Docket: IMM-290-14
Citation:
2014 FC 1167
Ottawa, Ontario, December 3, 2014
PRESENT: The
Honourable Madam Justice Gagné
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BETWEEN:
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ABDLWAHID HAQI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
Mr. Abdlwahid Haqi was found inadmissible to
Canada, pursuant to paragraphs 34(1) (b) and (f) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], as the Immigration
Division of the Immigration and Refugee Board [Board] had reasonable grounds to
believe that he had been a member of the Kurdish Democratic Party of Iran
[KDPI], an organization which has engaged in and instigated the subversion by
force of the Iranian government.
[2]
As this Court was about to issue its reasons it
the present file, the Federal Court of Appeal issued its decision in Najafi
v Canada (Minister of Public Safety and Emergency Preparedness), 2014 FCA
262 [Najafi, FCA] which, as will be seen hereafter, has a significant
impact on the applicant’s case.
[3]
The applicant raises two arguments in his
application for judicial review. Firstly, he argues the Board applied a
definition of “subversion by force” in an overly broad manner, in that it does
not take into account international law and the time of the subversion.
Secondly, the applicant argues he does not fall under the scope of the
provision and as such, ought not to be found inadmissible. Particularly, he was
12 years old when the KDPI was last militarily active and it has been 20 years
since the organization has formally renounced armed struggle. While this Court
has upheld a lack of temporal restriction and strict test for changes in an
organization, it has done so in cases dealing almost exclusively with terrorist
organizations which pre-date the Supreme Court of Canada’s decision in Ezokola
v Canada (Minister of Citizenship and Immigration), 2013 SCC 40 [Ezokola].
Finally, the applicant argues the Minister of Public Safety and Emergency
Preparedness’s delegates are profiling individuals such as the applicant, in
choosing cases to bring before the Board. The Board, so he argues, refused to
allow evidence to be called on whether this alleged practice contravened
section 15 of the Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, being Schedule B to the Canada Act 1982
(UK), 1982 c 11 [Charter]; it found that even if there was clear and
unequivocal evidence of discriminatory practices aggravated by the proceedings
held, the Board would act as “little more than an unwilling
participant, forced to perpetuate the effects of the discrimination by issuing
a deportation order.”
[4]
The respondent argues, meanwhile, that the Board
properly rejected the applicant’s interpretation of paragraph 34(1)(b);
neither Canadian law nor international law creates a right for organizations to
use violent means to overthrow a government. Moreover, even if the applicant’s
arguments had legal merit, they are not borne out by the facts; the KDPI
engaged in a deliberate campaign of violence against successive Iranian
governments, and did so, not through acts of self-defence which were restricted
to military targets, nor part of armed hostilities between recognized states.
The respondent finally asserts the Board did in fact conclude it has jurisdiction
to consider section 15 of the Charter, however, it found the applicant
had failed to establish a breach with respect to the substance or process of
the admissibility hearing.
[5]
For the reasons discussed below, this
application for judicial review will be dismissed.
I.
Background
[6]
The applicant is a thirty year old citizen of
Iran of Kurdish ethnicity.
[7]
He became a member of the KDPI in 2006 at the
age of 22. The KDPI is one of the oldest Kurdish parties in Iran, and was
formed around the time of the founding of the Republic of Mahabad in 1946, when
the KDPI took control over Mahabad city, and two neighbouring villages of Iran.
In the ensuing decades, the KDPI was involved in military conflict with
successive Iranian regimes that invaded the republic and engaged in brutal
repression of the Kurdish people. In 1996, the KDPI made a public choice to
pursue autonomy by peaceful means and there have been no documented military
engagements since that time.
[8]
The applicant’s activities with the organization
consisted of distribution of promotional and educational materials related to
the cause of Kurdish independence. He inaugurated and then led a secret cell of
the organization in Iran.
[9]
He arrived in Canada without a visa on December
26, 2011 and made a refugee protection claim based on his membership in the
KDPI which had caught the attention of the Iranian authorities.
