Date: 20180917

Docket: IMM-5226-17

Citation: 2018 FC 922

Ottawa, Ontario, September 17, 2018

PRESENT:  The Honourable Mr. Justice Fothergill

BETWEEN:

SHAMSUL ALAM

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

JUDGMENT AND REASONS

I.  Overview

[1]  Shamsul Alam is a citizen of Bangladesh. He seeks judicial review of an immigration officer’s decision to refuse his application for permanent residence. The officer found Mr. Alam inadmissible to Canada pursuant to s 34(1)(f) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].

[2]  Mr. Alam was formerly a member of the Bangladesh National Party [BNP]. The immigration officer found there were reasonable grounds to believe the BNP is an organization that engages, has engaged, or will engage in acts of terrorism or subversion contrary to s 34(1)(f) of the IRPA.

[3]  The immigration officer made an explicit finding that the BNP had engaged in activities that constitute terrorism. These included violent protests, rallies, bombings and beatings. They had a political purpose and were intended to intimidate opponents and innocent civilians alike. The activities were directed and organized by the BNP itself, not by rogue elements.

[4]  Having regard to the function of judicial review and the deference owed by this Court to the immigration officer’s expertise, I am satisfied the officer’s conclusion that Mr. Alam is inadmissible pursuant to s 34(1)(f) was reasonable. The application for judicial review is dismissed.

II.  Background

[5]  The BNP and the Awami League [AL] are the two main political parties in Bangladesh. Mr. Alam admitted to being the “organizing secretary” for the student wing of the BNP from 1994 to 2013. He came to Canada on March 20, 2013, and claimed refugee status based on a risk of persecution arising from his prior involvement in the BNP.

[6]  The Refugee Protection Division [RPD] of the Immigration and Refugee Board [IRB] refused Mr. Alam’s claim on July 4, 2013. However, on December 2, 2013, the Refugee Appeal Division of the IRB remitted the matter to the RPD for redetermination. The RPD subsequently found Mr. Alam to be a Convention refugee and a person in need of protection.

[7]  On September 17, 2014, Mr. Alam applied for permanent residence as a protected person.

III.  Decision under Review

[8]  Mr. Alam’s application for permanent residence was refused on November 29, 2017. The immigration officer found there were reasonable grounds to believe the BNP engages, has engaged or will engage in terrorism and/or subversion. According to public documents in the record, the BNP used general strikes (known as “hartals”) and blockades as a means of coercion against the government. These often resulted in violence, property damage and disruption. The officer noted there is no temporal component to an analysis under s 34(1)(f) of the IRPA, and also considered the BNP’s activities after Mr. Alam arrived in Canada.

IV.  Issues

[9]  The sole issue raised by this application for judicial review is whether the immigration officer’s decision was reasonable. This question may be divided into the following sub-issues:

1. What is the standard of review?

2. Was the immigration officer’s determination that the BNP is an organization described in s 34(1)(f) of the IRPA reasonably supported by the evidence?

3. Was the immigration officer’s reliance on the definition of “terrorist activity” in the Criminal Code, RSC 1985, c C-46 reasonable?

4. Was the immigration officer’s finding that there is no temporal component to the analysis under s 34(1)(f) of the IRPA reasonable?

5. Did the immigration officer unreasonably fail to consider Mr. Alam’s particular role and involvement in the BNP?

[10]  Mr. Alam also asks that a question be certified for appeal.

V.  Analysis

A.  What is the standard of review?

[11]  A decision regarding inadmissibility pursuant to s 34(1) of the IRPA involves questions of mixed fact and law, and is subject to review by this Court against the standard of reasonableness (SA v Canada (Public Safety and Emergency Preparedness), 2017 FC 494 at paras 9-10 [SA]; Gazi v Canada (Citizenship and Immigration), 2017 FC 94 at para 17 [Gazi]). The Court will intervene only if the decision falls outside the “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).

[12]  The facts giving rise to inadmissibility must be established on the standard of “reasonable grounds to believe” (IRPA, s 33; Gazi at paras 21-22; Mugesera v Canada (Citizenship and Immigration), 2005 SCC 40 at para 116 [Mugesera]). Reasonable grounds to believe require “something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities” (Mugesera at para 114).

[13]  The question before the Court is not whether there were reasonable grounds to believe Mr. Alam was inadmissible pursuant to s 34(1)(f) of the IRPA. Rather, the question is whether the immigration officer’s conclusion that there were reasonable grounds was itself reasonable (Gutierrez v Canada (Citizenship and Immigration), 2013 FC 623 at para 22).

