Atabaki v. Canada (Minister of Citizenship and Immigration), 2005 FC 969

Date: 20050711

Docket: IMM-8000-04

Citation: 2005 FC 969

Ottawa, Ontario, the 11^th day of July, 2005

Present:           THE HONOURABLE MR. JUSTICE SIMON NOËL                              

BETWEEN:

                                                ROOZBEH KIANPOUR ATABAKI

                                                                                                                                            Applicant

                                                                           and

                                MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review of a decision of the Refugee Protection Division (the "panel") of the Immigration and Refugee Board (the "IRB") dated August 27, 2004, wherein the Applicant was determined to not be a Convention refugee or a "person in need of protection" as defined by sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), due to his status as a person referred to in Article 1F(a) of the United Nations Convention Relating to the Status of Refugees (the "Convention"). The Applicant seeks to have this decision set aside and his refugee claim sent back for redetermination before a newly-constituted panel.

ISSUE

[2]                Did the panel fail to observe a principle of natural justice or procedural fairness, act without or beyond its jurisdiction, or otherwise base its decision on erroneous findings of fact or law in reaching its determination that the Applicant was inadmissible?

CONCLUSION

[3]                For the reasons outlined below, the answer to that question is yes, and this application for judicial review shall be granted.

BACKGROUND

[4]                Roozbeh Kianpour Atabaki (Mr. Atabaki or "Applicant") is a citizen of Iran. He claims to fear serious harm, including arrest, detention, torture and possibly death, from the Iranian authorities due to his imputed political opinion and alleged membership in a particular social group.

[5]                Mr. Atabaki comes from a politically-active family. His father has been imprisoned multiple times for supporting political groups opposed to the Iranian leadership. Mr. Atabaki claims to have been targeted in his youth a number of times by police because of his father's profile. Along with the rest of his family, Mr. Atabaki is anti-religion and opposes the current Iranian Islamic regime. He had completed some training in electronics in Iran a few years prior to his departure.

[6]                The Applicant apparently suffers some mental disabilities. In about 2000 or 2001, a family friend, Dr. Bani-Torfi, began writing prescriptions for medications to aid Mr. Atabaki since neither he nor his family could afford a proper psychiatrist. Dr. Bani-Torfi was a member of the Mujahedeen-e-Khalq (the "MKO"), a group which seeks the secularization of the Iranian state, and he asked Mr. Atabaki if he would make video recordings of certain international MKO broadcasts using a satellite dish. (Dr. Bani-Torfi also asked him to distribute pamphlets, but since the panel determined that that activity, in and of itself, was insufficient to show complicity with the MKO, it shall not be further discussed in these reasons.) Mr. Atabaki, who wanted to help free the Iranian people from what he saw as a repressive regime, agreed.

[7]                In early to mid-2000, Dr. Bani-Torfi provided Mr. Atabaki with the money to buy the necessary videorecording equipment. Since satellite dishes are illegal in Iran, the taping had to be done covertly. Mr. Atabaki's only contact with the MKO was through Dr. Bani-Torfi, who provided him with the information as to what was to be videotaped.

[8]                In mid-December 2000, security forces came to Mr. Atabaki's home while he was absent and issued a summons for him to appear before the Islamic Revolutionary court. The Applicant does not know on what grounds this summons was issued. He contacted Dr. Bani-Torfi who told him to not contact him anymore. The Applicant went into hiding at a friend's house. In mid-July 2001, the authorities returned to Mr. Atabaki's home and, upon searching the house thoroughly, found the hidden satellite dish, equipment and videotapes, all of which they seized.

[9]                With the aid of his uncle, Mr. Atabaki fled Iran. He travelled to Malaysia, then to Indonesia and finally to Australia, where he made a claim for refugee protection. He was detained at Woomera Detention Centre ("Woomera") pending his refugee hearing. He had trouble providing documentation and with other aspects of his story, and his claim was denied. The conditions at Woomera have been documented elsewhere (see, e.g., the documentation provided at the hearing) and I will not repeat them here; suffice it to say, on Easter Day, 2002, Mr. Atabaki managed to escape from Woomera. He lived in hiding with some friends until he saved enough money to travel to Canada, along with the aid of his friends and a smuggling agent.

[10]            Upon arrival, he was questioned by the Canadian authorities. He gave them a false name (his passport was also false, having been seized at Woomera). The authorities were suspicious and he was detained. Finally, the claimant told them his real name was Roozbeh Kianpour Atabaki and that he was from Iran. He then made a claim for refugee protection.

