Date: 20241205

Docket: IMM-9124-23

Citation: 2024 FC 1971

JUDGMENT AND REASONS

I. Overview

[1] This is an application for judicial review of a decision dated June 30, 2023, by an Immigration, Refugees and Citizenship Canada [IRCC] senior officer [the Officer] denying the Applicant’s permanent residence application as a protected person in Canada [the Decision]. The Officer denied the application after determining the Applicant is inadmissible under paragraphs 34(1)(f) and 34(1)(c) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] for membership in an organization that has engaged in acts of terrorism.

[2] As explained in further detail below, this application is allowed, because the Officer’s analysis of whether the BNP had engaged in terrorism was based in part on events occurring after the Applicant’s membership in the BNP, in a manner inconsistent with the jurisprudence of this Court regarding the temporal aspects of membership in an organization engaged in terrorism.

II. Background

[1] The Applicant is a citizen of Bangladesh. In 2014, he came to Canada and claimed refugee protection, asserting fear of persecution in Bangladesh by the political party, the Awami League [AL], due to his involvement with the opposing political party, the Bangladesh Nationalist Party [BNP]. In September 2019, the Refugee Protection Division determined that the Applicant was a Convention refugee, following which he applied for permanent residence as a protected person.

[2] In February 2023, IRCC sent the Applicant a procedural fairness letter to inform him that, due to his involvement with the BNP, he may be inadmissible to Canada under paragraph 34(1)(f) of the IRPA, in connection with paragraph 34(1)(c) of the IRPA [the PFL]. The PFL provided the Applicant an opportunity to respond to these allegations. The Applicant’s counsel provided submissions to IRCC on April 6, 2023.

[3] On June 30, 2023, the Officer issued the Decision that is the subject of this application for judicial review.

III. Legislative Framework

[4] Paragraphs 34(1)(c) and (f) of the IRPA read as follows:

[5] Section 33 of the IRPA sets out the standard of proof for determinations of inadmissibility under section 34 of the IRPA as follows:

IV. Decision under Review

[6] In the Decision under review, the Officer found there were reasonable grounds to believe the Applicant was a member of an organization which engages, has engaged, or will engage in acts of terrorism according to paragraph 34(1)(c) of the IRPA. As such, the Officer determined the Applicant was inadmissible pursuant to 34(1)(f) of the IRPA.

[7] The Officer first determined there were reasonable grounds to believe the Applicant was a member of the BNP from 2008 to 2012. The Officer then assessed whether the BNP engaged, had engaged, or would engage in terrorism.

[8] As the IRPA does not define “terrorism”, the Officer relied on the definition stated by the Supreme Court of Canada in Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at paragraph 98, along with the definition found at paragraph 83.01(1)(b) of the Criminal Code, RSC 1985, c C-46. Following this jurisprudence and additional case law from the Federal Court, the Officer analyzed whether the BNP committed the alleged acts of terrorism with the intention to cause serious injury or death. Noting that the Federal Court’s case law is unsettled as to whether the BNP has committed acts of terrorism, the Officer concluded that each decision must be made on the basis of the facts of the case and evidence before the decision-maker.

[9] To assess whether the BNP had the specific intent to commit acts amounting to terrorism, the Officer considered the four factors set out in MN v Canada (Public Safety and Emergency Preparedness), 2019 FC 796 [MN]. These factors include: (1) the circumstances in which the violent acts were committed; (2) the internal structure of the organization; (3) the degree of control exercised by the organization over its members; and (4) the organization’s knowledge of the violent acts and public denunciation or approval of those acts.

[10] Through the ensuing assessment of the MN factors, the Officer canvassed country condition documents issued between 1996 and 2015 related to acts of political violence in Bangladesh in which the BNP, the AL, and other political parties were implicated.

