Docket: IMM-1870-13
Citation: 2014 FC 137
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa,
Ontario, February 10, 2014
PRESENT: The Honourable Mr. Justice Scott
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BETWEEN:
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BUANA TSHIMANGA
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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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REASONS FOR JUDGMENT AND JUDGMENT
I.
Introduction
[1]
Buana Tshimanga
(Mr. Tshimanga) filed this application for judicial review, under
subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA], of a decision of the Immigration Division of the Immigration
and Refugee Board [ID], dated February 21, 2013, in which he was found to
be inadmissible under paragraphs 34(1)(b) and (f) of the
IRPA.
[2]
For the following
reasons, the Court dismisses this application for judicial review.
II.
Facts
[3]
Mr. Tshimanga is
a citizen of the Democratic Republic of Congo [the DRC]. He arrived in Canada
in September 1999 and filed a refugee claim here. He was given refugee status
in December 1999 and became a permanent resident on August 15, 2000.
[4]
In
December 2000, Mr. Tshimanga became a Member of the Canada section of
the Mouvement pour la libération du Congo [Movement for the Liberation of
Congo, MLC].
[5]
On June 11,
2006, Mr. Tshimanga lost his refugee status under section 108 of the
IRPA as he had returned to his country of origin on several occasions and had
held a number of positions in the government there.
[6]
On September 25,
2006, Mr. Tshimanga was the subject of a first report issued under
subsection 44(1) and paragraph 35(1)(a) of the IRPA, finding
him inadmissible. The report was withdrawn on September 14, 2007, without an
admissibility hearing being held (see Exhibit A of the affidavit of
Dominique Toillon) and without the Minister of Citizenship and Immigration
[MCI] explaining the reasons for the withdrawal (see the applicant’s record at
page 295, para 3.10).
[7]
On March 13,
2012, a report against Mr. Tshimanga was prepared under
subsection 44(1) and paragraph 35(1)(a) of the IRPA.
[8]
On March 15,
2012, another report was prepared regarding Mr. Tshimanga, under
subsection 44(1) and paragraphs 34(1)(f) and 34(1)(b)
of the IRPA.
[9]
On April 5,
2012, the Canada Border Services Agency [CBSA] referred both reports for an
admissibility hearing before the ID. These reports led to the ID’s decision
dated February 21, 2013 (the decision), which is the subject of this
judicial review.
III.
Legislation
[10]
The statutory
provisions applicable in this case are reproduced in the Annex to this
judgment.
IV.
Issues and
standard of review
A. Issues
[11]
Mr. Tshimanga
submits that his application for judicial review raises the following issues:
(1)
Should the ID have sanctioned
the CBSA’s failure to respect the principles of fundamental justice and its
abuse of process with respect to the applicant?
(2)
Did the ID err in
finding that the applicant was a member of an organization aiming to subvert
the government by force?
(3)
Did the ID exceed its
jurisdiction in criticizing the applicant for the MLC’s commission of acts of
violence and abuses?
[12]
The respondent
submits that this application for judicial review raises only one issue:
(1)
Is the ID’s decision
reasonable?
[13]
The Court finds that
this application for judicial review actually raises the following two issues:
(1)
Did the ID
violate the principles of natural justice?
(2)
Is the ID’s
decision reasonable?
B. Standard of review
[14]
The decision in Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraph 57 [Dunsmuir],
explains that a fresh standard of review analysis is not necessary if previous
case law has already satisfactorily settled on a standard of review.
[15]
Previous case law has
determined that the standard of review applicable to the issue of whether a
person is a member of an organization referred to in paragraph 34(1)(f)
of the IRPA is that of reasonableness (see Poshteh v Canada (Minister of
Citizenship and Immigration), 2005 FCA 85, at paras 21 to 24, and Gutierrez
v Canada (Minister of Citizenship and Immigration), 2013 FC 623, at para 21
[Gutierrez]). The same applies when it comes to determining whether
there are reasonable grounds to believe that organizations have engaged, are
engaging or will engage in acts of terrorism (see Gutierrez, above, at
para 21).
