Date: 20091126
Docket: IMM-2579-09
Citation: 2009 FC 1213
Ottawa, Ontario, November 26,
2009
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
BEKELE
MENGISTU GEBREAB
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Background
[1]
The
Applicant, Mr. Bekele Mengistu Gebreab, is a citizen of Ethiopia. In 1986, he joined an
organization named the Ethiopian Peoples’ Revolutionary Party (EPRP) and
participated by attending meetings, giving speeches and handing out pamphlets
regarding the oppression by the government.
[2]
Mr.
Gebreab came to Canada in 1990 – initially as a
student – and was accepted as a Convention refugee in 1993. The basis of his claim
was that he feared persecution at the hands of the governing party, the
Ethiopian Peoples’ Revolutionary Democratic Front (EPRDF), because of his
involvement with the EPRP.
[3]
In late
2008, Mr. Gebreab was called to an interview by officials with Canadian Border
Services Agency (CBSA). On December 31, 2008, an official with CBSA issued a
report (the s. 44 report), pursuant to s. 44(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c.27 (IRPA), in which report the
official concluded that Mr. Gebreab was inadmissible to Canada under s. 34(1)(f)
of IRPA for being a member of an organization (the EPRP) that was
engaged in subversion by force of any government and that was engaged in
terrorism.
[4]
Pursuant
to s. 44(2) of IRPA, the s. 44 report was referred to the Immigration
Division of the Immigration and Refugee Protection Board (the Board) for an
inadmissibility hearing. After a hearing, in a decision delivered orally on May
8, 2009, the Board found Mr. Gebreab to be a “foreign national who is inadmissible
to Canada pursuant to paragraph 34(1)(f) of [IRPA] for being a member of
an organization that there are reasonable grounds to believe engages, has
engaged or will engage in the acts referred to in paragraphs 34(1)(b) and
34(1)(c), namely subversion by force of any government and terrorism”. The
Board issued a Deportation Order that same day.
[5]
Mr.
Gebreab seeks judicial review of the decision of the Board.
II. Issues
[6]
As
clarified during oral submissions, the key issue raised by Mr. Gebreab is whether
the Board erred by failing to apply the correct test for determining whether
the EPRP, at the time that Mr. Gebreab was a member, was an organization that
met the criteria of s. 34(1)(b) and (c).
[7]
For the
reasons that follow, I am not persuaded that there is any such test as proposed
by Mr. Gebreab. Moreover, the Board, in this case, correctly applied the
relevant provisions of IRPA and the existing jurisprudence. Finally, I
am satisfied that the Board’s finding – a question primarily of fact – that the
EPRP is an “organization” within the meaning of s. 34(1)(f) was reasonable.
II. Analysis
A. Statutory Framework
[8]
Mr.
Gebreab was found inadmissible on security grounds under s. 34(1)(f) of IRPA.
In turn, his inadmissibility was based on the characterization of the EPRP
under s. 34(1)(b) and (c). These provisions are as follows:
|
Security
34. (1) A permanent resident or
a foreign national is inadmissible on security grounds for
.
. .
(b) engaging in or
instigating the subversion by force of any government;
(c) engaging in
terrorism;
.
. .
(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).
|
Sécurité
34. (1) Emportent
interdiction de territoire pour raison de sécurité les faits suivants :
. . .
b) être l’instigateur ou l’auteur
d’actes visant au renversement d’un gouvernement par la force;
c) se livrer au terrorisme;
. . .
f) être membre d’une organisation
dont 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).
|
[9]
Of direct
relevance to the determinations made by the Board are the “Rules of
Interpretation” set out in s. 33 as follows
|
Rules of interpretation
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.
|
Interprétation
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.
|
B. Standard of Review
[10]
The issue
before the Court is similar to the issue before Justice de Montigny in Mendoza v. Canada (Minister of
Public Safety and Emergency Preparedness), 2007 FC 934, 317 F.T.R.
118, at paragraphs.12-14. Mendoza was a case dealing with inadmissibility under s. 37(1) of IRPA. Justice de
Montigny stated that the issue of whether the Board erred in “finding there was
‘reasonable ground to believe’ that Mr. Mendoza was a ‘member’ of a criminal
organization” can be split into two. First, determining the test for membership
is a question of law; second, whether the Board erred in concluding there was
sufficient evidence of membership is mixed fact and law. Justice de Montigny
concluded that the decision on the test for membership was reviewable on a
standard of correctness and the actual membership decision was reviewable on a
standard of “patent unreasonableness”.
[11]
In my
view, the determinations by Justice de Montigny in Mendoza are equally applicable in the case
before me. Of course, since Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190
(Mendoza, at para. 13), the standard of patent unreasonableness is now
that of reasonableness.
[12]
It follows
that I will review the question of whether the Board applied the proper test
for its findings on a standard of correctness. However, if the Board applied
the law correctly, its findings with respect to the EPRP should be reviewed on
a standard of reasonableness.
C. Is there a “test” for finding membership?
[13]
Mr.
Gebreab does not dispute that the EPRP pursued violent means for achieving a
change in government in Ethiopia in the 1970s – long before he became a member. There also appears
to be little disagreement that the EPRP, when Mr. Gebreab joined, was not
engaged in violence or acts of terrorism.
[14]
Mr.
Gebreab argues that, in reading the objectives of IRPA (in particular
s. 3(2)(h)) together with s. 34(1)(f)), the Board must apply objective criteria
to determine “membership” and “organization”. Given the serious consequences to
an individual found to be inadmissible (see Alemu v. Canada (Minister of
Citizenship and Immigration), 2004 FC 997, 257 F.T.R. 52, at para. 41),
the use of objective criteria is essential. Specifically, Mr. Gebreab submits
that the nature of an “organization” should be determined by an analysis of the
following three factors, as of the date of his membership:
1.
Identity
of the leaders and members of the organization;
2.
The
goals and policies of the organization; and
3.
The
methods by which the organization attempts to attain its goals.
[15]
Mr.
Gebreab asserts that, in his case, application of the criteria to the
organization as it existed when he was a member, demonstrates that the
organization has undergone “fundamental and enduring” change. Thus, he argues,
the Board erred by not applying the factors he has set out.
[16]
In
support of his position, Mr. Gebreab points to the decisions in Sittampalam v. Canada
(Minister of Citizenship and Imigration), 2006 FCA 326, [2007] 3 F.C.R. 198 and Thanaratnam v. Canada (Minister
of Citizenship and Immigration), 2004 FC 349, [2004] 3 F.C.R. 301, rev’d on other grounds,
2005 FCA 122, [2006] 1 F.C.R. 474 (Thanaratnam FC).
According to Mr. Gebreab, these two cases have established the criteria
to be used for determining whether an “organization” meets the requirements of
s. 37(1)(a) of IRPA. He submits that the same objective criteria should
be applied to a finding under s. 34(1). In my view, Mr. Gebreab has
misapprehended the findings of the Courts in Sittampalam and Thanaratnam.
[17]
The source
of Mr. Gebreab’s “test” in Thanaratnam FC appears to be the statement by
Justice O’Reilly at paragraph 31, where he states:
Here, the two Tamil groups described by
the police had some characteristics of an organization – identity, leadership,
a loose hierarchy and a basic organizational structure – and I can find no
error in the Board’s conclusion that they fell within the terms of paragraph
37(1)(a) of [IRPA].
[18]
In Sittampalam,
above at paragraph 38, Justice Linden considered the meaning of the term
“organization” in s. 37(1)(a) of IRPA and endorsed the factors described by
Justice O’Reilly:
In Thanaratnam v. Canada (Minister of
Citizenship and Immigration), [2004] 3 F.C.R. 301 (T.D.), reversed on other
grounds, [2006] 1 F.C.R. 474 (C.A.), O'Reilly J. took into account various
factors when he concluded that two Tamil gangs (one of which was the A.K.
Kannan gang at issue here) were "organizations" within the meaning of
paragraph 37(1)(a) of the IRPA. In his opinion, the two Tamil groups had
"some characteristics of an organization", namely "identity,
leadership, a loose hierarchy and a basic organizational structure" (para.
30). The factors listed in Thanaratnam, supra, as well as other factors,
such as an occupied territory or regular meeting locations, both factors
considered by the Board, are helpful when making a determination under
paragraph 37(1)(a), but no one of them is essential.
[19]
These two
passages do not, in my view, establish any “test” for the definition of an
“organization”. Indeed, as stated by Justice Linden, while the factors are
helpful, “no one of them is essential”. In any event, these factors do not
address the question of changes within an organization.
[20]
So, what
does IRPA require of an analysis? There has been considerable
jurisprudence on that question.
[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 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.
[24]
Rationale for the
broad interpretation of these inadmissibility provisions of IRPA can be
found in the words of Justice Rothstein in Canada
(Minister of Citizenship and Immigration) v. Singh, (1998), 151 F.T.R. 101, 44 Imm. L.R.
(2d) 309 (F.C.T.D.) at paragraph 52. In speaking of the almost identical
provisions in the previous act, he stated:
The
provisions deal with subversion and terrorism. The context in immigration
legislation is public safety and national security, the most serious concerns
of government. It is trite to say that terrorist organizations do not issue
membership cards. There is no formal test for membership and members are not
therefore easily identifiable. The Minister of Citizenship and Immigration may,
if not detrimental to the national interest, exclude an individual from the
operation of subparagraph 19(1)(f)(iii)(B). I think it is obvious that
Parliament intended the term "member" to be given an unrestricted and
broad interpretation. I find no support for the view that a person is not a
member as contemplated by the provision if he or she became a member after the
organization stopped engaging in terrorism. If such membership is benign,
the Minister has discretion to exclude the individual from the operation of the
provision. [Emphasis added]
[25]
Furthermore, at paragraph
36 of Sittampalam (above), Justice Linden held that an “unrestricted and
broad” interpretation should be given to “organization”. Equally, when dealing
with “membership”, the Court of Appeal also endorsed a broad interpretation. In
using s. 33 of IRPA, Justice Linden argued that “membership” is not
determined solely on present membership (Sittampalam, above, at para.
20).
In
my view, Parliament must have intended section 33 to have some meaning. The
language of section 33 is clear that a present finding of inadmissibility,
which is a legal determination, may be based on a conclusion of fact as to an
individual's past membership in an organization. In other words, the
appellant's past membership in the A.K. Kannan gang, a factual determination,
can be the basis for a legal inadmissibility finding in the present.
[26]
This reasoning is not
only applicable to s. 37, but also to s. 34 of IRPA (Sittampalam,
above, at para. 26). Thus, contrary to the arguments put forth by Mr. Gebreab,
the Court in Sittampalam also favoured a broad interpretation of
membership and organization – one that is not limited by temporal
qualifications, or changes in the organization.
[27]
A further concern
that I have with Mr. Gebreab’s “test” is the impact it would have on the
interpretation of s. 33 and s. 34(1)(f) of IRPA. Section 33 sets out
that the facts that constitute admissibility under s. 34 “include facts for
which there are reasonable grounds to believe that they have occurred,
are occurring or may occur”. Further, under s. 34(1)(f), a foreign national is
inadmissible for 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)”. By finding that the EPRP is not an “organization”
because, at the time of Mr. Gebreab’s membership, it did not engage in acts of
terrorism or subversion, the Board would, in effect, eliminate the words “they
have occurred” from s. 33 and the words “has engaged” from s. 34(1)(f).
[28]
Given that
there are no required factors, the issue becomes whether the Board, in
determining the s. 37(1) issues before it, asked itself the right questions.
First, there was no question before the Board as to the membership of Mr.
Gebreab in the EPRP; he has consistently acknowledged that fact. Further, it
was undisputed that the acts of the EPRP in the 1970s would meet the test for a
terrorist or subversive organization as those terms are used in s. 34(1)(b) and
(c) of IRPA. Thus, the only issue before the Board dealt with the
“organization” that called itself the EPRP in the 1970s and the “organization”
that called itself the EPRP in the 1980s. At page 4 of the decision, the Board
states:
The nature of the EPRP as an organization
was disputed by the parties and the important question was whether the EPRP
in the 1970s was the same organization as the EPRP in the 1980s. [Emphasis
added]
[29]
That is
exactly the right question. The Board engaged in a consideration of whether the
organization to which Mr. Gebreab belonged (in the 1980s) was the same
organization as the EPRP of the 1970s, or whether there were two separate and
different organizations that shared the same name. If the Board had concluded
that there were two separate organizations, it would have been open to the
Board to conclude that the later “organization” – the EPRP of the 1980s – was
not an organization within the meaning of s. 34(1). On the other hand, with a
finding that the EPRP, during both 1970s and the 1980s was one
continuous organization, the Board was only required to determine whether there
were reasonable grounds to believe that the terrorist or subversive acts of the
EPRP have occurred in the 1970s.
[30]
In sum,
the “test” proposed by Mr. Gebreab is not a test taught by either the IRPA
or the jurisprudence. On the particular facts of this case, once the Board had
established that the EPRP of the 1970s was an “organization” within the meaning
of s. 34 of the IRPA, all that remained was for the Board to consider
whether the EPRP of the 1970s was the same organization as the EPRP of the
1980s. I am satisfied that the Board correctly identified the question before
it and correctly applied the test for determining whether the EPRP was an
organization as contemplated by s. 34(1) of IRPA.
