Docket: IMM-1232-14
Citation:
2015 FC 1220
Ottawa, Ontario, October 28, 2015
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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ZEID ABU RAYAN
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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
[1]
The applicant, Zeid Abu Rayan, seeks judicial
review pursuant to section 72 of the Immigration and Refugee Protection Act
[the Act] of the decision of a Citizenship and Immigration Officer [the
Officer] which refused his application for permanent residence as a protected
person on the basis that he is a person described under paragraph 34(1)(c) of
the Act and is, therefore, inadmissible to Canada on security grounds because he
engaged in acts of terrorism.
[2]
For the reasons that follow, the application is
dismissed. The applicant has not established that there was a breach of
procedural fairness arising from any abuse of process. The Officer reasonably
found that there were reasonable grounds to believe that the applicant had
engaged in acts of terrorism.
Background
[3]
The applicant’s efforts to seek permanent
residence in Canada date back to 1999. To provide the necessary context for the
decision, a description of the key events is provided, based on both the
applicant’s and respondent’s account.
[4]
The applicant is Palestinian and a citizen of
Israel. The applicant recounts that he became an informant for the Israeli
security and intelligence service, Shabak. He investigated other Palestinians
and provided false statements in court to convict other Palestinians. Due to
his role as an informant, he was released from prison after serving three years
of a six year sentence imposed following his conviction for security-related
offences. Shabak then helped him resettle and become a permanent resident and
citizen of Israel.
[5]
The applicant arrived in Canada in January 1999
and made a claim for refugee protection. He was interviewed by the Canadian
Security Intelligence Service [CSIS] in May 2000. His claim for refugee
protection was refused in January 2002.
[6]
The Refugee Protection Division of the
Immigration and Refugee Board [the Board] noted that the applicant had claimed
that he was detained in 1984 for political activities. He then provided
information to Israeli intelligence about Palestinians trying to produce
explosives. He was arrested along with those he provided information about and
sentenced to six years of imprisonment. However, he served only three years due
to his role as an informant. The Board also noted a document regarding a
request for an arrest warrant in Israel in 1996. Although that document refers
to the applicant’s conviction for his role in laying explosives and
security-related offences, the Board only referred to the fact that the
indictment was not pursued (i.e., it remains unclear what the Board knew about
his involvement with the explosives).
[7]
The Board found that the applicant faced a
serious possibility of persecution in the West Bank, but that he could live in
Israel and benefit from its state protection. The Board denied his claim for
refugee protection.
[8]
The Court refused the applicant’s application
for leave and for judicial review in May 2002.
[9]
The respondent notes that the applicant’s
account of the events underlying his conviction varied between interviews. The
applicant claims he was arrested and convicted for engaging in demonstrations.
The respondent asserts that the applicant was convicted due to his
participation in the laying of explosives near Israeli military patrols and his
participation in demonstrations. The applicant admits that he was involved with
other youth who let off explosives consisting of matches in pipes to scare
soldiers as a form of psychological warfare. He also admits to using explosives
to scare animals.
[10]
Following the refusal of refugee protection, a
negative Pre-Removal Risk Assessment [PRRA] was rendered in July 2003 and a
deportation order was issued. He left Canada in August 2003.
[11]
The applicant later returned to Canada in July
2005 and again claimed refugee protection. Pursuant to paragraph 101(1)(b) of
the Act he was ineligible because his claim had previously been heard and
rejected and he did not have Ministerial Consent to return, as required by
subsection 52(1) of the Act. However, he was entitled to a PRRA.
[12]
The PRRA decision, dated August 29, 2005, found
that he was a person in need of protection pursuant to paragraph 97(1)(b) of
the Act. The PRRA officer found that new evidence, arising from the applicant’s
return to Israel in 2003, established that state protection would not be
provided to him by Israel. The applicant was granted status as a protected
person in Canada. He was advised that he could apply for permanent resident
status and did so.
