T.K. v. Canada (Public Safety and Emergency Preparedness)

T.K. v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2013-04-02
Neutral citation
2013 FC 327
File numbers
IMM-4207-12
Decision Content
Date: 20130402
Docket: IMM-4207-12
Citation: 2013 FC 327
Ottawa, Ontario, April 2, 2013
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
T.K.
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, SC­ 2001, c. 27 (Act) for judicial review pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c F-7 of a decision dated 19 April 2012 (Decision) whereby a Member of the Immigration Division of the Immigration and Refugee Board of Canada (Member) deemed him inadmissible to Canada pursuant to paragraph 34(1)(f) of the Act.
BACKGROUND
[2] The Applicant is a citizen of Sri Lanka of Tamil ethnicity.
The Applicant’s Background
[3] The Applicant is from Jaffna, in Northern Sri Lanka. The relevant events took place in 2005-2006. This was a time of peace in the civil war in Sri Lanka, but the Liberation Tigers of Tamil Eelam (LTTE) maintained a strong presence in the area where the Applicant lived.
[4] After the Applicant’s arrival in Canada, he and his family members were interviewed many times, and he was referred for an admissibility hearing. The Applicant gave oral evidence, and he also called an expert witness, Kopalasingham Sritharan.
The Applicant’s Testimony
[5] The Applicant explained that he was a member of a small union that was formed for the needs of auto car drivers and that was not very well organized. The union was run by the auto drivers and was not connected to the LTTE. The president of the union was not a member of the LTTE, nor were any of the members.
[6] In 2005, the Applicant and about 15 other members of the union were told by the LTTE to attend a 7-day training session, and that attendance was mandatory. There were 50-60 people at the camp in total. The training consisted of watching films about the LTTE, learning LTTE songs, and learning about people who had died for the LTTE’s cause and hearing about the LTTE’s progress. The Applicant did exercises such as marching and running. The Applicant was taught how to dig trenches in the event of a shelling or bombing, and how to carry injured people. He was taught “self-defence,” which consisted of learning how to make bunkers, first aid, and to lie down if there were bombings. This was not meant as combat training, but as training on how to protect members of the public if war broke out.
[7] On various memorial days LTTE members would organize meetings. The Applicant would hear through his union leader that he was to provide assistance at these meetings, and that it was mandatory to do so. Members of the union assisted by making and raising flags, setting up chairs and tents, and arranging and distributing food and drinks to the public. Other unions such as the barbers’ union and the traders’ union would also be called on to assist. The meetings would discuss the progress of the LTTE and the deeds of those who had died. The LTTE did not try and recruit at these meetings and the Applicant never spoke at them.
[8] The Applicant also assisted the LTTE a few times by driving his taxi around while another member of the union made announcements about upcoming LTTE events or played pre-recorded LTTE songs. The Applicant testified that he and the other members of the union did what the LTTE asked out of fear. The Applicant said that if he did not drive around making the announcements and playing the songs he would lose his auto and have no income, and so he had no choice in the matter.
[9] The Applicant said that he paid fees to the union, and the union would sometimes use these fees to buy supplies for the activities the LTTE requested of them. The Applicant never provided funds to the LTTE directly or in any other way.
[10] The Applicant testified at the hearing that he was scared of the LTTE, and that he undertook the activities out of compulsion. If people refused, the LTTE would take their autos away, or they would be arrested and detained. He testified that the LTTE would threaten and beat people who did not do what they asked, and that he knew of someone whose auto was taken away for refusing to participate, and another person who was detained for a month. He also said he was aware of incidents of the LTTE killing people for refusing to participate. He said that many different types of unions were asked to provide assistance in different ways, and that “irrespective of the union we were in if the request comes in we have to do it, mandated.”
[11] The Applicant testified that he never joined the LTTE, was never given a rank, and was never an employee of the LTTE. He was never given orders directly by the LTTE or associated with any of its members directly. He never received any confidential information from any members. He explained that, had he wished to join, he would have had to report at an LTTE camp and contact them directly.
