Date: 20190708

Docket: IMM-5450-18

Citation: 2019 FC 899

Ottawa, Ontario, July 8, 2019

PRESENT:  Mr. Justice Shore

BETWEEN:

MD ALAMIN KHAN

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

AND

THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

Respondents

JUDGMENT AND REASONS

I.  Overview

[1]  This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision by the Immigration Division [ID] of the Immigration and Refugee Board, dated October 16, 2018, to issue a deportation order against the Applicant. This order was based on a determination that the Applicant is inadmissible to Canada pursuant to paragraph 34(1)(f) of the IRPA in reference to paragraph 34(1)(c).

II.  Background

[2]  The Applicant is a 35-year-old citizen of Bangladesh who entered Canada on a business visitor visa on July 24, 2016, and who asked for Canada’s protection on August 26, 2016.

[3]  In his Basis of Claim [BoC], the Applicant admitted to being a member of the Bangladesh Nationalist Party [BNP]. He originally joined the BNP in 2001 and moved up the ranks to become the Assistant Organizing Secretary of his unit in December 2014. He declared in his BoC that he fears for his life in Bangladesh because of his involvement in the BNP, which he described as recruiting new members and organizing rallies for the party, participating and contributing in various programs, specially social and cultural ones. He also participated in street demonstrations and organized discussions where he made speeches (Affidavit of the Applicant at paras 4 and 6).

[4]  On November 14, 2016, the Canada Border Services Agency issued a report under subsection 34(1) of the IRPA. This report stated that the Applicant was inadmissible for being a member of an organization that engages in acts of terrorism, pursuant to paragraph 34(1)(f) in reference to paragraph 34(1)(c) of the IRPA. The report also declared that the Applicant was inadmissible because he is a member of an organization that has engaged or will engage in acts of subversion pursuant to paragraph 34(1)(f) in relation to paragraphs 34(1)(b) and (b.1) of the IRPA; however the claims pursuant to acts of subversion were not pleaded by the Minister’s representative, and thus were not addressed by the ID in its finding. This Court is therefore only tasked with assessing the ID’s decision which pertains to alleged acts of terrorism by the BNP.

A.  Hartals

[5]  In order to understand the debate between the parties, it is useful to know which acts engaged by the BNP are at issue.

[6]  Bangladesh has been using a form of general strikes to draw the attention of the government on different issues. When used as a country-wide mode of pressure, these are referred to as “hartals”. The smaller, more industry-focus ones are called “strikes”.

[7]  In theory, hartals are an economic means of protesting against the current government. The BNP has been using hartals to force the Awami League (AL) to reinstate the caretaker that the AL abolished, and to hold new elections.

[8]  In Rana v Canada (Public Safety and Emergency Preparedness), 2018 FC 1080 [Rana], Justice John Norris provided the historical context within which the violent political situation that has prevailed in Bangladesh evolved over the past decades. He described the violent activities that take place during Hartals as follows at paragraph 14 of his decision:

Hartals and traffic blockades frequently turned violent, with clashes between supporters of the AL on the one hand and supporters of the BNP and other opposition parties on the other. Numerous instances of opposition party member and activists throwing petrol bombs at trucks, buses and other vehicles that defied traffic blockades were documented.

III.  Impugned Decision

[9]  The ID found that the Applicant is a member of the BNP, through his own admission. The ID then consulted documentary evidence to determine whether the actions of the BNP equate to terrorism as defined in Suresh v Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at para 98 [Suresh], and the Criminal Code, RSC 1985, c C-46. The ID found that hartals are well organized and prepared, and that they follow a certain sequence which results in violent activities that lead to death or serious injury. The ID thus concluded:

[80] Consequently, the tribunal finds that there are reasonable grounds to believe that, by calling for hartals, which were intricately tied with a level of violence that led to deaths and serious injuries, with an intention to compel the government to meet its demands, the BNP engaged in « terrorism » as defined by section 83.01 of the Criminal Code and as defined in Suresh.

[81] The tribunal concludes that there are reasonable grounds to believe that the Bangladesh Jatiyotabadi Dal, known in English as the Bangladesh National Party (BNP), is an organization that engages, has engaged or will engage in terrorism as understood for the purposes of paragraph 34(1)c).

[10]  As a consequence, the Applicant was found inadmissible for being a member of an organization for which there are reasonable grounds to believe has engaged in terrorism.

IV.  Positions of the Parties

A.  Position of the Applicant

[11]  Although the Applicant admitted to being a member of the BNP, he denied that the BNP is an organization that engages in acts of terrorism. He insisted that he has never received instructions to commit or incite any violence, and that “the violence only has occurred mostly in major cities such as Dhaka city, Rajshahi, Dinajpur and Golestan. There are over 100 cities.” (Affidavit of the Applicant at para 15.)

