Date: 20021112
Docket: IMM-1740-01
Neutral Citation: 2002 FCT 1161
Between:
SULEYMAN GOVEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
& IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
The applicant seeks judicial review of a decision of Immigration Officer Anne Dello (the "officer"), dated March 20, 2001, in which she determined that permanent residence could not be granted to the applicant. The officer found the applicant to be a person described in clause 19(1)(f)(iii)B of the Immigration Act, R.S.C. 1985, c. I-2, as "persons who there are reasonable grounds to believe are or were members of an organization that there are reasonable grounds to believe is or was engaged in terrorism".
The applicant, Suleyman Goven, is a Kurd and a citizen of Turkey. He is a Convention refugee who applied for landing in March of 1993. The processing of his application was delayed by the background check executed by the Canadian Security Intelligence Service ("CSIS"). CSIS reported the results of its investigation to Immigration officials on August 9, 1995.
On August 1, 1997, Mary Jo Leddy, the Director of Romero House, a settlement agency for refugees, complained to the Director of CSIS about the delays in the handling of the applicant's background check. Ms. Leddy assisted the applicant in making a formal complaint to the Security Intelligence Review Committee ("SIRC"). SIRC conducted a formal closed hearing over 15 days, after which it issued a report, on April 3, 2000. Issues raised at the hearing included the nature of the Kurdistan Workers' Party (the "PKK"), the length of time taken for the security screening process, the manner of CSIS agents conducting security screening issues, and the nature of CSIS advice to Immigration officials. In its report, SIRC indicated that CSIS' case against the applicant did not demonstrate reasonable grounds to believe that the applicant was a member of the PKK.
On March 20, 2001, the officer denied the application for landing, based on her belief that the applicant was a member of the PKK.
The applicant alleges that the officer issued the refusal letter after having told him that she would not be making a decision in the case. The officer, in her affidavit, confirms that she indicated to the applicant that she would write a report to Ottawa. She states that she routinely tells applicants this, because, although she is the final decision maker for refusals, approvals require ministerial assent.
The following excerpt from the officer's decision explains her position:
I am satisfied; that based on open information that I have read, the Kurdistan Workers Party (PKK) is an organization that has engaged in terrorism. I have also concluded, that there are reasonable grounds to believe that the Toronto Kurdistan Coummunity [sic] and Information Centre (TKCIC) supports the Kurdistan Workers Party (PKK). I have come to this conclusion based on the following information. Known members of the PKK have been present in Canada and there is evidence to suggest that they have had contact or were present at the TKCIC. The TKCIC has extensive literature about the PKK and also displays pictures of prominent PKK members. The TKCIC also receives a daily fax called "Dem-Ajans" from the Kurdish News Agency that is supported by the PKK. Finally, evidence also suggests that the TKCIC participated in fund-raising in 1997 for PKK Surface to Air Missiles (SAM).
You were president of the TKCIC from 1993 to 1994, and a member of the TKCIC executive 1996 to 1997. By virtue of the positions held at the TKCIC, I have determined that there are reasonable grounds to believe you were a member of the PKK.
The applicant submits inter alia that the officer ignored relevant evidence by not considering the decision of SIRC or the applicant's statement with regard to fundraising for the PKK.
In Taher v. Minister of Citizenship and Immigration (September 7, 2000), IMM-5255-99, Denault J. stated at paragraph 14:
. . . It is trite law that a tribunal must be presumed to have considered all the evidence that was presented to it. Still, a tribunal is not obliged to mention in its reasons all the elements of evidence it has taken into account before rendering its decision. Furthermore, because certain evidence is not mentioned in the tribunal's decision, it does not mean that such evidence was ignored.
Therefore, the Court should assume that the officer did not ignore the applicant's statement with regard to fundraising for the PKK. However, the more relevant the evidence, the more important it is for the decision maker to address it in its reasons. In Cepeda-Gutierrez v. Minister of Citizenship and Immigration (October 6, 1998), IMM-596-98, [1998] F.C.J. No. 1425 (T.D.) (QL), Evans J. stated in this regard:
[15] The Court may infer that the administrative agency under review made the erroneous finding of fact "without regard to the evidence" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.
[16] On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.)). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.
[17] However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
(Emphasis is mine.)
In her decision, the officer makes no mention of the SIRC report. She simply makes the blanket statement that she considered "the information you provided and that contained on file". The officer was the final decision maker and she was not bound by the SIRC report. However, given that the report was the result of a lengthy, complex, and official hearing which directly addressed the issue of the applicant's possible membership in the PKK, and reached a conclusion opposite to that of the officer, she should have explained her rejection of it.
The respondent argues that the SIRC report is irrelevant because it considers whether the applicant was a member of the PKK, rather than investigating the link between the TKCIC and the PKK, which was the basis for the officer's decision. The SIRC report would, in fact, be far more relevant to this case than the evidence linking the TKCIC to the PKK, since it more directly addresses the central issue.
The intervention of this Court is, therefore, warranted without the necessity of dealing with the other arguments raised by the applicant.
Consequently, the application for judicial review is allowed and the matter remitted for reconsideration by another Immigration Officer.
JUDGE
OTTAWA, ONTARIO
November 12, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1740-01
STYLE OF CAUSE: SULEYMAN GOVEN v. THE MINISTER OF CITIZENSHIP & IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 15, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: November 12, 2002
APPEARANCES:
Ms. Barbara Jackman FOR THE APPLICANT
Mr. Donald MacIntosh FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jackman, Waldman & Associates FOR THE APPLICANT
Barristers & Solicitors
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario