Karakachian v. Canada (Minister of Citizenship and Immigration), (2009) 364 F.T.R. 1 (FC)

Judgede Montigny, J.
CourtFederal Court (Canada)
Case DateMay 25, 2009
JurisdictionCanada (Federal)
Citations(2009), 364 F.T.R. 1 (FC);2009 FC 948

Karakachian v. Can. (M.C.I.) (2009), 364 F.T.R. 1 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2009] F.T.R. TBEd. NO.041

Vahakn Vasken Karakachian (demandeur) v. Ministre de la Citoyenneté et de l'Immigration (défendeur)

(IMM-2088-08; 2009 CF 948; 2009 FC 948)

Indexed As: Karakachian v. Canada (Minister of Citizenship and Immigration)

Federal Court

de Montigny, J.

September 22, 2009.

Summary:

Karakachian's application for permanent resident status was denied on the basis that he was a member of the inadmissible class described in s. 34(1)(f) of the Immigration and Refugee Protection Act due to his membership in the Armenian Revolutionary Federation. Karakachian sought judicial review.

The Federal Court allowed the application. The matter was referred to a different immigration officer to be reassessed.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - Karakachian's application for permanent resident status was denied on the basis that he was a member of the inadmissible class described in s. 34(1)(f) of the Immigration and Refugee Protection Act due to his membership in the Armenian Revolutionary Federation (ARF) - Karakachian sought judicial review, asserting, inter alia, that there was a breach of procedural fairness because the immigration officer did not disclose her documentary sources to him, so that he was unable to examine them or to discuss them with her - The officer's report noted that the printed documents that she had obtained were on her desk and that Karakachian had never asked to see them - Consequently, the Minister of Citizenship and Immigration asserted that Karakachian had waived his right to obtain the documents and had accepted the situation - The Federal Court allowed the application for judicial review, finding that there had been a breach of procedural fairness - Karakachian's conduct was not a tacit waiver of his right to be informed of the content of the documents on which the officer relied in making her decision - A person who appeared before a government authority was generally not on an equal footing - Since the officer did not expressly invite him to consult the documents on which she was relying, Karakachian could reasonably believe that he was not permitted to see them - While the duty of fairness was relatively relaxed in the context of an application for permanent residence, Karakachian's ability to respond to the officer's concerns regarding the true nature of the ARF was seriously hindered by the ignorance in which he was kept as to the documents consulted - See paragraphs 35 to 38.

Administrative Law - Topic 2277

Natural justice - The duty of fairness - Waiver - [See Administrative Law - Topic 2266 ].

Aliens - Topic 1217

Admission - Immigrants - Bars - Misrepresentation of material facts - Karakachian's application for permanent resident status was denied on the basis that he was a member of the inadmissible class described in s. 34(1)(f) of the Immigration and Refugee Protection Act (IRPA) due to his membership in the Armenian Revolutionary Federation (ARF) - The immigration officer also concluded that Karakachian had contravened s. 16(1) of the IRPA by failing to answer questions truthfully - The Federal Court allowed Karakachian's application for judicial review on the basis that the officer erred in finding that Karakachian was a member of a terrorist organization - However, the court indicated that the officer's reasoning under s. 16(1) was just as problematic - Karakachian did not agree with the officer's perception of the ARF - In response to the officer's questions, Karakachian pointed out the ARF's social involvement, participation in government and its historical origins and aims - An applicant's statement could be characterized as truthful or not if it concerned factual data that could be verified or questioned - None of the information provided by Karakachian was questioned - Rather, what the officer faulted Karakachian for was not agreeing with her opinion concerning the ARF - He was not concealing anything from her or attempting to evade her questions - A person could not be accused of lying merely because they did not give the answers one wanted to hear or because they disagreed with the premises underlying the question - See paragraphs 51 to 56.

Aliens - Topic 1230

Admission - Immigrants - Application for admission - Immigrant visa - Duty of officer (incl. duty of fairness) - [See Administrative Law - Topic 2266 ].

Aliens - Topic 1236

Admission - Immigrants - Application for admission - Evidence and proof - [See Aliens - Topic 1715 ].

Aliens - Topic 1709

Exclusion and expulsion - Immigration - Exclusion - General - Exclusion order - Reasons - [See first Aliens - Topic 1747 ].

