Docket: IMM-10493-12
Citation: 2014 FC 85
Ottawa, Ontario, January 24, 2014
PRESENT: The Honourable
Madam Justice Strickland
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BETWEEN:
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HAIDAR IBRAHIM NASSEREDDINE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review of a decision of the Immigration Division of
the Immigration and Refugee Board (IRB), dated September 26, 2012 in which it
concluded that the Applicant was inadmissible to Canada pursuant to subsection
34(1)(f) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA)
by reason of his membership in the Amal Movement (Amal) in Lebanon. This
application is brought pursuant to section 72 of the IRPA.
Background
[2]
The Applicant is a citizen of Lebanon. He left Lebanon in 2001 to visit family in the United States and remained there past the period of his
authorized stay. On January 26, 2009, accompanied by his lawyer, the Applicant
came to Canada to claim refugee status. He has a daughter who lives in Canada.
[3]
In his “Claim for
Refugee Protection in Canada”, Form IMM-5611, signed on January 26, 2009,
in response to question 46, “Organizations”, the Applicant stated that he was
part of the AMAL Movement (Al Risala Scouts Group), described as a “Social
Group”, from January 1976 to February 2001. In his Personal Information Form (PIF) dated February 18, 2009, the Applicant again stated that he was a member
of the “AMAL MOVEMENT” and, as a result, he had been targeted by Hezbollah.
[4]
On June 16, 2011, a
Canada Border Services Agency (CBSA) officer interviewed the Applicant in
connection with CBSA’s investigation into his admissibility to Canada. During that interview the Applicant stated that he joined Amal in 1976 or 1977
when he was a teenager and that he held a membership card, a copy of which is
found in the Certified Tribunal Record (CTR). The Applicant stated that he
worked as a boy scout leader and later as an ambulance driver in the civil
defence section of Amal. From 1984 to 1994 he worked at a port controlled by
Amal inspecting shipping containers. He reported directly to the manager of
the port. He then worked as a security guard until 2001. When he resigned
from Amal in 2001 he gave his resignation letter to Ali Hassan Khalil, who at
the time was the Amal leader for all of Beirut and a senior aide to Nabih
Berri, and who is now an Amal representative and Minister of Public Health in
the Lebanese Parliament.
[5]
In the “Case Review
and Recommendation Whether a Referral to an Admissibility Hearing is Warranted”
form, the CBSA officer found that Amal is an organization that engages, has
engaged or will engage in subversion by force or terrorism. The officer found
that Amal has been responsible for suicide attacks against Israeli military
forces, assassination bombings and other attacks against rival group members in
an effort to gain control of Lebanon and other acts of violence against Israeli
and other identifiable groups, with the intent of intimidating local
populations. The officer noted that the Applicant was not forthright during
the interview and that he had concerns about the Applicant’s credibility as he
had failed to disclose a criminal conviction in the United States for larceny.
The officer concluded that there were reasonable grounds to believe that the
Applicant’s membership in Amal rendered him inadmissible to Canada pursuant to subsection 34(1)(f) of the IRPA and recommended a referral to an
admissibility hearing.
[6]
The Applicant was
referred to an admissibility
hearing before the IRB on April 18, 2012 which continued on September 18 and
September 26, 2012.
[7]
The IRB delivered an
oral decision at the conclusion of the hearing. This is the judicial review of
that decision (Decision).
Decision Under Review
[8]
Prior to giving its
oral decision at the hearing, the IRB heard testimony from the Applicant and
his daughter and submissions by counsel for the Minister. It then rendered its
decision that the Applicant was a foreign national inadmissible to Canada pursuant to subsection 34(1)(f) of the IRPA.
[9]
The IRB noted the
Minister’s allegations that the Applicant was a member of Amal which has
engaged in acts of terrorism. Further, that the documentary evidence was
replete with examples of Amal having committed acts of terrorism such as
bombings, hijackings, kidnappings and the innocent killing of civilians. However,
that there was no evidence that the Applicant personally engaged in acts of
terrorism or that he was a person with authority within that organization.
[10]
The IRB also noted
that the Applicant became a member of Amal at the age of 15 which he likened to
joining a boy scout group. He stated that, as a member of the civil defence
wing, he worked as an ambulance driver providing humanitarian relief during the
conflict in Lebanon. Through Amal, he obtained a job working at a port
inspecting containers. The Applicant remained a member of Amal for twenty five
years and ceased his membership only when he left for the United State s in 2001. The IRB noted the Applicant’s submission that he had no direct
knowledge of the terrorist activities that Amal was alleged to have been
involved in.
[11]
The IRB referred to
the definition of terrorism set out by the Supreme Court of Canada in Suresh
v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1
SCR 3 [Suresh] being that terrorism requires an organization to have
committed an act whose intent was to cause death or serious bodily harm to a
civilian, and, that the purpose of the act was to intimidate a population or
compel a government or international organization to do or to abstain from
doing any act. The IRB also referred to Fuentes v Canada (Minister of Citizenship and Immigration), [2003] 4 FC 249 which emphasized that
the definition in Suresh focuses on the protection of civilians.
[12]
Relying on Issam
Al Yamani v Canada (Minister of Citizenship and Immigration), 2006 FC 1457,
the IRB found that, in deciding if an applicant is inadmissible pursuant to subsection
34(1)(f), it must determine if there are reasonable grounds to believe that the
subject organization engaged in terrorism and, secondly, if the evidence
establishes there are reasonable grounds to find that the applicant is or was a
member that organization. There is no temporal component to the analysis.
[13]
The IRB noted that
there was no evidence disputing any of the documentary evidence submitted by
the Minister to establish that Amal is a terrorist organization. Therefore,
the IRB found that the evidence was trustworthy and credible.
