Date: 20080801
Docket: IMM-5054-07
Citation: 2008 FC 907
Ottawa,
Ontario, August 1st, 2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
MOHAMMED REZA SEPID
(A.K.A. MOHAMMED SEPID REZA)
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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), from the
decision of an immigration officer (the Officer) to refuse the applicant’s
application for permanent residence on the basis of his inadmissibility to
Canada pursuant to subsection 34(1) of the Act.
I. Facts
[2]
A
citizen of Iran, the
applicant arrived in Canada on July 28, 1994 and filed an application
for refugee status based on his political opinion and “membership in a
particular social group”. In his interview at the port of entry and in his
refugee claim, the applicant indicated that he was at risk due to his
involvement with the Mujahedeen-e-Khalq organization (MEK) in Iran, listed as a
terrorist entity by the government of Canada. He also filed an
application for permanent residence.
[3]
On
May 7, 2002, the applicant was given notice to appear for an inadmissibility interview
and invited to address the issue of his inadmissibility under section 34 of the
Act, for having been a member of a terrorist organization. At the
interview the applicant claimed he was not a member but only a “supporter” of the
MEK, while admitting that he provided financial support as well as communication
and propaganda distribution services for the MEK.
[4]
Subsequently,
the applicant applied for Ministerial Relief under subsection 34(2) of the Act.
This request was refused by the Minister of Public Safety & Emergency
Preparedness (the Minister) on October 11, 2007 and, in a decision dated
November 13, 2007, the Officer denied the application for permanent residence
on the basis that the applicant was inadmissible to Canada under
section 34 of the Act.
[5]
The
applicant applied for leave and judicial review of both the Minister’s and the
Officer’s decisions. The application for leave and judicial review of the
Minister’s decision having been denied on May 27, 2008, the only issue
remaining for the Court to decide is limited to the Officer’s refusal of the
applicant’s application for permanent residence on the basis of his
inadmissibility to Canada pursuant to subsection 34(1) of the Act
decision.
II. Impugned Decision
[6]
In
his decision, the officer assessed whether the applicant was a member of the MEK
and also whether that organization was involved in terrorist activity.
[7]
The
Officer reviewed the evidence to assess whether or not the applicant was a
member of the MEK, which included the applicant’s Port-of-Entry interview consigned
in the notes from the entry officer (POE notes), the applicant’s Personal
Information Form narrative (PIF), and the inadmissibility interview.
[8]
The
POE notes indicated to the Officer that upon arrival in Canada the
applicant had admitted to being a member of the MEK since 1991. Moreover, these
notes also indicated that the applicant’s activities with the MEK consisted of
receiving, copying and distributing video cassettes which encouraged people to
join the MEK.
[9]
The
Officer also took note of relevant portions of the applicant’s PIF to find that
his refugee claim was completely based on his political opinion and membership
in a social group known as the MEK.
[10]
And
in addition, with regards to the inadmissibility interview, the Officer noted
that the applicant had admitted during the interview that his activities with
the MEK consisted of recording videotapes and photocopying flyers containing
information about the MEK political agenda and goals and then distributing
them. But the Officer also retained that the applicant had provided financial
contributions to the MEK and had committed to that organization that he would
travel to Iraq in order to
be more educated in its goal and policy. The Officer acknowledged that the
applicant denied membership in the MEK, but was not convinced by this denial.
[11]
Finally,
the Officer concluded that there were reasonable grounds to believe the
applicant “was a member of the MEK, in that he belonged to the organization,
voluntarily joined the MEK from 1989 to 1994 publicizing its policy and goals …contributing
time and money”. And since the status of MEK as a terrorist organization was
not in dispute, and in light of the refusal of a waiver of inadmissibility by
the Minister, the Officer determined that the applicant was inadmissible under
section 34(1)(f) of the Act and refused his application for permanent
residence.
III. Issues
[12]
The
present application raises the following issues:
a. Did the Officer
err in interpreting the term “member” in paragraph 34(1)(f)?
b. Did the Officer
err in fact in finding that the applicant was a member of the MEK?
IV. Standard of Review
[13]
The
appropriate standard of review is reasonableness (Dunsmuir v. New
Brunswick,
2008 SCC 9). The issue of membership is a finding of fact and thus the
applicant is required to demonstrate that this finding was made in a perverse or
capricious manner or without regards to the material before the Officer. The
same standard applies to the Officer’s interpretation of the term “member”
raised in the first issue (Poshtech v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 381).
V. Analysis
a. Did the Officer
err in interpreting the term “member” in paragraph 34(1) (f)?
