Date: 20100317
Docket: IMM-3310-09
Citation: 2010 FC 303
Ottawa, Ontario, March 17,
2010
PRESENT: The
Honourable Frederick E. Gibson
BETWEEN:
MASHHOUR SALEH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
ORDER AND ORDER
Introduction
[1]
These
reasons follow the hearing at Toronto on the 10th of February, 2010,
of an application for judicial review of a decision of an Immigration Officer,
dated the 15th of June, 2009, wherein the Immigration Officer
determined the Applicant to be inadmissible to Canada under paragraphs 36(2)(a)
of the Immigration and Refugee Protection Act (“IRPA”)
and paragraph 34(1)(f) of IRPA by reason, in the case of the first citation,
the Applicant’s conviction in Canada on the 9th of March, 2007 for
theft under $5,000 and, in the case of the second citation, for being a member
of the General Union of Palestinian Students (“GUPS”), the Fatah faction of the
Palestinian Liberation Organization (“PLO”) and the Popular Committee of the
PLO, organizations which, in the view of the decision-maker, there are
reasonable grounds to believe engaged, have engaged or will engage in acts of
terrorism referred to in paragraph 34(1)(c) of IRPA.
[2]
The
portion of the decision under review consisting of a determination that the
Applicant is inadmissible to Canada by reason of his conviction in Canada for theft
under $5,000 was not at issue on this application for judicial review.
[3]
Prior
to the hearing of this application for judicial review, the Respondent filed a
motion pursuant to section 87 of IRPA seeking redaction of certain information
on the Court File in this matter. In an Order dated the 1st of
February, 2010, the Chief Justice recited that the information sought to be
redacted “... is of little, if any, relevance to the outcome of this proceeding
and that some of the redacted information is disclosed directly or indirectly
in the non-redacted portion of the tribunal record”. In the result, he
continued the Respondent’s motion sine die. The motion and the
disposition thereof by the Chief Justice was not raised at hearing. In the
result, the Respondent’s motion will be granted in the order herein.
Background
[4]
In
his affidavit filed in support of this application, the Applicant attests in
part:
...
I was born on September 26, 1959 as a refugee
in Ein-el-Halwe Camp in Lebanon. I am a stateless refugee in
Lebanon. I left Lebanon in November
1993 and came to Canada and made a refugee claim. My
refugee claim was denied in approximately 1996 but I was determined by the
Lebanese Embassy to not be able to return to Lebanon as I was born of
Palestinian parents and do not have status there. I was thus a stateless
person.
I remain single and have never married or
had any children. My parents remain in the Palestinian refugee camps in Lebanon, but my siblings are now
living as refugees in Syria, Abu
Dhabi, Saudi
Arabia and Qatar. None of them have [sic]
any permanent status in these countries.
While in Lebanon, I was never actively involved with any
Palestinian organizations or political parties. In 1979 I joined the General
Union of Palestinian Students (GUPS) for the sole purpose of obtaining a
student visa to study in Bulgaria. At that time it was the
only way for me to be allowed to leave the Palestinian camp in Lebanon and be able to study abroad.
I also joined Fatah in 1982 in order to receive a scholarship from them to
continue my studies. [in fact, the Applicant received his scholarship from Bulgaria, apparently on the
recommendation of Fatah].
I did not, however, have any active
involvement with either of these groups or with any other faction of the PLO.
I remained in Bulgaria as a student for nine years
and then returned to Lebanon in 1989. Upon my return I
had no association whatsoever with either the General Union of Palestinian
Students (GUPS) or the Fatah faction of the PLO and I considered my membership
with them to have terminated at that point.
I stated that once I returned to Lebanon
in 1989 from Bulgaria I worked at a hospital in Lebanon and for two yeas volunteered
with the Popular Committee which was a social branch of the PLO helping to
regulate Palestinian affairs in the Lebanese camps.
At no time was I an active member of any
Palestinian political organization. I took part in no activities of these
groups and was certainly not involved in any violent actions. I merely joined
in order to receive a student visa and scholarship to study in Bulgaria.
I have been residing in Canada since November 1993. Over
the past 16 years I have been continuously employed. I established my own
business, ... in July of 2000 which I continue to manage until today. I have
remained a self-sufficient and contributing member of Canadian society from the
time of my arrival.
...
[5]
After
the Applicant returned to Lebanon from Bulgaria, and until
he left for Canada, he was employed in a refugee camp in Lebanon as an X-ray
Technician.
The Legislative
Framework
[6]
Section
33, the opening words of subsection 34(1) and paragraphs (c) and (f) of that
subsection, and subsection 34(2) of IRPA, read as follows:
|
33. The facts that
constitute inadmissibility under sections 34 to 37 include facts arising from
omissions and, unless otherwise provided, include facts for which there are
reasonable grounds to believe that they have occurred, are occurring or may
occur.
34. (1) A permanent
resident or a foreign national is inadmissible on security grounds for
...
(c) engaging in
terrorism;
...
(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).
(2) The matters referred to in subsection (1) do not
constitute inadmissibility in respect of a permanent resident or a foreign
national who satisfies the Minister that their presence in Canada
would not be detrimental to the national interest.
|
33. Les faits -
actes ou omissions - mentionnés aux articles 34 à 37 sont, sauf disposition
contraire, appréciés sur la base de motifs raisonnables de croire qu’ils sont
survenus, surviennent ou peuvent survenir.
Sécurité
34. (1) Emportent
interdiction de territoire pour raison de sécurité les faits suivants :
…
c) se livrer au
terrorisme;
…
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).
(2) Ces faits
n’emportent pas interdiction de territoire pour le résident permanent ou
l’étranger qui convainc le ministre que sa présence au Canada ne serait
nullement préjudiciable à l’intérêt national.
|
[7]
The issue relevant to this application and that was before
the decision-maker whose decision is here under review was whether the
Applicant, before coming to Canada, was a member of an organization or
organizations that there are reasonable grounds to believe engages, has engaged
or will engage in terrorism. The Applicant’s background and engagement with
various organizations associated with the PLO was essentially not in dispute.
The
Reasons for the Decision Under Review
[8]
The decision-maker concluded that the Applicant obtained
benefit from his membership in GUPS and Fatah. He wrote:
The applicant had
stated during the interview he joined GUPS and Fatah in 1979 and 1982,
respectively, to be entitled to receive a scholarship. His name was presented
by GUPS for approval to study in Bulgaria in 1980 or 1981. He
stated permission was required from the liberation movement to study in Bulgaria; he added
the movement fought for Palestinians. The movement was the Palestinian
Liberation Organization (PLO) headed by Yasir Arafat. Yasir Arafat was the
head of the PLO, though there were many factions. He studied at Sofia
University, Bulgaria from 1981 to 1983, Burgas, Bulgaria
from 1983 to 1985 and Marmalaiva Brodef, Bulgaria from 1984
or 1985 to 1987.
Mr. Saleh was asked
why GUPS and the PLO selected him for a scholarship. He explained he was required
to explain his economic situation to GUPS as part of the selection process.
GUPS in turn prepared a list of scholarship candidates for ultimate selection
by the PLO.
The applicant was
asked directly why he received an academic scholarship from GUPS/PLO for six
(6) years despite not completing his programs at two schools in Bulgaria because of
his difficulties with the first two programs he was enrolled in. He responded
saying the PLO was not the actual sponsor of his scholarship rather that the
Bulgarian government paid for the scholarship. He explained a humanitarian
program existed for Palestinian refugee students which was supported by Soviet
Block countries, such as Bulgaria, Russia/USSR, Romania, East
Germany/GDR, and Yugoslavia.
When questioned
further about the scholarship arrangements he explained the Bulgarian
government paid his tuition because he was presented to them by the PLO.
[9]
With respect to the Fatah faction of the PLO, the
decision-maker found:
The Fatah faction was
founded in the late 1950s by Yasir Arafat and others. Its original doctrine
was a rejection of the legitimacy of the State of Israel and it espoused
violence to force Israelis out of greater Palestine. Fatah
conducted covert Palestinian commando attacks against Israel. Fatah
and the PLO relocated their operations to Lebanon after their expulsion from Jordan after
September 1970 or commonly called ‘Black September’. Fatah and the PLO
operated in Lebanon until Israel’s 1982 invasion of Lebanon forced the
PLO and Fatah to relocate through out (sic) the Middle East and North
Africa.
During the 1960s and
1970s Fatah offered training to several terrorist and insurgent groups in
Europe, the Middle East, Asia and Africa. During the 1970s
Fatah itself carried out a number of terrorist acts in both the Middle East and
western Europe. Fatah launched its first attack on Israel in January
1965 from a PLO base in Lebanon. Notwithstanding efforts by Lebanese authorities to
suppress Palestinian guerrilla groups operating in Lebanon during the 1960s; Lebanon became a
centre for Palestinian guerrilla groups. Fatah emerged as the dominant
Palestinian liberation group, led by Yasir Arafat, and starting in 1967 it organized
an armed struggle against Israel’s occupation of the West Bank.
Fatah served as Yasir
Arafat’s power base within the PLO. Fatah sanctioned violence against the
state of Israel until the 1990s.
[10]
As previously noted, the Applicant became a member of a
Popular Committee of the PLO upon, or shortly after, his return to Lebanon from Bulgaria. With respect to the Popular Committees of which there were apparently a
number, the Officer wrote:
The Popular Committees
were a local function of the PLO operating as the political authority in
Palestinian refugee camps in Lebanon. The Popular Committees were de facto municipal
governments in Palestinian refugee camps by providing water, sanitation and
electricity. The Popular Committee replaced the traditional governing segment
of village and family elders with local PLO activists. The Popular Committee
had organized refugee camps in Lebanon and it coordinated military defenses of the camps during
attacks in 1976, 1982 and 1985 to 1987.
The Popular Committee
of the Ayn al-Huywah refugee camp in southern Lebanon condemned Syria’s attempts
in 1985 to confiscate guns and weapons from refugee camps in southern Lebanon. The
Popular Committee argued its need for guns to protect Palestinians in the camps
from outside forces. The Baghdad Voice of PLO in Arabic reported on July 22,
1985 about the Popular Committee and the maintenance of weapons.
The Popular Committee
warned against the eruption of a war against Palestinian camps in the Sidon
area, similar to the war waged against Palestinian camps in Beirut.
The statement
reiterated that the Palestinian masses rally around the PLO and its legitimate
command and that the Palestinians remained committed to the gun as a guarantee
safeguarding the lives of Palestinians in the camps.
The statement pointed
out that Palestinian masses in the Ayn al-Hulwah camp are determined to defend
themselves, that they will not put down their weapons, and that they will
confront all conspiracies taking place under any false slogan.
[italics in
the original, variations in the spelling of the
camp name in
this quotation and in the quotation in
paragraph [4]
are as in the originals]
[11]
The Officer noted that the Fatah faction of the PLO had
been reported to have committed terrorist acts against airlines, airports,
businesses, diplomatic missions, government facilities, military installations,
media outlets and private citizens starting in 1968. He went on to outline certain
of those acts and then noted that the PLO, as an organization, renounced
terrorism in 1993, the same year that the Applicant left Lebanon for Canada, when it signed the Oslo peace accord.
[12]
The Officer concluded that the Applicant had been a member of
GUPS, the Fatah faction of the PLO and a Popular Committee of the PLO and this
finding was not in dispute. The Officer further found that the Applicant
obtained a “large material benefit”, his ability to study abroad, from his
memberships in GUPS and the Fatah faction of the PLO. While acknowledging the
Applicant’s statements that his involvement in both groups was minimal, he
again returned to his concern that the Applicant received a very significant
benefit deriving from his membership in both organizations. The Officer
further concluded, and it was essentially not in dispute, that the Applicant
had been a member of a Popular Committee of the PLO, as a volunteer, after
returning to Lebanon from Bulgaria.
[13]
Finally, the Officer concluded on the issue of “engaging in
terrorism” that the Applicant’s limited activities in the GUPS, the Fatah
faction of the PLO and the Popular Committee of the PLO, as a member of such
organizations, constituted his membership in organizations that there are
reasonable grounds to believe have engaged in terrorism.
The
Issues
[14]
In the Memorandum of Argument filed on behalf of the
Applicant, counsel identifies two issues on this application for judicial
review, those being the following:
1. Did the Officer err in law by concluding that
mere membership in the PLO would be determinative in a finding of
inadmissibility pursuant to subsection 34(1) of IRPA? and
2. Did the Officer err in law by concluding that
the Applicant’s membership in GUPS and the Popular Committee is determinative
of his involvement in PLO groups that engaged in terrorism?
The question of standard
of review of course remains and I will deal with it first and very briefly.
Analysis
Standard of Review
[15]
In Ugbazghi v. Canada (Minister of Citizen and Immigration), Justice Dawson, then of this Court, wrote at paragraph [36] of her reasons:
The assessment of
“membership” in paragraph 34(1)(f) of the Act has traditionally been reviewed
on the reasonableness simpliciter standard. See: Poshteh v. Canada (Minister
of Citizenship and Immigration), [2005] 3 F.C.R. 487 (F.C.A.), at paragraph
23. This standard of review reflected the factual element present in questions
of membership and the expertise that officers possess when assessing
applications against the inadmissibility criteria contained in subsection 34(1)
of the Act. In my view, following the decision of the Supreme Court of Canada
in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, deference remains
appropriate and the applicable standard of review is reasonableness. See: Dunsmuir,
at paragraphs 51 and 53.
[16]
I adopt the foregoing brief analysis and conclusion as my
own.
