Date:
20120625
Docket:
IMM-5905-11
Citation:
2012 FC 802
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Ottawa,
Ontario, June 25, 2012
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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EVA MANUELA MIGUEL
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Applicant
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and
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MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (IRPA), for judicial review of a decision by
an immigration officer in which she refused the applicant’s application for
permanent residence on the ground that she is inadmissible under
paragraph 34(1)(f) of the IRPA.
FACTS
[2]
The
applicant, an Angolan citizen, states that between 1998 and 2000 she was a
supporter of the Front for the Liberation of the Enclave of Cabinda (FLEC), a
political organization that fights for Cabinda’s independence.
[3]
She
alleges the following facts in support of her application.
[4]
In
1998, at the age of 23, she attended a first information meeting organized by
the FLEC and obtained a supporter card so that she could attend a second
meeting.
[5]
In
September 2000, while studying law, the applicant attended a second meeting for
the purpose of organizing a demonstration for Cabinda’s independence. Shortly
before this meeting, she agreed to photocopy pamphlets at her workplace to
distribute them at the demonstration. However, the meeting was interrupted by
Angolan soldiers, who attacked the people who were present and killed some of
them. As a result, the demonstration never took place.
[6]
Fearing
the Angolan soldiers, the applicant fled to Canada with the help of a false
passport in October 2000 and filed a refugee claim. A year later, the Refugee
Protection Division (RPD) of the Immigration and Refugee Board of Canada granted
her refugee status.
[7]
Shortly
thereafter, in October 2001, she filed an application for permanent residence
as a protected person. Ten years later, the immigration officer refused her
application on the ground that she is inadmissible because she was a member of
the FLEC, an organization that there are reasonable grounds to believe engages
in terrorism.
OFFICER’S DECISION
[8]
In
her decision, the officer considered the nature of the organization. She stated
that the goal of the organization is to obtain Cabinda’s independence and that
this separatist organization is composed of a number of factions. The officer
also noted that the FLEC and its factions support themselves primarily by hostage
taking, smuggling and extortion. She gave a number of examples where FLEC
members had attacked petroleum industry workers, a military barracks, a national
campaign vaccination vehicle, Togolese soccer players and Chinese miners. She
also pointed out that the organization was accused of recruiting very young
children to make them child soldiers. Relying on the definition of “terrorism”
in Suresh v Canada (Minister of Citizenship and Immigration),
2002 SCC 1, [2002] 1 S.C.R. 3, the officer concluded that the FLEC is an organization
described in paragraph 34(1)(f) of the IRPA.
[9]
Next,
the officer determined that were reasonable grounds to believe that the
applicant was inadmissible. Relying on the definition of “member of an
organization” in Kashif Omer v Canada (Minister of Citizenship and Immigration),
2007 FC 478, 157 ACWS (3d) 601, she found that the applicant was a member of
the FLEC. The officer noted that the applicant is in favour of Cabinda’s independence,
never concealed her separatist ideas, stated that she was a supporter of the
FLEC from 1998 to the day she left Angola, actively contributed by photocopying
pamphlets, participated in a number of meetings, including the last one whose
purpose was to organize a demonstration, and admitted to the officer and the
Canadian Security Intelligence Service (CSIS) that she knew about the acts of
violence perpetrated by the FLEC.
ISSUES
(1)
Did
the immigration officer err in finding that the FLEC is an organization described
in paragraph 34(1)(c) of the IRPA?
(2)
Did
the immigration officer err in determining that the applicant was a member of
an organization described in paragraph 34(1)(f) of the IRPA?
STANDARD OF REVIEW
[10]
The
question of whether an organization is described in paragraph 34(1)(c) of
the IRPA is reviewed on a reasonableness standard (Kanendra v Canada (Minister
of Citizenship and Immigration), 2005 FC 923, 47 Imm LR (3d) 265). This
standard of review also applies to the question of whether the applicant was a
member of an organization described in paragraph 34(1)(f) (Poshteh
v Canada (Minister of Citizenship and Immigration), 2005 FCA 85,
[2005] 3 FCR 487).
ANALYSIS
1. Did the immigration officer err in finding that
the FLEC is an organization described in paragraph 34(1)(c) of the
IRPA?
[11]
The
definition of terrorism as adopted in Suresh, above, has been followed
in a number of Federal Court decisions: see Kashif Omer, above, Fuentes
v Canada (Minister of Citizenship and Immigration), [2003] 4 FC 249, 2003 FCT
379, and Ali v Canada (Minister of Citizenship and Immigration), 2004 FC
1174, [2005] 1 FCR 485. According to this definition, the word “terrorism”
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.” Accordingly, the issue is whether the officer’s decision
that there are reasonable grounds to believe that the FLEC is an
organization that engages, has engaged or will engage in terrorism, is
reasonable. The “reasonable grounds to believe” standard is not evidence on a
balance of probabilities but requires more than vague suspicions.
