Suresh v. Canada ( Minister of Citizenship and Immigration )
IMM-117-98
McKeown J.
11/6/99
46 pp.
Judicial review of Minister's decision pursuant to Immigration Act, s. 53(1)(b) applicant danger to security of Canada-Applicant Tamil from Sri Lanka-Found to be Convention refugee in 1991-In 1995 subject of security certificate issued on grounds inadmissible to Canada pursuant to s. 19(1)(e), (f)-Teitelbaum J. upholding reasonableness of security certificate, holding World Tamil Movement (WTM), of which applicant coordinator, part of Liberation Tigers of Tamil Eelam (LTTE), organization reasonable grounds for believing committed "terrorist acts"-Applicant ordered deported-In 1997 applicant notified Minister would be considering issuance of s. 53(1)(b) opinion applicant danger to security of Canada-Applicant making submissions-Minister rendering decision in January 1998-(1) Gwala v. Canada (Minister of Citizenship and Immigration), [1999] 3 F.C. 404 (C.A.) holding Federal Court having jurisdiction on judicial review to determine constitutionality of ss. 53(1)(b), 19(1)(e), (f)-(2) Standard of review of Minister's discretionary decision-S. 53(1)(b) employing subjective language, providing for exception to prohibition against refoulement of refugees where Minister of opinion person constituting danger to security of Canada-As stated in Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.), such subjective decision only reviewable on grounds decision maker acted in bad faith, erred in law, or acted upon basis of irrelevant considerations-Decision applicant danger to security of Canada question of fact over which courts should be most reluctant to engage in reexamination of Minister's conclusions-Minister's decision pursuant to s. 53(1)(b) clearly discretionary and therefore to be accorded considerable deference-Having regard both to potential seriousness of decision for applicant, discretionary nature of Ministerial opinion, particularly concerning issues of national security, appropriate standard of review reasonableness-(3) Procedural fairness-(i) Even if implications of s. 53(1)(b) decision calling for higher standard of procedural fairness than that under s. 70(5), procedure followed adequate-Nothing in official's Memorandum to Minister of which applicant unaware-On issue of adequate notice, applicant submitting Minister required to apprise him of grounds on which believed not sufficiently at risk to outweigh danger represented to security of Canada-Contrary to Minister's duty to draw any conclusions on risk to applicant until applicant given opportunity to address what he believes risks would be-Because applicant Convention refugee, issue of risk before Minister-Minister knowing applicant, Convention refugee, had well-founded fear of persecution-Only applicant can inform Minister of what risk is to him at present-Minister made full disclosure of material upon which decision would be made-Applicant aware of material, which was publicly available to him-Requirements of procedural fairness followed-No reliance placed on new information filed by applicant-(ii) While evidence before her mixed, reasonably open to Minister to conclude danger applicant representing to security of Canadian public outweighing risk to him upon return to Sri Lanka-Open to Minister to conclude publicity would assist in protecting applicant-Minister's decision need only be reasonable, not correct-Fundamental justice not requiring oral hearing by independent arbitrator-Written submissions sufficient-Act not requiring independent, impartial decision maker-Independent judicial arbitrator in person of Teitelbaum J. upholding reasonableness of security certificate under s. 40.1-Subjective opinion still complying with principles of fundamental justice-(4) Whether Charter of Rights and Freedoms, ss. 2, 7 violated-S. 7 protecting right not to be deprived of life, liberty, security of person except in accordance with principles of fundamental justice-Said v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 592 (T.D.) stating principles of fundamental justice requiring striking fair balance between interest of person claiming liberty limited and protection of society, both substantively, procedurally-Rationale behind balancing undertaken pursuant to s. 53 to create humanitarian balance between individual in fear of persecution and legitimate concern of states to sanction criminal activity-Balancing undertaken under s. 53(1)(b) satisfying requirements of fundamental justice-Applicant submitting balancing approach under s. 53 not applicable where Convention refugee may be subject to torture-Relying on Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, [1987] Can. T.S. No. 36, Art. 3, prohibiting expulsion of person to another state where substantial grounds for believing would be in danger of being subjected to torture-Convention Against Torture not enacted as part of domestic law of Canada, but ratified by Canada-Although not binding under Canadian law, Canadian legislation should be interpreted so as to avoid breach of Canada's international obligations: Baker v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 127 (C.A.)