Date:
20160527
Docket: IMM-4130-15
Citation:
2016 FC 587
Fredericton, New Brunswick, May 27, 2016
PRESENT: The
Honourable Mr. Justice Bell
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BETWEEN:
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JAYASIRI
PUVANENTHIRAM
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
Jayasiri Puvanenthiram [Ms. Puvanenthiram] seeks
judicial review of the August 24, 2015 decision of the Minister of Public
Safety and Emergency Preparedness [the Minister] in which he refused to
exercise his discretion under former s 34(2) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the Act] to grant relief from a finding of
inadmissibility against Ms. Puvanenthiram. Following a recommendation from the
Canada Border Services Agency [CBSA], the Minister concluded Ms. Puvanenthiram
had failed to establish that her presence in Canada would not be detrimental to
the national interest.
[2]
Ms. Puvanenthiram contends the Minister did not
assess her case in accordance with the jurisprudence in Agraira v Canada
(Public Safety and Emergency Preparedness), 2013 SCC 36 [Agraira]
and Afridi v Canada (Minister of Public Safety and Emergency Preparedness),
2008 FC 1192, which requires that the national interest assessment consider
compelling factors. She contends that her prior non-violent and limited
association with the Liberation Tigers of Tamil Eelam [LTTE] militates
in her favour. She contends the Minister made unreasonable findings with
respect to her level of involvement with the LTTE, her knowledge of its
activities and her lack of remorse.
[3]
For the reasons that follow, I would dismiss the
application for judicial review.
II.
Background
[4]
Ms. Puvanenthiram was born on April 29, 1975,
and is a citizen of Sri Lanka. She is a member of the Tamil ethnic group. She
lived in Germany from July 1998 until January 2002, where she made an
unsuccessful refugee claim. Following the refusal of her refugee claim in
Germany, she fled to Canada on February 1, 2002 where she again claimed refugee
protection. On March 30, 2004, the Immigration Division [ID] of the Immigration
and Refugee Board [IRB] found Ms. Puvanenthiram inadmissible to Canada on
security grounds under paragraph 34(1)(f) of the Act. The ID concluded
she was, or had been, a member of an organization engaging in terrorism, pursuant
to paragraph 34(1)(c) of the Act. As a result, the ID determined,
pursuant to paragraph 101(1)(f) of the Act, that Ms. Puvanenthiram was
ineligible to make a refugee claim.
[5]
Ms. Puvanenthiram’s statements to German
officials and the Citizenship and Immigration Canada [CIC] official differed
significantly from the version of events she shared in her Personal Information
Form [PIF] filed in Canada and at her admissibility hearing before the IRB. In
her German claim, she stated that she started working for the student wing of
the LTTE in 1992 (the Student Organization of Liberation Tigers [SOLT]),
voluntarily joined the LTTE in 1993 and attended to injured persons until 1994.
She also informed German authorities that she undertook one year of basic
training in self-defence which was provided by the LTTE, and that until
mid-1995, her duties in the LTTE included digging bunkers, transporting injured
people and assisting in hospitals. She also informed German officials that
following the Sri Lankan government’s attack on, and arrests at, the LTTE camp
where she was working, she went to another LTTE camp located in Kilinichchi
where she stayed for another three years. She stated she received weapons
training from 1995 to 1998 at the Kilinichchi camp. Finally, in her German
claim, she stated that she sought permission to be excused from weapons
training and sought permission to leave the camp for reasons of poor health. Both
requests were, according to Ms. Puvanenthiram, denied.
[6]
In her PIF, and at her admissibility hearing
before the IRB, her version of events was markedly different. She stated that
she had not voluntarily joined or supported the LTTE and that she had assisted
the organization under duress. Specifically, she stated that between 1993 and
1995 the LTTE threatened her on ten to twelve occasions in order to recruit her
for a day at a time. At her admissibility hearing before the IRB, Ms.
Puvanenthiram denied having had any knowledge of or connection to the SOLT. She
also testified that she had never received weapons or self-defence training
from the LTTE, that she never served in the Kilinichchi camp and that she never
sought permission to leave the LTTE camp for reasons of poor health. The IRB
rejected that new testimony and concluded there were reasonable grounds to believe
Ms. Puvanenthiram had been a willing member of the LTTE.
