Saygili v. Canada (Citizenship and Immigration), docket DES-6-96

     Court No. DES-6-96

IN THE MATTER OF a Certificate issued pursuant to section 40.1 of the Immigration Act, R.S.C. 1985, c. 1-2;

AND IN THE MATTER OF the referral of that Certificate to the Federal Court of Canada pursuant to paragraph 40.1(3)(a) of the act;

BETWEEN:

     ZEHRA SAYGILI

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP & IMMIGRATION

     and SOLICITOR GENERAL FOR CANADA

     Respondent

     REASONS FOR ORDER

CULLEN, J.:

     To better understand what is occurring at this hearing, I have decided, as in the past, to quote the relevant legislation.

     The Canadian Parliament has adopted an Immigration Act which contains among its clauses section 40.1 which reads:

Section 40.1

Certificate

40.1 (1) Notwithstanding anything in this Act, where the Minister and the Solicitor General are of the opinion, based on security or criminal intelligence reports received and considered by them, that a person, other than a Canadian citizen or permanent resident, is a person described in paragraph 19(1)(d), (e), (f), (g) or (j) or 27(2)(c), they may sign and file a certificate to that effect with an immigration officer, a senior immigration officer or an adjudicator.

Delay of inquiry.

(2) Where a certificate is signed and filed in accordance with subsection (1), an inquiry under this Act concerning the person in respect of whom the certificate is filed shall not be commenced, or if commenced shall be adjourned, until the determination referred to in paragraph (4)(d) has been made and a senior immigration officer or an adjudicator shall, notwithstanding section 23 or 103, detain or make an order to detain the person named in the certificate until the making of the determination.

Reference to Federal Court.

(3) Where a certificate referred to in subsection (1) is filed in accordance with that subsection, the Minister shall

(a) forthwith cause a copy of the certificate to be referred to the Federal Court of Canada for a determination as to whether the certificate should be quashed; and

(b) within three days after the certificate has been filed, cause a notice to be sent to the person named in the certificate informing the person that a certificate under this section has been filed and that following a reference in the Federal Court of Canada a deportation order may be made against the person.

Judicial consideration of certificate.

(4) Where a certificate is referred to the Federal Court of Canada pursuant to subsection (3), the Chief Justice of that Court or a judge of that Court designated by the Chief Justice for the purposes of this section shall

(a) examine within seven days, in camera, the security or criminal intelligence reports considered by the Minister and the Solicitor General and hear any other evidence or information that may be presented by or on behalf of those Ministers and may, on the request of the Minister or the Solicitor General, hear all or part of such evidence or information in the absence of the person named in the certificate and any counsel representing the person where, in the opinion of the Chief Justice or the designated judge, as the case may be, the evidence or information should not be disclosed on the grounds that such disclosure would be injurious to national security or to the safety of persons;

(b) provide the person named in the certificate with a statement summarizing such information available to the Chief Justice or the designated judge, as the case may be, as will enable the person to be reasonably informed of the circumstances giving rise to the issue of the certificate, having regard to whether, in the opinion of the Chief Justice or the designated judge, as the case may be, the information should not be disclosed on the grounds that the disclosure would be injurious to national security or to the safety of persons;

(c) provide the person named in the certificate with a reasonable opportunity to be heard;

(d) determine whether the certificate filed by the Minister and the Solicitor General is reasonable on the basis of the evidence and information available to the Chief Justice or the designated judge, as the case may be, and, if found not to be reasonable, quash the certificate; and

(e) notify the Minister, the Solicitor General and the person named in the certificate of the determination made pursuant to paragraph (d).

Evidence

(5) For the purposes of subsection (4), the Chief Justice or the designated judge may receive and accept such evidence or information as the Chief Justice or the designated judge sees fit, whether or not such evidence or information is or would be admissible in a court of law.

No appeal.

(6) A determination under paragraph (4)(d) is not subject to appeal or review by any court.

     The procedure outlined in the section has been satisfied.

     Initially, and in keeping with the provisions of the Immigration Act, R.S.C. 1985 c. I-2 (the Act) I arranged for an ex parte, in camera session "to examine the security intelligence reports considered by the Minister and the Solicitor General, and to hear any other evidence or information that may be presented by or on behalf of the Ministers". The basis for the ex parte in camera session was to protect against the release of evidence or information that would be injurious to national security or to the safety of persons.

     Again in keeping with the Act, I provided the applicant with a statement that would enable her to be reasonably informed of the circumstances giving rise to the issue of the Certificate and I designated the 14th and 15th of January, 1997 as the dates when the applicant would have a reasonable opportunity to be heard. No objection was taken by either counsel to the time limit suggested, but in the final analysis the "opportunity to be heard" required hearings on January 14th, 15th, 27th, 28th, 29th and February 13th and 14th, 1997.

