Date: 20090212
Docket: IMM-3082-08
Citation: 2009 FC 141
Ottawa, Ontario, this 12th day of February
2009
Present: The Honourable Orville
Frenette
BETWEEN:
Mohammed Saeed MOTEHAVER
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of the decision of the Immigration Division
of the Immigration and Refugee Board (the “Board”) dated June 19, 2008, determining
that the applicant is inadmissible on security grounds based on paragraph
34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (the “IRPA”) and issuing a deportation order pursuant to paragraph
229(1)(a) of the Immigration and Refugee Protection Regulations,
SOR/2002-227.
The Facts
[2]
The
applicant was born in Iran on March 22, 1968. He arrived in Canada on January 4, 1995 and claimed
refugee status. On March 9, 1995, the applicant was granted refugee status;
however, he is not a permanent resident or a citizen of Canada.
[3]
On
January 26, 2005, a report was prepared by an immigration officer pursuant to
subsection 44(1) of the IRPA alleging that the applicant is inadmissible on
security grounds based on paragraph 34(1)(f) of the IRPA. Specifically,
the report alleges that he is a member of the Mujahedin-e Khalq (MEK), a
terrorist organization.
[4]
The
report was referred to the Immigration Division and an admissibility hearing
was held on January 8, 2008, continued on March 20 and May 13, 2008.
[5]
On
June 19, 2008, the Board rendered its decision determining that the applicant was
inadmissible under paragraph 34(1)(f) of the IRPA, being a member of an
organization that was engaged or will be engaged in terrorism.
[6]
An
order of deportation was signed against the applicant.
The Impugned Decision
[7]
In
a 17-page decision, the Board reviews the applicable legislation and the
evidence, composed of the applicant’s Personal Information Form (PIF) and
interviews, his testimony and that of others, plus the general documentation
about Iran and MEK.
[8]
The
Board examined the nature of MEK and its activities, including terrorism and
murders, concluding that the applicant is inadmissible under paragraph 34(1)(f)
of the IRPA, because it had reasonable grounds to believe that the applicant is
a member of MEK which has engaged or will engage in terrorism.
The Legislation
|
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 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).
|
|
44.
(1) An officer who is of the opinion that a permanent resident or a foreign
national who is in Canada is inadmissible may prepare a report
setting out the relevant facts, which report shall be transmitted to the
Minister.
|
44. (1) S’il estime que le résident
permanent ou l’étranger qui se trouve au Canada est interdit de territoire,
l’agent peut établir un rapport circonstancié, qu’il transmet au ministre.
|
The Applicable Standard
of Review
[9]
The
proper standard of review for substantive decisions of the Board depends on the
nature of the decision. The Supreme Court of Canada has determined in Dunsmuir
v. New
Brunswick,
[2008] 1 S.C.R. 190, that the proper standard for questions of law is
correctness and for questions of fact and mixed fact and law, is reasonableness
simpliciter.
[10]
The
jurisprudence has established the issue of whether an organization described in
paragraph 34(1)(c) of the IRPA has been reviewed on a standard of
reasonableness (Kanendra v. Canada (M.C.I.), 2005 FC 923, [2005] F.C.J.
No. 1156 (QL)).
[11]
The
related issue of whether an applicant is a member of an organization referred
to in paragraph 34(1)(f) is also reviewed on a standard of reasonableness,
as it is a question of fact and law (Poshteh v. Canada (M.C.I.), [2005]
3 F.C.R. 487 (F.C.A.); Afridi v. Minister of Public Safety and Emergency
Preparedness et al., 2008 FC 1192; Faridi v. Minister of Citizenship and
Immigration, 2008 FC 761).
[12]
Therefore,
the standard of review to be applied in this case is reasonableness.
The Issues
1. Who
is a member of a terrorist organization under paragraph 34(1)(f) of the
IRPA?
2. Is
the applicant a member of MEK?
Analysis
[13]
Concerning
the first issue, “terrorism” is not defined in the IRPA but the Supreme Court
of Canada in Suresh v. Canada (M.C.I.), [2002] 1 S.C.R. 3, at paragraph
98, defined terrorism as follows:
. . . 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”.
[14]
The
Supreme Court of Canada in Mugesera v. Canada (M.C.I.), [2005] 2 S.C.R.
100, stated, at paragraph 114:
. . . “reasonable grounds to believe”
standard requires something more than mere suspicion, but less than the
standard applicable in civil matters of proof on the balance of probabilities
[…]
[15]
This
is a very low threshold (Sivakumar v. Canada (M.E.I.), [1994] 1 F.C. 433
(C.A.), at page 445; Chiau v. Canada (M.C.I.), [2001] 2 F.C. 297 (C.A.),
at paragraph 60).
[16]
Justice
James O’Reilly, in Sinnaiah v. Minister of Citizenship and Immigration,
2004 FC 1576, suggests the quality of the proof must be whether there is more
than suspicion or “a whiff of suspicion” (paragraph 16).
[17]
To
establish a membership in a terrorist organization under paragraph 34(1)(f)
of the IRPA, this section must be broadly interpreted.
[18]
In
the present instance, the Government of Canada has listed MEK as a terrorist
organization and even if the United Nations Security Council has recently
de-listed it, Canada and the United
States
have maintained such listing. Courts must abide by this fact. Our courts have
consistently decided that MEK is a terrorist organization: Poshteh, supra,
at paragraphs 2, 3 and 10; Noori v. Canada (M.C.I.), [1996] F.C.J. No.
187 (T.D.) (QL), paragraphs 1 to 4; Sepid v. Minister of Citizenship and
Immigration, 2008 FC 907, paragraph 18; Chogolzadeh v. Minister of
Public Safety and Emergency Preparedness, 2008 FC 405 (paragraphs 37, 41,
44 and 45).
