Date: 20100223
Docket: IMM-3681-09
Citation: 2010 FC 198
Ottawa, Ontario, February 23,
2010
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
EDD
ADBI ISMEAL
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the
Immigration Division of the Immigration and Refugee Board (the Board) dated
June 29, 2009, wherein the Board found the applicant inadmissible to Canada
under paragraph 34(1)(f) of the Act.
Factual Background
[2]
The
applicant is a 37 year old citizen of Ethiopia who described himself
as an agitator and supporter of the OLF who recruited people to work for the
OLF and he collected/donated money for/to the organization.
[3]
In
late 1997, the applicant was arrested and detained by Ethiopian authorities as
a suspected supporter of the OLF. Shortly after being released from prison, the
applicant fled Ethiopia and came to Canada.
[4]
The
applicant entered Canada on March 17, 1998. He applied for permanent
residence as a Convention refugee in September 1998. In his Personal
Information Form (PIF), the applicant alleged he was “targeted because of [his]
activities in support of the O.L.F.” and that he would face imprisonment or
death if he returned to Ethiopia because of his
involvement in the Oromo Liberation Front (OLF). The applicant indicated he was
a supporter of the OLF from 1991 until 1998. In addition to criminal and
medical screening, the applicant was investigated for inadmissibility on
security grounds. The applicant was interviewed by Canadian Security Intelligence
Service (CSIS) on August 31, 1999.
[5]
On
October 1, 2003, the applicant was interviewed to determine whether he was
inadmissible on security grounds. The applicant confirmed he had become a
supporter of the OLF when he was 20 years old in 1991, as the new regime did
not favour the Oromo People. He explained his activities consisted of
collecting money to support the OLF and he agreed this money was presumably
used to help fighters in the hills, although he was never sure what the money
was used for. The applicant also donated some money himself. The applicant explained
he was not familiar with the term “agitator” and that his PIF had been
translated into English for him. The applicant stated he never organized
marches, demonstrations or strikes and he had never been involved in violence
or carried a weapon.
[6]
The
officer concluded she had reasonable grounds to believe the applicant was a
“member” of the OLF, an organization for which there are reasonable grounds to
believe had engaged in terrorism. The applicant was therefore found inadmissible
pursuant to subsection 34(1)(f) of the Act. However, the officer made a
recommendation to the effect that the applicant deserved consideration for
ministerial relief under subsection 34(2) of the Act given that “his
involvement with the organization was minimal and I do not believe we have
evidence to believe he himself was involved in violence”.
[7]
On
October 18, 2007, ministerial relief was denied. On November 26, 2008, this
Court set aside the negative ministerial relief decision, finding there had
been inadequate assessment in the balancing of all the factors and evidence at
play in the applicant’s case. The Court did not comment the officer’s
inadmissibility finding (Ismael v. Canada (Minister of
Public Safety and Emergency Preparedness), 2008 FC 1366, 77 Imm.
L.R. (3d) 310).
[8]
The
question of the applicant’s admissibility was subsequently referred to the Board
for determination and an oral hearing was held on March 13, 2009.
Impugned Decision
[9]
In
a decision dated June 29, 2009, the Board found the applicant inadmissible to
Canada because there are reasonable grounds to believe he was a member of an
organization that engaged in acts of terrorism contrary to subsection 34(1)(f)
of the Act.
[10]
The
Board concluded that the OLF engages and has engaged in acts of terrorism as
understood by the Supreme Court of Canada in Suresh v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 and in the Criminal
Code of Canada, R.S., 1985. c. C-4. This conclusion is based on:
bombings of transportation infrastructure attributable to the national
organization; the killing of civilians as part of religious and ethnic conflict
by local factions of the OLF that, based on national facilitation, can be attributed
to the entity as a whole; and the fact that the applicant’s OLF faction in Dire
Dawa was responsible for one or more terrorist acts.
[11]
Regarding
the applicant’s membership in the OLF, the Board noted that the Federal Court
of Appeal rejected a “significant level of integration” test and adopted a
broad definition of the term “member” based on the nature and duration of the
person’s activities with the organization (Poshteh v. Canada (Minister of
Citizenship and Immigration), 2005 FCA 85, [2005] 3 F.C. 487).
