Ali v. Canada (Citizenship and Immigration)

Ali v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2018-11-27
Neutral citation
2018 FC 1187
File numbers
IMM-5603-17, IMM-5604-17
Decision Content
Date: 20181127
Dockets: IMM-5603-17
IMM-5604-17
Citation: 2018 FC 1187
Ottawa, Ontario, November 27, 2018
PRESENT: The Honourable Mr. Justice Roy
Docket: IMM-5603-17
BETWEEN:
ABDIAZIIZ MOHAMED ALI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-5604-17
AND BETWEEN:
ABDIAZIIZ MOHAMED ALI
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
JUDGMENT AND REASONS
[1] These are two judicial review applications that are closely related; both are made pursuant to s. 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA]. In Court File No. IMM-5603-17, the applicant seeks to challenge the decision of the Immigration Division [ID] of December 11, 2017 that found Mr. Ali to be inadmissible to Canada on grounds of security. In file Court File No. IMM-5604-17, the applicant seeks to challenge the decision of a Minister’s Delegate who concluded that the claim for refugee status is ineligible because Mr. Ali has been determined to be inadmissible on grounds of security. As the facts relevant to both cases are the same, this judgment and reasons will apply to both files and a copy thereof shall be filed in Court Files Nos. IMM-5603-17 and IMM-5604-17. As will be seen, issues relevant exclusively to either one of the two cases have been segregated.
I. Facts
[2] Mr. Ali is a young Ethiopian. Now aged 22, he arrived in Canada on July 13, 2015 when he was barely 19 years old. He claimed that he left Ethiopia to escape persecution by Ethiopian authorities. He comes from the ethnically Somali region of Ogaden, in Ethiopia, on the border between Ethiopia and Somalia. He initiated a refugee claim.
[3] According to the Basis of Claim Form of August 7, 2016, the applicant was arrested in August 2013 by the Ethiopian authorities, being suspected of involvement in an Ogaden National Liberation Front (ONLF) attack; he says that he was beaten while detained and he was held in deplorable conditions for almost eight months. In the personal narrative, he discloses that his father now deceased was a well-known local member of the ONLF. He organized meetings and was the designated person for the solicitation of financial support from the local civilian population. An older half-brother is also a fighting member of ONLF.
[4] Following his father’s death, his father’s friends and his uncles visited him at the grocery store he operated on behalf of his mother and they talked to the applicant about the ONLF. The applicant states that “(t)hey encouraged me to get involved with the resistance movement, and said that one way I could do that was by collecting money at my store from people living in nearby villages.” He evidently agreed and he collected money for the ONLF, as well as other goods (food, cigarettes), from residents of nearby villages. He states that a member of the ONLF would come to the store and pick up the money.
[5] The collection on behalf of the ONLF started when the applicant was 16 (probably in 2012) and lasted until he was arrested in August 2013. It seems that he collected approximately $900/month, not an insignificant sum in an impoverished area of Ethiopia. The applicant declares that he “was happy to help the ONLF in this way, since my family and I had suffered mistreatment at the hands of the Ethiopian forces” (narrative, Basis of Claim, para 11).
[6] The applicant was released from custody in March 2014, but he continued to be harassed by the authorities. He decided to leave Ethiopia in June. With the assistance of a smuggler, he left from Addis Ababa for Sudan. Together with 35 other people, he was taken to Libya. He stayed in Libya for about six months to gather money to board a ship leaving for Italy. Rescued by the Italian coast guard, he landed in Italy where he was originally detained. From Italy, Mr. Ali travelled to Norway with a view to plan his journey to Canada. He arrived in Toronto on July 13, 2015.
[7] The claim for refugee status did not progress since he was notified that his claim was suspended pending a determination of his admissibility to Canada.
[8] That led to the decision of the ID which is challenged in the judicial review application that bears the Court File No. IMM-5603-17.
II. The ID decision in IMM-5603-17
[9] The Minister being of the opinion that a report by an officer (May 16, 2016) was well-founded, he referred the matter to the ID for an admissibility hearing, pursuant to s. 44 of the IRPA. Following an admissibility hearing, a decision was rendered on December 11, 2017.