     My task is not to substitute my decision for that of the two Ministers, but rather to decide whether the Certificate filed by the Ministers is reasonable on the basis of the evidence and information available to them, and to me.

     The sanitized report given to the applicant, introduces the position of the Canadian Security Intelligence Service (the Service) namely:

"1.      The Canadian Security Intelligence Service ("the Service") has reason to believe that the woman known as Aynur SAYGILI ("SAYGILI")1 is a member of the KURDISTAN WORKERS PARTY ("PKK").2 The PKK, an organization known to engage in terrorism, has undertaken a wide range of violent acts within Turkey and Europe.

2.      The Service has reasonable grounds to believe that SAYGILI is an inadmissible person within the meaning of sections 19(1)(e)(iv)(C) and 19(1)(f)(iii)(B) of the Immigration Act (See Appendix A). Inter alia, this report sets out the Service's grounds to believe that:

a)      the PKK is an organization that has and will engage in terrorism; and,

b)      SAYGILI is a member of the PKK."

PKK

     The prevailing view of most people, including Amnesty International is as described in the report given to the applicant, namely, the PKK is a violent and radical Kurdistan organization. One is reminded of a phrase that has been going the rounds for years, namely "one person's terrorist is another person's freedom fighter". An adamant non apologizing advocate for PKK is the well respected jurist and historian, Dr. Cheriff Vanly.

     Dr. Cheriff Vanly is currently a member of the Kurdistan parliament in exile, and definitely a man of commitment. We were educated - briefly on the history of the area of Kurdistan and what the Kurds want in the way of territory and their own self government.

     He spoke eloquently and forcefully about the blame that should be attached to Turkey "forcing agents like the PKK to react - albeit violently against the force (Turkey) of evil." Dr. Vanly continues, "And nothing, nothing indicates that the Turkish government is near to bringing this so-called terrorist rebellion to an end, because it is the incarnation of the Kurdish reactions to what should be called Turkish colonialism, third world colonialism in Kurdistan."

     Professor Vanly toward the end of his testimony stated:

"That is true, but there are in Turkey many covert organizations surfaced. I do not know whether they are linked to the civilian government or to the High Command of the Turkish Army or -- there is definitely a process of genocide going on in different ways against the Kurdish people and against the Kurdish culture. About four thousand Kurdish villages have been levelled during the last three or four years in Kurdistan. Their population emigrated either to the major town of Kurdistan or to the major town of Turkey, Turkish town."

     From the numerous witnesses that we heard I formed a clear impression that not all Kurds support the violence of the PKK, but to a person they are convinced that PKK's actions are essential if the dream of a homeland is to be achieved. Also, and this may be obvious but not all Kurds are members of the PKK.

     The book provided to the applicant, lists in Appendix B selected PKK incidents and events. Some alleged violent acts according to Dr. Vanly were actually performed by Turks, and then with Turkey's massive access to the media are able to convince or try to convince that the acts were the work of PKK, thereby further tarnishing their image. However, it is safe to say that many violent acts and tactics are attributable to the PKK and in fact they take "credit" for some.

SAYGILI

     The applicant here lacks credibility, and we only got true facts when she realized the respondent had a good deal of information about her travels. Then we got some semblance of believable testimony. One does not require the evidence and information advanced at the in camera meeting to form a disbelief in the applicant's words. Her testimony also points directly to the fact that she was not coming here as a refugee, but rather as an activist for a cause she deeply believes in, namely the PKK and freedom for her fellow kurds in their own governed country - Kurdistan.

     If for example, she was coming here as a refugee would she lie about something like denying she had been to Germany in the last 4 or 5 years. Why would she have hidden the fact that she had secured refugee status in France? Why did she feel compelled to lie to people helping her about her real name, or deny she was indeed Zehra Saygili? Her activities in Canada were more than that of a passive person, even to delivering speeches some apparently prepared by one of her hosts.

     And these trips, according to her were somewhat different than the true facts, but why would this lie have to be told at all if she is really coming to seek refugee status?

     Despite an earlier story about coming to Canada from Turkey, its clearly not the case. She first claimed refugee status, but declined to provide further information to officials and refused to be interviewed by C.S.I.S.. The C.S.I.S. has indicated, that since her arrival in Canada, the applicant has taken on a leadership role with PKK circles. Their investigation has revealed that she is very devoted to the PKK cause.

     The C.S.I.S. summary at page 10, paragraphs 18, 19 and 20 state:

18.      The PKK has a long history of politically-motivated violence in Europe and has threatened to carry out more extreme terrorist acts, including suicide bombings. SAYGILI has a deep and vocal commitment to the PKK and is an intelligent and tough individual, determined to further the PKK cause. As a result of the information the Service has compiled concerning the activities of SAYGILI, the Service has concluded SAYGILI will do whatever she considers necessary toward that end.

