Docket: IMM-5676-14
Citation:
2015 FC 545
Ottawa, Ontario, April 29, 2015
PRESENT: The
Honourable Mr. Justice S. Noël
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BETWEEN:
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SABOUNE
KALAKALA MOUSSA
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY AND
EMERGENCY
PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application by Saboune Kalakala
Moussa [the Applicant] under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001 c 27 [IRPA] for judicial review of the decision of
the Immigration Division [ID] of the Immigration and Refugee Board, dated July
4, 2014, where the ID concluded that the Applicant was a person inadmissible to
Canada because he is described in paragraph 34(1)(f) of IRPA in
reference to paragraphs 34(1)(b) and (c) of IRPA.
II.
Facts
[2]
The Applicant was born on March 3, 1976 in Sudan. He has no permanent status in Canada.
[3]
The Applicant became a member of the Justice and
Equality Movement [JEM] in March 2007 and remained a member until May 2008.
[4]
The Applicant arrived in Canada on October 27, 2008. He claimed asylum on November 4, 2008.
[5]
The Applicant was detained for identity reasons
after an interview with Citizenship and Immigration Canada [CIC]. He was
subsequently released. The refugee hearing was scheduled for March 20 and 21,
2013.
[6]
On March 7, 2013, the Minister issued a report under
section 44 of IRPA against the Applicant. The Minister believed that the
Applicant was inadmissible to Canada under paragraph 34(1)(f) of IRPA
with reference to paragraphs 34(1)(b) and (c) of IRPA because of
his membership to Justice and Equality Movement – Khalil [JEM-Khalil].
[7]
On March 18, 2013, the Applicant’s refugee
hearing was suspended until further notice.
[8]
The admissibility hearing was held before the ID
on March 18 and 19, 2014. On July 4, 2014, the ID signed a deportation order
against the Applicant and rendered a decision concluding that the Applicant was
a person inadmissible to Canada because he is described in paragraph 34(1)(f)
of IRPA in reference to paragraphs 34(1)(b) and (c) of IRPA. This
is the decision under review.
III.
Impugned Decision
[9]
The ID analysed the three following issues in
its reasons:
1. Is the JEM an organization that engages, has engaged or will engage
or instigates the subversion by force of any government for the purposes of
paragraph 34(1)(b) of IRPA?
2. Is the JEM an organization that engages, has engaged or will engage
in terrorism for the purposes of paragraph 34(1)(c) of IRPA?
- Is the Applicant
a member of an organization that there are reasonable grounds to believe
engages, has engaged or will engage in acts referred to in paragraphs
34(1)(b) and 34(1)(c) of IRPA and consequently inadmissible
to Canada pursuant to paragraph 34(1)(f) of IRPA?
[10]
Before analysing the three issues above, the ID
wrote that the applicable standard of proof in this case is that of “reasonable grounds to believe” as confirmed by the
Supreme Court of Canada in Mugesera v Canada (Minister of Citizenship and
Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100.
[11]
With regards to the first issue, both parties
agreed that the JEM is led by Khalil Ibrahim. Both parties further agreed that
there exist various groups, splinter groups, identifying themselves as the JEM.
The documentation provided by the parties makes it clear when there is a reference
to a splinter group and to the mainstream JEM. With regards to the Applicant,
the documents filed in support of his case refer to the generic term of the “JEM”. Therefore, the ID found that when the documents
refer to the JEM, they are only referring to the organization led by Khalil
Ibrahim, the mainstream JEM (JEM-Khalil), and not to any of the splinter
groups.
[12]
In assessing the JEM, the ID wrote that it is “a structured organization that has an identity, leadership,
a loose hierarchy and operates in small, semi-autonomous units. Its cells or
sections operate under the same leadership and ideology”, where the
ideology is defined in the Black Book: Imbalance of Power and Wealth in the
Sudan [Black Book] (Applicant’s Record [AR] page 29 at para
77).