[12] The Applicant stated that he could not seek protection from the authorities because, on the one hand, there was the risk that the LTTE would find out and he would face grave repercussions and, on the other hand, the authorities were suspicious of people from the Tamil community. If he had refused to go to the training camp, the LTTE would have searched for him and taken him by force. The Applicant said that he agrees with having a Tamil autonomous region, but that he does not support the goals of the LTTE and does not support the use of force. He testified that many people who were not members of the LTTE opposed the group, although some supported the cause.
The Applicant’s Hearing and Expert Evidence
[13] At his admissibility hearing, the Applicant called Mr. Sritharan as a witness. Mr. Sritharan is an expert on the human rights situation in Sri Lanka. He testified that in times of ceasefire the LTTE was still allowed to do political work, and would use this time to control the population and let people know they were watching. People who raised issues with the LTTE would be beaten, and because people did not want to take risks they would outwardly support the organization.
[14] Mr. Sritharan testified that the purpose of the LTTE in requiring people to participate in meetings was to “paint people in stripes.” Once people participated, the LTTE would threaten them by saying that they would now be identified by the army as LTTE members. The intention was that once the war started, people would feel vulnerable and have no choice but to join the LTTE.
[15] If people did not attend meetings, intelligence members of the LTTE would watch them and they would run into problems. People were “paralyzed” by the terror, and the atmosphere was such that they would do what was asked in order to survive. It was a “totalitarian environment,” and political killings were used to show people that anyone who challenged the LTTE faced death.
[16] All types of unions had to organize people from their villages. If they resisted, they would be targeted. People involved in small businesses or making small daily incomes could not continually resist as they were economically vulnerable. People would outwardly show their support to the LTTE, but do things to resist. For example, parents might send their children to volunteer for the “border police,” but this was to avoid their recruitment to the LTTE military cadre.
[17] A strategy of control used by the LTTE was “drills training,” such as the Applicant endured. It was expected that some people would end up joining the LTTE, but others would just go back to their daily lives after it was over. Drills training was done both to recruit people and to label them as LTTE supporters. Attendance did not make one a LTTE member. Drill training was different from military training, which was serious military training in the jungle, and lasted six months to a year. A person who attended military training was a member of the LTTE.
[18] Mr. Sritharan said that it was very difficult not to attend drills training once someone became even slightly involved with the LTTE. Further, it was very difficult for someone not to be involved with the LTTE at all in the first place. As discussed above, if a member of a trade union continually resisted there would be problems.
DECISION UNDER REVIEW
[19] The Member found that the Applicant is a member of the LTTE, and that the LTTE is a terrorist organization. The Applicant was thus described by paragraph 34(1)(f) of the Act, and was therefore inadmissible to Canada.
[20] The Member stated that membership in the context of a terrorist organization must be given a “broad and unrestricted interpretation.” He said that the Applicant asserted that his actions were coerced and made under duress, and thus he did not have the requisite mens rea to be considered a member of the LTTE.
[21] The Member cited the decision in Jalloh v Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 317 [Jalloh] at paragraphs 36-38 as relevant to this assessment:
In my view, it is preferable to consider the evidence of membership along with the evidence of coercion in determining whether there are reasonable grounds to believe the person genuinely was a member of the group. One way of looking at this issue is to regard evidence of duress as defeating the mens rea of membership (Thiyagarajah v Canada (Minister of Citizenship and Immigration), 2011 FC 339). Accordingly, evidence relating to duress must be considered along with the evidence relating to membership in deciding whether the person really was a member of the group or, rather, was motivated by self-preservation.
In sum, a person cannot be considered to be a member of a group when his or her involvement with it is based on duress. At a minimum, a member is someone who intentionally carries out acts in furtherance of the group’s goals. A person who performs acts consistent with those goals while under duress cannot be said to be a genuine member.
Therefore, the finding of membership should rest on indicia that the person's intentions were consonant with the group's objects, not survival. The evidence should be considered as a whole to determine whether the person was truly a member or whether his or her acts carried out in the group's name were coerced. It must be remembered, of course, that the issue to be decided under s 34(1)(f) is whether there are reasonable grounds to believe that the person was a member, not whether the evidence establishes such a connection on a balance of probabilities, or whether duress has been made out on any particular standard of proof. This, too, suggests that all of the relevant evidence should be considered together.
