Docket: A-265-14
Citation:
2015 FCA 86
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CORAM:
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DAWSON J.A.
STRATAS J.A.
BOIVIN J.A.
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BETWEEN:
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MANICKAVASAGAR KANAGENDREN
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Appellant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS
FOR JUDGMENT
DAWSON J.A.
[1]
The Immigration Division of the Immigration and
Refugee Board of Canada found the appellant to be inadmissible under paragraph
34(1)(f) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (Act). The Immigration Division found that the appellant was a
member of an organization that there are reasonable grounds to believe engages,
has engaged or will engage in terrorism. The Immigration Division reasoned
that:
- The appellant
admitted to being a member of the Tamil National Alliance (TNA);
- The appellant’s
membership in the TNA constituted membership in the Liberation Tigers of
Tamil Eelam (LTTE); and
- The appellant
did not dispute that the LTTE had engaged in terrorism.
[2]
A judge of the Federal Court dismissed an
application for judicial review of the decision of the Immigration Division
(2014 FC 384) that the appellant was inadmissible under paragraph 34(1)(f)
of the Act. The Judge certified the following question:
Does Ezokola v. Canada (Minister of
Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678, change the
existing legal test for assessing membership in terrorist organizations, for
the purposes of assessing inadmissibility under paragraph 34(1)(f) of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27?
[3]
This is an appeal from the decision of the
Federal Court.
I.
The Issues
[4]
In my view, the issues to be resolved on this
appeal are:
- What is the
standard of review to be applied to the decision of the Immigration
Division?
- Did Ezokola
modify the existing legal test for assessing membership in a terrorist
organization?
- Was the decision
of the Immigration Division reasonable?
II.
The Standard of Review
[5]
The questions before this Court are: did the
Federal Court select the appropriate standard of review and apply it correctly?
To answer these questions this Court must “step into
the shoes” of the Federal Court and focus on the administrative decision
at issue (Agraira v. Canada (Public Safety and Emergency Preparedness),
2013 SCC 36, [2013] 2 S.C.R. 559, at paragraphs 45 and 46).
[6]
The Federal Court did not expressly consider the
standard of review. It framed the issue before it to be whether the decision of
the Immigration Division was reasonable with respect to whether the appellant
was a member of an organization that there are reasonable grounds to believe
engaged in terrorism. The Federal Court noted that the outcome would turn on
whether it was reasonable for the Immigration Division to find that membership in
the TNA, a political party, was tantamount to membership in the LTTE (reasons,
at paragraph 3).
[7]
The parties disagree about the standard of
review to be applied to the Immigration Division’s interpretation of “member”.
[8]
The appellant argues that the definition of “member” is a legal question of general importance
outside of the expertise of the Immigration Division. The word “member” therefore must be interpreted correctly. The
appellant also relies upon the decision of this Court in Kanthasamy v. Canada (Minister of Citizenship and Immigration), 2014 FCA 113, 459 N.R. 367.
[9]
The respondent submits that this Court has
previously applied the reasonableness standard to the Immigration Division’s
interpretation of member: Poshteh v. Canada (Minister of Citizenship and
Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487.
[10]
In my view, in this case nothing turns on the
standard of review. On the basis of the required textual, contextual and
purposive analysis conducted below, there is only a single reasonable
interpretation of the word “member” (McLean
v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R.
895, at paragraph 38; Canada (Minister of Public Safety and Emergency
Preparedness v. Huang, 2014 FCA 228, 464 N.R. 112, at paragraph 39).
[11]
That said, the substance of the decision of the
Immigration Division is to be reviewed on the standard of reasonableness.
III.
Did Ezokola modify the existing legal
test for assessing membership in a terrorist organization?
[12]
The appellant submits that the approach of the Supreme
Court to complicity in Ezokola reflects broader concerns and articulates
principles of interpretation of wider application. The appellant asserts that
the Supreme Court’s concern in Ezokola about excluding those who are
guilty of no wrongdoing should also guide the interpretation of “membership” under paragraph 34(1)(f) of
the Act. It follows, the appellant argues, that membership should not be
extended to those who are not involved in terrorist activities or who are
loosely linked to a terrorist organization or who are compelled to join a
terrorist organization. The appellant further argues that in keeping with the
parameters of what the Supreme Court found in Ezokola to be blameworthy
conduct, the principled nexus must be a significant contribution to the
wrongful actions of the group by a true member who joined without coercion or
compulsion.