[13]
After evaluating the totality of the evidence,
the ID concluded “that there exist reasonable grounds
to believe that the mainstream JEM, led by Khalil Ibrahim, is an organization
for the purposes of section 34 of IRPA, as it enters into the definition of
“organization” according to the broad interpretation set down in the
jurisprudence of Sittampalam v Canada (Minister of Citizenship and
Immigration), 2006 FCA 326” (AR page 29 at para 79).
[14]
The ID then enumerated a series of acts that are
attributable to the mainstream JEM, led by Khalil Ibrahim. Those acts pertain
to attacks on government military organizations since 2003, cutting roads
connecting key towns in February 2004, and an attack on the city of Omdurman on May 10, 2008. The ID determined that these acts are “sufficient
to trigger the application of paragraph 34(1)(b) of IRPA as constituting
“subversion” by the organization” (AR page 33 at para 86). The ID thus
concluded that “there exist reasonable grounds to
believe that the JEM, led by Khalil Ibrahim, is an organization that has
engaged, engages and will engage in subversion by force” (Sittampalam,
above).
[15]
With regards to the second issue, the ID
determined that the rebel attacks that took place in Sudan on October 4 and
December 25 and 26, 2003, constitute acts of terrorism as defined in Suresh
v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1
SCR 3 at paragraph 98. The ID thus found that “the
Minister met his burden of proving that there exist reasonable grounds to
believe that the JEM led by Khalil Ibrahim, is an organization that engages,
has engaged or will engage in acts of terrorism under paragraph 34(1)(c)”
of IRPA (AR page 35 at para 96).
[16]
With regards to the third issue pertaining to
the question of the Applicant’s membership to the JEM, the ID concluded that the
Applicant was a member of the JEM for the following reasons:
1. He testified before the ID that he had joined the JEM voluntarily
and remained a member until May 2008;
- He was aware
that the aims and objectives of the JEM were to overthrow the government of
Sudan;
- Although he did
not read the Black Book before joining the JEM, he was aware that
the JEM’s goal was waging war and that the JEM had been fighting since
2003 (AR page 36 at para 98).
[17]
The ID also stated that it had no reason to
believe that the Applicant financially contributed to the JEM, that his
activities were limited to collecting information from the displaced persons in
camps regarding their situation, that he sometimes helped translate, that he
was enlightening others, that he attended a few secret meetings, and that he
knew the JEM as having the same leader and did not know the goals of the
splinter groups (AR page 36 at para 99).
[18]
The ID rejected the Applicant’s argument to the
effect that he worked for a civilian section of the JEM, since there is no
proof that any civilian section worked independently of the mainstream JEM. The
ID accepted the Respondent’s argument that the mainstream JEM is a single
organization, with each sections sharing Khalil Ibrahim as their leader along
with sharing the same ideology as set down in the Black Book. Moreover,
the ID also wrote that the Applicant had a membership card stating JEM as the
organization.
[19]
The ID also rejected the Applicant’s argument to
the effect that the ID should follow the obiter dicta comment made in Joseph
v Canada (Minister of Citizenship and Immigration), 2013 FC 1101 [Joseph],
stating that Ezokola v Canada (Minister of Citizenship and Immigration),
2013 SCC 40, [2013] 2 S.C.R. 678 [Ezokola] is applicable in
assessing inadmissibility under paragraph 34(1)(f) of IRPA. The ID
stated that only the determination of whether the Applicant was a member of the
JEM is relevant and not the determination of the nature of his participation in
the JEM. The ID concluded that the evidence is clear that the Applicant was a
member of the JEM, led by Khalil Ibrahim, from March 2007 to May 2008.
[20]
The ID therefore concluded that the Applicant is
a person inadmissible to Canada because he is described in paragraph 34(1)(f)
of IRPA in reference to paragraphs 34(1)(b) and (c) of IRPA.
IV.
