Date:
20130605
Docket:
IMM-4310-12
Citation:
2013 FC 604
Ottawa, Ontario,
June 5, 2013
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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SIVAGARAN SIVAGNANASINGAM
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I.
Overview
[1]
In
2010, Mr Sivagaran Sivagnanasingam arrived in Canada aboard the MV Sun Sea,
along with nearly 500 other Tamil migrants. He claimed refugee protection, but
a panel of the Immigration Division (ID) of the Immigration and Refugee Board
found that he was inadmissible to Canada for having engaged in “people
smuggling” as defined in s 37(1)(b) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA] (see Annex for enactments cited).
[2]
The
ID found that Mr Sivagnanasingam had voluntarily joined the crew of the MV Sun
Sea, and was either aware of, or wilfully blind to, the fact that the other
passengers were undocumented migrants who intended to enter Canada illegally. It concluded that there were reasonable grounds to believe Mr
Sivagnanasingam had engaged in the transnational crime of “people smuggling”.
[3]
Mr
Sivagnanasingam argues that the ID erred in its interpretation of the meaning
of “people smuggling” and “wilful blindness”. He asks me to quash the ID’s
decision and order another panel to reconsider the issues.
[4]
I
can find no grounds for overturning the ID’s decision and must, therefore,
dismiss this application for judicial review.
[5]
The
issues are:
1. Did the ID err in its
interpretation of “people smuggling”?
2. Did the ID err in
applying the concept of wilful blindness?
II.
Factual
Background
[6]
Mr
Sivagnanasingam was born in Sri Lanka in 1972 and lived there most of his life.
He regularly traveled outside the country working on an oil tanker and as an
importer. After trips abroad, he used his own passport to re-enter Sri Lanka.
[7]
In
2009, desiring to leave Sri Lanka permanently, Mr Sivagnanasingam made contact
with a smuggler who was arranging a mass emigration to Canada by ship. The price was $40,000, which Mr Sivagnanasingam could not afford. After
mentioning his sailing experience, the organizers reduced his fee to $25,000.
Mr Sivagnanasingam paid a deposit of $2,500; the balance was due after arrival
in Canada.
[8]
In
2010, Mr Sivagnanasingam obtained a visa to travel to Thailand where he met up with the ship’s captain and a number of other crew members. As the
crew was shorthanded, Mr Sivagnanasingam agreed to help out.
[9]
On
the journey to Canada, the ship did not fly a registered flag or use a
registered name. Mr Sivagnanasingam acted as a crew member throughout the trip.
On arrival in Canada in 2010, Mr Sivagnanasingam was found on the bridge and
described himself as a crew member. In addition, over the course of numerous interviews
with Canada Border Services Agency (CBSA) officers, Mr Sivagnanasingam
consistently referred to himself as a member of the crew.
III.
The
ID’s Decision
[10]
The
ID concluded that Mr Sivagnanasingam had willingly joined the crew of the MV
Sun Sea, after having negotiated a reduced fare on that basis. Further, Mr Sivagnanasingam
was aware that the passengers were undocumented and would be attempting to
circumvent Canada’s passport and visa requirements. He knowingly and willingly
assisted the operation.
[11]
The
ID then considered whether Mr Sivagnanasingam was inadmissible to Canada. A person is inadmissible on the grounds of organized criminality for “engaging, in
the context of transnational crime, in activities such as people smuggling”
(IRPA, s 37(1)(b)).
[12]
The
ID considered whether Mr Sivagnanasingam had engaged in a transnational crime.
It applied the definition of that term set out in the United Nations
Convention Against Transnational Organized Crime (UNCATOC), Article 3, para
2. That provision states, among other things, that a crime is transnational if
it is committed in more than one state, or if a substantial part of its
preparation or planning takes place in another state. The ID found that Mr Sivagnanasingam’s
conduct was transnational.
[13]
The
ID then considered whether Mr Sivagnanasingam had engaged in “people
smuggling”. There is no explicit definition of “people smuggling” in IRPA. The
Minister argued that the definition should be taken from s 117 of IRPA which
makes it an offence to “aid or abet the coming into Canada of one or more
persons knowing that, or being reckless as to whether, their coming into Canada is or would be in contravention of this Act”. Mr Sivagnanasingam argued that the
definition should be narrower and include a requirement that the alleged
smuggler be motivated by profit.
[14]
The
ID rejected Mr Sivagnanasingam’s submissions on this point and declined to
import a profit motive into the definition of “people smuggling”. It found that
Mr Sivagnanasingam had knowingly aided in the ship’s operation, whose aim was
to transport undocumented persons to Canada. In the ID’s view, this constituted
“people smuggling”. The ID went on to find, in addition, that the elements of
the offence set out in s 117 of IRPA were present. That is, Mr Sivagnanasingam
aided and abetted the smuggling operation, the smuggled persons lacked proper
documentation, Mr Sivagnanasingam knew or was wilfully blind to the fact that
those persons lacked documentation, and the smuggled persons entered Canada.
