Docket: IMM-5693-15
Citation:
2016 FC 794
Ottawa, Ontario, July 12, 2016
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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MABEL SABULAO
GACHO
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review of a
decision rendered by an immigration officer (the Officer), dated December 3,
2015, which refused to grant the Applicant’s application for permanent
residence as a member of the Live-in Caregiver Class on the ground that her
husband, as an accompanying family member, has been found inadmissible to
Canada pursuant to subparagraphs 34(1)(b) and (f) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for being a member of an
organization that engaged in or instigated the subversion by force of a
government.
II.
Background
[2]
The Applicant is a citizen of the Philippines. Her husband, Peter Jr. Calucer Gacho (Mr. Gacho), who was a member of the
Armed Forces of the Philippines (AFP) from 1987 to 1998, volunteered to join
the AFP at the age of 18 and began training on May 1, 1987. He completed his
basic training on July 31, 1987 and became a Private of the AFP on the next
day.
[3]
Mr. Gacho subsequently began training under the
Scout Ranger Orientation Course in the mountains of Bulacan. On the night of
August 27, 1987, Mr. Gacho and others in his training class were ordered by
their commanding officer, Captain Redemto Taiza, to board a truck which brought
the training class to Camp Aguinaldo in Manila. Mr. Gacho claims that at no
time he was advised of the purpose of deployment.
[4]
On the morning of August 28, 1987, while inside
the camp, Captain Taiza ordered Mr. Gacho and his class to stand near a golf
course. The class heard gunfire in the distance. It was at that time that they
discovered that there was a combat occurring. However, Mr. Gacho claimed that
he and his class had no knowledge of who was fighting or who the enemy was.
[5]
Mr. Gacho claimed that although he was fearful
for his life, he could not escape because he was afraid that he would be
subjected to court martial proceedings and severe sanctions, including death,
for disobeying an order. In 1990, Mr. Gacho was convicted and imprisoned for
his involvement in the August 28, 1987 coup attempt. He was granted amnesty in
1996 and was able to complete his military service term. Mr. Gacho was
discharged from military service on March 1, 1998.
[6]
The Applicant argues that the Officer committed
a reviewable error by relying on the inadmissibility determination made by the
overseas visa officer in Manila instead of conducting his own independent
assessment of whether Mr. Gacho is inadmissible to Canada.
[7]
The Applicant also argues that the Officer’s
decision is unreasonable since the Officer failed to consider the proper
definition of “membership” and by failing to
consider the defence of duress and that of superior orders.
III.
Issue and Standard of Review
[8]
The issue to be determined in this case is
whether the Officer, in concluding as he did and in the manner in which he did,
committed a reviewable error as contemplated by subsection 18.1(4) of the Federal
Courts Act, RSC, 1985 c F-7.
[9]
The question of whether a person is a
"member" of an organization referred to in subsection 34(1)(f) of the
Act is a question of mixed fact and law. The applicable standard of review is
therefore the reasonableness standard (Ismeal v Canada (Public Safety and
Emergency Preparedness), 2010 FC 198, at para 15; Karakachian v Canada (Citizenship and Immigration), 2009 FC 948, at para 29, 364 FTR 1).
IV.
Analysis
A.
The Officer’s reliance on the determination of
the overseas visa officer
[10]
The Officer’s Global Case Management System
(GCMS) notes state the following:
As part of the processing of this
Application for Permanent Residence, the Visa office in Manila was engaged in
assessing the overseas dependents, which included the PA’s spouse and her other
dependants and a Visa officer found her spouse inadmissible under A34(1)(f) by
being part of an organization outlined in A34(1)(b). CPCV’s assessment is that
of the PA and as her spouse is inadmissible under A34(1)(f), it makes her
inadmissible A42(1)(a).
[11]
It is clear from the above that the Officer did
not conduct an independent assessment of Mr. Gacho’s inadmissibility as the
Officer held the view that it was not his function to do so.