[12]  The Applicant agreed that the ID could use the definition of “terrorism” proposed by the Supreme Court of Canada in Suresh, above, as well as the definition found in the Criminal Code. The Applicant submitted that both these definitions “require an intention that relates to the causing of serious injury, death, endangerment of life, a serious risk to life and safety, etc.” He also pointed out that the definition of “terrorist group” in the Criminal Code requires that the entity have “as one of its purposes or activities facilitating or carrying out any terrorist activities”. (Emphasis in the Applicant’s memo.)

[13]  With regard to the definition of “terrorist activity” found in the Criminal Code, the Applicant stated that clause 83.01(1)(b)(ii)(D) requires that, where substantial private or public property is damaged (as a result of an act or an omission), “such substantial damages must knowingly result in the harm defined in subsections (A) to (C)”.

[14]  A similar point was made by the Applicant concerning clause 83.01(1)(b)(ii)(E) of the Criminal Code, which pertains to serious interference or disruption of essential services. The Applicant submitted that, to meet the requirements of clause (E), the interference or disruption in question “must be other than as a result of advocacy, protest, dissent or stoppage of work and that they also intend to result in the conduct or harm referred to in subsections (A) to (C)”. (Emphasis in the Applicant’s memo.)

[15]  The Applicant affirmed that, according to its constitution, the BNP has as “its platform and goal its election to government be legitimate election wherein the people of Bangladesh can freely cast their votes”. He further stated that any violence associated to hartals organized by the BNP were not ordered by the leaders of the BNP and were even condemned by its leader.

[16]  In previous decisions, the Federal Court has sometimes concluded that the BNP is a terrorist organization and other times that it is not. The Applicant was of the view that Justice Richard G. Mosley’s decision, A.K. v Canada (Citizenship and Immigration), 2018 FC 236, accurately concluded that the BNP did not engage in acts of terrorism (based on the evidence provided by the parties).

[17]  The Applicant also relied heavily on Rana, above, to show that the BNP is not a terrorist organization. In this decision, at paragraph 56, Justice Norris reviewed the types of organizations that have been found to engage in terrorism and highlighted the fact that “the organizations that do engage in conventional political activities but have been found to be terrorist organizations typically have distinct political and armed wings. The BNP does not.”

B.  Position of the Respondent

[18]  The Respondent agreed that the ID was correct in using the definition of “terrorism” found in Suresh, above, and the Criminal Code. He further stated that the ID correctly determined that the BNP’s actions during hartals amounted to terrorism. This conclusion is based on documentary evidence that shows that hartals are well planned activities that include “letting off bomb explosions, burning tires and ransacking rickshaws and cars so that the public cannot get to work or do errands. Sometimes, buses are set on fire.” The Respondent also pointed to documentary evidence to assert that hartals have led to deaths and severe injuries. He further affirmed that street children are recruited to carry out attacks.

[19]  According to the Respondent, since these activities have become predictably associated with any hartal, the violence resulting in deaths and severe injuries is to be expected when the BNP organizes a hartal. As such, the Respondent submits that the ID accurately concluded that the BNP is a terrorist organization.

[20]  The Respondent also relied on previous decisions of the Federal Court to support the ID’s determination that the BNP is a terrorist organization, since, “by calling for hartals, the BNP leadership knew or, at best, was willfully blind to the fact that it would result in more deaths and serious injuries” (ID’ s Reasons at para 77): Gazi v Canada (Citizenship and Immigration), 2017 FC 94 at para 39 [Gazi]; S.A. v Canada (Public Safety and Emergency Preparedness), 2017 FC 494 at para 19; Kamal v Canada (Immigration, Refugees and Citizenship), 2018 FC 480 at paras 57, 70-71. In these three decisions, the Court found that the actions by the BNP met the definition of terrorism.

[21]  In answer to the Applicant’s position that the actions by BNP members lacked the required “intent” to cause serious injury or death, the Respondent referred to the Supreme Court of Canada’s decision R v Khawaja, 2012 SCC 69.

V.  Issues and Standard of Review

[22]  The issue that must be decided by the Court is whether the ID’s decision to find that the BNP is a terrorist organization was reasonable?

[23]  The Court examines conclusions regarding subsection 34(1) of the IRPA using the reasonable standard of review (Najafi v Canada (Public Safety and Emergency Preparedness), 2014 FCA 262 at para 56 and Gazi, above, at para 17). As such, this Court will only intervene if the decision lacks justification, transparency and intelligibility, and if it does not fall “within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).