Aliens - Topic 1715

Exclusion and expulsion - Immigration - Exclusion - General - Exclusion order - Judicial review - Karakachian's application for permanent resident status was denied on the basis that he was a member of the inadmissible class described in s. 34(1)(f) of the Immigration and Refugee Protection Act (IRPA) due to his membership in the Armenian Revolutionary Federation (ARF) - The immigration officer also concluded that Karakachian had contravened s. 16(1) of the IRPA by failing to answer questions truthfully - The Federal Court allowed Karakachian's application for judicial review - The question of whether the ARF fell within s. 34(1)(f) was to be reviewed on the reasonableness standard as was the related question of whether Karakachian was a member of the ARF - The reasonableness standard applied to the officer's decision under s. 16(1), given the major factual basis of such a decision - In these circumstances, it was important not to confuse the standard of review with the standard of proof - The standard of proof that applied to s. 34(1)(f) was set out in s. 33 of the IRPA as "reasonable grounds to believe" - This required more than mere suspicion, but less than the balance of probabilities - Reasonable grounds existed where there was an objective basis for the belief that was based on compelling and credible information - The role of the court was not to determine whether the ARF was or had been a terrorist organization nor whether there were reasonable grounds to believe that Karakachian fell within s. 34(1)(f) or, on a balance of probabilities, also fell within s. 16(1) - The only question that the court had to decide was whether the officer could reasonably come to the conclusion that she had reached based on the evidence before her - Lastly, if the court found that the duty of fairness had been breached, there was no choice but to allow the application - See paragraphs 29 to 34.

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a subversive, espionage or terrorist organization - Karakachian's application for permanent resident status was denied on the basis that he was a member of the inadmissible class described in s. 34(1)(f) of the Immigration and Refugee Protection Act due to his membership in the Armenian Revolutionary Federation (ARF) - Karakachian sought judicial review - The Federal Court allowed the application - The officer erred in finding that Karakachian was a member of a terrorist organization - Nowhere in her decision did she specify what she meant by terrorism - An immigration officer had to indicate in clear terms what constituted terrorism and how the concept applied to the case at hand - Referring to a document that contained a definition of terrorism was not sufficient - Before finding that the ARF was an inadmissible organization of which Karakachian was a member, the officer had to set out her thinking in clear terms and could not, in effect, delegate that responsibility to another agency without even giving her reasons for adopting that agency's definition - See paragraphs 39 to 42.

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a subversive, espionage or terrorist organization - Karakachian's application for permanent resident status was denied on the basis that he was a member of the inadmissible class described in s. 34(1)(f) of the Immigration and Refugee Protection Act due to his membership in the Armenian Revolutionary Federation (ARF) - Karakachian sought judicial review - The Federal Court allowed the application - The officer erred in finding that Karakachian was a member of a terrorist organization - The documents that the officer relied on in concluding that the ARF was a terrorist organization were dubious and lacking in rigour - One document originated from the Republic of Azerbaijan, making it seriously questionable given the conflict between that country and Armenia - The other came from Wikipedia, which was limited in terms of reliability - While it was risky to rely on those documents, a careful reading of them showed that they did not reasonably allow a conclusion that the ARF was a terrorist organization - See paragraphs 43 to 46.

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a subversive, espionage or terrorist organization - Karakachian's application for permanent resident status was denied on the basis that he was a member of the inadmissible class described in s. 34(1)(f) of the Immigration and Refugee Protection Act due to his membership in the Armenian Revolutionary Federation (ARF) - Karakachian sought judicial review - The Federal Court allowed the application - The officer erred in finding that Karakachian was a member of a terrorist organization - The documentary evidence relied on by the officer showed that while the ARF might have had subversive aims when it was founded in 1890, its objectives had since changed - The ARF was now a recognized political party and part of the Armenian government - While the passage of time might be immaterial where an organization had been inactive but had not formally renounced violence, the situation where a violent organization had transformed itself into a legitimate political party and had expressly renounced violence was completely different - It was difficult to believe that Parliament's intent was to render inadmissible any person belonging to a legitimate political party from the mere fact that the party might have been considered a terrorist organization before that person joined it - See paragraphs 46 to 50.

Aliens - Topic 4072

Practice - Judicial review and appeals - The record - [See Aliens - Topic 4073 ].