[13]
On February 24, 2009, the applicant was advised
by the Officer that his application for permanent residence may be refused
because he may be inadmissible to Canada under paragraphs 34(1)(c) and 36(1)(b)
of the Act. The Officer invited the applicant to an interview and requested
that he provide several documents. The applicant provided the requested
documents, along with written submissions, and attended the interview on March
25, 2009.
[14]
On April 1, 2009, the Officer sent the applicant
a letter regarding an application for Ministerial Relief from inadmissibility,
noting that this was raised at the interview. A separate letter, also dated
April 1, 2009, set out the provisions for Ministerial Relief and invited the
applicant to make submissions.
[15]
On April 4, 2009, the applicant responded in a
six page letter indicating that he did not wish to be considered for
Ministerial Relief because he had not committed any criminal or terrorist acts.
His letter reiterated his earlier submissions and also suggested that he was
being discriminated against.
[16]
The Officer provided a memorandum to the Canada
Border Services Agency [CBSA] Director of Security Review on December 17, 2009,
which reviewed the applicant’s immigration history and the information
gathered. The Officer referred to section 34 of the Act and the standard of
“reasonable grounds to believe.” The Officer set out the full definition of
“terrorist activity” in section 83.01 of the Criminal Code, RSC 1985, c
C-46, and noted that one of the elements described in the definition states
that terrorist activity means an act “that intentionally causes a serious risk
to the health or safety of the public or any segment of the public.” The
Officer also referred to the definition set out in the Supreme Court of
Canada’s decision in Suresh v Canada (Minister of Citizenship and
Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 [Suresh]. The Officer
provided background information on the applicant’s conviction for
“security-related offences” in 1984; reviewed the applicant’s submissions about
his experiences in Israel; and, reviewed the evidence regarding Shabak and the
treatment of Palestinians who work as collaborators with the Israeli
government.
[17]
The Officer noted that there is evidence that
the applicant was incarcerated for laying explosives and being a security
threat to Israel. The Officer also noted that the applicant stated during his
CSIS interview in 2000 that he associated with youths who made pipe bombs to
scare Israeli soldiers but, in his more recent statements, he admitted that he
made these devices only to scare small animals and as “childrens’ games” [sic].
[18]
The Officer concluded that there were reasonable
grounds to believe that the applicant participated in acts of terrorism and is,
therefore, inadmissible pursuant to paragraph 34(1)(c).
The
Decision Under Review
[19]
The decision letter, dated December 12, 2013,
was communicated to the applicant on February 11, 2014.
[20]
The decision letter reiterates verbatim the
conclusion of the Officer’s 2009 memorandum. The Officer noted the applicant’s
conviction in Israel for security-related offences, his six year sentence, his
release after three years due to his collaboration with Shabak and that he
became an Israeli citizen in 1994.
[21]
Considering all of the evidence and the
applicant’s varying explanations, the Officer found that there are reasonable
grounds to believe that the applicant was involved in acts of terrorism,
specifically, the lighting of explosives. The Officer refused the application
for permanent residence based on finding that the applicant is inadmissible to
Canada on security grounds pursuant to paragraph 34(1)(c) of the Act.
[22]
The applicant acknowledges that the 2009
memorandum is part of the Officer’s reasons for the decision.
The Issues
[23]
The applicant argues:
•
The delay in rendering a decision on the
applicant’s inadmissibility is an abuse of process and a breach of procedural
fairness;
•
The Officer erred in law by failing to address
and apply the correct definition to determine inadmissibility for “engaging in
terrorism” and by failing to conduct the appropriate analysis; and,
•
The Officer ignored relevant evidence and
submissions.
The
Standard of Review
[24]
Questions of fact and of mixed law and fact are
reviewed on the standard of reasonableness.
[25]
It is well settled that where the standard of
reasonableness applies, the role of the Court is to determine whether the
Board’s decision “falls within ‘a range of possible,
acceptable outcomes which are defensible in respect of the facts and law’ (Dunsmuir,
at para. 47). There might be more than one reasonable outcome. However, as long
as the process and the outcome fit comfortably with the principles of justification,
transparency and intelligibility, it is not open to a reviewing court to
substitute its own view of a preferable outcome” (Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59, [2009] 1 SCR
339, citing Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]).