[14]
The IRB then turned
to the question of membership. It stated that, while there is no definition of
being a member of an organization contained in the IRPA or its
regulations, Chiau v Canada (Minister of Citizenship and Immigration),
[2001] 2 FC 297 [Chiau] reconfirms that the term should receive a
broad and unrestricted interpretation. The IRB also referred to Amaya v
Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 549
[Amaya], which found that being a member includes merely
belonging to a criminal organization, and stated in its view that the same
reasoning should apply for the purposes of subsection 34(1)(f). The IRB also
noted the case of Ikbel Singh (phonetic, no citation provided or
located) stating that therein this Court found that a person was a member on
the basis of a close association with other members of the group.
[15]
The IRB noted that
the Applicant himself had never denied and acknowledged being a member of
Amal. It concluded that the Applicant was a member of an organization of which
there are reasonable grounds to believe engages, has engaged or will engage in
terrorism.
[16]
The IRB also noted
the case of Uddin Jilani
v Canada (Citizenship and Immigration), 2008 FC 758 [Jilani], but found that complicity
as it relates to membership was not an issue in this case. Although the
Applicant’s participation in Amal was minor, he had no leadership role and did
not take up arms to support Amal’s objectives, these are non-essential elements
for a finding under subsection 34(1)(f) of the IRPA.
[17]
The IRB noted that section
34 provides a comprehensive approach to inadmissibility determinations. It
addresses the goals of maintaining the security of Canada by denying access to
persons who are security risks while still providing, by way of the subsection
34(2) exception, that persons who would otherwise be inadmissible still have an
opportunity to satisfy the Minister that their presence is not detrimental to
the national interest. The Applicant did not, however, apply for such an
exception.
Issue
[18]
In my view, the sole
issue in this application is whether the IRB erred in finding that the
Applicant was a member of Amal and therefore inadmissible under subsection 34(1)(f).
Standard of Review
[19]
A standard of review
analysis need not be conducted in every instance. Instead, where the standard
of review applicable to a particular question before the court is well-settled
by past jurisprudence, the reviewing court may adopt that standard (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 57 [Dunsmuir]; Kisana v Canada (Minister of Citizenship and Immigration),
2009 FCA 189 at para 18 [Kisana]).
[20]
I agree with the
parties that the standard of review for decisions relating to subsection 34(1) of the IRPA
is reasonableness (Najafi v Canada (Public Safety
and Emergency Preparedness), 2013 FC 876 at para
82; Flores Gonzalez v
Canada (Citizenship and Immigration), 2012 FC 1045 at para 36; Krishnamoorthy v
Canada (Minister of Citizenship and Immigration), 2011 FC 1342 at para 12 [Krishnamoorthy]).
[21]
Reasonableness is
concerned with the justification, transparency and intelligibility of the
decision-making process, but also with whether the decision falls within a
range of possible, acceptable outcomes defensible in respect of the facts and
law (Dunsmuir, above, at para 47).
Legislation
[22]
This application
concerns section 33, subsection 34(1)(f) and, indirectly, subsection 34(2)
(currently subsection 42.1(2)), of the IRPA:
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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.[Repealed, 2013, c. 16, s.
13]
Exception —Minister’s own
initiative
42.1 (2) The Minister may, on the
Minister’s own
initiative, declare that the matters
referred to in
section 34, paragraphs 35(1)(b) and (c)
and
subsection 37(1) do not constitute
inadmissibility
in respect of a foreign national if the
Minister
is satisfied that it is not contrary to
the national
interest.
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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.
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. [Abrogé, 2013, ch. 16, art. 13]
Exception — à l’initiative du
ministre
(2) Le ministre peut, de sa propre
initiative, déclarer que les faits visés à l’article 34, aux alinéas 35(1)b)
ou c) ou au paragraphe 37(1)
n’emportent pas interdiction de
territoire à l’égard de tout étranger s’il est convaincu que cela ne serait
pas contraire à l’intérêt national.
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Applicant’s Submissions
[23]
The Applicant submits
that the IRB erred in attributing the actions of Amal’s militia to its civil
department. The Applicant worked for the civil wing of Amal which did not
engage in terrorist attacks and, where distinct factions exist, it is
inappropriate to treat the organization as a single entity when determining
membership pursuant to subsection 34(1)(f). The IRB was required to determine
if Amal’s civil wing was sufficiently distinct from its armed wing to be
treated as a separate entity and then determine if the civil wing had engaged
in terrorist activities (Cardenas v Canada (Minister of Employment and
Immigration), [1994] FCJ No 139 (QL) at paras 2-4, 15-21 (TD) [Cardenas];
Ali v Canada (Minister of Citizenship and Immigration), 2004 FC 1174 at
paras 64-68 [Ali]; Suresh, above, at para 98).
[24]
Even if there were
reasonable grounds to believe that Amal had engaged in terrorist acts, the IRB
erred by failing to consider the criteria for membership before determining
that that Applicant was a member. These included the degree of his
involvement, the length of time he was involved, his intentions, purpose, and
commitment to the organization and its objectives. Not every act of support for
a terrorist group will constitute membership under subsection 34(1)(f) (Krishnamoorthy,
above, at paras 19, 23 and 27; Tharmavarathan v Canada (Minister
of Citizenship and Immigration), 2010 FC 985 at para 28 [Tharmavaratham];
Toronto Coalition to Stop the War et al v Canada (Minister of Public Safety
and Emergency Preparedness), 2010 FC 957 at paras 110, 128 [Toronto
Coalition to Stop the War]). Being involved in low-level activities that
are ordinarily associated with membership, such as distributing pamphlets for a
terrorist organization, do not necessarily mean that a person is caught by
section 34(1)(f) (Krishnamoorthy, above at para 26).
