Singh v. Canada (Minister of Citizenship and Immigration), docket IMM-1490-99

Date: 19991224

Docket: IMM-1490-99

BETWEEN:

     DAVINDER SINGH

     Applicant

AND:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

NADON J.

[1]      This is an application for judicial review of a decision of the Adjudication Division of the Immigration and Refugee Board which issued a deportation order against the Applicant pursuant to Subsection 32(5) of the Immigration Act (the "Act") on the grounds that the Applicant was a member of an inadmissible class as defined by clause 19(1)(f)(iii)(B) of the Act, i.e.,

"persons who there are reasonable grounds to believe...are or were members of an organization that there are reasonable grounds to believe is or was engaged in...terrorism, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest."

[2]      The Applicant asks this Court to set aside the deportation order, to declare that he is not a person described in s. 19(1)(f)(iii)(B) of the Act, and to refer the matter back to the Adjudication Division.

[3]      The facts giving rise to this litigation are as follows. The Applicant arrived in the U.S. in October 1990 from India and made a claim for political asylum which was granted in 1991. In India, the Applicant was a member of the All India Sikh Students" Federation and was arrested several times. Between 1991 and 1999, the Applicant made several visits to Canada, but on this one occasion on March 6, 1999, he was stopped at the Canada-U.S. border and interviewed by an Immigration Officer.

[4]      During this interview at the border, the Applicant told the Immigration Officer that he had been a member of Babbar Khalsa International (the "BKI") since 1992 and that he was the spokesperson and one of the leaders of the BKI in the United States. He stated that the platform of the BKI is "[t]o create a separate nation for Sikh nation" and that the purpose of the organization in the United States is to educate people on "our separate nation demand". He expressly denied that the organization in the U.S. raises money to send back to the Indian organization of Babbar Khalsa International. Moreover, he indicated that there is a line between being a militant and being a political worker which he does not want to cross; rather, he affirmed that he "always want[s] to stay as a political worker and strictly as a political worker". During this interview, the Applicant also stated that he had been in contact with the leader of the BKI in India, Gurdawa Singh, approximately one month earlier and that he speaks with this leader two or three times a year. He also mentioned that he has yearly contact with the leader of the BKI in England. Finally, he stated that he was aware that BKI is considered to be a terrorist organization and when he was asked whether he agrees with these actions, his response was as follows:

MR. SINGH: It is a hard struggle. By any anti-government movement, it is always a hard struggle.

OFFICER SHERIDAN: So you feel it"s necessary.

MR. SINGH: It"s the history of the world, it"s everywhere. The USA become [sic] the USA by a hard struggle.

[5]      Following the interview, the Applicant signed a solemn declaration which, in part, affirms the following: "I am the spokesperson and collective leader for the "Babbar Khalsa International" political organization in the United States of America. I have been a member of the "BKI" organization since 1992 in the United States." The Applicant signed this declaration "conscientiously believing it to be true and knowing that it is of the same force and effect as if made under oath". During the inquiry, counsel for the Applicant asked the Adjudicator to give little weight to this declaration since there was no interpreter at the interview. However, I note that at the interview, the Immigration Officer told the Applicant he spoke English very well and the Applicant responded: "Because I am a graduate of commerce from India, in English". Also, when the Applicant was asked whether he had any problems understanding the Immigration Officer, he said "I don"t think so. It looks okay." Therefore, I believe the Applicant"s point about language is without merit and neither the declaration nor the interview itself can be attacked on this basis.

[6]      During the proceedings before the Adjudication Division, the Applicant testified that he was a member of an organization called Babbar Khalsa International America and that this organization is not affiliated with the Indian militant group known as Babbar Khalsa, nor with the Indian terrorist organization called Babbar Khalsa International. The Applicant further testified that the difference between these two groups is that they are in different countries. Having heard the Applicant"s testimony and his explanations, the Adjudicator was ultimately not satisfied that there was a substantive difference between the two organizations, apart from geography. As she phrased it, "Although Mr. Singh says there is no affiliation between the Babbar Khalsa International in India, I note there is no difference in the names, only the locations."