The Court cannot reweigh the evidence or remake the decision.
[26]
A reasonable decision has also been described as
one that can stand up to a somewhat probing examination (Baker v Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 63, 174
DLR (4th) 193, citing Canada (Director of Investigation and Research) v
Southam Inc, [1997] 1 S.C.R. 748 at para 56, 144 DLR (4th) 1).
[27]
In Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland
Nurses], the Supreme Court of Canada elaborated on the requirements of Dunsmuir,
noting that the reasons for a decision are to “be read
together with the outcome and serve the purpose of showing whether the result
falls within a range of possible outcomes” and that courts “may, if they find it necessary, look to the record for the
purpose of assessing the reasonableness of the outcome” (at paras
14-16). The Court summed up its guidance in para 16:
In other words, if the reasons allow the
reviewing court to understand why the tribunal made its decision and permit it
to determine whether the conclusion is within the range of acceptable outcomes,
the Dunsmuir criteria are met.
[28]
Issues of procedural fairness are reviewed on
the standard of correctness and no deference is owed (Khosa at para 43; Sketchley
v Canada (Attorney General), 2005 FCA 404 at para 53, [2006] 3 FCR 392).
The delay does not amount to an abuse of process
[29]
The applicant submits that the delay in
rendering the decision regarding his inadmissibility is an abuse of process
which is a breach of procedural fairness and, as a result, the decision should
be set aside and redetermined. The applicant does not seek a stay of
proceedings due to the allegation of abuse of process.
[30]
The applicant submits that the respondent had
all the information regarding his involvement in security-related offences in
Israel in 1999, the time of his application for refugee protection, and in
2000, at his first interview with CSIS, yet it did nothing with that
information until 2009. Moreover, the Officer did not communicate the decision
regarding the applicant’s inadmissibility to Canada until 2014. The applicant
also submits that the respondent cannot rely on its change of policy, which
previously held applications for Ministerial Relief in abeyance, for any part
of the delay because the applicant did not ask for Ministerial Relief.
[31]
The applicant argues that this inordinate delay
was caused by the respondent and, as a result, he suffered prejudice, including
increased stress due to the uncertainty of his status. He submits that he would
not have returned to Canada in 2005 if he had known he would face such a delay
in resolving his status. The results of his inadmissibility finding are severe,
including his inability to obtain a passport and the need for constant renewal
of work permits, among other consequences. The applicant adds that due to the
passage of time, it is increasingly difficult, or perhaps impossible, for him
to obtain information to defend against the allegations.
[32]
Although there was a delay in making the
determination that the applicant is inadmissible to Canada, I do not agree that
the delay was either inordinate in the circumstances or that the applicant has
been prejudiced by the delay to the extent that it constitutes an abuse of
process.
[33]
The jurisprudence has established that delay,
without more, does not amount to abuse of process. The threshold for finding an
abuse of process for delay is extraordinarily high and few cases amount to the
“clearest of cases” that meet the threshold (Blencoe v British Columbia
(Human Rights Commission), 2000 SCC 44 at para 101, [2000] 2 S.C.R. 307 [Blencoe]).
[34]
In Canada (Minister of Citizenship and
Immigration) v Parekh, 2010 FC 692, [2012] 1 FCR 169, Justice
Tremblay-Lamer summarized the principles regarding abuse of process with
reference to Blencoe, noting:
[24] Generally speaking, a court will find that an attempt to apply
or enforce legislation has become an abuse of process when the public interest
in the enforcement of legislation is outweighed by the public interest in the
fairness of administrative or legal proceedings; see Blencoe v. British
Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at
par. 120, […]
[25] Such a situation can arise as a result of undue delay in the
enforcement of legislation. This will often be so when delay causes the hearing
of the matter to become unfair (for example, because memories of witnesses have
faded or evidence has otherwise become unavailable). However, Justice
Bastarache, speaking for the majority of the Supreme Court in Blencoe,
above, at par. 115, was "prepared to recognize that unacceptable delay may
amount to an abuse of process in certain circumstances even where the fairness
of the hearing has not been compromised." Justice Lebel, dissenting in
part, but not on this issue, put the point more forcefully, at par. 154:
"[a]busive administrative delay is wrong and it does not matter if it wrecks
only your life and not your hearing."
