Docket: IMM-6916-10
Citation: 2011 FC 1379
Ottawa, Ontario, November 29,
2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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KAMALA DEVI SELLAPPHA
NALINI SELLAPPHA
GEETHAVENGAYAN SELLAPPHA
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Applicants
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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 pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of the
decision of the Immigration Program Manager (IPM) at the Canadian High
Commission in Colombo, Sri Lanka (Decision). The Refusal Letter is dated 15
June 2010, while the CAIPS notes indicate the IPM made up his mind on 11 June
2010. Both the Refusal Letter and the CAIPS notes are part of the Decision. The
IPM refused the application for a permanent resident visa because the
Applicants did not discharge the onus under section 11 of the Act to show they
were not inadmissible and because they were members of a terrorist organization
under paragraph 34(1)(f) of the Act.
BACKGROUND
[2]
The
Principal Applicant, Kamala Devi Sellappha, is a citizen of Sri Lanka. The Minor Applicants
are her daughter, Nalini Sellappha (Nalini), and her son, Geethavengayan Sellappha
(Geethavengayan). The Applicants were sponsored in their application by Kavetha
Sellappha (Kavetha), another daughter of the Principal Applicant, who is a
permanent resident of Canada. Kavetha arrived in Canada in May 1999
and gained Refugee Status. She was granted permanent resident status in
September 2000. Nalini and Geethavengayan were dependant children of the Principal
Applicant at the time her application was filed.
[3]
On
22 July 2003, the Respondent received the application for permanent residence. The
application was paper screened on 11 August 2003 and again reviewed on 22
August 2003. Also on 22 August 2003, the Respondent requested the birth
certificates of Nalini and Geethavengayan and the death certificate of the Principal
Applicant’s husband, Ponnampalam. The Respondent verified the two birth
certificates on 7 October 2003.
[4]
The
Respondent received positive medical results for all the Applicants on 3
November 2003 and commenced validation of Ponnampalam’s death certificate on 2
February 2004. The death certificate was validated genuine on 29 June 2004. An
officer reviewed the file on 17 January 2005 in the wake of a tsunami which
affected Sri
Lanka.
On 29 December 2005, the Applicants’ legal counsel requested an update on the
file and followed up with another letter on 12 January 2006. Also, in January
2006, the Respondent requested updated contact information for the Applicants.
On 21 February 2006, the Respondent sent out a request for further information
related to whether the Applicants were affected by the tsunami.
[5]
After
corresponding with the Applicants’ consultant, an officer, identified as PK in
the CAIPS notes, determined that they were not members of a class who would be
seriously and permanently affected by the tsunami and so would be processed as
regular family class applicants.
[6]
The
Respondent convoked all three of the Applicants for an interview on 19 July
2007, in order to obtain information to determine if they were admissible to Canada. Having been
advised that the Applicants would be unable to attend the scheduled interview, the
Respondent re-scheduled the interview for 27 September 2007.
[7]
The
Principal Applicant and her son, Geethavengayan, attended the interview on 27
September 2007 (2007 Interview). The interview was conducted by Robert Stevenson,
a visa officer in Colombo (Stevenson). Nalini did not attend and, as of
the time of the refusal letter, had still not attended any interview. At the 2007
Interview, the Principal Applicant and Geethavengayan were asked questions about
their connection with, and support for, the LTTE. Based on their answers to
these questions, Stevenson determined that they may be potentially
inadmissible. Because of concerns about the Applicants’ inadmissibility, the
Respondent requested secondary background checks on 27 December 2007. On 28
April 2008, the Respondent decided that it would be necessary to conduct a
second interview with the Principal Applicant and Geethavengayan to determine
their admissibility to Canada. This second interview was scheduled for
12 June 2008, though neither the Principal Applicant nor Geethavengayan attended.
Another interview was scheduled for 23 April 2009 at the High Commission in Colombo. The Principal
Applicant and Geethavengayan did not attend this interview either.
[8]
On
28 January 2009, Geethavengayan was granted refugee status in France. The Applicants
did not notify the Respondent of his change in status at this time.
[9]
The
Applicants’ sponsor, Kavetha, wrote to the Respondent through her MP, the Hon.
John McCallum, on 28 April 2009 asking that an interview with Geethavengayan be
conducted in a European Union (EU) Country. She said her brother was in Denmark on a working
visa at the time and could not attend an interview in Colombo. She did not
inform the Respondent at this time that Geethavengayan had been granted refugee
status in France.
[10]
By
27 April 2009, Nalini had been interned in an Internally Displaced Persons camp
at Vavuniya, Sri Lanka.
On that day, Kavetha informed the Respondent of the address to which a
letter could be sent which would allow Nalini to be released from the camp to
participate in an interview. On 18 May 2009, hostilities between the LTTE and
the Government of Sri Lanka ended with the military defeat of the LTTE.
[11]
Having
received communication from Kavetha’s MP asking for an update on the file on 16
June 2009, the Respondent advised him that they would be willing to postpone
the interview with Geethavengayan until October 2009. The Respondent also advised
that, in order to facilitate Nalini’s attendance at the interview, a letter could
be provided to the camp at which she was being held, if Kavetha could provide
an address to which such a letter could be forwarded.
[12]
The
application having been open for more than six years, on 30 September 2009 the Respondent
wrote to Kavetha informing her that the application could not be kept open indefinitely.
The Respondent further informed her that if the documents required to process
the application, including police checks and copies of passport pages were not
provided, a decision would be taken within sixty days. At this time, Kavetha
was also informed that Geethavengayan would have to meet all statutory
requirements and be examined, and that he could not be exempt from these
requirements, because he was a dependant child on the application. Because the
Respondent had received no response to the 30 September 2009 letter, on 1
December 2009 a copy of this letter was also sent to the Colombo address for
the Principal Applicant that the Respondent had on file.