[22] The Member noted that at the time of the events in question, the Applicant was not a young boy, and was fully aware of the nature of his actions. He also noted that the Applicant’s actions were not a one-time occurrence but were continuous. The Member said that the Applicant made financial contributions to the LTTE “through the guise of rickshaw union dues.” The Applicant’s actions ceased only in 2006 when the LTTE left the area where he resided.
[23] The Member pointed out that the Applicant was not a poor man by Sri Lankan standards. The Applicant was involved in other businesses besides driving his taxi. The Member thought that at any time the Applicant could have chosen not to pursue employment as a taxi operator.
[24] The Applicant said that he had 10-15 days notice that he would have to attend the drills training camp before it started. During this time he made no effort to detach himself from the taxi business, despite it being the reason he was forced to maintain links with the LTTE. He also made no effort to flee, despite the fact that he had previously gone to Colombo for business purposes. The Applicant testified that if he tried to flee he would be stopped at checkpoints, but this was contrary to his earlier evidence where he said that he could lie at checkpoints and say that he was visiting relatives or going to a wedding.
[25] Based on the Applicant’s oral testimony, the Member found that he appeared primarily concerned with the effect on his taxi business if he did not comply with LTTE demands, and not for his physical well-being. Further, the Applicant testified that his town had 4000-5000 people living in it, and that about 50-100 people would attend the meetings that he arranged. No one was forced to attend, and if people had other things to do they simply would not go. The Member thought this low public participation rate ran contrary to the Applicant’s assertion that his town was living under constant LTTE fear and control.
[26] The Member concluded that the actions taken by the Applicant amounted to membership in the LTTE. He knowingly participated in LTTE activities, and his activities were numerous and ongoing. The Member found that the evidence did not support that these action were taken under duress, or that the Applicant was forced to complete them. The Applicant had some financial means available to him, and could have chosen to forego the taxi business if that was his only nexus to the LTTE. He also could have fled the area when asked to attend the drills training camp. The Applicant was thus deemed a member of the LTTE, a terrorist organization, and a deportation order was issued against him.
STATUTORY PROVISIONS
[27] The following provisions of the Act are applicable in these proceedings:
Security
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;
(d) being a danger to the security of Canada;
(e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or
(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).
(2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.
[…]
Decision
45. The Immigration Division, at the conclusion of an admissibility hearing, shall make one of the following decisions:
(a) recognize the right to enter Canada of a Canadian citizen within the meaning of the Citizenship Act, a person registered as an Indian under the Indian Act or a permanent resident;
(b) grant permanent resident status or temporary resident status to a foreign national if it is satisfied that the foreign national meets the requirements of this Act;
(c) authorize a permanent resident or a foreign national, with or without conditions, to enter Canada for further examination; or
(d) make the applicable removal order against a foreign national who has not been authorized to enter Canada, if it is not satisfied that the foreign national is not inadmissible, or against a foreign national who has been authorized to enter Canada or a permanent resident, if it is satisfied that the foreign national or the permanent resident is inadmissible.
Sécurité
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;
d) constituer un danger pour la sécurité du Canada;
e) être l’auteur de tout acte de violence susceptible de mettre en danger la vie ou la sécurité d’autrui au Canada;
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) ou c).
(2) Ces faits n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l’intérêt national.
[…]
Décision
45. Après avoir procédé à une enquête, la Section de l’immigration rend telle des décisions suivantes :
a) reconnaître le droit d’entrer au Canada au citoyen canadien au sens de la Loi sur la citoyenneté, à la personne inscrite comme Indien au sens de la Loi sur les Indiens et au résident permanent;
b) octroyer à l’étranger le statut de résident permanent ou temporaire sur preuve qu’il se conforme à la présente loi;
c) autoriser le résident permanent ou l’étranger à entrer, avec ou sans conditions, au Canada pour contrôle complémentaire;
d) prendre la mesure de renvoi applicable contre l’étranger non autorisé à entrer au Canada et dont il n’est pas prouvé qu’il n’est pas interdit de territoire, ou contre l’étranger autorisé à y entrer ou le résident permanent sur preuve qu’il est interdit de territoire.
ISSUES
[28] The Applicant raises the following issues in this application:
a. Did the Member err in law by conflating duress and coercion?
b. Did the Member err by failing to apply the correct criteria for a finding of membership?
c. Did the Member err by ignoring relevant evidence?