[7]      In addition, the Adjudicator noted that, by virtue of subsection 8(1) of the Act, the onus of proof throughout the inquiry was on the Applicant to show that his admission would not be contrary to the Act or the Regulations. The Adjudicator further noted that the issue at the inquiry was "whether there are reasonable grounds to believe he is or was a member of an organization that there are reasonable grounds to believe is or was engaged in terrorism" and that the standard of proof for "reasonable grounds to believe" is "less than the balance of probabilities but more than one of mere suspicion". Although the Adjudicator recognized that the Applicant "may very well not have engaged personally in acts of terrorism and he may never have raised funds to send to India for that purpose," she nevertheless expressed "serious concerns about the organization to which he is a member". After having considered the evidence, the Adjudicator found that there were reasonable grounds to believe that BKI is or was engaged in terrorism and indicated that the Applicant had not shown "that the Babbar Khalsa International to which he belongs is not the same Babbar Khalsa International that exists elsewhere." The Adjudicator further noted that "there is no evidence that Mr. Singh has satisfied that his admission would not be detrimental to the national interest". As a result, the Adjudicator held that the Applicant had not met his burden of proving that his admission would not be contrary to the Act or the Regulations and found him to be a member of the inadmissible class of persons described in clause 19(1)(f)(iii)(B) of the Act. The Adjudicator was satisfied that there were reasonable grounds to believe that the Applicant was a member of an organization in respect of which there are reasonable grounds to believe it is or was engaged in terrorism. Consequently, the Adjudicator made a deportation order against the Applicant.

[8]      The Applicant attacks the Adjudicator"s decision on three bases: the Applicant"s credibility, the Minister"s lack of evidence, and a breach of natural justice.The Applicant submits he was a credible witness and points to the Adjudicator"s description that he was a "hard-working, intelligent and sincere individual who has attempted to provide immigration officials with all the information they asked for." The Applicant further submits that the Adjudicator relied mostly on the transcript of the interrogation conducted by the Immigration Officer, a transcript which the Applicant says contains several errors and which reflects miscommunication between the officer and the Applicant due to language difficulties. In addition, the Minister relied on an article on extremist groups; the Applicant does not deny that militant groups exist in the Punjab but denies that he is a member of such a group. The Applicant further submits that the adjudicator accepted that intelligence sources suspected the Applicant, without any evidence put forward with respect to the basis or source of those suspicions. Finally, the Applicant submits that Immigration Canada cannot assume that every group with the name Babbar Khalsa is a terrorist organization and that the similarity in name between this group and the militant group in India does not make the American group a terrorist organization.

[9]      The Respondent submits that the Applicant has not met his burden of proving that he is admissible to Canada and that he is not a member of a terrorist organization. The Respondent also submits that the Applicant did not show that Babbar Khalsa International America and Babbar Khalsa are two distinct groups, and points out that the Applicant only made such a distinction at the inquiry three days after the initial interview with the Immigration officer. The Respondent further submits that the Adjudicator"s decision is supported by the evidence, including the article on extremist groups, and the Applicant"s own testimony. The Respondent points to, among other things, the Applicant"s admission that he is aware that BKI is considered a terrorist organization, and that the difference between the two organizations is that they are based in two different countries. The Respondent finally submits that the Adjudicator"s decision was reasonable based on the evidence.

[10]      In my view, this judicial review application should be dismissed. The question the Adjudicator had to decide was whether the Applicant fell within the scope of persons described in clause 19(1)(f)(iii)(B) of the Act, i.e.,

"persons who there are reasonable grounds to believe...are or were members of an organization that there are reasonable grounds to believe is or was engaged in...terrorism, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest."

[11]      As the Adjudicator noted in her decision, in order to find that a person belongs to this class of people, there must be reasonable grounds to believe that the person is a member of an organization that there are reasonable grounds to believe is or was engaged in terrorism. The Federal Court of Appeal in Canada (Attorney General) v. Jolly, [1975] F.C. 216 confirmed that the phrase "reasonable grounds to believe" does not require proving the fact itself, but only a reasonable basis for the belief.¹ Therefore, in the context of clause 19(1)(f)(iii)(B), it is not necessary to establish that the Applicant is a member of a terrorist organization, or that the organization is in fact an organization that engages in terrorism. Rather, what the evidence must establish is that there are reasonable grounds for believing that the Applicant is a member of such an organization and that there are reasonable grounds to believe the organization was or is engaged in terrorism. It is evident from reading the Adjudicator"s reasons that she interpreted and applied the law correctly.

