[2017] 3 F.C.R. D-1
Citizenship and Immigration
Exclusion and Removal
Inadmissible Persons
Judicial review of Immigration and Refugee Board, Immigration Division (ID) decision finding reasonable grounds to believe that applicant inadmissible to Canada under Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 34(1)(f) for being member of terrorist organization, under Act, s. 35(1)(a) for being complicit in war crimes, crimes against humanity — Applicant Sri Lankan Tamil, granted Convention Refugee status in Canada — Working in support of World Tamil Movement (WTM) — Applicant later ordered deported from Canada given risk to national security applicant posing — Certificate stating applicant danger to security of Canada signed but certificate later quashed by operation of law — Subsequently, two reports issued alleging applicant inadmissible under Act, ss. 34(1)(c),(f), 35(1)(a) — Reports stating applicant inadmissible as member of WTM, entity alleged to be front organization for Liberation Tigers of Tamil Eelam (LTTE); because of complicity in other offences — Key preliminary issue in inadmissibility hearing was respondent’s obligation to disclose classified materials in government’s possession or control concerning applicant — ID concluding that despite procedural similarities between security certificate proceedings at Federal Court (Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326 (Charkaoui II)) establishing level of disclosure required to protect fundamental rights affected by security certificate procedure, inadmissibility proceedings before ID, fairness not requiring full disclosure in circumstances of present case — ID finding that applicant aware of case to be met, denying applicant’s application for further disclosure — ID determining, inter alia, that applicant making significant, voluntary, knowing contributions to crimes or criminal purpose of LTTE before arriving in Canada, thereby complicit in acts of LTTE; that applicant’s rights under Canadian Charter of Rights and Freedoms not violated — Dismissing applicant’s application for stay of proceedings or other remedy under Charter, s. 24(2) –– Main issues: determining standard of review of procedural fairness matters; whether ID breaching duty of fairness by failing to order full Charkaoui II disclosure; whether applicant compellable witness before ID; whether transcripts of own testimony in security certificate proceedings admissible; whether ID erring in assessment of evidence; whether ID erring in interpretation of “membership”, “complicity”; whether respondent’s actions constituting abuse of process — While issues of procedural fairness generally reviewed on standard of correctness, case law regarding standard thereon unsettled — In present matter, ID’s rulings involving exercise of discretion afforded to decision maker under home statute, Board’s relaxed rules of evidence, procedure — Further, interlocutory decisions ID making herein largely evidentiary — Short of decision depriving person of fair hearing, Board entitled to deference when determination largely factual or evidentiary — Inadmissibility findings generally calling for review on standard of reasonableness — Regarding duty of fairness, ID not accepting that dictates of fairness, natural justice extending to require disclosure to special advocate of materials in possession of Canadian Security Intelligence Service (CSIS) relating to applicant when respondent’s case based on evidence already disclosed to applicant — That conclusion reasonable — Restrictions on disclosure not in breach of Charter, particularly in context of national security — ID’s finding that fairness not requiring full disclosure in circumstances of case reasonable; purpose of providing special advocate with Charkaoui II disclosure in security certificate context is to remedy situation caused by respondent’s reliance on evidence, information not disclosed to named person — Applicant knowing case to be met herein; evidence respondent intending to rely on disclosed to applicant — ID’s finding that applicant not establishing why further disclosure required to allow applicant to know case to be met reasonable — Regarding transcripts, ID concluding that content relevant to issues to be determined at hearing — Reasonable for ID to find lack of full disclosure would have negative effect on applicant’s ability to provide credible, reliable testimony not established — Clear differences in Act regarding whether someone compellable witness at security certificate hearing, before ID — Also no explicit reference to compellability of witnesses at ID but several provisions pointing to ID’s power to compel witness to testify at admissibility hearing — ID rightly concluding that potential prejudice of admitting applicant’s voluntary sworn testimony not outweighing probative value relevant evidence would provide; thus, in circumstances, finding that admitting previously sworn testimony, not obtained in breach of Charter, not resulting in unfairness — Respecting assessment of evidence, documentary evidence only used to establish that LTTE organization having engaged in acts of terrorism — ID not relying thereon to find that applicant member of LTTE or had personally engaged in acts of terrorism — ID’s reliance on evidence for limited purpose reasonable, adequately justified in decision — In reaching conclusion that applicant member of LTTE, ID reviewing relevant case law regarding definitions of terrorism, organization as pertaining to Act, s. 34(1)(f) — After determining that LTTE meeting definition of terrorist organization, ID addressing evidence relating to WTM; satisfied that totality of respondent’s evidence establishing reasonable grounds to believe WTM raising money for LTTE — ID not erring in finding that applicant member of LTTE — Case law establishing that membership within meaning of statute including materially supporting terrorist activities; evidence adequately supporting ID’s finding — ID also properly identifying case law test for complicity in war crimes since evidence reasonably supporting finding that applicant aware of LTTE’s illegal activities, criminal purpose — ID reviewing evidence, holding that applicant’s actions not those of mere associate, but rather dedicated supporter voluntarily working on behalf of LTTE — As such, ID’s finding reasonable grounds existing to believe applicant complicit in war crimes reasonable — With respect to abuse of process, in particular circumstances of present case, ID not erring in finding that nothing inherently unfair in applying law of complicity to evidence previously adduced as voluntary, sworn testimony at prior proceeding — Here, despite prolonged delays caused by interlocutory matters, respondent demonstrating continuing determination to remove applicant for involvement with WTM, LTTE — Applicant’s involvement therewith primary basis for inadmissibility; addition of another ground of inadmissibility relating to that involvement not changing matters — Application dismissed.
Suresh v. Canada (Public safety and Emergency Preparedness) (IMM-4483-15, 2017 FC 28, Mosley J., judgment dated January 10, 2017, 39 pp.)