STANDARD OF REVIEW
[29] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] 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.
[30] The difference between the concepts of duress and coercion is a legal issue (Jalloh at paragraph 36). Questions of law require “uniform and consistent answers,” and are reviewable on a standard of correctness (Dunsmuir at paragraph 60). The first issue is reviewable on a standard of correctness.
[31] As stated in paragraphs 67-68 of Toronto Coalition to Stop the War v Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 957 [Toronto Coalition to Stop the War], “the interpretation of the term “member” in paragraph 34(1)(f) is a question of law,” and is reviewable on a correctness standard. See also Poshteh v Canada (Minister of Citizenship and Immigration), 2005 FCA 85 [Poshteh] at paragraph 21. The second issue will be evaluated on a standard of correctness.
[32] The Member’s evaluation of evidence is a factual aspect of his subsection 34(1) analysis. The standard of review applicable to the Court’s evaluation of a subsection 34(1) analysis is reasonableness (Krishnamoorthy v Canada (Minister of Citizenship and Immigration), 2011 FC 1342 [Krishnamoorthy] at paragraph 12). The third issue is reviewable on a standard of reasonableness.
[33] 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 Applicant
Did the Member err by conflating duress and coercion?
[34] The Applicant submits that the Member erred by conflating the legal defense of duress with the concept of coercion. The two are distinct concepts: duress is a defense that does not negate the person’s mens rea of being a member of the organization, whereas coercion negates the person’s mens rea so that he or she does not possess the intent to be a member of the organization.
[35] When advancing the defense of duress, it is already established that the person intended to commit the act in question; however, it was done under duress (Oberlander v Canada (Attorney General), 2009 FCA 330 at paragraphs 25-27 [Oberlander]). There are three things that must be established for duress: a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person; the person acted necessarily and reasonably to avoid this threat; the person did not intend to cause a greater harm than the one sought to be avoided (Oberlander at paragraph 26). An important consideration is whether the person fled the organization at the earliest opportunity (Rutayisire v Canada (Minister of Citizenship and Immigration), 2010 FC 1168 at paragraph 19).
[36] As regards coercion, the question is not whether the individual intended to commit the activities in question, but whether the person’s intention in doing so was to contribute to the objectives of the relevant organization (Toronto Coalition to Stop the War, above). Membership can be inferred by a person’s actions, but the person’s intent in engaging in the activities must first be considered.
[37] The distinction between the two concepts is recognized in the jurisprudence. In Poshteh, above, the Federal Court of Appeal kept the two concepts distinct – the terms were not used interchangeably (see paragraph 52). The Member relied on the Jalloh decision as setting out the relevant law on duress and coercion. In Jalloh, the applicant had submitted that his actions were carried out under duress. The Court pointed out the distinction between the two concepts at paragraph 33, stating that “[i]n determining whether Mr. Jalloh was a member, the Board did not consider evidence relating to coercion, leaving it to be weighed separately in respect of the defence of duress.” The Court went on at paragraph 38 to say that, “the finding of membership should rest on indicia that the person's intentions were consonant with the group's objects, not survival. The evidence should be considered as a whole to determine whether the person was truly a member or whether his or her acts carried out in the group's name were coerced.”
[38] The Applicant did not rely on the defense of duress, but rather submitted before the Member that he was not a member of the LTTE because his actions were coerced. However, when assessing whether or not the Applicant was a member of the LTTE, the Member applied the test for the defense of duress. The key issue in the Applicant’s admissibility hearing was not whether he committed acts of terrorism, but whether he demonstrated a commitment to the LTTE from which a finding of membership could be drawn. Therefore it was coercion, not duress, that was relevant.
[39] The Applicant submits that the Member applied the legal test for duress when he should have examined whether the Applicant’s actions were coerced so as to negate the requisite intent to be found a member of the LTTE. This is evident in the factors the Member considered in his analysis, as well as the wording of the Decision. For example, the Member put significant emphasis on the fact that the Applicant did not attempt to flee the area to avoid the drills training camp; this is an important factor when it comes to duress, but not coercion.
