Date: 20100928
Docket: IMM-2275-08
Citation: 2010 FC 967
Ottawa, Ontario, September 28, 2010
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
ARAB,
ABBAS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
An
immigration officer concluded that Abbas Arab was a member of the Iranian
Revolutionary Guard Corps (or “IRGC”), an organization for which there were
reasonable grounds to believe had engaged in terrorist activities. As such,
the officer found that Mr. Arab was inadmissible to Canada.
[2]
Mr.
Arab seeks judicial review of the officer’s decision, asserting that the
officer erred in failing to consider the fact that during the period in which
he admittedly worked for the IRGC, his work was carried out under compulsion.
The officer further erred, Mr. Arab says, in finding that his involvement with
the IRGC after the period of his compulsory military service was of a nature
sufficient to qualify him as a “member” of that organization.
Background
[3]
Mr.
Arab is an Iranian citizen who completed his compulsory military service in
that country between 1988 and 1990. Mr. Arab says that during this period he
did office work in a military factory under the control of the “Sepah”. Mr.
Arab acknowledges that “Sepah” is another name for the IRGC.
[4]
After
completing his compulsory military service, Mr. Arab left the military.
However, he says that three or four months later, at the request of his former
supervisor, he chose to begin working for an organization that he describes as
“National Defence”. He says that he did this because he felt that he wanted to
help his country, which was then engaged in military conflict with Iraq.
[5]
According
to Mr. Arab, after his return to military employment, he worked as a manager in
the “Logistics Registry” at the Shahid Jolaei military base. He says that this
department handled “the paperwork” for the seven sections below him, which
included the propaganda unit, the emergency medical unit, the fire department,
the communications and media unit, the kitchen, the transportation unit, and
the Registry’s own support unit.
[6]
According
to Mr. Arab, the facility where he worked for the next five years was engaged
in the manufacture of high-speed boats. Although Mr. Arab says that he was
being paid by “the government”, he acknowledges that the factory was under the
control of the IRGC, and that the boats were going to support that
organization. He also acknowledges working alongside IRGC members throughout
this period.
[7]
Mr.
Arab says that he was repeatedly asked to join the IRGC between 1990 and 1995,
but that he never actually completed the paperwork so as to formally become a
member of the organization. He says that he was afraid do so, because once he
joined the IRGC, “they would not let [him] resign”.
[8]
According
to Mr. Arab, it was only after he inadvertently participated in a political
demonstration that he decided to leave his employment and come to Canada.
The Officer’s
Decision
[9]
The
officer’s membership finding was based entirely upon information provided by
Mr. Arab himself. The officer noted that although Mr. Arab never officially
joined the IRGC, certain facts nevertheless demonstrated that he was a member
of that organization.
[10]
In
particular, the officer identified the following facts as being indicia of
membership:
(i) Mr. Arab worked full-time for
five years within the IRGC;
(ii) He contributed to the
on-going work of the organization;
(iii) He associated with members of
the organization;
(iv) He had extensive knowledge of
the organization having been responsible for communications between seven
departments;
(v) He had access to personnel
files containing secure information;
(vi) He knew that he was working
alongside Ministry of Information and Security officers;
(vii) He received intelligence
information regarding bombings and killings;
(viii) He had knowledge of the
violent reputation and acts of terrorism conducted by the organization;
(ix) He worked to further the
organization’s goals by drafting secret bulletins and passing along secret
information;
(x) He occupied a position of
trust in the organization; and
(xi) He received a salary for the
position within the organization.
[11]
The
officer thus determined that Mr. Arab had contributed to the work of the IRGC
for five years, despite being aware of the nature of their activities, and
despite his claim not to have agreed with everything the organization did. The
officer doubted Mr. Arab’s stated intention to leave the organization, and
concluded that it was only after he may have been observed inadvertently
participating in the political demonstration that he decided to leave the IRGC.
[12]
The
officer also noted a number of discrepancies between Mr. Arab’s original
Personal Information Form (or “PIF”), his first interview in 2003, and his
second interview in 2008. According to the officer, while Mr. Arab was able to
explain some of these discrepancies, they were not clarified to any great
extent. The officer thus concluded that these inconsistencies cast doubt on Mr.
Arab’s overall credibility.
[13]
Based
on the foregoing, the officer concluded that while there was no evidence that
Mr. Arab ever personally participated in any acts of terrorism or violence, it
was nonetheless reasonable to believe that his activities furthered the goals
of the IRGC. As such, the officer concluded that Mr. Arab’s activities with the
IRGC “were not minimal or marginal and are sufficient to constitute
membership.”