[14]  An immigration officer is presumed to have expertise and sensitivity to the imperatives and nuances of the legislative scheme of the IRPA. The decision should therefore be afforded deference. A reviewing court should not re-weigh the evidence (Khosa v Canada (Citizenship and Immigration), 2009 SCC 12 at paras 25, 59).

B.  Was the immigration’s officer determination that the BNP is an organization described in s 34(1)(f) of the IRPA supported by the evidence?

[15]  Subsection 34(1) of the IRPA provides as follows:

[16]  Terrorism is not defined in the IRPA. In Suresh v Canada (Citizenship and Immigration), 2002 SCC 1 at paragraph 98 [Suresh], a case concerning judicial review of a danger opinion under the Immigration Act, R.S.C. 1985, c. I-2, the Supreme Court of Canada defined terrorism as follows:

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. […]”

[17]  The definition of “terrorist activity” in s 83.01(1) of the Criminal Code is broader, and includes the following:

[18]  According to Mr. Alam, the evidence before the immigration officer did not support a finding that hartals and blockades are acts of terrorism or subversion. Instead, they are “an inexorable part of the culture” and are commonly used in Bangladesh to articulate political interests. They are not intended to cause death or bodily injury to civilians, and they are not illegal. While violence may result from hartals, this does not mean the BNP sanctions violence, or that the violent actions of supporters may be ascribed to the group. Mr. Alam notes that in a confidential decision dated April 4, 2017, a member of the Immigration Division held that the BNP is not an organization described in s 34(1)(f) of the IRPA.

[19]  Mr. Alam places considerable reliance on the recent decision of Justice Richard Mosley in AK v Canada (Citizenship and Immigration), 2018 FC 236 [AK]. In AK, the applicant was involved with various BNP organizations between 1980 and May 2013. Justice Mosley found the immigration officer’s determination that the applicant was inadmissible under s 34(1)(f) of the IRPA to be unreasonable because the factual findings were hedged with qualifications, and there was no finding that calls for hartals were synonymous with calls to commit terrorist acts. Justice Mosley said the following at paragraph 41:

I have considerable difficulty with the notion that a general strike called by a political party in an effort to force the party in power to take steps such as proroguing Parliament or convening by-elections, falls within the “essence of what the world understands by ‘terrorism’”. It is not an overstatement to suggest, as the Applicant has in these proceedings, that the Respondent’s interpretation of the statute could capture political activities which, if carried out in Canada, would be protected under s 2 of the Canadian Charter of Rights and Freedoms, absent an intention to use violence to achieve the political ends.

[20]  The absence of any finding by the immigration officer that the BNP’s calls for hartals were synonymous with calls to commit terrorist acts was central to Justice Mosley’s decision in AK. His broader point about Charter-protected speech in Canada is subject to the important qualification that this must be “absent an intention to use violence to achieve political ends”.

[21]  The immigration officer’s decision was supported, inter alia, by the following evidence in the certified tribunal record:

• (a) in 1994, the student wing of the BNP to which Mr. Alam belonged attacked an AL student group procession, causing injuries to 45 people including three police officers;

• (b) in 2004, members of the BNP launched more than 24 grenades at a political rally, killing 20 and injuring 150;

• (c) in 2006, Mr. Alam was injured in an intra-party BNP “clash”;

• (d) in April 2012, the BNP organized and enforced a hartal that paralyzed the country for three days;

• (e) in December 2012, the BNP organized and enforced a hartal where homemade bombs were used in an effort to restore the caretaker government;

• (f) Mr. Alam stated in his Basis of Claim form that he was asked by the BNP to work on the December 2012 protest and return of the caretaker government; and

• (g) the National Security Screening Division found as follows:

[…] the BNP has engaged in activities that constitute acts of terrorism such as violent protests, rallies, bombings and beatings”, and despite being politically motivated they have been carried out by both the BNP and the student wing against both political opponents and innocent civilians for intimidation, and such acts were “being directed and organized by the BNP itself and were not separate incidents committed by rogue members acting independently from the organization.”

[22]  Whether an immigration officer has reasonable grounds to believe the BNP is an organization that engages, has engaged or will engage in acts of terrorism depends on the factual record before the officer. Justice Mosley found in AK that the officer had made no explicit finding that the BNP’s calls for hartals were synonymous with calls to commit terrorist acts. In SA, I upheld an officer’s decision to find a former member of the BNP inadmissible based on the factual conclusions reached in that case. Justice Henry Brown did the same in Gazi and, most recently, in Kamal v Canada (Immigration, Refugees and Citizenship), 2018 FC 480 at paragraphs 56 to 65 [Kamal].

