Date: 20100429
Dockets: IMM-1105-09
IMM-1107-09
Citation: 2010
FC 471
Ottawa, Ontario, April 29, 2010
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
ALI
FARKHONDEHFALL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ali Farkhondehfall
seeks judicial review of two decisions made by the same immigration officer.
The first decision found that Mr. Farkhondehfall was inadmissible to Canada as there were reasonable grounds to believe that he had
been a member of an organization that has engaged in acts of terrorism. The
second decision dismissed his application for permanent residence because of
his inadmissibility.
[2]
Mr. Farkhondehfall
argues that the failure of the officer to provide him with a document that was
central to the officer’s analysis meant that he was denied procedural fairness
in the assessment of his admissibility to Canada. The officer further erred, Mr.
Farkhondehfall says, in analyzing the question of membership, and in finding
that there was a link between an organization which Mr. Farkhondehfall had admittedly
been a member of – namely the Muslim Iranian Students Society (or “MISS”), and
the Mujahedin-e-Khalq (or “MEK”) - an organization on the list of entities associated with terrorism
maintained by Public Safety Canada.
[3]
For the reasons that
follow, I have concluded that the officer did not err as alleged. Consequently,
the applications for judicial review will be dismissed.
Procedural History
[4]
Mr. Farkhondehfall is
a citizen of Iran. He arrived in Canada in 1991 and was granted refugee protection shortly
thereafter. He then applied for permanent residence, and his application was
approved in principle in June of 1993.
[5]
Mr. Farkhondehfall attended interviews with representatives of the
Canadian Security Intelligence Service
on July 17 and November 29, 1994. Mr.
Farkhondehfall was also interviewed by an immigration officer on December 11,
1998, and again on December 14, 2001. The immigration officer subsequently
found Mr. Farkhondehfall to be inadmissible to Canada pursuant to section 19(1)(f)(iii)(B)
of the Immigration Act, 1976. Mr. Farkhondehfall then requested
Ministerial relief under the provisions of subsection 34(2) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27. This request was denied, as
was his application for permanent residence.
[6]
Mr. Farkhondehfall sought
judicial review of both the refusal of his application for permanent residence
and the refusal of Ministerial relief. Both of Mr. Farkhondehfall’s
applications for judicial review were ultimately allowed on consent, and the
cases remitted to the Minister and to an immigration officer for
re-determination. It is the decisions resulting from the re-determination of
Mr. Farkhondehfall’s admissibility to Canada and his eligibility for permanent
residence that underlie these applications for judicial review.
[7]
The issue of Ministerial relief is not currently before the Court. After
the Minister’s first section 34(2) decision was set aside, Mr. Farkhondehfall’s
request for Ministerial relief was turned down for a second time by the
Minister, and leave to judicially review this second decision was denied by
this Court.
The Section
87 Proceedings
[8]
After the commencement
of Mr. Farkhondehfall’s most recent applications for judicial review, the
Minister brought a motion for non-disclosure of portions of the Certified
Tribunal Record, in accordance with the provisions of section 87 of the Immigration
and Refugee Protection Act. The Minister claimed that the disclosure of
the redacted information would be injurious to national security or to the
safety of any person.
[9]
In response to the
Minister's motion, Mr. Farkhondehfall brought a motion seeking the appointment
of a special advocate to protect his interests in each of the section 87
proceedings. I subsequently determined that considerations of
fairness and natural justice did not require the appointment of a special
advocate to protect Mr. Farkhondehfall’s interests in either application.
[10]
In coming to this conclusion, I observed that the redactions from
the records in these proceedings were minimal, and that Mr. Farkhondehfall had
had access to the overwhelming majority of the information on the record: see Farkhondehfall v. Canada (Minister of Citizenship and
Immigration), 2009 FC 1064.
[11]
I was further satisfied that Mr. Farkhondehfall had been made fully
aware of the substance of the information that was relied upon by the
immigration officer in finding that he was inadmissible to Canada, and in
dismissing his application for permanent residence. I also noted that much of
the information relied upon in support of the inadmissibility finding had been obtained
from Mr. Farkhondehfall himself in the course of his interviews with Canadian
authorities.