[12]
In
this case, the officer identified a number of acts committed by the FLEC between
1992 and 2001 that fall under the definition of terrorism cited above: in 1992,
a number of hostage takings of foreign workers, an attack using automatic
weapons against workers at Cabinda Gulf Oil Company that killed four
people, followed by a second mortar attack against the same company; in 1995,
an attack on a military barracks that left ten dead; in 1997, the execution of
42 Angolan soldiers; and in 2000 an attack on the national vaccination campaign
vehicle that left one dead. According to the report [translation] “Front for the Liberation of the Enclave of
Cabinda”, dated October 28, 2011, and published by Jane’s World Insurgency
and Terrorism:
FLEC factions
have frequently carried out kidnapping for ransom to finance their campaign,
smuggling and extortion remain an important means of funding as well.
Portuguese and other expatriates working in the oil sector in particular have
been targeted. A small diaspora with headquarters in Europe also provide
limited lines of funding.
(See page 88, Tribunal
Record).
[13]
According
to the list of incidents reported in 1997 in the same report:
In January,
FLEC-R fired three mortars at Sonangol’s oil facilities; they missed their
target but nearly hit a Chevron oil terminal in Malongo.
In February,
FLEC-FAC announced that it would target Western companies in Cabinda if they
refused to leave the area. The group also abducted a Malaysian and Filipino
(the latter died of dysentery while being held).
In March, FLEC-R
announced that it was responsible for the deaths of 42 Angolan soldiers in
operations in the Mazengo and Torto-Rico area and between Subantandu and
Chimuandi. The group’s main leaders were all imprisoned in Kinshasa, Zaïre, for
a few days after the country’s chief of staff heard rumors that the faction was
assisting Laurent Kabila. (See page 90, Tribunal Record).
[14]
Similarly,
the report reveals that on January 8, 2010,
. . . at
least three people were killed and several others were wounded when suspected
FLEC-PM militants opened fire on a convoy transporting the Togolese national
football team in Cabinda province. The team was traveling through the area to
participate in the African Cup of Nations tournament when it was attacked.
. . . (See page 91, Tribunal Record).
[15]
Later
the same year, in November,
. . . a
soldier and a driver – who were part of a force guarding a convoy of Chinese
mine workers, contracted by Angola’s state oil company Sonangol – were killed
when suspected FLEC militants attacked the convoy in an unspecified are of
Cabinda region. FLEC-FAC spokesman Nhemba Pirilampo claimed that 12 people had
been killed in the attack, but this could not be independently verified. (See
page 91, Tribunal Record).
[16]
The
Human Rights Watch report entitled “Angola: Between War and Peace in Cabinda”,
dated December 23, 2004, states:
. . . Until
2001, FLEC took foreign employees of the oil and construction companies
hostage, which violates international humanitarian law prohibitions against the
taking of hostages and attacks on civilians. FLEC has reportedly also executed
persons suspected of collaborating with the FAA in addition to attacking FAA
military positions . . . See page 119 , Tribunal Record.
[17]
Moreover,
according to the article [translation]
“Cabinda, a media no man’s land”, dated April 13, 2009:
[translation]
The taking of
hostages (French, Portuguese, Polish . . .) in Cabinda usually alerts
the Western media and makes them aware of the chaotic situation there. In the
preface to his book, [translation]
Cabinda, an
African Kuwait, Alban Monday Kouango notes that ‘in order to
attract media attention . . . , the FLEC often kidnaps Western
workers (particularly Portuguese)’. (see page 92, Tribunal Record).
[18]
In
view of this evidence, it is clear that the officer’s finding is reasonable,
i.e. that there are reasonable grounds to find that the FLEC is an organization
that engages, has engaged or will engage in terrorism.
2. Did the immigration officer err in
determining that the applicant was a member of an organization described in
paragraph 34(1)(f) of the IRPA?
[19]
The
applicant submits that paragraph 34(1)(f) of the IRPA does not
apply in this case because the Minister has not discharged his burden of establishing
that she was complicit by association in crimes or terrorist acts and because the
extent of her involvement with the FLEC was not sufficient to trigger the
application of this paragraph. In addition, the applicant takes the position
that she never fell within Article 1F of the Convention on refugees and that
she never intended to associate with a terrorist organization or to cause harm
to anyone. The applicant points out that she simply attended an information
meeting in 1998 and a second meeting in 2000 for the purpose of organizing a
peaceful demonstration, a demonstration that, moreover, never took place. She
was never remunerated by the FLEC, never gave the organization any money and
was not active in it.