[23]  In the present case, the immigration officer made an explicit finding that the BNP had engaged in activities that constitute terrorism. These included violent protests, rallies, bombings and beatings. The activities had a political purpose and were intended to intimidate political opponents and innocent civilians alike. They were directed and organized by the BNP itself, not by rogue elements.

[24]  For the most part, Mr. Alam does not contest the reliability of the sources relied upon by the immigration officer. As previously noted, it is not the role of this Court to re-weigh the evidence. Having regard to the function of judicial review and the deference owed to the immigration officer’s expertise, I am satisfied the officer’s determination that the BNP is an organization described in s 34(1)(f) of the IRPA was reasonably supported by the evidence.

C.  Was the immigration officer’s reliance on the definition of “terrorist activity” in the Criminal Code reasonable?

[25]  Mr. Alam says the immigration officer unreasonably relied on the expansive definition of terrorist activity in the Criminal Code, rather than the definition specifically developed in the immigration context by the Supreme Court of Canada in Suresh. He notes that economic disruption and interference with essential services are encompassed only by the Criminal Code definition. In AK, Justice Mosley remarked at paragraph 39 that he thought it “more useful to begin with the decision of the Supreme Court of Canada in Suresh”.

[26]  In Ali v Canada (Citizenship and Immigration), 2017 FC 182 at para 39 [Ali], Justice Brown rejected the argument that s 34(1)(f) of the IRPA should be interpreted only with reference to Suresh. The Supreme Court acknowledged in Suresh at paragraph 93 that it did not seek to define terrorism exhaustively, “a notoriously difficult endeavour”, but would content itself with finding that the term provided a sufficient basis for adjudication and was not unconstitutionally vague. The definition provided was not exhaustive (“includes”), and the Supreme Court noted that Parliament was free to adopt a more detailed or different definition of terrorism. Justice Brown found at paragraph 42 of Ali that this is precisely what Parliament did when it enacted s 83.01 of the Criminal Code. He invoked the doctrine of in pari materia to support his conclusion that the definition of terrorist activity in s 83.01 of the Criminal Code informs the meaning of terrorism in s 34 of the IRPA (at para 44).

[27]  In Kamal, Justice Brown observed at paragraph 54 that Parliament enacted s 83 of the Criminal Code and s 34(1)(c) of the IRPA immediately following the terrorist attacks against the United States of America on September 11, 2001. He was not persuaded that Parliament had enacted the two provisions virtually simultaneously in the expectation that they would be considered in isolation.

[28]  I agree with Justice Brown. As I found in SA, it was open to the immigration officer to rely on the statutory definition of terrorist activity enacted by Parliament in the Criminal Code, as well as the one formulated by the Supreme Court of Canada in Suresh.

D.  Was the immigration officer’s finding that there is no temporal component to the analysis required by s 34(1)(f) of the IRPA reasonable?

[29]  It is unclear how this argument assists Mr. Alam. There is no dispute that he was a member of the BNP during most of the time periods when the organization was found by the immigration officer to have engaged in terrorist activity. In any event, this Court has previously rejected the argument that there is a temporal component to the analysis required by s 34(1)(f). The following paragraphs are largely derived from my decision in SA (at paras 13 to 15).

[30]  In Anteer v Canada (Citizenship and Immigration), 2016 FC 232 at paragraphs 50 to 57, Justice Cecily Strickland confirmed that there is no temporal component to an analysis under s 34(1)(f) of the IRPA. The question was effectively resolved by the Federal Court of Appeal in Gebreab v Canada (Public Safety and Emergency Preparedness), 2010 FCA 274 at paragraph 3 [Gebreab]:

It is not a requirement for inadmissibility under s. 34(1)(f) of the IRPA that the dates of an individual’s membership correspond with the dates on which the organization committed acts of terrorism or subversion by force.

[31]  In reasons substantially endorsed by the Federal Court of Appeal (Gebreab at para 2), Justice Judith Snider said the following in Gebreab v Canada (Public Safety and Emergency Preparedness), 2009 FC 1213, aff’d 2010 FCA 274:

[21] In Al Yamani v. Canada (Minister of Citizenship and Immigration), 2006 FC 1457, 304 F.T.R. 222, this Court was asked to review the decision of the Board which found Mr. Al Yamani inadmissible to Canada on security grounds under s. 34(1)(f). Mr. Al Yamani conceded that he was a member of the Popular Front for the Liberation of Palestine (PFLP). However, he argued that the Board erred in finding him inadmissible under s. 34(1)(f) of IRPA because [he] was not an active member when the PFLP committed acts of terrorism.

[22] This Court concluded that, under s. 34(1)(f), the Board must carry out two separate assessments:

1. whether reasonable grounds existed to believe that the organization in question engages, has engaged or will engage in acts of espionage, terrorism, or subversion by force; and

2. whether the individual is a member of the organization (at para. 10).

[23] Under this analysis, “there is no temporal component” in the determination of organization, or in the determination of the individual’s membership (Al Yamani, above, at paras. 11-12). The Board does not have to examine whether the organization has stopped terrorist acts, and does not have to see if there is a “matching of the person’s active membership to when the organization carried out its terrorist acts” (Al Yamani, above, at para. 12). Furthermore, for the purposes of s. 34(1)(f), the determination of whether the organization in question engages, has engaged, or will engage in acts of terrorism is independent of the claimant’s membership.

[32]  Mr. Alam relies on the decision of Justice Richard Southcott in Chowdhury v Canada (Citizenship and Immigration), 2017 FC 189 [Chowdhury]. In Chowdhury, Justice Southcott held that findings of inadmissibility pursuant to s 34(1)(f) of the IRPA must take into account “whether, at the time of membership, there were reasonable grounds to believe that the organization would in the future engage in terrorist activities” (at para 20). The present case is distinguishable from Chowdhury. In Chowdhury, the alleged terrorist activities of the BNP relied on by the immigration officer post-dated the applicant’s membership (at para 23). That is not the case here. Furthermore, to the extent that Chowdhury may be seen as a departure from the Federal Court of Appeal’s decision in Gebreab, I am bound by the latter.

E.  Did the immigration officer unreasonably fail to consider Mr. Alam’s particular role and involvement in the BNP?

[33]  Mr. Alam maintains that the immigration officer failed to properly assess the link between his activities as a member of the BNP and the organization’s alleged terrorism or subversion. He relies on Justice Michel Shore’s decision in Zahw v Canada (Public Safety and Emergency Preparedness), 2017 FC 1112 [Zahw]. In Zahw, the applicant was an officer in the Egyptian military and was found inadmissible on security grounds. Justice Shore held that mere membership in the military was insufficient to establish membership for the purpose of s 34(1)(f) of the IRPA. Citing Justice Leonard Mandamin’s decision in El Werfalli v Canada (Public Safety and Emergency Preparedness), 2013 FC 612, he held at that s 34(1)(f) “is a single provision requiring regard for all its elements in an integrated manner” (at para 30).

[34]  Direct complicity is not required by s 34(1)(f) of the IRPA (Kanagendren v Canada (Citizenship and Immigration), 2015 FCA 86 at para 22). The immigration officer found there were reasonable grounds to believe the BNP instigated terrorism or subversion. No similar finding was made regarding the Egyptian military in Zahw.

[35]  Given the immigration officer’s conclusion that the BNP was implicated in terrorist activity, an enquiry into Mr. Alam’s particular role or function within the organization was not required. Consistent with the wording of s 34(1)(f) of the IRPA, the officer focused on whether Mr. Alam was a member of the organization. The officer referred to jurisprudence establishing that “member” should be given a broad interpretation having regard to the evidence as a whole (Poshteh v Canada (Citizenship and Immigration), 2005 FCA  85 at para 27; Stables v Canada (Citizenship and Immigration), 2011 FC 1319 at para 45; Krishnamoorthy v Canada (Citizenship and Immigration), 2011 FC 1342 at paras 21-26). The officer listed 20 non-exhaustive factors that may be indicia of membership.

[36]  The immigration officer supported the decision with the following factual findings:

• (a) Mr. Alam admitted his membership in the BNP and its student wing;

• (b) Mr. Alam stated in his Basis of Claim form and interview that he was an active member of the BNP and participated in meetings, demonstrations, and recruiting new members;

• (c) Mr. Alam was not just an ordinary member, but held a position as an organizing secretary; and

• (d) the nature and extent of his involvement in the BNP formed the basis for a successful claim for refugee status before the RPD.

[37]  It is therefore clear that the immigration officer considered Mr. Alam’s particular role and involvement within the BNP. The officer addressed all of the elements of s 34(1) of the IRPA “in an integrated manner.”