[26] In order for delay to amount to abuse of process, "the
delay must have been unreasonable or inordinate." (Blencoe, above,
at par. 121.) Delay must not only be greater than normal, but also have caused
the defendant a substantial prejudice. In other words, it must be
"unacceptable to the point of being so oppressive as to taint the
proceedings." (Ibid.)
[35]
Justice Tremblay-Lamer also referred to the
principles from Blencoe that the analysis of the reasonableness of the
delay must be factual and contextual (at paras 27-28), and include
consideration of the nature of the case, its complexity, whether the respondent
contributed to the delay, the causes of the delay and its impact.
[36]
Although the applicant contends that all the information
relied on by the respondent to find him inadmissible was provided by him and
available to the respondent and to the Board prior to the applicant’s failed
refugee claim in 2002, the record does not conclusively confirm what
information was known to the Board at what date. As noted above, the Board’s
decision refers to the applicant’s involvement in political activities, but the
Board’s reference to the Israeli arrest warrant application in 1996 does not
note the basis of the previous conviction.
[37]
The applicant referred to the provision of
information to the Board and the information from CSIS and CBSA. However, it
remains unclear what the applicant disclosed, to whom and when. Therefore, it
is not clear that the respondent had the information at the time of the
applicant’s arrival in Canada in 1999 that it later relied on to find him
inadmissible.
[38]
The applicant’s submission that he would not
have returned to Canada had he known the uncertainty he would face is not
persuasive given that he had been deported from Canada in 2003 and would or
should have been aware of the impediments to claiming refugee protection if he returned.
[39]
The applicant returned to Canada in 2005 without
the required consent of the Minister to do so. In my view, the delay that would
be relevant to any abuse of process argument would only arise from his return
to Canada in 2005. This almost nine year delay in making the decision is, in
part, attributable to the assumption by the respondent, whether correct or not,
that the applicant had requested Ministerial Relief.
[40]
As the applicant notes, in his submissions in
April 2009, he stated that he was not asking for Ministerial Relief as he
claimed that his conduct was not criminal. However, he provided extensive
submissions which the Officer could have reasonably interpreted as a request
for such relief despite his initial statement, particularly since the applicant
was not represented by counsel and the issue of Ministerial Relief had been
raised with the applicant at the in-person interview. In addition, the
applicant did not follow-up with a demand for a decision despite his statement
that he did not seek Ministerial Relief.
[41]
As the respondent notes, its policy was to hold
applications for permanent residence in abeyance when an application for
Ministerial Relief from inadmissibility was pending. This policy changed in
2013.
[42]
Whether or not the delay was caused by the
assumption that the applicant had asked for Ministerial Relief, the delay is
not unreasonable or inordinate when the context is taken into account.
[43]
The respondent has an obligation to determine
whether the applicant is admissible. While the information sharing between
CSIS, CBSA and Citizenship and Immigration does not appear to be seamless,
given the importance of the issues at stake and of ensuring that the Act is
respected, such decisions will take time. Moreover, in the present case, the
information provided by the applicant was not consistent.
[44]
In addition, the applicant has not established
that he suffered substantial prejudice as a result of the delay. The prejudice
alleged regarding the difficulties he would have collecting information from
the Israeli authorities about his conviction would have also existed between
2006 and 2009 and even in 2000, if that period were taken into account. Once he
sought the protection of another country, as he did in Canada in 1999 and 2005,
it may have been difficult to obtain necessary documents or other information from
Israel from that time on.
