Docket: IMM-696-14
Citation:
2014 FC 1146
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, November 28, 2014
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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AYALEW GABEYHU ABEBE
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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
I.
Introduction
[1]
This is an application for judicial review,
pursuant to subsection 72(1) of the Immigration and Refugee Protection
Act, SC 2001, c 27 [IRPA], of a decision of the Immigration Division [ID] of
the Immigration and Refugee Board declaring the applicant to be inadmissible
under paragraphs 34(1)(f), (b) and (c) of the IRPA.
II.
Facts
[2]
The applicant is a 39-year-old Ethiopian citizen
of Oromo ethnicity. The applicant based his refugee protection claim on an
alleged fear of persecution by the Ethiopian government because of his
political activities with the opposition.
[3]
In 2001, the applicant left Ethiopia for Kenya before going to Norway, where his application for asylum was rejected. In 2011,
the applicant left Norway for Iceland, where he was again refused asylum. The
applicant arrived in Canada on November 21, 2011, and claimed refugee
protection that same day.
[4]
On May 9, 2013, a report on the applicant,
prepared in accordance with subsection 44(1) of the IRPA, was referred to
the ID for an admissibility hearing pursuant to subsection 44(2) of the IRPA.
The report stated that there were reasonable grounds to believe that the
applicant is described in paragraphs 34(1)(f), (b) and (c)
of the IRPA because of his participation in the Oromo Liberation Front [OLF]
and the political party Ginbot 7.
III.
Impugned decision
[5]
In a decision dated January 23, 2014, the
ID concluded that the applicant was inadmissible under paragraphs 34(1)(f),
(b) and (c) of the IRPA.
[6]
First, after examining the evidence in the
record, the ID concluded that the applicant had been a member of the OLF, an organization
that there are reasonable grounds to believe engages or has engaged in “acts of
terrorism”, according to paragraphs 34(1)(f), (b) and (c)
of the IRPA, because of numerous bombings attributed to the OLF that had
occurred in Addis-Ababa and Dire-Dawa in 1997, 2000 and 2002.
[7]
The ID then went on to conclude that the
applicant was an active member of the political party Ginbot 7, an
organization that there are reasonable grounds to believe engages in or
instigates “the subversion by force of any government”, according to
paragraphs 34(1)(f), (b) and (c) of the IRPA.
[8]
Finally, considering the discrepancies between
the applicant’s initial statements in his Personal Information Form [PIF], in
his IMM 5611 questionnaire entitled “Claim for Refugee Protection in
Canada”, and in his testimony at the hearing, the ID concluded that the
applicant had tried to play down his participation in the OLF, thereby
undermining his credibility (Tribunal Record, at pp 8 and 9; Decision of
the ID, at paras 45 and 36).
IV.
Issue
[9]
Are the ID’s findings regarding the applicant’s
inadmissibility under paragraphs 34(1)(f), (b) and (c)
of the IRPA reasonable?
V.
Statutory provisions
[10]
The applicant was declared inadmissible under
the following sections of the IRPA:
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Rules of interpretation
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Interprétation
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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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Security
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Sécurité
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34. (1) A permanent resident or a
foreign national is inadmissible on security grounds for
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34. (1)
Emportent interdiction de territoire pour raison de sécurité les faits
suivants :
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. . .
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[…]
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(b) engaging in or instigating the subversion by force of
any government;
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b) être
l’instigateur ou l’auteur d’actes visant au renversement d’un gouvernement
par la force;
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. . .
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[…]
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(c) engaging in terrorism;
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c) se
livrer au terrorisme;
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. . .
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[…]
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(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), (b.1) or (c).
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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),
b.1) ou c).
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VI.
Position of the applicant
[11]
The applicant submits that the ID erred in its
assessment of the evidence regarding the applicant’s participation in the OLF
and in its characterization of that organization as one “engaging in
terrorism”, under paragraph 34(1)(c) of the IRPA.
[12]
The applicant further submits that the ID erred
in characterizing Ginbot 7 as an organization described in paragraph 34(1)(f)
of the IRPA.