[14]
The
remainder of the immigration officer’s analysis was dedicated to demonstrating
that there are reasonable grounds to believe that the IRGC is an organization
that has engaged in acts of terrorism. I do not understand Mr. Arab to take
issue with this latter finding.
The Section
87 Proceedings
[15]
After
the commencement of this application for judicial review, the Minister brought
a motion for non-disclosure of certain limited portions of the Certified
Tribunal Record, in accordance with the provisions of section 87 of the Immigration
and Refugee Protection Act. The Minister claimed that the disclosure of
the redacted information would be injurious to national security or to the
safety of any person.
[16]
I
carefully reviewed the redacted portions of the Certified Tribunal Record, as
well as a secret affidavit filed in support of the motion. I also heard viva
voce testimony from the deponent of the affidavit and oral submissions from
counsel for the Minister in an ex parte, in camera hearing.
[17]
I
was satisfied that the disclosure of certain portions of the redacted
information would indeed be injurious to national security or would endanger
the safety of any person. However, I was not persuaded that the non-disclosure
of other redacted information was justified. Consequently, by Order dated
January 13, 2010, the Minister’s application was granted in part, and certain
additional information was provided to Mr. Arab.
Standard of
Review
[18]
Although
Mr. Arab argues in his memorandum of fact and law that the “standard of review
for error of fact is correctness”, I understand the parties to agree that the
officer’s membership finding is reviewable against the reasonableness standard.
[19]
The officer’s factual findings are clearly entitled to deference,
and given that what is in issue at this case is a question of mixed fact and
law, I agree that reasonableness is the appropriate standard of review: see Poshteh v. Canada
(Minister of Citizenship and Immigration), 2005 FCA 85, [2005] F.C.J. No. 381 at
para. 24.
[20]
In
reviewing a decision against the reasonableness standard, the Court must
consider the justification, transparency and intelligibility of the
decision-making process, and whether the decision falls within a range of
possible acceptable outcomes which are defensible in light of the facts and the
law: see Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47, and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 59.
The
Legislative Authority for the Decision
[21]
Before
turning to examine the arguments advanced by Mr. Arab, it is helpful to review
the legislative framework governing inadmissibility findings such as this.
[22]
The
inadmissibility finding in this case was made under the provisions of paragraph
34(1)(f) of the Immigration and Refugee Protection Act, the relevant
portions of which provide that:
|
34. (1) A permanent resident or a
foreign national is inadmissible on security grounds for
…
(f) being a member of an organization
that there are reasonable grounds to believe engages, has engaged or will
engage in acts referred to in paragraph (a), (b) or (c).
|
34. (1) Emportent interdiction de
territoire pour raison de sécurité les faits suivants :
…
f) être membre d'une organisation don=t il y a des motifs
raisonnables de croire qu'elle est, a été ou sera l'auteur d'un acte visé aux
alinéas a), b) ou c).
|
Paragraph 34(1)(c) refers to organizations
engaging in terrorism.
[23]
In
making a finding under section 34(1) of the Act, an immigration officer is also
guided by section 33 of IRPA, which provides that:
|
33. The facts that constitute
inadmissibility under sections 34 to 37 include facts arising from omissions
and, unless otherwise provided, include facts for which there are reasonable
grounds to believe that they have occurred are occurring or may occur.
|
33. Les faits — actes ou omissions —
mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés
sur la base de motifs raisonnables de croire qu’ils sont survenus,
surviennent ou peuvent survenir.
|
The Legal
Tests to be Applied in Assessing Admissibility under Paragraph 34(1)(f) of IRPA
[24]
In
order to conclude that Mr. Arab was inadmissible to Canada, the immigration
officer had to find that he was, or had been, a member of an
organization for which there are reasonable grounds to believe engages, has
engaged or will engage in terrorism. There are three aspects involved in such
a finding that require comment, namely the concept of “membership”,
the “reasonable grounds to believe” standard,
and the definition of “terrorism”.
[25]
Insofar
as the test for membership is concerned, it is clear that actual or formal
membership in an organization is not required – rather the term is to be
broadly understood: see Chiau v. Canada (Minister of Citizenship and
Immigration), [1998] 2 F.C. 642 at para. 34. Moreover, there will always
be some factors that support a membership finding, and others that point away
from membership: see Poshteh at para. 36.
[26]
The
Supreme Court of Canada described the “reasonable
grounds to believe” evidentiary standard in Mugesera v. Canada (Minister of
Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, as requiring
“something more than mere suspicion, but less than the standard applicable in
civil matters of proof on the balance of probabilities”. The Supreme Court
went on to hold that reasonable grounds will exist “where there is an objective
basis for the belief which is based on compelling and credible information”: at
para. 114.
