Docket:
IMM-1414-13
Citation: 2013 FC 1146
Ottawa, Ontario, November
13, 2013
PRESENT: THE CHIEF JUSTICE
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BETWEEN:
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B074
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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 JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a
decision by the Immigration Appeal Division [IAD] of the Immigration and
Refugee Board. In its decision, the IAD found the Applicant to be inadmissible
to Canada on security grounds for being a member of the Liberation Tigers of
Tamil Eelam [LTTE], an organization that engages in terrorism, as contemplated
by paragraphs 34(1)(c) and (f) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA].
[2]
The Applicant submits that, in reaching its
decision, the IAD erred by:
a.
Adopting the wrong legal test for defining
membership in a terrorist organization, or by failing to reasonably consider
and weigh factors that it was required to assess;
b.
Failing to consider the defence of duress; and
c.
Reaching an unreasonable decision.
[3]
Accordingly, the Applicant seeks an Order
setting aside the IAD’s decision and referring the matter back to a different
member of the IAD for redetermination in accordance with such directions as may
be considered appropriate by this Court.
[4]
For the reasons that follow, I agree that the
IAD committed the first of the errors alleged by the Applicant. This
Application will therefore be granted.
I. Background
[5]
The Applicant, B074, is a 27 year old Tamil
citizen of Sri Lanka who arrived in Canada in August 2010 aboard the MV Sun Sea
and immediately filed a refugee claim.
[6]
In Sri Lanka, he lived with his family in an
area controlled by the Sri Lankan government.
[7]
In June 2006, he traveled from that area to the
LTTE-controlled city of Kilinochchi to be with his uncle, who had suffered a
stroke, had been paralyzed and needed help running his store.
[8]
The Applicant was able to travel to Kilinochchi
because of a cease-fire that existed at that time between the LTTE and the Sri
Lankan government. When the cease-fire broke down, he claims that he was unable
to return to his home.
[9]
The Applicant helped in his uncle’s store for
approximately one year, at which time he obtained a job with an entity called
Road Construction Private Company Ltd [Company]. It is common ground between
the parties that the operations of the Company were controlled by the LTTE
during the period of the Applicant’s employment, namely, approximately July
2007 to August 2008. It is also common ground that the Applicant obtained that
job through a person named Sinnappa Master, an acquaintance of his aunt, to
avoid front-line service with the LTTE. It appears to be common ground that
Mr. Master was a member of the LTTE who was responsible for the issuance of
permits and passes to allow individuals to travel out of LTTE-controlled
territory.
[10]
In 2009, after his aunt and uncle were killed as
a result of shelling, the Applicant left the conflict region and moved to a
refugee camp. He then escaped to Malaysia, and from there, he traveled to Thailand, where he obtained passage on the MV Sun Sea.
[11]
After he arrived in Canada, immigration
officials alleged that he was inadmissible for being a member of a terrorist
organization, namely, the LTTE. They therefore directed him to an admissibility
hearing before the Immigration Division [ID] of the Immigration and Refugee
Board.
[12]
Before both the ID, it was common ground between
the parties that the LTTE is an organization that there are reasonable grounds
to believe is engaged, has engaged or will engage in acts referred to in
paragraphs 34(1)(a), (b) or (c) of the IRPA, including terrorism. The key issue
was therefore whether the Applicant was a “member” of that organization.
[13]
The ID found that there are reasonable grounds
to believe that the Company was controlled by the LTTE at the relevant time.
However, it rejected the suggestion that the mere fact of working for an
LTTE-controlled company is sufficient to constitute membership in the LTTE, for
the purposes of paragraph 34(1)(f) of the IRPA. After identifying and balancing
factors that weighed in favour and against a conclusion that there are
reasonable grounds to believe that the Applicant was a member of the LTTE, the
ID concluded that he had not, in fact, been a member of that organization.
[14]
The Minister appealed that decision to the IAD
pursuant to subsection 63(5) of the IRPA.
II. The
Decision Under Review
[15]
The sole issue in dispute before the IAD was
whether the Applicant was a member of the LTTE.
[16]
In the course of addressing that issue, the IAD
agreed with the Minister that, “if the road construction company was an LTTE
operation and the employment was effectively in lieu of the respondent engaging
in the front lines of battle, the employment amounts to informal membership in
the LTTE.”