[10]
In May 17, 2012, a Canada Border Services Agency
officer issued a report against the applicant under subsection 44(1) of the
IRPA [Section 44 Report] opining that he is inadmissible to Canada on security
grounds under paragraph 34(1)(f) of the IRPA as a member of an
organization that had engaged in subversion by force of any government under
paragraph 34(1)(b).
[11]
On May 25, 2012, a delegate of the Minister of Public
Safety and Emergency Preparedness [Minister] reviewed the Section 44 Report
under subsection 44(2) of the IRPA. The Minister’s delegate determined that the
Section 44 Report was well-founded, and consequently referred it to the Board
for an admissibility hearing under paragraph 34(1)(f).
II.
The Admissibility Hearing
[12]
On May 24, 2013, at a pre-hearing conference,
the applicant applied for an order staying the admissibility hearing on the
basis that the Section 44 Report and the decision to refer it to the Board were
discriminatory. Applicant’s counsel argued he suspects the Minister has
advanced a policy of “differential targeting” through the writing and reference
of section 44 reports based on the nationality of the claimant. The Board
dismissed the applicant’s pre-hearing application, finding that it did not have
jurisdiction “to go behind” a section 44 report or referral, citing the Order
of Collins v Canada (Minister of Citizenship and Immigration), 2009 16327
(FC) (IMM-2648-08) [Collins]. Accordingly, it would be more appropriate
for the applicant to challenge the lawfulness of the Section 44 Report or
referral by way of judicial review in this Court. The Board however left an
open avenue for the applicant to argue that a finding of inadmissibility would
result in a breach of his Charter rights.
[13]
On July 19, 2013, the Board held an oral
admissibility hearing, whereby the applicant conceded that he was a long-term
member of the KDPI and that, until 1996, the KDPI had engaged in acts of
violence in Iran with the specific aim of overthrowing successive Iranian
regimes. Nonetheless, the applicant argued that the KDPI is not an organization
described in paragraph 34(1)(b) because the KDPI did not engage in
“subversion by force”—its acts of violence were not “illicit” or “for improper
purposes”. The KDPI’s actions were justified under international laws of “armed
conflict” because it acted against only military targets, and in self-defence
and/or self-determination on behalf of the “Republic of Mahabad” in an armed
conflict between states. Alternatively, the applicant argued that he became a
member of the KDPI after it had renounced the use of force.
[14]
On October 4, 2013, the Board held a further
oral hearing in order to address this Court’s judgment in Najafi v Canada
(Minister of Public Safety and Emergency Preparedness), 2013 FC 876 [Najafi,
FC].
[15]
On December 27, 2013, the applicant was found by
the Board to be a person described under paragraph 34(1)(f) in the
decision under review.
III.
The Impugned Decision
[16]
The Board concluded that there were reasonable
grounds to believe that the applicant was a member of an organization that had
engaged in and instigated the subversion by force of the Iranian government.
[17]
The Board defined subversion under paragraph
34(1)(b) to include “accomplishing change by
illicit or for improper purposes related to an organization” and “subversion by force” to include “coercion
or compulsion by violent means” with the intended aim of overthrowing a
government. The motivations of the organization or the government in question
are not relevant under this provision.
[18]
The Board held that the use of armed struggle
within a country is an illicit means—there is no positive right under Canadian
or international law to use armed force to pursue political change.
[19]
Additionally, the applicant’s claim that the
KDPI’s acts of violence were a justifiable exercise of self-defence and/or
self-determination in an armed conflict under international law was not borne
out of the evidence. The Board found that the KDPI’s acts were not at all in
self-defence, and that the KDPI did not restrict itself to attacks on military
targets. The Board found that the KDPI also used violence against civilians,
including police officers by taking them in hostage and bombing pipelines. The
Board further found that the Republic of Mahabad was never a recognized state,
so that the laws of armed conflict, which apply between states, would not
apply.
