Date: 20110301
Docket: IMM-4012-10
Citation: 2011 FC 246
Ottawa, Ontario, March 1, 2011
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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ELMUATAZ TAGELSIR IBRAHIM DIRAR
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Elmuataz Tagelsir
Ibrahim Dirar seeks judicial review of a decision of the Immigration Division
of the Immigration and Refugee Board which found him to be inadmissible to Canada on security grounds. The Board found that he was a member
of the Justice and Equality Movement (JEM), an organization that engages, has
engaged, or will engage in terrorism.
[2]
Mr. Dirar says that
the Board erred in concluding that JEM was a terrorist organization. He
contends that the Board also erred in finding that he was a member of JEM,
rather than the Justice and Equality Movement Students’ Leadership (JEM-SL), an
unrelated and non-violent organization. Mr. Dirar says that the Board further
erred by preferring an immigration officer’s unsworn notes of an interview with
Mr. Dirar, over Mr. Dirar’s sworn testimony.
[3]
For the reasons that
follow, I find that the Board erred in assessing whether JEM can be properly
characterized as a terrorist organization. Consequently, the application will
be allowed. In light of my conclusion on the first issue, it is not necessary
to deal with the other issues raised by Mr. Dirar.
Background
[4]
Mr. Dirar is a
Sudanese citizen who was born in Saudi
Arabia in 1982. He and his
family returned to live in the Darfur region of Sudan in
1987.
[5]
Mr. Dirar moved to Khartoum in 1999 in order to finish his secondary school studies and
to attend university. From 2001 to 2005 he attended the Sudan University of
Science and Technology. He says that while he was at university, he joined
JEM-SL. According to Mr. Dirar, JEM-SL is a non-violent organization whose
goal is to publicize the conduct of the current Sudanese government, to promote
the interests of Darfurian students, and to bring attention to the slaughter
occurring in Darfur.
[6]
Mr. Dirar states that
he was active in JEM-SL, and was involved in organizing demonstrations and
giving speeches. As a result of his activities, he was detained twice by the Al‑Ihtiati
Al Markazi, a branch of the police force specially trained to deal with riots
and demonstrations. After his second detention, Mr. Dirar claims that he ceased
his involvement in JEM-SL. He says that he nevertheless remained in contact
with its leader, Alwathik Yasin.
[7]
Because he believed
that the security forces had labeled him as an active opponent of the
government, Mr. Dirar says that he feared for his safety. He left Sudan on July
27, 2007 for the United
States, traveling on a
student visa. He stayed in the United
States until September 5,
2007, when he crossed into Canada and claimed refugee protection.
[8]
As a result of his
claim for refugee protection, Mr. Dirar was interviewed by agents of both the
Canadian Security Intelligence Service and the Canada Border Services Agency.
His hearing before the Immigration Division took place on February 11, 2009 and
January 13, 2010, and notes of Mr. Dirar’s interviews were put into evidence
before the Board.
The
Board’s Decision
[9]
The Board found that
JEM-SL was a part of JEM, and was not a separate and unrelated organization.
The Board further found that Mr. Dirar was a member of JEM.
[10]
In concluding that
JEM was a terrorist organization, the Board adopted the definition of terrorism
from Suresh v. Canada (Minister of Citizenship and
Immigration), 2002 SCC
1, [2002] 1 S.C.R. 3 at para. 96, where the Supreme Court of Canada described
terrorism as:
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.
[11]
Reference was also
made by the Board to the definition of “terrorist activity” contained in
subsection 83.01(1) of the Criminal Code, R.S., 1985, c. C-46.
[12]
According to the
Board, there was credible documentary evidence that showed that JEM is an
organization that engages, has engaged, or will engage in terrorism. This
evidence includes documents that discuss serious violations of international
human rights and humanitarian law, which may amount to war crimes.
Specifically, these acts included the murder of civilians and pillage in West
Darfur.
The
Legislative Authority for the Decision
[13]
Before turning to
examine the arguments advanced by Mr. Dirar, it is helpful to first review the
legislative framework governing inadmissibility findings such as this.
[14]
The
inadmissibility finding in this case was made under the provisions of section
34(1)(f) of the Immigration and Refugee Protection Act, , S.C. 2001,
c.27, the relevant portions of which provide that:
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34. (1) A permanent resident or a
foreign national is inadmissible on security grounds for
…
(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).
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34. (1) Emportent interdiction de
territoire pour raison de sécurité les faits suivants :
…
c) se livrer au terrorisme;
…
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).
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[15]
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:
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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.
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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.
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Analysis
[16]
The determinative
issue in this application is the Board’s finding that JEM is a terrorist
organization. This is a question of mixed fact and law and is reviewable
against the standard of reasonableness: see, for example, Omer v. Canada (Minister of Citizenship and
Immigration), 2007 FC
478, 157 A.C.W.S. (3d) 601 at para. 9, and Jalil v. Canada (Minister of Citizenship and
Immigration), 2006 FC
246, 52 Imm. L.R. (3d) 256, at paras. 19 and 20.
[17]
The Supreme Court of
Canada described the “reasonable grounds to believe”
evidentiary standard 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 has stated that reasonable grounds will
exist “where there is an objective basis for the belief which is based on
compelling and credible information”: Mugesera v. Canada (Minister of Citizenship and
Immigration), 2005 SCC
40, [2005] 2 S.C.R. 100 at para. 114.