[12]
The Applicant relies on authorities such as Yang
v Canada (Public Safety and Emergency Preparedness), 2008 FC 158, 324 FTR
22, and Burgin v Canada (Minister of Citizenship and Immigration), 68
ACWS (3d) 723, to argue that the Officer committed a reviewable error by
failing to render an independent assessment of the evidence against Mr. Gacho.
In my view, this argument must fail since these decisions were not rendered in
the context of applications for permanent residence under the Live-in
Caregivers Program (LCP), which has a particular method for assessing
applications.
[13]
Further to a review of the evidence submitted by
the Respondent, including the IP 4 Processing Live-in Caregivers in Canada manual
(IP 4), the OP 14 Processing Applicants for the Live-In Caregiver Program (OP
14) and the OP 24 Overseas Processing of Family Members of In-Canada Applicants
for Permanent Residence (OP 24), I am of the view that it was not unreasonable
for the Officer to rely on the findings of the overseas visa officer.
[14]
Section 5.1 of the IP 4 manual states that:
Visa offices are also responsible for
processing permanent residence applications overseas for family members of
live-in caregivers who have applied for permanent residence from within Canada.
[15]
Section 9.7 of the OP 14 manual describes the
division of tasks between overseas visa officers and officers working out of
the Case Processing Centre in Vegreville (CPC), where an overseas permanent
residence application is refused:
The visa office:
informs the CPC of negative results for
accompanying and non-accompanying family members;
informs the CPC if family members have not
undergone examination within the allocated period of time or could not be
located (see section 9.3 above); and
shows the final disposition of its LC 2 file
as "refused" for accompanying family members and as
"withdrawn" for non-accompanying family members.
The CPC:
informs the
applicant regarding the status of their case. Additional time may be allowed
for response; and
refuses the
case. The refusal letter to the live-in caregiver applicant will state that
both the applicant and all family members, in Canada or abroad, are refused.
[16]
Section 9.1 of the OP 24 manual provides greater
details about the processing of permanent residency applications from the CPC
and overseas visa offices under the Live-In Caregiver Program:
Persons who come to Canada under the Live-In Caregiver Program (LCP) may qualify to apply for permanent residence from
within Canada, once they have completed all the requirements to be a member of
the class. These requirements include proof of having worked full time as a
live-in caregiver for a cumulative period of two years within the first three
years of arriving in Canada under the program.
[…]
Live-in caregivers must submit their
application for permanent residence, including all supporting documents and the
appropriate fees, to the CPC-V. (Information regarding the required forms and
processing fees is available on CIC’s Internet site at www.cic.gc.ca.)
The CPC-V is responsible for processing and
assessing all LCP applications for permanent residence. Once the CPC has made
the initial determination for membership in this class, the appropriate visa
office is contacted for the processing of any overseas family members.
Concurrent processing of family members
living abroad may be requested by the principal applicant.
[17]
As is well-settled, such manuals are not law
and, as a result, are neither binding on the Minister or his agents and cannot
fetter the discretion of a visa officer (Lee v Canada (Citizenship and
Immigration), 2008 FC 1152, at para 29; Legault v Canada (Minister of
Citizenship and Immigration), 2002 FCA 125 [Legault]; Vaguedano
Alvarez v Canada, (Citizenship and Immigration), 2011 FC 667, at para 35). Yet,
while not legally binding, ministerial guidelines can be of “great assistance” to the Court in determining the
reasonableness of an officer’s decision (Legault, at para 20; Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at
para 72).
[18]
In my view, the above excerpts demonstrate the
Minister’s interest in dividing the task of reviewing permanent residence
applications originating from the LCP between overseas visa officers and CPC
officers. Overseas visa officers process permanent residence applications
overseas for family members of live-in caregivers who have applied for
permanent residence from within Canada. CPC officers process and assess the
applications of live-in caregivers themselves. Given the scheme set out in the
manuals, I am of the opinion that the Officer reasonably found that it was not
his role to reassess the overseas officer’s inadmissibility finding against Mr.
Gacho.