[12]
The Minister’s motion for non-disclosure was subsequently granted, in
part. I was, however, satisfied that the disclosure of certain portions of the
Certified Tribunal Record to Mr. Farkhondehfall would not be injurious to national
security, nor would it endanger the safety of any person.
[13]
While a limited
amount of information still has not been disclosed to Mr. Farkhondehfall, my
decision on the merits of this application has been made without regard to the
redacted information. This case has been decided solely upon the public record.
The
Legislative Authority for the Decision
[14]
Before turning to
examine the arguments advanced by Mr. Farkhondehfall, it is helpful to first
review the legislative framework governing inadmissibility findings such as
this.
.
[15]
The inadmissibility
finding in this case was made under the provisions of section 34(1)(f) of the Immigration
and Refugee Protection Act, the relevant portions of which provide that:
|
34. (1) A
permanent resident or a foreign national is inadmissible on security grounds
for
…
(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 :
…
f) être membre d'une organisation don=t 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).
|
[16]
In making a finding under section 34(1) of the Act, an immigration
officer is also guided by section 33 of IRPA, which provides that:
|
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.
|
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.
|
Was there a Denial of Procedural Fairness in
the Assessment of Mr. Farkhondehfall’s Admissibility?
[17]
Mr. Farkhondehfall submits that he was denied
procedural fairness in this matter as a result of the failure of the officer to
provide him with a copy of a document that he says was central to the officer’s
conclusion that the MISS is part of, or a front for the MEK.
[18]
The officer’s decision makes reference to the
United States Department of State’s 2002 document entitled Patterns of
Global Terrorism, which identifies the MISS as a “front organization [for
MEK] used to garner financial support”. Mr. Farkhondehfall says that this
document was not part of the package of documents provided to him by the immigration
officer as background information prior to an interview that had been scheduled
to take place in January of 2009. Mr. Farkhondehfall says that he was not made
aware of this document until he received the officer’s decision, and that this
was unfair to him.
[19]
I have two reasons for concluding that Mr.
Farkhondehfall was not treated in an unfair manner in this regard. Firstly, it
is well established in the jurisprudence that, with some limited exceptions, fairness
does not require the disclosure of documents from public sources such as the
United States’ Department of State: see Mancia v. Canada (Minister of
Citizenship and Immigration), [1998] 3 F.C. 461, 161 D.L.R. (4th) 488
(F.C.A.). Patterns of Global Terrorism is an annual report published by
the United States Department of State, and is readily available on the
Department’s website.
[20]
Secondly, and more importantly, Mr.
Farkhondehfall was made aware of the existence of the Patterns of
Global Terrorism document, and what it said, through the documents that
were provided to him by the respondent prior to a decision having been taken in
relation to the question of his admissibility to Canada.
[21]
That is, Mr. Farkhondehfall was provided with a
different American document, namely a “CRS Report for Congress” entitled “Foreign
Terrorist Organizations”. This document describes a number of different
organizations, including the MEK. It identifies the MISS as being another name
for the MEK, specifically referencing the 2002 Patterns of Global Terrorism document
as authority for this proposition. A second document in the package also links the
MISS and the MEK.
[22]
The Foreign Terrorist Organizations
document goes on to note that the MEK uses front organizations to solicit
contributions from Iranian expatriates and others. Once again, the Patterns
of Global Terrorism document is cited as authority for this proposition.
[23]
As a result, I am not persuaded that Mr.
Farkhondehfall has been denied procedural fairness in this matter, as I am
satisfied that he was, or should have been, aware of the document in issue. I
am also satisfied that he was afforded a meaningful opportunity to fully and fairly
present his case to the officer. As a
consequence, this case may be readily distinguished from the decision in Kablawi v. Canada (Minister of
Citizenship and Immigration), 2009 FC 283.
Did
the Officer Err in Concluding that Mr. Farkhondehfall was a Member of the MEK?
[24]
Mr. Farkhondehfall’s second argument is that
the officer erred in finding that he was a member of the MEK. This requires an
examination of both the officer’s finding as to the connection between the MISS
and the MEK, and the nature and extent of Mr. Farkhondehfall’s involvement with
each organization.