[7]
On April 22, 2004, Ms. Puvanenthiram filed an
application for leave and judicial review of the ID decision. That application
was dismissed. On June 18, 2004, she applied for a Pre-Removal Risk Assessment
[PRRA]. On July 20, 2004, she received a negative decision. On August 16, 2004,
she filed an application for leave and judicial review before this Court of the
negative PRRA decision; however, leave was denied. Meanwhile, she unsuccessfully
requested a deferral of her removal order from the CBSA. On September 8, 2004,
Ms. Puvanenthiram filed an application for leave and judicial review before
this Court of the refusal to defer her removal. Leave was denied. On October
20, 2004, Ms. Puvanenthiram applied for leave before this Court to seek a
declaration that all PRRA decisions made between December 12, 2003, and October
8, 2004, were null and void based upon her contention that the PRRA process,
formerly administered by the CBSA, was flawed and biased. That application for
leave was dismissed.
[8]
Ms. Puvanenthiram was originally included as a
secondary applicant on her husband’s application for permanent residence. Due
to her inadmissibility, she was removed from her husband’s application, and, on
October 14, 2005, she submitted an individual application for permanent
residence on humanitarian and compassionate [H&C] grounds. That application
was refused on January 16, 2008. Upon an application for leave and judicial
review of that decision, this Court granted the application and, on January 28,
2009, ordered a redetermination of her H&C application. As at the date of
the hearing of this application, that redetermination remained outstanding. I
note parenthetically that Ms. Puvanenthiram’s H&C application is not
affected by the Faster Removal of Foreign Criminals Act, SC 2014, c 16
which renders certain persons ineligible for H&C relief under s 25(1) of
the Act.
[9]
On September 7, 2004, Ms. Puvanenthiram applied
for Ministerial relief. In August 2008, October 2012 and October 2014, the CBSA
disclosed to Ms. Puvanenthiram drafts of the Ministerial relief
recommendations. All three of those drafts recommended that relief be denied.
In September 2008, November 2012 and December 2014, Ms. Puvanenthiram provided
additional submissions in response to the draft recommendations.
[10]
On June 19, 2013, the Minister denied relief to
Ms. Puvanenthiram, in accordance with the jurisprudence established in Canada
(Minister of Public Safety and Emergency Preparedness) v Ramadan Agraira,
2011 FCA 103, [2011] FCJ No 407. Ms. Puvanenthiram’s application for
Ministerial relief was reconsidered following release of the Supreme Court of
Canada decision in Agraira v Canada (Public Safety and Emergency
Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 [Agraira].
III.
Impugned Decision
[11]
The Minister adopted the CBSA’s most recent
recommendation and denied relief to Ms. Puvanenthiram on August 24, 2015. The
CBSA recommendation will be considered the Minister’s reasons (Yamani v
Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 381,
[2007] FCJ No 520 at para 52 [Yamani]; Khalil v Canada (Minister of
Public Safety and Emergency Preparedness), 2014 FCA 213, [2014] FCJ No 964
at para 29).
[12]
The Minister considered Ms. Puvanenthiram’s
submissions in response to the latest draft recommendation. The Minister set
out the legislative scheme and the legal test for Ministerial relief. The
Minister acknowledged that based upon Agraira, personal factors relating
to an applicant may be considered in assessing national interest, but the
predominant considerations remain public safety and national security. The
Minister further stated that Ministerial relief is not intended to replace an
H&C application.
[13]
The Minister summarized Ms. Puvanenthiram’s
immigration history and the divergent accounts provided by her throughout the
years. The Minister further addressed Ms. Puvanenthiram’s contention that her
claim must be evaluated in light of the decision Ezokola v Canada (Minister
of Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678 [Ezokola].
The Minister noted that, according to Kanagendren v Canada (Minister of
Citizenship and Immigration), 2015 FCA 86, [2015] FCJ No 382, Ezokola
did not extend to s 34(1)(f) of the Act. Therefore, Ezokola did
not modify the test for membership in a terrorist organization.
[14]
The Minister directed his mind to safety
considerations with respect to Ms. Puvanenthiram’s potential removal to Sri
Lanka, but stated that those concerns were considered when the IRB provided her
access to the PRRA process. The Minister noted that Ministerial relief is not
intended to revisit a PRRA decision and that it might be possible for Ms.