[17]
Ultimately, after further analysis, the IAD
concluded that the Company was in fact controlled or effectively operated by
the LTTE during the relevant period, and that the Applicant’s employment in the
Company amounted to informal membership in the LTTE.
[18]
In addition, the IAD briefly addressed and
rejected the Applicant’s position that he joined the company under duress.
III.
Relevant Legislation
[19]
Pursuant to paragraph 34(1)(f) of the IRPA, a
foreign national is inadmissible to Canada on security grounds if he or she is
a member of an organization that there are reasonable grounds to believe
engages in, has engaged in, or will engage in terrorism or certain other
conduct.
[20]
Pursuant to section 33 of the IRPA, the facts
that constitute inadmissibility under sections 34 to 37 of the IRPA include,
among other things, facts for which there are reasonable grounds to believe
they have occurred, are occurring or may occur. This includes the fact of
membership in an organization.
[21]
The full text of sections 33 and 34 are
reproduced in Appendix 1 to these reasons.
IV. Issues
[22]
The Applicant has raised the following three
issues:
i. Did the IAD err by adopting the wrong legal test for
defining membership in a terrorist organization, or by failing to reasonably
consider and weigh factors that it was required to assess?
ii. Did the IAD err by failing to consider the
defence of duress?
iii. Did the IAD reach an unreasonable decision?
V. Standard
of Review
[23]
The first issue raised by the Applicant has two
components. The meaning of the term “member” in paragraph 34(1)(f) is a
question of statutory interpretation that is reviewable on a standard of
reasonableness. This is because the IRPA is the IAD’s “home statute” and the
question of interpretation does not fall into any of the categories of
questions to which the correctness standard continues to apply (Alberta
(Information and Privacy Commissioner) v Alberta Teachers’ Association,
2011 SCC 61, [2011] 3 S.C.R. 654, at para 30 [Alberta Teachers]; Poshteh
v Canada (Minister of Citizenship and Immigration), 2005 FCA 85, at para
23 [Poshteh]; Kanapathy v Canada (Minister of Public Safety
and Emergency Preparedness and Minister of Citizenship and Immigration),
2012 FC 459, at para 29 [Kanapathy]; Basaki v Canada (Minister of
Citizenship and Immigration), 2012 FC 397, at para 17 [Basaki]; Motehaver
v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FC
141, at para 11 [Motehaver]; Sepid v Canada (Minister of Citizenship
and Immigration), 2008 FC 907, at para 13 [Sepid]; Ugbazghi v
Canada (Minister of Citizenship and Immigration), 2008 FC 694, at para 36 [Ugbazghi]).
Whether the IAD erred by failing to reasonably consider and weigh factors that
it was required to assess is a question of mixed fact and law that is also
reviewable on a standard of reasonableness (Dunsmuir v New Brunswick,
2008 SCC 9, at paras 51-53 [Dunsmuir]; Toronto Coalition to Stop the
War v Canada (Minister of Public Safety and Emergency Preparedness, Minister of
Citizenship and Immigration), 2010 FC 957, at para 66 [Toronto Coalition]).
[24]
The second issue raised by the Applicant,
concerning the defence of duress, also has two components, namely, the test for
the defence of duress and whether the facts in this case were appropriately
applied to that test. In my view, to the extent that the test for the defence
of duress has been settled in the jurisprudence (Oberlander v Canada (Attorney General), 2009 FCA 330, at para 25), it is not open to the IAD to
apply a different test. Accordingly, the issue of whether the IAD applied the
proper test for the defence of duress is reviewable on a standard of
correctness (Ruszo v Canada (Citizenship and Immigration), 2013 FC 1004,
at para 22). However, the IAD’s application of that test to the facts of this
case is reviewable on a standard of reasonableness (Dunsmuir, above).
[25]
The third issue raised by the Applicant,
concerning the reasonableness of the IAD’s decision, is reviewable on a
standard of reasonableness.
VI. Analysis
A. Did the IAD
err by adopting an incorrect test for membership in a terrorist organization or
by failing to reasonably consider and weigh factors that it was required to
assess?
[26]
The Applicant submits that the IAD erred in
concluding that the mere fact of working for a company that is controlled by
the LTTE is a sufficient basis upon which to conclude that the person in
question is or was a member of the LTTE. The Applicant also asserts that the
IAD erred by failing to reasonably consider and balance factors that it was
required to assess. I agree that the IAD appears to have committed both of
these errors. In any event, it is clear that it committed the latter one.