[13]
I disagree that the decision of the Supreme
Court in Ezokola requires modification of the legal test for membership
in a terrorist organization. I reach this conclusion for the following reasons.
[14]
I begin by discussing the scheme of the Act and
the nature of the issue before the Supreme Court in Ezokola.
[15]
Article 1F(a) of the United Nations
Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (Refugee
Convention) excludes individuals from the definition of
“refugee” if there are “serious reasons for
considering that [they have] committed a crime against peace, a war crime, or a
crime against humanity”. Article 1F(a) is set out in the appendix
to these reasons, together with all sections of the Act cited in these reasons.
[16]
Article 1F(a) is incorporated into
Canadian law by section 98 of the Act.
[17]
As a matter of law, criminal liability is not
confined to the direct perpetrators of a crime. As the Supreme Court noted in Ezokola,
a murder conviction can attach equally to one who pulls the trigger as well as
to one who provides the gun (Ezokola, at paragraph 1).
[18]
At issue in Ezokola was the line between mere
association and culpable complicity (Ezokola, at paragraph 4). The Court
found that complicity arises by contribution; Article 1F(a) requires
serious reasons for considering that an individual has voluntarily made a
significant and knowing contribution to a group’s crime or criminal purpose (Ezokola,
at paragraph 8).
[19]
Paragraph 35(1)(a) of the Act is the
domestic inadmissibility provision that parallels Article 1F(a). In
material part, paragraph 35(1)(a) of the Act provides:
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35. (1) Human or
international rights violation – A permanent resident or a foreign national
is inadmissible on grounds of violating human or international rights for
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35. (1) Emportent
interdiction de territoire pour atteinte aux droits humains ou internationaux
les faits suivants :
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(a) committing
an act outside Canada that constitutes an offence referred to in
sections 4 to 7 of the Crimes Against Humanity and War Crimes Act; [Emphasis
added.]
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a) commettre, hors du Canada, une
des infractions visées aux articles 4 è 7 de la Loi sur les crimes
contre l’humanité et les crimes de guerre; [Le souligné est de moi.]
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[20]
The present appeal implicates subsection 34(1)
of the Act:
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34. (1) A
permanent resident or a foreign national is inadmissible on security grounds
for
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34. (1) Emportent
interdiction de territoire pour raison de sécurité les faits suivants :
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[…]
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[. . .]
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(c) engaging
in terrorism;
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c) se livrer au terrorisme;
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[…]
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[. . .]
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(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 paragraphs (a), (b), (b.1) or (c).
[Emphasis added.]
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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), b), b.1) ou c).
[Le souligné est de moi.]
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[21]
Read together, clear differences exist between
subsections 34(1) and 35(1). Under subsection 34(1) an inadmissibility finding
flows from engaging in terrorism or membership in an organization that engages
in terrorism; under subsection 35(1) an inadmissibility finding flows from the
commission of an offence. Because criminal liability attaches to both the
direct perpetrators and their accomplices, complicity is relevant to the
subsection 35(1) analysis.
[22]
In contrast, nothing in paragraph 34(1)(f)
requires or contemplates a complicity analysis in the context of membership.
Nor does the text of this provision require a “member”
to be a “true” member who contributed
significantly to the wrongful actions of the group. These concepts cannot be
read into the language used by Parliament.
[23]
This textual analysis of paragraph 34(1)(f)
is informed by contextual and purposive considerations.
[24]
The first contextual factor is paragraph 34(1)(c)
of the Act which renders a person inadmissible for “engaging
in terrorism”. Thus, paragraph 34(1)(c) of the Act contemplates
actual participation in acts of terrorism, while paragraph 34(1)(f) is
only concerned with membership in a terrorist organization. On the appellant’s
interpretation of “membership”, paragraph 34(1)(c)
would be redundant.
[25]
Moreover, as noted by the Federal Court in Nassereddine
v. Canada (Minister of Citizenship and Immigration), 2014 FC 85, 22 Imm.
L.R. (4th) 297, at paragraph 74, while paragraph 34(1)(c) could
possibly engage a consideration of complicity, this provision is not relevant
to the finding under review that the appellant is inadmissible as a result of
his membership in the TNA.
