Hussenu v. Canada (Minister of Citizenship and Immigration), 2004 FC 283

Date: 20040226

Docket: IMM-4926-03

Citation: 2004 FC 283

Ottawa, Ontario, this 26^th day of February, 2004

Present:           The Honourable Justice James Russell                                  

BETWEEN:

                                           SULEIMAN MOHAMMEDSAE HUSSENU

(AKA SULEIMAN MOHAMMED SAED HUSSENU)

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review of the decision of Ms. Mary Ann Stoddart, a member of the Immigration Division of the Immigration and Refugee Board ("Member"), dated June 12, 2003 ("Decision"), wherein the Member determined that Suleiman Mohammedsae Hussenu (the "Applicant") was inadmissible to Canada pursuant to s. 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA").             

BACKGROUND

[2]                 The Applicant is an Eritrean citizen and a farmer by profession.

[3]                  In October 2001, the Applicant made a claim for refugee protection in Canada based upon his fear of persecution, including imprisonment, in Eritrea because of his political opinion, namely his connections to the Eritrean Liberation Front ("ELF").

[4]                 On April 5, 2002, a report under s. 27 of the former Immigration Act, R.S.C., 1985, c. I-2 as amended ("the former Immigration Act) concluded that the Applicant was a person described under s. 19(1)(f)(iii)(B) of the former Immigration Act, as someone "... 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... ." On the same day, a direction was made for an inquiry to be held under the former Immigration Act for a determination of these allegations.

[5]                 Prior to the holding of the inquiry, IRPA came into force. Under s. 34(1)(f) of IRPA the Member had to determine if the Applicant was inadmissible to Canada for "being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in [terrorism]."

[6]                 At his inquiry, the Applicant testified that he had joined the ELF in 1961, had fled from Eritrea to Sudan in 1975, and had returned to Eritrea in 1991. He also testified that he had remained active in the ELF while in the Sudan, but that he had ceased involvement upon his return to Eritrea in 1991. Evidence was presented at the admissibility hearing that people with the Applicant's profile are subject to persecution in Eritrea.

[7]                 At the inquiry, the Minister presented evidence to the effect that in 1969 and 1971 "ELF members committed a number of acts of sabotage and hijacking of Ethiopian airliners" and that the "ELF also undertook guerilla warfare inside Eritrea."

[8]                 The Applicant testified that he had never been involved in any fighting in Eritrea. He said that his activities (which ceased in 1991) had been limited to making financial contributions, attending political meetings, and distributing ELF pamphlets. He also testified that he was completely unaware of any act of hijacking of Ethiopian airlines carried out by the ELF.

[9]                 On June 12, 2003, the Member determined that the Applicant was inadmissible under s. 34(1)(f) of IRPA because there were "reasonable grounds to believe that [the Applicant] was a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts of terrorism."

[10]            A deportation order was issued.

[11]            Although a person is prima facie inadmissible under s. 34(1)(f) of IRPA, s. 34(2) provides an exception to this. Under s. 34(2), foreign nationals are not inadmissible if they satisfy the Minister that their presence would not be detrimental to the national interest.

[12]            The Applicant alleges that at no time prior to the determination of inadmissibility and the issuance of the deportation order was he informed by the Minister of his right to apply for an exemption from the inadmissibility provision on the grounds that his presence in Canada would not be detrimental to the national interest. On the contrary, he says he was told by the Member at the commencement of the admissibility hearing that, if the allegation of inadmissibility was established, the Member would be required automatically to make a deportation order. Consequently, the Applicant says he never made any representations on the applicability of s. 34(2) of IRPA.

RELEVANT LEGISLATION

[13]            The relevant provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, reads as follows:

[14]            The applicable inadmissibility provision under the former Immigration Act R.S.C. 1985, c. I-2 as amended, reads as follows:

[15]            Section 27(1) of the former Immigration Act provides that a report be provided in respect of a person who falls under the inadmissible class:

ISSUES

[16]            The Applicant raises the following issues:

Is there a duty on the Minister prosecuting a hearing in relation to an allegation that a person is described in s. 34 of IRPA to advise the claimant of the exemption in s. 34(2) of IRPA?

Is there a duty on a Member of the Immigration Division conducting a hearing in relation to the allegation that a person is described in s. 34 of IRPA to advise the claimant of the exemption in s. 34(2) of IRPA?