[13]
The
Applicants’ legal counsel wrote to the Respondent on 19 April 2010 with the
information that Geethavengayan would be unable to attend an interview in Colombo because he
had been granted refugee status in France. Because Geethavengayan
feared for his life in Sri Lanka, counsel requested that an interview be
arranged at the Canadian Embassy in France if an interview was
still required. However, he also advised that Kavetha wished to have
Geethavengayan removed from the file. He further advised the Respondent that
the Principal Applicant and Nalini had applied for Sri Lankan police
certificates on 8 March 2010 and that they would be forwarded as soon as they
became available.
[14]
On
11 June 2010, IPM received and reviewed the file. Based on the information on
file (the application forms filed as well as the CAIPS notes of the 2007
Interview with the Principal Applicant and Geethavengayan), the IPM decided
that the family was inadmissible to Canada because they had failed to meet the
onus under section 11 of the Act to establish that they were not inadmissible
to Canada. The IPM also concluded that the Applicants were inadmissible under paragraph
34(1)(f) of the Act as there were reasonable grounds to believe they were
members of a group which engaged in unlawful activities. A refusal letter was
drafted on 14 June 2010 and sent on 16 June 2010.
DECISION
UNDER REVIEW
[15]
The
Decision under review in this case consists of both the IPM’s letter rejecting
the application and the CAIPS notes prepared by the Respondent’s officers over
the seven-year history of the application. In the letter to the Applicants, the
IPM writes that he has carefully and thoroughly considered “all aspects of your
application and the supporting information provided” and has decided the
Applicants are ineligible for a permanent resident visa.
Section 11 Not
Satisfied
[16]
The
letter indicates two bases for refusing the application. First, the IPM was not
satisfied, as required under subsection 11(1) of the Act that the Applicants
were not inadmissible to Canada. Based on what he found were contradictory
answers given during the 2007 Interview with the Principal Applicant and Geethavengayan,
the IPM indicates that he does “not know where the truth may lie.” He also
notes that, despite several requests for a second interview, Geethavengayan had
not attended. As such, he concluded that he did not have a sufficient
understanding of the Applicants’ background and could not be satisfied they
were not inadmissible.
[17]
In
the CAIPS notes relating to the 2007 Interview, Stevenson asked where the Principal
Applicant lived before her marriage; she responded that she had been living in
Chavakachcheri and that, after her marriage, she had been living in Malavi from
1971 until the present. When asked if she had lived anywhere else during her
marriage, she said no. Stevenson, according to the CAIPS notes, presented the
Principal Applicant with information from her application form which indicated
she had lived in Chavakachcheri from 2002 until 2003 while she was married to Ponnampalam.
She responded by saying that they had been displaced for a few days. Stevenson
notes the significant difference between a few days and a year.
[18]
The
CAIPS notes also record that, when asked why Nalini could not attend the
interview, the Principal Applicant responded that Nalini could not get a pass from
the LTTE to attend, though the Principal Applicant had managed to get herself a
pass in exchange for her five acres of land. Later in the interview, the Principal
Applicant said that Nalini was in hiding and that she had not seen her for nine
months at the time of the interview. When asked to explain how she knew her
daughter could not get a pass from the LTTE when she had not seen her for nine
months, the Principal Applicant stated that a friend relayed messages between
them.
Membership in
a Section 34 Organization
[19]
The
IPM also rejected the Applicants’ permanent resident visa because “there
are reasonable grounds to believe that your family members are members of the
inadmissible class of persons” set out in paragraph 34(1)(f) of the Act.
Under paragraph 34(1)(f), foreign nationals are inadmissible to Canada if they are members
of a group which engages in the activities listed in paragraphs 34(1)(a)
through (e). The IPM noted that both the Principal Applicant and
Geethavengayan made statements in the 2007 Interview which indicated they were
involved with the LTTE. He noted that the Principal Applicant supported the
LTTE cause, that Geethavengayan had participated in combat training, and that Nalini
had lived in an LTTE safehouse. The IPM wrote in the Refusal Letter that
the Principal Applicant had said her sister was an active supporter of the
LTTE. However, the CAIPS notes indicate that it was Kavetha, the Principal
Applicant’s daughter, who said she was a loyal supporter of the LTTE. Though he
misread the CAIPS notes in part, based on the family’s LTTE activities, the IPM
concluded that there were reasonable grounds to believe that the Principal
Applicant or her family members were inadmissible to Canada on security grounds
under paragraph 34(1)(f) of the Act.
[20]
The
CAIPS notes of the 2007 Interview show that Stevenson asked the Principal
Applicant which of her family members had actively supported the LTTE. She
answered that her daughters, Sujeeva and Nalini, had worked for them doing
clerical work and cooked for them for four to five hours per day for three days
a week. When asked when they last worked for the LTTE, the Principal Applicant
said 2005 and 2006, but she also said they had worked for a week in August
2007. The Principal Applicant then changed her answer and said that it was her
daughters Sujeeva and Yasotha who had done work for the LTTE and that Nalini
was in hiding from the LTTE. When asked if Nalini could not attend because she
was at an LTTE camp, the Principal Applicant stated that she was at a house; Stevenson
asked her if it was an LTTE house, and she said yes.
[21]
The
Principal Applicant also said at the 2007 Interview that her husband had a
truck and had used it to carry things to the LTTE when he was still alive. She
also said that he had been called “Tiger Kuncha Rasa” (Small Tiger King) by
both their family and the LTTE. She confirmed that her husband had been
appointed to the Mediation Committee of Thunukkai, a committee of the LTTE,
because he was involved with the LTTE.
[22]
The
Principal Applicant also said in the 2007 Interview that she had cooked food
for the LTTE and made them sweets. When asked if she supported their cause, she
said yes. She also confirmed that she supported the LTTE’s tactics of force for
a Tamil homeland. The Principal Applicant was also asked about her son’s
involvement in the LTTE. She said that the LTTE had tried to recruit him, so
she had sent him to India to study.