[10] The allegation concerning Mr. Ali is that he is inadmissible to Canada on security grounds. More precisely, he is alleged to be a member of an organization engaged in subversion and in terrorism in Ethiopia. It is paragraphs 34(1)(b), (c) and (f) of IRPA that find application:
Security
Sécurité
34 (1) A permanent resident or a foreign national is inadmissible on security grounds for
34 (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants :
…
[…]
(b) engaging in or instigating the subversion by force of any government;
b) être l’instigateur ou l’auteur d’actes visant au renversement d’un gouvernement par la force;
(c) engaging in terrorism
c) se livrer au terrorisme;
…
[…]
…
[…]
(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).
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).
Mr. Ali is alleged to be member of the ONLF, an organization that engages, has engaged or will engage in terrorism and that instigates, engages, has engaged or will engage in the subversion by force of the government of Ethiopia.
[11] It is important to note that the standard of proof in inadmissibility proceedings is that of s. 33 of IRPA. It suffices that the facts on which the decision maker relies in order to constitute a particular inadmissibility ground be found on the basis of reasonable grounds to believe that they have occurred, are occurring or may occur (s. 33 of IRPA). This is a standard that requires more than mere suspicions, but less than the standard in civil cases, that of the balance of probabilities. In Chiau v Canada (Minister of Citizenship and Immigration), [2001] 2 FC 297 [Chiau], the standard is translated into “a bona fide belief in a serious possibility based on credible evidence” (para 60). The ID relied on the description of the test found in Mugesera “reasonable grounds will exist when there is an objective basis for the belief which is based on compelling and credible information” (Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 SCR 100 [Mugesera], para 114).
[12] Given the standard of proof, the ID was satisfied that the applicant is a member of an organization that there are reasonable grounds to believe engages, has engaged in subversion and in terrorism. That is all that is needed.
A. Subversion
[13] On subversion by force of a government, the ID notes that the courts have given a definition. The controlling authority is Najafi v Canada (Public Safety and Emergency Preparedness), [2015] 4 FCR 162, 2014 FCA 262 [Najafi]. The Court gave the words in paragraph 34(1)(b) “subversion by force of any government” their unambiguous meaning; they “should not be construed as encompassing only the use of force that is not legitimate or lawful pursuant to international law” (Najafi, supra, para 89).
[14] The ID relied on significant information, including some emanating from the ONLF claiming having killed 3000 Ethiopian troops. The ID rejected the applicant’s contention that the ONLF is merely “seeking “to have the people of Ogaden decide their future, not overthrow the Ethiopian government”” (ID decision, para 32). It cites among other pieces of information used to establish the reasonable grounds to believe a document published by the ONLF, referred to as its Political Programme, which calls for the inevitable removal from the homeland of the so-called “colonial military forces”. The ID decision notes many examples of evidence, going all the way to November 2016, of announcements made by the ONLF of ambushes and other military-like actions. Thus, the ID concludes:
[36] This Panel, therefore, finds that the ONLF’s continued and sustained operations against Ethiopian troops are acts that qualify it as an organization engaged in the subversion by force of a government. Their aim is to take over the Ogaden region and to overthrow the Ethiopian government control in that area and they are attempting to accomplish it with subversive and violent means and tactics. Therefore, there are grounds to believe that the ONLF is an organization described in 34(1)(b).
B. Terrorism
[15] Similarly, the ID found ample evidence that the activities of the ONLF satisfied the definition of what constitutes terrorism. It referred particularly to Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 SCR 3 [Suresh]. In Suresh, the Court found that the term “terrorism” is not so unsettled that it cannot set the proper boundaries of legal adjudication. It concluded on that issue in the following fashion:
98. In our view, it may safely be concluded, following the International Convention for the Suppression of the Financing of Terrorism, that “terrorism” in s. 19 of the Act includes any “act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act”. This definition catches the essence of what the world understands by “terrorism”. Particular cases on the fringes of terrorist activity will inevitably provoke disagreement. Parliament is not prevented from adopting more detailed or different definitions of terrorism. The issue here is whether the term as used in the Immigration Act is sufficiently certain to be workable, fair and constitutional. We believe that it is.