F.  Should a question be certified for appeal?

[38]  This Court may certify a question only where it is dispositive of the appeal and transcends the interests of the immediate parties to the litigation due to its broad significance (Torre v Canada (Citizenship and Immigration), 2016 FCA 48 at para 3).

[39]  Mr. Alam asks that the following question be certified for appeal:

Can a strike, or other similar organized activity, which is a legal act in a particular country and legal in Canada, that results in economic disruption or which is intended to influence a government action in such country, be considered an act of terrorism or subversion under section 34 of the Immigration and Refugee Protection Act?

[40]  Mr. Alam says that appellate guidance is needed, given the conflict in the jurisprudence regarding whether the BNP may be reasonably characterized as an organization that engages, has engaged or will engage in terrorism. He points to Justice Mosley’s strongly-expressed doubt in AK that a general strike called by a political party in an effort to force the party in power to take certain democratic steps falls within the “essence of what the world understands by ‘terrorism’”.

[41]  In AK, the Minister proposed that the following question be certified for appeal (at para 45):

Are the violent acts that frequently and predictably result during a general strike or hartal in a particular country, which are intended to compel a government to do something, considered terrorism under s. 34(1) of the Immigration and Refugee Protection Act despite the fact that they occur in the context of a general strike?

[42]  Justice Mosley declined to certify the question, because he considered it to be ambiguous, and was not satisfied it would be dispositive of an appeal given the facts of that case (at para 47).

[43]  In Kamal, Justice Brown was presented with possible questions for certification by both parties:

[75] The Applicant proposed:

Does a political party engage in terrorism or subversion by force by calling for strikes or civil disobedience without calling for violence when violence subsequently ensures?

[76] The Respondent proposed:

Can a group or individual who calls for or condones a general strike or hartal as a means of coercing a government which foreseeably and frequently results in violence, be considered to have engaged in terrorism under paragraph 34(1)(c) of IRPA?

[44]  Justice Brown declined to certify either question for appeal:

[77] In my view, no question of general importance arises. To begin with, it is trite to observe that every case such as this is determined based on the record before the tribunal. Both questions are fact specific to the record before the ID in this case. Moreover, the Applicant’s proposed question does not capture the facts dispositive of the case, as referred to in these reasons. The Respondent’s question speaks to facts not found by the ID, and appears to ask this Court to convert judicial review into a private reference.

[78] It seems to me that the proposed questions essentially ask the Federal Court of Appeal to make some form of binding determination as to whether paragraphs 34(1)(b) and or (c) apply to the BNP based on the facts of this case.

[45]  While I acknowledge the tension in the jurisprudence regarding whether the BNP may be reasonably characterized as a terrorist organization, I am not persuaded this gives rise to a conflict in the legal sense. As Justice Brown observed in Kamal at paragraph 77, every case is determined based on the record before the tribunal. This accounts for the different outcomes in Gazi, SA and Kamal on one hand, and AK on the other.

[46]  Furthermore, the question proposed by Mr. Alam omits any reference to violence, and therefore does not capture the facts dispositive of the case. Even if the question were to accurately reflect the basis for the officer’s decision, it would amount to a request that the Federal Court of Appeal make a binding determination whether ss 34(1)(b), (c) or (f) of the IRPA apply to the BNP based on the facts of this case. As Justice Brown held in Kamal, this would not be an appropriate question for certification.

[47]  Whether the actions of the BNP may be said to fall within the “essence of what the world understands by ‘terrorism’” is perhaps more a question of policy than legal interpretation, and therefore a matter for Parliament rather than the Courts. Alternatively, the Minister retains a discretion not to argue for an individual’s inadmissibility based on past membership in the BNP.

VI.  Conclusion

[48]  The application for judicial review is dismissed. No question is certified for appeal.

JUDGMENT

THIS COURT’S JUDGMENT is that the application for judicial review is dismissed.

"Simon Fothergill"

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-5226-17
STYLE OF CAUSE:	SHAMSUL ALAM v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:	Calgary, Alberta
DATE OF HEARING:	July 19, 2018
JUDGMENT AND REASONS:	FOTHERGILL J.
DATED:	September 17, 2018

APPEARANCES:

Ram Sankaran	For The Applicant
Galina Bining	For The Respondent

SOLICITORS OF RECORD:

Stewart Sharma Harsanyi Barristers and Solicitors Calgary, Alberta	For The Applicant
Attorney General of Canada Edmonton, Alberta	For The Respondent