Aliens - Topic 4073

Practice - Judicial review and appeals - Nondisclosure of confidential information (incl. appointment of special advocate) - Karakachian's application for permanent resident status was denied on the basis that he was a member of the inadmissible class described in s. 34(1)(f) of the Immigration and Refugee Protection Act (IRPA) due to his membership in the Armenian Revolutionary Federation - Karakachian applied for judicial review - The Minister of Citizenship and Immigration moved under s. 87 of the IRPA to obtain the non-disclosure of confidential security intelligence information in the record - Karakachian requested the appointment of a special advocate to protect his interests in his absence during the hearing of the Minister's motion - The Federal Court granted the Minister's motion and denied Karakachian's request for a special advocate - Disclosure of the confidential information would have been injurious to national security and would endanger the safety of a person - Where there was no security certificate in place, the appointment of a special advocate was in the judge's discretion - It was not necessary here - Karakachian could not benefit from any of the rights under s. 7 of the Charter because he had applied for a visa from outside of the country - He was not in detention or at risk of removal - Further, the duty of fairness owed to visa applicants was minimal - The portions of the record that were blocked out were not substantial and did not prevent Karakachian from challenging the decision - In fact, the information to which he was being refused access probably came from him - What he was alleging was not ignorance of the information, but rather of its possible interpretation - This was not a valid ground for appointing a special advocate nor was the appointment required for procedural fairness - See paragraphs 15 to 28.

Cases Noticed:

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 21].

Almrei v. Canada (Minister of Citizenship and Immigration) (2004), 249 F.T.R. 53; 2004 FC 420, refd to. [para. 21].

Henrie v. Security Intelligence Review Committee et al., [1989] 2 F.C. 229; 24 F.T.R. 24 (T.D.), affd. (1992), 140 N.R. 315; (F.C.A.), refd to. [para. 21].

Malkine v. Canada (Minister of Citizenship and Immigration) (2009), 344 F.T.R. 307; 2009 FC 496, refd to. [para. 25].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 26].

Khan (S.H.) v. Canada (Minister of Citizenship and Immigration) (2001), 283 N.R. 173; 2001 FCA 345, refd to. [para. 26].

Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297; 265 N.R. 121 (F.C.A.), refd to. [para. 26].

Kanendra v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 546; 2005 FC 923, refd to. [para. 29].

Omer v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 301; 2007 FC 478, refd to. [para. 29].

Al Yamani v. Canada (Minister of Citizenship and Immigration) (2006), 304 F.T.R. 222; 2006 FC 1457, refd to. [para. 29].

Rajadurai v. Canada (Minister of Citizenship and Immigration) (2009), 340 F.T.R. 179; 2009 FC 119, refd to. [para. 29].

Jilani v. Canada (Minister of Citizenship and Immigration) et al., [2008] F.T.R. Uned. 560; 2008 FC 758, refd to. [para. 29].

Poshteh v. Canada (Minister of Citizenship and Immigration) (2005), 331 N.R. 129; 2005 FCA 85, refd to. [para. 29].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 30].

Moiseev v. Canada (Minister of Citizenship and Immigration) (2008), 323 F.T.R. 164; 2008 FC 88, refd to. [para. 32].

Thanaratnam v. Canada (Minister of Citizenship and Immigration), [2006] 1 F.C.R. 474; 333 N.R. 233; 2005 FCA 122, refd to. [para. 33].

Mendoza v. Canada (Minister of Public Safety and Emergency Preparedness) (2007), 317 F.T.R. 118; 2007 FC 934, refd to. [para. 33].

Sketchley v. Canada (Attorney General) (2005), 344 N.R. 257; 2005 FCA 404, refd to. [para. 34]

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 39].

Jalil v. Canada (Minister of Citizenship and Immigration) et al., [2006] 4 F.C.R. 471; [2006] F.T.R. Uned. 138 (F.C.), refd to. [para. 39].

Naeem v. Canada (Minister of Citizenship and Immigration) (2007), 308 F.T.R. 256; 2007 FC 123, refd to. [para. 39].

Mekonen et al. v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 754; 2007 FC 1133, refd to. [para. 39].

Beraki et al. v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 986; 2007 FC 1360, refd to. [para. 39].

Fi v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 655; 2006 FC 1125, refd to. [para. 45].

Sinan v. Canada (Minister of Citizenship and Immigration) et al., [2008] F.T.R. Uned. 529; 2008 FC 714, refd to. [para. 45].

Khanna v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 224; 2008 FC 335, refd to. [para. 45].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 34(1)(f) [para. 31].

Counsel:

Sylvie Tardif, for the applicant;

Michel Pépin, for the respondent.

Solicitors of Record:

Hébert Tardif, Montreal, Quebec, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Montreal, Quebec, for the respondent.

This application was heard at Montreal, Quebec, on May 25, 2009, by de Montigny, J., of the Federal Court, who delivered the following reasons for order on September 22, 2009.

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