[15]
Accordingly,
the ID was satisfied that there were reasonable grounds to believe that Mr Sivagnanasingam,
a foreign national, had engaged in people smuggling in the context of
transnational crime. Therefore, he was inadmissible to Canada. The ID issued a deportation order against Mr Sivagnanasingam.
IV.
Issue
One - Did the ID err in its interpretation of “people smuggling”?
[16]
Mr
Sivagnanasingam argues that the ID erred by failing to include in the
definition of “people smuggling” a requirement that the person be motivated by
profit.
[17]
Subsequent
to the hearing of this application for judicial review, the Federal Court of
Appeal rendered its decisions in B010 v Canada (Minister of Citizenship and
Immigration) and B072 v Canada (Minister of Citizenship and Immigration),
2013 FCA 87. There, Justice Eleanor Dawson (Justices John Evans and David
Stratas concurring) concluded that “people smuggling does not require that a
material benefit be conferred upon the alleged smuggler” (at para 8). In
particular, the definition of “people smuggling” can be taken from s 117 of
IRPA which makes it an offence to knowingly aid or abet the coming into Canada of persons who lack the necessary documentation.
[18]
Therefore,
it is clear that the ID did not err in finding that Mr Sivagnanasingam’s conduct
came within the definition of “people smuggling”.
V.
Issue
Two - Did the ID err in applying the concept of wilful blindness?
[19]
Mr
Sivagnanasingam
argues that the ID erred by concluding that he was wilfully blind to the fact
that the MV Sun Sea’s passengers lacked proper documentation.
[20]
In
fact, the ID’s discussion of wilful blindness was part of an alternative
analysis, supplementary to its main finding that Mr Sivagnanasingam’s
conduct came within the definition of “people smuggling”. Therefore, any error on
the ID’s part relating to the concept of wilful blindness did not affect its
principal conclusion.
[21]
In
any case, however, I see no error on the ID’s part.
[22]
Wilful
blindness refers to a situation where a person’s suspicion “is aroused to the
point where he or she sees the need for further inquiries, but deliberately
chooses not to make those inquiries” (R v Briscoe, 2010 SCC 13, at
para 21, emphasis in original). The ID specifically concluded that Mr Sivagnanasingam was
aware that passports and visas were required for entry into Canada. At a minimum, he suspected that the passengers did not meet that requirement, and
he decided not to make any further inquiries about it. The ID reasonably
concluded that these circumstances amounted to wilful blindness on Mr Sivagnanasingam’s
part.
VI.
Conclusion
and Disposition
[23]
The
ID did not err either in its definition of “people smuggling” or its
application of the concept of wilful blindness. Therefore, I must dismiss this
application for judicial review. The parties proposed that I certify the same
question of general importance that arose in B010 and B072,
above, but an answer to that question has already been provided by the Federal
Court of Appeal. Therefore, no question of general importance arises for
certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“James W. O’Reilly”
Annex
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Immigration
and Refugee Protection Act, SC 2001, c 27
Organized
criminality
37.
(1) A permanent resident or a foreign national is inadmissible on grounds of
organized criminality for
…
(b)
engaging, in the context of transnational crime, in activities such as people
smuggling, trafficking in persons or money laundering.
Organizing
entry into Canada
117. (1) No
person shall organize, induce, aid or abet the coming into Canada of one or
more persons knowing that, or being reckless as to whether, their coming into
Canada is or would be in contravention of this Act.
General
Assembly, United Nations Convention against Transnational Organized Crime:
15 November 2000, A/RES/55/25
3. 2. For the
purpose of paragraph 1 of this article, an offence is transnational in nature
if:
(a)
It is committed in more than one State;
(b)
It is committed in one State but a substantial part of its preparation,
planning, direction or control takes place in another State;
(c)
It is committed in one State but involves an organized criminal group that
engages in criminal activities in more than one State; or
(d)
It is committed in one State but has substantial effects in another State.
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Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
Activités
de criminalité organisée
37.
(1) Emportent interdiction de territoire pour criminalité organisée les faits
suivants :
[…]
b) se livrer, dans le cadre de
la criminalité transnationale, à des activités telles le passage de
clandestins, le trafic de personnes ou le recyclage des produits de la
criminalité.
Entrée
illégale
117.
(1) Il est interdit à quiconque d’organiser l’entrée au Canada d’une ou de
plusieurs personnes ou de les inciter, aider ou encourager à y entrer en
sachant que leur entrée est ou serait en contravention avec la présente loi
ou en ne se souciant pas de ce fait.
Assemblée
générale, Convention des Nations Unies contre la criminalité
transnationale organisée : 15 novembre 2000, A/RES/55/25
3. 2.
Aux fins du paragraphe 1 du présent article, une infraction est de nature
transnationale si:
a) Elle est commise dans plus
d’un État;
b) Elle est commise dans un État
mais qu’une partie substantielle de sa préparation, de sa planification, de
sa conduite ou de son contrôle a lieu dans un autre État;
c) Elle est commise dans un État
mais implique un groupe criminel organisé qui se livre à des activités
criminelles dans plus d’un État; ou
d) Elle est commise dans un État
mais a des effets substantiels dans un autre État.
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