[My emphasis.]
[16] Relying on that definition, and noting other international instruments together with the Criminal Code of Canada, the ID proceeded to find in the evidence before it what it called “clear accounts of activities undertaken by the ONLF that qualify as terrorism” (ID decision, para 42). Those included abductions, beatings, and summary executions against civilians in their custody. Oil workers were seen as targets of interest, including Chinese technicians. The ID found the information received from internationally-based human rights groups such as Human Rights Watch to be reliable (Mahjoub v Canada (Minister of Citizenship and Immigration), 2006 FC 1503, [2007] 4 FCR 247, paras 72-73). It concluded:
[46] Based on such reports, it is therefore the position of this Panel that attacking oil exploration sites where local and foreign workers are employed and causing the death and displacement of large groups of people are clearly terrorist acts intended to cause death or serious bodily injury to civilians and their purpose is to compel the government of Ethiopia to rescind its control over the Ogaden region. Therefore, I am satisfied, on reasonable grounds, that the ONLF is an organization referred to in 34(1)(c) of the IRPA for having engaged in terrorism.
[17] In effect, the ID was satisfied that civilians have been targeted by attacks. Is included in these attacks one having taken place in 2007 against oil workers by a group led by one Mohamed Omar Osman. Not only is the ID of the view that there are no splinter groups operating outside of the ONLF, such that the Osman group attack ought not to be attributed to the ONLF, but the signature of a “peace deal” in 2010, to which Osman would not have adhered, is largely a red-herring as the said “peace deal” never held. The numerous ONLF communiqués since 2011 show that armed and political conflicts continued (ID decision, para 90). Indeed, the ID drew the inference that Mr. Ali was collecting money for the Osman group as part of the ONLF because he testified before the ID that he was under the impression that Osman was a leader of the ONLF at the time he was collecting for the ONLF. I repeat. It suffices that there be reasonable grounds to believe for the facts to be established.
C. Mr. Ali’s membership in the ONLF
[18] There is no need to establish formal membership to satisfy the requirements of paragraph 34(1)(f) of the IRPA. The controlling authority is Poshteh v Canada (Citizenship and Immigration), 2005 FCA 85, [2005] 3 FCR 487 [Poshteh], another decision of the Federal Court of Appeal that is binding on the ID and this Court. The Court of Appeal found that the word “member” ought to continue to be interpreted broadly (Poshteh, supra, para 29). There are similarities between Poshteh and the case at bar. In both cases, the person alleged to be a member is under 18 years of age. Their fathers, who passed away when they were still very young, were members of the organization. In the case of Mr. Poshteh he distributed propaganda leaflets in Tehran once or twice per month, for a period of about two years while Mr. Ali collected money and goods for a period of about a year. Both, it appears, ceased their activities after being arrested by the authorities. In fact, Mr. Poshteh argued that “(h)e did not recruit members or raise funds” (para 35) in an attempt to suggest a diminished role. Nevertheless, the Court of Appeal found that the ID had reasons to support a conclusion of membership.
[19] Here, the ID found that the involvement in collecting funds and goods for the ONLF was significant. The applicant was encouraged to get involved with the resistance movement and follow in his father’s footsteps. In his claim for refugee status, he spoke of the perception that he was “a member of the ONLF or that at the very least, he was a supporter of this organization” (ID decision, para 62). Mr. Ali is said to have grown up in an environment where there was loyalty to the ONLF and contribution to its operation (father and brother). He felt he had to support in view of the abuse suffered by his family and his people; in fact he suffered himself at the hands of the authorities as goods were stolen from him by Ethiopian soldiers. During his testimony before the ID, “he eventually and reluctantly admitted that he actually did know about it [knowledge of the armed conflict between the ONLF and the Ethiopian government] when he was in Ethiopia from “the little things that I heard from the news, from the radio”” (ID decision, para 67). As noted by the decision maker, Mr. Ali would know first-hand about the insurgency of the ONLF because, on his own evidence, his brother had joined the armed movement years before.
