Docket: IMM-1484-15
Citation:
2015 FC 1085
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, September 16, 2015
PRESENT: The Honourable Mr. Justice Gascon
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BETWEEN:
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ROGHAYEH AZIZI
MIRMAHALEH
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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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JUDGMENT AND REASONS
I.
Overview
[1]
Roghayeh Azizi Mirmahaleh is an Iranian citizen,
born in 1956. She is challenging a decision of the Immigration and Refugee
Board of Canada finding that she was inadmissible to Canada because of her
membership in a group that there are reasonable grounds to believe engaged in
acts of terrorism.
[2]
When she lived in Iran, Ms. Mirmahaleh was
a teacher in a village. In the late 1970s, she was involved in an organization
called the Mujahedin-e-Khalq [MEK]. She read and distributed MEK publications.
She taught the children in her classes, as well as the women in her region,
about their rights. She lost her job because of these activities, and she and
her husband were forced to live a secret life, constantly changing addresses
for three years. In 1984, she was arrested and imprisoned for several years, as
was her husband, who was also an activist. In 1988, the Iranian regime executed
her husband. Later, their son was harassed because of his parents’ political
activities.
[3]
Ms. Mirmahaleh came to Canada in October 2012,
on a one-year temporary visitor’s visa. After arriving in Canada, she took part
in meetings and protests, particularly for a group of Iranian political
refugees killed by the Iraqi regime.
[4]
In November 2013, she filed a claim for refugee
protection in Canada on the basis of the persecution to which she says she was
subjected by the Iranian authorities because of her political activities in
support of the MEK. The Minister intervened in this case and filed an
inadmissibility report. On March 12, 2015, a member of the IRB’s
Immigration Section rejected Ms. Mirmahaleh’s refugee protection claim. He
determined that she is inadmissible to Canada for being a member of a terrorist
group, under paragraph 34(1)(f) of the Immigration and Refugee Protection
Act, SC 2001, c 27 [IRPA].
[5]
Ms. Mirmahaleh is now seeking judicial
review of the member’s decision rejecting her refugee protection claim. She
argues that the decision is unreasonable and that the tribunal erred in
characterizing the MEK as a terrorist group and in concluding that she was a
member of that group. Ms. Mirmahaleh also states that the member, in his
decision, shifted the burden of proof from the Minister to her.
[6]
The issues are the following:
- Did the tribunal err in concluding that the MEK is a terrorist
organization?
- Did the tribunal err in its assessment of Ms. Mirmahaleh’s
membership in the MEK?
- Did the tribunal err in law in shifting the burden of proof in
its analysis?
[7]
For the reasons that follow, Ms. Mirmahaleh’s
application for judicial review must fail, as the Court finds that the
tribunal’s decision is reasonable and falls within the range of possible,
acceptable outcomes in the circumstances. Its findings on both the terrorist
nature of the MEK and Ms. Mirmahaleh’s membership in the group are
supported by the evidence in the record. Moreover, when read as a whole, the
decision in no way reflects a shift of the burden of proof to Ms. Mirmahaleh.
II.
Background
A.
Decision
[8]
In his decision, the member began by describing
the test that he must apply under paragraph 34(1)(f) of the IRPA to
determine whether a person should be declared inadmissible for security
reasons. This test has two branches: it must be determined whether there are
reasonable grounds to believe that Ms. Mirmahaleh is a member of the
organization in question, and whether the organization committed, is committing
or will commit terrorist acts.
[9]
In his analysis, the member responded to the six
grounds raised by Ms. Mirmahaleh and her counsel to attack the Minister’s
conclusion regarding Ms. Mirmahaleh’s inadmissibility.
[10]
First, the member found that merely being a
member of a terrorist organization is sufficient to meet the membership
requirements under paragraph 34(1)(f). More specifically, he
refused to apply the complicity test from Ezokola v Canada (Citizenship and
Immigration), 2013 SCC 40 [Ezokola] to the interpretation of “member” and to inadmissibility under paragraph 34(1)(f).
He relied on recent case law establishing that criteria for finding membership
in a terrorist group are relatively easy to meet (Kanagendren v Canada (Citizenship
and Immigration), 2015 FCA 86 [Kanagendren] at para 22); Haqi
v Canada (Citizenship and Immigration), 2014 FC 1167 [Haqi] at paras 36-37).
[11]
Relying on the definition of “member”
established in Jalloh v. Canada (Citizenship and Immigration),
2014 FC 317, the member found that Ms. Mirmahaleh is a member of the MEK. She
did indeed carry out acts in furtherance of the group’s goals, such as organizing
information sessions with her students and with women in the region,
distributing propaganda and participating in political activities. Furthermore,
Ms. Mirmahaleh’s ideals were consistent with the group’s objectives. The
member also noted that Ms. Mirmahaleh continued to support the MEK’s cause
after her arrival in Canada at the beginning of this decade.