[25]
I understand both parties to agree that the
officer’s finding in relation to the issue of membership is reviewable on the
standard of reasonableness. Given that what is in issue is a question of mixed
fact and law, I agree that reasonableness is the appropriate standard: see Poshteh v. Canada (Minister of Citizenship
and Immigration), 2005 FCA 85, [2005] F.C.J. No. 381.
[26]
Insofar
as the connection between the MISS and the MEK is concerned, this is a question of fact.
The jurisprudence teaches that the question
of whether an organization is one described under paragraph 34(1) of the IRPA is also subject to review on the reasonableness standard: see, for
example, Omer v. Canada
(Minister of Citizenship and Immigration), 2007 FC 478,
157 A.C.W.S. (3d) 601 and Jalil v. Canada
(Minister of Citizenship and Immigration), 2006 FC 246, 52 Imm. L.R. (3d) 256.
[27]
In reviewing a decision against the reasonableness standard,
the Court must consider the justification, transparency and intelligibility of
the decision-making process, and whether the decision falls within a range of
possible acceptable outcomes which are defensible in light of the facts and the
law: see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 90 at para. 47, and Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R.
339 at para. 59.
[28]
In
determining whether a decision is reasonable, the reviewing court must pay
attention to the reasons offered by the decision-maker, or which could have
been offered in support of a decision. To the extent that a Tribunal may not
fully explain certain aspects of its decision, the reviewing Court may consult
evidence referred to by the Tribunal in order to flesh out its reasons: see Public
Service Alliance of Canada v. Canada Post Corporation and Canadian Human Rights
Commission, 2010 FCA 56, per Evans J.A., dissenting, but not on this point,
at para. 164.
[29]
In
order to conclude that Mr. Farkhondehfall was inadmissible to Canada, the
immigration officer needed find that he was, or had been, a member of an organization for which there are reasonable grounds
to believe engages, has engaged or will engage in terrorism. There are three
aspects involved in such a finding that require comment, namely the concept of
“membership”,
the “reasonable grounds to believe” standard, and the definition of
“terrorism”.
[30]
Insofar as the test for membership
is concerned, it is clear that actual or formal membership in an organization
is not required – rather the term is to be broadly understood: see Chiau v.
Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 642.
Moreover, there will always be some factors that support a membership finding,
and others that point away from membership: see Poshteh at para. 36.
[31]
The
Supreme Court of Canada described the “reasonable grounds to believe” evidentiary
standard in Mugesera v. Canada (Minister of Citizenship and Immigration),
2005 SCC 40, [2005] 2 S.C.R. 100, as requiring “something more than mere suspicion,
but less than the standard applicable in civil matters of proof on the balance
of probabilities”. The Supreme Court went on to hold that reasonable grounds
will exist “where there is an objective basis for the belief which is based on
compelling and credible information”: at para. 114.
[32]
As to the
definition of terrorism, the officer adopted the definition from Suresh
v. Canada (Minister of Citizenship and Immigration), 2002 SCC
1, [2002] 1 S.C.R. 3 at para. 96, where the Supreme Court of Canada described
terrorism as:
Any ... act intended to cause death or serious bodily injury to a
civilian, or to any other person not taking an active part in the hostilities
in a situation of armed conflict, when the purpose of such act, by its nature
or context, is to intimidate a population, or to compel a government or an
international organization to do or to abstain from doing any act.
[33]
Mr.
Farkhondehfall acknowledges the term “member” as it is used in paragraph
34(1)(f) of the
Act is to be given a broad and
unrestricted interpretation: see Poshteh
at paras. 27 and 28. Nevertheless, he says
that there must still be something to connect him to the MEK. In this regard,
Mr. Farkhondehfall submits that there is a difference between being a mere
supporter of an organization’s political goals, and being a member of that
organization.
[34]
However,
it is clear from a review of the record that there was considerable evidence in
the record to support the officer’s finding that Mr. Farkhondehfall was a
member of the MEK. It is also evident that much of the evidence linking Mr.
Farkhondehfall to both the MEK and the MISS came from Mr. Farkhondehfall
himself in the course of the interviews that he has given to Canadian
authorities over the years.