[16]
It is also firmly
established in the case law that questions of procedural fairness must be
analysed on a standard of correctness (Sketchley v Canada (Attorney General),
2005 FCA 404 at para 53, Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 43, and Gutierrez, above, at
para 23).
[17]
With respect to the
standard of proof applicable to an analysis regarding paragraph 34(1)(f)
of the IRPA, section 33 of the same act prescribes that the facts that
constitute inadmissibility include facts arising from omissions and include
facts “for which there are reasonable grounds to believe that they have
occurred, are occurring or may occur”. This standard requires something more
than mere suspicion, but less than the standard applicable in civil matters of
proof on the balance of probabilities. Reasonable grounds will exist where
there is an objective basis for the belief which is based on compelling and
credible information (see Mugesera v Canada (Minister of Citizenship and Immigration),
2005 SCC 40 at para 114 [Mugesera], and Karakachian v Canada (Minister
of Citizenship and Immigration), 2009 FC 948 at para 32 [Karakachian]).
This standard of proof applies only to questions of fact (see Mugesera,
above, at para 116).
V.
Parties’
claims
A. Mr. Tshimanga’s arguments
Violations of the principles of natural justice
[18]
Mr. Tshimanga
submits that, under section 6 of the Immigration Division Rules,
SOR/2002-229 [IDR], the MCI first had to make a written application to the ID
to reinstate his request for an admissibility hearing before referring the two
reports, dated March 13, 2012, and March 15, 2012, respectively, to
the Immigration and Refugee Board, given that he had withdrawn his first
request for an admissibility hearing. He argues that both the first report and
the two subsequent reports dated March 13 and 15, 2012, concerned the same
facts. Mr. Tshimanga claims that the MCI’s procedural error deprived him
of the opportunity to submit his arguments before the ID and to challenge the
referrals.
[19]
In the supplementary
memorandum he filed on November 12, 2013, Mr. Tshimanga states that
the two March 2012 reports were [translation]
“successive proceedings based on the same facts as the first report, dated
September 25, 2006”, even though they provide a different ground for
inadmissibility.
[20]
According to
Mr. Tshimanga, the ID was therefore referred an admissibility hearing that
the Minister had applied for five (5) years earlier but withdrawn on
September 14, 2007, after substantive evidence had been accepted by the
panel. Mr. Tshimanga notes that the purpose of subsections 6(1) and
(2) of the IDR is to prevent a person being the subject of more than one report
on the basis of the same facts.
[21]
Mr. Tshimanga
claims that the ID should have ensured that the Minister’s representative
complied with the procedure under subsections 6(1) and 6(2) before
agreeing to an admissibility hearing and reinstating the Minister’s request. According
to Mr. Tshimanga’s submissions, the ID’s failure to comply with the
procedure under section 6 of the IDR constitutes a failure to observe the
principles of natural justice. In his supplementary memorandum,
Mr. Tshimanga submits that the ID could not decline jurisdiction and
should have disposed of his argument that there had been an abuse of process in
the proceeding.
[22]
Relying on Blencoe
v British Columbia (Human Rights Commission), 2000 SCC 44, Mr. Tshimanga
submits that the concept of abuse of process can apply in this case.
[23]
Mr. Tshimanga
characterizes the Minister’s proceeding against him as oppressive and
vexatious. In his eyes, the proceeding constitutes an abuse of process that
should be sanctioned through a stay of proceedings, which is what the ID should
have done.
[24]
In his supplementary
memorandum, Mr. Tshimanga also states that the proceeding under
paragraph 34(1)(f) was instituted late, namely, 10 years after
Canadian authorities supported him in his efforts to participate in the
Dialogue inter-congolais [Inter-Congolese Dialogue].
[25]
Mr. Tshimanga
also submits that the delays between when the allegations against him arose and
the start of the proceedings instituted against him are unreasonable to the
point of being oppressive. He relies on Beltran v Canada (Minister of
Citizenship and Immigration), 2011 FC 516, where the Court concluded that
allowing an admissibility hearing to continue would be an abuse of process. In
that case, Canadian authorities had been aware of the applicant’s membership in
the organization in question for over 20 years.