Parties’ Submissions
[21]
The Applicant’s submits that this Court should
interpret paragraph 34(1)(f) of IRPA in light of the Supreme Court of
Canada decision Ezokola, above, which redefined the notion of complicity
in international crimes referred to under section 98 of IRPA. The Applicant further
argues that IRPA must be read as a whole and in conformity with Canada’s international obligations. The Applicant therefore submits that the interpretation
of subsection 34(1) must be such that “those who are
found “inadmissible” are only those who may be subject to a de facto exclusion
from refugee protection” under section 96 of IRPA (AR page 646 at para
53).
[22]
In reply, the Respondent submits that the notion
of complicity, discussed in Ezokola, above, differs from the grounds of
inadmissibility. The Respondent relies on Hagos v Canada (Minister of
Citizenship and Immigration), 2011 FC 1214 [Hagos] to argue that the
different language used under paragraphs 34(1)(f) and 35(1)(a) of
IRPA, where the latter is concerned with the notion of complicity with one’s
action, is such that there is nothing in the language of paragraph 34(a)(f)
that contemplates an analysis of complicity. The Respondent further submits
that in Ezokola, above, the Supreme Court was concerned with the
interpretation of Article 1F(a) of the 1951 Convention relating to the
Status of Refugees [the Convention], incorporated into domestic law
by section 98 of IRPA. Paragraph 34(1)(f) of IRPA, on the other hand, is
a domestic inadmissibility provision. The notion of complicity and the notion
of membership are therefore assessed in differing contexts. The Respondent also
relies on this Court decision in Nassereddine v Canada (Minister of
Citizenship and Immigration), 2014 FC 85 [Nassereddine], where it
was found that the existence of paragraph 34(1)(c) of IRPA, under which
inadmissibility arises from “engaging in terrorism”,
removes the need for complicity under a paragraph 34(1)(f) of IRPA
analysis, which is only concerned with membership. The Respondent also states
that paragraph 34(1)(f) was given a broad interpretation in Canadian
jurisprudence. Lastly, the Respondent submits that there is Ministerial relief
available for inadmissibility based on membership but not for inadmissibility
based on complicity.
V.
Issue
[23]
In light of the Federal Court of Appeal decision
in Kanagendren v Canada (Minister of Citizenship and Immigration), 2015
FCA 86 [Kanagendren FCA], I frame the issue as follows:
1. Did the ID err in finding that the Applicant is a person
inadmissible to Canada as described under paragraph 34(1)(f) of IRPA?
VI.
Standard of Review
[24]
The issue stated above is to be reviewed on the
reasonableness standard (Najafi v Canada (Minister of Public Safety and
Emergency Preparedness), 2013 FC 876 at para 82 [Najafi]; Flores
Gonzalez v Canada (Minister of Citizenship and Immigration), 2012 FC
1045 at para 36; Nassereddine, above, at para 20). As such, this Court
shall only intervene if it concludes that the decision is unreasonable and
falls outside the “range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] SCJ No 9 at para 47).
VII.
Preliminary Comments
[25]
The Applicant raised the arguments that paragraph
34(1)(f) of IRPA must be read with IRPA as a coherent whole and that the
inadmissibility provisions in IRPA that also lead to an ineligibility to seek
refugee protection must be interpreted in a way that ensures that they do not
lead to a de facto exclusion in a situation where there would be no
exclusion under the 1951
Convention relating to the Status of Refugees [the Convention]. These arguments
were however not raised before the ID. They will therefore not be considered in
this judicial review (Alberta (Information and Privacy Commissioner) v Alberta Teachers’
Association, 2011 SCC 61 at paras 22 to 26).
[26]
At
the hearing before this Court, the Applicant’s counsel listed several facts
related to what happened in this matter prior to the Minister’s issuance of a
section 44 of IRPA report on March 7, 2013. The Applicant mentioned that the
Minister initially intervened before the Refugee Board on the grounds of
identity and exclusion under 1F(A) of the Convention, that a hearing of
five days took place, that a de novo hearing was subsequently ordered,
that a preparatory hearing took place on February 13, 2013, and finally that a
section 44 report was issued on March 7, 2013. The Applicant did not, however,
provide an adequate explanation as to why these facts were relevant to the present
judicial review. The main argument presented by the Applicant’s counsel based
on these facts at the hearing pertained to the lack of credibility of the
Minister in changing its approach in this matter, namely from addressing
questions of identity and exclusion under 1F(A) to addressing inadmissibility
under subsection 34(1) of IRPA. The Applicant’s counsel also added that before
the issuance of the section 44 report, the Minister was focused on two
irreconcilable issues, namely the Applicant’s identity and his exclusion under
1F(A). These facts, as discussed by counsel, are irrelevant to the present
judicial review, which concerns the reasonableness of the ID decision in
relation to paragraph 34(1)(f) of IRPA. They will therefore not be taken
into account.
[27]
Also
pertinent to point out, under section 42.1 of IRPA, a Ministerial relief is
available for inadmissibility based on membership. The Applicant, in his
situation, can apply for such a relief.
VIII.
Analysis
A.
Did the ID err in finding that the Applicant is
a person inadmissible to Canada as described under paragraph 34(1)(f) of IRPA?
[28]
Paragraph 34(1)(f) of IRPA states that a “permanent resident
or a foreign national is inadmissible on security grounds for […] being a
member of an organization that there are reasonable grounds to believe engages,
has engaged or will engage in acts referred to in paragraphs (a), (b), (b.1) or
(c)”.
[29]
In this judicial review, it is not contested
that the JEM is an organization that engages, has engaged or will engage or
instigates the subversion by force of any government for the purposes of
paragraph 34(1)(b) of IRPA or that the JEM led by Khalil Ibrahim, is an
organization that engages, has engaged or will engage in acts of terrorism
under paragraph 34(1)(c) of IRPA. Only the question of membership under
paragraph 34(1)(f) of IRPA is to be reviewed.
[30]
This Court and the Federal Court of Appeal have
consistently held that the concept of membership must be interpreted broadly (Poshteh
v Canada (Minister of Citizenship and Immigration), 2005 FCA 85 at para 36,
referred to in Kanagendran v Canada (Minister of Citizenship and Immigration
et al, 2014 FC 384 at para 9, [Kanagendran FC] and Nassereddine,
above at para 49).
[31]
In the case at bar, the ID concluded that the Applicant
was a member of the JEM for the following reasons: he testified before the ID that
he had joined the JEM voluntarily and remained a member until May 2008, he
stated to have a membership card confirming his membership to the JEM, he was
aware that the aims and objectives of the JEM were to overthrow the government
of Sudan, that although he did not read the Black Book before joining
the JEM, he was aware that the JEM’s goal was waging war and that the JEM had
been fighting since 2003. The ID added that the Applicant had participated in
the collection of information from the displaced persons in camps, that he
helped translate, that he was enlightening others and that he attended a few
secret meetings. Given the Applicant’s action and admitted membership to the
JEM, the ID reasonably concluded that he was a member under paragraph 34(1)(f)
of IRPA (Nasserddine, above at para 60). The ID’s findings were
supported by the record before it and there was ample “reasonable
grounds to believe” that the facts of the Applicant’s case gave rise to
his inadmissibility (Kanagendren FCA, above at para 37).
[32]
As for the Applicant’s argument that he worked
for a civilian section of the JEM, the ID reasonably concluded that there was
no such evidence to support this assertion (Nasserddine, above at para
44). There is no need for this Court to intervene.
IX.
Conclusion
[33]
The ID reasonably concluded that was ample “reasonable grounds to believe” that the facts of the
Applicant’s case gave rise to his inadmissibility. The intervention of this
Court is not warranted.
[34]
The parties were invited to submit questions for
certification, but none were proposed.
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