[14]
The
Officer in the present case adopted a broad interpretation of “member” and
considered factors relevant to the determination of membership such as the
length of the involvement with the organization, the nature of the duties and
responsibilities of the applicant in the organization, and the extent of his
involvement. The Officer’s interpretation of “member” is completely akin with
the jurisprudence and is therefore reasonable (Poshteh v. Canada (M.C.I.)
2005 FCA 85). The Court sees no reason to interfere with the Officer’s decision
in this regard.
b. Did the Officer
err in fact in finding that the applicant was a member of the MEK?
[15]
The
applicant appears manifestly dissatisfied that the Officer did not accept his
assertion of having been only a “supporter of the MEK”, and not a member. The
issue is therefore whether there was sufficient evidence of fact upon which the
Officer could reasonably conclude that the applicant was a member rather than a
simple “supporter”.
[16]
The
Officer accepted the applicant’s own evidence of membership given at the port
of entry, and also his own evidence of his activities in support of the MEK.
[17]
Since
it is not contested that the MEK is a terrorist organization, therefore the
only way the applicant can evade the inadmissibility enacted by section 34 of
the Act, is to claim that he is not a member of this organization. The mere
labelling of his involvement as being that of a “supporter” or any other term
than a “member” does not prevent per se the application of section 34.
[18]
In
the present case, the applicant’s claim to refugee status was based on his
political opinion and his “membership in a particular social group”, the MEK, listed
and recognized as a terrorist organization. He gave financial and material
support to this organization for several years. The transcription of his Port-of-Entry
interview includes his own statement that he was a member of the MEK. Also, relevant
portions of the applicant’s PIF summarize his activity in the MEK to support
his claim of protection on the basis of his membership in this particular
social group. In spite of the applicants denial, the Officer had more than
sufficient evidence to find that the applicant admitted membership in the past,
and that his admitted activities indicated that he was more than a simple
“supporter” as he later claimed. The evidence provides ample “reasonable grounds”
for the Officer to finally believe that the claimant was a de facto
member of MEK.
[19]
The
fact that the Officer did not accede to the
self-serving characterization of the applicant’s involvement does not
constitute a reviewable error of law. In his interview at the port of entry and
his refugee claim the applicant sets out clearly that he was at risk due to his
involvement with the MEK in Iran. Having reviewed the Officer’s reasons in
their entirety, the Court finds that the Officer clearly understood the importance
and the length of the applicant’s involvement with the MEK, how it was
initiated and as well how it eventually escalated to more participatory
activities. It cannot be said that the Officer did not appreciate the fact that
the applicant denied the accuracy of the POE notes as to his membership in the
MEK
[20]
Moreover,
as previously stated, the Officer’s reasons must be read as a whole, not as the
applicant would have preferred them to be, but as the decider weighted the
evidence before him. Given the above finding that the officer conducted a full
and fair assessment of the facts, the Court must now assess the reasonability
of the overall determination on membership. As stated in Poshteh, above
at paragraph 36 “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. An assessment of these facts is within the expertise of the
Immigration Division.” There was more than ample evidence in the record
upon which the Officer could reasonably find that the applicant was a member of
the MEK. The Court sees no reason to interfere with the Officer’s finding on
this issue.
[21]
Having
reviewed the impugned decision in the context of the entire file and the
decision as a whole, the Court concludes that the assessment of the Board falls
entirely within a range of possible, acceptable outcomes which are more than defensible
in respect of the facts and the law. The decision is found therefore not only reasonable,
but it is also supported by the applicant’s submissions in his POE interview,
the PIF and the inadmissibility interview.
[22]
The
applicant failed to show that the impugned decision contains an error that could
justify the intervention of the Court. The application for judicial review will
therefore be dismissed. Further, the Court agrees with the parties that this
affair raises no question of general interest to certify; therefore no question
will be certified.
JUDGMENT
FOR THE FOREGOING
REASONS THE COURT dismisses the application.
"Maurice E. Lagacé"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5054-07
STYLE OF CAUSE: MOHAMMED
REZA SEPID (a.k.a. MOHAMMED SEPID REZA) v. THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: July
15, 2008
REASONS FOR JUDGMENT
AND JUDGMENT: LAGACÉ D.J.
DATED: August
1st, 2008
APPEARANCES:
|
Lorne Waldman
|
FOR THE APPLICANT
|
|
Rhonda Marquis
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Waldman &
Associates
|
FOR THE APPLICANT
|
|
John H. Sims,
Q.C.,
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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