[45]
It is understandable that uncertainty in the outcome
of the applicant’s permanent residence has increased the stress he previously
claimed to have suffered. However, there is no documentary evidence from the
applicant to support his condition. Moreover, he returned to Canada as an
inadmissible person and some stress should have been anticipated in his efforts
to obtain status in Canada. Despite this, he was granted protected person
status and he was not returned to Israel.
[46]
The decision to not to pursue inadmissibility
proceedings between 2000 and 2002 did not bar the respondent from pursuing them
later, as no decision was made or communicated to the applicant.
[47]
Nor did the decision of the PRRA officer prevent
the Officer from considering the applicant’s admissibility. I agree with the
respondent that there is no clear evidence that the information from the 2000
CSIS interview was before the PRRA officer who determined the applicant’s
claim.
[48]
The applicant has not established that the
respondent’s conduct amounts to an abuse of process.
Did the Officer properly consider and analyze whether the
applicant had engaged in terrorism?
The
Applicant’s Submissions
[49]
The applicant argues that the Officer did not
identify or apply the proper definition of terrorism and that the reasons do
not show how the Officer analyzed the facts to reach the determination that the
applicant engaged in terrorism.
[50]
The applicant submits that the Officer’s
December 2009 memorandum reiterates the test established in Suresh, which
establishes the legal parameters for an assessment under paragraph 34(1)(c) of
the Act, but the Officer did not apply this test. In particular, the Officer
did not consider that the allegations against the applicant did not involve
harm to civilians.
[51]
The applicant adds that even if the Suresh
definition is not definitive and the Officer was entitled to apply the Criminal
Code definition, he failed to address the three elements of the test,
because he referred only to the element of “intentionally
caus[ing] a serious risk to the health or safety of the public”, and not
to the requisite intention or purpose, and failed to analyze how the applicant’s
conduct met the definition.
[52]
The applicant argues that finding that a person
has engaged in terrorism has extremely serious consequences and the Court has
intervened where such findings have not met the established definition in Suresh
(Fuentes v Canada (Minister of Citizenship and Immigration), 2003 FCT
379, [2003] 4 FC 249 (FCTD) [Fuentes], Zarrin v Canada (Minister of
Citizenship and Immigration), 2004 FC 332, 129 ACWS (3d) 579 [Zarrin],
Naeem v Canada (Minister of Citizenship and Immigration), 2007 FC 123,
[2007] 4 FCR 658 [Naeem]). The applicant submits that Pizarro
Gutierrez v Canada (Minister of Citizenship and Immigration), 2013 FC 623,
434 FTR 69 [Gutierrez], where the Court noted that there is no single
definition of terrorism, is out of step with other jurisprudence of the Court.
[53]
The applicant argues that there was no evidence
before the Officer that demonstrated his intention to harm civilians or anyone
else. Although the applicant provided two different explanations for his
activities, the Officer did not state which explanation he believed or how
either explanation constituted terrorism.
[54]
The applicant acknowledges that he associated
with others who detonated explosives to scare Israeli soldiers and that he
informed the Israeli authorities about these activities, but states that he has
always disputed that he participated in the detonation of explosives. He adds
that he consistently stated that these devices were small and noisy but were
not capable of causing harm.
The Respondent’s Submissions
[55]
The respondent notes that section 34 of the Act
does not require proof of engagement in acts of terrorism; rather, section 33
of the Act provides that facts that constitute inadmissibility may be facts
arising from omissions or, unless otherwise provided, facts for which there are
reasonable grounds to believe occurred, are occurring or may occur. The Supreme
Court of Canada described the “reasonable grounds to believe” standard as “something more than a mere suspicion, but less than the
standard applicable in civil matters of the balance of probabilities […] where
there is an objective basis for the belief which is based on compelling and
credible information” (Mugesera v Canada (Minister of Citizenship and
Immigration), 2005 SCC 40 at para 114, [2005] 2 S.C.R. 100).
[56]
The respondent submits that the Officer
reasonably found that the evidence of the applicant’s activities fell within
the definition of terrorism. There were reasonable grounds to believe that the
applicant intentionally laid explosives and participated in bombings in public
areas near military patrols, which would put the safety of civilians at serious
risk. The applicant does not dispute that he was against the Israeli occupation
of the West Bank and that he intentionally engaged in the laying of explosives.