[27]
It is settled law that the term “member,” as it
is used in section 34 of the IRPA, must be given a broad meaning (Poshteh,
above, at paras 27-29; Kanapathy, above, at para 33; Jalloh v
Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 317,
at paras 10, 34; Kanendra v Canada (Minister of Citizenship and
Immigration), 2005 FC 923, at para 23 [Kanendra]).
[28]
The jurisprudence has not yet established a
precise and exhaustive definition of the term “member” (Poshteh, above; Toronto
Coalition, above, at para 118; Ugbazghi, above, at para 37).
However, it is clear that actual or formal membership in the organization in
question is not required; informal participation or support for a group may
suffice (Kanapathy, above, at paras 33-34; Sepid, above, at para
17), depending on the nature of that participation or support.
[29]
In determining whether a foreign national is a
member of an organization described in paragraph 34(1)(f), some assessment of
that person’s participation in the organization in question must be undertaken
(Toronto Coalition, above, at para 118; Kanendra, above, at para
24). In this regard, three criteria that should be considered include the
nature of the person’s involvement in the organization, the length of time
involved, and the degree of the person’s commitment to the organization’s goals
and objectives (TK v Canada (Minister of Public Safety and Emergency
Preparedness, 2013 FC 327, at para 105 [TK]; Toronto Coalition,
above, at para 130; Basaki, above at para 18; Sepid, above, at
para 14; Ugbazghi, above, at paras 44-45). Where there are some factors
which suggest that the foreign national was in fact a member and others which
suggest the contrary, those factors must be reasonably considered and weighed (Toronto
Coalition, above, at para 118; Thiyagarajah v Canada (Minister of
Citizenship and Immigration), 2011 FC 339, at para 20 [Thiyagarajah]).
[30]
The standard of proof applicable in determining
whether a foreign national is or was a member of an organization that there are
reasonable grounds to believe engages in, has engaged in, or will engage in
terrorism, as contemplated by paragraphs 34(1)(c) and (f) of the IRPA, is low.
In general, the evidence must establish “more than mere suspicion, but less
than [what is required by] the standard applicable in civil matters of proof on
the balance of probabilities” (Mugesera v Canada (Minister of Citizenship
and Immigration), [2005] 2 S.C.R. 100, at para 114 [Mugesera]). This
test will be met where there is an objective basis, based on compelling and
credible information, for the belief that (i) the person is or was in fact a
member of the organization, and (ii) that the organization does, did or will
engage in terrorism (Mugesera, above; Kanapathy, above, at para
32; Motehaver, above, at paras 14-16; Basaki, above, at para 18).
[31]
It is common ground between the parties that the
LTTE is an organization that there are reasonable grounds to believe engages
in, has engaged in, or will engage in terrorism. It also appears to have been
common ground that the Applicant was not a formal member of the LTTE, in part
because he did not receive military training or engage in the front lines of
battle. Accordingly, the only question addressed by the IAD was whether the
Applicant was an informal “member” of the LTTE.
[32]
In its decision, the IAD noted that the
Applicant provided inconsistent evidence regarding whether the Company was
controlled by the LTTE. In his letter to the United Nations High Commissioner
for Refugees [UNHCR], the Applicant unambiguously stated that he worked for the
LTTE (Applicant’s Record, p 52). The IAD acknowledged that the contents of that
letter were based on advice that he received about what to say. Nevertheless,
the IAD found that this evidence was consistent with the Applicant’s responses
to several questions posed during his initial interview with the Canada Border
Services Agency [CBSA] on August 29, 2010, when he characterized his employment
as having been for “an administration section [of the LTTE] who were involved
in the road construction” (Applicant’s Record, p 63). In reaching this finding,
the IAD acknowledged that the information provided by the Applicant during that
interview was not entirely clear in places. However, it found that there was no
material lack of clarity upon reading the Applicant’s responses as a whole.
[33]
The IAD proceeded to determine that this
evidence was more reliable than the testimony given by the Applicant during
proceedings before the ID and the IAD, when he took the position that the
Company was controlled by the government. In this regard, the IAD stated that
it was more likely than not that the allegation of inadmissibility to Canada based on the Applicant’s association and employment with the LTTE had influenced his
later testimony. In any event, the IAD found that the available evidence
regarding the LTTE’s control of the region in which the Applicant lived and
worked substantially excluded the possibility that the Company was controlled
by the government and that the government would have deducted funds from
employees’ salaries for the LTTE, as the Applicant alleged.