-While Convention Against Torture not having effect of law in Canada, informs interpretation of Charter rights-Applicant not meeting high burden of proof required to establish violation of Convention, Art. 3, i.e. not establishing "substantial grounds" for believing would be tortured-Given high evidentiary burden attaching to Art. 3, need for clear factual foundation in context of Charter claims, applicant not establishing such violation-Applicant submitting publicity generated in proceedings against him by Canadian government making him particularly vulnerable to ill treatment in Sri Lanka-But equally possible resulting international scrutiny will protect applicant-Since no such violation, balancing in keeping with principles of fundamental justice and no violation of Charter, s. 7-Canada should follow obligations under Convention Relating to Status of Refugees, implemented into Immigration Act, in preference to obligations under Convention Against Torture, which is not binding under Canadian law-As not meeting burden of proof under Convention Against Torture, not case which would shock conscience of Canadians-Applicant submitting activities as coordinator of WTM within "classic concept of expression" and as such meriting protection under s. 2(b)-Submitting effect of ss. 19(1)(e), (f), 53(1)(b) to infringe exercise of expressive, associational freedoms; activities as coordinator of WTM political, human-rights promoting, and as such at core of values underlying s. 2(b)-Singh v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 616 (T.D.) concluding "terrorists cannot invoke freedom of expression as justification for the violent activities in which they are involved"-Security certificate, found to be reasonable, conclusive proof applicant's activities within s. 19(1)(e)(iv)(C), (f)(ii), (iii)(B)-Given conclusive nature of s. 40.1(1) certificate, not open to Court to find insufficient nexus between applicant's activities on behalf of WTM and LTTE's acts of violence against civilians in Sri Lanka-Artificial to view applicant's activities as benign and therefore protected expression merely because such activities not prima facie violent in and of themselves-Given that expression in question, particularly fundraising, in service of violent activity, not related to values underlying s. 2(b)-Applicant not establishing violation of s. 2(b) rights-Applicant acknowledging association with LTTE, found conclusively to be terrorist organization-Challenged provisions defined with sufficient particularity to avoid infringement of legitimate associative rights pursuant to Charter, s. 2(d)-In order to come within protection of Charter, s. 12, applicant must demonstrate subjected to treatment or punishment at hands of State, such treatment cruel, unusual-Deportation not punishment-Deportation authorized by Act not cruel, unusual-If applicant allowed to remain here and violate conditions under s. 19, would violate, outrage standards of decency-Applicant submitting "danger to the security of Canada" too vague-Statutory context in which "danger to the security of Canada" providing sufficient guidance to Minister-S. 53(1)(b) referring to terrorist-related inadmissibility provisions of s. 19(1)(e), (f) thereby focusing, contextualizing analysis of both Minister, Court-R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 cautioning against using doctrine of vagueness to prevent, impede State action in furtherance of valid social objectives by requiring law to achieve degree of precision to which subject-matter not lending itself-That terrorism not defined in s. 19 not making it unconstitutionally vague-Given backdrop of Canadian case law, international instruments to prevent terrorism, reports such as Report of the Special Committee on Security Intelligence, terrorism sufficiently clear as to provide notice of factors to be considered-Terrorism evolving concept, understood most essentially to encompass acts of violence-Neither breach of fairness nor of substantive, procedural aspects of fundamental justice-Ss. 53(1)(b), 19(1)(e)(iv), (f)(ii), (iii) not unconstitutional-Immigration Act, R.S.C., 1985, c. I-2, ss. 19(1)(e)(iv) (as am. by S.C. 1992, c. 49, s. 11), (f)(ii), (iii) (as am. idem), 53(1)(b) (as am. idem, s. 43)-Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, [1987] Can. T.S. No. 36, Art. 3-Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 2, 7.