.
[39]
The difficulty with this submission is that the
briefing note makes several references to Mr. Sellathurai’s argument on
this point, and addresses it directly at page 12 of the document. It notes that
while the right to self-determination is recognized at international law, it
does not endorse the right to use violence or force in support of this goal.
The Minister was therefore aware of Mr. Sellathurai’s position on this
issue, and an explanation was provided as to why his submission should not be
accepted.
b) LTTE
Activities at the Time that Mr. Sellathurai Became a Member
[40]
Mr. Sellathurai also argues that his direct
involvement with the LTTE took place in 1983 and 1984, early on in the LTTE’s
existence, submitting that he could not have known how violent the LTTE would
later become. It was unfair, Mr. Sellathurai says, to attribute greater
knowledge of the LTTE’s violent activities to him than was available at the
time he became involved with the organization.
[41]
Mr. Sellathurai’s suggestion that the
LTTE’s terrorist activities were not apparent at the time of his involvement is
not, however, borne out by a review of the record. There was substantial
documentary evidence before the Minister that showed that the LTTE, in both its
present and past incarnations, had been involved in violent activities before Mr. Sellathurai
became associated with the organization.
c) The
Nature of Mr. Sellathurai’s Involvement with the LTTE
[42]
Mr. Sellathurai also argues that
insufficient weight was given to the fact that he was not personally involved
in violent activities on behalf of the LTTE. As noted earlier, it is not the
task of this Court, sitting in review of the Minister’s decision, to re-weigh
the evidence that was before the Minister. Moreover, the briefing note
specifically described the nature of Mr. Sellathurai’s activities, and the
Minister was thus aware that Mr. Sellathurai was not personally involved
in violent activities on behalf of the LTTE.
[43]
The Minister was, however, also aware of the
fact that the IRB had previously determined that Mr. Sellathurai’s efforts
on behalf of the LTTE were “important and essential for
[the group]”, and that his activities were “essential
components required for the LTTE to continue functioning”.
d) Mr. Sellathurai’s
Involvement with the WTM
[44]
Mr. Sellathurai submits that the Minister
failed to have regard to the fact that the World Tamil Movement had not been
listed as a proscribed terrorist entity by the Government of Canada at the time
that he joined the organization in the late 1980’s. However, the briefing note
makes specific reference to the fact that Mr. Sellathurai had terminated
his association with the WTM prior to its listing as a terrorist entity. The
note further observes that the Government’s decision to list the WTM as a
terrorist organization was based on present and past activities of the
organization, including activities that took place during the time
Mr. Sellathurai was involved with the organization.
[45]
The note also observes that Mr. Sellathurai
was aware of the Government’s concerns regarding the WTM’s links to the LTTE as
he stated that he finally disassociated himself from the WTM in 1997 out of
concern that his continued involvement with the organization was undermining
his efforts to obtain permanent residency in Canada. The briefing note further
observed that open source information indicated that the WTM had been raising
money for the LTTE as far back as the late 1980’s, and that the organization
was known as a front for the LTTE. Mr. Sellathurai himself acknowledged
that this was well known in the Tamil community in Canada, although he provided
conflicting evidence as to the extent of his own awareness of the relationship
between the WTM and the LTTE.
[46]
Mr. Sellathurai also submits that his
involvement with WTM newspaper and radio activities was Charter-protected
speech. Once again, this argument was not ignored, but was specifically
referenced in the briefing note. Mr. Sellathurai’s argument also ignores
the fact that the Courts have specifically stated that conduct associated with
terrorist organizations cannot enjoy Charter protection: Suresh v Canada
(Minister of Citizenship & Immigration), [2000] 2 F.C. 592 at paras.
35-36, 183 D.L.R. (4th) 629.
[47]
Finally, while Mr. Sellathurai admits that
he raised money in Canada for the WTM, he takes issue with the statement in the
briefing note that he had admitted to raising some $13,000 for the WTM.
According to Mr. Sellathurai, this was an adverse credibility finding, one
that should not have been made in the absence of an interview.
[48]
The statement that Mr. Sellathurai had
admitted to raising $13,000 for the WTM is contained in the notes of an
interview that Mr. Sellathurai had with CSIS. Mr. Sellathurai does
not actually deny making the statement attributed to him – rather he says that
he does not remember making the statement. Moreover, the briefing note
specifically mentioned the fact that Mr. Sellathurai disputed the amount
that he had raised on behalf of the WTM, and no finding was made as to the
amount of money that had been raised by Mr. Sellathurai. What was important,
however, was the fact that Mr. Sellathurai was raising money for the WTM –
not the precise dollar value of the funds that he had raised.
[49]
Mr. Sellathurai also denies that he knew
that the money that he raised was being passed on to the LTTE The briefing note
observed that Mr. Sellathurai had provided conflicting information as to
his awareness of the use that was being made of the funds that he raised. It
considered the conflicting evidence and came to the determination that Mr.
Sellathurai likely did know the money that he raised was being forwarded to the
LTTE
VIII. Conclusion
[50]
Having carefully considered Mr. Sellathurai
submissions, I have concluded that the Minister followed the guidance provided
by the Supreme Court in Agraira, that he considered all of the relevant
factors, and that he assessed all of the evidence in the record before him.
Mr. Sellathurai’s submissions are essentially a request to have the Court
re-weigh the evidence and come to a different conclusion
[51]
The burden was on Mr. Sellathurai to
establish that his continued presence in Canada would not be detrimental to the
national interest. The Minister refused to provide discretionary relief to
Mr. Sellathurai, as he was not satisfied that this burden had been
discharged. The Minister’s conclusion was reasonable in light of the record
before him.
[52]
The application for judicial review is therefore
dismissed. I agree with the parties that the case is fact-specific, and does
not raise a question for certification.
Email this Content