[23]
At
the 2007 Interview, Geethavengayan said that he lived in Chennai, India. When asked
what he would do after the interview, he said that he could not go back to
Vanni – the area in Sri Lanka where his family lived – because of LTTE
problems. He also said that he did not like the ways of the LTTE, and in
particular their recruiting and training by force. Geethavengayan said in the
interview that he had received basic combat training from the LTTE, though this
was only basic, and had involved crawling, running, and training with clubs. He
also said that he had dug bunkers and graves, collected food, and done other
odd jobs for the LTTE. When asked if his family supported the LTTE, Geethavengayan
said they did, but it was an obligation.
[24]
Stevenson
suggested to Geethavengayan that his father had been a strong LTTE
supporter, which Geethavengayan confirmed. Geethavengayan also said that his
father served the LTTE rather than sending his children. He also said that he
knew his father had helped the LTTE, but he did not remember a lot because he
was fourteen when his father died. When asked about Nalini helping the LTTE,
Geethavengayan said that he knew she would not do something like that. He also
said that he could not confirm anything as he had just come from India.
[25]
During
the Interview, Stevenson told Geethavengayan that his “Sister in Canada states that
she is a loyal supporter of LTTE and that father was a strong supporter of
LTTE.” Geethavengayan said his father was forced to help, as was his sister. Stevenson
told Geethavengayan that the statements made by Kavetha in her PIF,
submitted in support of her refugee application to Canada, did not
suggest that the family was forced to be supporters of the LTTE. Stevenson
asked Geethavengayan why Nalini could not attend the interview; he said that
she could not get a pass and that the family would have given money to allow
her to come, but they did not have it.
ISSUES
[26]
The
Applicants raise the following issues:
a.
Whether
the IPM’s finding that they had not discharged their onus under section 11 was
unreasonable;
b.
Whether
the IPM’s finding that they were inadmissible under paragraph 34(1)(f) of
the Act was unreasonable; and
c.
Whether
the reasons given by the IPM were inadequate;
d.
Whether
the RPD fettered its discretion refusing to waive a second interview with
Geethavengayan.
STATUTORY
PROVISIONS
[27]
The
following provisions of the Act are at issue in these proceedings:
3. (1) The objectives of this Act with respect to immigration are
…
(h) to protect the health and safety of Canadians
and to maintain the security of Canadian society;
(i) to promote international justice and security
by fostering respect for human rights and by denying access to Canadian
territory to persons who are criminals or security risks;
…
11. (1) A foreign national must, before entering Canada, apply to an officer
for a visa or for any other document required by the regulations. The visa or
document may be issued if, following an examination, the officer is satisfied
that the foreign national is not inadmissible and meets the requirements of this
Act.
…
18. (1) Every person seeking to enter
Canada must appear for an examination to determine whether that person has a
right to enter Canada or is or may become authorized to enter and remain in
Canada.
…
34. (1) A permanent resident or a foreign
national is inadmissible on security grounds for
(a) engaging in an act of espionage or an act of
subversion against a democratic government, institution or process as they
are understood in Canada;
(b) engaging in or instigating the subversion by
force of any government;
(c) engaging in terrorism;
…
(f) being a member of an organization that there are reasonable
grounds to believe engages, has engaged or will engage in acts referred to in
paragraph (a), (b) or (c).
|
3. (1) En matière d’immigration, la résente loi a pour objet
:
…
(h) de
protéger la santé des Canadiens et de garantir leur sécurité;
(i) de promouvoir, à l’échelle internationale, la
justice et la sécurité par le respect des droits de la personne et
l’interdiction de territoire aux personnes qui sont des criminels ou
constituent un danger pour la sécurité
…
11. (1) L’étranger doit, préalablement à son entrée au
Canada, demander à l’agent les visa et autres documents requis par règlement.
L’agent peut les délivrer sur preuve, à la suite d’un contrôle, que
l’étranger n’est pas interdit de territoire et se conforme à la présente loi.
…
18. (1) Quiconque cherche à entrer au Canada est tenu de se
soumettre au contrôle visant à déterminer s’il a le droit d’y entrer ou s’il
est autorisé, ou peut l’être, á y entrer et à y séjourner.
…
34. (1)
Emportent interdiction de territoire pour raison de sécurité les faits
suivants :
a) être
l’auteur d’actes d’espionnage ou se livrer à la subversion contre toute
institution démocratique, au sens où cette expression s’entend au Canada;
b) être
l’instigateur ou l’auteur d’actes visant au renversement d’un gouvernement
par la force;
c) se livrer
au terrorisme;
…
f) être
membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle
est, a été ou sera l’auteur d’un acte visé aux alinéas a)j, b)
ou c).
|
STANDARD OF REVIEW
[28]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held that
a standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to a particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[29]
In
Ghirmatsion v Canada (Minister of
Citizenship and Immigration) 2011 FC 519, Justice Judith Snider held
that the standard of review for issues of procedural fairness is correctness. She
quotes, at paragraph 50, from the decision of Justice Stephen T. Goudge of the
Ontario Court of Appeal in Clifford v Ontario Municipal
Employees Retirement System 2009 ONCA 670:
Where an administrative tribunal has a legal obligation to
give reasons for its decision as part of its duty of procedural fairness, the
question on judicial review is whether that legal obligation has been complied
with. The court cannot give deference to the choice of a tribunal whether to
give reasons. The court must ensure that the tribunal complies with its legal
obligation. It must review what the tribunal has done and decide if it has
complied. In the parlance of judicial review, the standard of review used by
the court is correctness.
[30]
The
standard of review on the third issue is correctness. In Zaki v Canada (Minister of
Citizenship and Immigration) 2005 FC 1066, Justice Snider held at
paragraph 14 that the fettering of discretion is an issue of procedural
fairness. Justice Richard Mosley made a similar finding in Benitez v Canada (Minister of
Citizenship and Immigration) 2006 FC 461 at paragraph 133. Finally, the
Federal Court of Appeal held in Thamotharem v Canada (Minister of
Citizenship and Immigration) 2007 FCA 198 at paragraph 33 that the
standard of review with respect to fettering of discretion is correctness. The
standard of review on the fourth issue is correctness.
