Docket: IMM-1414-14
Citation:
2015 FC 1096
Ottawa, Ontario, September 21, 2015
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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TEKIE BEYEN
HAILU
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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]
In 2005, Mr Tekie Beyen Hailu obtained refugee
protection in Canada based on his fear of political persecution in Eritrea. He applied for permanent residence in Canada but was turned down on the basis that
he was inadmissible for having been a member of an organization that had
engaged in terrorism (pursuant to ss 34(1)(f), 34(1)(c) of the Immigration
and Refugee Protection Act [IRPA], SC 2001, c 27 – see Annex for enactments
cited).
[2]
In particular, Citizenship and Immigration
Canada [CIC] concluded that there were reasonable grounds to believe that Mr
Hailu had been a member of the Eritrean Liberation Front [ELF] and the
ELF-Revolutionary Council [ELF-RC].
[3]
Mr Hailu contends that CIC treated him unfairly
by relying on two reports that were never disclosed to him. In addition, he
maintains that CIC’s decision was unreasonable because it applied overly broad
definitions of both “membership” and “terrorism”. Finally, Mr Hailu argues that the
decision violated his rights under s 7 of the Canadian Charter of Rights and
Freedoms. He asks me to overturn CIC’s decision and return his application
for reconsideration.
[4]
I agree with Mr Hailu that he was treated
unfairly. This is a sufficient basis on which to allow this application for
judicial review. I need not deal with the other grounds Mr Hailu raised.
II.
Factual Background
[5]
Mr Hailu became a member of the ELF in 1979 when
he was almost 20 years old. He attended meetings, handed out leaflets, helped
raise funds, and recruited youth members. His activities resulted in his being
detained by the Mengistu regime for three months in 1981. He was tortured and
shackled.
[6]
On his release, Mr Hailu left Eritrea to live in Addis Ababa, Ethiopia. He returned to Eritrea in the early 1990s after the ELF
had been defeated by the Eritrean People’s Liberation Front [EPLF]. He resumed
his activities in the ELF.
[7]
Mr Hailu opposed the war that broke out between Eritrea and Ethiopia in 1998. Police came looking for him in 2000, so he fled to Sudan. From there,
he voiced his criticism of the EPLF and its human rights violations.
[8]
Mr Hailu left Sudan in 2001 because of the poor
treatment of Eritrean refugees there. An agent arranged for him to leave for
the United States, travelling through China and Korea. Mr Hailu sought asylum
in the US, and was detained there for 35 days. After his release, he lived with
relatives, and attended anti-EPLF demonstrations.
[9]
Mr Hailu’s US asylum claim was turned down and
he was ordered to leave the country in 2004. He travelled to in Canada and
claimed refugee protection here.
[10]
In 2005, CIC informed Mr Hailu that he might be
inadmissible under s 34(1)(f) of IRPA, but later determined that there
was insufficient evidence to support that allegation. Later that year, a panel
of the Immigration and Refugee Board granted Mr Hailu’s application for refugee
protection. Mr Hailu immediately applied for permanent residence.
[11]
In 2010, after considering the results of
interviews with Mr Hailu and reviewing his written submissions, CIC concluded
that he was inadmissible to Canada as a member of the ELF and ELF-RC.
III.
CIC’s Decision
[12]
CIC reviewed the history of the conflict between
Eritrea and Ethiopia and described the roles of ELF and ELF-RC. In particular,
it outlined the conflicts and attacks in which the ELF had been involved prior
to 1972.
[13]
CIC based its decision regarding Mr Hailu’s
inadmissibility on interviews with him and on his various written submissions.
It found that, while Mr Hailu had not engaged in any armed conflicts or
military service, he had attended secret meetings, distributed materials,
raised funds, and recruited other members, and therefore he was a member of a
terrorist organization under s 34(1) of IRPA.
[14]
CIC also took note that the term “membership”
has a broad and unrestricted meaning in the case law, which is reflected in CIC’s
Enforcement Manual. It drew the definition of “terrorism”
from Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC
1 and the Criminal Code, RSC 1985, c C-46.
[15]
Based on these sources, CIC concluded that Mr
Hailu had been a member of the ELF and the ELF-RC from 1979 to 2005.
IV.
Issue One – Was Mr Hailu treated unfairly?
[16]
Along with the other materials before it, CIC
also received a 2007 security brief and a 2008 report from the Canadian
Security Intelligence Service [CSIS]. Mr Hailu was not given an opportunity to
respond to the contents of those reports.
[17]
The Minister argues that Mr Hailu was not
treated unfairly given that he was provided ample opportunity to respond to the
allegations of inadmissibility. Further, the reports did not set out any new
evidence or a definitive conclusion on Mr Hailu’s potential inadmissibility.
[18]
In my view, it was unfair for CIC to rely on the
reports without giving Mr Hailu an opportunity to respond to them. CIC’s
decision on inadmissibility addressed an issue of vital concern to Mr Hailu:
whether he was entitled to permanent residence in Canada. The reports were
authored by agencies whose opinions about Mr Hailu’s inadmissibility were
likely to be highly influential. Reliance on those reports without input from
Mr Hailu could result in an incorrect or inapt conclusion about his
admissibility. There were no administrative or financial costs that would have
been incurred by disclosing the reports to Mr Hailu and inviting his response
(see factors set out in Bhagwandass v Canada (Minister of Citizenship and Immigration),
2001 FCA 49 at para 22).
[19]
For example, the 2007 report stated that Mr
Hailu claimed “that he did not participate in the
violence but he certainly must have had knowledge of it and despite that
knowledge, opted to continue his membership” in the ELF. Mr Hailu was
not given a chance to dispute that opinion. In addition, he had no idea that
CSIS had concerns about his admissibility and had made recommendations to CIC
on that subject.
[20]
In these circumstances, I find that CIC treated
Mr Hailu unfairly.
V.
Conclusion and Disposition
[21]
CIC treated Mr Hailu unfairly by preventing him
from seeing and responding to reports on which CIC relied in concluding that he
was inadmissible to Canada. I must, therefore, allow this application for
judicial review and order CIC to reconsider the issue of Mr Hailu’s
admissibility. No question of general importance arises.
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