Date: 20070924
Docket: IMM-3104-06
Citation: 2007 FC 951
Ottawa, Ontario, September
24, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant(s)
and
BUSHRA AHMEDIN NURU, ZEMZEM
ABDULAZIZ SAID
(a.k.a. ZEMZEM ABDULAZI SAID), FAIZA
BUSHRA NURU,
REHAM BUSHRA NURU, RANIA BUSHRA NURU,
REDWAN BUSHRA NURU, ABDULAZIZ BUSHRA NURU
(a.k.a. ABDULAZIZ BUSHR NURU, REEMA
BUSHRA NURU)
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
These
are my reasons for judgment rendered orally at Toronto on September
11, 2007.
[2]
This
is an application for judicial review by the Minister of Citizenship and
Immigration (Minister) from a decision of the Refugee Protection Division of
the Immigration and Refugee Board (Board) dated March 10, 2006.
[3]
The
Minister' s challenge to the Board's decision concerns only the granting of
refugee protection to the principal claimant, Bushra Ahmedin Nuru. No claim is
asserted by the Minister against the remaining Respondents.
[4]
Before
the commencement of the hearing before the Board, counsel for the Minister
advised the Board that he intended to participate in writing and in that
regard, he made a detailed submission that Mr. Nuru was inadmissible to Canada
by operation of Article 1F(b) of the 1951 UN Convention Relating to the
Status of Refugees. In those submissions, it was alleged that Mr. Nuru had
been a member and supporter of the Eritrean Liberation Front (ELF) which was allegedly
a well-known terrorist organization responsible for numerous hijackings,
kidnappings and murders throughout the 1970s and 1980s. It appears that Mr.
Nuru acknowledged in his PIF an association with the Eritrean Liberation Front
(ELF) during the 1970s while he lived in Saudi Arabia but the
details of this were sketchy.
[5]
The
Minister's primary
argument is that the Board’s decision is patently unreasonable because it
failed to consider any of the evidence bearing on Mr. Nuru' s alleged support of
the ELF and other evidence that at the material time, the ELF was engaged in
terrorist activity.
[6]
There
is no question that the Board’s decision fails to address any of the Minister's evidence on
these issues and there is nothing to suggest that the Board even looked at that
evidence. Its
finding with respect to Mr. Nuru's
admissibility was as follows:
With respect to the claimant’s
affiliation with the ELF-RC, I am persuaded that he has been a member since on
or about 1977. The letter provided from the ELF office in Saudi Arabia, dated November 8, 1977,
was particularly persuasive evidence and was corroborated by the claimant’s
knowledge of the history of the ELF-RC. The letter from the party in Canada,
dated March 1, 2006, the claimant’s document showing proof of payment for party
membership, and testimony from the other witnesses corroborating his membership
have satisfied the Panel that the claimant has been and continues to be a
member of the ELF-RC.
…
I am in agreement with the submissions
provided by counsel at the commencement of the proceeding that the ELF-RC is
not recognized terrorist group by either Canada or the United States. I also rely on comments by Patrick
Gilkes, who is a recognized expert on Ethiopian and Eritrean politics having
been a writer and journalist in Eritrea
for the BBC for many years. Mr. Gilkes confirms that the ELF-RC is a peaceful
political party and the strength of its organization is found generally in
Germany and in Sudan.
For those reason, I am satisfied that
there is no issue with respect to exclusion, based on criminal activities.
[7]
The
problem with this finding is that the Board had evidence before it that the Eritrean
Liberation Front - Revolutionary Council (ELF-RC) was not created until the
early 1980s when it split off from the ELF. The Board's finding
that Mr. Nuru had been affiliated with the ELF-RC since about 1977 is
inconsistent with the weight of evidence before it. If Mr. Nuru was affiliated
with any group during that time, it was almost certainly the ELF. The Board
failed to identify any distinction between those two groups and, in that
respect, the decision is perverse and inconsistent with the evidence.
Furthermore, the Board had a duty to consider the Minister's evidence and its
failure to address that evidence in its decision establishes to my satisfaction
that the evidence was overlooked.
[8]
On
these issues, the Board relied, at least in part, upon a letter of opinion
authored by Patrick Gilkes. Mr. Gilkes opined that the ELF-RC was not a
terrorist organization. Mr. Gilkes was apparently not asked to comment on the
practices of the ELF and did not do so. The significance of this is that the
Minister was not provided with a copy of Mr. Gilkes' letter
despite having asked for disclosure of the documentary evidence placed before
the Board. Had the Crown seen this letter, it may well have taken fresh steps
to emphasize the points it had made earlier that the ELF and the ELF-RC were
distinct entities and that the ELF was a terrorist organization that Mr. Nuru
was alleged to have supported.
[9]
I
agree with counsel for the Minister that the failure by the Board to ensure
that Mr. Gilkes’ opinion letter was disclosed to the Crown represents a breach
of the duty of fairness.
[10]
The
Respondents argue that these problems are essentially academic failings because
the Minister's legal argument was untenable or, as he put it, prima facie
invalid. They assert that the Crown's argument rested on the application of
criminal offences which did not exist in Canada at the time
Mr. Nuru was allegedly active. This is, it is argued, an attempt to apply the
law retroactively. The Respondents’ argument is that this is a threshold issue
which the Board resolved in Mr. Nuru's favour and which I should now confirm on
judicial review.
[11]
I
do not accept that the Board resolved the exclusion issue on the retroactivity
issue. At page 112 of the transcript, the Board was invited to confirm its
position on this point and did so as follows:
I am in agreement with the submissions
provided by your counsel at the commencement of the proceeding that the ELFRC
is not a recognized terrorist group by either Canada or the United States, and
I also noted that I read a comment by Patrick Gilkies, who is a recognized
expert on Ethiopian and Eritrean politics, having been a writer and journalist
in - - I believe it was Eritrea - - for the BBC - - is it Eritrea? - - for many
years, and Mr. Gilkies also confirms that the ELFRC is a peaceful
political party and that it has - - the strength of its organization is found
generally in Germany and in Sudan.
For those reasons, I am satisfied that
the issue of exclusion was withdrawn - - satisfactorily withdrawn today due to
insufficient evidence.
[12]
The
other fundamental problem with attempting to address this legal issue on
judicial review when it was never addressed by the Board is that there exists
no evidentiary foundation to do so. No attempt was made by the Board to
explore Mr. Nuru's alleged conduct or to determine if it was sufficient to
support a finding of inadmissibility.
[13]
The
retroactivity issue may have some legal validity but it needs to be addressed
on a meaningful factual record. That evidentiary foundation is almost entirely
absent from this record because the Board effectively ignored the issue of Mr.
Nuru's conduct. There were any number of questions bearing on his level of
involvement with the ELF and his knowledge, if any, of its impugned conduct
that needed to be addressed before the retroactivity question could be fairly
resolved. These, then, are matters that need to be fully addressed in a fresh
hearing before a different panel of the Board.
[14]
I
will, therefore, order that this application for judicial review be allowed
with the matter to be redetermined on the merits by a differently constituted
panel of the Board.
[15]
Neither
party proposed a certified question and no issue of general importance arises
on this record.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is allowed with the
matter to be redetermined on the merits by a differently constituted panel of
the Board.
“ R. L. Barnes ”
Email this Content