Did the Member violate the Applicant's rights under Section 7 of the Charter by determining the Applicant to be inadmissible in the absence of any evidence that the Minister had made a determination as to whether the exemption under s. 34(2) of IRPA applied?

Did the Member violate the Applicant's rights under Section7 of the Charter in determining that the Applicant was inadmissible when the Applicant had not been informed by the Minister of his right to make an application under s. 34(2) of IRPA for a determination that his presence in Canada would not be detrimental to the national interest?

Did the Member misinterpret the provisions of s. 34 of IRPA in determining that the Applicant was inadmissible to Canada because of his past membership in the ELF?

Did the Member commit a reviewable error by finding that the Applicant ought to have known about the hijackings of ELF because this was the reason, in part, why a curfew had been imposed when the documentary evidence referred only to guerrila activity as being the reason for a partial curfew?

Are all hijackings terrorist acts?

Is a person who is no longer a member of an organization described in s. 34(1)(f) of IRPA inadmissible?

ANALYSIS

What is the applicable standard of review to apply to the Decision of the Panel?

[17]            The Court must first determine the appropriate standard of review for this case.

[18]            In Canada (Minister of Citizenship and Immigration) v.Gureghian, 2003 FCT 675, at paras. 15-16, Gauthier J. concluded that the appropriate standard of review for this type of determination is that of correctness:

15.       In Chieu v. Minister of Citizenship and Immigration, [2002] 1 S.C.R. 84 , the Supreme Court of Canada held that the appropriate standard of review applicable to a decision of the IAD on a question of law is correctness.

16.       Although the interpretation of clause 19(1)(f)(iii)(B) of the Act raises a question of law that is different from the one reviewed in Chieu, supra, I find that the correctness standard also applies here.

[19]            Because the issues raised by the Applicant involve questions of law, I believe the appropriate standard of review to apply in this case is the correctness standard.

The Duty on the Minister and the Member

[20]            The Applicant argues that there is a duty on the Minister prosecuting a hearing under s. 34 of IRPA to advise the claimant of the exemption that exists under s. 34(2) of IRPA for those persons who may be deemed inadmissible under s. 34(1)(f) but who can satisfy the Minister that their presence in Canada would not be detrimental to the national interest.

[21]            The Applicant takes the position that on the facts of this case he is in a distinctly different position from the established jurisprudence that holds that there is no obligation on the Minister to provide notice or information to an applicant concerning his or her procedural or substantive rights and options.

[22]            The Applicant argues for a higher obligation on the Minister in this case because the duty of procedural fairness is flexible and contextual and, in this instance, the Applicant's whole case was founded upon his innocence of any acts of terrorism committed by the ELF, of which he had been a member, and the s. 3 objectives of IRPA favour the imposition of an obligation to provide someone in the position of the Applicant with information and notice of the s. 34(2) exemption.

[23]            To support this position, the Applicant refers the Court to the words of McDonald J.A. in the Federal Court of Appeal decision of Siad v. Canada (Secretary of State), [1997] 1 F.C. 608 F.C.J. No. 1575 at para. 14:

In Singh et al. v. Minister of Employment and Immigration, the Supreme Court of Canada held that a high standard of natural justice applies in cases such as this one, where the Minister takes an adversarial position in relation to a refugee claimant.

[24]            The Applicant also refers to the decision of the Federal Court of Appeal in Nguyen v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 232 at pages 246-247, [1993] F.C.J. No. 702, for support:

36. More recently still, in Choi v. Canada (Minister of Employment and Immigration), the appellant had suffered prejudice through not being immediately given the proper form which, if it had been timely filed, would have resulted in his receiving a more favourable assessment. MacGuigan J.A., speaking for the Court, quoted the latter part of the above citation from Tsiafakis, supra, and said:

A similar correlative duty might, perhaps, be said to exist in the case at bar (the Motions Judge was, I believe, correct in inferring from the Act itself a right in claimants to apply), but, at the very least, when the Canadian Government, through its agents, undertakes to supply information to immigration applicants as to how to become immigrants, it assumes a duty to provide this information accurately. This does not imply that Canadian authorities must provide a detailed exegesis of Canadian immigration law and procedures, or legal advice to prospective immigrants as to the legal significance of the available options, but it does mean that the immigration authorities have an obligation in fairness to provide basic information on the methods of application, and to make available the appropriate forms. [Emphasis added.]