[12]
The member then determined that the MEK is a
terrorist organization on the basis of the documentary evidence. This evidence
ties the MEK to, among other things, indiscriminate killings, bomb or mortar
attacks causing civilian casualties, suicide attacks and hostage takings.
[13]
The member rejected Ms. Mirmahaleh’s
assertion that she is against violence. He found this statement not to be
credible because nothing in her “Basis of Crime”,
her interview with the immigration officer or her testimony before the tribunal
indicated that Ms. Mirmahaleh had protested or objected to the MEK’s
violent methods. The member referred to, among other things, Ms. Mirmahaleh’s
claim that she condemned the MEK’s use of violence to further its political
goals. From this condemnation of the use of violence, the member drew a
different conclusion, finding that Ms. Mirmahaleh therefore had at least
some knowledge of the MEK’s violent actions.
[14]
Finally, the member dismissed Ms. Mirmahaleh’s
argument that the MEK is no longer on the lists of terrorist organizations kept
by Canada and several other countries. He stated that temporal considerations
do not come into play under paragraph 34(1)(f) and that, in any
event, Ms. Mirmahaleh shared the MEK’s objectives when she was actively
supporting them.
B.
Standard of review
[15]
The standard of review applicable to the test
for determining inadmissibility for security reasons is reasonableness. Neither
party contests this. Questions concerning the terrorist nature of an
organization and an individual’s membership in a terrorist organization are
questions of fact or questions of mixed fact and law that must be considered in
accordance with the reasonableness standard (Farkohondehfall v Canada (Citizenship
and Immigration), 2010 FC 471 [Farkohondehfall] at paras 25-26;
Poshteh v Canada (Minister of Citizenship and Immigration), 2005 FCA 85
[Poshteh] at paras 21-24).
[16]
As for the standard of proof to be met to
establish “reasonable grounds to believe”, it
requires more than a flimsy suspicion, but less than the civil test of a “balance of probabilities”. It is a bona fide
belief in a serious possibility based on credible evidence, which is also
assessed in light of the reasonableness standard (Jalil v Canada (Citizenship
and Immigration), 2006 FC 246 at para 27).
[17]
Reasonableness requires consideration of the
existence of justification, transparency, and intelligibility in the
decision-making process, and it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47; Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 at para 16 [Newfoundland Nurses]). In this context,
the Court must defer to the tribunal’s decision and not substitute its own
reasons. However, the Court may, if it finds it
necessary, look to the record for the purpose of assessing the reasonableness
of the outcome (Newfoundland Nurses at para 15).
III.
Analysis
A.
Is the MEK a terrorist organization?
[18]
Ms. Mirmahaleh submits that the tribunal erred
in finding that the MEK is a terrorist organization. She argues that the tribunal
ignored the recent decision of the Canadian government to remove the MEK from
the list of terrorist organizations. She also points to the evidence to the
effect that several foreign governments no longer consider it to be a terrorist
group. Ms. Mirmahaleh adds that this supports her claims that the Iranian
government was spreading disinformation about the MEK during the period she
took part in its activities. For all these reasons, she asserts that the
member’s conclusion is unreasonable.
[19]
The Court cannot agree with these arguments. I
find, on the contrary, that in light of the evidence available to the member,
his decision is within the range of possible, reasonable outcomes in respect of
the facts and law. Ms. Mirmahaleh is simply asking the Court to reassess
the evidence and substitute its own reading of it for that of the member. This
is not the Court’s role on judicial review.
[20]
In his decision, the member reviewed the
abundant documentary evidence regarding the terrorist acts committed by the MEK.
He mentioned bombings, murders of civilians between 1973 and 1976, the
hostage-taking at the United States embassy in Teheran in 1979, suicide
attacks, a bombing that that killed 70 people and simultaneous attacks
against Iranian delegations in ten different countries, including at the United
Nations in New York. These acts are consistent with the definition of terrorism
laid down in Suresh v Canada (Citizenship and Immigration), 2002 SCC 1 [Suresh],
cited by the member in his analysis: a terrorist act is an “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” (at
para 98).
[21]
The fact that the MEK is no longer classified as
a terrorist organization is not relevant in the circumstances, since
paragraph 34(1)(f) does not require a temporal connection between
membership and the acts of terrorism (Najafi v Canada (Public Safety and
Emergency Preparedness), 2014 FCA 262 [Najafi] at para 101; Gebreab
v Canada (Public Safety and Emergency Preparedness), 2010 FCA 274). Furthermore,
the MEK was removed from the list of terrorist organizations because it no
longer resorts to violence, not because the evidence on which the previous
classifications were based was reassessed. In other words, its removal from the
list does not erase the MEK’s terrorist past.
[22]
Finally, I note that the courts have previously
identified the MEK as a terrorist organization (Poshteh
at para 5; Motehaver v Canada (Public Safety and Emergency
Preparedness), 2009 FC 141 at para 3). It is therefore clear that the
member’s finding in this regard is not unreasonable.
[23]
The member founded his analysis on reasonable
grounds to believe that the MEK was a terrorist organization and performed an
objective assessment of the evidence. It is true that the “reasonable grounds
to believe” standard requires something more than a mere suspicion, but less
than the standard applicable in civil matters of proof on the balance of
probabilities (Mugesera v Canada (Minister of Citizenship and Immigration), 2005
SCC 40 at para 114). Ms. Mirmahaleh submits that the member ignored
several items of evidence tendered by her, particularly newspaper articles
commenting on the dropping of terrorism charges against the MEK in France,
excerpts from Canadian regulations removing the MEK from the list of terrorist
organizations, and American, European and British decisions to take the MEK off
their lists of terrorist organizations. She claims that the tribunal did not
assess and consider all the evidence.
[24]
I disagree.
[25]
A tribunal is presumed to have considered all
the evidence and is not required to refer to each constituent element of that
evidence (Newfoundland Nurses at para 16). Failure to refer to
every piece of evidence does not mean that not all the evidence was considered (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425
at para 16). It is only when a tribunal is silent on evidence clearly
pointing to the opposite conclusion that the Court may intervene and infer that
the tribunal overlooked the contradictory evidence when making its finding of
fact (at para 17).
[26]
The member’s decision, however, mentions several
documents to which the tribunal ascribed more significance than Ms. Mirmahaleh
would have liked. He relied on evidence from an article by the National Defense
Research Institute and from reports by Jane’s World Insurgency and Terrorism, the
US Department of Justice and other government sources. These documents describe
indiscriminate killings, bomb and mortar attacks that caused civilian casualties,
suicide attacks and hostage-takings. There can be no doubt that, in light of
this evidence, the tribunal’s decision falls within the range of possible,
acceptable outcomes available to the member.
B.
Did the tribunal err in its assessment of
Ms. Miramaleh’s membership in the MEK?
[27]
With regard to her membership in the MEK, Ms. Mirmahaleh
submits that in Iran, she supported the MEK for a very short period only, in a
limited capacity in which she was not aware of the organization’s violent
activities. She adds that in Canada, she limited her participation to protests
and did not become any more deeply involved in the MEK’s activities than that.
[28]
Ms. Mirmahaleh argues that in Iran, she
knew nothing of the MEK’s terrorist activities and was, rather, attracted by
the message of freedom of the press, equality for men and women and the right
to free elections that the organization espoused. Her work involved holding
discussions with her students and the women in her village and distributing the
MEK’s documentation. According to her, the MEK’s publications did not mention
resorting to violence to achieve its goals. She submits that it was up to the
Minister to show that the MEK’s publications advocated violence and terrorist
activities, which he did not do. Ms. Mirmahaleh states that she was
unaware of the terrorist activities attributed to the MEK because she lived in
a small, remote village which the news did not reach at that time, and that she
did not have access to reliable sources regarding the organization’s true
activities. Her activities were therefore insufficient for the member to
reasonably conclude that she was a member of the MEK.
[29]
I cannot agree with Ms. Mirmahaleh’s
position. Once again, I cannot conclude that the tribunal’s assessment of the
evidence could be characterized as unreasonable in the circumstances.
[30]
The term “member”
of an organization in paragraph 34(1)(f) of the IRPA must be given
an unrestricted and broad interpretation (Poshteh at para 27). A
person who distributes propaganda leaflets meets this membership test even if
he or she does this only once or twice a month (Poshteh at para 5).
Moreover, this test does not require any complicity or knowing participation in
an act of terrorism (Kanapathy v Canada (Public Safety and Emergency Preparedness),
2012 FC 459 [Kanapathy] at para 35). In Kanapathy, a
journalist working for a newspaper that supported and was controlled by a
terrorist organization was considered to belong to that organization. The Court
also stressed the importance of media propaganda to an organization’s
activities and reaffirmed the very broad scope of the concept of membership
under paragraph 34(1)(f) of the IRPA (Kanapathy at
para 36).
[31]
The member found Ms. Mirmahaleh’s claim
that she was unaware of the MEK’s use of violence to not be credible. In light
of the evidence in the record, I am of the opinion that such a finding is not
unreasonable. I note that Ms. Mirmahaleh was one of the most educated
women in her village and had been attracted to the MEK after studying its publications.
Furthermore, she was assigned to publicizing and disseminating the MEK’s
activities and propaganda in her village. This was not a trivial or
insignificant role. In such circumstances, to find that it was improbable that Ms. Mirmahaleh
was unaware of the MEK’s violence clearly falls within the range of acceptable,
possible outcomes that were open to the member. Indeed, it is difficult to
imagine how Ms. Mirmahaleh could have had no knowledge of the generalized
violence that was gripping Iran at the time while being trusted enough to be
the MEK’s standard bearer in her village.
[32]
Moreover, Ms. Mirmahaleh’s claim that she
supported the MEK for a very limited period (from 1979 to 1982) is of little
assistance to her. First, her activities lasted long enough to cause her to
lose her job and be imprisoned. Second, her support for the MEK’s activities
continued in Canada, if only in the context of protests.
[33]
Finally, I should mention that the motivations
behind Ms. Mirmahaleh’s political involvement, as laudable as they might
be, are not a saving factor recognized by the case law that would make a
terrorist activity more acceptable. That a group has legitimate objectives does
not justify engaging in terrorist activities (Najafi at paras 89-90;
Kanagendran v Canada (Citizenship and Immigration), 2014 FC 384 at
para 21; Erbil v Canada (Citizenship and Immigration), 2008 FC 780 at
paras 60-61; Oremade v Canada (Citizenship and Immigration), 2006
FC 1486 at para 12).
[34]
In her oral arguments before the Court, Ms. Mirmahaleh
talked about how the Supreme Court’s judgment in Ezekola should apply in
this case. On this point, it is sufficient to recall the words of Justice Gagné
in Haqi, which I adopt. In that case, she stated at para 37 that Ezekola,
being a case dealing with the notion of complicity in the context of an
international convention, had no impact on the interpretation the Federal Court
of Appeal gave to paragraphs 34(1)(b) and (f) of the IRPA. This
conclusion was also explicitly reaffirmed by the Federal Court of Appeal in Kanagendren,
at para 28.
[35]
The member relied on Ms. Mirmahaleh’s
active participation in the MEK’s activities to conclude that there were
reasonable grounds to believe that she was a member of the organization within
the meaning of paragraph 34(1)(f) of the IRPA. It was therefore not
unreasonable in the circumstances that the member would gather from the
evidence that Ms. Mirmahaleh was a member of the MEK.
C.
Did the tribunal err in law in shifting the
burden of proof to Ms. Mirmahaleh?
[36]
Under section 33 of the IRPA, it is clear
that the Minister bears the burden of proving inadmissibility on security
grounds and must have reasonable grounds to believe that the facts or acts
mentioned have occurred, are occurring or may occur. Ms. Mirmahaleh criticizes
the approach adopted by the member in his decision, who proceeded to respond to
each of the arguments raised by her counsel before the IRB. She argues that, in
so doing, the member erred by not analyzing the evidence submitted by the
Minister and by shifting the burden of proof to her.
[37]
I am of the view that such a reading of the
decision has no merit. It is clear from the decision that the tribunal set out
and applied the correct test. It determined that the test’s two components (the
terrorist nature of the MEK and Ms. Mirmahaleh’s membership in the group)
had been met. That the tribunal did so by repeating each of the arguments made
by Ms. Mirmahaleh instead of opting for a structure more directly based on
the test itself does not mean that the burden of proof was reversed. It is
obvious, upon reading the decision, that the analysis of Ms. Mirmahaleh’s
arguments allowed the member to review all the evidence and draw from it all
the reasons for which the requirements under paragraph 34(1)(f) of
the IRPA were met.
[38]
In response to the Minister, Ms. Mirmahaleh
submits that it is not the structure of the decision that reversed the burden
of proof, but the application of the test to the facts, particularly with
regard to the designation of the MEK as a terrorist organization. According to Ms. Mirmahaleh,
the evidence before the member regarding the designation of the MEK should have
been interpreted differently. Once again, Ms. Mirmahaleh is asking the
Court to reassess the evidence and substitute its own opinion for that of the
member. This is not the Court’s role in an application for judicial review.
IV.
Conclusion
[39]
For the foregoing reasons, Ms. Mirmahaleh’s
application for judicial review is dismissed. The member’s decision finding
reasonable grounds to believe that the MEK is a terrorist organization of which
Ms. Mirmahaleh is a member is transparent and
intelligible and falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law. The parties did
not raise any questions for certification in their oral and written
submissions, and I agree that there are none in this case.
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