[20]
She
was only a “supporter” of the organization, which is different from being a
“member of the organization”.
[21]
The
respondent submits that the word “member” is defined broadly, based on the
nature and duration of a person’s activities within an organization (Poshteh,
above). The concept of membership has been given a broad and unrestricted
interpretation, especially where issues of Canada’s national security are
involved, and paragraph 34(1)(f) of the IRPA does not require
active participation (Tjiueza v Canada, 2009 FC 1260, [2009] FCJ No 1608
(QL) and Ismeal v Canada (Minister of Public Safety and Emergency
Preparedness), 2010 FC 198, [2010] FCJ No 234 (QL)). Considering the broad
interpretation of the concept of “member” that the officer adopted, it was not
unreasonable for her to find that the applicant’s activities assisted the FLEC in reaching its objectives. I do not
agree with this opinion for the following reasons.
[22]
The
Federal Court has established that “the issue of complicity is irrelevant to a
determination under paragraph 34(1)(f) of the Act, which refers strictly to the
notion of membership in the organization. The question of inadmissibility under
paragraph 34(1)(f) should thus be distinguished from inadmissibility as a
Convention refugee under section 98 of the Act, which . . . absent direct proof as to the involvement of the person in
a specific crime, requires a finding of complicity with the organization who
committed such crime”: Kashif Omer, above, at paragraph 11.
[23]
The
issue of whether a “supporter” falls under paragraph 34(1)(f) of
the IRPA was dealt with by the Court in Kanendra v Canada (Minister of
Citizenship and Immigration), 2005 FC 923, 47 Imm LR (3d) 265. Justice Simon Noël
answered in the affirmative and stated the following:
23 Therefore, the term “member” as it is used
in s. 34(1)(f) of IRPA should be given a broad interpretation. The Applicant is
concerned that those who are not a threat to the security of Canada, despite
their former membership in a s. 34(1)(a), (b) or (c) organization, should not
be included in the ambit of s. 34(1)(f) and therefore excluded. However, I note
that s. 34(2) effectively exempts them from exclusion. This section provides
that those who would otherwise be deemed inadmissible because of certain
associations or activities not be so deemed where they can satisfy the Minister
that they are not a danger to the security of Canada. This interpretation of
the statute was also found to be the case in Suresh (S.C.C.), supra.
Though that case was determined under s. 19 of the old Immigration Act,
the principle remains the same.
24 In order, then, to determine whether an
applicant was or is a member of an organization described in ss. 34(1)(a), (b)
or (c), an assessment of their participation in the organization must be
undertaken. . . .
[24]
Although
the concept of “member” has been given a broad and liberal interpretation, an
analysis under paragraph 34(1)(f) of the IRPA must be carried out
on the basis of the specific facts of each situation.
[25]
Thus,
in Ismeal, above, the Court stated that to be a member of an
organization, “[a]n individual need not be an actual card-carrying or formal
member of an organization, nor is it necessary that the person concerned to
have an obligation to participate in acts of terrorism.” However, the facts
reveal that the applicant had stated that he was an agitator and supporter of
the organization and that, for a period of seven years, he had raised funds for
the organization, voluntarily engaged in recruiting other members/supporters,
and left the organization only when he was forced to leave the country.
[26]
In
Poshteh, above, the applicant’s role in the Mujahedin-e-Khalq (MEK) was
to disseminate propaganda, which is an important part of the organization’s
activities. Although he was not formally enlisted in the MEK, it was not for
lack of trying. He desperately wished to enlist in some formal fashion. Although
he was denied that permission, he was allowed to engage in an activity for the
benefit of the MEK for a period of two years. During that time, he distributed
propaganda 24 to 48 times. In fact, he referred to himself as a member before
the Immigration Division. Moreover, he shared in the MEK’s overriding goal to
overthrow the Iranian government.
[27]
In
Kashif Omer, above, the applicant was a member of the All Pakistan
Mohajir Students Organisation (APMSO) from 1987 to 1992 at his college in
Karachi, Pakistan.. He was the information secretary to the organization from
1989 to 1992. He then joined and worked for the Mothaidda Quami Movement (MQM),
a political organization, from 1993 until he left Pakistan in 1998. He even
participated in MQM’s political activities in Canada as the head of the MQM’s Quebec
branch. Similarly, in Naeem v Canada (Minister of Citizenship and Immigration),
2010 FC 1069, 375 FTR 150, the applicant was an active member of the APMSO and
served as joint secretary from 1988 to 1990. Subsequently, from 1990 to 1993,
he was only a regular member of the APMSO and also attended regular MQM-A
meetings and rallies.