[19]
In
Poshteh, supra, the applicant was a citizen of Iran whose father
had been a member of MEK. After his father’s death in 1999, the applicant, then
17 years old, attempted to become a member of MEK but was denied. He was however
allowed to participate in its activities by distributing pamphlets - MEK
propaganda; he was considered to be a “de facto” member. He came to Canada in 2002 and
after being interviewed by an immigration officer he was held to be inadmissible
under paragraph 34(1)(f) of the IRPA. This decision was unanimously
maintained by the Federal Court of Appeal.
[20]
In
Ugbazghi v. Minister of Citizenship and Immigration, 2008 FC 694,
Justice Eleanor Dawson dismissed an application for judicial review of a
refusal for permanent residence because the applicant had been a member of the
Eritrean Liberation Front (ELF), an organization that engaged in terrorism. The
applicant had claimed she was not a member of the ELF but admitted she
supported the “freedom fighters” and “helped the cause” by donating money and
distributing pamphlets. Justice Dawson determined that these factors of
support of the ELF, justified a decision of inadmissibility under sections 33
and 34 of the IRPA.
[21]
Justice
Pierre Blais, in Omer v. Minister of Citizenship and Immigration, 2007
FC 478, dismissed an application attacking an Immigration and Refugee Board’s
decision which had concluded that the applicant was ineligible and to be
deported in application of paragraph 34(1)(f) of the IRPA. The
applicant, a citizen of Pakistan, had been a member of the Mothaidda Quami Movement
(MQM) in Pakistan and acknowledged during
the hearing that he was responsible for the “MQM Quebec” branch. There was
reasonable ground to believe that the MQM is an organization which engages, has
engaged or will engage in terrorism.
[22]
A
similar decision has been rendered by Justice Judith Snider in Yamani v.
Minister of Citizenship and Immigration, 2006 FC 1457, concerning an
applicant, who was a permanent resident of Canada but who had been a member of
the Popular Front for the Liberation of Palestine, an organization which had
engaged in terrorist activities during the time he was a member.
[23]
In
light of these precedents, the second issue is: Should the applicant be
considered a member of MEK?
[24]
The Board
based its decision on the following facts:
- In
his Personal Information Form (PIF), dated February 7, 1995, submitted in
support of his refugee claim, the applicant described how he was introduced to
MEK literature in the early 1980s. In 1989, he met supporters of MEK and began
secretly distributing MEK pamphlets on the campus of the university where he
studied in Iran.
- He
left Iran because he had been
informed that the authorities sought to arrest him for his involvement with the
MEK.
- In
his PIF, the applicant writes that one of his family members, a brother, was
particularly active and was a member of MEK.
- In
his application for permanent residence dated May 14, 1995, he indicated he was
a sympathizer of the “Moujahedin” from 1989 to 1994.
- He
declared to immigration officers that in Canada, he distributed leaflets as a sympathizer of
MEK.
- He attended
MEK meetings in Canada and contributed funds
to this organization.
- He received
the MEK newspaper, called Nashrech.
- At
his hearing, the applicant denied involvement with the MEK and denied his brother
had been a member of MEK. He also claimed not having knowledge of violent acts
committed by the MEK while he resided in Iran.
- Finally,
in his testimony, the applicant’s brother Majid testified the former supported
the MEK in Iran but was not a member of
any political organization.
[25]
The
applicant raises an argument in his memorandum about the application of the Canadian
Charter of Rights and Freedoms and Canada’s obligations in international law.
[26]
At
the hearing the applicability of the above legislation was not shown, neither was
their relevance. I do not perceive any pertinence or relevance of this point to
the present case.
[27]
In
light of paragraph 34(1)(f) of the IRPA and its interpretation by the
Courts, all of the factors described before, subject to the standard of review
of “reasonable grounds to believe”, I support the Board’s conclusion that
the applicant was and is a member of MEK.
[28]
The
Board gave clear and intelligible reasons supporting its decision, drawing
inferences form the facts provided by the applicant himself in his PIF, his
interviews and his testimony.
[29]
The
qualification of being a member according to paragraph 34(1)(f) of the
IRPA is to be given a broad and unrestricted interpretation, since in
immigration legislation, public safety and internal security are highly
important.
[30]
In Poshteh,
supra, at paragraphs 33 to 38, the Federal Court of Appeal upheld the
Immigration Division’s determination that the length of time of the applicant’s
involvement, his distribution of MEK propaganda, and his attempt to become a
member were sufficient to constitute membership for the purposes of the
application of paragraph 34(1)(f) of the IRPA.
[31]
The
present case bears similarities with Poshteh.
Conclusion
[32]
According
to Dunsmuir, supra, if the Board rendered a decision which falls
within the “range of possible, acceptable outcomes which are defensible in
respect to the facts and law”, courts should not interfere (paragraph 47).
Furthermore, deference should be given to the Immigration Division (at paragraph
49). This principle has been applied in many cases: Gutierrez v. Minister of
Citizenship and Immigration, 2008 FC 971, paragraph 22; Marshall v.
Minister of Citizenship and Immigration, 2008 FC 946, paragraph 38; Mendoza
v. Minister of Public Safety and Emergency Preparedness, 2007 FC 934,
paragraph 25).
[33]
Therefore,
this application for judicial review will be dismissed.
JUDGMENT
The
application for
judicial review of the decision of the Immigration Division of the Immigration
and Refugee Board, dated June 19, 2008, is dismissed.
No question of general importance is certified.
“Orville
Frenette”
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