[12]
The
Board found the OLF is an organized political and paramilitary organization
distinct from the general Oromo population. The Board noted the applicant
clearly indicated he was a member of the OLF both in his PIF and during his
oral testimony. The Board found the applicant raised funds and engaged in
recruiting voluntarily over a seven year period and he only left the
organization when he was forced to leave the country. The Board found the applicant
contributed to the material support of the group. Although he did not have a
formal title and he did not deal directly with the OLF leadership, the Board
concluded the nature and duration of this involvement met the broad definition
of membership for the purposes of subsection 34(1)(f) of the Act.
Issues
[13]
The
only issue raised by the applicant is whether the Board erred in finding that
there were reasonable grounds to believe the applicant was a “member” of the
OLF for the purposes of subsection 34(1)(f) of the Act.
Relevant Legislation
[14]
The
following provision of the Act is relevant to this proceeding:
|
34. (1) A permanent resident or a foreign
national is inadmissible on security grounds for
(a)
engaging in an act of espionage or an act of subversion against a democratic
government, institution or process as they are understood in Canada;
(b)
engaging in or instigating the subversion by force of any government;
(c)
engaging in terrorism;
(d)
being a danger to the security of Canada;
(e)
engaging in acts of violence that would or might endanger the lives or safety
of persons in Canada; or
(f)
being a member of an organization that there are reasonable grounds to
believe engages, has engaged or will engage in acts referred to in paragraph
(a), (b) or (c).
|
34. (1) Emportent interdiction de
territoire pour raison de sécurité les faits suivants :
a) être l’auteur d’actes d’espionnage ou
se livrer à la subversion contre toute institution démocratique, au sens où
cette expression s’entend au Canada;
b) être l’instigateur ou
l’auteur d’actes visant au renversement d’un gouvernement par la force;
c) se livrer au terrorisme;
d) constituer un danger pour la sécurité
du Canada;
e) être l’auteur de tout acte de
violence susceptible de mettre en danger la vie ou la sécurité d’autrui au Canada;
f) être membre d’une
organisation dont il y a des motifs raisonnables de croire qu’elle est, a été
ou sera l’auteur d’un acte visé aux alinéas a), b) ou c).
|
Standard of Review
[15]
The
Federal Court of Appeal has previously held the determination by the Board of
whether a person is a “member” of an organization referred to in subsection
34(1)(f) of the Act is a question of mixed fact and law reviewable on a
standard of reasonable simpliciter (Poshteh; Yamani v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1457, 304 F.T.R. 222).
Following Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190, the applicable standard is reasonableness.
Analysis
[16]
The
Court notes that whether there are reasonable grounds to believe the OLF
engages, has engaged or will engage in terrorist acts is not in issue. The
Board found there were reasonable grounds to so believe and this determination
is not challenged by the applicant. The only issue before the Court is whether
the Board erred in finding there were reasonable ground to believe the applicant
was a member of the OLF.
[17]
The
applicant acknowledges he indicated on both his PIF and his application for
permanent residence he was a member of the OLF between 1991 when the OLF was
part of the transitional government in Ethiopia and when he fled Ethiopia in 1997.
However, the applicant submits that merely stating that one is a member of a
given organization does not result in that individual actually being considered
a member of that organization in law for the purposes of subsection 34(1)(f)
of the Act.
[18]
The
applicant’s main concern is that the Board’s conclusion would amount to
stretching the broad definition of membership provided in Canadian case law to
an unreasonable limit in his case. At the hearing, counsel for the applicant
made the argument that the applicant was merely a sympathiser. His level of
participation in the organisation was so low that he fell short of being a
member. In other words, the applicant was not engaged and therefore not a
member.
[19]
S.
34(1) of the act is a general security provision. The wording of s. 34(1)(f)
of the Act is clear and being a “member” of an organization for which there are
reasonable grounds to believe engages, has engaged or will engage in a number
of acts referred to in paragraphs 34(1) (a), (b) or (c) is
sufficient for a permanent resident or a foreign national to fall within the
ambit of s. 34(1)(f) of the Act. The Federal Court of Appeal has adopted
a broad definition of the term “member” based on the nature and duration of a
person’s activities within the organization (Poshted).
[20]
This
notion of membership has been given an unrestricted and broad interpretation in
Canadian case law, particularly where issues of Canada’s national
security are involved. An individual need not be an actual card-carrying or
formal member of an organization, nor is it necessary that the person concerned
to have an obligation to participate in acts of terrorism. In Chiau v.
Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297, 265
N.R. 121 at par. 25, 55-62, the Federal Court of Appeal stated that being a
member means simply “belonging” to an organization (see also Poshteh at
par. 27 to 32; Suresh (Re), (1997), 140 F.T.R. 88, 75 A.C.W.S. (3d) 887
at par. 21-23; Ahani (Re), (1998), 146 F.T.R. 223, 79 A.C.W.S. (3d) 601
at par. 21; Qureshi v. Canada (Minister of Citizenship and Immigration),
2009 FC 7, 78 Imm. L.R. (3d) 8 at par. 19-25; Kanendra v. Canada (Minister of
Citizenship and Immigration), 2005 FC 923, 47 Imm. L.R. (3d) 265 at
par. 21-26; Denton-James v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1548, 262 F.T.R. 198 at par.
12-16; Canada (Minister of
Citizenship and Immigration) v. Owens, (2000), 191 F.T.R.
119, 100 A.C.W.S. (3d) 639 at par. 16-18).
[21]
Following
a review of the record, the Court is satisfied that the Board’s finding that
the applicant was a member of the OLF is not unreasonable. Although counsel for
the applicant pointed to the fact that the applicant never knowingly met a
member of the OLF, or attended a rally in support of the OLF, or that he was
never assigned responsibilities within the OLF, the Court is of the view that the
Board carefully analyzed the applicant’s activities and contributions to the
OLF, particularly his own explanations provided in his PIF and his application
for permanent residence, where the applicant stated he was an agitator and
supporter of the organization. Among other things, for a period of seven years
(1991-1998), the applicant raised funds for the organization, voluntarily
engaged in recruiting other members/supporters, and left the organization only
when he was forced to leave the country. The evidence thus supports the
allegation that the applicant contributed to the material support of the
organization.
[22]
In
any given case, it will always be possible to say that although a number of
factors support a membership finding, a number point away from membership. It
is undoubtedly the case in this file. However, on the basis of the evidence on
record, the Court is in agreement with the respondent that the level of
engagement of the applicant is sufficient to conclude that he belonged to the
OLF. An assessment of these facts is within the expertise of the Board and I
cannot find in the finding of the facts by the Board a reviewable error.
[23]
Based
on the above-mentioned case law, the Court is of the view that s. 34(1)(f)
of the Act does not necessitate active participation. On the facts on this
case, the engagement of the applicant, albeit a low one, was sufficient to fall
within the broad interpretation of membership as contemplated in s. 34 of the Act.
The applicant’s activity was not minimal or marginal and was sufficient to
constitute membership for the purposes of subsection 34(1)(f) of the
Act.
[24]
Despite
counsel for the applicant’s able arguments, they have fallen short of
convincing the Court. It is the Court’s view that the Board based its
conclusion on a thorough assessment of the evidence. The Board’s decision is
justified, transparent, and intelligible, and it falls within the range of
acceptable outcomes which are defensible with respect to the facts and law.
[25]
For
these reasons, the application for judicial review will be dismissed.
[26]
The
applicant may apply for ministerial relief under subsection 34(2) of the Act. Under
subsection 34(2) of the Act, membership in a terrorist organization does not
constitute inadmissibility if the individual in question satisfies the Minister
that their presence in Canada would not be detrimental to the national
interest. Thus, under subsection 34(2), the Minister has the discretion to
exclude the individual from the operation of subsection 34(1)(f) of the
Act.
[27]
There
are no questions of general importance to be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed. No question is certified.
“Richard
Boivin”
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