37. In my view, there can be no doubt whatsoever that the visa officers at the Canadian Commission in Hong Kong were under a duty to furnish the appellant Luong Manh Nguyen with an application for landing (form IMM 8) upon request. No other conclusion can be drawn from the cases cited. Is it enough for the Minister to say in reply that because there has been no express request for the form there is no duty? I think not. The implication from the sponsorship undertaking was unmistakable and irresistible that the appellant wished to apply for landing. The Immigration Manual shows that such inference is drawn as a matter of course. The sponsorship undertaking also shows, however, that the appellant was not a free agent: his address is given as being at the Shumshui Po Detention Centre in Hong Kong ... . In those circumstances he could hardly be expected to present himself at the Commission office. The Immigration Manual establishes that it is current practice to send the application form. The evidence establishes that persons in the appellant's position are entitled to send and receive letters and indeed there are a number of letters from him in the material. In my view, therefore, the Minister had a request for the form and had to hand the means to give effect to it.

[25]            In my opinion, the Applicant is correct in asserting that a high standard of natural justice applies in cases where the Minister takes an adversarial position in relation to a refugee claimant, but this does not impose an obligation on the Minister, in a case such as the present, to notify and advise the Applicant concerning a specific exemption that might be available to him under IRPA. The relevant provision appears in the Act and is there for everyone to see. The Applicant was represented by legal counsel at all material times. He had a right to raise all material issues. The situation in the case at bar is very different from the one that confronted the Court in Nguyen, supra, and, in my opinion, that case does not assist the Applicant.

[26]            Provided the Applicant had full access to his rights under IRPA, and was not prevented from raising the s. 34(2) exemption, there could be no breach of procedural fairness. If the Applicant's counsel failed to raise this issue, that omission cannot be laid at the feet of the Minister by invoking a duty to provide notice of an exemption that is perfectly apparent on the face of the statute.

[27]            I see no reason, on the facts of this case, to deviate from the established jurisprudence that places the onus upon an applicant to raise and provide evidence on all material matters. I believe that the words of Gauthier J. Gureghian, supra, at paras. 20 and 21 are instructive in this regard:

20. I find that these decisions, dealing with other similar provisions of the Act, are persuasive authorities on the proper interpretation of clause 19(1)(f)(iii)(B). They indicate that the IAD was wrong when it decided that for an individual to be declared inadmissible under clause 19(1)(f)(iii)(B), the Minister has to be satisfied that their admission would be detrimental to national interest.

21. The Minister had no obligation to consider the exception of clause 19(1)(f)(iii)(B) unless Mr. Gureghian made a specific request in that respect and provided him with satisfying evidence that his admission would not be detrimental to the national interests. The IAD did not find that Mrs. Avedian Gureghian's husband had made such a request and nor did it base its decision on such a finding.

[28]            Because the Applicant did not raise the exemption under s. 34(2) he is now arguing that the Minister had an obligation to tell him about it. In my opinion, there is no such obligation. The onus is upon the Applicant and his counsel to raise all material issues and satisfy the Minister on them.

[29]            Nor am I persuaded that the Applicant did raise s. 34(2) in this case by implication when he based his claim upon his innocence of the acts in question. The Member specifically found in the Decision that "[n]o evidence was presented that [the Applicant] has satisfied the Minister pursuant to s. 34(2) and the mere passing of time does not satisfy me that this would exempt [the Applicant] from the provisions of s. 34(1)(f)". I see no reason to disagree with this finding of fact.

[30]            For similar reasons, I am of the opinion that there was no duty or obligation on the Member to notify or advise the Applicant concerning the availability of the exemption under s. 34(2) of IRPA.

[31]            In my opinion, this effectively disposes of the principal issues raised by the Applicant. However, there are two further peripheral matters that also need to be addressed.

The Credibility Finding

[32]            The Applicant argues that the Member found that he ought to have known of the hijackings because this was the reason, in part, that a curfew had been imposed by the Ethiopian army in 1969 and 1970. The Applicant says that the documentary evidence referred only to guerilla activity as being the reason for a partial curfew. The Applicant says this was a reviewable error.

[33]            In connection with this point, the Applicant also says that the Member erred in law in finding that any and all hijackings were terroristic and in failing to have regard to the definition of terrorist activity found in the Criminal Code, which indicates that a political element must be involved.