[13]
Finally, the applicant alleges that the ID erred
in its interpretation of the concept of “member” within the meaning of
paragraph 34(1)(f) of the IRPA.
VII.
Standard of review
[14]
According to the Federal Court of Appeal, the
reasonableness standard applies to the ID’s determination of whether the
applicant is a “member” of an organization described in paragraph 34(1)(b)
or (c) of the IRPA (Poshteh v Canada (Minister of Citizenship and
Immigration), (FCA), [2005] FCJ 381 at para 21 [Poshteh]; Gutierrez
v Canada (Minister of Citizenship and Immigration), 2013 FC 623 at
para 21; Kanendra v Canada (Minister of Citizenship and Immigration),
2005 FC 923 at para 12).
[15]
In applying the reasonableness standard, the
Court must consider the justification, transparency and intelligibility of the
decision-making process and must analyze whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law (Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190 at para 47).
VIII.
Analysis
[16]
Section 33 of the IRPA states that, for the
purposes of interpreting subsection 34(1), the burden of proof applicable
to the determination of “facts . . . [,which] include facts arising
from omissions” must be appreciated in accordance with the standard of
“reasonable grounds to believe” that the facts “have occurred, are occurring or
may occur”, thereby permitting the ID to consider past,
present and future facts when making a determination as to the applicant’s inadmissibility
(Sittampalam v Canada (Minister of Citizenship and Immigration),
2006 FCA 326 at para 18).
[17]
The case law holds that the applicable standard
of review is less stringent than the civil standard of proof on a balance of
probabilities, but is more than a mere suspicion. The “reasonable grounds to
believe” standard therefore requires that the ID consider whether there is “an objective
basis for the belief which is based on compelling and credible information” rendering
the applicant inadmissible under subsection 34(1) of the IRPA (Mugesera
v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at
para 114; Charkaoui v Canada (Citizenship and Immigration), 2007 SCC
9 at para 39; Fathi v Canada (Minister of Citizenship and Immigration),
2011 FC 558 at para 24).
[18]
In addition, there need not be a matching of the
applicant’s active participation in organizations described in paragraph 34(1)(f)
and the period during which the organization was carrying out the alleged acts,
according to paragraphs 34(1)(b) and (c) of the IRPA (Al
Yamani v Canada (Minister of Public Safety and Emergency Preparedness),
2006 FC 1457 at para 12).
[19]
What is more, it is trite law that the term
“member” within the meaning of subsection 34(1) must be given an unrestricted
and broad interpretation (Poshteh, above at paras 27-29).
[20]
In Qureshi v Canada (Minister of Citizenship
and Immigration), 2009 FC 7, the Court rejected a narrow interpretation of
the concept of “member”:
[21] In Kanendra, Mr. Justice Noël
rejected the distinction between formal membership and membership inferred
through participation stating:
21 The Applicant submits that the
interpretation of “member” in s. 34(1)(f) must be read strictly, so as
not to include in its ambit persons who may associate and sympathize with an
organization described in s. 34(1)(a), (b) or (c), but who
are not themselves a threat to Canada. The Applicant further submits that “member”
should be interpreted to mean current and actual or formal membership . . . .
22 To adopt such an
interpretation would, I think, be contrary to the spirit of the legislation as
well as to prior jurisprudence. In Suresh v. Canada (Minister of
Citizenship and Immigration) (1997), 40 Imm. L.R. (2d) 247 (F.C.T.D.) at
259 (para. 22), rev'd in part (on different grounds), 47 Imm. L.R. (2d) 1
(F.C.A.), Justice Teitelbaum stated that, “Membership cannot and should not
be narrowly interpreted when it involves the issue of Canada's national security. Membership also does not only refer to persons who have engaged
or who might engage in terrorist activities.” See also Canada (Minister of Citizenship and Immigration) v. Singh (1998), 44 Imm.
L.R. (2d) 309 at para. 51 et seq. (F.C.T.D.); Canada (Minister
of Citizenship and Immigration) v. Owens (2000), 9 Imm. L.R. (3d) 101 at paras.
16-18 (F.C.T.D.); Poshteh, supra, at para. 29.
23 Therefore, the term “member”
as it is used in s. 34(1)(f) of IRPA should be given a broad
interpretation. . . .
[Emphasis added.]
[21]
In his memorandum, the respondent aptly raises
the distinction between inadmissibility and exclusion, the latter requiring a
higher level of participation or complicity in a crime or terrorist act. This
distinction was examined in Kanapathy v Canada (Minister of Public Safety
and Emergency Preparedness), 2012 FC 459 at paras 35-37:
[35] The requirements for establishing
inadmissibility on security grounds are thus less stringent than the
requirements for exclusion on grounds of violating international human rights. The
latter requires complicity or knowing participation in the commission of a
specific international crime, while the former does not require any
complicity or knowing participation in an act of terrorism. Mr. Kanapathy fails
to appreciate these distinctions when he argues that the Officer erred by
failing to show that he actually incited a terrorist act during his employment
with Murasoli.
[36] Given the low threshold that must be
met to support a membership finding under subsection 34(1) of IRPA, the
Officer’s conclusion that Mr. Kanapathy’s work for the Murasoli supported the
LTTE was reasonable. Mr. Kanapathy has acknowledged that the Murasoli supported
and was controlled by the LTTE. Moreover, the documentary evidence affirms the
links between the Murasoli and the LTTE and discusses the importance of media
propaganda to the LTTE’s activities.
[37] The Officer quite reasonably relied
on Mr. Kanapathy’s knowing participation in LTTE propaganda campaigns and his
association with key members of the LTTE over a three-year period to find that
there were reasonable grounds to believe that Mr. Kanapathy was a member in the
LTTE for the purposes of paragraph 34(1)(f) of IRPA.
[Emphasis added.]
[22]
The Court finds that it was reasonable for the
ID to conclude that the applicant is, or was, a “member” of the OLF and Ginbot
7, given his level of active involvement in both organizations, and that these organizations
are described in paragraphs 34(1)(f), (b) and (c) of
the IRPA.
[23]
First of all, in his PIF, the applicant states
that in 2000-2001, he and other students of Oromo origin aided and supported
the OLF by distributing pamphlets and raising funds to help detained students
of Oromo origin (Tribunal Record, at p 129). Moreover, at the hearing
before the ID, the applicant stated that he had contributed to the OLF:
Q. Here you said
that you were supporting and helping the Oromo Liberation Front. How did you do
that?
A. I drew the contact with Oromo
Liberation Front, but seeing the pressure that made upon Oromo students, having
understanding that or looking that, so I just wanted to help those who join
them.
Q. But how did you do that, how did you
help?
A. Yeah, I’m an instrument for those who
had been detained, who had been detained by writing by (inaudible). . . . There
was pressure put on Oromo so that some of them were detained. So we contributed
money or we raised some money to help detained Oromo students.
. . .
Q. The question was, were you a member
of the OLF?
A. I was supporting for going into that.
I was not registered as a member, nor I didn’t sign any membership document.
. . .
Q. Why did you support the OLF? Why not
another group?
A. At that time, there was not such
other Oromo organization apart from which was affiliated to the government. The
only organization that was considered for the cause of Oromo was (inaudible).
(Tribunal Record, at pp 515 and 519).
[24]
Furthermore, the documentary evidence supports
the ID’s finding that the OLF is an organization “engaging in terrorism”:
Radical Ahmara groups, the OLF, and the Islamic
extremist group Al’lttihad Al’Islamia were responsible for a number of grenade
attacks, bombings, shootings, and ambushes that killed and injured a number of
persons.
. . .
Police blamed the Oromo Liberation Front (OLF)
for a series of grenade attacks in Addis Ababa in mid-April that killed left
two persons and seriously injured 75 others. Other deadly grenade attacks,
attributed to the Islamic extremist group Al’ittihad al’Islami and the OLF,
occurred in Dire Dawa and Harar. The police blamed OLF members for the March 28
ambush and killing of the mayor of Dolo Mena, a Danish missionary nurse, and a
passing motorist.
On July 13, 150 to 200 suspected OLF militants
attacked the Jeldu Wereda police station, killing 3 policemen and wounding 5.