[25]
Here, the Applicant
testified that Amal controlled the area in which he lived and compelled
individuals his age to work for them. He chose not to carry arms but to become
involved with Amal through another entity called social services work in order
to assist individuals injured in the war. He indicated that he disavowed
violence, that he had no direct knowledge that Amal was a terrorist
organization, and, submits that there is no evidentiary link between Amal’s
terrorist activities and his work at the port. The Applicant states that the
facts in this case are distinguished from Suresh, above, where
the applicant’s support of the terrorist organization was clear as he held a
full time executive position with the organization and he collected funds.
[26]
The Applicant also
submits Ezokola v Canada (Minister of Citizenship and Immigration), 2013
SCC 40 [Ezokola] has significantly altered the legal landscape regarding
complicity in both war crimes and terrorism. The principles from decisions
concerning subsection 98(1) of the IRPA, an exclusion clause for refugee
claimants who are found to have committed war crimes or crimes against humanity,
are also relevant to inadmissibility decisions made pursuant to subsection
34(1)(f) of the IRPA (Joesph v Canada (Minister of Citizenship and
Immigration), 2013 FC 1101 at para 14 [Joseph]). Therefore,
the IRB’s Decision, which is premised on “guilt by association” reasoning, is
no longer valid and is unreasonable.
Respondent’s Submissions
[27]
The Respondent
submits that subsection 34(1)(f) of the IRPA is to be broadly interpreted.
It prohibits the entry into Canada of individuals in respect of whom there are
reasonable grounds to believe have been members of an organization involved in
terrorism. However, there is relief from the broad scope of the section by way
of subsection 34(2). The inadmissibility provision differs from provisions
which exclude persons from refugee protection such as Article 1F(a) of the Convention
Relating to the Status of Refugees 28 July 1951,
189 UNTS 137 (the Refugee Convention), as the former is much broader (Kanapathy v Canada (Minister of
Citizenship and Immigration), 2012 FC 459 at paras 35-36 [Kanapathy]).
The evidentiary burden for establishing reasonable grounds for believing a
person is a member of a terrorist organization is low and informal
participation or support can suffice (Chiau, above; Kanendra v Canada
(Minister of Citizenship and Immigration), 2005 FC 923 at paras 21-23 [Kanendra];
Sepid v Canada (Minister of Citizenship and Immigration), 2008 FC 907 at
para 17).
[28]
The Respondent
submits that there were ample grounds for the IRB to find that the Applicant
was a member of Amal. Further, the Applicant does not appear to dispute the
evidence that Amal engaged in terrorism or that he was a member of Amal. The
Applicant admitted his membership and candidly acknowledged that he would have
concealed his involvement if he knew the difficulty his admission would bring
him.
[29]
The Respondent states
that the Applicant now seems to dispute the length of time that he was a member
of Amal, however, this is not legally significant as subsection 34(1)(f) does
not depend on length of membership. In any event, based on the record before
the IRB, it was entitled to find that the Applicant was a member for 25 years.
[30]
The Respondent
submits that subsection 34(1)(f) bars members of terrorist organizations and
not just those who commit terrorist atrocities themselves. The Applicant’s
evidence and submissions, if found to be true, might be relevant in response to
an exclusion motion, but not for a finding of inadmissibility. The exclusion
provisions are distinct from the inadmissibility provisions.
[31]
The Respondent
submits that there is no basis in the law for the Applicant’s argument that he
must have been a member of an alleged military “wing” of Amal to be found
inadmissible. A finding of complicity of crimes against humanity is of a
higher standard than the inadmissibility provisions, thus the Applicant’s
reliance on Cardenas, above, is misplaced. Further, there is no
evidence that Amal is comprised of two different groups, and therefore Ali,
above, has no application. Any attempts to distinguish between the legitimate
wings of an organization and the criminal wings are invalid (Chiau,
above at paras 57-59, 60).
[32]
The IRB properly
considered the evidence, applied the case law and found that the Applicant was
a member of Amal, which organization engaged in terrorism. This was sufficient
to support an inadmissibility finding under subsection 34(1)(f). Claims of
limited interaction within a terrorist group are better advanced under the
subsection 34(2) exception (Kanapathy, above, at para 39; Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para
78, aff’g 2011 FCA 103 at para 64 [Agraira]).
[33]
The Respondent
submits that Ezokola, above, does not change the subsection 34(1)(f)
test for membership. It was concerned with complicity under the exclusion
provision of Article 1F of the Refugee Convention, which the Court determined
had been stretched too far. Those considerations are not relevant to a subsection
34(1)(f) assessment of membership. An inadmissibility determination prescribes
membership in terrorist organizations without need for complicity or “knowing
participation” in terrorist acts. Further, Agraira, above, released a
month earlier, concerned relief from a subsection 34(1)(f) finding of inadmissibility
under subsection 34(2), and confirmed that issues of alleged innocent or
indirect or passive membership are to be considered under the Ministerial
relief provisions of subsection 34(2).
[34]
The Respondent
submits that Joseph, above, is not authority for the circumstances of
the present case. Without access to the record before the Court, there is no
basis for knowing how it came to the conclusion that, were the IRB to hear the
matter again, it would not find the applicant therein inadmissible based on
mere “indirect contact” with a terrorist organization. In any event, there is
no evidence in the present case that the Applicant had merely indirect contract
with Amal.