“Membership” and
Inadmissibility
“Membership” in the PLO through membership in the Fatah faction of the PLO,
membership in the GUPs
and membership in a Popular Committee
[17]
The Applicant acknowledged his membership in the Fatah
faction of the PLO, in GUPS and, following his return from Bulgaria, in a
Popular Committee of the PLO, but at the same time he noted he had laudable
motives for such memberships, his minimal involvement, at least in the Fatah
faction of the PLO and GUPS, and his lack of any engagement in violence.
[18]
Counsel for the Applicant urged that mere formal membership
should not inevitably constitute “membership” for the purposes of paragraph 34(1)(f)
of IRPA and cited in support of his position Justice Layden-Stevenson in Khalil
v. Canada (Minister of Citizenship and Immigration) where the learned
Justice, then a member of this Court, wrote at paragraph [32] of her reasons that
“... not all Palestinians are deemed inadmissible [to Canada] when they seek
permanent residence in Canada ...” and that she had not been referred to a
single example where a member of the Red Crescent Society, apparently a PLO
member organization, had been determined inadmissible.
[19]
With great respect to counsel for the Applicant, the burden
of the jurisprudence of this Court and the Federal Court of Appeal appears to
be to the contrary. In short, if one is a “member” then he or she is a
“member” for the purposes of paragraph 34(1)(f) with all of the implications
that that membership carries with it and with relief, if warranted, lying in
the discretion of a Minister of the Crown under subsection 34(2) of IRPA and
not in the discretion of Immigration Officers or this Court. An example of
this interpretation is reflected in the reasons of my colleague, Justice de
Montigny, who in Tjiueza v. Canada (Minister of Citizenship and Immigration)
wrote at paragraph [31]:
Once again, I do not
think that the ID [Immigration Division] erred in its interpretation of s.
34(1)(f) of the Act. That provision makes a foreign national inadmissible for
membership in an organization; it does not require active participation. If
active participation were necessary, then s. 34(1)(f) would be redundant,
because active participation in subversion by force is a ground for
inadmissibility under s. 34(1)(b) of IRPA. Paragraphs 34(1)(b) and
34(1)(f) are “discreet but overlapping grounds”: ...
[citations omitted]
I am
satisfied that precisely the same might be said here of the decision of the
Officer that is under review and the inter-relationship between paragraph
34(1)(f), paragraph 34(1)(c) on the one hand and subsection 34(2) of IRPA on
the other.
[20]
For the foregoing brief reasons, against a standard of
review of reasonableness, I am satisfied that the decision of the Officer that
is here under review was reasonably open to the Officer in the sense that it
demonstrates the existence of justification, transparency and intelligibility
within the decision-making process and falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts underlying
this matter and the applicable provisions of law.
Conclusion
[21]
In the result, this application for judicial review will be
dismissed.
Certification
of a Question
[22]
At the close of hearing, counsel were advised of the
Court’s conclusion. At the request of counsel for the Applicant, an
opportunity was provided for counsel to make written submissions on the issue
of certification of a question. Counsel for the Applicant urged certification
of the following question:
Is formal membership
in an organization that has engaged in acts of terrorism determinative of
whether a person is to be considered inadmissible pursuant to section 34(1)(f)
of IRPA?
[23]
Counsel for the Respondent urged against certification of
the foregoing question on the ground that it does not meet the test or
principles governing certification of a question set out in Liyanagamage v. Canada (Minister of Citizenship and Immigration) and reiterated in Carrasco Varela v. Canada (Minister of
Citizenship and Immigration).
[24]
As noted above, opinion of this Court is somewhat divided.
Justice Layden-Stevenson, now of the Court of Appeal, wrote that not all
Palestinians are deemed inadmissible, even when they have been members of a PLO
member organization. In contrast, Justice de Montigny, as quoted above in
paragraph [19], has expressed the view, supported by a brief analysis and cited
authorities, that mere formal membership in a component of an organization such
as the PLO is sufficient to support inadmissibility whether or not there has
been “active participation” on the part of the member.
[25]
In the circumstances, the question proposed for
certification by counsel for the Applicant will be certified.
ORDER
THIS COURT ORDERS that:
- The motion on behalf of the
Respondent pursuant to section 87 of the Immigration and Refugee
Protection Act seeking redaction of certain information on the Court
File in this matter, that was continued sine die by Order of the Chief
Justice, is granted in the terms applied for.
- This application for judicial review
is dismissed.
- The following question is certified
as a serious question of general importance that would be dispositive on
an appeal from the decision herein:
Is formal membership in an organization
that has engaged in acts of terrorism determinative of whether a person is to
be considered inadmissible to Canada pursuant to paragraph 34(1)(f) of the Immigration
and Refugee Protection Act?
“Frederick
E. Gibson”
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