Docket:
IMM-11494-12
Citation: 2013 FC 1101
Ottawa, Ontario, October
28, 2013
PRESENT: The Honourable Mr. Justice O'Reilly
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BETWEEN:
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SUGUNANAYAKE JOSEPH
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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
I. Overview
[1]
On December 24, 2005 Ms Sugunanayake Joseph
suffered multiple bullet wounds during an attack in which her husband, Mr
Joseph Pararajasingham, a Member of Parliament in Sri Lanka, was assassinated.
The couple was shot while attending Christmas Eve mass.
[2]
Weeks later, Canada granted Ms Joseph a
temporary residence visa in order to protect her safety; she has lived in Canada ever since. She is currently 76 years old.
[3]
In 2011, the Immigration Division (ID) concluded
that Ms Joseph was inadmissible to Canada because she was “a member of an
organization that there are reasonable grounds to believe engages” in terrorism
(s 34(1)(f), Immigration and Refugee Protection Act, SC 2001, c
27 [IRPA]). The ID found there were reasonable grounds to believe that Ms
Joseph was a member of the Liberation Tigers of Tamil Eelam (LTTE) and issued a
deportation order against her.
[4]
Just after the ID rendered its decision, Ms
Joseph applied for a pre-removal risk assessment (PRRA). A favourable decision
would prevent her deportation. To date, no decision has been rendered on Ms
Joseph’s PRRA. Her application awaits an assessment by the Canada Border
Services Agency (CBSA).
[5]
Ms Joseph asks me issue an order of mandamus,
which would compel Citizenship and Immigration Canada (CIC) to make a decision
on her PRRA. She maintains that it is inhumane to leave her in limbo, given her
fragile physical and mental health and the likelihood that she would be killed
if returned to Sri Lanka.
[6]
I cannot grant Ms Joseph the order she seeks.
She has not met the test for mandamus.
II. The
ID’s decision
[7]
The ID accepted that the meaning of “member” is
broad.
[8]
It reviewed the evidence relating to Ms Joseph’s
activities in Sri Lanka. In particular, it noted that:
• Ms
Joseph’s husband was a member of the Tamil National Alliance (TNA);
• The TNA acted as a proxy for a number of Tamil political
parties, and urged negotiations between the LTTE and the government of Sri Lanka;
• The
TNA put forward a political platform on behalf of the LTTE;
• The non-violent political objectives of the TNA
corresponded with the ultimate goals of the LTTE;
• Both
the TNA and LTTE sought self-determination for Tamils;
• The
LTTE was known to assassinate members of parties that did not support it;
• The TNA and the LTTE were separate organizations that
played different, but complementary, roles in attempting to achieve Tamil
self-determination;
• By attending conferences and meetings with him and
acting as his secretary, Ms Joseph supported her husband’s career as a
spokesperson for peace and reconciliation;
• Ms
Joseph’s activities indicate her support for her husband’s political
activities; and
• Canada has designated the LTTE as a terrorist organization.
[9]
Based on those considerations, the ID found
reasonable grounds to believe that Ms Joseph furthered the objectives of the
LTTE and that her conduct amounted to membership in that terrorist
organization. As such, she was inadmissible to Canada. Ms Joseph unsuccessfully
sought leave for judicial review of the ID’s decision.
III. Has
Ms Joseph met the test for mandamus?
[10]
Ms Joseph has not met the test for the
exceptional remedy of mandamus. The test was set out in Apotex Inc v Canada (Attorney General), [1994] 1 FC 742 (CA). I need not set out all the applicable
factors. It suffices to note that CIC’s failure to decide Ms Joseph’s PRRA has
not seriously prejudiced her – she cannot be removed before the PRRA is
completed. While that may be a significant ongoing concern for her, it does not
create an obligation on the part of CIC to process her PRRA. Her anxiety does
not create an obligation on CIC to decide her application within a particular
time-frame.
[11]
Ms Joseph argues that CIC’s conduct amounts to
state-imposed stress that should give rise to a judicial remedy (citing New Brunswick (Minister of Health and Community Services) v G (J), [1999] 3
SCR 46). However, in my view, administrative delay in deciding whether to grant
a person a substantial benefit cannot be characterized as state-imposed stress
– at least, not on the facts before me.
[12]
At this point, Ms Joseph’s application has been
transferred to CBSA, and it appears from the record that it is being processed
in accordance with the usual procedures. Understandably, applications filed by
persons in custody take priority.
[13]
However, I must also note that, after the ID’s
decision on her inadmissibility, the Supreme Court of Canada rendered its
decision in Ezokola v Canada (Citizenship and Immigration), 2013 SCC 40.
There, the Court emphasized that individuals should not be held responsible for
crimes committed by a particular group just because they are associated with
that group, or acquiesced to its objectives (at para 68).
[14]
In my view, while Ezokola dealt with the
issue of exclusion from refugee protection, the Court’s concern that
individuals should not be found complicit in wrongful conduct based merely on
their association with a group engaged in international crimes logically extends
to the issue of inadmissibility. At a minimum, to exclude a person from refugee
protection there must be proof that the person knowingly or recklessly
contributed in a significant way to the group’s crimes or criminal purposes (at
para 68). Similarly, it seems to me that to find a person inadmissible to
Canada based on his or her association with a particular terrorist group, there
must be evidence that the person had more than indirect contact with that
group.
[15]
In light of Ezokola, it seems highly
unlikely that Ms Joseph could now be found inadmissible to Canada based on membership in a terrorist group. Ezokola teaches us to be wary of
extending rules of complicity too far. To my mind, that includes the definition
of “membership” in a terrorist group. I doubt the ID, based on Ezokola,
would now conclude that Ms Joseph was a “member” of the LTTE.
[16]
Therefore, while I must dismiss Ms Joseph’s
application for mandamus, I would expect that her PRRA application, post
Ezokola, could be dealt with reasonably expeditiously.
IV. Conclusion
and Disposition
[17]
As Ms Joseph has not met the test for an order
of mandamus, I must dismiss her application for judicial review. No
question of general importance arises.
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