[34]            In the Decision, the Member says that "I was not persuaded by counsel's arguments that [the Applicant] was unaware of the activities of the ELF and was merely an innocent Member." The Member does emphasize the hijackings but concludes generally that "[t]here was no evidence before me that work as a farmer would explain a lack of knowledge of activities of an organization such as the ELF of which [the Applicant] was a member." The reference to the curfew does not limit the general conclusion that the Member did not " ... find it credible that a member of the ELF for 30 years, living in Eritrea during the 1969 to 1975 period would be unaware of these hijackings."

[35]            This was a finding that it was open to the Member to make. The Member emphasises the hijackings but also refers to the activities of the ELF generally as well as the definition of terrorism in 2002 SCC 1">Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 and decides that the ELF engaged in terrorist acts of which the Applicant was aware.

[36]            Nor does the Member find that all hijackings are terroristic. The Member is guided by the 2002 SCC 1">Suresh, supra, description of terrorism and refers to " ... a number of acts of sabotage and the hijacking of Ethiopian airliners."

[37]            I find the Member committed no reviewable error in this regard.

Ceasing to be a Member of a Terrorist Organization

[38]            The Applicant finally argues that he was not inadmissible under s. 34(1)(f) of IRPA because he had ceased to be a Member of the ELF.

[39]            Section 34(1)(f) of IRPA does use the words "being a Member of an organization ...," but s. 33 specifically provides that " ... facts that constitute inadmissibility under ss. 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts from which there are reasonable grounds to believe that they have occurred, are occurring or may occur." [emphasis added]. If the Applicant's argument concerning s. 34(1)(f) were correct on this issue, then s. 34 would not apply to a terrorist who resigns his or her membership in a terrorist organization immediately prior to making a refugee claim. It could not have been Parliament's intent to exclude such an applicant from the purview of s. 34(1)(f) and s. 33 makes this position clear.

[40]            There was no reviewable error in this regard.

Certification Issues

[41]            The Applicant has raised the following issues for certification:

1.          Are all hijackings terrorist acts?

2.          Is there a duty in general on the Minister prosecuting a hearing in relation to the allegation that a person is described in s. 34 to advise the subject of the hearing of the exemption in s. 34(2)? Is there such a duty if the person is a refugee claimant?

3.          Is there a duty in general on a member of the Immigration Division conducting a hearing in relation to the allegation that a person is described in s. 34 to advise the subject of the hearing of the exemption in s. 34(2) if the person is a refugee claimant? Is there such a duty if the person is a refugee claimant?

4.          Is a person who is no longer a member of an organization described in s. 34(1)(f) of the Immigration and Refugee Protection Act inadmissible? In other words, does "being" as it is used in s. 34(1)(f) of the Immigration and Refugee Protection Act include past membership or only present membership?

[42]            I find that none of these questions are appropriate for certification in this application for the following reasons:

1.          Question one does not arise on the facts of this case and would not be dispositive of the appeal;

2.          The jurisprudence is already clear that there is no such duty on the Minister;

3.          The jurisprudence is already clear that there is no such duty on the Member; and

4.          Section 33 of IRPA is clear that facts that have occurred can constitute being a member of an organization under s. 34.

THE COURT ORDERS THAT:

1.          The Application is dismissed.

2.          There are no questions for certification.

_____________

"James Russell"          

JFC

                                                            FEDERAL COURT

                                  Names of Counsel and Solicitors of Record

DOCKET:                              IMM-4926-03

STYLE OF CAUSE:            SULEIMAN MOHAMMEDSAE HUSSENU

                                                                                                                                          Applicant

- and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

                                                                                                                                       Respondent

PLACE OF HEARING:       TORONTO, ONTARIO

DATE OF HEARING:         TUESDAY JANUARY 7, 2004

REASONS FOR ORDER

AND ORDER BY:                 The Honourable Mr. Justice Russell

DATED:                                  February 26, 2004                    

APPEARANCES BY:           Mr. Micheal Crane

For the Applicant

Mr. Ian Hicks

For the Respondent

SOLICITORS OF RECORD: Ms. Catherine Bruce

Toronto, ON

For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent

FEDERAL COURT OF CANADA

                                                       Date: 20040226

        Docket: IMM-4926-03

BETWEEN:

SULEIMAN MOHAMMEDSAE HUSSENU

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

                                                             Respondent

REASONS FOR ORDER

AND ORDER