[27]
As
to the definition of terrorism, in this case, the officer adopted the
definition from Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1
S.C.R. 3, making reference as well to the Criminal Code definition of “terrorism”.
[28]
With
this understanding of the legal tests to be applied in assessing admissibility
under paragraph 34(1)(f) of the Immigration and Refugee Protection Act,
I turn now to consider whether the immigration officer’s finding that Mr. Arab
was inadmissible under paragraph 34(1)(f) of IRPA was reasonable.
Did the
Officer Err in Concluding that Mr. Arab was a Member of the IRGC?
[29]
Mr.
Arab acknowledges having worked for the IRGC between 1988 and 1990, but says
that he did so under compulsion. He also insists that he worked for “National
Defence” in the years between 1990 and 1995, and that he did not work for the
IRGC. Mr. Arab says that he was merely an office clerk who worked alongside
members of the IRGC during this latter period.
[30]
According
to Mr. Arab, the officer’s finding that he should be deemed to have been a
member of the IRGC during this period was unreasonable.
[31]
It
should be noted at the outset that there were a number of inconsistencies and
contradictions in the information obtained from Mr. Arab through his PIF and in
the course of his various interviews. Moreover, Mr. Arab has acknowledged
having lied to Canadian authorities on a number of occasions. As such, it was
entirely reasonable for the officer to have had concerns with respect to his
overall credibility.
[32]
Insofar
as the identity of his employer during the 1990-1995 period is concerned, Mr.
Arab discussed his 1990 return to military work in his March 5, 2008 interview
with immigration officials at some length. He acknowledged that the factory
where he worked during the post-return period produced military equipment for
the IRGC and further acknowledged that the factory was under the control of
that organization.
[33]
Mr.
Arab also discussed his 1990 return to work in his February 3, 2003 interview.
He did not suggest that he had a new employer, did not mention “National
Defence” at all, and the discussion of the circumstances leading up to his
return to work certainly suggested that he was returning to work for his
previous employer, namely the IRGC.
[34]
Mr.
Arab stated that he worked alongside IRGC members in the position that he
occupied after his return to work in 1990, and that he “had a lot of access” in
that position. This included access to highly sensitive information, including
the personal files of intelligence officers posted at the facility.
[35]
The
officer noted that the documentary evidence indicated that the IRGC worked
closely with members of the Ministry of Information and Security. By his own
admission, Mr. Arab had access to the files of intelligence officers, and the
officer found that the fact that he was given such access suggested that he was
“well-connected within the IRGC”. This was a finding that was reasonably open
to the officer on the record before her.
[36]
That
Mr. Arab had connections to well-placed members of the IRGC was also demonstrated
by his explanation for why it was he never had to formally join the
organization, despite having been repeatedly asked to do so. According to Mr.
Arab, it was because he had influential friends within the IRGC who protected
him.
[37]
Mr.
Arab also admitted to having had access to intelligence reports regarding IRGC
activities, including at least one bombing, before they occurred. Once again,
it was reasonably open to the officer to find that having access to such
sensitive information indicated that Mr. Arab was in a position of confidence
and trust within the organization.
[38]
Similarly,
it was reasonable for the officer to conclude that Mr. Arab, who admitted to
having written at least one secret bulletin aimed at undermining a former Prime
Minister, furthered the aims of the IRGC through his work. Given the
legitimate concerns with respect to Mr. Arab’s overall credibility, it was open
to the officer to reject Mr. Arab’s explanation that the preparation of this
bulletin was really a form of “loyalty test”, suggesting that the IRGC did not
intend to use the bulletin against the politician in question.
[39]
While
there is no evidence that Mr. Arab himself participated in any terrorist
activities during the approximately five years that he voluntarily worked with
the IRGC, the evidence does show that he nevertheless occupied a position of trust
within the organization. Moreover, Mr. Arab worked to further the
organization’s goals by drafting secret bulletins and passing along secret
information, and otherwise contributed to the work of the IRGC through his
day-to-day work at the Shahid Jolaei military base. In light of the foregoing,
the officer’s finding that Mr. Arab was a “member” of the IRGC was entirely
reasonable.
[40]
Mr.
Arab has not challenged the officer’s finding that there are reasonable grounds
for believing that the IRGC was an organization that had engaged in terrorism.
Consequently, he has not persuaded me that the officer erred in finding that he
was inadmissible to Canada in accordance with the provisions of paragraph
34(1)(f) of the Immigration and Refugee Protection Act.
Conclusion
[41]
For
these reasons, the application for judicial review is dismissed.
Certification
[42]
Neither
party has suggested a question for certification, and none arises here.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed; and
2. No
serious question of general importance is certified.
“Anne
Mactavish”
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