Sellappha v. Canada (Citizenship and Immigration)

Sellappha v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2011-11-29
Neutral citation
2011 FC 1379
File numbers
IMM-6916-10
Decision Content
Federal Court
Cour fédérale
Date: 20111129
Docket: IMM-6916-10
Citation: 2011 FC 1379
Ottawa, Ontario, November 29, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
KAMALA DEVI SELLAPPHA
NALINI SELLAPPHA
GEETHAVENGAYAN SELLAPPHA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
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