19.      SAYGILI, like Osman, is an individual that the organization has attempted to get into Canada in the past two years. As a result, the Service believes that SAYGILI is operating in Canada on orders from the PKK hierarchy.

20.      For these reasons, the Service believes that SAYGILI is an active member of the PKK, an organization that has and will engage in terrorism. The Service therefore believes that the woman known as Aynur SAYGILI is a person described in section 19(1)(e)(iv)(C) and 19(1)(f)(iii)(B) of the Immigration Act.

     This is a person claiming to be in possession of her own passport until found out. The applicant has not helped her own cause by destroying her credibility. Lies were the norm, and no real truth was forthcoming until the applicant realized just how effective C.S.I.S. was in gathering evidence and information about her. Her interview may well have been on the harsh side, but the Immigration Officer realized she was lying through her teeth. I stopped counting the lies after finding at least nine.

     There is no point in belabouring this matter because its all in the report given to the applicant. There is no doubt in my mind that the applicant was not seeking refugee status. Stories of her travel arrangements were false to the core. New friends at the Kurdish Cultural Association of Montreal ("Association") were lied to about her real name and this was done at least twice. She may not have trusted all the members of the Association, but if she was applying for refugee status why conceal her name? If on the other hand there were no PKK members present, she was saving the truth for those who were.

     She lied about not being in Germany. She got into Germany illegally, after leaving Turkey illegally and passing illegally through at least one other country between Turkey and Germany.

     She kept secret the fact that she had secured refugee status in France. She came into Canada illegally.

     And only in December after she lied about her birth date, did official get her real name Zehra Saygili, no longer using other false names Beser Gezer, Aynur Saygili.

ANALYSIS

     My colleague, McGillis J. re Ahani (citation) determined with respect to section 40.1 "The proceedings under section 40.1 of the Immigration Act are directed solely and exclusively to determining the reasonableness of the ministerial certificate identifying the normal person as a member of certain inadmissible classes of persons." This was supported by the Federal Court of Appeal and by my colleague Denault J. in Farahi-Handavie H.

     Nor do I have to determine whether PKK is a terrorist organization. In Hardeep Singh I wrote:

"The Court's role in this is difficult, for it is not to concede or find that the Ministers were correct in their assessment of the evidence presented to them, but rather to find whether or not, based on the facts and evidence presented to the Ministers, the Ministers' opinion is a reasonable one, meeting the requirements of paragraph 40.1(4)(d) of the Act.

     Amnesty International with its admirable reputation has pronounced on the violence of PKK and the Turkish Government. Also, as I have indicated, many Kurds accept this violent role for PKK, but to be fair they are not all wholly in favour of PKK's methods. To them its safe to say, PKK and its methods are a necessary evil if Kurdistan is to become a reality.

     With respect to the "membership in PKK" of the applicant, the Ministers' opinion is a reasonable one, not only relying on her lack of credibility but her conduct leaves little room for error that the Ministers' were right and that a certificate should be issue. Her itinerary over the last few year is suspect, and when her answers cannot be believed, the Ministers were correct to issue a certificate.

     I have determined, pursuant to the authority of paragraph 40.1(4)(d) of the Immigration Act, that the certificate filed by the Solicitor General and the Ministers for the purposes of Part III of the Act is reasonable on the basis of the evidence and information available to me. An Order shall go accordingly.

OTTAWA      B. Cullen

    

March 3, 1997.      J.F.C.C.

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:              DES-6-96

STYLE OF CAUSE:          ZEHRA SAYGILI

                            

                         -and-

                     THE MINISTER OF CITIZENSHIP AND                      IMMIGRATION AND THE SOLICITOR                      GENERAL OF CANADA

PLACE OF HEARING:          MONTREAL, QUEBEC

DATE OF HEARING:          JANUARY 13-14-15-27-28-29, 1997

                     AND FEBRUARY 13-14, 1997

REASONS FOR

ORDER BY:                  CULLEN J.

DATED:                  MARCH 3, 1997

APPEARANCES:         

     MICHÈLE LANGELIER              FOR THE APPLICANT

     ROBERT BATT                  FOR THE RESPONDENTS

SOLICITORS OF RECORD:

     LANGELIER & FISET

     MONTREAL, QUEBEC              FOR THE APPLICANT

     GEORGE THOMPSON         

     DEPUTY ATTORNEY GENERAL

     OF CANADA

     OTTAWA, ONTARIO              FOR THE RESPONDENTS

__________________

     ¹      SAYGILI has used the name Beser GEZER.

     ²      Acronym derived from Partiya Karkeren Kurdistan (Kurdistan Workers Party).