[40] The Member also looked at the nature of the threat if the Applicant had refused to perform the activities in question. He found that the Applicant’s actions were motivated mostly out of a concern for his business rather than for his physical well-being. The requirement that the actions be a result of a threat of imminent harm is a factor in the defense of duress. For the purposes of membership, the question is whether the person’s “intentions were consonant with the group’s objects” (Jalloh at paragraph 38). Thus, if the person’s actions were motivated by an economic concern as opposed to a desire to support the organization, this is sufficient to show the person’s intentions were not consonant with the group’s objects. When coercion is being considered, there is no requirement that the actions be a result of a threat to the person’s life.
[41] It is evident from the Member’s wording in the Decision that he was applying the test for duress. At the beginning of his analysis, the Member states “an assessment of [T.K.]’s activities as they relate to the LTTE is complicated by his assertions that he was coerced, that his actions were made out under duress.” He then goes on to say that “the evidence does not support that these actions were taken under duress, that he was forced to complete them.” The latter statement was based on the Member’s finding that the Applicant could have foregone his business and fled the area when he was asked to attend drills training; this is an element of a duress analysis.
[42] The Applicant points out that the Member did not find that the Applicant’s actions were carried out with the intent of supporting the LTTE’s objectives. In fact, there was no analysis of the Applicant’s intent, which is the critical issue when issues of coercion are raised in the context of membership. The Applicant distinguished between the concepts of duress and coercion in his submissions for his admissibility hearing. Despite this, however, the Member’s reasons show that he incorrectly interpreted the Applicant’s submissions as relying on the defense of duress, and that he erred by conflating the concepts of coercion and duress.
Did the Member err by failing to apply the correct criteria for membership?
[43] The Applicant submits that the Member erred by failing to apply the correct criteria for membership. The criteria that should be considered include: the person’s involvement in the organization; the length of time associated with the organization; and the person’s degree of commitment to the organization and its objectives (Villegas v Canada (Minister of Citizenship and Immigration), 2011 FC 105 at paragraph 44 [Villegas]). Not every act of support for an organization constitutes membership (Tharmavarathan v Canada (Minister of Citizenship and Immigration), 2010 FC 985 at paragraph 28), and activities which are minimal or marginal are not enough to constitute membership under paragraph 34(1)(f) (Poshteh at paragraph 37; Krishnamoorthy at paragraph 28). The Applicant submits that the activities he participated in come under this minimal or marginal category, and thus are not enough to constitute membership in the LTTE.
[44] In Villegas, the Court quashed the decision because the Member did not analyse the applicant’s involvement with the group in question, or perform any analysis of the applicant’s commitment to the organization or its objectives. The Member in Villegas made findings about the applicant’s reasons for participating, but did not analyse how the reasons affected the applicant’s commitment to the organization. The Court said that a finding on inadmissibility must be carried out with the “utmost clarity,” and that did not occur. The Applicant submits that this Decision contains a lack of clarity similar to that in Villegas.
[45] The decision in Krishnamoorthy was overturned for similar reasons. In that decision, the Member did not consider the criteria for membership established by the jurisprudence. Similarly, the Member who made the Applicant’s Decision did not acknowledge these criteria, but simply said that membership must be given a “broad and unrestricted interpretation.” Essentially, the Member’s analysis ignored the membership criteria, and instead focused on whether the Applicant’s actions were a result of duress.
[46] The Member’s error in failing to consider the criteria for membership was critical, as there was evidence that the activities performed by the Applicant were also performed by a significant portion of the population living in the area at that time. The Member acknowledged that the Applicant provided evidence that he had no choice but to perform the duties, and that he did so primarily out of concern for his business. These things indicated that the Applicant did not intend to provide support for the LTTE’s objectives and goals.
[47] The Member’s lack of analysis is apparent in his finding pertaining to the Applicant’s financial contributions to the LTTE. The Member found that the Applicant made financial contributions 7 to 8 times through union dues. The Member cited the Applicant’s statements that he paid the money because “everyone had to give,” yet despite this the Member did not provide any analysis of the intent behind these contributions. A financial contribution is not enough to constitute membership; the purpose of the contribution must be to enable the objectives of the organization (Toronto Coalition to Stop the War at paragraphs 110, 128). The Applicant submits it was an error for the Member not to provide an analysis of the intent behind these contributions.