Analysis
[35]
The Applicant does
not take issue with the finding that Amal is a terrorist organization or
challenge the documentary evidence relied upon by the IRB in reaching that
conclusion. Accordingly, that issue need not be addressed by this Court. The
only issue is whether the IRB reasonably found that the Applicant was a member
of Amal.
i) Amal “Civil Wing”
[36]
The Applicant submits
that Amal is a divided organization and that he worked solely in its civil wing
which was not involved in terrorist activities. Thus, even if the IRB found
that Amal is a terrorist
organization, it was required to go further and determine if Amal’s civil wing
was a distinct entity from its armed wing and then to determine if the civil
wing was involved in terrorist activities.
[37]
In this regard, the
Applicant refers to Ali, above, as supporting his proposition
that it may be inappropriate to conflate two related groups when there is no
evidence that one of the groups has taken part in the terrorist activities. In
my view, Ali can be distinguished from the present case.
[38]
There, the applicant
admitted his ongoing involvement with the MQM-A but maintained that, to the
best of his knowledge, the MQM-A was a peaceful political party engaged in good
work for the benefit of the poor in Pakistan. Significantly, the IRB report clearly
recognized that the MQM was composed of two factions, the MQM-A and the MQM-H.
And, while certain acts of terrorism were attributed to the MQM-H, most of the
IRB report did not distinguish between the two groups. The Court found that
the officer’s reasons did not provide an adequate basis for her finding that
there were reasonable grounds to believe that the MQM-A was a group engaged in
terrorist activities.
[39]
Cardenas, also relied on by the Applicant, concerned an
exclusion based on complicity in crimes against humanity pursuant to Article 1F
of the Refugee Convention. There was evidence before the Board of a division
within the military and political factions of the Manuel Rodriguez Patriotic
Front (Front). The Court held that by ignoring the division the Board
unreasonably equated membership in the Front with a belief in the use of
violence to achieve political goals. That assumption was not supported by the
material before the Board which clearly showed that only a dissident faction
within the Front advocated the use of violence. Thus, the Board cast an overly
broad net in its application of the exclusion clause to the applicant’s claim
for refugee status as it inculpated the applicant based on guilt by
association. Again, in Cardenas, and although concerned with Article 1F
and not subsection 34(1)(f), there was clear evidence of the existence of
different organizational factions in the materials that were before the Board.
[40]
Here the CTR contains
no evidence of the existence of a civil defence branch of Amal. Rather, it
indicates that Amal was expressly formed to protect and increase the influence
of Lebanon’s Shi’ite Muslim population, it was founded as the military wing of
the “Movement of the Disinherited”, and, it was responsible for civilian
fatalities.
[41]
The Applicant submits
that because the IRB did not dispute his claim that he belonged to Amal’s civil
defence department that it therefore “arguably acknowledged” that Amal was a
divided entity. I do not agree with that submission.
[42]
The only evidence
that Amal had a civil defence wing was the Applicant’s testimony. Unlike Ali
and Cardenas, both above, there were no materials
before the IRB that supported that a separate wing both existed and that it was
distinct from a military branch of that organization which carried out
terrorist activities. The Applicant submits that his testimony must be
presumed to be true in the absence of an adverse credibility finding (Maldonado v Canada (Minister of
Employment and Immigration), [1980] 2 FC 302, [1979] FCJ No 248 (CA)) and, therefore, accepted as evidence of the existence
of an Amal civil wing.
[43]
The presumption that
a claimant’s sworn testimony is true is always rebuttable and in appropriate
circumstances may be rebutted by the failure of the documentary evidence to
mention what one would normally expect it to mention. Further, the Board is
entitled to give more weight to documentary evidence, even if it finds the
Applicant to be credible (Bustamante v Canada (Minister of Citizenship and Immigration), [2002] FCJ No 643 (TD)
at para 9 (QL); Eminidis v Canada (Minister of Citizenship and Immigration),
2004 FC 700 at paras 16-17).
[44]
In my view, it cannot
be that an applicant who admits to membership in a terrorist group may then
escape inadmissibility simply by asserting that he or she is a humanitarian who
operated within a non-violent faction of that terrorist organization absent
documentary or other evidence to support this assertion. The existence of the
faction, its distinct identity and its operations must be objectively established.
If an applicant is unable to establish this, then he or she may still seek the
potential relief available pursuant to subsection 42.1(2) (formerly subsection
34(2).
[45]
In Ugbazghi v Canada (Minister of
Citizenship and Immigration), 2008 FC 694, the applicant therein was found to be a
member of the Eritrean
Liberation Front (ELF), an organization potentially engaged in terrorism. Her
application for permanent residency was refused on the grounds that she was
found to be inadmissible pursuant to subsection 34(1)(f). Initially, she
stated that she was a member of the ELF. She later submitted that she was not
a member of the ELF, but was a member of an ELF support group. Justice Dawson
dismissed the application for judicial review. She noted that the applicant
provided no evidence confirming the existence of such a separate support
group. Further, the applicant’s own evidence showed that the support group completely identified with and worked to further the
goals and activities of the ELFF, it did not support a finding that the group
was entirely separate and distinct from the ELF.
[46]
Justice Dawson noted
that in any case it is always possible to say that a number of factors support
a membership finding and that a number of factors point away from membership.
The weighing of these factors is within the expertise of the officer (Poshteh v Canada (Minister of Citizenship and Immigration), 2005 FCA 85 at paras 36 [Poshteh]). Justice Dawson found that:
[47] Without doubt, subsection 34(1) of the Act is intended to cast a
wide net in order to capture a broad range of conduct that is inimical to Canada’s interests. Parliament’s intent is further reflected in section 33 of the Act,
which requires that the facts that constitute inadmissibility include facts that
“there are reasonable grounds to believe” occurred. Thus, the test for
inadmissibility is whether “there are reasonable grounds to believe” that a
foreign national was a member of an organization that “there are reasonable
grounds to believe” engages, has engaged, or will engage in acts of terrorism.