[20] The ID summed up on the membership of Mr. Ali by writing:
[68] Moreover, as Minister’s counsel argued, it is generally implied that where there are peace negotiations, it is because there is conflict to be resolved. Why else would the ONLF be negotiating for peace? Therefore, there is strong evidence, on reasonable grounds, that Mr. Ali knew that the ONLF was in conflict with the government, and contrary to his claim that the money he collected went to support peace negotiations, the money went to support the overall operations of the ONLF, whether it was for peaceful purposes or otherwise. Having said that, however, section 34(1)(f) does not require active participation in or knowing support of terrorism or subversion of force of a government,52 only that the person be a member of the organization.
[Footnote omitted and my emphasis.]
[21] Age is a consideration to be taken into account when deciding if someone is a member of an organization within the meaning of paragraph 34(1)(f) of the IRPA (Poshteh, supra). The ID finds that Mr. Ali had the requisite knowledge and mental capacity to understand the nature and effect of what he was doing. Not only did he grow up in an environment where he was aware of the goals and purposes of the ONLF, but he was operating the family midsize store and was entrusted to collect funds and goods for the benefit of the ONLF. He indicated in an interview with an official and at the hearing before the ID that he was not coerced into giving support to the ONLF: he believed in the cause, said the ID, and “wanted his people to be free from the oppressive control of the Ethiopian government” (ID decision, para 79).
D. Ministerial Relief
[22] The IRPA provides that Ministerial relief may be granted if someone is found to be inadmissible in circumstances where section 34 is considered. The applicant contended that section 42.1, which allows for the Ministerial relief, has become discretionary and restrictive, thus limiting the safety valve it should be. This is compared to s. 42.1’s predecessor, ss. 34(2) which was repealed in 2013 (2013, C. 16, s. 13). In the view of the applicant, the restriction would not allow the Minister to consider the merits of an argument according to which the membership was innocent.
[23] The ID was not convinced that the scope of s. 42.1 was significantly reduced. In Najafi (supra), the Court of Appeal considered the new s. 42.1 and old ss. 34(2) in its comments about Ministerial relief (paras 80 and 81), the existence of which would counterbalance the scope of the definition of membership given by the jurisprudence. No narrowing of the provisions was noticed. In Maqsudi v Canada (Public Safety and Emergency Preparedness), 2015 FC 1184, this Court did not see in s. 42.1 an undue restriction to access to the relief. It felt bound by Najafi. The Court (para 49) referred to paragraphs 80 and 81 in Najafi at length. I would do the same for the sake of clarity:
[80] Obviously, when I state that Parliament intended for the provision to be applied broadly, I am referring to the inadmissibility stage, for, as noted by the Supreme Court of Canada in Suresh, albeit in a different context, the legislator always intended that the Minister have the ability to exempt any foreign national caught by this broad language, after considering the objectives set out in subsection 34(2). This is done by way of an application. (As discussed above, subsection 34(2) is now subsection 42.1(1). Per subsection 42.1(2), it can now also be granted on the Minister’s own initiative).
[81] This mechanism can be used to protect innocent members of an organization but also members of organizations whose admission to Canada would not be detrimental or contrary to national interest because of the organization’s activities in Canada and the legitimacy of the use of force to subvert a government abroad.
The same comment was made in Kanagendren v Canada (Citizenship and Immigration), 2015 FCA 86, [2016] 1 FCR 428 (para 26). (See also Nassereddine v Canada (Citizenship and Immigration), 2014 FC 85, [2015] 2 FCR 63 [Nassereddine] at paras 21, 74, 75).
[24] At any rate says the ID, Mr. Ali is not an innocent member: he knew and understood the goals and functioning of the ONLF, yet he supported it. His membership was established.
E. Temporal Connection
[25] This time, the argument was that the ONLF transformed itself into a political organization with the peace agreement of 2010. The tribunal disposed of the argument quickly. There is no evidence that the ONLF transformed itself after 2010. The conflict remained ongoing through 2017 (date of the ID decision). The ONLF’s own communiqués show that the conflict is ongoing (ID decision, para 90). Furthermore, the ID concluded that there is no temporal connection between the membership and the acts of terrorism or subversion. Support for the finding is found in Yamani v Canada (Public Safety and Emergency Preparedness), 2006 FC 1457 where it is said that “there is no temporal component to the analysis in s. 34(1)(f)” (para 11). The same conclusion was reached in Gebreab v Canada (Public Safety and Emergency Preparedness), 2010 FCA 274:
[3] Consequently, the appeal will be dismissed and the certified question will be answered as follows:
It is not a requirement for inadmissibility under s. 34(1)(f) of the IRPA that the dates of an individual’s membership in the organization correspond with the dates on which that organization committed acts of terrorism or subversion by force.
F. Charter Violation
[26] Mr. Ali sought to argue that section 7 of the Charter (Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]) is engaged in the early stages of the determination of inadmissibility. The argument is that inadmissibility causes the ineligibility to make a refugee claim (the applicant challenges the ineligibility finding in IMM-5604-17), which results in the pre-removal risk assessment [PRRA] that can take place only on narrowed grounds. Moreover, travel restrictions exist, there is a lack of access to employment and education and a person carries the social stigma of being found to be a member of a terrorist (or subversive) organization. These are the direct result of the inadmissibility proceedings before the ID. The right to life, liberty and security of the person is affected at the early stage; the right not to be deprived of those rights is said to be in contravention of the principles of fundamental justice well before someone is removed from Canada.
[27] The ID finds that s. 7 of the Charter must be shown to be engaged through a finding of inadmissibility where the life, liberty or security of the person would somehow be compromised. The ID relies on two cases: B010 and Stables. The Supreme Court of Canada, in B010 v Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 SCR 704 [B010], said unambiguously that s. 7 “is not engaged at the stage of determining admissibility to Canada …” (para 75). The same point of view was expressed in Stables v Canada (Citizenship and Immigration), 2011 FC 1319, [2013] 3 FCR 240 [Stables] at paragraphs 39 and 40. On the basis of these authorities, as well as those cited in those cases, the ID considered that section 7 of the Charter is not engaged.
[28] At any rate, relying on Stables at paragraph 56, the ID also found that the process is not inconsistent with the principles of fundamental justice. I note that Mr. Stables was challenging the constitutionality of s. 37 of the IRPA (member in a criminal organization). It did not appear that the constitutionality of any provision was in issue before the ID in the instant case.
III. The ID decision in IMM-5604-17
[29] In the decision in IMM-5604-17, dated December 18, 2017, the claim for protection was found, through the application of paragraphs 104(1)(b) and 101(1)(f), to be ineligible to be referred to the Refugee Protection Division [RPD]. The decision is very short. Indeed it speaks of a Notification of Ineligibility. That is so because the claimant, Mr. Ali, had been determined to be inadmissible on the ground of security. The Notification simply states that “(c)onsequently, you are ineligible to have your claim for refugee protection heard by the Refugee Protection Division of the Immigration and Refugee Board of Canada (s. 104(1)(b) for s. 101(1)(f))”.
IV. Arguments on inadmissibility
[30] The applicant raises basically two issues in his judicial review application with respect to inadmissibility. The inadmissibility finding is challenged as the ID erred in finding that Mr. Ali was a member of an organization engaged in the subversion by force of any government and in terrorism. It was an error to conclude that the organization had engaged in terrorism. The ID also erred in law in refusing to consider that Mr. Ali’s rights under s. 7 of the Charter are engaged at an early stage, thus failing to interpret ss. 34(1) of the IRPA in a way consistent with the principles of fundamental justice and Canada’s international human rights obligations.
A. Inadmissibility
[31] The applicant contends that the ID wrongly concluded that he was a member of the ONLF. He also argues that he cannot be a member of an organization engaged in terrorism because he did not know that the ONLF had engaged in the targeting of civilians or that one of its objectives included overthrowing the Ethiopian government in his region of Ogaden. He was at best an innocent member.