[12]      With respect to credibility, the Applicant argues that it was not open to the Adjudicator to disbelieve the Applicant"s testimony that his organization is not affiliated with the terrorist organization of Babbar Khalsa International in India, given that she described the Applicant as a "hard-working, intelligent and sincere individual who has attempted to provide Immigration officials with all the information they asked for." However, as the Adjudicator herself immediately noted, "It is not his personal characteristics that I am examining here. It is whether there are reasonable grounds to believe he is or was a member of an organization that there are reasonable grounds to believe is or was engaged in terrorism." As I indicated in the previous paragraph, this was the correct approach.

[13]      Moreover, as the Adjudicator correctly noted, the burden of proof pursuant to subsection 8(1) of the Act, was on the Applicant to show that his admission would not be contrary to the Act or the Regulations and he did not discharge his burden. The case law of this Court confirms that the Applicant carries this onus (See Yuen v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 167; Dance v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1250). The fact that an applicant has the general obligation to show that his admission would not be contrary to the Act or the Regulations does not, however, exonerate the Minister from demonstrating, pursuant to clause 19(1)(f)(iii)(B), that there are reasonable grounds to believe the person is a member of a group that there are reasonable grounds to believe is engaged in terrorism. An applicant can then try to satisfy the Minister that, despite the Minister"s reasonable grounds for believing the applicant is a person described in clause 19(1)(f)(iii)(B), his admission would not be detrimental to the national interest and he should therefore not be excluded. This provision clearly gives an applicant the opportunity to disprove or refute the Minister"s allegations, and to meet his burden under subsection 8(1).

[14]      In this case, it was not unreasonable for the Adjudicator to conclude that the documentary evidence on extremist groups and in particular, on the BKI, established a reasonable basis for believing that the BKI is an organization envisaged by clause 19(1)(f)(iii)(B) " namely, an organization that there are reasonable grounds to believe engages in terrorism. This is further supported by a decision of this Court which found that there are reasonable grounds for believing that the BKI is a terrorist organization, i.e. M.C.I. and the Solicitor General of Canada v. Singh, (1998) 151 F.T.R. 101. Further, on the basis of the Applicant"s own testimony, there was a reasonable basis for believing he was a member of such an organization. Moreover, the Applicant had the opportunity to satisfy the Minister that his admission would not be detrimental to the national interest but he did not do so. His assertion that Babbar Khalsa International America is distinct from Babbar Khalsa International is unsubstantiated; the Applicant submitted no evidence to this effect. The Adjudicator did not believe the Applicant"s testimony that the organization he belonged to was distinct from the BKI. In my view, there was ample evidence to support a finding that the two organizations were the same. Why, for example, would the leader of the BKI in India, Gurdawa Singh, call the Applicant two or three times a year?

[15]      In light of all of the above, I see no reason to disturb the Adjudicator"s decision. This application for judicial review shall therefore be dismissed.

[16]      The Applicant submitted that I should certify the following question, as being a question of general importance:

When a person seeking to come to Canada as a visitor is detained at a port of entry to be presented before an adjudicator, and the Minister alleges the person is a person described in Section 19(1)(f) of the Immigration Act, is the onus on the Minister to prove the allegations, or is the onus on the person pursuant to Section 8 of the Immigration Act to satisfy the Adjudicator that he or she has a right to come into Canada?

[17]      The Respondent takes the position that the question proposed for certification by the Applicant is not a question of general importance and hence, that the question should not be certified. I agree.

     Marc Nadon

     JUDGE

OTTAWA, Ontario

December 24, 1999

__________________

¹      Please see also: Farahi-Mahdavieh (Re), [1993] F.C.J. No. 285 (F.C.T.D.)