[19]
The Applicant also contends that the Officer’s
treatment of Mr. Gacho’s inadmissibility is inconsistent with Justice Elizabeth
Heneghan’s ruling of August 31, 2015. In this ruling, Justice Heneghan refused
to grant the application for leave of the overseas officer’s inadmissibility
determination because the application was premature and stated that the “ultimate determination about Mr. Gacho depends upon final
processing of the Principal Applicant’s application” (Gacho and Gacho
v Canada (Minister of Citizenship and Immigration), Ottawa, IMM-2627-14
(FC)). In my view, this argument must fail since the Applicant’s
inadmissibility hearing was indeed dealt with finality in the Officer’s
decision. I do not interpret Justice Heneghan’s ruling to mean that the Officer
was held to conduct an independent assessment of Mr. Gacho’s inadmissibility to
Canada.
[20]
In other words, the overseas visa officer's
inadmissibility finding is of course not immune from judicial review. It is
reviewable as part and parcel of the final decision denying the Applicant’s
permanent residence application.
B.
The reasonableness of the inadmissibility
finding
[21]
In this regard, I find that the overseas officer
committed no reviewable error in finding Mr. Gacho inadmissible.
[22]
While the Act does not define the term “member,” this Court has stated that the term is to be
interpreted broadly given the context of the legislative scheme (Krishnamoorthy
v Canada (Citizenship and Immigration), 2011 FC 1342, at para 22, 400 FTR
267 [Krishnamoorthy]; see also Poshteh v Canada (Minister of
Citizenship & Immigration), 2005 FCA 85, at paras 27-29 [Poshteh];
Chiau v Canada (Minister of Citizenship & Immigration) (2000),
[2001] 2 FC 297, at para 25, 193 FTR 159 (FCA) [Chiau]).
[23]
In this regard, this Court has consistently
found that the term "member" does not require actual or formal
membership coupled with active participation. Instead, being a
"member" simply means "belonging" to a group (Chiau,
at para 57; see also Denton-James v Canada (Minister of Citizenship and
Immigration), 2004 FC 1548, at para 13; Ismael v Canada (Public Safety and Emergency Preparedness), 2010 FC 198, at paras 19-20).
[24]
Generally, the factors relevant for deciding
whether or not an applicant is a member of an organization for the purposes of
section 34 of the Act are an applicant’s intentions, degree of involvement and
degree of commitment (Krishnamoorthy, at para 23). In Sinnaiah v
Canada (Minister of Citizenship and Immigration), 2004 FC 1576, Justice
O'Reilly stated that to “establish
"membership" in an organization, there must at least be evidence of
an "institutional link" with, or "knowing participation"
in, the group's activities” (at para 6).
[25]
A foreign national’s “membership”
in an organization that subverted a government is assessed on the “reasonable grounds to believe” standard of proof pursuant
to section 33 of the Act. This standard “requires
something more than mere suspicion, but less than the standard applicable in
civil matters of proof on the balance of probabilities” (Mugasera v
Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 SCR
100, at para 114).
[26]
Moreover, given that section 33 of the Act
states that the facts giving rise to inadmissibility include facts that “have occurred, are occurring or may occur,” this
Court has interpreted this to mean that “membership”
is without temporal constraints. This means that an officer need only ask “whether the person is or has been a member of that
organization” (Yamani v Canada (Public Safety and Emergency
Preparedness), 2006 FC 1457, at para 12, 304 FTR 222 [Yamani]).
Officers need not match a person’s active membership to when the organization
carried out the subversive acts (Yamani, at para 12).
[27]
Further to a review of the record, including the
overseas visa officer’s reasons, I am of the opinion that the overseas officer
in Manila conducted a thorough assessment of the facts and reasonably found Mr.
Gacho to be inadmissible pursuant to paragraph 34(1)(f) of the Act. Notably,
the overseas visa officer found that:
1) it is irrelevant whether an individual personally engages, has
engaged or will engage, in acts referred to in paragraph 34(1)(a), (b) or (c)
of the Act. What matters is that the organization falls within the ambit of
paragraph 34(1)(a), (b) or (c) of the Act, and that the individual is a member
of that organization;
2) open source information indicates that the regiment that Mr. Gacho
was enlisted in, the First Scout Ranger Regiment, was involved in the coup.