Puvanenthiram to make another PRRA application in the event she meets the
criteria. Regardless, the Minister considered Ms. Puvanenthiram’s statement
that she did not have any family members or know anyone who could assist her in
Sri Lanka, her assertion that there is no safe place where she could live,
and that she fears the LTTE, the Sri Lankan Government Security Forces and
paramilitary groups. The Minister also considered Ms. Puvanenthiram’s
contention that the situation with regard to women in Sri Lanka is precarious,
that conditions in Sri Lanka have changed since her PRRA application, and that
gainful employment is difficult to secure in Sri Lanka due to poor economic
conditions.
[15]
The Minister considered the fact that Ms.
Puvanenthiram has two minor children. He noted that her youngest son, a
Canadian citizen, depends upon his mother because of his chronic medical
problems. The Minister also considered Ms. Puvanenthiram’s eldest son’s
learning and development issues, the fact that she and her husband were both
diagnosed with an “Adjustment Disorder with Mixed
Anxiety and Depressed Mood”, as well as her husband’s physical health
problems for which he may require surgery. The Minister further noted that
since her husband and her eldest son are both Convention refugees in Canada, it
would not be possible for them to visit her in Sri Lanka. The Minister also
elaborated on Ms. Puvanenthiram’s role as a caregiver to her elderly and ill
parents, who are both living in Canada.
[16]
The Minister noted that Ms. Puvanenthiram and
her husband purchased a house in Toronto and that both are employed. The Minister
also considered the fact that Ms. Puvanenthiram participates in programs with
registered non-profit and charitable organizations. Moreover, the Minister
noted that Ms. Puvanenthiram asserted she has many friends and co-workers with
whom she has developed a strong network.
[17]
In arriving at his conclusion, the Minister
considered numerous documents, including, letters from health professionals;
letters from charitable and non-profit organizations attesting to Ms.
Puvanenthiram’s good character, letters of support from her friends and family,
and various personal papers. The Minister also considered Ms. Puvanenthiram’s
testimony relating to her German refugee claim, her interview with a CIC
official, her PIF, the findings following her admissibility hearing before the
IRB, her H&C submissions, as well as her submissions in response to the
recommendations made by CBSA to him.
[18]
The Minister concluded that Ms. Puvanenthiram’s
personal factors did not outweigh the fact that she “willingly
belonged, for an extended period of time, to an organization for which she
would have reasonably known, during her voluntary membership, extensively
engaged in terrorist activities in pursuit of its political goals” and
that “she did not indicate that she wanted to
disassociate herself from the LTTE at the first opportunity, or that she even
disapproved of the organization’s reliance on terrorism while a member, and has
failed to express remorse for her involvement with the group even after having
been found inadmissible to Canada”. Furthermore, the Minister found that
her inconsistent and contradictory statements with respect to her involvement
with the LTTE have “downplayed the significance of
providing accurate information to government officials”.
IV.
Issue
[19]
The sole issue raised in this application for
judicial review is whether the Minister’s decision to deny Ministerial relief
is reasonable.
V.
Standard of Review
[20]
The standard of review to be applied to the
Minister’s reasons for refusing Ministerial relief is that of reasonableness.
The decision is discretionary and warrants significant deference (Agraira,
above at para 50; Siddique v Canada (Minister of Public Safety and Emergency
Preparedness), 2016 FC 192, [2016] FCJ No 212 at para 40 [Siddique]).
When applying the reasonableness standard of review, this Court will only
intervene if the analysis is not justified, transparent and intelligible, or if
the decision falls outside “a range of possible,
acceptable outcomes which are defensible in respect of the fact and law”
(Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47 [Dunsmuir]).
A Ministerial relief decision is reasonable if the analysis contained in the
recommendation relates to public safety and national security, and does not
exclude other relevant considerations (Hameed v Canada (Minister of
Citizenship and Immigration), 2015 FC 1353, [2015] FCJ No 1488 at para 28 [Hameed]).
VI.
Relevant Provisions
[21]
Sections 34(1)(c) and 34(1)(f),
and former section 34(2) of the Act are set out in Appendix ‘A’ attached to
these reasons.
VII.
Analysis
[22]
The applicant for Ministerial relief bears the
onus of satisfying the Minister that his or her presence in Canada would not be
detrimental to the national interest (Yamani, above at para 69; Hameed,
above at para 24). While the test for Ministerial relief under former s 34(2)
of the Act includes consideration of a broad range of factors in determining
what is in the national interest, Agraira confirms that public safety
and national security remain predominant considerations in such an application.