[11] The Officer summarized their findings, as to whether there were reasonable grounds to believe the BNP had engaged in terrorism, as follows:

In light of everything before me, I am of the opinion that the violence committed in the context of hartals is contextual and that, from this perspective, the BNP’s specific intent is not to victimize, but to advance its political agenda and put pressure on those in power. I find, however, that in this case, the evidence establishes a level of violence that cannot be justified by mere political rivalry, however legitimate. First, it has been established that the violent acts committed by party members around the 2014 elections marked the beginning of a particularly bloody period for the Bangladeshi population. I am also of the opinion that this upheaval does not invalidate, but rather adds to, the violent acts and attacks committed before this period, notably in the years after the BNP seized power in 2001. I note that, during this period, the BNP was blamed for multiple attacks, not only on members and supporters of opposition parties, but also on the civilian population, including targeted attacks on Hindu communities sympathetic to the Awami League. This is not to minimize or deny the fact that the Awami League has also been found responsible for violence, and even human rights violations, against its political opponents. Ultimately, however, I conclude that the BNP cannot be exonerated of its own responsibility for the violent acts it has been accused of committing. In addition, I note that the BNP uses criminals and henchmen to attack its opponents, which indicates a direct intent to cause death and serious injury. While the evidence in some of the documentary sources refers to the BNP-Jamat coalition, I consider it unnecessary to specifically establish what share of the responsibility falls to either party regarding the actions for which they are accused given that, in my view, each party is accountable for the actions of its members.

In light of the foregoing, it is reasonable to assume that attacking innocent civilians, including children, notably the use of petrol bombs, establishes an intent to cause death or serious injury. In this case, since the attacks were aimed at preventing the population, including opposition members and supporters, from gathering, and even exercising their right to vote, I am of the opinion that they were intentional. Regarding the BNP’s degree of control over the actions of its members, including those of the JCD, I am of the opinion that intent can be communicated not just by issuing orders, giving speeches or establishing a code of conduct. It can also be communicated by condoning and allowing violent acts, like the ones established by the evidence on the record. Considering that such attacks were publicly documented, including over several years, but were not denounced by the party’s leaders, and considering that those responsible did not face any sanctions, especially during the BNP’s time in power, I cannot conclude that the organization lacks intent. Accordingly, I am of the opinion that, by committing attacks, thereby carrying out violent acts causing death and serious injury, with the intent of suppressing its political rivals and opponents, the BNP has engaged in terrorism.

V. Issue and Standard of Review

[12] The sole substantive issue for this Court’s determination is whether the Decision is reasonable. The applicable standard of review is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 16-17; Chowdhury v Canada (Citizenship and Immigration), 2022 FC 311 [Chowdhury (2022)] at para 7).

VI. Analysis

[13] The Applicant’s submissions related to the reasonableness of the Decision fall into two categories: (a) the temporality of the BNP’s actions in relation to the Applicant’s period of membership from 2008 to 2012; and (b) the intent of the BNP to commit terrorist acts.

[14] My decision to allow this application for judicial review turns on the Applicant’s arguments surrounding the temporal aspect of the Officer’s analysis, including how that aspect affected the Officer’s analysis of the BNP’s intent. The Applicant argues that, after concluding that the Applicant was a member of the BNP from 2008 to 2012, the Officer erred by taking into account events not only before or during, but also after, that period in finding that the BNP was engaged in terrorist acts. Before turning to the parties’ arguments on this issue, it is useful to canvass briefly some of the governing jurisprudence, the effect of which the parties mostly (but not entirely) agree upon.

[15] In Yamani v Canada (Public Safety and Emergency Preparedness), 2006 FC 1457 [Yamani], a decision considered by the Officer, Justice Judith Snider found that there is no temporal component to the analysis required under paragraph 34(1)(f). The question is whether the individual is or has been a member of the relevant organization. There need not be a matching of the individual’s active membership with when the organization carried out its terrorist acts (at paras 11-12).