This is a relatively low evidentiary threshold. It is because of the very broad
range of conduct that gives rise to inadmissibility that the Minister is given
discretion, in subsection 34(2) of the Act, to grant relief against
inadmissibility.
[47]
In the matter before
me, the Applicant in his testimony consistently asserted that his work with
Amal was in its civil defence department. However, he provided no other
evidence as to the existence of the civil defence department, its objectives
and goals, how it operated, under what leadership it operated or how it was
distinct from Amal’s military branch. Given this, and the absence of any
documentary or other evidence that supported the Applicant’s submission, the
IRB did not err by failing to consider the role of Amal’s “civil wing” in the
context of the Applicant’s section 34 inadmissibility hearing. And, in any
event, the test for inadmissibility as described in Ugbazghi, above, was met based on the Applicant’s admission
of membership in Amal.
ii) Membership Criteria
[48]
The next point raised by
the Applicant concerns the
criteria used to determine an individual’s membership in a terrorist
organization pursuant to subsection 34(1)(f).
[49]
The term “member” is
not defined in the IRPA but, in the context of the legislative scheme,
jurisprudence has held that it is to be interpreted broadly. The Federal Court
of Appeal noted in Poshteh, above at paras 27-29, that the
predecessor of subsection 34(1)(f) was concerned with subversion and terrorism and that the context in immigration
legislation is public safety and national security, the most serious concerns
of government. Justice Rothstein, as he then was, concluded that, based on the
rationale in Canada (Minister
of Citizenship and Immigration) v Singh (1998),
151 FTR 101 at para 52 (TD) [Singh] and,
in particular, on the availability of an exemption from the operation of subsection
34(1)(f) in appropriate cases, the term "member" under the IRPA
should continue to be interpreted broadly (also see B074 v Canada
(Citizenship and Immigration), 2013 FC 1146 at para 27; Chiau, above
at para 25; Kanendra, above; Gebreab v Canada (Public Safety and
Emergency Preparedness), 2009 FC 1213 at paras 24-25 [Gebreab]).
[50]
In Saleh v Canada (Minister of Citizenship and Immigration), 2010 FC 303 [Saleh], the
applicant therein argued that mere formal membership should not inevitably
constitute “membership” for the purposes of subsection 34(1)(f) of the IRPA.
Justice Gibson, as he then was, dismissed this argument finding that:
[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”: ...
[51]
There is, however,
also case law which states that when determining whether a foreign national is
a member of an organization described in subsection 34(1)(f) there should be
some assessment of that individual’s participation in the organization. In
this case, the Applicant has admitted his membership in Amal but argues that
having a membership card does not make one a “member” within the meaning of subsection
34(1)(f).
[52]
In B074 v Canada
(Citizenship and Immigration), 2013 FC 1146, where the applicant was an
informal member of the Liberation Tigers of Tamil Eelam
[LTTE], Chief Justice
Crampton stated the following:
[29] …In this regard, three criteria that should be considered
include the nature of the person’s involvement in the organization, the length
of time involved, and the degree of the person’s commitment to the
organization’s goals and objectives (TK v Canada (Minister of Public Safety
and Emergency Preparedness, 2013 FC 327, at para 105 [TK]; Toronto
Coalition, above, at para 130; Basaki, above at para 18; Sepid,
above, at para 14; Ugbazghi, above, at paras 44-45). Where there
are some factors which suggest that the foreign national was in fact a member
and others which suggest the contrary, those factors must be reasonably
considered and weighed (Toronto Coalition, above, at para 118; Thiyagarajah
v Canada (Minister of Citizenship and Immigration), 2011 FC 339, at para 20
[Thiyagarajah]).
[53]
In Krishnamoorthy,
above, the applicant while in high school, and as a result of fear and duress,
had sold soap and distributed pamphlets for the LTTE. Justice Mosley found
that the IRB had erred in concluding that the applicant was a member of the
LTTE because it failed to consider the relevant criteria for membership
identified in the jurisprudence such as involvement, length of time, and degree
of commitment which defines membership in a broad sense. Further, that not
every act of support for a group that there are reasonable grounds to believe
is involved in terrorist activities will constitute membership (paras 23-27).
[54]
And, in Sinnaiah v
Canada (Minister of Citizenship and Immigration), 2004 FC 1576, Justice
O’Reilly, stated at para 6 that “to establish "membership" in an
organization, there must at least be evidence of an "institutional
link" with, or "knowing participation" in, the group's
activities: Chiau, above; Thanaratnam, above.”
[55]
Toronto Coalition
to Stop the War, above,
concerned the inadmissibility of a British Member of Parliament who had provided
financial support to a group, Viva Palestina, which deployed medical and other
supplies to Gaza in opposition to an Israeli blockade, knowing that his actions
may be construed as support of Hamas. Canada has identified Hamas as a
terrorist organization. In considering membership in the context of section
34, Justice Mosley stated that an unrestricted and broad definition is not a license to classify anyone
who has had any dealings with a terrorist organization as a member of the
group. Consideration has to be given to the facts of each case including any
evidence pointing away from a finding of membership. Further, that membership
may be found from the evidence as a whole, including statements and actions
that provide a basis from which to infer that the purpose of the contribution
was to facilitate or to enable the terrorist objects of the organization.
[56]
Recently, in TK v Canada (Public Safety and Emergency Preparedness), 2013 FC 327, in considering whether
the applicant was a member of the LTTE, Justice Russell stated the following
about the criteria used to determine membership:
[117] Parliament intended that the term “member” should have an
“unrestricted and broad interpretation” (see Poshteh, above, at
paragraph 52) but it must have some meaning and restriction, otherwise
subsection 34(1) would be incomprehensible. The jurisprudence around subsection
34(1) has made it clear that the RPD must consider various criteria and attempt
to ascertain whether the acts in question constitute membership.