C. Did the Board member err in finding that the
EPRP was a single continuous organization?
[31]
As noted
earlier, there was no disagreement, either before the Board or this Court, that
Mr. Gebreab was a member of the EPRP beginning in 1986 and that the EPRP
of the 1970s engaged in acts of terrorism and subversion. Thus, having
established that the Board applied the correct test, the only issue is whether
the Board’s conclusion that there was one continuous organization was
reasonable. The Court should not lightly intervene in this highly-factual
determination.
[32]
The
Board’s reasons are extensive and easily understood. The Board carefully
considered all of the evidence before it, including the evidence of the expert
put forward by Mr. Gebreab, and explained where and why it preferred certain
evidence over other evidence. It is fully within the Board’s discretion in
admissibility hearings to admit and weigh evidence (Sittampalam, above, at
paras. 45-49). After considering the evidence on the EPRP over the relevant
time period, the Board concluded that “the EPRP was a single,
continuously-existent political organization from the [1970s] through the time
of your membership in the 1980s and beyond”. Having reached this finding, it
follows that Mr. Gebreab, an admitted member of the organization, was a member
of an organization that there are reasonable grounds to believe has engaged in
acts of terrorism referred to in s. 34(1)(b) and (c) of IRPA.
[33]
I can find
no reason to intervene in this decision. The Board’s finding of inadmissibility
under s. 34(1)(f) was not unreasonable. Having considered all of the evidence
before it, the Board found, with extensive reasons, that the EPRP was one
single entity that had engaged in terrorist and subversive acts, and Mr.
Gebreab was a member. It is not the Court’s role to re-weigh the evidence.
According to Dunsmuir, the reviewing court ought not intervene when the
decision is within a range of reasonable outcomes, and when the reasoning is
intelligible and defensible on the facts and law (above, at para. 47). This decision clearly meets that
standard.
IV. Conclusion
[34]
For these
reasons, the application for judicial review will be dismissed.
[35]
Mr.
Gebreab proposes that the following question be certified:
Can a person who joins an organization
establish that it has not engaged in subversion of government by force or
terrorism as contemplated by s. 34(1)(f) of IRPA by showing that, when he
joined the organization, it had undergone fundamental and enduring change in:
(1) identity of its leaders and members; (2) its policies; and (3) its methods
that reject subversion by force or terrorism?
[36]
The
Respondent opposes the certification of this or any question.
[37]
In general, decisions
of the Federal Court in matters arising under IRPA are final. However,
pursuant to s. 74(d) of IRPA, an appeal to the Court of Appeal may be
made “only if, in rendering judgment, the judge certifies that a serious
question of general importance is involved and states the
question”.
In the recent decision of Varela v. Canada
(Minister of Citizenship and Immigration), 2009 FCA 145, 80 Imm. L.R. (3d) 1, [2009]
F.C.J. No. 549 (QL), the Court of Appeal emphasized that any
question certified must meet certain criteria:
·
The question must be
a serious question of general importance;
·
The question must
arise from the issues in the case and not the judge’s reasons;
·
A serious question is
one that is dispositive of the appeal; and
·
The reference in s.
74(d) to “a serious question” means that a single case will raise more than one
question only as an exception to the rule that only “a” question may be
certified.
[38]
Having regard to the
factors outlined in Varela, I am satisfied that the first issue in this
case raises a serious question of general importance. Although I believe that
at least two trial level decisions have answered this question in the negative
(Al Yamani, above, and Singh, above), there has been no
consideration of the issue by the Court of Appeal. The answer to this question
would be dispositive of the appeal in that, if the question is answered in the
positive, the Board would have incorrectly applied s. 34(1)(f) of the IRPA.
[39]
I would, however,
re-formulate the question more directly and simply:
Is
a foreign national inadmissible to Canada, pursuant to s. 34(1)(f) of IRPA,
where there is clear and convincing evidence that the organization disavowed
and ceased its engagement in acts of subversion or terrorism as contemplated by
s. 34(1)(b) and (c) prior to the foreign national’s membership in the
organization?
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
the application for
judicial review is dismissed: and
2.
the following
question is certified:
Is
a foreign national inadmissible to Canada, pursuant to s. 34(1)(f) of IRPA,
where there is clear and convincing evidence that the organization disavowed
and ceased its engagement in acts of subversion or terrorism as contemplated by
s. 34(1)(b) and (c) prior to the foreign national’s membership in the
organization?
“Judith
A. Snider”
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