He told immigration officials that he laid explosives and associated with
others who used explosives to scare Israeli soldiers.
[57]
The Officer relied on the information from
Israeli authorities that the applicant was previously convicted for laying
explosives and was sentenced to six years in prison, he admitted to associating
with youths who stuffed match heads into pipes near Israeli military patrols in
his May 2000 CSIS interview, he admitted to scaring small animals with
explosives in his March 4 and April 4, 2009 statements, and he admitted to
playing with matches and aluminum pipes in his March 25, 2009 interview.
[58]
The respondent submits that the Officer
understood the definition of terrorism as described in Suresh and in the
Criminal Code. The definition in Suresh is not the only possible
definition of terrorism and that there is no single definition that must be
applied (Gutierrez at paras 27-28). The Officer reasonably relied on the
Criminal Code in his analysis.
The
Decision is Reasonable
The Officer addressed the
definitions of terrorism, analyzed the facts and reasonably found that there
were reasonable grounds to believe that the applicant had engaged in in terrorism
[59]
The Officer’s 2009 memorandum provides the more
detailed reasons for the decision. The Officer cited the relevant provisions in
Suresh and the full definition of “terrorist activity” in subsection
83.01(1) of the Criminal Code.
[60]
In Suresh, the Supreme Court of Canada
provided the following inclusive definition of terrorism at para 98:
[98] In our view, it may safely be concluded, following the International
Convention for the Suppression of the Financing of Terrorism, that
“terrorism” in s. 19 of the Act includes any “act intended to cause death or
serious bodily injury to a civilian, or to any other person not taking an
active part in the hostilities in a situation of armed conflict, when the
purpose of such act, by its nature or context, is to intimidate a population,
or to compel a government or an international organization to do or to abstain
from doing any act”. This definition catches the essence of what the
world understands by “terrorism”. Particular cases on the fringes of
terrorist activity will inevitably provoke disagreement. Parliament is
not prevented from adopting more detailed or different definitions of
terrorism. The issue here is whether the term as used in the Immigration
Act is sufficiently certain to be workable, fair and constitutional.
We believe that it is.
[61]
Subsection 83.01(1) of the Criminal Code
provides definitions for several terms, including:
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“terrorist
activity” means
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« activité
terroriste »
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(a) an act or
omission that is committed in or outside Canada and that, if committed in
Canada, is one of the following offences:
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a) Soit un acte —
action ou omission, commise au Canada ou à l’étranger — qui, au Canada,
constitue une des infractions suivantes :
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[…]
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[…]
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(b) an act or
omission, in or outside Canada,
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b) soit un acte —
action ou omission, commise au Canada ou à l’étranger :
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(i) that is
committed
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(i) d’une part,
commis à la fois :
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(A) in whole or
in part for a political, religious or ideological purpose, objective or
cause, and
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(A) au nom —
exclusivement ou non — d’un but, d’un objectif ou d’une cause de nature
politique, religieuse ou idéologique,
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[…]
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[…]
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(B) endangers a
person’s life,
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(B) met en danger
la vie d’une personne,
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(C) causes a
serious risk to the health or safety of the public or any segment of the
public,
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(C) compromet
gravement la santé ou la sécurité de tout ou partie de la population,
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(D) causes
substantial property damage, whether to public or private property, if
causing such damage is likely to result in the conduct or harm referred to in
any of clauses (A) to (C), or
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(D) cause des
dommages matériels considérables, que les biens visés soient publics ou
privés, dans des circonstances telles qu’il est probable que l’une des
situations mentionnées aux divisions (A) à (C) en résultera,
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(E) causes
serious interference with or serious disruption of an essential service,
facility or system, whether public or private, other than as a result of
advocacy, protest, dissent or stoppage of work that is not intended to result
in the conduct or harm referred to in any of clauses (A) to (C),
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(E) perturbe
gravement ou paralyse des services, installations ou systèmes essentiels,
publics ou privés, sauf dans le cadre de revendications, de protestations ou
de manifestations d’un désaccord ou d’un arrêt de travail qui n’ont pas pour
but de provoquer l’une des situations mentionnées aux divisions (A) à (C).