THE CONTESTED DECISION

[11]            The panel determined that Mr. Atabaki was a member of the MKO in that, while he did not actually join the MKO, he assisted it through the distribution of pamphlets and videorecording of international MKO broadcasts. These were voluntary actions by Mr. Atabaki which he continued until the police came to his house in mid-December 2000.

[12]            Based on the material in the file before it, the panel also determined that the MKO was a terrorist organization at the time the Applicant was a member and that it was also involved in crimes against humanity. It then went on to determine that Mr. Atabaki was not credible when he professed ignorance of the MKO's terrorist activities. Thus, although the Applicant did not commit any violent acts himself, he had a "personal and knowing participation in important activities of the organization" (see page 4 of the decision), and was therefore complicit in the terrorist activities of the MKO. As a consequence, Mr. Atabaki was inadmissible to Canada pursuant to s. 98 of IRPA.

SUBMISSIONS OF THE PARTIES

The Applicant

[13]            The Applicant submits that the panel erred in four key ways:

-     In finding that his assistance to the MKO amounted to "membership" in the group, including that he was aware of the MKO's activities or shared a common purpose with them;

-     In relying on unreasonable assessments of credibility in determining that he had not established that he lacked knowledge that the MKO was a terrorist organization;

-     In determining that the MKO was a terrorist organization and/or one primarily engaged in crimes against humanity at the time of his involvement; and,

-      In using the wrong burden of proof to exclude the Applicant pursuant to Article 1F(a) of the Convention.

The Respondent

[14]            The Respondent, the Minister of Citizenship and Immigration (the "Minister" or "Respondent") submits that the panel had more than sufficient evidence before it to support its finding that the MKO was a terrorist organization. As well, with regard to the criteria to be taken into consideration when assessing whether an individual can be deemed to be a "member" of a group for the purposes of complicity, the panel properly determined that Mr. Atabaki had the requisite voluntariness, common purpose or motive, and knowledge of the activities of the MKO. In the Respondent's submission, the Applicant is simply asking the Court to reweigh the evidence before the panel, something which the Court does not have the jurisdiction to do.

ANALYSIS

Standard of review

[15]            The appropriate standard of review for questions of inadmissibility has been recently surveyed at length by the Federal Court of Appeal in Poshteh v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 381 at paras. 21-24 (C.A.) ("Poshteh"), where it was determined that the "question of membership in a terrorist organization is not something that is extraneous to its [the IRB's] regular work" (see para. 21). Since the interpretation of whether an individual is a "member" is a legal matter over which the IRB should be given some deference, the appropriate standard of review of this question should be reasonableness (see Poshteh, supra at para. 23).

[16]            The further question of whether the MKO was properly found to be an organization involved in terrorism or crimes against humanity should be dealt with according to the standard of reasonableness: see, e.g., Hussain v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1430 (F.C.) at para. 12 et seq.; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1207 (F.C.) at paras. 35-40.

[17]            Of course, since the panel is a specialized tribunal capable of assessing the plausibility and credibility of testimony, the Court cannot substitute its findings on credibility for those of the panel unless these are shown to be patently unreasonable. Questions of credibility should be treated with exceptional deference: see Canadian Union of Public Employees, Local 301 v. Montréal (City), [1997] 1 S.C.R. 793 at para. 85.

The panel's decision

[18]            Upon reviewing the Applicant's and Respondent's submissions, I will analyse the issues raised by this application for judicial review in the following manner:

-     Whether the panel correctly determined that the MKO was a terrorist organization or one primarily engaged in crimes against humanity at the time of Mr. Atabaki's involvement. While this argument was not pursued before me, I will briefly deal with it since it has an impact on the other issues;

-     Whether the panel properly assessed Mr. Atabaki's membership in or complicity with the MKO despite his evidence that he lacked the knowledge that the MKO was engaged in terrorism or crimes against humanity (this will also involve an assessment of credibility);

-     Whether the panel otherwise properly reached its determination that Mr. Atabaki was excluded pursuant to Article 1F(a) of the Convention.

(a) The MKO's activities

[19]            While the panel could have provided more elaborate reasons in this regard, I find it had ample evidence to determine that the MKO was in fact a terrorist organization or one primarily engaged in crimes against humanity at the time of Mr. Atabaki's involvement. The panel had a number of documents before it to support its finding, and no documentation suggesting the contrary. The panel also noted that the MKO has been designated a terrorist organization by many Western nations, including the U.S., the U.K., Australia and the Council of the European Union. In light of this evidence, I find it was reasonable of the panel to decide that there were reasonable grounds to believe that the MKO is an organization involved in terrorist activities.