Set out below I deal with each of the four contentions advanced by Ms.
Puvanenthiram in support of her claim for judicial review.
[23]
First, Ms. Puvanenthiram contends the
recommendation did not balance factors related to national interest as set out
in Agraira, which holds that national interest is not limited to the
protection of public safety and national security. The term ‘national interest’
must also encompass factors such as humanitarian and compassionate
considerations, as well as Canada’s Charter values and international
obligations. While Ms. Puvanenthiram acknowledges that Ministerial relief
applications are not intended to replace H&C applications, she submits that
her personal situation should have been considered in conjunction with the Act’s
objectives of family reunification and providing safe haven for refugees who
fear persecution.
[24]
I note that when the Minister considers H&C
factors in a Ministerial relief application, he focuses on the factors that are
relevant in determining whether the applicant’s presence in Canada is
detrimental to the national interest (Agraira, above at para 87; Siddique,
above at para 83; Hameed, above at para 27). The degree of relevance
depends on the facts of each case (Agraira, above at para 88). The
Minister extensively outlined Ms. Puvanenthiram’s numerous personal factors.
Those considerations included the medical issues of the family members to whom
she provides care, her employment, volunteer activities and involvement in the
community, her potential separation from her family and its impact, and the
possible risk she would face if returned to Sri Lanka. It was, in my view,
reasonable for the Minister to find that the interests of the children and
other personal factors considered by him, were insufficient to outweigh the
predominant considerations of public safety and national security.
[25]
Second, Ms. Puvanenthiram contends the
Minister’s findings with respect to her degree of volunteerism in the LTTE and
its student wing, her lack of credibility and lack of remorse were all
unreasonable and unfounded. The appropriate response to this assertion is that
it is not the role of the court on judicial review to re-assess the evidence or
revisit credibility findings. Furthermore, the Minister found that even if Ms.
Puvanenthiram was not directly involved in violent terrorist acts, her
voluntary participation in the LTTE (including the duties she performed, the
military training, the length of her membership and her overall commitment to
the LTTE) demonstrated more than a limited or low-level involvement.
[26]
Third, Ms. Puvanenthiram contends the Minister’s
focus on her voluntary involvement with the LTTE, her lack of credibility and
her lack of remorse constitute a denial of Ministerial relief solely on the
basis of past membership in a terrorist organization, which, according to her,
is contrary to Agraira. In my view, the Minister did not deny Ms.
Puvanenthiram’s Ministerial relief only because of her past membership in the
LTTE. Unlike admissibility hearings, where the IRB makes inadmissibility
findings based only on an applicant’s past membership in a terrorist
organization, the Minister examined Ms. Puvanenthiram’s level of commitment to
the LTTE, the nature and the extent of her involvement with the organization,
her lack of credibility and lack of remorse. Those considerations were relevant
in the assessment of national interest and consistent with Agraira.
[27]
Finally, Ms. Puvanenthiram contends the
Minister’s finding that she had knowledge of the LTTE’s activities was unreasonable
because he failed to consider her “naïve and
straightforward” nature and the national context at the time of her
involvement in the LTTE. I note, however, that the Minister’s findings were
based on the inferences made by the IRB member following Ms. Puvanenthiram’s
admissibility hearing. The Minister reasonably relied upon those findings. It
is not this Court’s function to revisit the IRB decision. Furthermore, the
Minister’s consideration of the fact that she had knowledge of the LTTE’s
activities was reasonable, regardless of the political context in Sri Lanka (Siddique,
above at para 60).
VIII. Conclusion
The Ministerial recommendation outlined all the relevant factors,
responded to the position advanced by Ms. Puvanenthiram and undertook a
balanced assessment of those factors and issues raised. The Minister did not
commit a reviewable error by attaching more weight to certain factors. It is
not this Court’s role to re-weigh the evidence. Furthermore, the Minister is
not required to provide reasons explaining why certain factors were more
heavily weighted than others (Siddique, above at para 84).The
predominant factors on such applications are national security and public
safety. I am of the view the Minister’s decision was justified, transparent and
intelligible, and was within the range of possible, acceptable outcomes which
are defensible in respect of the facts and law (Dunsmuir, above at para
47).
JUDGMENT
THIS COURT’S JUDGMENT is that the application for judicial review is dismissed without costs. No question
is certified.
“B. Richard Bell”
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