[26]
The second contextual factor is section 42.1 of
the Act which permits the Minister to find a person not to be inadmissible
pursuant to section 34 if the Minister is satisfied that such a finding is not
contrary to the national interest. Because of the very broad range of conduct
that gives rise to inadmissibility under paragraph 34(1)(f), the
Minister is given discretion to grant relief against inadmissibility. There is
no similar relieving provision applicable to a finding of inadmissibility under
paragraph 35(1)(a). A relieving provision is not required where
inadmissibility flows from the commission of an offence whether as perpetrator
or accomplice.
[27]
Finally, I note that the purposes underlying subsection
34(1) and paragraph 35(1)(a) are very different. Paragraph 34(1)(f)
is animated by security concerns. This purpose is served by a wide definition
of membership. In contrast, paragraph 35(1)(a) guards against abuse of
the Refugee Convention by those who create refugees: those who create refugees
are not refugees themselves (Ezokola, at paragraph 34).
[28]
Having concluded that Ezokola does not
compel any change to the legal test used to establish membership, I next consider
the reasonableness of the decision of the Immigration Division.
IV.
Was the decision of the Immigration Division reasonable?
[29]
As explained above, the Immigration Division
found that the appellant’s membership in the TNA constituted membership in the
LTTE. I conclude on the basis of the evidentiary record before the Immigration
Division that its decision was reasonable.
[30]
That said, great caution must be exercised when
finding membership in one organization to be a proxy for membership in another.
Particularly in the context of nationalist or liberation movements, the mere
sharing of goals and coordination of political activities may well not justify
this type of analysis.
[31]
With respect to consideration of the
reasonableness of the decision of the Immigration Division in this case, there
were three distinct categories of evidence before it: third-party country
condition reports, the appellant’s own statements and the appellant’s contacts
with senior LTTE leadership.
[32]
As noted by the Immigration Division at paragraphs
28 to 42 of its reasons, the third-party country condition documentation
included the following information about the LTTE’s influence over the TNA:
- The
International Crisis Group’s report “Sri Lanka:
The Failure of the Peace Process” described the LTTE’s creation of
the TNA, stated that the TNA campaigned on the basis of the LTTE being the
sole representative of Tamils and “maintained a
slavishly pro-LTTE line” (Appeal Book, Volume 4, Tab 13, at page
1131).
•
A Jane’s World Insurgency and Terrorism Report
noted the LTTE’s instruction to Tamil leaders to join the TNA and that the LTTE
head-office selected the TNA’s nominees in the 2004 election. The LTTE was said
to have then launched a massive campaign in favour of TNA candidates. The
campaign included the killing of several anti-TNA candidates and their
supporters (Appeal Book, Volume 2, Tab 8, at pages 514-515).
•
A UNHCR “Background
Paper on Refugees and Asylum-Seekers from Sri Lanka” reported the LTTE
announced support for the TNA and further reported that candidates from rival
parties were killed, allegedly by the LTTE (Appeal Book, Volume 4, Tab 13, at
page 1017).
•
A chapter in “The
Political Handbook of the World: 2005-2006” described the 2004 elections
as “the first time the TNA explicitly served as the
proxy of the LTTE, winning 22 seats in the north and east” (Appeal Book,
Volume 2, Tab 7, at page 439).
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An Amnesty International report covering Sri
Lanka for 2005 reported that “[t]he LTTE-affiliated
Tamil National Alliance (TNA) took the majority of seats in the north-east,
where elections were marred by vote rigging, intimidation and violence”
including the killing of rival candidates (Appeal Book, Volume 4, Tab 13, at
page 1077).
•
A BBC News report quoted the appellant as saying: “To us the LTTE is the only movement that counts and [Tigers’
chief Velupillai] Prabhakaran is the only leader who counts”; the
election was more a referendum on the armed struggle; and “[t]he world is saying, alright you fought and did some
wonders but what guarantee is there that you have the backing of the people,
[…] this election will prove 70% to 80% of the Tamil people back the rebels”
(Appeal Book, Volume 2, Tab 7, at pages 380-381).
•
The 2001 TNA election manifesto stated that in
50 years no just solution was found to the Tamil national question:
Consequently, it
was inevitable, that the armed struggle gained in strength, and the Liberation
Tigers of Tamil Eelam came to occupy a paramount position, and play a pivotal
role in the struggle of the Tamil nationality to win their rights. It would be
futile not to recognize this reality.
(Appeal Book,
Volume 2, Tab 7, at page 294)
•
The 2004 election manifesto of the TNA advised:
Accepting LTTE’s leadership as the national leadership of the Tamil
Eelam Tamils and the Liberation Tigers as the sole and authentic
representatives of the Tamil people, let us devote our full cooperation for
the ideals of the Liberation Tigers’ struggle with honesty and steadfastness.
Let us endeavour determinedly, collectively as one group, one nation, one
country, transcending race and religious differences, under the leadership of
the LTTE for a life of liberty, honour and justice for the Tamil people. Let
us work side by side with the LTTE, who are fighting for the protection and
autonomous life of the Tamil speaking people, for the political initiatives
under their leadership. [Emphasis added.]
(Appeal Book,
Volume 2, Tab 7, at page 292)
•
The International Crisis Group reported in 2008
that the TNA’s platform was “pro-LTTE” and the
TNA members of parliament chose “not to risk taking
political positions independent from the LTTE” (Appeal Book, Volume 4, Tab
13, at page 1233).
•
In a speech delivered in South Africa, the appellant stated “And we the Eelam Tamils have
decided to fight. We shall fight, but we want your help. We shall fight in the
sea; we shall fight in the air: we shall fight in the land and when we fight it
out and we have nothing but blood, toil and tears to give to our country”
(Appeal Book, Volume 6, Tab 17, at pages 1644-1645).
[33]
In an interview conducted by an Inland
Enforcement Officer, the appellant stated that the LTTE leader, Prabhakaran,
had not initiated the TNA but “would have given his
blessings” because “they are both fighting for
the same cause” and he “knew that the TNA is being
formed for Tamil cause” (Appeal Book, Volume 1, Tab 6, at pages
172-173). The appellant agreed “that TNA members were
aligned with LTTE in Tamil cause” (Appeal Book, Volume 1, Tab 6, at page
182). Before the Immigration Division the appellant testified that while the
LTTE’s violence was not ideal, “mass confrontation of
the government was something unavoidable though unpalatable” (Appeal
Book, Volume 6, Tab 18, at page 1678).
[34]
The appellant admitted to attending a number of
meetings with senior members of the LTTE and his shared goals with the LTTE. He
stated his view of the inevitability of the LTTE’s armed struggle.
Specifically:
- The appellant
met personally with “all the” LTTE leaders,
including Prabhakaran and Tamilselvan, meeting with Prabhakaran twice and Tamilselvan
every few months commencing at the time he became a TNA member in 2002
(Appeal Book, Volume 1, Tab 6, at pages 169, 170 and 209).
•
The appellant quoted Prabhakaran as stating “we had to join the work as a team” with “[the LTTE] agitating the armed struggle and [the TNA]
agitating Parliament struggle only, we call it the over ground movement”
(Appeal Book, Volume 1, Tab 6, at page 177).
•
While denying that he received “directions” from Prabhakaran, the appellant
considered the TNA parliamentary agitation “running
parallel” with and sharing the “goal” of
the LTTE (Appeal Book, Volume 1, Tab 6, at page 184).
•
While his own role was limited to parliamentary
activism, the appellant considered armed struggle to be
“part of any freedom struggle” and considered the LTTE’s armed struggle “unavoidable” (Appeal Book, Volume 1, Tab 6, at page
199).
[35]
The appellant argues that the Immigration
Division ignored evidence that was favourable to the appellant.
[36]
However, it is settled law that an adjudicator
is not required to refer to every piece of evidence. More importantly, the
evidence before the Immigration Division was conflicting. The reasons of the
Immigration Division demonstrate that the member sifted through the record and
was alive to the appellant’s challenge to the credibility of certain documents.
The Immigration Division’s findings were amply supported on the record before
the Immigration Division.
[37]
Section 33 of the Act requires only “reasonable grounds to believe” that facts giving
rise to inadmissibility are present. In my view, the Immigration Division’s
conclusion that there were “reasonable grounds to
believe” in this case was within the range of outcomes acceptable and
defensible on the facts and the law. The decision was therefore reasonable.
V.
Conclusion
[38]
For these reasons, I would dismiss the appeal. I
would answer the certified question as follows:
Ezokola v. Canada (Minister of
Citizenship and Immigration), 2013 SCC 40, [2013] 2
S.C.R. 678 does not change the existing legal test for assessing membership in
terrorist organizations under paragraph 34(1)(f) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27.
“Eleanor R. Dawson”
“I agree.
David Stratas J.A.”
“I agree.
Richard Boivin
J.A.”
Appendix
Sections 33, subsections 34(1)(a) to (f), subsection 35(1)(a)
and section 42.1 of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 read as follows:
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33. The facts
that constitute inadmissibility under sections 34 to 37 include facts arising
from omissions and, unless otherwise provided, include facts for which there
are reasonable grounds to believe that they have occurred, are occurring or
may occur.
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33. Les faits —
actes ou omissions — mentionnés aux articles 34 à 37 sont, sauf disposition
contraire, appréciés sur la base de motifs raisonnables de croire qu’ils sont
survenus, surviennent ou peuvent survenir.
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34. (1) A
permanent resident or a foreign national is inadmissible on security grounds
for
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34. (1) Emportent
interdiction de territoire pour raison de sécurité les faits suivants :
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(a)
engaging in an act of espionage that is against Canada or that is contrary to
Canada’s interests;
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a) être l’auteur de tout acte d’espionnage
dirigé contre le Canada ou contraire aux intérêts du Canada;
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(b)
engaging in or instigating the subversion by force of any government;
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b) être l’instigateur ou l’auteur d’actes
visant au renversement d’un gouvernement par la force;
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(b.1)
engaging in an act of subversion against a democratic government, institution
or process as they are understood in Canada;
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b.1) se livrer à la subversion contre toute
institution démocratique, au sens où cette expression s’entend au Canada;
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(c)
engaging in terrorism;
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c) se livrer au terrorisme;
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(d) being
a danger to the security of Canada;
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d) constituer un danger pour la sécurité du
Canada;
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(e)
engaging in acts of violence that would or might endanger the lives or safety
of persons in Canada; or
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e) être l’auteur de tout acte de violence
susceptible de mettre en danger la vie ou la sécurité d’autrui au Canada;
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(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), (b.1) or (c).
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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), b), b.1) ou c).
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[…]
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[. . .]
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35. (1) A
permanent resident or a foreign national is inadmissible on grounds of
violating human or international rights for
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35. (1) Emportent
interdiction de territoire pour atteinte aux droits humains ou internationaux
les faits suivants :
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(a)
committing an act outside Canada that constitutes an offence referred to in
sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;
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a) commettre, hors du Canada, une des
infractions visées aux articles 4 à 7 de la Loi sur les crimes contre
l’humanité et les crimes de guerre;
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[…]
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[. . .]
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42.1 (1) The
Minister may, on application by a foreign national, declare that the matters
referred to in section 34, paragraphs 35(1)(b) and (c) and
subsection 37(1) do not constitute inadmissibility in respect of the foreign
national if they satisfy the Minister that it is not contrary to the national
interest.
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42.1 (1) Le
ministre peut, sur demande d’un étranger, déclarer que les faits visés à
l’article 34, aux alinéas 35(1)b) ou c) ou au paragraphe 37(1)
n’emportent pas interdiction de territoire à l’égard de l’étranger si
celui-ci le convainc que cela ne serait pas contraire à l’intérêt national.
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Article
1F(a) of the United Nations Convention Relating to the Status of
Refugees, Can. T.S. 1969 No. 6 reads as follows:
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1F. The
provisions of this Convention shall not apply to any person with respect to
whom there are serious reasons for considering that:
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1F. Les dispositions
de cette Convention ne seront pas applicables aux personnes dont on aura des
raisons sérieuses de penser :
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(a) he has
committed a crime against peace, a war crime, or a crime against humanity, as
defined in the international instruments drawn up to make provision in
respect of such crimes;
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a) qu’elles ont commis un crime contre la
paix, un crime de guerre ou un crime contre l’humanité, au sens des
instruments internationaux élaborés pour prévoir des dispositions relatives à
ces crimes;
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