(b) Mr. Atabaki's complicity with the MKO

[20]            The notion of membership should be interpreted broadly and does not simply refer to those who may have directly participated in terrorist activities (see Suresh v. Canada (Minister of Citizenship and Immigration) (1997), 40 Imm. L.R. (2d) 247 (F.C.T.D.) at 259 (para. 22), rev'd in part (on different grounds), 47 Imm. L.R. (2d) 1 (F.C.A.); Canada (Minister of Citizenship and Immigration) v. Singh, (1998) 44 Imm. L.R. (2d) 309 at para. 51 et seq. (F.C.T.D.); Canada (Minister of Citizenship and Immigration) v. Owens, (2000) 9 Imm. L.R. (3d) 101 at paras. 16-18 (F.C.T.D.); Poshteh, supra, at para. 29).

[21]            In Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (F.C.A.), the interpretation of the term "membership" was surveyed at length. The guiding principles can be summarized as follows:

(a) Mere membership in an organization involved in international offences is not sufficient for exclusion from refugee status;

(b) Personal and knowing participation in prosecutorial acts is often required;

(c) Membership in an organization which is directed to a limited brutal purpose, such as secret police activity, may by necessity point to personal and knowing participation;

(d) Mere presence at the scene of prosecutorial acts does not qualify as personal and knowing participation;

(e) Presence coupled with being an associate of the principal offenders amounts to personal and knowing participation; and

(f) The existence of a shared common purpose and the knowledge that all the parties have of it is sufficient evidence of complicity.

(See also Moreno v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 221 (F.C.A.); Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.).)

[22]            While there is no evidence that Mr. Atabaki was ever personally involved in any of the terrorist acts allegedly carried out by the MKO, and it was also accepted that he never officially joined the MKO as a member, the panel was satisfied that his activities under Dr. Bani-Torfi's direction were sufficient to make him a de facto member of the MKO and complicit in the MKO's activities. That is to say, because of the nature of the activities Mr. Atabaki performed for the MKO (i.e., videotaping certain international MKO broadcasts), Mr. Atabaki either knew or was wilfully blind to the crimes that were being committed by the MKO and therefore, he was complicit in, or was an accomplice to, these crimes. In Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79 (T.D.) Madam Justice Reed defined "complicity" as follows:

As I understand the jurisprudence, it is that a person who is a member of the persecuting group and who has knowledge that activities are being committed by the group and who neither takes steps to prevent them occurring (if he has the power to do so) nor disengages himself from the group at the earliest opportunity (consistent with safety for himself) but who lends his active support to the group will be considered to be an accomplice. A shared common purpose will be considered to exist. I note that the situation envisaged by this jurisprudence is not one in which isolated incidents of international offences have occurred but where the commission of such offences is a continuous and regular part of the operation.

[23]            Mr. Atabaki concedes that he shared a common purpose with the MKO, at least insofar as both he and the MKO supported a secular state and were in opposition to the Islamic regime governing Iran. He does not, however, support violence nor the religious beliefs of the MKO. He advised that while he had heard the MKO was involved in some terrorist activities, he did not believe this was in fact the case for two reasons: first, he was suspicious and distrustful of information coming from the Iranian government authorities, and second, when he had asked Dr. Bani-Torfi about these reports, the doctor had advised him that while the MKO had engaged in terrorism in the past, it no longer did so. Mr. Atabaki advised the panel that he honestly believed that the MKO was now only involved in acts of civil disobedience, such as the boycotting of elections (which, I note, was the subject of many of the pamphlets he distributed), and that any reports to the contrary were the result of the Iranian government's propaganda.

[24]            The panel disbelieved his evidence on this point. First, it found it unlikely that Mr. Atabaki was not aware of the true nature of the MKO's activities since, by Mr. Atabaki's own admission, he came from a politically and socially conscious family and he had access to international broadcasts via the satellite dish. Second, in light of the activities apparently entrusted to him by the MKO, it was obvious the MKO trusted Mr. Atabaki enough to help them obtain this type of information.

