Date: 20100317
Docket: IMM-3814-09
Citation: 2010 FC 308
Ottawa, Ontario, March 17,
2010
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
CHRISTA KOZONGUIZI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The Applicant
applies for judicial review of the decision of the Immigration and Refugee
Board (the Board) determining the Applicant is inadmissible pursuant to
subsection 34(1)(f) of the Immigration and Refugee Protection Act (IRPA).
She was deemed inadmissible because of her uncontested membership in an
organization there are reasonable grounds to believe has engaged in an act of
subversion against any government by force.
[2]
The
Applicant submits that she was a nominal member with no knowledge or active
involvement in the organization.
[3]
The
Applicant raises three issues:
a.
Did the Board fail to
properly evaluate its discretion under s. 34(1)(f)?
b.
Did the Board fail to
properly evaluate the jurisprudence with respect to s. 34(1)(f)?
c.
Did the Board fail to
provide adequate reasons?
[4]
For
reasons that follow, I am dismissing this application for judicial review.
BACKGROUND
[5]
The
Applicant says she joined the Caprivi Liberation Army (CLA) because she was in
love with her fiancé who was a member. She paid 50 Namibian Dollars and was
given a membership card in the organization in January 2000.
[6]
Amnesty
International reported in a news release published in August of 2003:
“Following
an armed attack launched by the secessionist group, the Caprivi Liberation
Army, on government forces and buildings on 2 August 1999 in the Caprivi region
of north eastern Namibia, the Namibian government declared a State of Emergency
and detained over 300 people on suspicion of participating in the attack,
sympathizing with the secessionists or assisting them to plan or launch the
attacks. Of those arrested following the uprising, approximately 122 have
remained in custody for close to four years awaiting the resumption of their trial
on charges of high treason, murder and other offences in connection with the
uprising.”
[7]
The
Applicant’s home was searched and police arrested and detained her for two days
in 2005. She subsequently left Namibia, arriving in Vancouver on September 9, 2006. She made a refugee claim
a few weeks later.
[8]
The
Applicant has been candid about her membership in this organization. She said
she only attended a few meetings but knew very little about it. She described
the organization’s goal as to “let Namibians live freely”. She only knew the
first name of its leader. She denies knowing the organization sought the
secession of the Caprivi Strip from greater Namibia by armed force.
LEGISLATION
|
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).
(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.
|
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).
(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.
|
DECISION
UNDER REVIEW
[9]
The
Board considered three questions in coming to its decision: (1) membership, (2)
subversion by force, and (3) unknowing participation.
[10]
The Board
relied on the Applicant’s admission she was a member of the CLA. This admission
emerged in several conversations with immigration officers and was never denied
[11]
The Board
relied on articles provided by the Minister which discuss the activities of the
CLA, in particular an Amnesty International press release describing a CLA attack
on government forces in the regional capital of Katima on August 2, 1999 and a
BBC News article describing the CLA as secessionist. The Panel was satisfied
the actions of the CLA as described in the Amnesty International news release
constituted subversion by force of a government.
[12]
The Board
considered the Applicant’s shallow knowledge of the CLA and found the
Applicant’s participation in the group was “minimal”. The Panel concluded:
“There is no clear evidence before the panel that Ms. Kozonguizi knowingly
joined the CLA for the intention of engaging in the subversion by force of the
government of Namibia”.
[13]
The Board
noted the wording of subsection 34(1)(f) of IRPA does not require knowing
support of the subversion by force of a government. It only specifies a person
be a ‘member’. The Board refers to Madame Justice Judith Snider’s judgment in Al
Yamani v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1457 (Yamani) in support of its
interpretation that the provision applies broadly and that the legislative
remedy was an application to the Minister under subsection 34(2).
[14]
The Board
decided it could not consider the Applicant’s ignorance and minimal involvement
with the CLA as mitigating factors.
[15]
The
Panel ruled the Applicant was a person described in subsection 34(1)(f) of IRPA
and subject to deportation as an inadmissible person.
STANDARD OF
REVIEW
[16]
In Dunsmuir
v. New Brunswick, 2008 SCC 9 the Supreme Court of Canada stated courts may
refer to jurisprudence to determine the appropriate standard of review in a
given case bearing in mind there are now only two standards of review:
reasonableness and correctness.