[34]
In my view, these findings were not
unreasonable. They were well “within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law,” and were appropriately
transparent, intelligible and justified (Dunsmuir, above, at para
47). As an aside, I note that the ID also concluded that there are reasonable
grounds to believe that the Company was controlled by the LTTE. In addition,
during the hearing of this Application, and solely for the purposes of this
Application, the Applicant conceded that the Company was controlled by the
LTTE.
[35]
However, to the extent that the IAD appears to
have concluded, that the Applicant was an informal member of the LTTE, largely
based on the mere fact that he worked for the LTTE to avoid serving on the
front lines of battle, it erred.
[36]
At paragraph 17 of its decision, the IAD stated:
“I agree with the [Respondent] that, if the [Company] was an LTTE operation and
the employment was effectively in lieu of the [Applicant] engaging in the front
lines of battle, the employment amounts to informal membership in the LTTE.”
Later in its decision, at paragraph 19, the IAD gave the following reasons for
concluding that the Applicant was an informal member of the LTTE:
i.
The Applicant obtained his employment in the
Company through a prominent member of the LTTE (Mr. Master);
ii.
He was paid by the LTTE and left that employment
together with other employees of the Company when the Sri Lankan army advanced
into the region;
iii.
He told the CBSA shortly after arriving in
Canada that the Company was an LTTE organization and that he worked there in
lieu of having to serve on the front lines of battle;
iv.
In his letter to the UNHCR, he identified the
Company as an LTTE institution and stated that he worked there instead of engaging
at the front lines.
[37]
The foregoing reasons, taken alone, did not
provide a sufficient basis upon which to reasonably conclude that the Applicant
was a member of the LTTE. In brief, those reasons failed to take account of
the nature of the Applicant’s involvement in the Company or the degree of his
commitment to the LTTE’s goals and objectives, as required by the jurisprudence
mentioned at paragraphs 28 and 29 above, which I endorse.
[38]
Later in its decision, the IAD briefly mentioned
some of the additional evidence that was relevant to the issue of his
membership in the LTTE. It did this in the context of explaining the basis for
its conclusion that the Applicant’s statements to the UNHCR and the CBSA were
more reliable than his testimony to the ID and the IAD concerning the issue of
whether the Company was controlled by the LTTE or the government. In this
regard, the IAD noted the following:
i.
He was hired by Mr. Master to work for the
Company in 2007, “when recruitment was forced,” as a caretaker of a house for
engineers and other officer grade people in the Company; and
ii.
He was able to give part of his salary of 6,000
rupees per month to the LTTE to avoid having to dig bunkers for the LTTE – that
money was used by the LTTE to hire someone else to perform that task.
[39]
After noting the foregoing facts, together with
the reasons why it found the Applicant’s statements to the UNHCR and the CBSA
to be more reliable than his statements to the ID and the IAD on the issue of
whether the Company was controlled by the LTTE or the government, the IAD again
stated its conclusions that (i) the Company was an LTTE organization, and (ii)
there are reasonable grounds to believe that the Applicant’s employment in that
Company amounts to informal membership in the LTTE.
[40]
I have serious doubts that these additional
reasons given by the IAD met the legal requirement to consider the issues of
the nature of the Applicant’s involvement in the Company and the degree of his
commitment to the LTTE’s goals and objectives. However, even if it could be
said that those reasons met that requirement, the IAD still failed to
reasonably engage with those factors and to weigh them against the factors that
supported its conclusion that the Applicant was a member of the LTTE.
[41]
Some evidence bearing on those factors (the
nature of the Applicant’s involvement in the Company and the degree of his
commitment to the LTTE’s goals and objectives) was assessed in the earlier
decision by the ID (at paragraph 47), when the ID concluded that the Applicant
was not a member of the LTTE. In this regard, the ID noted the following:
i.
The Applicant worked for the
Company not to further the terrorist objectives of the LTTE, but to avoid
forced recruitment.
ii.
The work he did was not
clearly supportive of the LTTE’s terrorist objectives.
iii.
There is no evidence that he
had any involvement with the LTTE after his job with them ended.
iv.
He did not refer to himself
as a member or express a desire to become a member of the LTTE.
[42]
The Applicant provided important evidence on
these points that should have been meaningfully addressed by the IAD. This
included the following:
i.