[26]
Mr. Tshimanga
emphasizes that, in his case, all facts had been known for over 10 years
and that he had not contributed to the delay through dilatory or other
proceedings. He submits that, consequently, he should not become a victim of
bureaucratic indolence. He refers here to the comments made by Justice
Tremblay-Lamer at paragraph 56 of Canada (Minister of Citizenship and
Immigration) v Parekh, 2010 FC 692:
56. In these circumstances I find that the
delays which have marred these proceedings are inordinate and indeed
unconscionable. Nothing in the circumstances of the case justified them. They
are not the consequence of the complexity of the case or of any dilatory
tactics employed by the Defendants, but of bureaucratic indolence and failure
to give the matter the attention it deserved given the rights and interests at
stake.
[27]
He adds that he has
always acted in good faith and that he has never hidden anything from Canadian
authorities, who have been aware of all the facts for a long time.
[28]
Mr. Tshimanga
also claims that he was entrapped by the Canadian government, which, he
alleges, encouraged him to become a member of the MLC, and then found him
inadmissible to Canada because of his being a member of that same organization.
He also submits that the Canadian government encouraged the effort to restore
democracy in the DRC in which the MLC was involved. Indeed, he points out that
the Canadian government provided him with a travel document for refugees so
that he could attend and participate in the Inter-Congolese Dialogue fully
aware that he had become a member of MLC-Canada. In short, he argues that
Canada is criticizing his efforts to reach the same objectives as the Canadian
government was pursuing, namely, to restore democracy in the Democratic
Republic of Congo.
[29]
Mr. Tshimanga further
submits that the ID also violated procedural fairness by making its decision on
the basis of evidence that was unrelated to the subject of the hearing, despite
the Member assuring his counsel of the contrary after his counsel raised
objections regarding this matter at the hearing.
Reasonableness of the decision
[30]
First, Mr. Tshimanga
clarified the statement contained in paragraph 18 of the ID’s decision. He
stated that the ID had said that he had claimed not to know that the MLC, from
its inception, aimed to overthrow the government by force. Mr. Tshimanga
submits that, on the contrary, he had told the ID that he had only agreed to
become a member of the MLC-Canada because the MLC had renounced overthrowing
the existing government by armed force when it signed the Lusaka Agreement [the
Agreement], in July 1999.
[31]
Mr. Tshimanga feels
that the ID had before it clear evidence and documents establishing this
radical change in MLC policy. He refers the Court to the MLC’s statutes according
to which this organization transformed into a political party in
December 2005, and, more specifically, to Document I-21 drafted by the
MLC-Canada, which reflects the MLC’s commitment to respecting fundamental human
rights and individual freedoms (see the applicant’s record, page 59). In
his supplementary memorandum, Mr. Tshimanga points out that the ID failed
to take into account the change in policy of the MLC, which had renounced subverting
the Congolese government by force. According to Mr. Tshimanga, this
omission is an error in law that is reviewable by this Court.
[32]
He also criticizes
the ID for failing to define the expression “subversion by force” used in
paragraph 34(1)(b) of the IRPA and submits that the ID’s decision
does not include any definition or analysis of this paragraph (see the
applicant’s supplementary memorandum at para 5.4).
[33]
Mr. Tshimanga also
argues that the ID refused to apply the principle set out in Karakachian,
above, according to which the passage of time might be material in applying
paragraph 34(1)(f) when an organization has renounced the objective
it was criticized for. He submits that the ID’s refusal to do so was a mistake.
Mr. Tshimanga advances that the signing of the Agreement demonstrates that
the MLC had renounced its objective of subverting the Congolese government by
force. He submits that the ID should not have focussed on the human rights
violations the MLC might have committed from 2000 to 2003. He alleges that,
pursuant to Karakachian, the ID should have restricted its analysis to
whether or not the MLC had renounced its objective of overthrowing the
government since, in his opinion, the only allegation made against him was to
have been a member of an organization that aimed to subvert a government by
force.
[34]
By relying on the
facts alleged previously, Mr. Tshimanga argues that the Member exceeded
his jurisdiction by accepting evidence according to which the MLC had committed
abuses, including human rights violations, even though the Minister had never
raised these facts. Mr. Tshimanga submits that these allegations fall
under the ground for inadmissibility provided at paragraph 35(1)(a)
of the IRPA.
[35]
Mr. Tshimanga questions
the reference to the “commission of numerous abuses by the armed wing of the
MLC” in the decision since the ID did not ask itself whether these abuses had
been committed for the purpose, or with the intention, of subverting the
government of the DRC. He alleges that these acts and the fighting involving
the MLC concerned an area that was not under the control of the DRC and where there
were no members of the Congolese government’s army.
[36]
He also states that
the Agreement provided for a schedule for training the new Congolese army that
was to be formed from the MLC’s armed forces, among others. According to
Mr. Tshimanga, the continuation of armed combat did not affect the MLC’s
renunciation of its objective to overthrow the Congolese government by force
and that a distinction had to be made therefore between this renunciation and
an express renunciation of all violence (see the applicant’s supplementary
memorandum at para 5.9).
[37]
Mr. Tshimanga criticizes
the ID for its failure to consider the only issue relevant in this case, that
is, whether or not the MLC had renounced its intention to overthrow the
Congolese government by force during the period in question. He points out that
at paragraph 26 of the decision, the Member states that intent is not a
relevant issue for the purposes of paragraph 34(1)(f). The
applicant argues that this statement is a mistake since this provision cannot
be read in isolation and must be associated with paragraph 34(1)(b),
which requires proof of intent.
[38]
Mr. Tshimanga notes
that the ID did not consider the evidence he filed to establish the Canadian
government’s support of the MLC’s participation in the Inter-Congolese Dialogue
and refers to Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration) (1998), 157 FTR 35, emphasizing that this factor is at the
very heart of his position.
[39]
He also submits, in
his supplementary memorandum, that the ID exceeded its jurisdiction by making
its decision on the basis of evidence that is unrelated to the allegation covered
by paragraphs 34(1)(b) and 34(1)(f). He alleges that this
evidence includes allegations of crimes against humanity and war crimes
allegedly committed by the MLC in 2002–2003 and has no connection with the
allegation of subversion by force.
[40]
Mr. Tshimanga argues,
moreover, that he was entrapped, since the ID did consider certain documents to
support its decision, despite the ID’s assurances to the contrary. Counsel for
the applicant objected to the introduction of this evidence at the hearing.
[41]
Lastly, Mr. Tshimanga
argues that the ID erred in relying on Ishaku v Canada (Minister of
Citizenship and Immigration), 2011 FC 44 [Ishaku], as this case
dealt with complicity in crimes against humanity committed by the MLC and not
with whether or not this organization had renounced overthrowing the government
by force during the 2000 to 2003 period.
B. The respondent’s arguments
Violations of the principles of natural justice
[42]
The respondent refutes
Mr. Tshimanga’s contention that the issuance of a second report was an abuse of
process and that the ID should consequently have ordered a stay of proceedings
in order to sanction this abuse. He submits, first, that Mr. Tshimanga did not
raise this argument before the ID or request that a stay of proceedings be
ordered. In support of this argument, he refers the Court to the hearing
transcript. The respondent also points out that Mr. Tshimanga is now barred
from raising this argument given that he failed to do so on time.
[43]
Second, the
respondent argues that the two reports prepared in March 2012 do not rely
on the same facts. The first report, of 2006, concerned the applicant’s
participation in crimes against humanity committed by the MLC between 2000 and
2003. The second report, dated March 13, 2012, focuses rather on the
applicant’s involvement in crimes against humanity committed by the government
of the DRC as a result of the key positions he occupied in this government
between July 2003 and the end of 2006. The respondent submits that the
reports describe discrete events and cover different periods. Consequently, the
Minister was not obliged to apply for the reinstatement of his initial request
before requesting that his second investigation report be referred.
[44]
The respondent refers
to Sheremetov v Canada (Minister of Citizenship and Immigration), 2004 FCA
373, in which the Court considered the scope of sections 5 and 6 of the
IDR. He pointed out that there had been no hearing on the second report before
the panel, since, at the hearing, the Minister’s representative admitted that
he could not meet his burden. Mr. Tshimanga therefore did not suffer any
prejudice, since the hearing never dealt with his inadmissibility under
paragraph 35(1)(a) of the IRPA.
[45]
The respondent
refutes Mr. Tshimanga’s argument that an unreasonable amount of time had passed
before the second report dated March 13, 2012, was submitted. He alleges
that unreasonable delay is not relevant since the admissibility hearing did not
deal with the March 13, 2012, report but with the report dated
March 15, 2012. However, the respondent did not make any submissions to
counter Mr. Tshimanga’s argument that the time passed before the third
report dated March 15, 2012, the subject of the admissibility hearing, was
issued had been unreasonable given that all the facts had been known for over
10 years (see the applicant’s supplementary memorandum at para 12).
[46]
The respondent
reminds the Court that the ID considered and rejected Mr. Tshimanga’s argument
that he had been entrapped by the Canadian government. The ID found that this
argument could be raised with the Minister in relation to an application made
under subsection 34(2) of the IRPA. Furthermore, the respondent submits
that the evidence filed by Mr. Tshimanga does not suggest that the Canadian
government entrapped him by suggesting that he become a member of the MLC. On
the contrary, Mr. Tshimanga became a member voluntarily and consciously, and
the Canadian government had no involvement in influencing his decision of
whether or not to campaign as part of the MLC.
[47]
The respondent
rejects Mr. Tshimanga’s allegation that the ID exceeded its jurisdiction. He
points out that the ID disposed of these objections and notes that it had
proposed to counsel for Mr. Tshimanga to make submissions in this regard a
little later during the hearing; counsel for Mr. Tshimanga, however, had
not made any arguments or raised any objections regarding the admissibility of
this evidence in his submissions. The respondent submits that Mr. Tshimanga is
therefore barred from making this argument, given that he did not raise it on
time.
[48]
The respondent
submits, moreover, that all the evidence presented was admissible and had to be
reviewed by the ID since it contained a general picture of the DRC and the MLC
during the years referred to in the inadmissibility reports. The respondent
notes that the exhibits deemed as being inadmissible by Mr. Tshimanga remain
admissible since they establish the commission of crimes against humanity and
the use of force by the MLC, despite its signing the Agreement in which it
renounced the use of force.
Reasonableness of the decision
[49]
The respondent is of
the view that the ID’s decision is reasonable, reasoned and intelligible since
there are reasonable grounds to believe that Mr. Tshimanga was a member of an
organization (the MLC) that intended to overthrow the DRC’s government by
force.
[50]
The respondent argues
that the expression “by force” in paragraph 34(1)(b) of the IRPA
includes coercion or compulsion by violent means, coercion or compulsion by
threats to use violent means and a reasonably perceived potential for the use
of coercion by violent means (see Oremade v Canada (Minister of Citizenship
and Immigration),2005 FC 1077 at para 27 [Oremade]). The term “subversion”,
according to the respondent, has been defined in the case law as meaning “. . .
accomplishing change by illicit means or for improper purposes related to an
organization”, and he refers to the decisions in Qu v Canada (Minister of
Citizenship and Immigration), 2001 FCA 399 at para 12, and Suleyman v
Canada (Minister of Citizenship and Immigration), 2008 FC 780 at para 63. The
respondent submits that the ID was not obliged to define the expression “subversion
by force” used in paragraph 34(1)(b) since the existing case law
has already clarified the meaning of this term.
[51]
The respondent refers
to article 3 of the statutes of the MLC and points out that, when
Mr. Tshimanga became a member in December 2000, the organization
defined itself as a [translation] “political-military
movement that aims to overthrow the dictatorial regime”. The movement stated
that it wished to [translation] “eradicate
dictatorship in all its forms” (article 6) and that the established means
to achieve this included armed conflict, to which end the MLC had an armed branch
(article 7) (see the respondent’s record, page 9, para 33, and
Exhibit B of the affidavit of Dominique Toillon).
[52]
The respondent also
recalls the comments made by Jean-Pierre Bemba, the co-founder and leader of
the MLC, during a radio interview he granted in October 2002, during which
he spoke of fighting, armed combat for a good cause, the liberation of their
country and the fact that the MLC had advanced on several towns since it was
founded in June 1999 (see Exhibit C of the affidavit of Dominique Toillon).
[53]
The respondent
refutes Mr. Tshimanga’s claim that the MLC had renounced overthrowing the
government of the DRC using arms in adhering to the Agreement. In Ishaku,
above, the Court concluded that the MLC committed several violent and unlawful
acts in order to overthrow the dictatorship of President Kabila between 2000
and 2003 (see paras 65 to 67 of the decision). The respondent also submits
that paragraph 34(1)(f) of the IRPA does not require membership in
the organization in question to have been contemporaneous with the period
during which the violent or unlawful acts can be attributed to the group in
question. He refers to Gebreab v Canada (Minister of Public Safety and
Emergency Preparedness), 2009 FC 1213 [Gebreab], in support of this
claim. It was therefore reasonable for the ID to conclude that the MLC is an
organization that there are reasonable grounds to believe that instigates, has
instigated or will instigate, or that engages, has engaged or will engage, in
acts of subversion of a government by force.
[54]
The respondent
submits that the ID did not have to consider whether the MLC intended to change
its mission in signing the Agreement, but that it had to determine whether,
based on the facts, this organization was still aiming to overthrow the
government by force despite its adherence to the Agreement. He argues that,
contrary to Mr. Tshimanga’s submissions, there is no evidence establishing
that the MLC’s expressly renounced the use of force to achieve its objectives.
[55]
The respondent therefore
concludes that the ID’s decision was reasonable and asks the Court to dismiss
this application for judicial review.
VI.
Analysis
1. Did the ID violate the rules
of natural justice?
[56]
The Court concludes
that the rules of natural justice were not violated in the matter at bar, for
the following reasons:
[57]
Mr. Tshimanga alleges
that section 6 of the IDR obliged the MCI to make a written application to
the ID to reinstate his request for an admissibility hearing, given that he had
withdrawn its previous request. This provision reads as follows:
6. (1) The Minister
may make a written application to the Division to reinstate a request for an
admissibility hearing that was withdrawn.
Factors
(2) The Division must allow the application if it is established that
there was a failure to observe a principle of natural justice or if it is
otherwise in the interests of justice to allow the application.
[58]
The Court rejects Mr. Tshimanga’s
contention, sharing rather the opinion of the respondent that the MCI did not
have to apply for a written authorization before referring his reports dated
March 12 and 15, 2012, for two reasons.
[59]
First, it must be
noted that the reports rely on discrete events and cover different periods; the
ID was therefore not dealing with an application for the reinstatement of a
previous request for an admissibility hearing, but new admissibility hearings.
Moreover, the Court must point out that the second report filed under
paragraph 35(1)(a) had not been the subject of a previous
admissibility hearing before the ID.
[60]
Mr. Tshimanga also
claims that the ID should have disposed of his argument that there had been an
abuse of process. The Court agrees with the respondent’s position according to
which Mr. Tshimanga did not raise this argument before the ID or request
that a stay of proceedings be ordered.
[61]
Mr. Tshimanga alleges
that the ID failed to consider several pieces of evidence, which he describes
as encouragement from the Canadian government to support the efforts in which
the MLC was involved. He alleges that the Canadian government is criticizing
him for his own efforts to participate in reaching the objectives it shared
with him, namely, to restore democracy in the DRC. The Court finds this
argument to be without merit because even if Canada did support the conclusion
of an agreement, Mr. Tshimanga cannot claim that Canada accepted, to the
extent of ignoring, the unlawful means employed by the MLC to restore democracy
in the Democratic Republic of Congo.
[62]
The Court also
rejects that the time elapsed between the commission of the alleged acts and
the filing of the reports is unreasonable. Admittedly, 10 years passed
between the filing of the second report and the commission of the acts
attributed to the applicant, namely, his participation in a movement that advocated
the overthrow of a government by force. The Court does not find this delay to
be unreasonable in the matter at bar, for the following reasons. Having
reviewed all the documents filed before the ID to establish that the MLC
committed acts of violence, the Court notes that some of the documentary
evidence dates to 2008. These documents were therefore not available at the
time of the first request, which was withdrawn, in 2007, before an
admissibility hearing was held. Moreover, Mr. Tshimanga did not file any
evidence to suggest that the delay incurred was attributable to negligence on
the part of the respondent, as in Parekh, on which he relies. Lastly,
one must also consider the test set out in Blencoe, above, to determine
when a delay becomes unreasonable. The Court explains as follows at paragraph
115:
I caution that in cases where there is no prejudice to hearing fairness,
the delay must be clearly unacceptable and have directly caused a significant
prejudice to amount to an abuse of process. It must be a delay that would, in
the circumstances of the case, bring the human rights system into disrepute.
[63]
As hearing fairness
does not seem to have been compromised here, Mr. Tshimanga had to provide
evidence to establish the prejudice he personally suffered as a result of this
delay. He has failed to meet this burden.
[64]
Lastly, regarding
Mr. Tshimanga’s argument that the ID violated procedural fairness, by
relying on evidence that was unrelated to the subject of the hearing even
though the Member assured counsel for Mr. Tshimanga to the contrary, we
will deal with this at paragraph 75 of this decision.
[65]
It is the Court’s
view that the principles of natural justice were not violated.
2. Was the ID’s
decision reasonable?
[66]
The Court is of the
opinion that the ID’s decision was reasonable, for the following reasons.
[67]
Justice De
Montigny, in Karakachian, above, at paragraph 33, recalled this Court’s
role in the matter at bar:
33. . . .
the role of this Court is not to determine whether the ARF is or was a
terrorist organization, nor even whether there were reasonable grounds to
believe that the applicant falls within paragraph 34(1)(f), or, on a
balance of probabilities, also falls within subsection 16(1) of the Act. The
only question that the Court must decide is whether the officer could
reasonably come to the conclusion she reached, based on the evidence before
her: Thanaratnam v. Canada (Minister of Citizenship and Immigration),
2005 FCA 122, at paragraphs 32-33; Mendoza v. Canada (Minister of Public
Safety and Emergency Preparedness), 2007 FC 934, at paragraph 25.
[68]
The Court must
therefore inquire into the qualities that make a decision reasonable, which are
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. It must determine whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law (see Dunsmuir, above, at para
47).
[69]
The Court cannot
accept Mr. Tshimanga’s argument that the decision was unreasonable on the
ground that the ID did not define the expressions used in paragraph 34(1)(b).
This omission does not taint the decision as the definition is clearly
established in the case law and the Member applied it correctly.
[70]
Mr. Tshimanga claims
to have filed clear evidence documenting the radical transformation in MLC
policy. He suggests that the organization had expressly abandoned its former
political objectives and, as a result, had renounced overthrowing the
government of the DRC by force, during the time he was a member. He relies on
the new statutes adopted by the MLC in 2005 and a document by the MLC-Canada,
which mentions the MLC’s commitment to respecting fundamental human rights.
[71]
Unfortunately, it must
be noted that, notwithstanding its signing and adhering to the Agreement that
called for the laying down of arms, the MLC participated in many battles on the
ground after signing the Agreement. The ID found in fact that the armed wing of
the MLC committed numerous acts of violence after signing the Agreement (see
the applicant’s record, page 16, para 23). Even if, therefore, the MLC had held
out the possibility of its renouncing the use of force and violence, it did not
respect its commitment. Mr. Tshimanga can therefore not claim that the MLC
had “expressly given up any form of violence” (see Karakachian, above, at
para 48). The same is true of the MLC-Canada document, which refers to the
alleged commitment of the MLC to respecting fundamental human rights. Actions
speak louder than words. The Court also wishes to emphasize that the amendment
of the MLC’s statutes, in 2005, came well after the applicant was a member and
particularly after the commission of the alleged acts of violence during the
period covered by the reports.
[72]
The Court also notes
that, contrary to Mr. Tshimanga’s claims, the decision in Ishaku, above,
deals with the MLC’s objective to subvert the government of the DRC by force. In
fact, at paragraph 65, the decision states that, from 2000 to the end of
2003, the MLC’s primary objective was to overthrow the dictatorship of
President Kabila and to take power and that it committed acts of violence
to achieve this objective.
[73]
Mr. Tshimanga submits
that the ID should not have focused on the possible human rights violations
committed by the MLC between 2000 and 2003 since the allegation against him is
limited to his membership in an organization that aimed to overthrow the
government by force. In the Court’s view, the following would be a more correct
version of the allegation against Mr. Tshimanga, namely, that he was a member
of an organization that there are reasonable grounds to believe engages, has
engaged or will engage in the subversion by force of a government, pursuant
to paragraph 34(1)(f) of the IRPA.
[74]
Mr. Tshimanga admits
that he was a member of the MLC; he also does not deny that the MLC may have
committed human rights violations between 2000 and 2003 while he was a member. The
acts of violence in question should not be considered solely for the purpose of
the analysis under subsection 35(1) of the IRPA, as Mr. Tshimanga
suggests. On the contrary, the Court finds that it was reasonable for the ID to
consider this part of the evidence for the purpose of its analysis under
paragraphs 34(1)(b) and (f). The evidence establishes that
the armed wing of the MLC committed reprehensible acts, with the statutes of
the MLC continuing to provide for the [translation]
“eradicat[ion of] dictatorship in all its forms”, and all the while not
renouncing armed struggle.
[75]
The Court cannot
accept Mr. Tshimanga’s argument that the ID exceeded its jurisdiction by
considering evidence establishing the perpetration of these acts despite the
objections of counsel for Mr. Tshimanga to it doing so, for the following
reason. A reading of the hearing transcript does not suggest, contrary to
Mr. Tshimanga’s contention, that he was entrapped. In fact, at page 1041,
it is clear that counsel for Mr. Tshimanga objected, but it is also
obvious that the Member considered this objection as he noted the following in
reply at page 1043:
[translation]
I don’t think so, but we’ll see whether her submissions refer to what you
fear she is referring to in a roundabout way; that will be determined on the
basis of the allegation before me and of the periods that were mentioned in
their, in their description, which allowed you to prepare, even though the
description, it’s not the description that will establish everything; it’s the
evidence that will arise from the te- from the testimony and from the evidence before
me. The allegation is very specific with regard to subverting a government by
force. There are no allegations of human rights violations for the period in
question, for this particular allegation, I agree with you but I think that
with regard to, as I’ve said, and I repeat, with regard to determining
Mr. Tshimanga’s state of mind when he chose the MLC, it is important to
know what he knew and when he learnt what he knew.
[76]
Under paragraph 34(1)(f),
the MCI’s burden is limited to establishing that Mr. Tshimanga was a member
of an organization, in this case, the MLC, whose goal was to subvert the
government by force, nothing more.
[77]
The Court agrees with
the analysis of Justice Snider in Gebreab, above, who writes as
follows at paragraph 27:
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).
[78]
Hence, regardless of
any change in the means taken to reach the MLC’s objective, the MLC did indeed
commit acts designed to overthrow the government of the DRC by force, and this
is the crux of the matter.
[79]
Lastly, the Court
must also reject Mr. Tshimanga’s argument that the ID, at paragraph 26
of its decision, stated that intent was not a relevant issue under
paragraph 34(1)(f), given that this sentence is taken out of
context. A reading of the decision reveals that the ID was referring to whether
or not it was necessary to demonstrate that Mr. Tshimanga intended
to overthrow the Congolese government (see paragraph 19 of the decision);
however, the reference to intent under paragraph 34(1)(b) is
concerned with the MLC’s intention to overthrow the government.
[80]
The Court is of the
opinion that it was reasonable for the ID to conclude, on the basis of the
evidence before it, that Mr. Tshimanga was inadmissible, since it
established reasonable grounds to believe that the subversion by force of the government
had “occurred, [was] occurring or [might] occur” (see section 33 of the
IRPA). As in Karakachian, above, at paragraph 32, the ID had an
objective basis, namely, compelling and credible information, for its belief. But
in contrast to Karakachian, in the matter at bar, the Court cannot
make the distinction desired by Mr. Tshimanga since the evidence presented
before the Member clearly established the role of and the abuses committed by
the MLC, which perfectly satisfy the tests set out by this Court with regard to
the enforcement of paragraph 34(1)(f).
[81]
In light of the
above, it is the Court’s view that Mr. Tshimanga has not presented any
evidence that would allow it to intervene in order to set aside the decision
issued by the ID.
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