[28]
In
the X (Re) decision, 2002 CanLII 52732 (IRB), the claimant had been
active in the FLEC FAC and had supported its objective. He voluntarily
joined the organization in 1990 and remained involved until he left Angola in
August 1999. He was a propagandist and testified that he still was. Furthermore,
he provided support and a safe house for FLEC FAC combatants who were coming
off active duty and staying in the city. He was also aware of the atrocities
committed by the FLEC FAC and knew that they were atrocities.
[29]
In
Sepid v Canada (Minister of Citizenship and Immigration), 2008 FC 907,
[2008] FCJ No 1163 (QL), despite the fact that the applicant had stated he was
not a member but only a supporter of the MEK in Iran, the evidence provided
sufficient reasonable grounds to support the officer’s finding that the
applicant was, in fact, a member of the organization. The applicant gave
financial and material support to the organization for a number of years.
According to the port of entry notes, when he arrived Canada the applicant had
admitted to being a member of the MEK since 1991, and his activities with the
organization consisted of receiving, copying and distributing video cassettes
that encouraged people to join the MEK. In addition, during the inadmissibility
interview, the applicant had admitted that his activities with the MEK
consisted of recording videotapes and photocopying flyers containing
information about the MEK’s political agenda and goals and then distributing
them. The officer also noted that the applicant had provided financial contributions
to the MEK and had committed to that organization that he would go to Iraq to
become more educated about the MEK’s goals and policy.
[30]
In
Farkhondehfall v Canada (Minister of Citizenship and Immigration), 2010 FC
471, [2010] FCJ No 974 (QL), the applicant stated in his application for
permanent residence that he had been a supporter of the MEK from 1978 to 1981.
He added that he had been a member of the Muslim Iranian Students Society, an
organization linked to the MEK, when he was in India from 1981 to 1985 and that
he had supported this organization between 1985 and 1990. The applicant
admitted to the CSIS that he had supported the MEK in Iran by participating in
demonstrations, some of which had been violent. He had also attended meetings,
sold books and made financial contributions. In addition, the applicant had continued
his involvement with the MEK in Canada. At various times, he acknowledged
receiving an offer of employment with the MEK in Toronto, participating in MEK
demonstrations and meetings, and attending at their offices on occasion. He
also acknowledged meeting with fellow MEK supporters in Toronto to view pro-MEK
videotapes.
[31]
In
all these cases, it is apparent that the individual’s actions demonstrated his
or her substantive participation in the organization’s activities from which
one could infer connections analogous to those of a formal member.
[32]
In
this case, the evidence established that the applicant was aware of the
violence committed by the FLEC, as she acknowledged to the CSIS. At an
interview with the immigration officer on July 26, 2011, she admitted that
she had attended a few meetings as a supporter and had photocopied pamphlets
containing propaganda for the FLEC three or four times, the last one inviting
people to a demonstration that did not take place. The evidence does not show any
other activity relating to the organization.
[33]
In
my opinion, even with a broad and liberal interpretation, this minor, unimportant
participation is not in itself sufficient to find that there are reasonable
grounds to believe that the applicant was a member of the FLEC.
[34]
The
officer therefore erred in finding that the applicant was a member of an
organization described in subsection 34(1)(c) of the IRPA.
[35]
I
note that the applicant also submits that her life would be in danger in Angola
and invokes humanitarian and compassionate grounds. She adds that her removal
would violate sections 7 and 12 of the Canadian Charter of Rights and
Freedoms and international law. However, subsection 34(1)(f) of
the IRPA did not give the officer jurisdiction to consider this issue. In any
event, given my previous finding, there is no reason to respond to this
question.
[36]
The
application for judicial review is allowed and the matter is remitted to a
different decision‑maker for reconsideration in accordance with these
reasons.
[37]
The
applicant proposed the following question for certification:
[translation]
Can the inadmissibility in section 3 34(1)(f)of
the Immigration and Refugee Protection Act apply to the activities of or
membership in an organization that are protected under section 2 of the Canadian
Charter of Rights and Freedoms and the guaranty of freedom of expression
and freedom of association under that section?
[38]
This
question was not raised either in her memorandum or at the hearing of the
application for judicial review. Consequently, the respondent has not had the
opportunity to respond to it, and the Court need not rule on a question that
was not raised in the dispute. Accordingly, the Court refuses to certify it.
JUDGMENT
IT IS
THE JUDGMENT OF THIS COURT that the
application for judicial review is allowed. The matter is remitted to another
decision‑maker for reconsideration in accordance with these reasons.
“Danièle
Tremblay-Lamer”
Certified
true translation
Mary
Jo Egan, LLB
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