[32] The applicant also argues that s. 7 of the Charter is engaged and that the ID has an obligation to interpret the term “member” in such a way that it does not violate s. 7 because “any interpretation broad enough to capture his limited connections to the ONLF would be inconsistent with s. 7” (Further Memorandum of Fact and Law, para 55).
B. Membership
[33] The applicant did not discuss the standard of review, but stated that the findings of fact leading to the conclusion that Mr. Ali was a member of the ONLF were unreasonable.
[34] The notion of membership cannot be as broad as found by the ID because it then becomes meaningless (Toronto Coalition to Stop the War v Canada (Public Safety and Emergency Preparedness), 2010 FC 957 at para 118). Support for a terrorist organization will not suffice. Referring to Nassereddine (supra), the applicant states that the nature of the involvement in the organization, the length of time of the involvement and the commitment to the organization are to be considered. His involvement is presented as so limited that there is no evidence he knowingly supported terrorist activities. His support was not sufficient.
[35] Another unreasonable finding of fact is said to be the comment made by the ID that Mr. Ali was raised in an environment where support for the ONLF was present and conductive to an awareness of the organization’s goals and purpose.
[36] In the view of the applicant, the ID should have found him to be an innocent member in view of the narrower scope of the Ministerial relief provision (s. 42.1) of the IRPA. That determination should not have to wait for the Ministerial relief now found at s. 42.1.The applicant claims “that Mr. Ali did not know that the ONLF had engaged in the targeting of civilians” (Further Memorandum of Fact and Law, para. 91) or that one of its objectives was the overthrow of the Ethiopian government in Ogaden. The evidence of Mr. Ali is sufficient for a finding that he was an innocent member.
[37] In that same vein, it is argued that the applicant did not knowingly participate in the organization’s terrorist activities in that the evidence concerning such activities relates to a splinter group (the Osman group). Here, the argument appears centered on the burden of proof that is claimed to be transferred by the ID onto the applicant. It was not for the applicant to disprove the limit to the group responsible for the attack on civilians. As he puts it, “(t)he onus is on the Minister to provide evidence that Mr. Ali was connected to an organization that committed terrorist acts and that his purpose in contributing to that group was to enhance their ability to commit the acts ” (Further Memorandum of Fact and Law, para 95). The association with a splinter group is only coming from Mr. Ali’s testimony that he knew that Osman was the leader of the ONLF. That, in the view of the applicant, is not determinative.
[38] As is to be expected, the respondent takes a different view. The Minister reviewed in details the applicant’s evidence which tends to present the applicant’s involvement as more limited and innocent, as time goes on, from the Basis of Claim to an interview with an officer in April 2016 to the hearing before the ID. To put it another way, the applicant was more effusive about his involvement when he was trying to convince that he ought to have been found to be a refugee. The “objective” evidence before the ID included the following taken from the Respondent’s Further Memorandum of Fact and Law, at paragraph 4:
…
(h) The Applicant named Mohamed Osman as an ONLF leader and when confronted with the fact that Osman advocated armed struggle he responded that he was informed by the elders that Osman favoured peaceful negotiations (AR, p. 305);
(i) The ONLF has attacked and killed civilians at an oil installation; summarily executed civilian government officials; and executed civilians it perceives to be government collaborators (AR, pp. 95-97);
(j) An ONLF communique accuses oil companies of funding the Ethiopian regime and that the Ethiopian army and associated entities and therefore are considered legitimate military targets (AR. P. 153, 155);
(k) The ONLF is a nationalist movement that seeks self-determination for ethnic Somalis in Ethiopia which was founded in 1984. It engages in ambushes and guerilla style raids against the Ethiopian army, the kidnaping of foreign workers presumed to be government agents and bombings in the Ethiopian capital. It also took responsibility for an attack on an oil field where it killed Somali and Chinese workers justifying its violence by saying that the violence had not been without warning (AR, pp. 191-193);
(l) The ONLF’s killing of the oil workers has been widely reported (AR, pp. 195, 197, 204);
(m) The ONLF will use any means necessary, including violence to achieve its goal of self-determination (AR, p. 204);
(n) The ONLF consists of 8,000 fighters armed with automatic weapons and some RPGs. They hold the rural hinterlands and resort to hit and run tactics against the government. There is a disagreement in the leadership with Chairman Mohamed Osman favouring aid from Eritrea (AR, pp. 197-199); and
(o) A spokesperson for the Osman group of the ONLF, which claimed responsibility for the 2007 killings of oil workers stated that the ONLF does not contain factions (AR, p. 232).
[39] Being governed by the standard of reasonableness, the Court owes the decision maker a great deal of deference. The inadmissibility finding was reasonable.
[40] Subversion by force of any government does not require that it be shown that the force used was illegitimate at the ID stage. Such consideration is relevant at the Ministerial relief stage of the process.
[41] Relying on the definition of “terrorism” in the Supreme Court of Canada decision in Suresh (supra, para 98), the respondent argues that the ID reasonably found enough evidence that the ONLF sanctions terrorist acts: the Osman group is not distinct and separate from the ONLF. The respondent relies on four paragraphs of Nassereddine, which I reproduce:
[44] In my view, it cannot be that an applicant who admits to membership in a terrorist group may then escape inadmissibility simply by asserting that he or she is a humanitarian who operated within a non-violent faction of that terrorist organization absent documentary or other evidence to support this assertion. The existence of the faction, its distinct identity and its operations must be objectively established. If an applicant is unable to establish this, then he or she may still seek the potential relief available pursuant to subsection 42.1(2) (formerly subsection 34(2).
[45] In Ugbazghi v Canada (Minister of Citizenship and Immigration), 2008 FC 694, the applicant therein was found to be a member of the Eritrean Liberation Front (ELF), an organization potentially engaged in terrorism. Her application for permanent residency was refused on the grounds that she was found to be inadmissible pursuant to subsection 34(1)(f). Initially, she stated that she was a member of the ELF. She later submitted that she was not a member of the ELF, but was a member of an ELF support group. Justice Dawson dismissed the application for judicial review. She noted that the applicant provided no evidence confirming the existence of such a separate support group. Further, the applicant’s own evidence showed that the support group completely identified with and worked to further the goals and activities of the ELFF, it did not support a finding that the group was entirely separate and distinct from the ELF.
[46] Justice Dawson noted that in any case it is always possible to say that a number of factors support a membership finding and that a number of factors point away from membership. The weighing of these factors is within the expertise of the officer (Poshteh v Canada (Minister of Citizenship and Immigration), 2005 FCA 85 at paras 36 [Poshteh]). Justice Dawson found that:
[47] Without doubt, subsection 34(1) of the Act is intended to cast a wide net in order to capture a broad range of conduct that is inimical to Canada’s interests. Parliament’s intent is further reflected in section 33 of the Act, which requires that the facts that constitute inadmissibility include facts that “there are reasonable grounds to believe” occurred. Thus, the test for inadmissibility is whether “there are reasonable grounds to believe” that a foreign national was a member of an organization that “there are reasonable grounds to believe” engages, has engaged, or will engage in acts of terrorism. This is a relatively low evidentiary threshold. It is because of the very broad range of conduct that gives rise to inadmissibility that the Minister is given discretion, in subsection 34(2) of the Act, to grant relief against inadmissibility
[47] In the matter before me, the Applicant in his testimony consistently asserted that his work with Amal was in its civil defence department. However, he provided no other evidence as to the existence of the civil defence department, its objectives and goals, how it operated, under what leadership it operated or how it was distinct from Amal’s military branch. Given this, and the absence of any documentary or other evidence that supported the Applicant’s submission, the IRB did not err by failing to consider the role of Amal’s “civil wing” in the context of the Applicant’s section 34 inadmissibility hearing. And, in any event, the test for inadmissibility as described in Ugbazghi, above, was met based on the Applicant’s admission of membership in Amal.