He hid from the LTTE’s recruiters for much of
the period that he worked at his uncle’s store (CTR, at pp1214, 1247);
ii.
When he was finally forced to encounter those
recruiters, he was able to successfully resist them approximately five or six
times by telling them that he was the only relative who could help his uncle at
the store (CTR, at pp 1212, 1238);
iii.
He was scared to join the LTTE and he did not
want to fight for them (CTR, at p 1274);
iv.
He ultimately decided to accede to the
recruiters demands after he was told that “this is the last warning that we
[are] giving you. So the next time you have to join us” (CTR, at p 1239);
v.
He gave up part of his salary to avoid digging
bunkers, because he was scared and “didn’t want to go and get killed by helping
the Liberation Tigers. I didn’t need to do that for them” (CTR, at pp 1274,
1254, 1212); and
vi.
He did not support or even wish to help the
LTTE, and he perceived that the LTTE had not done anything to benefit the
people (CTR, pp 90, 108, 205).
[43]
This evidence suggested that the Applicant was
not committed to the LTTE’s goals and objectives. The IAD erred by failing to
meaningfully engage with it.
[44]
The same is true with respect to the nature of
the Applicant’s role and participation within the Company. Although the IAD
recognized that he was employed as a caretaker, it did not appear to give any
weight to the fact that this was obviously a minimal or marginal role within
the organization (Poshteh, above, at para 37).
[45]
Contrary to the Respondent’s submissions, these
errors did not simply involve the weight given to the evidence by the IAD. They
involved a failure to address, come to grips with and weigh important factors
that suggested that the Applicant was not a member of the LTTE within the
meaning of section 34 of the IRPA and as required by the jurisprudence (Toronto
Coalition, above, at para 118; Thiyagarajah, above). The decision in
TK, above, is distinguished. In contrast to the decision under review in
that case, the IAD’s treatment of the established criteria for assessing
whether the Applicant was a member of the LTTE did not “analyze the core
issues” (TK, above, at para 108).
[46]
Given the IAD’s failure to meaningfully engage
with and weigh important factors that weighed against a finding that the
Applicant was a member of the LTTE, this Application will be granted. In
brief, the IAD’s decision did not fall “within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” and was not
appropriately justified, having regard to the evidence on the record (Dunsmuir,
above).
[47]
It is therefore unnecessary to address the other
issues that have been raised by the Applicant.
VII. Conclusion
[48]
To the extent that the IAD appears to have
concluded, that the Applicant was an informal member of the LTTE, based largely
on the mere fact that he worked for the LTTE to avoid serving on the front
lines of battle, it erred.
[49]
The IAD accepted the available evidence that the
LTTE not only had de facto control of government operations in the
region in which the Applicant lived, but that it also controlled that region
and imposed severe restrictions on movement by civilians. In addition, it
accepted the documentary evidence that reported on the LTTE’s heightened
campaign of forced conscription and the pressure it brought to bear on
households to provide young men and women for its operations or to work in
entities that were under its control.
[50]
In this context, people within that region who
could not find a way to work in a family or other business that was not
controlled by the LTTE may have had little realistic alternative but to either
join the LTTE or work for an entity that it controlled, particularly if they
needed to work to support themselves or their families. It is not reasonable
to suggest, as the Respondent did in its submissions to the IAD (CTR, at p
1284), that simply being employed by an LTTE-controlled entity in such a
context was sufficient to render a person a “member” of the LTTE for the
purposes of section 34 of the IRPA. A more nuanced analysis that addressed the
factors that have been identified in the jurisprudence discussed at paragraph
29 above was required.
[51]
The Respondent appears to suggest that, when the
IAD’s decision is read as a whole, it becomes apparent that the IAD met the
legal requirement to engage with the issues of the nature of the Applicant’s
involvement in the Company and the degree of his commitment to the LTTE’s goals
and objectives. However, even if the IAD is given the benefit of the
significant doubt that I have on this issue, the IAD still failed to
meaningfully address factors that it was required to consider, including by
weighing those factors against the factors that mitigated in favour of its
conclusion that the Applicant was a member of the LTTE.
[52]
Accordingly, the IAD’s decision will be set
aside and remitted to a differently constituted panel for redetermination in
accordance with these reasons.
[53]
The parties declined to propose a question for
certification and I agree that no serious question of general importance arises
on the facts of this case.
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