[35]
In
his 1991 application for permanent residence, Mr. Farkhondehfall stated that he
was a supporter of the “Mojahedin-Tehran” between 1978 and 1981. I do not
understand there to be any disagreement that the “Mojahedin-Tehran” refers to
the MEK. Mr. Farkhondehfall’s application for permanent residence goes on to
state that he was a member of an organization which he later confirmed was the
MISS in India between 1981 and 1985, and was a supporter of that organization
between 1985 and 1990.
[36]
Significant
contradictions and inconsistencies in Mr. Farkhondehfall’s story began to
emerge in the course of his various interviews. For example, in Mr.
Farkhondehfall’s initial CSIS interview, he acknowledged having received an
offer of employment with the MEK in Toronto, although he said that he had turned the offer
down. In a second interview with CSIS, Mr. Farkhondehfall denied ever having
received such an offer, claiming that his earlier answer was the result of a
“miscommunication”.
[37]
Concerns
with respect to Mr. Farkhondehfall’s credibility were fueled by his claim that
although he had attended MEK demonstrations and meetings in Toronto, and had attended their
offices on occasion (something he later denied), he did not know any MEK
members in Toronto.
[38]
Most
importantly, Mr. Farkhondehfall admitted to CSIS that he had supported the MEK
in Iran by participating in
demonstrations, some of which had been violent. His involvement with the MEK
in Iran also included attending
meetings, selling books and making financial contributions.
[39]
The
record also shows that Mr. Farkhondehfall indicated that his involvement with
the MEK had continued during the time that he was in India, by virtue of his
membership in the MISS. Thus Mr. Farkhondehfall has himself acknowledged
the link between the two organizations, which link is also borne out by the
documentary evidence.
[40]
Mr.
Farkhondehfall has also conceded that his involvement with the MISS had
extended to participation in demonstrations that turned violent, although he
denied having himself participated in any violent activities. He also
acknowledges having sold newspapers for the MISS to support the resistance to
the Iranian regime, and having visited pro-MEK politicians.
[41]
It
should be noted that Mr. Farkhondehfall subsequently disavowed many of his
earlier statements, once again attributing the inconsistencies in the
description of the nature and extent of his involvement with the MEK and the MISS
to “misunderstandings”.
[42]
The
record also shows that Mr. Farkhondehfall continued his involvement with the
MEK in Canada. As was noted earlier,
he has at various times acknowledged having received an offer of employment
with the MEK in Toronto, having participated in MEK demonstrations and meetings
in Toronto, and having attended at
their offices on occasion. He also acknowledged having met with fellow MEK
supporters in Toronto to view pro-MEK
videotapes.
[43]
Mr.
Farkhondehfall also told Canadian authorities that he “loves the MEK and the MISS”.
He has also claimed that neither organization is involved in terrorism or
violence, but that they are instead trying to effect political change by
peaceful means. Mr. Farkhondehfall had, however, earlier acknowledged that the
MEK has used violent means to achieve political ends.
[44]
The primary
focus of Mr. Farkhondehfall’s submissions was on the alleged lack of evidence
linking the MISS to terrorist activity. While pointing out that the MEK has
been “de-listed” as a terrorist entity in several western countries, I do not
understand Mr. Farkhondehfall to dispute that the MEK is a terrorist
organization within the meaning of paragraph 34(1)(f) of IRPA.
[45]
In
order to find that Mr. Farkhondehfall is inadmissible to Canada, the
immigration officer needed to find that he was or had been a member of an organization for which there are reasonable grounds
to believe engages, has engaged or will engage in terrorism.
[46]
The officer reviewed the record, and came to the
conclusion that Mr. Farkhondehfall fell within the exclusionary provisions of 34(1)(f)
of the Immigration and Refugee Protection Act. Based upon the evidence
discussed above, I am satisfied that this was a conclusion that was reasonably
open to the officer on the record before her. Consequently, the applications
for judicial review are dismissed.
Certification
[47]
Neither
party has suggested a question for certification, and none arises here.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. These
applications for judicial review are dismissed; and
2.
No serious question of general importance is certified.
“Anne
Mactavish”
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