News articles state that on August 28, 1987, Colonel Gregorio Honasan led rebel
soldiers to launch an attack against Malacanang, that the rebel soldiers seized
portions of Camp Aguinaldo, including the Department of National Defence
headquarters and left 53 people dead and over 200 people wounded;
3) Mr. Gacho confirmed during his interview with the overseas officer that
he was present during the coup and that people were fired on and died during
the coup attempt;
4)
Mr. Gacho also confirmed in his application that
he was assigned to a military unit that was involved in the 1987 coup attempt
against the government and that members of the unit, including himself, were
charged under general court martial number 9 and were convicted and imprisoned
for three years;
5)
the certification issued by the National Bureau
of Investigation (NBI), dated May 13, 2010, and the Notice of Resolution of the
National Amnesty Commission, dated October 25, 1995, both indicate that Mr.
Gacho was a member of the Reform the Armed Forces Movement-Soldiers of the
Filipino People-Young Officer’s Union (RAM-SFP-YOU);
6)
Mr. Gacho’s explanation for being labeled as a
member of the RAM-SFP-YOU was not plausible. Mr. Gacho signed a letter stating
that he was not a member of RAM-SFP-YOU and explained that his support for
these organizations may have been concluded because he belonged to a unit in
the armed forces whose commanding officer may have been a member of these
organizations. The overseas officer rejected this explanation, stating “the fact remains that the NBI certification states that the
NBI record show you as a member of the RAM-SFP-YOU. Even if you claim not to
have been a member of the above mentioned organizations, you admit to and there
is evidence […] that you have been an enlisted member of the 1st Scout Rangers
Regiment of the Philippine Army”; and
7) the fact that Mr. Gacho was only a trainee at the time of the coup
does not exclude him from being a member since he was called to participate in
action while still in training and since Mr. Gacho referred himself to be a
member of the group.
[28]
The overseas visa officer further found that
while Mr. Gacho claimed not to have known what was going on during the coup of
August 28, 1987, “it is not unreasonable to conclude
given the nature of your regiment’s specialized duties and your duties
described as a rifle man with an active role, that you would not have been
aware of your regiment’s purpose and objectives.”
[29]
In my opinion, the overseas visa officer
reasonably found that Mr. Gacho was aware that the First Scout Ranger Regiment
was planning a coup against the government. Given the strong evidence against
Mr. Gacho, including his conviction for having participated in the coup, it was
reasonably open for the overseas visa officer to prefer the documentary
evidence describing Mr. Gacho as a member of the RAM-SFP-YOU rather than Mr.
Gacho’s explanation for being linked to the organization. In my view,
the overseas visa officer’s decision falls within a reasonable range of
outcomes, which are defensible in respect of the fact and law (Dunsmuir, at
para 47).
[30]
The overseas visa officer conducted a thorough
assessment of Mr. Gacho’s membership within the First Scout Ranger Regiment,
including Mr. Gacho’s role in the organization and his knowledge of the
regiment’s purpose and objectives. As indicated above, these factors need only
be proven on the “reasonable grounds to believe”
standard. The role of the Court is not to determine whether Mr. Gacho was a
member of the organization that carried out the coup, but only to find if there
is evidence of this fact upon which the Officer could reasonably conclude that Mr.
Gacho was a member (Re Suresh (1997), 140 FTR 8, at para 18, 75 ACWS
(3d) 887). In my view, there is sufficient evidence on the record for the
overseas officer to reasonably make this finding.
[31]
The Applicant’s contention that Mr. Gacho’s actions
must be excused because he lacked intention and was acting under duress must
also fail.
[32]
In this regard, the overseas visa officer
assessed Mr. Gacho’s intention and noted he never mentioned during the
interview that he followed orders unwillingly on the day of the coup. Instead, Mr.
Gacho stated that it is expected in the military to follow the orders from your
commanding officers. The overseas visa officer found that Mr. Gacho did not
leave the premises of the coup attempt and did not mention being coerced to
stay. He also stated during the interview that it was his “dream” to join the army. Moreover, the overseas
officer noted that after serving his prison sentence, Mr. Gacho returned to
serve in the military and that his application form states that he was a member
of the 1st Scout Rangers Regiment until 1996.
[33]
Regarding the Applicant’s argument that Mr.
Gacho was acting under duress, the overseas officer found that he did not see
how the argument “fits the current case at hand”
since “Mr. Gacho willingly enrolled in the military and
willingly followed orders […]. Moreover, the Applicant has never mentioned that
he was threatened in any way during the events or coerced into doing any of his
actions that day, or into staying.”
[34]
It is firmly established that for an individual
to successfully argue the defence of duress, they must demonstrate that (i) they
have been compelled to commit a specific offence under threats of death or
bodily harm; (ii) they reasonably believed that the threat would be carried
out; (iii) there was no safe avenue of escape; (iv) there was proportionality
between the harm threatened and the harm inflicted; and (v) they are not a
party to a conspiracy or association whereby the accused is subject to
compulsion and actually knew that threats and coercion to commit an offence
were a possible result of this criminal activity, conspiracy or association (R
v Ryan, 2013 SCC 3, [2013] 1 S.C.R. 14, at paras 29, 55).
[35]
In my opinion, the excerpts of the overseas visa
officer’s GCMS notes replicated above do not demonstrate that Mr. Gacho acted
under duress or faced an imminent and grave threat if he failed to follow his
commanding officer’s orders on the day of the coup. It was therefore reasonably
open for the overseas officer to find that the defence of duress had no
application in Mr. Gacho’s case.
[36]
Lastly, the Applicant’s contention that Mr.
Gacho cannot be held culpable for his activity based on the doctrine of
superior orders since he did not participate in any way in the planning or
organization of the coup, must also fail.
[37]
Generally, the defence of superior orders is
available to military personnel who obey the orders of a superior so long as
the act in question was not “so outrageous as to be
manifestly unlawful” (R v Finta, [1994] 1 S.C.R. 701, at p 778, 112
DLR (4th) 513; see also Yassin v Canada (Minister of Citizenship and
Immigration), 2002 FCT 1029, 117 ACWS (3d) 605, at para 19).
[38]
As explained above, the overseas visa officer
did not have to be satisfied that Mr. Gacho personally participated in the
planning or organization of the coup, nor be satisfied that Mr. Gacho had
personally participated in the coup itself for that matter to make a
finding of inadmissibility under paragraph 34(1)(f) of the Act. It was
therefore reasonably open for the overseas visa officer to find the defence of
superior orders to be an irrelevant consideration under paragraph 34(1)(f) of
the Act.
[39]
As the Court indicated in Yamani, the
result may seem harsh since section 34 of the Act seems to leave no option for
changed circumstances by either the organization or the individual, and in this
case, no relief for soldiers following the orders of their superiors. However,
as stated too in Yamani, Parliament has provided for a comprehensive
approach to inadmissibility determinations in order to balance national
interests, such as maintaining the security of Canadian society, and denying
access to our country to persons who are security risks (Yamani, at para
14). Thus, persons found inadmissible under section 34 of the Act may apply for
ministerial relief pursuant to section 42.1 of the Act. This section indicates
that the Minister may, on application by a foreign national, declare that the
matters referred to in section 34 do not constitute inadmissibility in respect
of the foreign national if they satisfy the Minister that it is not contrary to
the national interest. On this point, I agree with the Respondent’s submissions
that the defence of superior orders is a claim that could be addressed in the
context of ministerial relief pursuant to section 42.1 of the Act.
[40]
For all these reasons, the application for
judicial review is dismissed. No question of general importance has been
proposed by the parties. None will be certified.
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