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and includes a
conspiracy, attempt or threat to commit any such act or omission, or being an
accessory after the fact or counselling in relation to any such act or
omission, but, for greater certainty, does not include an act or omission
that is committed during an armed conflict and that, at the time and in the
place of its commission, is in accordance with customary international law or
conventional international law applicable to the conflict, or the activities
undertaken by military forces of a state in the exercise of their official
duties, to the extent that those activities are governed by other rules of
international law.
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Sont visés par la
présente définition, relativement à un tel acte, le complot, la tentative, la
menace, la complicité après le fait et l’encouragement à la perpétration; il
est entendu que sont exclus de la présente définition l’acte — action ou
omission — commis au cours d’un conflit armé et conforme, au moment et au
lieu de la perpétration, au droit international coutumier ou au droit
international conventionnel applicable au conflit ainsi que les activités
menées par les forces armées d’un État dans l’exercice de leurs fonctions
officielles, dans la mesure où ces activités sont régies par d’autres règles
de droit international.
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[62]
The Officer was not required to apply the
definition set out in Suresh. Zarrin, relied on by the applicant, does not establish that the definition
in Suresh must be followed, rather, Justice Mosley found that the
reasons and evidence in that case did not provide any insight into how the
Officer made a decision and that Suresh would have provided guidance
about how the determination should be made (at para 14). There is also no clear
statement in Fuentes or Naeem that Suresh is the only
definition that should be applied.
[63]
In Gutierrez, Justice de Montigny noted
that there is no definition of terrorism in the Act and while the Court has
relied on the definition in Suresh, that is not the only possible
definition (at paras 27-28). Justice de Montigny explained:
[28] The fact remains
that this is not the only possible definition of terrorism, as shown by the
variety of wording in international instruments and various national statutes.
The Supreme Court, moreover, recognized in Suresh, above, at para 95,
that one searches in vain for an authoritative definition of terrorism. In
choosing not to define terrorism in the IRPA, the Canadian Parliament
refused to restrict itself to a narrow, rigid view of the term and left it to
administrative decision‑makers and ultimately to the courts to develop
the concept flexibly, taking the circumstances into account. Consequently, the
reasonableness of an inadmissibility finding related to terrorism will depend
not on the decision‑maker’s application of a precise definition of this
concept to the facts of the case but on the fit between the definition chosen
(as long as it is reasonable and can be justified in principle) and the
evidence on file. See, to the same effect, Daud at para 11; Jalil
at para 32.
[29] In this case,
the officer chose to apply the definition of “terrorism” in section 83.01
of the Criminal Code. She certainly cannot be faulted for that, and the
applicant did not present any arguments to that effect. It is possible that
this definition is a little broader than the description of terrorism that the
Supreme Court gave in Suresh, above. However, that is not sufficient to
make her decision unreasonable. On the one hand, it must be noted that the
Supreme Court indicated that the notion of terrorism in section 19 of the Immigration
Act, RSC 1985, c I-2 “includes” the description set out at paragraph
27 of these reasons. On the other hand, it was certainly open to the officer to
refer to the definition of terrorism inserted into the Criminal Code
through the Anti‑Terrorist Act, SC 2001, c 41, to the extent that
the IRPA states in its preamble (s 3(1)(i)) that one of its
objectives is 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”. Last, no one could argue that the acts of
violence identified by the officer and committed by the MIR, the FPMR and the
Milices rodriguistes are not acts of terrorism, even by adopting a narrower
definition of terrorism than the one adopted by Parliament in the Criminal
Code.