[48] The Member found that the Applicant was involved in LTTE activities for about a year and a half, but did not provide any analysis of whether this amount of time should be considered minimal or significant. A failure to properly address this factor was considered an error in Villegas.
[49] The Applicant submits that findings of fact with regards to the Applicant’s activities with the LTTE are not enough to sustain a finding of membership. The Member needed to apply the criteria set out in the jurisprudence, and provide an analysis of the different factors. For a finding of membership it needed to be determined that the Applicant’s activities were carried out with the intent of contributing to LTTE’s objectives. The Member’s failure to consider this important factor constitutes a reviewable error.
Did the Member err by ignoring relevant evidence?
[50] The Applicant points out that “the presumption that the decision-maker has considered all the evidence is a rebuttable one, and where the evidence in question is of significant probative value this Court can make a negative inference from the decision-maker's failure to mention it” (Kaybaki v Canada (Solicitor General of Canada), 2004 FC 32 at paragraph 5). The more important the evidence that was not mentioned, the more the Court will be inclined to find that a finding a fact was made without regard to it (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425 at paragraphs 15, 17). If there was relevant evidence that goes against a finding on a central issue, the presumption will be rebutted if the decision-maker failed to mention it (Provost v Canada (Minister of Citizenship and Immigration), 2009 FC 1310).
[51] Thind v Canada (Secretary of State), [1994] FCJ No 106 (TD) at paragraphs 2-3, provides as follows:
It became very evident that the Board made no findings with reference to documentary evidence filed in support of the applicant and more particularly they chose to ignore almost totally the evidence provided by the witnesses at the hearing. The only reference throughout the entire decision to other documents or witnesses was the following:
. . . the claimant’s testimony of fear of extremists who kill village leaders was supported by the other witnesses and the documentary evidence.
The tribunal’s assessment of one witness was “central” to the applicant’s case. The tribunal erred in law by failing to appreciate it and chose to completely ignore the supportive evidence.
The applicant had testified that he had been detained and questioned by police. This was corroborated, but the tribunal chose not to believe the applicant and made no mention of the independent corroborative evidence.
[52] In the case at bar, the Applicant called an expert witness who provided extensive relevant evidence. Mr. Sritharan’s testimony was particularly relevant to the issue of coercion, and corroborated the Applicant’s testimony that he felt compelled to perform the activities requested of him by the LTTE. The Member did not analyse this evidence at all, or provide any explanation why he preferred other evidence.
[53] The thrust of Mr. Sritharan’s testimony was that many people did the same type of activities as the Applicant out of fear of the LTTE. Not only was the Member required to conduct a proper analysis of the Applicant’s intention, he also needed to provide some analysis of this expert evidence.
[54] Mr. Sritharan also testified that many other professions besides auto drivers were controlled by the LTTE; this was directly on point to the Member’s finding that the Applicant “made no effort to detach himself from the … business,” yet there was no mention of it in the Decision.
[55] The Member also did not mention the expert evidence of the pervasive nature of the outward support that the population in Jaffna gave the LTTE in order to avoid being targeted. This was directly contrary to the Member’s finding that the town was not living in fear. Mr. Sritharan’s testimony corroborated the Applicant’s assertion that the LTTE exerted tight control over the town, and that individuals participated in LTTE activities in order to avoid unwanted attention.
[56] The Member also ignored other documentary evidence presented by the Applicant. There was extensive evidence stating that a culture of fear existed in Jaffna, and that many people participated in LTTE activities because of it. These documentary materials were cited extensively in the Applicant’s written submissions, but were paid no attention by the Member.
[57] One article submitted as part of the Applicant’s documentary evidence specifically said that the dynamic of terror in Jaffna “became a risky, nuanced game of going through the motions and play acting for the benefit of each side.” Another article said that the ceasefire arrangement allowed a “virtual takeover” of Jaffna by the LTTE using methods of extortion and coercion. Another said that the LTTE made “unquestioning obedience the only course open to the Tamils.”
[58] A Human Rights Watch report that was submitted discusses the LTTE’s use of planning meetings to maintain their presence and the use of the public to promote their meetings. It also specifically says that the LTTE organized public meetings and used taxis to promote these meetings. Another Human Rights Watch report discusses how the LTTE ruled through fear and by denying people their basic freedoms.
[59] The Applicant submits that the case of Thind, above, is right on point; the Member failed to analyse the Applicant’s independent corroborating evidence and the expert’s testimony. This evidence corroborates the Applicant’s claim that he was compelled to participate in LTTE activities. This evidence also supports a finding that the Applicant’s activities were pervasive, and thus minimal and marginal. This is directly relevant to the question of membership, and contradicts the Member’s findings. This evidence was directly relied on by the Applicant in his submissions, yet the Member did not mention or analyze any of it. Given its relevance, the Applicant submits that this is a reviewable error.
The Respondent
Did the Member err by conflating duress and coercion?
[60] The Respondent submits that coercion and duress are interrelated concepts, and that the Applicant is attempting to import the criminal law concept of mens rea into an inadmissibility finding under the Act. The Applicant’s reliance on the legal defence of duress and the burden of proving mens rea is misguided; these are criminal law concepts that are not engaged in this context.
[61] The Respondent submits that the Member considered the Applicant’s contention that he was coerced, but reasonably rejected it. Neither the Applicant nor his family could identify any specific threats from the LTTE relating to the Applicant’s activities. While the Applicant indicated he had a general fear of the LTTE, he also indicated that his real concern was the economic consequences of refusing to participate in LTTE-related activities. The evidence before the Member was that neither the Applicant nor his family members were physically threatened by the LTTE.
[62] Even if the Applicant can establish that he was coerced, his attempt to draw a “bright line” distinction between duress and coercion is not supported by the jurisprudence, which uses the terms interchangeably. The Federal Court of Appeal had the following to say on point at paragraph 40 of Ramirez v Canada (Minister of Employment and Immigration), [1992] 2 FC 306 (FCA) [Ramirez]:
The appellant did not argue the defence of superior orders, and his arguments as to duress and remorse are insufficient for exoneration. On duress, Hathaway, supra at 218, states, summarizing the draft Code of Offences Against the Peace and Security of Mankind, in process by the International Law Commission since 1947:
Second, it is possible to invoke [as a defence] coercion, state of necessity, or force majeure. Essentially, this exception recognizes the absence of intent where an individual is motivated to perpetrate the act in question only in order to avoid grave and imminent peril….
[63] The Applicant relies on Jalloh for the proposition that the concepts of coercion and duress are distinct. However, a review of this decision does not support this conclusion. The Court’s concern in Jalloh was not that the Immigration Division conflated coercion and duress, but that it artificially separated its analysis of “membership” from its analysis of “coercion.” The inquiry into whether an individual was actually a member should include consideration of whether the membership was a product of coercion. The Court thought it would be artificial to find that an individual was a “voluntary” member, and then to consider whether membership was forced:
36 In my view, it is preferable to consider the evidence of membership along with the evidence of coercion in determining whether there are reasonable grounds to believe the person genuinely was a member of the group. One way of looking at this issue is to regard evidence of duress as defeating the mens rea of membership (Thiyagarajah v Canada (Minister of Citizenship and Immigration), 2011 FC 339). Accordingly, evidence relating to duress must be considered along with the evidence relating to membership in deciding whether the person really was a member of the group or, rather, was motivated by self-preservation.
[…]
38 Therefore, the finding of membership should rest on indicia that the person’s intentions were consonant with the group’s objects, not survival. The evidence should be considered as a whole to determine whether the person was truly a member or whether his or her acts carried out in the group's name were coerced. It must be remembered, of course, that the issue to be decided under s 34(1)(f) is whether there are reasonable grounds to believe that the person was a member, not whether the evidence establishes such a connection on a balance of probabilities, or whether duress has been made out on any particular standard of proof. This, too, suggests that all of the relevant evidence should be considered together.
[64] In Jalloh, the Court does not distinguish duress and coercion, but uses the terms interchangeably. The Respondent says that this decision supports the proposition that evidence relating to possible coercion or duress should be considered as part of the determination of membership.
[65] The Respondent also says that the Applicant’s reliance on Poshteh is misguided. The Federal Court of Appeal specifica