Docket: IMM-1789-17
Citation:
2017 FC 1160
Ottawa, Ontario, December 18, 2017
PRESENT: The
Honourable Madam Justice Roussel
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BETWEEN:
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KIRUPAITHASAN
JESUTHASAN AND JULIAT VALANTINA ANTONY
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Applicants
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and
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MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Background
[1]
The Applicant spouses, Kirupaithasan Jesuthasan
and Juliat Valantina Antony, seek judicial review of a visa officer’s decision made
on February 23, 2017, determining that Mr. Jesuthasan was inadmissible to Canada
under paragraph 34(1)(f) of the Immigration and Refugee Protection
Act, SC 2001, c 27 [IRPA].
[2]
Mr. Jesuthasan is an ethnic Tamil living in
northern Sri Lanka. In 2009, he made an asylum claim in France on the basis of
his and his family’s involvement with the Liberation Tigers of Tamil Eelam
[LTTE]. The French authorities determined that his claim was not credible. He
returned to Sri Lanka from France in June 2013.
[3]
In September 2013, Mr. Jesuthasan married Ms.
Antony, a naturalized Canadian, in Sri Lanka, who then applied to sponsor him
as a member of the family class in August 2014. Mr. Jesuthasan indicated in his
application forms for permanent residence that he had made an unsuccessful
asylum claim in France. He was later asked for the documents from this claim.
In the documentation he provided and during his oral interviews, he recanted
the story given to the French authorities, alleging that his claim had been
written by an agent, without his input, for a considerable fee. He explained
that he was motivated to make the claim because he wanted a better life for
himself, coming from a country which has widespread violence and political
instability. To support his submission that he was now telling the truth, Mr. Jesuthasan
sought to corroborate the untruthfulness of the account given to the French
authorities by noting its factual inconsistencies and submitting evidence from
his wife and others that he was never a member of the LTTE.
[4]
The sponsorship application was refused on
February 23, 2017.
[5]
The visa officer noted that he did not know
which version to believe – Mr. Jesuthasan’s written submissions to the French
authorities claiming that he was an active member of the LTTE, a known
terrorist organization, or the current version that he had made it up. Faced
with two (2) conflicting accounts, the visa officer referenced two (2)
credibility issues that caused him to “lean towards”
accepting the account Mr. Jesuthasan had given to the French authorities.
First, the visa officer found it implausible that Mr. Jesuthasan would not have
checked to see whether or not a fraudulent passport he travelled with contained
his photograph. The visa officer was also doubtful of Mr. Jesuthasan’s evidence
that he tore up the fraudulent passport and disposed of it in an airplane
washroom, noting that it would take a very strong person to do so. Second, the
visa officer did not accept Mr. Jesuthasan’s evidence that he had not been
examined by Sri Lankan authorities upon his return from France, commenting that
it was “open knowledge” that all returning
refugee claimants were subject to questioning or detainment.
[6]
The visa officer then decided that “on balance” he would base his decision on the written
account Mr. Jesuthasan gave to the French authorities. The visa officer concluded
that Mr. Jesuthasan was an active member of an organization – the LTTE –
which engaged in acts of terrorism. As a result, he found Mr. Jesuthasan to be
inadmissible under paragraph 34(1)(f) of IRPA.
II.
Analysis
[7]
The parties agree that the visa officer’s decision
is reviewable on a reasonableness standard, which requires this Court to consider
the justification, transparency, and intelligibility of the decision-making
process, and whether the decision falls within a range of outcomes defensible
in fact and law (Canada (Citizenship and Immigration) v Khosa, 2009 SCC
12 at para 59; Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[8]
While the Applicants raised a number of issues
in their application for judicial review, I find that one issue is
determinative and justifies this Court’s intervention.
[9]
The Applicants submit that the visa officer arbitrarily based his decision on the account Mr.
Jesuthasan gave in his failed French asylum claim without providing any reason
for doing so, while at the same time ignoring material contrary evidence before
him. The Applicants argue that the story of Mr. Jesuthasan’s membership in the
LTTE was both rejected by the French authorities and contradicted by objective
evidence in their application materials before the visa officer.