. . .
On November 5 authorities arrested three
alleged OLF terrorists, who confessed to hotel and restaurant bombings in Addis Ababa and Dire Dawa. On November 6, the Federal Police arrested 17 OLF supporters,
most of them members of Tulema, a longstanding Oromo self-help organization
that the Government asserts is a political organization. Six were founding
members of the newly registered Oromo Human Rights League. A total of 31 OLF
activists were arraigned on various terrorism and illegal weapons possession
charges on December 2. Although the OLF is an illegal organization, due to its
refusal to renounce violence and accept the Constitution, simple membership is
not necessarily cause for arrest. OLF members travel abroad for negotiations
with the Government without hindrance. The Government draws a distinction,
however, between the OLF’s rank and file and its leadership.
. . .
Political participation remains closed to a
number or organizations that have not renounced violence and do not accept the
Government as a legitimate authority. These groups include Medhin, the Coalition
of Ethiopian Democratic Forces, the Ethiopian’s People’s Revolutionary Party,
the OLF, some elements of the ONLF and several smaller Somali groups.
(U.S. Department of State Country Report on
Human Rights Practices 1997- Ethiopia, Tribunal Record, at pp 136-138 and 143).
[25]
The report entitled U.S. Department of State - Country
Report on Human Rights Practices 2002 – Ethiopia denounces the violence
perpetrated by the OLF:
The OLF and ONLF continued to use landmines
during the year. Some U.N. vehicles were hit by mines near Jijiga, resulting in
injuries to personnel. On August 5, a bomb exploded at the Edom Hotel in the
town of Jijiga, killing one person and injuring six others. No group claimed
responsibility for the attack, although authorities believed the ONLF was
responsible.
On September 11, a bomb killed four persons at
the Tigray Hotel in Addis Ababa. The Government blamed the OLF for the attack
and claimed to have arrested the perpetrators. The OLF denied responsibility
for the attack.
There was no further information by year’s end
in the 2000 case in which landmines allegedly were used to derail a freight
train near Nazareth or the 2001 arrests of five OLF members who allegedly
committed the act.
(Tribunal Record, at pp 154-155).
[26]
The report Country Report on Terrorism 2011 –
Chapter 2 - Ethiopia describes the terrorist activities of the OLF and the
Ethiopian government’s reaction to those activities:
[The Government of Ethiopia] also remained
concerned about domestic groups such as the Ogaden National Liberation Front
(ONLF) and the Oromo Liberation Front (OLF). Despite the Ethiopian Government’s
peace agreement with the United Western Somali Liberation Front (UWSLF) and a
faction of the ONLF in 2010, elements from both groups, as well as the OLF, continued
their attempts to target Ethiopian government officials and infrastructure.
This included a failed attempt by OLF elements to attack Addis Ababa during the
African Union (AU) Summit in January 2011. The Ethiopian government cooperated
with the U.S. government on military, intelligence, and security issues.
(Tribunal Record, at p 200).
[27]
Moreover, the report Jane’s World (Insurgency
and Terrorism), Oromo Liberation Front (OLF), dated May 31, 2006, describes the OLF as the most robust armed insurgent group
in the late 1990s. Among other things, the report states:
The OLF became the most robust armed group in Ethiopia in the late 1990s, and from 2002 to 2004 was held responsible by Ethiopian authorities for
several small bomb attacks in Ethiopia, including the triple bomb blasts at a
hotel in Addis Ababa on the 12 September 2002, killing one person and wounding
several others.
. . .
The OLF has declared that armed struggle is
necessary to achieve the Oromo’s right to self-determination. Since its
inception, the OLF has conducted a low level guerilla campaign against the
Ethiopian security forces on each of its four fronts. The group has sought to
capture strategic areas and to establish guerilla bases from which to operate
and expand their area of control. The OLF has always claimed that it would not
harm civilians and only targets government installations and military targets
such as military convoys, army bases and transportation networks. It states
that it has an unswerving ant-terrorist stance and denies government
accusations of its involvement in terrorist attacks against civilian and
tourist facilities. In practice, its armed insurgency tactics have been quite
weak, and have been reduced to a handful of minor bomb incidents in recent
years.