[20]
With respect to the temporal component of the
provision, the Board held that it is not a requirement for inadmissibility that
the dates of an individual’s membership coincide with the dates during which
the organization committed acts of subversion by force.
[21]
Finally, the applicant’s claim that the KDPI had
renounced violence was not borne out on the evidence. The Board found that the
KDPI still maintains an armed militia (the Peshmerga) in Iraq and does not
wholly condemn the use of armed struggled.
[22]
Having found the applicant inadmissible, the
Board issued a deportation order against him.
IV.
Issues and Standard of Review
[23]
This application for judicial review raises the
following issues:
i)
Whether the Board erred in concluding that it
does not have jurisdiction to determine the lawfulness of the Section 44 Report
or Referral.
ii)
Whether the Board’s interpretation of paragraphs
34(1)(b) and 34(1)(f) was reasonable.
[24]
The applicant argues that the appropriate
standard of review in the context of interpreting international law is
correctness. In Febles v Canada (Minister of Citizenship and Immigration),
2012 FCA 324 (recently affirmed in Febles v Canada (Minister of Citizenship
and Immigration), 2014 SCC 68, without a specific standard of review
analysis) [Febles], the Federal Court of Appeal determined that the
presumption of reasonableness was rebutted because the interpretation of an
international convention, in that case article 1F(b) of the United Nations Convention relating to the
Status of Refugees, July
28, 1951, [1969] Can. TS No 6 [Refugee Convention], must be
interpreted as uniformly as possible. In the case at bar, this Court must
consider the Geneva Conventions and their Additional Protocols, in order
to assess the application of international law as it pertains to the right to
self-determination and international humanitarian law.
[25]
The respondent argues that the standard of
review for revising? the Board’s interpretation of the inadmissibility
provisions is reasonableness, notwithstanding that this is a question of law (B010
v Canada (Minister of Citizenship and Immigration), 2013 FCA 87 at paras
64-70 [B010]).
[26]
In my view, the task of the Board in the case at
bar is akin to that of the Refugee Protection Board [RPD] in B010 and
not that of the RPD in Febles. Here, the Board was asked to interpret
one of the inadmissibility provisions of the IRPA - not the Refugee Convention
as incorporated in the IRPA by way of reference. It may be that the Board needs
to rely on extrinsic legal concepts, be they based on international law or not,
for interpreting paragraph 34(1)(b) of the IRPA, as the Court of Appeal
did in B010 in interpreting paragraph 37 (1)(b) of the IRPA. It
does not change the fact that the Board is asked mainly to interpret its home
statute and not an international convention as was the case in Febles.
Therefore, I agree with the respondent that the Federal Court of Appeal has
properly determined in B010 that the proper standard of review
applicable to the Board’s interpretation of paragraphs 34(1)(b) and (f)
of the IRPA is reasonableness (see also Najafi, FC above at paras
59- 60 and Najafi, FCA at para 56). The applicant bears the burden of
establishing that the Board’s decision falls outside “a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
V.
Analysis
[27]
Both in his written submissions and at the
hearing before the Court, counsel for the applicant put great emphasis on the
fact that should this Court give the words “subversion by force” the broad
interpretation retained by the Board, paragraph 34(1) (b) of the IRPA
would cover millions of people, including the Canadian Armed Forces who
participated in the mission in Afghanistan.
[28]
Given this staggering scope, the applicant
argues that it is surprising that admissibility hearings are so rare and he
accuses the Minister of profiling and discriminating against his nationality,
ethnicity or other prohibited grounds of discrimination. He adds that although
the discrimination was originally manifested by the Minister who issued the
Section 44 Report, it was perpetuated when the Board dismissed the applicant’s
application for a stay of the hearing, when such a stay was argued on the basis
that the Section 44 Report and the decision to refer it to the Board were
discriminatory.
[29]
In my view, the applicant’s failure to seek judicial
review of the officer’s Section 44 Report or the Minister’s decision to refer
the applicant to an admissibility hearing is fatal to the applicant, as the
Board did not have jurisdiction to review the legality of either. In her short
order rendered in Collins, above, Justice Hansen observed that
she could not find a legislative, regulatory or jurisprudential support for the
proposition that the Board has the jurisdiction to assess the validity or
legality of a section 44 report and that the legality of the section 44 report
or the Minister’s decision to refer it to a hearing could not be attacked
indirectly by way of an application for judicial review of the Board’s
decision, just like the applicant is attempting to do in the present file.
Therefore, the Board did not err when it refused to stay the admissibility
hearing nor did it err by rejecting the applicant’s Charter argument.
VI.
Reasonableness of the Board’s interpretation of paragraphs
34(1)(b) and 34(1)(f) of the IRPA
A.
Subversion by force
[30]
In my view, no significant distinction can be
made between the facts of this case and the facts that were before Justice
Gleason in Najafi, FC. One of the issues raised in Najafi, FC was
precisely whether the KDPI could be said to have engaged in the subversion by
force of the Government of Iran, within the meaning and scope that Parliament
intended to give to paragraph 34(1)(b) of the IRPA. In the comprehensive
reasons given by Justice Gleason, it was found that the relevant provisions of
the IRPA did not suffer any ambiguity and by referring to “any government” in
paragraph 34(1)(b) of the IRPA, as opposed to a “democratic government”,
Parliament clearly intended that as long as force was used by the organization,
such an organization was meant to include all sorts of regimes, such as
non-democratic governments and governments which oppress their population or
part of their population in violation of human rights.
[31]
At paragraph 70 of her reasons in Najafi
FC, Justice Gleason also found that “there was no need
for the [Board] to resort to international law to consider whether this
well-settled interpretation of paragraph 34(1)(b) of the IRPA ought to be
discarded in the applicant’s case in light of the clarity of the provisions in the
IRPA”. In Najafi, FCA, Justice Gauthier, writing for the Court,
confirmed that the government clearly intended to give paragraph 34(1)(b)
a broad interpretation and that it did not have to specifically indicate that
it intended to overcome its international obligations, particularly when what
is argued by the applicant, as in this case, is not a real violation of an
international instrument to which Canada is a signatory (Najafi, FCA at
para 62).
[32]
As the decision in Najafi, FC was issued
by the Court before the Board rendered its decision in the present case, it was
reasonable for the Board to rely on it in its finding that the KDPI is an
organization that has engaged in the subversion by force of successive Iranian
governments.
B.
Temporality of membership
[33]
The applicant argues that he could not be said
to have been a member of an organization that engaged in subversion by force
because the KDPI had given up armed struggle 10 years prior to his membership.
The applicant acknowledges the decision of this Court and that of the Federal
Court of Appeal in Gebreab v Canada (Minister of Public Safety and Emergency
Preparedness), 2009 FC 1213 and 2010 FCA 274 [Gebreab], which
adopted an interpretation of section 34 of the IRPA that is not susceptible to
temporal qualification or changes within or to an organization. However, the
applicant argues that in Gebreab, as in most decisions rendered on
section 34, the organisation was also found to have engaged in acts of
terrorism and as importantly, that the decision pre-dates the Supreme Court’s
decision in Ezokola. The applicant views the Supreme Court’s limitation
of complicity and guilt by association as having an impact on the notion of
membership in an organisation for purposes of admissibility.
[34]
However, if we were to distinguish between cases
where an organisation is engaged in subversion by force and cases where it is
also engaged in acts of terrorism, it would result in amending the plain
wording of section 34 of the IRPA, as no such distinction exists. Section 33
and paragraph 34(1)(f) are clear on the face of the language: the
provisions “include facts for which there are reasonable
grounds to believe that they have occurred, are occurring or may occur”
and point to organizations that “[engaged], [have]
engaged or will engage in acts referred to in paragraph (a), (b)
[subversion by force], (b.1) or (c) [terrorism].” The
relevant provisions do not support the distinction that the applicant invites
the Court to make between organizations that engage in subversion by force
alone and those that in addition, engage in acts of terrorism.