[10]
The Respondent submits that the standard of
proof for a finding of inadmissibility is relatively low, being more than a mere
suspicion, but lower than on the balance of probabilities (Nagulathas v
Canada (Citizenship and Immigration), 2012 FC 1159 at para 27). The
Respondent contends that Mr. Jesuthasan had the onus to prove that this
standard was not met.
[11]
The Respondent further submits that it was open
to the visa officer to prefer the evidence given by Mr. Jesuthasan under oath
to the French authorities, citing the visa officer’s conclusion that Mr.
Jesuthasan was generally “inconsistent, evasive,
untruthful, and lacking credibility” during his interviews. The
Respondent argues that these unfavourable credibility findings tipped the
scales in favour of accepting the account offered to the French authorities
and, consequently, a reasonable finding of inadmissibility.
[12]
The Respondent relies on this Court’s decision
in Fouad v Canada (Citizenship and Immigration), 2012 FC 460 [Fouad],
which rejected a line of reasoning similar to that advanced by the Applicants
in this case. In Fouad, this Court found that it was reasonable for a
visa officer to accept the applicant’s sworn statements relating to membership
in a terrorist group on a failed Swiss refugee claim, even though the account
given in the claim was rejected by the Swiss authorities.
[13]
Upon review of the record and having heard from
the parties, I am of the view that the decision of the visa officer must be set
aside on the basis that the visa officer either ignored relevant evidence or
failed to address it in his reasons.
[14]
While the decision in Fouad involved
similar facts to those at issue in this application, its reasoning is
distinguishable. The Court stated in Fouad that there was nothing in the
documentation that contradicted or otherwise called into question the visa
officer’s membership finding (Fouad at paras 7, 19, 21). That is not the
case here.
[15]
In their submissions to the visa officer, the
Applicants pointed to objective factors that made the French account
unbelievable. For instance, in the French account, Mr. Jesuthasan claimed that
his father and brother participated in the LTTE movement. He claimed that his
brother was arrested by the Sri Lankan military and that his father was killed
by the military in 2007. He also stated that his sister was forced to
participate in the armed movement because members of his family were under
surveillance by the military.
[16]
To refute the information contained in the
French account, the Applicants included statements from two (2) church pastors
indicating that Mr. Jesuthasan was an only child, as well as a letter from Mr.
Jesuthasan’s mother to the same effect. The Applicants also provided the visa
officer with the death certificate of Mr. Jesuthasan’s father showing that he passed
away in 1986, not 2007. This information was corroborated by Mr. Jesuthasan’s
mother in her letter. In addition, the Applicants’ materials included a
clearance certificate from the Sri Lankan police stating that Mr. Jesuthasan
had not come to their attention, as well as a letter from a Sri Lankan justice
of the peace stating that Mr. Jesuthasan had not participated in any terrorist
activities. Finally, Ms. Antony had also informed the visa officer directly that
her family had done a full background check on her husband prior to their
marriage and that the marriage would not have been arranged by her family if he
had been in the LTTE.
[17]
I recognize that deference is owed to the visa
officer and that his reasons need not refer to all of the evidence or be as
elaborate as those of administrative tribunals. However, in my view, it was
incumbent upon the visa officer to address the Applicants’ contrary evidence as
it was directly relevant to the central issue of Mr. Jesuthasan’s
inadmissibility. The visa officer’s failure to do so constitutes a reviewable
error (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration),
[1998] FCJ No 1425 (FC) at para 17; see also Francis v Canada (Citizenship
and Immigration), 2016 FC 1366 at para 18; Kalsi v Canada (Citizenship
and Immigration), 2016 FC 442 at para 12; Alade v Canada (Citizenship
and Immigration), 2013 FC 845 at para 25).
[18]
Consequently, the Court finds that the decision
is unreasonable and must be set aside. As a result, the application for
judicial review is granted. No question of general importance will be
certified.
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