[25]            While the panel should be shown a certain degree of deference toward these types of matters, it does not seem that its decision is entirely reasonable on this point. At the hearing, very little exploration of Mr. Atabaki's activities were undertaken. In fact, at only two points in the hearing does the question of Mr. Atabaki's involvement with the MKO arise (see pages 63-72 and 79-86 of the transcript). While he does not deny videotaping the broadcasts for the MKO, his testimony is consistent as to the fact that he only ever communicated with Dr. Bani-Torfi and no other members of the MKO. The fact that he did not seem to know much about the MKO is underscored by the submissions of the Refugee Protection Officer at page 89 of the hearing transcript who notes that the Applicant does not quite fit the profile of an MKO supporter, nor does it entirely make sense that, since he was a person who was allegedly a frequent target of police interest, the MKO would use him to videotape their broadcasts.

[26]            As well, the Applicant testified that he was asked to tape specific MKO programming broadcast from Iraq. He was advised of the broadcast times by Dr. Bani-Torfi. The question of whether Mr. Atabaki had access to other international programming was not addressed at the hearing. The panel did not find Mr. Atabaki to be credible when he testified that he did not know the MKO was involved in terrorist activities since he had access to a satellite dish and therefore (in the panel's mind) to other international programming which would have highlighted the true nature of the MKO. It appears that the panel has delved into speculation at this point. Mr. Atabaki never testified that he saw any international programming other than the MKO broadcasts. He did testify as to Iranian television reports holding the MKO responsible for some terrorist activity within Iran, but he did not take much stock in these reports since in his mind the Iranian government (which controlled the news media) could not be trusted to tell the truth. I think a further exploration of Mr. Atabaki's state of mind was necessary.

[27]            The panel does not advise why it felt Mr. Atabaki lacked credibility on some key aspects of his claim, other than those factors discussed above in paragraph 24 of these reasons. Furthermore, as I have noted, there is no evidence that Mr. Atabaki in fact had "access to international broadcasts" (rather than just the MKO broadcasts, which were not likely to portray the MKO as a terrorist organization). I do not think, on the bare facts of this case, that it was reasonable of the panel to determine that Mr. Atabaki was complicit in the MKO's activities.

[28]            Also, I note that while it was acknowledged by all parties that Dr. Bani-Torfi was an active member of the MKO, it seems even more important to note that he was the doctor of the Applicant. Therefore, a special relationship existed between the doctor and the Applicant. The nature of that relationship and the important level of control it may have granted Dr. Bani-Torfi over Mr. Atabaki in ensuring the latter's compliance with the MKO's wishes was not analysed by the panel, and it should have been. It was unreasonable of the panel to not explore that issue since it may have had an impact on the Applicant and his apparently limited knowledge of the MKO, a ground upon which the panel based its negative credibility findings.

(c) The panel's interpretation of Article 1F(a) of the Convention

[29]            Having made the above conclusions, it is unnecessary for me to broach this question. However, I note that the arguments raised by the Applicant in support of this last issue merely repeat his earlier arguments. The panel gave reasons in clear and unmistakable terms, with the exceptions that I have identified above. The panel found a "serious reason for considering" that Mr. Atabaki was a member of the MKO, though I have already explained why I believe that conclusion to be in error since the circumstances under which that conclusion was made were unreasonable. The panel does not need, as the Applicant has argued, to identify which purposes and principles of the United Nations are at issue; the purpose of Article 1F has been previously elucidated by the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982: "to exclude those individuals responsible for serious, sustained or systemic violations of fundamental human rights which amount to persecution in a non-war setting", and I do not believe the panel needed to explore this issue further.

[30]            The parties were asked whether they had any questions to submit for the purposes of certification, but they did not.

                                               ORDER

THIS COURT ORDERS THAT:

­                      This application for judicial review is granted;

­                      The decision of the panel dated August 27, 2004, is set aside and the matter is sent back for redetermination before a newly-constituted panel;

­                      No question will be certified.

                       "Simon Noël"                                                                                                                                 Judge

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  IMM-8000-04

STYLE OF CAUSE: ROOZBEH KIANPOUR ATABAKI v. MCI

PLACE OF HEARING:                                 Vancouver, BC

DATE OF HEARING:                                   July 5, 2005

REASONS FOR JUDGMENT:                    NOËL, J.S.

DATED:                                                          July 11^th, 2005

APPEARANCES:

Ms. Negar Azmudeh                                         For Applicant

Ms. Helen Park                                                 For Respondent

SOLICITORS OF RECORD:

Embarkation Law Group                                               For Applicant

Vancouver, British Columbia                                         

Morris Rosenberg                                             For Respondent

Deputy Attorney General of Canada