[57]
Of note is that most
of the case law requiring consideration of various criteria to determine if an
applicant is a member in a terrorist organization, including all of the cases
referenced above, is concerned with situations where the applicant had not
admitted membership in a terrorist organization. That is not, and in my view
distinguishes, the situation in this case where the Applicant has consistently acknowledged that he was a
member of Amal.
[58]
In Gebreab,
above, the applicant admitted being a member of the
Ethiopian Peoples’ Revolutionary Party (EPRP), an organization which, there were
reasonable grounds to believe, engages, has engaged or will engage in the acts
referred to in subsections 34(1)(b) and 34(1)(c), namely subversion by force of
any government and terrorism. The applicant participated by attending
meetings, giving speeches and handing out pamphlets regarding the oppression by
the government. Justice
Snider found that there was no issue that the applicant was a member of the
EPRP as it was admitted. Thus, the only issue was whether the EPRP was an
organization as contemplated by subsection 34(1)(f) of the IRPA.
[59]
Given this, in my
view Saleh, above, is factually closer to this situation as there
the applicant also argued that mere formal membership should not inevitably
constitute “membership” for the purposes of subsection 34(1)(f) of the IRPA.
As noted above, that argument was dismissed on the basis that the burden of the
jurisprudence of this Court and the Federal Court of Appeal appears to be to
the contrary. Accordingly, and based on a broad interpretation of subsection
34(1)(f) and the Applicant’s admitted membership, the IRB reasonably found that
he was a member of Amal and, therefore, it was not required to consider and
weigh the various criteria of membership.
[60]
That said, and
regardless of whether or not the IRB was required to look to the factors
identified above in this circumstance of admitted membership, the evidence was
that the Applicant acknowledged that he had belonged to Amal for a period of 25
years which membership only ended when he went to the United States. He worked as a scout leader and then as an ambulance driver and, finally,
for over ten years as a container inspector, all of which was under Amal. When
he tendered his resignation from Amal, it was to Ali Hassan Khalil, who at the
time was the Amal leader for all of Beirut and a senior aide to Nabih Berri. The
Applicant’s evidence was that at no time did he take up arms and that he worked
only in civil defence. There was no evidence that he held a leadership role in
Amal or personally engaged in terrorist activities. However, during his CBSA
interview and the IRB hearing held on April 17, 2012, he
acknowledged that he was aware of Amal’s involvement in fighting in the Shatila
and Sabra refugee camps in which thousands died, his involvement being burying the dead. He was
also aware of Amal’s subsequent besiegement of refugee camps. He also
acknowledged that he knew that Amal used a suicide car bomb on one occasion.
[61]
Given his long
membership in Amal, that he financially benefited from his work with them, that
he was not recruited or coerced into joining and remained a member even after
the ceasefire and although he was aware of at least some of, and claimed that
he objected to, their terrorist activities, the IRB’s finding as to membership
was within the range of possible outcomes.
iii) Ezokola
[62]
The Applicant also
submits that the Supreme Court of Canada’s decision in Ezokola, above,
has the effect of changing the legal test for assessing membership in terrorist
organizations pursuant to subsection 34(1)(f) of the IRPA.
[63]
Ezokola concerns subsection 98(1) of the IRPA
which states that a person referred to in sections E or F of Article 1 of the
Refugee Convention is not a refugee or person in need of protection. Article
1F(a) guards against abuses of the Refugee Convention by denying refugee
protection to any person with respect to whom there are serious reasons for
considering that he or she has committed a crime against peace, a war crime, or
a crime against humanity.
[64]
In Ezokola,
the Supreme Court of Canada stated that decision-makers should not
overextend the concept of complicity to capture individuals based on mere
association or passive acquiescence. In Canada, the personal and knowing
participation test had, in some cases, been overextended to capture individuals
on the basis of complicity by association. It was, therefore, necessary for
the Court to rearticulate the Canadian approach to bring it in line with the purpose
of the Refugee Convention and Article 1F(a), the role of the RPD, the
international law to which Article 1F(a) expressly refers, the approach to
complicity under Article 1F(a) taken by other state parties to the Refugee
Convention, and, fundamental criminal law principles. These sources all
supported the adoption of a contribution-based test for complicity – one that
requires a voluntary, knowing and significant contribution to the crime or
criminal purpose of a group.
[65]
The Court’s task in Ezokola
was to determine what degree of knowledge and participation in a criminal
activity justifies excluding secondary actors from refugee protection. In
other words, for the purposes of Article 1F(a), when would mere association
become culpable complicity?
[66]
The Court determined
that the test for complicity to be applied by the Article 1F(a) decision-maker
is that an individual will be excluded from refugee protection for complicity
in international crimes if there are serious reasons for considering that he or
she voluntarily made a knowing and significant contribution to the crime or
criminal purpose of the group alleged to have committed the crime. The
evidentiary burden is on the Minister as the party seeking the exclusion. The
test is subject to the “unique evidentiary standard” contained in Article 1F(a)
being “serious reasons for considering”. This sets a standard above mere
suspicion.
[67]
The Court concluded
that whether there are serious reasons for considering that an individual has
committed international crimes will depend on the facts of each case.