VI.  Relevant Dispositions

[24]  The following dispositions are relevant in this case.

Immigration and Refugee Protection Act, SC 2001, c 27:

Criminal Code, RSC 1985, c C-46:

VII.  Analysis

[25]  In order for the ID to find that the Applicant was inadmissible pursuant to paragraph 34(1)(f) in relation to paragraph 34(1)(c) of the IRPA, it had to conclude that there are reasonable grounds to believe that 1) the BNP is a terrorist organization; and 2) the Applicant is a member of the BNP.

[26]  The Supreme Court of Canada has provided the following insights as to the meaning of the “reasonable grounds to believe” standard in Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para 114:

[S]omething more than a mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities … In essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information.

[27]  Concerning the Applicant’s membership to the BNP, the ID noted that the Applicant admitted to being a member of the BNP, and that “it is not alleged by the Minister that the person concerned would have participated in or would have engaged in terrorism”. As both parties agree that the Applicant was a member of the BNP, the Court accepts that this requirement is met.

[28]  The core question that arises in this case thus relates to the classification, or not, of the BNP as a terrorist organization for the purpose of paragraph 34(1)(c) of the IRPA. Since each case is a case onto itself, the ID was tasked first with identifying the definition of “terrorism”, and second with analyzing the evidence to determine whether it met that definition.

[29]  Concerning the definition, the Court agrees that it was proper for the ID to use the definition of terrorism found in Suresh, reproduced below, and in section 83.01 of the Criminal Code (Rana, above, at paras 25-27).

[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.

[30]  As the parties have stated, the BNP is not a recognized terrorist organization in Canada or the United States. This, in and of itself, is not determinative. The ID was then called to evaluate the evidence to determine whether the BNP had engaged in terrorism. It found that violence taking place prior and during hartals was predictable enough such that leaders knew that it would lead to death or serious injury, and consequently that the BNP was a terrorist organization.

[31]  As previously stated, the Court must determine whether it was reasonable for the ID to find that there were reasonable grounds to believe that the BNP engaged in terrorism. In submitting that the BNP is a terrorist organization, the Respondent makes the following assumptions: violent activities occur during hartals, and since leaders of the BNP are aware that these violent activities occur, and continue to call upon the population to participate in hartals, they must intend for the violence and the resulting deaths and serious bodily injuries to take place.

[32]  The Applicant has admitted that BNP members were involved in violence during hartals. This is not sufficient; the violent actions by BNP members must have led to death or serious injury; and this result must have been intended by the members and their leaders.

[33]  The Applicant insists that the evidence does not show that the violent acts that have caused death and serious injury were perpetrated by BNP members, nor condoned by their leaders. The BNP leaders’ intentions represent a major point of contention between the parties.

[34]  The ID conducted a thorough review of the documentary evidence, including international reports on the situation in Bangladesh that discussed the dynamics between the Awami League and the BNP and the resulting violence. She concluded that the BNP used hartals to reach a political objective, but through predictable street violence.

[35]  The Applicant contends that the BNP’s constitution shows the opposite of an intention to cause harm. The Court agrees with the ID that an organization’s official constitution is not conclusive as to a political party’s intentions (Kanagendran v Canada (Citizenship and Immigration), 2014 FC 384 at para 26). In the case at hand, the ID concluded on the contrary that the leader of the BNP did not intervene, or at least not enough, to ensure that hartals would no longer be synonymous of violence. The Court finds that it was open to the ID to conclude, based on the evidence presented in this case, that the actions by the BNP leaders were such that they showed the required degree of intent to cause serious bodily injury and death.

[36]  Based on the evidence, the Court concludes that there were reasonable grounds to believe that the Applicant is a member of an organization, namely the BNP, which has engaged in terrorism and as such, the judicial review is dismissed.

VIII.  Conclusion

[37]  For the reasons mentioned above, this application for judicial review is dismissed.

JUDGMENT in IMM-5450-18

THIS COURT’S JUDGMENT is that the application for judicial review be dismissed. There is no serious question of general importance to be certified.

"Michel M.J. Shore"

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-5450-18
STYLE OF CAUSE:	MD ALAMIN KHAN v THE MINISTER OF CITIZENSHIP AND IMMIGRATION, AND, THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
PLACE OF HEARING:	Montréal, Quebec
DATE OF HEARING:	June 25, 2019
JUDGMENT AND REASONS:	SHORE J.
DATED:	July 8, 2019

APPEARANCES:

Viken G. Artinian	For The Applicant
Daniel Latulippe	For The Respondents

SOLICITORS OF RECORD:

Allen & Associates Montréal, Quebec	For The Applicant
Attorney General of Canada Montréal, Quebec	For The Respondents