[64]
The applicant contends that both the Suresh
approach and the Criminal Code definition require that the act be
intended to intimidate the public and the Officer did not analyze how the
applicant’s actions and intention did so. The applicant also argues that the
Officer’s memorandum does not show that the Officer assessed how the
applicant’s actions intentionally endangered a person’s life or caused a
serious risk to the health or safety of the public or any member of the public,
which is one of the elements of the Criminal Code definition cited by
the Officer.
[65]
As noted above, in accordance with Newfoundland
Nurses, the Court will look to the record to assess the reasonableness of
the outcome. In the present case, the record supports the reasonableness of the
decision.
[66]
I do not agree that the Officer failed to assess
how the applicant’s actions led to the Officer’s reasonable grounds to believe
that the applicant engaged in terrorism. The Officer’s 2009 memorandum is
thorough. The Officer noted the complete definition provided in the Criminal
Code as well as the Suresh definition. The Officer also noted that
the reasonable grounds to believe standard requires an objective basis and the
Officer reviewed the facts which support that objective basis. The Officer
considered all the information and noted the applicant’s admissions of his own
conduct in participating with other youth in the setting of explosives and
their purpose of scaring Israeli soldiers, as well as the applicant’s
conviction for security-related offences. The applicant stated that he
demonstrated against the Israeli occupation and that the pipe bombs to scare
soldiers were a form of psychological warfare.
[67]
The Officer was justified in connecting the dots
and finding that there were reasonable grounds to believe that the applicant’s
conduct reflected an intention to cause a serious risk to the health or safety
of the public. Even if soldiers were the intended target, finding that this
posed a risk to others is reasonable. The applicant’s conduct was admitted to
be for a political or ideological purpose and he admitted to participating, either
as a party or directly.
[68]
With respect to the applicant’s argument that
the Officer should have disclosed his independent research on pipe bombs, there
was no breach of procedural fairness. The applicant had described the devices
he had made with the youths he associated with and as such, he conveyed that he
had some knowledge of pipe bombs.
The Officer did not ignore the applicant’s evidence or submissions
[69]
The applicant submits that the Officer did not
take into account that: he was a youth at the time of the events; he only
associated with other youth and did not actively participate in laying
explosives except to scare animals; he was coerced to secure his cooperation
with the Israeli authorities; and, he would not have been granted Israeli
citizenship if the Israeli authorities had considered him to be a terrorist or
a danger to the public.
[70]
As noted above, the Officer’s 2009 memorandum
canvassed all the relevant information and noted the inconsistencies between
the applicant’s accounts. The Officer specifically noted the two different
accounts regarding his participation in the laying of explosives. The
memorandum notes that the applicant admitted to immigration authorities that he
associated with Palestinian youth who laid pipe bombs near Israeli military
patrols. He also admitted that he demonstrated against the Israeli occupation
of the West Bank in 1984. He was subsequently convicted on a security-related
charge. In 1996, the Israeli police unsuccessfully sought a warrant for his
arrest on security grounds.
[71]
The Officer considered the applicant’s age at
the time of the alleged offences and made several references to his age in the
report. While the Officer does not specifically explore whether the applicant
had the requisite knowledge or mental capacity to understand the nature and
effect of his actions, there was no evidence before the Officer to suggest that
the applicant lacked capacity at that time.
[72]
The applicant also argues that his conviction
should not be relied on because it was the result of coercion. The Officer
referred to the Board’s decision (in 2002) which noted Shabak’s recruitment
methods but found that this did not provide a basis for a well-founded fear of
persecution. The applicant did not dispute that he received a reduced sentence,
resettlement assistance, and permanent resident status and citizenship in
Israel due to the information he provided to Shabak. Even if the applicant’s
conviction and sentence were not relied on, the Officer reasonably relied on
the applicant’s own admissions regarding his activities and their purpose.
[73]
The Officer’s finding that there are reasonable
grounds to believe that the applicant participated in acts of terrorism is a
reasonable finding which provides the justification for the Officer’s finding
that the applicant is a person described in paragraph 34(1)(c) of the Act. The
findings which provide justification for the decision are “defensible in respect of the facts and law” (Dunsmuir
at para 47).
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