[35]
Finally, this Court’s jurisprudence is
consistent: taking into consideration the government’s concern for public
safety and national security, and in light of the availability of a relief from
the application of subsection 34(1) of the IRPA, the term “member” ought to be
interpreted broadly (Canada (Minister of Citizenship and Immigration) v
Singh, (1998) 151 FTR 101 at para 52; Gebreab at para 24-25; B074
v Canada (Minister of Citizenship and Immigration), 2013 FC 1146 at para
27).
[36]
As to the Supreme Court’s decision in Ezokola,
I share the view expressed by Justice Strickland in Nassereddine v Canada
(Minister of Citizenship and Immigration, 2014 FC 85 [Nassereddine],
and by Justice Zinn in Kanazendran v Canada (Minister of Citizenship and
Immigration), 2014 FC 384, that the decision did not change the test for
admissibility pursuant to subsection 34(1)(f). In Ezokola, the
Supreme Court was asked to interpret Article 1F of the Refugee Convention
in light of the applicable international law. Complicity and membership in an
organization are two very distinct concepts and the interpretation of the
former, contained in an international convention, cannot be said applicable to
the latter, contained in a domestic legislation. We can neither infer from the
Supreme Court’s desire to bring the Canadian approach in line with
international law (and thus restrict the scope of complicity), a need to
overturn jurisprudence that has been consistent in interpreting the concept of
“membership in an organization”.
[37]
Although the argument does not appear to have
been made before the Federal Court of Appeal in Najafi, FCA, the latter
decision was rendered post Ezokola. The Supreme Court’s decision in Ezokola
had visibly, and I would add rightfully, no impact on the interpretation the
Federal Court of Appeal gave to paragraphs 34(1)(b) and (f) of the
IRPA.
[38]
In addition and as it was the case in Nassereddine,
the applicant admitted he had been a member in good standing at the KDPI.
Therefore, there is no need to assess the facts of this case against the
factors used to determine an individual’s membership in an organization or to
assess whether the applicant was complicit of acts of subversion by force, as a
means to establish membership. In other words, there is no need for an
assessment of complicity, which would be incidental to the overall analysis.
VII.
Conclusion
[39]
For these reasons, the applicant has not
convinced me that the Board’s finding that he is inadmissible for having been a
member in an organization that has been engaged in and instigated the
subversion by force of any government is unreasonable and his application is
dismissed.
[40]
At the hearing, the applicant proposed the
following questions for certification:
(i)
Is international law a relevant consideration in
assessing the definition of “subversion by force” under paragraph 34(1)(b)
of the IRPA? If so, is the onus on the Minister to show that alleged
“subversive” actions are contrary to international law?
(ii)
Was the analysis finding that the KDPI was still
a described organization when the applicant joined in 2006 reasonable? (Should
the reasoning of the Supreme Court of Canada in Ezokola have been taken
into consideration in assessing the scope of paragraph 34(1)(f)?
(iii)
Does the Board have the jurisdiction to consider
the impact of discrimination under section 15 of the Charter?
[41]
However and as indicated before, the decision in
Najafi, FCA was rendered as this file was under reserve and it properly
answers questions i) (expressly) and the second part of question ii)
(implicitly).
[42]
The first part of question (ii) has been settled
by the Federal Court of Appeal in Gebreab, which I view as still being
good law.
[43]
Finally, question (iii) was answered by the
Board who found that it did have jurisdiction to consider the impact of
discrimination under section 15 of the Charter. It simply and rightly
found that it did not have jurisdiction to review the officer’s decision to
issue the Section 44 Report or the Minister’s decision to refer the applicant
to an admissibility hearing. Therefore, that question is not determinative of
the present application, nor would it be determinative of an appeal.
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