[18]
In examining whether
JEM was a terrorist organization, the Board commenced its analysis with the
observation that Mr. Dirar had conceded that JEM is an organization that
engages, has engaged, or will engage in terrorism. Counsel for the Minister
has, however, been unable to identify any point in the proceedings before the
Immigration Division where Mr. Dirar made such a concession. Indeed, a substantial
portion of the written submissions provided to the Board by Mr. Dirar’s counsel
challenge the Minister’s contention that JEM is a terrorist organization.
[19]
We cannot know the
extent to which this error influenced the Board’s appreciation of the
documentary evidence, but it does raise concerns as to the degree of care taken
by the Board in this matter. It also suggests that Mr. Dirar’s submissions were
ignored or misconstrued by the Board, which, by itself, is a sufficient basis
for quashing the decision.
[20]
However, I am also
concerned with the Board’s treatment of the documentary evidence relating to
the nature of the activities carried out by JEM.
[21]
The Darfur region of
western Sudan has seen a great deal of conflict over
the last decade due to ethnic tensions between the Afro-Arab and non-Afro-Arab
populations. On the government side of the conflict are the official Sudanese
military and police, as well as the “Janjaweed”, an Arab militia group which
allegedly acts on behalf of the Government, and benefits from impunity for
their actions.
[22]
Commencing in
February of 2003, rebel groups in Darfur rose up against the Sudanese government
and the Janjaweed. There are two main rebel groups involved in this rebellion
- the Sudan Liberation Movement or Army (the “SLM/A”) and the Justice and
Equality Movement. These organizations are primarily made up of members of the
non-Arab Muslim Fur, Zaghawa, and Masalit tribes.
[23]
The conflict in
Darfur has been very bloody, with some estimates putting the loss of life in
Darfur in the hundreds of thousands. The United Nations International
Commission of Inquiry on Darfur found that the Sudanese Government has
committed violations of humanitarian and international law that might be
considered to be war crimes. The International Criminal Court has issued an
arrest warrant for President Omar al-Bashir for his alleged complicity in war
crimes and crimes against humanity committed against the people of Darfur.
[24]
It is against this
backdrop that the activities of the JEM must be assessed.
[25]
It is clear from the
documentary evidence that in addition to the SLM/A and JEM, there are numerous
other rebel groups involved in the conflict in Darfur,
some of which also call themselves “JEM”. Moreover, JEM itself has gone through
a series of splits, with a number of different, unrelated organizations
carrying on activities under the “JEM” banner. Indeed, Jane’s World Insurgency
and Terrorism Report refers to four different, autonomous JEM splinter groups,
three of which continue to refer to themselves as “JEM”.
[26]
Other documentary
evidence indicates that there are at least 12, and possibly as many as 16 rebel
groups that have their origins in either JEM or the SLM/A.
[27]
None of this evidence
was addressed by the Board. Nor did the Board make any effort to determine
which JEM organization Mr. Dirar was a member of.
[28]
Moreover, the
documentary evidence before the Board indicates that it is not always possible
to determine which rebel group had been responsible for which activity. In
particular, a United Nations report noted that most reports of actions by rebel
groups do not distinguish between activities carried out by JEM, and those
carried out by the SLM/A. The same report goes on to observe that the SLM/A is
the larger military actor of the two groups, whereas JEM “is more political,
and has limited military capacity”.
[29]
Indeed, a number of
the reports of the actions by rebel groups that were relied upon by the Board
in this case do not distinguish between activities that were carried out by JEM
organizations and those carried out by the SLM/A. Even in the case of
activities specifically attributed to JEM, the Board made no attempt to
determine which JEM organization was responsible for which allegedly terrorist
activity.
[30]
Finally, the Board refers
to a 2003 attack carried out on the town of Kulbus
by members of JEM as an example of a terrorist act. It appears that civilians,
including a child, were killed in the attack. However, the United Nations
itself recognized that “[a]rguably, the town of Kulbus
was a military target”, which could take the attack outside of the definition
of a terrorist act. No reference was made to this statement, which clearly
calls the Board’s finding that the attack amounted to a terrorist act into
question. Given that this evidence ran directly contrary to the Board’s finding
on a key issue, it was an error not to deal with it: Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration) [1998]
F.C.J. No. 1425, 157 F.T.R. 35 at paras. 14-17.
[31]
The situation in
Darfur is undoubtedly murky, and atrocities have been committed by both sides
of the conflict. Nevertheless, a finding that an individual is inadmissible to Canada for being a member of a terrorist organization is a serious
one, with extremely negative potential consequences for the individual
involved. As a result, great care must be taken to ensure that the finding is
properly made. That was not done here.
Conclusion
[32]
For these
reasons, the application for judicial review is allowed. On the consent of the
parties, the style of cause is amended to add the Minister of Citizenship and
Immigration.
Certification
[33]
Mr. Dirar has
suggested questions for certification relating to the Board’s treatment of
notes of an interview of Mr. Dirar carried out by a CBSA officer. Given that it
has not been necessary to address that issue in this decision, it follows that
the questions posed by Mr. Dirar are not dispositive of this case.
Consequently, I decline to certify them.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is allowed, and the matter is remitted to a
differently constituted panel of the Immigration Division for re-determination
in accordance with these reasons;
2.
The style of cause is amended to add the Minister of Citizenship and
Immigration.
3.
No serious question of general importance is certified.
“Anne
Mactavish”
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