Accordingly, to determine whether an individual’s conduct meets the actus
reas and mens rea for complicity, several factors can be considered
including: the nature and size of the organization; the part of the
organization with which the refugee claimant was most directly concerned; his
or her duties and activities within the organization; their rank or position in
the organization; the length of time that they were in the organization,
particularly after acquiring knowledge of the group’s crime or criminal
purpose; and, the method by which they were recruited and their opportunity to
leave the organization. While such factors are useful for guidance, the focus
must remain on the individual’s contribution to the crime or criminal purpose. They
must be weighed for one key purpose which is to determine whether there was a
voluntary, significant and knowing contribution to a crime or criminal purpose.
[68]
The Applicant submits
that the restated test for exclusion from refugee protection for complicity in
international crimes under Article 1F(a) is also relevant to subsection
34(1)(f). This is because subsection 34(1)(f) requires a finding of whether a
person is inadmissible by reason of being a member of an organization that has,
does or will engage in terrorism. The Applicant submits that both tests
involve the concept of complicity. Article 1F(a) is concerned with complicity
for war crimes while subsection 34(1)(f) is concerned with complicity in
terrorism.
[69]
In support of this
position the Applicant relies on Joseph, above. There, the applicant
was deemed to be inadmissible to Canada pursuant to subsection 34(1)(f) of the IRPA
and applied for mandamus, which was denied. However, in the course of that
decision, Justice O’Reilly stated that:
[13] However, I must also note that, after the ID’s
decision on her inadmissibility, the Supreme Court of Canada rendered its
decision in Ezokola v Canada (Citizenship and Immigration), 2013
SCC 40. There, the Court emphasized that individuals should not be held
responsible for crimes committed by a particular group just because they are
associated with that group, or acquiesced to its objectives (at para 68).
[14] In my view, while Ezokola dealt
with the issue of exclusion from refugee protection, the Court’s concern that
individuals should not be found complicit in wrongful conduct based merely on
their association with a group engaged in international crimes logically
extends to the issue of inadmissibility. At a minimum, to exclude a person from
refugee protection there must be proof that the person knowingly or recklessly
contributed in a significant way to the group’s crimes or criminal purposes (at
para 68). Similarly, it seems to me that to find a person inadmissible to
Canada based on his or her association with a particular terrorist group, there
must be evidence that the person had more than indirect contact with that
group.
[15] In light of Ezokola, it seems highly
unlikely that Ms Joseph could now be found inadmissible to Canada based on membership in a terrorist group. Ezokola teaches us to be
wary of extending rules of complicity too far. To my mind, that includes the
definition of “membership” in a terrorist group. I doubt the ID, based on Ezokola,
would now conclude that Ms Joseph was a “member” of the LTTE.
[16] Therefore, while I must dismiss Ms Joseph’s
application for mandamus, I would expect that her PRRA application,
post Ezokola, could be dealt with reasonably expeditiously.
[70]
This is in contrast to prior jurisprudence such as Miguel v Canada (Minister of Citizenship and Immigration), 2012 FC 802 at
para 22, where Justice Tremblay-Lamer found that the
Federal Court has established that “the issue of complicity is irrelevant to a
determination under paragraph 34(1)(f) of the Act, which refers strictly to the
notion of membership in the organization.” And Kanapathy, above, at para 35 which
held that the requirements for establishing inadmissibility on security grounds
are less stringent than the requirements for exclusion on grounds of violating
human rights:
The latter requires complicity or knowing participation in the commission
of a specific international crime, while the former does not require any
complicity or knowing participation in an act of terrorism.
[71]
In its Decision, the
IRB found that complicity was not in issue in the context of the Applicant’s
membership in Amal based on Jilani, above, and the IRB’s interpretation of subsection
34(1)(f), being that inadmissibility arises if an applicant is a member of a
terrorist organization. Because the Applicant was a member of Amal which is a
terrorist organization, his limited participation, lack of a leadership role
and the fact that he did not take up arms in support of Amal’s objectives were
“non-essential elements” for a finding of inadmissibility under subsection
34(1)(f).
[72]
The Respondent takes the view that Ezokola does not
change the law as it pertains to subsection 34(1)(f). The inadmissibility
provisions proscribe membership in terrorist organizations without any need for
complicity or “knowing participation” in any terrorist acts. Further, if the
Supreme Court had intended the case law pertaining to subsection 34(1)(f) to be
overruled by its decision in Ezokola then it would have expressly said
so. Instead, in Agraira, above, released a month prior to Ezokola,
and which concerned relief from a subsection 34(1)(f)
inadmissibility finding under subsection 34(2), the Court confirmed that issues
of alleged innocent, indirect or passive membership are to be considered under
the Ministerial relief provisions of subsection 34(2). The Respondent submits
that the comments in Joseph are obiter as that case concerned a mandamus
application. And, in any event, while the background facts in that matter
cannot be discerned from that decision, in this case there was more that mere “indirect
contact” with Amal.
[73]
Agraira, above, was concerned with the potential
relief available pursuant to subsection 34(2). However, it is not obvious to me
that the Court’s finding in that case stands for the proposition asserted by
the Respondent:
[76] The respondent argues that the IRPA is concerned with public safety and
national security. More specifically, he argues that the purpose of s.
34(1)(c) and (f) is to ensure the safety and security of
Canadians, while s. 34(2) provides for relief only for innocent or coerced
members of terrorist organizations who would otherwise be inadmissible.
[77] The respondent is correct in saying that the IRPA is concerned with national security
and public safety. In fact, the Court recognized this in Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539:
The objectives as expressed in the IRPA indicate an intent to prioritize
security. . . . Viewed collectively, the objectives of the IRPA and its provisions concerning permanent
residents, communicate a strong desire to treat criminals and security threats
less leniently than under the former Act. [para. 10]
[78] That said, the respondent’s argument that s.