[31]
As
the Supreme Court of Canada held in Dunsmuir (above, at paragraph 50),
When applying the correctness standard, a
reviewing court will not show deference to the decision maker’s reasoning
process; it will rather undertake its own analysis of the question. The
analysis will bring the court to decide whether it agrees with the
determination of the decision maker; if not, the court will substitute its own
view and provide the correct answer. From the outset, the court must ask
whether the tribunal’s decision was correct.
[32]
In
Ugbazghi v Canada (Minister of
Citizenship and Immigration) 2008 FC 694, Justice Eleanor Dawson found
that the standard of review on a subsection 34(1) determination was
reasonableness. As the determination of membership in an organization involves
an evaluation of the evidence and an application of the relevant legal test to
the facts as determined by the tribunal, this suggests a reasonableness
standard. Further, the assessment of admissibility is within the expertise of
immigration officers, so deference is called for. (Ugbazghi at paragraph
36). See also Poshteh v Canada (Minister of
Citizenship and Immigration) 2005 FCA 85, at paragraph 21. The standard of
review on the second issue is reasonableness.
[33]
As
with a subsection 34(1) decision, an admissibility decision under section 11 is
subject to deference and should be evaluated on a standard of reasonableness. See
Kumarasekaram v Canada (Minister of
Citizenship and Immigration) 2010 FC 1311, at paragraph 8. The
evaluation of whether an officer is satisfied as to an applicant’s
admissibility is a decision which allows for a range of possible outcomes based
on the evidence presented to the officer. The standard of review on the first
issue is reasonableness.
[34]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and
Immigration) v
Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court
should intervene only if the decision was unreasonable in the sense that it
falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law.”
ARGUMENTS
The Applicants
The Section 11 Finding of Inadmissibility
Was Unreasonable
[35]
The
Applicants argue that the IPM’s Decision that they were inadmissible under section
11 was unreasonably based on the fact that Geethavengayan did not attend the
second interview required by the Respondent. Because Geethavengayan’s
non-attendance at the interview was a collateral matter to the Decision before
the IPM, basing his Decision on this fact was unreasonable. The Applicants are
not concerned with the information (or lack thereof) which could have been
gleaned from a second interview. Rather, they argue that the Decision was based
on Geethavengayan’s non-attendance per se.
[36]
In
support of the argument that the IPM based his Decision on
Geethavengayan’s non-attendance at the interview, the Applicants quote from the
Decision letter:
Similarly, despite clear and consistent
messaging that the son must be examined, we have received also a clear
messaging [sic] that he does not wish to attend the required interview
and that he be removed from the application. I conclude that I do not have a
complete understanding of your background and I am not satisfied that you are
not inadmissible in accordance with a11(1)
This quotation demonstrates
that the principal concern of the IPM was Geethavengayan’s non-attendance,
rather than the substance of the application.
[37]
The
Applicants also rely on the 26 May 2009 CAIPS notes entry to support their
position that the IPM unreasonably based his Decision on Geethavengayan’s
failure to attend the interview. That day’s entry reads as follows:
SPR’s [sponsor] indicates in his letter
(no date specified) that his BRO [brother] is in Denmark on a working visa and
he is not willing to forgo that and come to INT [interview] in Colombo. Wants the INT to be done in
any EU country otherwise SPR will remove BRO from the sponsorship.
1st there are serious security
concerns on this case. INT cannot be waived. Secondly PA applied from SL [Sri Lanka], and program integrity is
best served for processing of case in SL which includes the background review.
Son in Denmark had gone to work there its [sic]
not because of any other reason like he fears for his life to prevent him from
complying with our requirements.
SPR can choose whether BRO is accompanying
or not, but as he is a DEP [dependent] child of PA he has to be examined.
The Applicants argue
that this passage shows that the IPM was focussed on Geethavengayan’s
non-attendance at the interview when making his determination under section 11.
[38]
The
Applicants also argue that the Respondent’s insistence on a second
interview with Geethavengayan was unreasonable and did not take into account
his refugee status in France or his fear of return to Sri Lanka. In
addition, the Applicants argue that the IPM fettered his discretion in refusing
to waive the second interview and in failing to appreciate that he had the
discretion to waive the second interview.
[39]
The
Applicants note that the Respondent was made aware of
Geethavengayan’s refugee status in France on three occasions: 8
April 2010, 11 June 2010, and 14 June 2010. The Applicants assert that the
CAIPS notes do not indicate that any consideration was given to
Geethavengayan’s refugee status in France or his alleged fear of return to Sri Lanka. The
Respondent was made aware of Geethavengayan’s refugee status almost two years
after he was convoked for a second interview on 28 April 2008. However, the Applicants
argue that it was unreasonable for the IPM not to consider waiving the
second interview based on Geethavengayan’s refugee status, because he received
that information before the Decision was finalized on 15 June 2010.
[40]
The
Applicants further argue that the section 11 Decision was unreasonable
because the IPM did not appreciate that he had the discretion to waive the
second interview and so fettered his discretion. The Applicants rely on Justice
Eleanor Dawson’s examination of the standard of review applicable to a decision
to require an interview in Qazi v Canada (Minister of
Citizenship and Immigration) 2006 FC 1177. They say that Qazi
stands for the proposition that the IPM had the discretion to waive the
interview. Paragraph 16 of Qazi reads as follows:
Su was a decision rendered in respect of the
legislative provisions contained in the former Act and Regulations. However,
the current legislative regime continues to vest a discretion in an officer to
require attendance at an interview. In determining the standard of review to be
applied to the exercise of that discretion, it is necessary to consider the
four factors that comprise the pragmatic and functional analysis (the existence
of a privative cause, relative expertise, the purpose of the provision and the
Act, and the nature of the question). Having regard to those factors:
…
(4) The decision whether to require interview
is highly discretionary and fact-based. However, subsection 16(1) of the Act
requires an applicant to produce “all relevant evidence and documents that [an]
officer reasonably requires”. This means that the decision to require
information is not completely open-ended. It suggests an intent that there be
some review of an officer’s decision.