Politically, the OLF has sought to encourage
anti-government resistance amongst the Oromo community and to draw
international attention to alleged human rights abuses by the Ethiopian
government.
. . .
The OLF has a respectable arsenal of
conventional weapons. Equipment seized by security forces has included a large
number of Kalashnikov and G3 assault rifles, rocket propelled grenade launchers
and anti-tank mines. Small remote detonation bombs, have, since 2000, been the
weapon of choice in attacks on government targets.
(Tribunal Record, at pp 205-207).
[28]
Furthermore, it is common ground that the
applicant actively contributed to the activities of Ginbot 7 as a member
of that party. In his IMM 5611 form, the applicant states, at Question 26,
that he was a member of Ginbot 7 from 2009 to 2011 and that his activities
in this organization included fundraising and recruitment (Tribunal Record, at
p 113). Further, in response to Question 40, “Have you or your
accompanying minors ever used, planned or advocated the use of armed struggle
or violence (attacks, hostage taking etc.) to reach political, religious or
ideological objectives?” the applicant answers “yes” and states, “if there was a revolution, or overthrow the government by any means”
(Tribunal Record, at p 115). In addition, in his PIF, the applicant states
that he joined Ginbot 7 as a member in December 2008 and contributed
to the party through the following activities:
•
Paying registration fees and monthly party
membership fees;
•
Participating in general meetings, organizing
party meetings and distributing pamphlets;
•
Fundraising in support of the party and, in
particular, its radio and television services;
•
Promoting the organization, particularly through
the sale of books on the organization;
•
Taking on an executive role in a party group and
selecting new members.
(Tribunal Record, at
p 130).
[29]
What is more, the evidence shows that there are
reasonable grounds to believe that Ginbot 7 meets the definition of an
organization seeking “the subversion by force of any government” within the
meaning of paragraph 34(1)(b). The report Landinfo Country of
Origin Information Centre, Report Ethiopia: the Ginbot 7 party, attests
that this party is dedicated to subverting the Ethiopian government by force:
Ginbot 7 (G7) is a political party established
in 2008. The party works for regime change, including the use of military
means, and is therefore illegal. G7 mobilizes Ethiopians in the diaspora
and in Ethiopia, but it is uncertain how extensive the party’s activities in Ethiopia are. Several people have been arrested, indicted and convicted of terrorist acts
under the auspices of G7 in 2009 and 2011. However, it is unclear whether the
arrests reflect the defendant’s concrete connection to terrorist plans or acts,
or whether the charges camouflage measures to limit unwanted oppositional
activity.
. . .
Party leader Berhanu Nega told Landinfo in May
2009 that the party primarily wants a regime change, and that it has a goal of
embracing all ethnic groups in Ethiopia and creating a comprehensive
oppositional alliance. G7 does not exclude the use of violent means to
overthrow the current ruling coalition EPRDF.
[Emphasis added.]
(Tribunal Record, at pp 301 and 305).
[30]
Furthermore, the Country Report on Terrorism
2011 – Chapter 2 – Ethiopia (Tribunal Record, at p 200) states:
The Ethiopian Parliament issued a proclamation
in May that declared five groups to be outlawed terrorist organizations. The
groups include OLF and ONLF, violent domestic ethnic-based groups; Ginbot 7, a
diaspora-based group that has a called for the overthrow of the ruling party of
Ethiopia (the Ethiopian People’s Revolutionary Democratic Front); al-Qa’ida;
and al-Shabaab.
[31]
Finally, the applicant states in his PIF that he
joined Ginbot 7 “[b]ecause it is necessary to force the
ruling party to hand over power not only democratically but also by any other
means” (Tribunal Record, at p 130).
IX.
Conclusion
[32]
The Court finds that the ID’s findings fall
within the range of possible conclusions that it was entitled to draw, having
regard to all the evidence.
[33]
The ID’s decision to declare the applicant
inadmissible in accordance with the language of paragraphs 34(1)(f),
(b) and (c) of the IRPA is reasonable. The intervention of this
Court is therefore unwarranted.
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