[17]
In Poshteh
v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85 (Poshteh)
Mr. Justice Marshall Rothstein when he sat on the Court of Appeal conducted a
pragmatic and functional analysis on the question of membership with respect to
subsection 34(1)(f) and found it is a question of mixed fact and law reviewable
on a standard of reasonableness. Since Dunsmuir, the reasonableness standard
still applies. Chwach v. Canada (Minister of Citizenship and Immigration) 2009 FC 1036 at para.13.
[18]
The
sufficiency of reasons is a question of procedural fairness reviewable on a
standard of correctness.
ANALYSIS
[19]
The
Applicant argues the Board misconstrued its discretion with respect to what is
membership under subsection 34(1)(f).
[20]
The
Applicant argues Poshteh supports a wide interpretation of the meaning
of membership. The Applicant submits that since the Court analyzed that
applicant’s involvement with respect to membership in Poshteh and
concluded at trial and on appeal that by distributing propaganda he was a de
facto member, the Court may inversely come to the conclusion this Applicant
is not a member of the CLA.
[21]
The
Applicant’s submissions amount to proposing an integration test for membership.
The Applicant suggests the Court may arrive at this conclusion by weighing the
membership fee and card against the motivation to join and ignorance of the
Caprivi Liberation Army’s goals.
[22]
Justice
Rothstein in Poshteh held that the definition of the term “member” in
subsection 34(1)(f) was to be given an unrestricted and broad interpretation. He
observed the question of membership in a terrorist organization was not
extraneous to the Immigration Division’s work. Its expertise includes determining
if the criteria for inadmissibility had been met and that criteria included
membership as set out in subsection 34(1)(f). Justice Rosthein concluded some
deference was due to the Immigration Division on its interpretation of the term
“member”.
[23]
The
Board noted the word “member” is not defined in statute. It found the harshness
of its broad application is mitigated by subsection 34(2) permitting an
applicant to demonstrate to the minister her presence in Canada would not be
detrimental to the national interest. This is the assessment used in Yamani,
supra para. 12:
Membership
by the individual in the organization is similarly without temporal
restrictions. The question is whether the person is or has been a member of
that organization. There need not be a matching of the person's active
membership to when the organization carried out its terrorist acts.
The
result may seem harsh. An organization may change its goals and methodologies
and an individual may choose to leave the organization, either permanently or
for a period of time. The provision seems to leave no option for changed
circumstances by either the organization or the individual. Fortunately,
Parliament, in including s. 34(2) in IRPA, provided means by which an exception
to a finding of inadmissibility under s. 34(1) can be made. Under that
provision, a permanent resident or a foreign national may apply to satisfy the
Minister that "their presence in Canada
would not be detrimental to the national interest". Parliament has provided all persons,
who would otherwise be inadmissible under s. 34(1), with an opportunity to
satisfy the Minister that their presence in Canada
is not detrimental to the national interest. Under this procedure, factors such
as the timing of membership or the present characterization of the organization
may be taken into account.
(emphasis
added)
[24]
I
agree with this analysis having come to the same conclusion about the interplay
between subsection 34(1)(f) and 34(2) in Qureshi v. Canada (Minister of
Citizenship and Immigration) 2009 FC 7.
[25]
The
Applicant presents the case of Chwach v. Canada (Minister of
Citizenship and Immigration) 2009 FC 1036 as an instance of innocent
membership. In that case an applicant had been a member of the Lebanese Forces
Party since 1992. The Lebanese Forces was a Christian militia which engaged in
terrorism. It disbanded in 1990 at the end of the civil war in Lebanon and became the Lebanese
Forces Party which constituted as a political party seeking representation in
the Lebanese parliament. Mr. Justice Richard Boivin granted the application
since the factual record did not disclose that the Lebanese Forces Party had
perpetrated terrorist acts and the visa officer had not analyzed the nature of
the organization in issue.
[26]
The
facts in this case are clearly different. The Applicant joined the CLA in 2000 very
shortly after it attacked the government of Namibia in 1999. There is no evidence the CLA ever
laid down its guns to pursue its goals non-violently.
[27]
Finally,
the Applicant did not proffer any arguments with respect to the alleged insufficiency
of the reasons. In any event, I find the reasons of the Board to be sufficient.
[28]
The
Board was clearly mindful of the Applicant’s unknowing and minimal involvement,
having noted the Minister’s Representative’s acceptance of the Applicant’s
account and having identified subsection 34(2) as a means by which these
mitigating factors may be considered.
[29]
The
Board’s decision is reasonable and it did not err in its interpretation of the
jurisprudence.
[30]
The application
for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
This
application for judicial review is dismissed.
2.
No
question of general importance is certified.
“Leonard S. Mandamin”
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