34(2) is focused exclusively on national security and public safety, and that
it provides for relief only for innocent or coerced members of terrorist
organizations, fails to give adequate consideration to the other objectives of
the IRPA. Section
3(1) of the IRPA sets out 11 objectives of the Act with
respect to immigration. Only two of these are related to public safety
and national security: to protect public health and safety and to maintain the
security of Canadian society (s. 3(1)(h)), and to promote international
justice and security by fostering respect for human rights and by denying
access to Canadian territory to persons who are criminals or security risks (s.
3(1)(i)). The other nine objectives relate to other factors that
properly inform the interpretation of the term “national interest” (e.g. “to
permit Canada to pursue the maximum social, cultural and economic benefits of
immigration” (s. 3(1)(a))). The explicit presence of these other
objectives in the IRPA strongly suggests that this term is
not limited to public safety and national security, but that the Parliament of
Canada also intended that it be interpreted in the context of the values of a
democratic state. Section 34 is intended to protect Canada, but from the perspective that Canada is a democratic nation committed to protecting the
fundamental values of its Charter and of its history as a
parliamentary democracy.
[74]
However, I do agree
with the Respondent that the Applicant’s complicity is not an issue in this
case. Further, in my view, the requirement for complicity in connection with the
conduct of acts of terrorism is removed from a subsection 34(1)(f) analysis by
the existence of subsection 34(1)(c) whereby inadmissibility arises from an individual
“engaging in terrorism”. That provision contemplates actual participation in
acts of terrorism while subsection 34(1)(f) is only concerned with membership
in an organizations which has, does or will engage in terrorism. Subsection 34(1)(c),
on its own, might well involve a consideration of complicity, but that
provision was not under consideration in this matter (see Toronto Coalition
to Stop the War, above, paras 113-114).
[75]
My view in this
regard is also influenced by the availability of potential relief pursuant to subsection
34(2) of the IRPA (currently subsection 42.1(2)). In Tjiueza v Canada (Citizenship and
Immigration), 2009 FC
1260, Justice de Montigny identified that in assessing an application for relief from subsection
34(1)(f), the Minister considers many factors including those which mitigate
inadmissibility, including:
[39] …whether the person represents a danger to the public, whether
the activity was an isolated event, whether the person was personally
involved or complicit in the activities of the organization, the role or
position of the person in the organization, whether the person was aware of the
activities of the organization, and whether ties to the organization have been
severed: see Immigration Enforcement Manual, Chapter 2, section 13.7. (Emphasis
added)
[76]
Given the scheme of
section 34 as a whole, including the potential relief available under subsection
34(2), in these circumstances, the IRB did not err in concluding that
complicity was not at issue.
[77]
For these reasons I
am also not convinced that Ezokola changes the test for admissibility
pursuant to subsection 34(1)(f). Further, in my view, Justice O’Reilly’s
comments in Joseph, above, with respect to the impact of Ezokola on
subsection 34(1)(f) inadmissibility decisions would not affect the IRB’s
finding in the present case. Here, the Applicant
admitted his membership in Amal. Thus, this is not a situation of complicity
arising from association, or “indirect contact” with, a terrorist group.
Certification
[78]
The Respondent has proposed the following question for
certification:
Does Ezokola v Canada (MCI), 2013 SCC 40 change the existing legal
test for assessing membership in terrorist organizations, for the purposes of
assessing admissibility under subsection 34(1)(f) of the IRPA?
[79]
The Federal Court of Appeal recently reiterated the test for certified
questions in Zhang v Canada (Minister of Citizenship and Immigration),
2013 FCA 168, at para 9:
It is trite law that
to be certified, a question must (i) be dispositive of the appeal and (ii)
transcend the interests of the immediate parties to the litigation, as well as
contemplate issues of broad significance or general importance. As a corollary,
the question must also have been raised and dealt with by the court below and
it must arise from the case, not from the Judge's reasons (Canada (Minister
of Citizenship and Immigration) v. Liyanagamage, 176 N.R. 4, 51 A.C.W.S.
(3d) 910 (F.C.A.) at paragraph 4; Zazai v. Canada (Minister of Citizenship
and Immigration), 2004 FCA 89 (CanLII), 2004 FCA 89, [2004] F.C.J. No. 368
(C.A.) at paragraphs 11-12; Varela v. Canada (Minister of Citizenship and
Immigration), 2009 FCA 145 (CanLII), 2009 FCA 145, [2010] 1 F.C.R. 129 at
paragraphs 28, 29 and 32).
[80]
Despite my finding
here, the Applicant’s submissions on this issue have some merit in the sense
that complicity may arguably be implicit in a finding of membership under subsection
34(1)(f). Further, as noted above, there is case law that indicates that when
determining whether or not an individual is a member of a terrorist
organization pursuant to subsection 34(1)(f) the IRB is to consider various
criteria, many of which directly overlap those identified by the Supreme Court
in Ezokola to be considered when determining whether there was
significant, knowing and willing participation in criminal activity under the subsection
98(1) exemption and Article 1F.
[81]
In my view, the first
branch of the test for certification is met in the circumstances of the present
case. If Ezokola does change the legal test for assessing membership in
a terrorist organization for purposes of assessing admissibility under
subsection 34(1)(f) such that, regardless of admitted membership, individuals
must be assessed so as to determine whether there was a voluntary, significant
and knowing contribution to the terrorist group in issue, that is, complicity
with the group, then this would affect the finding of the IRB and of this Court
and would be dispositive of the appeal. As the second
branch of the test is also met, I certify the following question:
Does Ezokola v Canada (Minister of Citizenship and Immigration),
2013 SCC 40 change the existing legal test for assessing membership in
terrorist organizations, for the purposes of assessing admissibility under subsection
34(1)(f) of the IRPA, whether such membership is admitted or not?
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