[16] However, in El Werfalli v Canada (Public Safety and Emergency Preparedness), 2013 FC 612 [El Werfalli], Justice Leonard Mandamin explained an exception to the principle identified in Yamani, as Yamani and authority following it had not addressed circumstances where an individual ceased to be a member of an organization before it engaged in terrorism (El Werfalli at paras 82-93). In such circumstances, it is necessary that, at the time of membership, there be reasonable grounds to believe the organization may engage in terrorism in the future (El Werfalli at paras 73-78).

[17] In broad strokes, the parties do not disagree on these principles. However, at the hearing of this application, the Respondent’s counsel took the position that the requirement to conduct the sort of analysis explained in El Werfalli applied only in circumstances where there has been a fundamental change in the nature of an organization. The Respondent refers, for instance, to circumstances where a formerly peace-loving organization begins to engage in terrorism after the period of an individual’s membership.

[18] The Applicant disagrees with the suggestion that a fundamental change is necessary to require an El Werfalli analysis. The Applicant submits that such analysis is required in circumstances such as in the matter at hand, where there was violence before and during the period of the Applicant’s membership but the Officer described the period beginning in 2013 (after the end of the Applicant’s membership) as involving an “unprecedented” level of violence. In other words, the Applicant argues that an El Werfalli analysis is required if an officer is considering events involving different levels of violence, with the elevated violence postdating an individual’s membership.

[19] I consider the Applicant’s position to be more consistent with applicable jurisprudence. Like the case at hand, Chowdhury (2022) involved a matter in which an officer’s analysis as to whether the BNP had engaged in terrorism was based on violent events occurring both during and after the period of the applicant’s membership (at para 3). The officer did not mention El Werfalli or the principles derived therefrom. Justice Nicholas McHaffie found no unreasonableness in the officer not expressly citing El Werfalli or related authorities. Rather the question for the Court was whether the officer had analysed the applicant’s admissibility taking into account the principles derived from that relevant jurisprudence (Chowdhury (2022) at paras 24-25).

[20] Justice McHaffie concluded that the Officer had erred by considering events both during and after the applicant’s membership, without making a clear finding either: (a) whether the evidence demonstrated that the BNP had engaged in terrorism during or before the time of the applicant’s membership; or (b) as required by El Werfalli, that there were reasonable grounds to believe that the BNP would engage in terrorism thereafter (at para 29). I consider Justice McHaffie’s reasoning to be consistent with the governing jurisprudence and, as Chowdhury (2022) involved violence both during and after the membership period, I find the Respondent’s position (that El Werfalli applies only where there has been a fundamental change in the nature of an organization) to be inconsistent with that authority.

[21] Turning to the facts of the case at hand, the Applicant argues that the Officer’s analysis mirrors that which was found to be unreasonable in Chowdhury (2022). The Applicant notes that in assessing whether the BNP engaged in terrorist acts, and in particular in assessing whether the BNP had the required specific intent to commit such acts, the Officer took into account not only events that occurred before or during his membership but also events commencing in 2013 after the Applicant had left the BNP.

[22] I do not understand the Respondent to dispute that the Decision canvasses events that include the period after the Applicant left the BNP. Rather, the Respondent argues that reading the Decision as a whole, and thereby observing that it takes into account earlier events canvassed by the Officer (including in particular violence that occurred while the Applicant was a member of the student wing of the BNP), demonstrates the Officer concluding that the BNP had engaged in terrorism before or during the Applicant’s membership. As the Respondent submits, the principal dispute between the parties surrounds how to characterize the Decision and the findings made therein.

[23] I accept that the Officer canvassed violent events that both predated and postdated the end of the Applicant’s membership in the BNP. However, I agree with the Applicant that the Decision cannot comfortably be read as demonstrating clear findings that the BNP had engaged in acts of terrorism before or during the period of membership. The difficulty is precisely that which was identified by Justice McHaffie in Chowdhury (2022).