[42] The applicant had to show that the conclusion that he is a member of the ONLF was unreasonable in view of the broad and unrestricted interpretation that has been given to the term by the courts. Membership may be established if material support, such as providing funds, is shown, even though such acts are not directly linked to violence (Suresh v Canada (Public Safety and Emergency Preparedness), 2017 FC 28, at para 84). In Poshteh (supra), the distribution of pamphlets by someone who was never a formal member of an organization and did not even raise funds for the organization or recruit members was ruled sufficient by the ID; the finding was ruled to be reasonable by this Court as well as by the Federal Court of Appeal. Given the young age of Mr. Poshteh, the Court of Appeal also provided guidance by finding that the onus is on the applicant to offer evidence in support of a contention that the knowledge and mental capacity were deficient, noting that the presumption of likelihood of knowledge and capacity is stronger when a minor person is closer to 18 years of age. The ID’s finding was reasonable.
C. Is s. 7 of the Charter engaged?
[43] The applicant seems to take issue with the meaning given by the case law to the term “member” as it should not be given an interpretation that would capture the limited connections with an organization in a case like the present one. In a word, the definition is too broad if it is to be given a liberal and unrestricted interpretation. The common law definition is tempered if Ministerial relief is generous: it is not the case anymore, now that s. 41.2 has replaced ss. 34(2) of the IRPA.
[44] It appears that the applicant contends that the mere standing as a person inadmissible to Canada is sufficient to engage s. 7. That, he says, imposes a severe psychological stress. Furthermore, being inadmissible deprives him of the full-blown refugee process as his protection against removal will come in the form of a PRRA where only the s. 97 grounds will be considered. He is not allowed to obtain permanent residency status in Canada if he is inadmissible and he will not be permitted to visit his family in Kenya. He can be “refouled” to Ethiopia at any time.
[45] This, argues the applicant, results in the violation of “substantive principles of fundamental justice”. He identifies two such principles.
[46] According to the applicant, there is a principle of non-refoulement which is a principle of fundamental justice because it constitutes the most fundamental right afforded to refugees: “Denying Mr. Ali legal protection against refoulement is contrary to his rights under international law” (Further Memorandum of Fact and Law, para 64). Surprisingly, the applicant cites paragraph 104 of the Supreme Court decision in Németh v Canada (Justice), 2010 SCC 56, [2010] 3 SCR 281 [Németh], an extradition case, which states that the principle of non-refoulement may not even have acquired the status of jus cogens at international law, as it continues to be controversial among international law scholars.
[47] In order to make the principle of non-refoulement a principle of fundamental justice, the applicant claims that it is a legal principle found in international instruments as well as municipal law. It is also said to be “vital to our societal notion of justice” being a cornerstone of refuge protection.
[48] It is important to note that the applicant relies on two cases for his proposition that the principle of non-refoulement has attained the level of principle of fundamental justice in Canadian constitutional law: Németh, an extradition case that did not find that the principle has even reached the level of the jus cogens and Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4, [2004] 1 SCR 76 [Canadian Foundation], the case that found that s. 43 of the Criminal Code (correction of child by force) did not violate s. 7 of the Charter.
[49] The applicant was invited repeatedly to explain, with a measure of precision, how the principle can be a principle of fundamental justice. We are left with the analysis by the majority of the three principles of fundamental justice in the Canadian Foundation case which are alleged to apply somehow in our case: independent procedural rights of children, the best interests of the child and vagueness and overbreadth.
[50] As I understand it, the applicant relies on the analysis by the Chief Justice, on behalf of the majority, who provided a framework to determine whether a legal principle can become a principle of fundamental justice:
(a) It must be a legal principle. Not only it provides some meaningful content, but it avoids the adjudication of policy matters;
(b) There must be sufficient consensus that the alleged principle is vital or fundamental to our notion of justice in society. The Court adds that “(t)he principles of fundamental justice are the shared assumptions upon which our system of justice is grounded. They find their meaning in the cases and traditions that have long detailed the basic norms for how the state deals with its citizens. Society views them as essential to the administration of justice” (para 8);
(c) The legal principle must be precise enough that once applied it yields predictable results.
In order to gauge how fundamental principle must be to qualify, the Chief Justice cites as examples the need for a guilty mind (mens rea) and the need for reasonably clear laws.
[51] The Supreme Court refused to see in the best interests of the child a p