[41]
Though
the decision had already been taken on 28 April 2008 to require a second
interview, the IPM had the discretion to waive the required interview
once the Respondent was notified in 2010 of Geethavengayan’s refugee status. By
failing to appreciate he had this discretion, the IPM unlawfully fettered his
discretion.
[42]
In
support of this line of argument, the Applicants quote from the letter provided
to The Hon. John McCallum, MP in response to his inquiry on the file:
In regard to processing of this case of
dependant son Mr. Geethavengayan, as earlier indicated whether accompanying or
not, dependant son Geethavengayan will also have to meet all statutory requirement
and be examined with the Principal Applicant and her daughter. The dependant
son cannot be exempt from this examination.
Because the Respondent
said that the son could not be exempt from the requirement of the
interview, this shows that the discretion to waive the interview was fettered.
[43]
The
Applicants also argue that the Respondent failed to appreciate that there was
discretion to waive the interview requirement for non-accompanying family
members. They point to the Immigration Manual, section OP2 (Processing Members
of the Family Class) in support of this discretion to waive:
Section
5.11
All family members,
whether accompanying the Principal Applicant or not, are required to be
examined unless an officer decides otherwise. Normally, an inadmissible family
member, whether accompanying or not, would render the Principal Applicant
inadmissible. There are, however, two exceptions to this rule described in R23.
The first is the separated spouse of the Applicant and the second is where a
child of the Applicant who is in the legal custody of someone other than the Applicant
or an accompanying family member of the Applicant, or where someone other than
the Applicant or accompanying family member of the Applicant is empowered to
act on behalf of that child by virtue of a court order or written agreement or
by operation of law.
[…]
If these family
members are genuinely unavailable or unwilling to be examined, the consequences
of not having them examined should be clearly explained to the Applicant and reflected
in the CAIPS notes. Officers may wish to have Applicants sign a statutory
declaration indicating they understand the consequences of failing to have the
family member examined.
Section 5.12
Under both the
previous legislation and under IRPA, both the Applicant and the Applicant's
family members, whether accompanying or not, must meet the requirements of the
legislation. There are no exceptions to the requirement that all family members
must be declared. With few exceptions, this also means that all family members
must be examined as part of the process for achieving permanent residence.
Officers should be
open to the possibility that a client may not be able to make a family member
available for examination. If an Applicant has done everything in their power
to have their family member examined but has failed to do so, and the officer
is satisfied that they are aware of the consequences of this (i.e., no future
sponsorship possible), then a refusal of their application for non-compliance
would not be appropriate.
Officers must decide
on a case-by-case basis using common sense and good judgment whether to proceed
with an application even if all family members have not been examined. Some
scenarios where this may likely occur include where an ex-spouse refuses to
allow a child to be examined or an overage dependant refuses to be examined.
Proceeding in this way should be a last resort and only after the officer is
convinced that the Applicant cannot make the family member available for
examination. The Applicant themselves cannot choose not to have a family
member examined.
[44]
These
sections demonstrate the Immigration Section had the discretion to waive the
interview. Since the Respondent continued to insist on a second interview
throughout the application process, he must have fettered his discretion.
Paragraph
34(1)(f) Decision Was Unreasonable
[45]
The
Applicants argue that the IPM’s finding that the family was inadmissible
under paragraph 34(1)(f) was unreasonable because he did not consider
whether the Applicants had been coerced into doing things in support of the
LTTE. In the CAIPS notes on the 2007 Interview with the Principal Applicant, Stevenson
noted that the Principal Applicant said she supported the LTTE goals of a
homeland and their tactics of force. He also noted that she said she had
cooked and made sweets for the LTTE members. He did not make any notes about
coercion in these activities. The CAIPS notes also show that, during the
interview, Geethavengayan said he had dug graves and bunkers and had done odd
jobs for the LTTE. When asked if his family supported the LTTE, Geethavengayan
said that they did but “it was an obligation.”
[46]
The
Applicants also note that, in support of the application for judicial
review, the Principal Applicant submitted a document purporting to have been
written (though not sworn) sometime in 2011. In this document, submitted as an
exhibit to the affidavit of the translator, the Principal Applicant states that
in the 2007 Interview she told Stevenson that all the help her family
had given the LTTE was coerced because they lived in an LTTE controlled area. Geethavengayan
has also provided the Court with an affidavit in which he swears that at the 2007
Interview he told Stevenson that his family’s participation in LTTE activities
was forced and that they had no option because they lived in an LTTE controlled
area.
[47]
Based
on these affidavits and the CAIPS notes, the Applicants argue that the IPM
ignored evidence that they had been coerced into participating in the
activities of the LTTE when he decided that the Applicants were inadmissible
under paragraph 34(1)(f). At the time they filed their Memorandum of Argument,
there was no supporting affidavit from Stevenson (though an affidavit
from him has now been filed) so the Applicants argue that their affidavit
evidence should be preferred to the CAIPS notes to prove what occurred during
the 2007 Interview. Since there was evidence before the IPM that their
participation in LTTE activities was forced, it was unreasonable for him not to
consider coercion in making the determination under paragraph 34(1)(f).
The
Reasons Given Were Inadequate
[48]
The
Applicants also argue that, because the Decision does not disclose an
individualized assessment or the required institutional link to a group that
engages in the activities listed in paragraph 34(1)(a) through (c),
the reasons are inadequate. The Applicants say that the IPM did not find
that they were actual members of the LTTE, but rather imputed membership to
them based on the statements they made at the 2007 Interview. This imputed
membership was also based on the PIF Kavetha filed with her refugee application
in 1999. In her PIF, Kavetha wrote that:
My father was a strong LTTE supporter. He
used his Lorry to transport goods for Tigers. He is well known as “Tiger
Kuncha Rasa” (Small Tiger King). He was appointed as the head of the
Mediation Committee of Thunukkai by Tigers. My father died on July 4,
1998. While was fighting for his life he refused to be transferred from Malavi Hospital to Anuratha Pura Hospital because his involvement with
Tigers is well known. [italics in original]
[49]
The
Applicants say that, where an officer imputes membership in an organization but
does not find actual membership in an organization, there must be evidence of
some kind of institutional link. They rely on Sinnaiah v Canada (Minister of
Citizenship and Immigration) 2004 FC 1576, where Justice James O’Reilly
said at paragraphs 4-6:
A person is
inadmissible to Canada if there are reasonable grounds to believe he or she is a
member of a terrorist group (ss. 33, 34, Immigration and Refugee Protection
Act, S.C. 2001, c. 27). Both parties in this case accept that the LTTE is a
terrorist group.
The requirement for “reasonable grounds” represents a low, yet meaningful,
evidentiary threshold. Some evidence of actual membership must exist, although
it need not satisfy the civil standard of a balance of probabilities: Chiau
v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.); Thanaratnam v. Canada (Minister
of Citizenship and Immigration) 2004 FC
349, [2004] F.C.J. No. 395 (FC)(QL);
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: Chiau, above; Thanaratnam, above.
[50]
The
Applicants further rely on Villegas v Canada (Minister of
Citizenship and Immigration) 2011 FC 105 which, they argue, stands for
the proposition that a tribunal must engage in an analysis of the quality of
membership when imputing membership. The Applicants say that neither the refusal
letter or the CAIPS notes show how the IPM analysed their membership in
the LTTE. They quote the CAIPS notes at length:
Further, there is strong evidence on
file, as a matter of direct statements from family members, that the mother,
the son, and the daughter have made active contributions to the LTTE, a listed
terrorist organization. They have made statements that they support the cause,
participated in combat training, and, in the case of the daughter, been
provided protection in an LTTE safe house. There is no need to conduct further
procedural fairness on these issues, the information results from direct
statements made by the Applicants. Though the Applicants may not have a card
that says they are LTTE members, their actions demonstrate active support both
behaviourally and spiritually. In accordance with A34(f) [sic] they are
inadmissible to Canada.
[51]
The
Applicants say that the quoted passage demonstrates that the reasons of the IPM
do not disclose how he assessed each Applicant’s individual membership in
the LTTE. They say that the reasons do not show how the IPM considered
all the factors relevant to determine a person’s membership in an organization.
[52]
As
an example of this failure to disclose reasons, the Applicants assert that it
is unclear how the IPM came to the conclusion that Nalini was an
LTTE member from the fact that she stayed at an LTTE safe house. Further, they
argue that the reasons disclose insufficient analysis as to how the Principal
Applicant’s actions of making food and sweets, as well as her statements that
she supported the cause of the LTTE make her a member of the LTTE. Because the
reasons do not show a consideration of the quality of each Applicant’s
membership in the LTTE, they are inadequate.
[53]
In
making the arguments regarding the adequacy of reasons, the Applicants also
raise an argument about the reasonableness of the IPM’s conclusions. They
assert that the IPM’s Decision was based on the statements of the
sponsor in her PIF and the actions of the Principal Applicant’s deceased
husband. Basing the Decision that they were members of an organization under paragraph
34(1)(f) on the actions of these people who were not parties to the
application was unreasonable.
The Respondent
Section
11 Determination Was Reasonable
[54]
The
Respondent argues that it was reasonable for the IPM to conclude, based
on all the evidence that was before him, that the Applicants had not met their
burden of satisfying him that they were not inadmissible to Canada. The Respondent
notes that the Applicants had more than sufficient time to satisfy the onus on
them as the application was in process for nearly eight years.
[55]
The
Respondent also notes that, at the time of the 2007 Interview, the Respondent
was willing to move the date of the initial interview with all three Applicants
from July to September 2007. In addition, Stevenson was willing to
proceed with the interview of the Principal Applicant and Geethavengayan, in
spite of the fact that Nalini could not attend. Having heard what the Principal
Applicant and Geethavengayan had to say, Stevenson determined that there
were security concerns with the Applicants and scheduled a second interview for
12 June 2008. On 31 July 2009, the Respondent requested a copy
Geethavengayan’s passport and visa from Denmark so that the
application could be processed. These documents were not produced.
[56]
It
was not unreasonable for the IPM to refuse the request to waive the
interview. The Applicants had not been forthcoming with the information
requested of them, having not provided any information within the sixty-day
deadline set in the letter to the sponsor of 30 September 2009. Further, the Respondent
notes, the Applicants did not make him aware of Geethavengayan’s refugee
status in France until 16 months
after it had been granted. Having not made him aware of Geethavengayan’s
refugee status in a timely manner, it was not reasonable for the Applicants
to expect a last-minute accommodation for the second interview.
[57]
The
Respondent argues that the OP2 guidelines do not assist the Applicants’
position because they apply to the situation where an included dependent is not
available for examination because of circumstances beyond the applicant’s
control. This is not such a situation. In this case, it was entirely within the
Applicants control to make Geethavengayan available for an interview, yet they
did not do so. Thus, the ordinary requirement that all family members be
examined for the application remained.
Subsection
34(1) Determination Was Reasonable
[58]
The
Respondent says that, based on all the evidence and the law before him, the IPM’s
determination that the Applicants were members in an organization within
the meaning of subsection 34(1) was reasonable. As noted above, the Principal
Applicant and Geethavengayan made several statements during the 2007 Interview about
the things that they did for and with the LTTE. Further, the Principal
Applicant said that her husband had helped the LTTE, and that he had been a
member of one of the LTTE committees. Both the Principal Applicant and
Geethavengayan said that their family supported the LTTE. Based on this
evidence, as well as the statements in Kavetha’s PIF, it was open to the IPM
to conclude that the Applicants were members of the LTTE, an organization
which engaged in the activities listed in paragraphs 34(1)(a) through (e)
of the Act.
[59]
In
response to the Applicants’ contention that the CAIPS notes do not
accurately reflect the conduct and contents of the 2007 Interview, the Respondent
argues that the CAIPS notes should be preferred. He notes that the Applicants’
affidavits were produced after the application for judicial review was
commenced. He also notes that the affidavits were produced nearly four years
after the interview in question was conducted, while the CAIPS notes were
recorded contemporaneously with the interview in question. The Respondent
asserts that the affidavits were not prepared based on contemporaneous notes. The
Respondent also points out that the document submitted by the Principal
Applicant as an exhibit to the affidavit of the translator was not commissioned
or dated.
[60]
Because
the CAIPS notes ought to be preferred to the affidavits of the Applicants, the
Respondent argues that there was no evidence before the IPM with respect
to coercion. It was therefore reasonable for the IPM not to consider
whether the Applicants’ LTTE activities were coerced.
[61]
The
Respondent also argues that the definition of “member” in paragraph 34(1)(f)
is broad enough to capture the activities of the Applicants and make them
inadmissible under this section. The Respondent relies on Poshteh, above,
in which Justice Marshall Rothstein held at paragraph 29 that “‘member’ under
the Act should continue to be interpreted broadly.” Justice Rothstein further
noted that “in any given case it will always be possible to say that although a
number of factors support a membership finding, a number point away from
membership. An assessment of these facts is within the expertise of the
Immigration Division.” The Respondent further relies on Kanendra v Canada (Minister of
Citizenship and Immigration) 2005 FC 923 for the proposition that
membership need not be limited to actual or formal members. Since the
definition of membership is broad, it was large enough to capture the
activities of the Applicants; the IPM’s finding that they were members
of the LTTE was reasonable.
The
Reasons Provided Were Adequate
[62]
The
Respondent says that the reasons given by the IPM are adequate when they
are examined with the purposes for providing reasons in mind. Relying on Ragupathy
v Canada (Minister of
Citizenship and Immigration) 2006 FCA 151, the Respondent argues
that reasons ought to be examined in light of their purposes. Reasons allow the
court to ensure that decision-makers have focussed on the factors they must
consider and enable the parties to exercise the right to judicial review. Further,
reasons should be read with a view to understanding, rather than examined
clause-by-clause looking for errors (Ragupathy, at paragraph 15).
[63]
Relying
on Farkhondehfall v Canada (Minister of
Citizenship and Immigration) 2010 FC 471, the Respondent also says that
the reviewing court can consult the evidence referred to by a tribunal to flesh
out the reasons given. Because the CAIPS notes disclose the evidence that the IPM
relied on, and that evidence supported his conclusions, the Respondent
argues that, taken together, the letter and the CAIPS notes do provide adequate
reasons.
ANALYSIS
[64]
Even
if I were to agree with the Applicants that the Decision contains reviewable
errors with regard to section 11 of the Act, it still seems to me that this
application cannot succeed. The IPM goes on to make a further finding under paragraph
34(1)(f) of the Act that the Applicants are inadmissible. This finding
is set out and explained in a summary fashion in the refusal letter of 15 June
2010, but it is given significant elaboration in the CAIPS notes that are also
part of the Decision. See Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 at paragraph 44, Mehrabani v Canada
(Minister of Citizenship and Immigration), [2000] FCJ No. 345 at paragraph
5, and Kindie v Canada (Minister of Citizenship and Immigration) 2011 FC
850 at paragraph 5.
[65]
The
CAIPS notes contain details of the interviews conducted with the Principal
Applicant and Geethavengayan in 2007. The Principal Applicant’s daughter,
Nalini, was never interviewed because she could not get a pass to attend.
[66]
In
any event, after a significant period of time and lengthy correspondence aimed
at arranging further interviews with the Principal Applicant and
Geethavengayan, the IPM concluded that a decision on admissibility could be
made from the evidence on file. This is how he summarized the situation in the CAIPS
notes:
Further, there is strong evidence on
file, as a matter of direct statements from family members, that the mother,
the son, and the daughter had made active contributions to the LTTE, a listed
terrorist organization. They have made statements they support the cause,
participated in combat training, and, in the case of the daughter, been
provided protection in a LTTE safe house. There is no need to conduct further
procedural fairness on these issues, information results from direct statements
made by the Applicants. Though the Applicants may not have a card that says
they are LTTE members, their actions demonstrate active support both
behaviourally and spiritually. In accordance with A34(f), they are inadmissible
to Canada.
[67]
It
is possible, in my view, to take issue with what the evidence reveals
concerning the contributions that Nalini and Geethavengayan have made to the
LTTE. However, the Principal Applicant openly acknowledged her contributions when
she was interviewed. She said that:
a.
She
had lived for a long period in an area controlled by the LTTE;
b.
She
and other family members had worked for the LTTE (although the participation of
Nalini and Geethavengayan is not entirely clear);
c.
Her
daughters did clerical work and cooking for the LTTE. They did this for four or
five hours per day for three days per week on and off;
d.
Ponnampalam
used to help the LTTE. He would bring things for them and use his lorry to help
them. He also provided monetary help;
e.
Ponnampalam
was an LTTE supporter and was called “Tiger Kuncha Rasa” which means “Small
Tiger King”;
f.
The
LTTE had appointed Ponnampalam as head of the Mediation Committee of Thunukkai
because of his involvement with the LTTE;
g.
She
cooked for the LTTE and she gave them food and sweets;
h.
She,
her deceased husband, and “her kids” are supporters of the LTTE;
i.
Following
Ponnampalam’s example, she and her children have continued to support the LTTE;
j.
She
supports the LTTE struggle for a homeland;
k.
She
supports the LTTE’s acts of force and combat for a homeland.
[68]
It
seems to me that this evidentiary base provides clear support for a conclusion
that the Principal Applicant, at least, is a voluntary supporter of the LTTE,
just as her husband was, and that she has provided active support to the LTTE
struggle for a homeland and approves of the LTTE’s use of force in combat to
achieve this goal.
[69]
The
Applicants seek to discredit this rather obvious conclusion in several ways.
First of all, the Principal Applicant has filed an affidavit with this
application in which she says, inter alia, that
I also told [Stevenson] at my interview
that all the help we were providing to the LTTE was because we had no other
options. It was not voluntary service on any of our part, but rather forced,
because we lived in an LTTE controlled area.
[70]
For
some reason that is unexplained, this affidavit is unsworn. In any event, the
affidavit was prepared some three years after the interview and there is no
evidence that it was prepared based on notes made contemporaneously with the
interview or immediately after. The CAIPS notes were made at the time of the
interview by an officer who has no personal interest in the outcome of this
litigation. That officer has also filed an affidavit attesting to the contents
of the CAIPS notes.
[71]
Given
the acknowledgement recorded in the CAIPS notes that the Principal Applicant is
a continuing supporter of the LTTE and approved of their use of force to
achieve a homeland, in order to accept the Principal Applicant’s affidavit
evidence on this point, I would have to accept that Stevenson deliberately
concocted the CAIPS notes because they so clearly speak to non-coercive support
for, and contribution to, the LTTE by the Principal Applicant. Needless to say,
I accept the CAIPS notes as an accurate account of what transpired at the
interview and reject the Principal Applicant’s belated attempts to change her
story and discredit the interview process. See Khela v Canada (Minister of
Citizenship and Immigration) 2010 FC 134 at paragraph 18; Sehgal v
Canada (Minister of Citizenship and Immigration) 2001 FCT 212 at paragraph
7, and Paracha v Canada (Minister of Citizenship and Immigration),
[1997] FCJ No 1786 at paragraphs 6 and 7. The Principal Applicant is now
aware of the significance of what she acknowledged at the interview and wishes
to avoid the obvious conclusion the IPM drew. She gives no explanation other
than that the CAIPS notes fail to record that her support and contributions
were coerced. This suggests to me that the Principal Applicant is fully aware
of why the visa was refused in her case and the reasons are adequate in
creating that awareness.
[72]
The
Principal Applicant also argued at the hearing of this application that the
failure to examine Geethavengayan a second time renders the conclusions
regarding subsection 34(1) problematic, so that the matter needs to be returned
for reconsideration. Even if I were to accept that the failure to re-examine
Geethavengayan impacts the IPM’s conclusions about him and his sister, the
direct evidence from the Principal Applicant concerning her own support for the
LTTE is absolutely clear and, in my view, did not require a further examination
of Geethavengayan for a final decision on the inadmissibility of the Principal
Applicant.
[73]
Finally,
the Applicants say that the IPM failed to consider coercion, and this includes coercion
of the Principal Applicant. This is alleged by Geethavengayan in the affidavit
he has filed for this judicial review application and he also raised it when he
was interviewed.
[74]
On
this point, the CAIPS notes of the interview of Geethavengayan reveal the
following:
a.
He
refused to concede that his father had been a very willing supporter of the
LTTE and said that his father would go to the LTTE “instead of sending his
children.” This is a contradiction of the Principal Applicant’s account of the
father’s role, and that she and the children followed on and provided active
support for the LTTE. When Stevenson pressed him further on the father’s
support, Geethavengayan immediately backed off and changed his response: “I
know he helped them, but don’t remember a lot – I was 14 when he died.” Geethavengayan
concedes he is no authority on what his father did for the LTTE even though he
was initially adamant that his father was not a willing supporter;
b.
Geethavengayan
was then confronted with what Stevenson said the Principal Applicant had said
about Nalini. He again said that Nalini did not want to join the LTTE and had
not actively participated in support of the LTTE, but he also conceded he had
been away in India and that he
had not talked to Nalini since January;
c.
Stevenson
also confronted him with evidence from his sister in Canada that she is
a loyal supporter of the LTTE and that the father was a strong supporter. Again
Geethavengayan says that his father was forced to help as well as his sister. Stevenson
then points out that Kavetha’s evidence in her PIF did not suggest that she and
her father were forced supporters.
[75]
None
of this really casts doubt upon the clear evidence of the Principal Applicant
concerning her own uncoerced support for the LTTE and that organization’s tactics.
The later revisionist affidavits filed with this application do not help. None
of them explain why the Principal Applicant would have said what she did say at
the interview if she had been coerced by the LTTE.
[76]
When
the IPM came to review the file and make the Decision, he accurately
characterized the Principal Applicant’s evidence on point: “Tells us her
husband was an active LTTE supporter and she is an active supporter and
believes their cause.” The IPM reasonably concluded that the evidence shows the
Principal Applicant has made an active contribution to the LTTE – a listed
terrorist group – and her actions demonstrate active support, both
behaviourally and spiritually. The Principal Applicant’s own direct evidence makes
it clear that her support and contribution to the LTTE was not coerced. There
was no need for the IPM to go further.
[77]
The
Court cannot say that the IPM was unreasonable with regard to his paragraph 34(1)(f)
conclusions about the Principal Applicant, or that he failed to provide
adequate reasons on this point. After reviewing the refusal letter and CAIPS
notes, I find that the Principal Applicant was individually assessed on her
level of involvement. The evidence justifies the findings that she was a member
of the LTTE in accordance with the extended meaning of that term recognized in
the jurisprudence. See Sinnaiah, above; Villegas, above; and Poshteh,
above. Her more recent affidavit makes it clear that she is fully aware of why
a negative decision was made in her case, because she now wants to claim that
her approval of LTTE aims and methods was coerced. Coercion occurs when a
person does not approve of a cause but is compelled to contribute
notwithstanding that disapproval. The whole tenor of the Applicant’s account
was that she was a willing supporter, just as her husband had been. As a
willing supporter, she was not coerced. That being the case, it seems to me
that there is no point in proceeding with an analysis of other points raised by
the Applicants, or in sending the matter back for reconsideration because the reasonable
finding by the IPM that the Principal Applicant supported the LTTE means that
the sponsorship application must fail.
[78]
Both
counsel agree that there is no question for certification and the Court concurs.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James
Russell”