[24] The Officer canvasses country condition evidence [CCE] in the context of the MN factors and then, under the heading “Decision”, conducts an analysis that expresses conclusions, culminating in the finding that, by committing attacks and thereby carrying out violent acts causing death and serious injury with the intent of suppressing its political rivals and opponents, the BNP has engaged in terrorism. That analysis relies significantly (although not exclusively) on events following the end of the Applicant’s membership. As in Chowdhury (2022), the analysis of CCE related to the period after the Applicant left the BNP (described by the Officer as a “particularly bloody period”) leaves the Court without a clear finding whether the evidence demonstrated that the BNP had engaged in terrorism during or before the Applicant’s membership.

[25] In this respect, the Decision differs from that which this Court considered in Chowdhury v Canada (Citizenship and Immigration), 2024 FC 1273 [Chowdhury (2024)]. The Respondent cites Chowdhury (2024) at paragraph 23 in support of the Respondent’s position that the Officer conducted an assessment of the BNP’s conduct prior to the Applicant’s membership. However, that portion of Chowdhury (2024) reads as follows (in reference to El Werfalli):

As Justice Mandamin explained, when considering the language of paragraph 34(1)(f) that contemplates inadmissibility where there are reasonable grounds to believe that an organization “will engage” in terrorism (see para 70), it is necessary to assess whether there were reasonable grounds to believe, as of the time of the individual’s membership, that the organization will engage in terrorism in the future (see para 78). However, as noted above, the Officer found the Applicant inadmissible based on reasonable grounds to believe that the BNP was engaging in acts of terrorism during the period of his membership. Having found him inadmissible on that basis, there was no requirement for the Officer to also consider whether he might be inadmissible based on there being reasonable grounds to believe that the BNP would commit acts of terrorism in the future.

[26] The conclusion in Chowdhury (2024), that the Officer found the Applicant inadmissible based on reasonable grounds to believe that the BNP was engaging in acts of terrorism during the period of his membership, is explained in paragraphs 19 and 20 of that authority. As in the case at hand, the officer in Chowdhury (2024) considered evidence related to the BNP and its tactics in the periods up to 2012 (when the applicant left Bangladesh) and in 2013 and following. However, unlike in the Decision at hand, the officer in Chowdhury (2024) expressly agreed with the applicant’s position that, as he had left the BNP after his departure from Bangladesh in December 2012, he could not be associated with the acts of violence that occurred after January 2013.

[27] Moreover, in Chowdhury (2024), the officer expressly referenced the teachings in El Werfalli to the effect that no link can be established between membership in an organization and future terrorism unless there were reasonable grounds to believe that the organization may engage in acts of terrorism in the future (Chowdhury (2024) at para 9). In contrast, as the Applicant emphasizes, the Decision in the case at hand cites Yamani but makes no reference to El Werfalli. As explained at paragraph 24 of Chowdhury (2022), it is not an error for the Officer to have failed to mention El Werfalli. However, I agree with the Applicant that the lack of any such reference to El Werfalli or the principles explained therein lend support to the Applicant’s position that the Decision cannot be safely read as respecting the constraints surrounding temporality upon the analysis the Officer was required to conduct.

[28] Finally, as noted earlier in these Reasons, I reject the Respondent’s assertion that, in the absence of a fundamental change in the nature of the BNP, the Officer was permitted to rely on post-membership events without conducting the El Werfalli analysis as to whether those events were foreseeable. Nor do I find that the Decision is capable of being interpreted, as suggested by the Respondent at the hearing, as having conducted such an analysis implicitly.

[29] Based on the above conclusions, I find that the Decision is unreasonable. My Judgment will therefore allow this application for judicial review, set aside the Decision, and return the matter to another IRCC officer for redetermination.

[30] Neither party proposed any question for certification for appeal, and none is stated.

JUDGMENT IN IMM-9124-23

THIS COURT’S JUDGMENT is that:

1. This application for judicial review is allowed, the Decision is set aside, and the matter is returned to another IRCC officer for redetermination.

2. No question is certified for appeal.

"Richard F. Southcott"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: